General incoming extradition process
(1) Crime committed: A crime is committed in a foreign country.
(2) Alleged offender flees: Alleged offender arrives in Australia.
(3A) Provisional arrest: In urgent cases, the foreign country may send a provisional arrest request to the Attorney-General’s Department (AGD). If AGD accepts the request, AGD instructs the Commonwealth Director of Public Prosecutions (CDPP) to apply to a magistrate for an urgent provisional arrest warrant (s 12). The warrant is executed by the police. The country must provide a formal extradition request within 45 days of the person’s arrest (this time period can be varied by treaty (s17)). Not all cases involve an urgent provisional arrest warrant, therefore this step is only part of the process if a provisional arrest request is received.
(3) Receipt: The foreign country sends AGD a formal extradition request.
(4) Accept: The Attorney-General or the Minister for Home Affairs has a discretion to issue a notice to a magistrate that the extradition request has been received (s 16) if satisfied:
(a) the person is an extraditable person in relation to the extradition country (s 16(2)(a)(i))
(b) that it is an extradition offence and satisfies dual criminality (s 16(2)(a)(ii))
(c) A-G is not of the opinion there is an extradition objection (s 16(2)(b)).*
- Extraditable person means a person who has been convicted in a foreign country, or a person for which a foreign country has issued an arrest warrant (s 6).
- Extradition country means a country declared in regulations (s 5).
- Extradition offence means an offence punishable by at least 12 months imprisonment (s 5).
- Dual criminality means that the conduct would be an offence in both Australia and the foreign country.
- An extradition objection (s 7) includes:
o the offence is a political offence
o the surrender is sought for purpose of prosecuting on grounds of race, religion, nationality or political opinions
o the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, religion, nationality or political opinions
o the offence is a military offence only, and
o the person has been acquitted, pardoned or already punished for the offence in Australia or the requesting country.
(5) Arrest and remand/bail: If an urgent provisional arrest warrant was not issued, the magistrate now issues an arrest warrant under section 12. The warrant is executed by the police. The person must be remanded in custody unless there are “special circumstances” that justify bail being granted (s 15 (6)).
(6A) Consent: A person can consent to their extradition before a magistrate (s 18).
OR
(6) Eligible for surrender: A magistrate determines if the person is eligible for surrender (s 19) if satisfied:
(a) the necessary documents are produced
(b) of any additional requirements imposed by regulations, such as the need to establish a prima facie case
(c) the conduct would have constituted an extradition offence if done in Australia, and
(d) there are no substantial grounds for believing that there is an extradition objection in relation to the offence.
- CDPP acts for the requesting country in extradition proceedings.
THEN
(6B) Review: Person or country can seek review of the magistrate’s decision under s 21 of the Act in the Federal Court or the Supreme Court of a State/Territory. Such a decision could then be appealed to the Full Court of the Federal Court and then to the High Court.
(7) Surrender: The Attorney-General or the Minister for Home Affairs determines whether the person should be surrendered (s 22) – only if:
(a) there is no extradition objection
(b) the person will not be subjected to torture
(c) the death penalty will not be imposed/carried out
(d) a speciality assurance has been given
(e) a mandatory ground for refusal in regulations does not apply, or a discretionary ground for refusal in regulations should not apply, and
(f) in the Attorney-General’s discretion, the person should be surrendered.*
- The person may make submissions to the Attorney-General or the Minister for Home Affairs.
(7A) Prosecution in lieu: If the Attorney-General or the Minister for Home Affairs refuse to extradite a person because the person is an Australian citizen, the Attorney-General or Ministry of Home Affairs may consent to the person being prosecuted for the offence in Australia (in lieu of extradition), but only if the other country would not extradite their own citizens in similar circumstances
IF THE ATTORNEY-GENERAL OR MINISTER FOR HOME AFFAIRS DECIDES TO SURRENDER THE PERSON
(8A) Logistics of surrender: AGD liaises with the foreign country about logistics of surrender.
OR
IF THE ATTORNEY-GENERAL OR MINISTER FOR HOME AFFAIRS DECIDES NOT TO SURRENDER THE PERSON
(8B) Release: The Attorney-General or the Minister for Home Affairs decides not to surrender and releases the person.
IF THE PERSON IS TO BE SURRENDERED
(9) Escorts: Authorities from the foreign country escort the person to the foreign country.
If the person is not removed from Australia within 2 months from the surrender warrant, the person can apply to be released (s 26).
(10) Prosecution: The person is prosecuted in the foreign country.
NOTE
- In practice, the Minister for Home Affairs makes extradition decisions, although the Attorney-General makes some decisions, eg terrorism cases.
* A person can seek review of these decisions under s39B of the Judiciary Act 1903 and s 75(v) of the Constitution. The Australian Government Solicitor (AGS) acts for the Attorney-General or the Minister for Home Affairs in these judicial review proceedings.
