Waiving Extradition Rights

A person can be extradited if:

1. the decision to waive extradition is voluntary,
2. they are legally represented or was given adequate opportunity to be legally represented, and
3. they confirm that they wish to waive extradition after the magistrate has informed them that:
   1. they cannot apply for the order to be revoked once made,
   2. the extradition country may not have given or will not be required to give a speciality assurance (that the person will not be tried for other offences) if the order is made, and
   3. after the order is made, they will be surrendered to the extradition country if the Attorney-General makes a surrender determination under s 15B(2).

Pursuant to s 15B, if a magistrate informs the Attorney-General that a person wishes to waive extradition, the Attorney-General must, as soon as practicable and having regard to all the circumstances, determine if the person can be surrendered. The Attorney-General will need to consider things like the risk of torture and dual criminality.

If a person exercises their right to waive extradition, a magistrate cannot grant bail. If the magistrate or Attorney-General refuse to surrender a person, they must be released from custody.

Appeals

An extradition order can be reviewed by the Federal Court within 15 days. They can confirm whether the court order stays in place or quash it.

Immigration Implications

It is important to note that even if a foreign citizen is granted bail after extradition to Australia, it does not prevent the Department of Home Affairs or like governmental department in a foreign country from refusing or cancelling the accused’s visa. This places the accused at risk of being placed in immigration detention.

The recent High Court case of Benbrika v Minister for Home Affairs that our firm conducted confirmed that the Department cannot strip an Australian citizen of their citizenship.