International Extradition

Incoming Extradition Requests

Where a crime is alleged to have been committed in a foreign country and the alleged offender is in Australia, that country can make a request for extradition. If the Attorney-General is satisfied that the person has:

• been convicted of an offence in that country; or
• there is a valid arrest warrant in place; and
• the request is made by an extradition country;

they have a discretion to issue a notice to a magistrate. The Magistrate will then issue an arrest warrant, which is executed by police. Once executed, the Magistrate will remand the person in custody, unless there are special circumstances that justify the grant of bail. A magistrate will then be required to determine if the person is eligible for surrender.

The types of matters the magistrate will consider are:

• were the necessary documents produced?
• Are there any additional requirements imposed by regulations, such as the need to establish a prima facie case?
• Would the conduct have constituted an extradition offence if done in Australia?
• Are there substantial grounds for believing that there is an extradition objection in relation to the offence? These include if the offence is a political or military offence, or the person may be prejudiced at their trial, or detailed or restricted in their liberty because of race, or sex, sexual orientation or political views (non-exhaustive).

If the magistrate determines that the person is eligible for surrender, they must be remanded in custody unless special circumstances justify the granting of bail. The Attorney-General will then determine if the person will be surrendered.

The Attorney-General can only permit the surrender of a person if:

• There is no extradition objection
• The person will not be subjected to torture, upon extradition
• The death penalty will not be imposed
• A speciality assurance has been given
• A mandatory ground for refusal does not, or should not apply
• They consider the person should be surrendered.

If they are to be surrendered, the AGD liaises with the foreign country about surrender, and authorities from that country escort the person back. The prosecution will then take place.

If the determination is that they cannot be surrendered, the person must be released.

If the person is not removed from Australia within 2 months from the date of the surrender warrant, a person can apply to be released.

It is critical that advice and representation is sought from an expert in this field because submissions can be made to both the magistrate and the AGD in relation to the decision to allow the extradition request. If made, the decision by the AGD is also reviewable.