Fact sheet 2 Overview of the Extradition Process

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1 Fact sheet 2 Overview of the Extradition Process This fact sheet is information, not legal advice This fact sheet provides general information only. It does not give legal advice on the operation of the Extradition Act 1988 (Cth) (the Extradition Act) and should not be relied on as legal advice. Why do we need extradition? Australia needs to ensure that criminals cannot evade justice simply by crossing borders. This requires an effective extradition regime that includes appropriate safeguards. Australia s extradition relationships with other countries exist to enable Australia to ensure the effective administration of criminal justice in this country. Australia s extradition relationships also enable us to cooperate with partner countries to combat crime and prevent Australia from becoming a refuge and safe haven for persons accused of serious crimes in other countries. Statistics about cases Information about the number of extradition requests made and received by Australia is available in our annual report, which can be downloaded at What is extradition? Extradition is the process by which one country apprehends and sends a person to another country to face criminal charges or serve a sentence. There is also a system of streamlined interstate extradition within Australian. This fact sheet is only about international extradition, not interstate extradition. For example, extradition is used if a person commits an offence, such as murder, in Australia and flees to the United States (US) before he or she is prosecuted. In that case, Australia could make an extradition request to the US for the arrest of the person in the US and his or her return to Australia to face prosecution. The Extradition Act provides Australia s legislative basis for extradition. It sets out a number of mandatory requirements which must be met before Australia can make or accept an extradition request. Those requirements may be supplemented by requirements contained in a multilateral or bilateral treaty. The International Crime Cooperation Central Authority of the Australian Government Attorney- General's Department is the Australian Central Authority that administers the Extradition Act.

2 Who can make an extradition request in Australia? Australian extradition requests can only be made by the Attorney-General or the Minister for Justice (the Minister). Extradition is not available at the request of members of the public. Which countries can Australia make an extradition request to? Australia is able to make an extradition request to any country. Australia s treaty partners have obligations to consider Australia s requests. In the absence of a treaty, it is a matter for the foreign country in accordance with its domestic laws and procedures, to determine whether the country can agree to Australia s extradition request. Which countries can make an extradition request to Australia? Countries defined as an extradition country in Australian legislation can make an extradition request to Australia. An extradition country is defined in the Extradition Act and includes any country that is declared by the regulations to be an extradition country. For example, the Extradition (United States of America) Regulations declare that the US is an extradition country and enable Australia to receive extradition requests from the US. This is different from mutual assistance. Australia can receive mutual assistance requests from any country, without the need for regulations or a treaty. Extradition between Australia and New Zealand There is a separate extradition process for all extradition requests between Australia and New Zealand. For general information regarding the extradition process between Australia and New Zealand, please refer to: Flowchart 6 Procedure for Incoming New Zealand extradition requests Flowchart 7 Procedure for Outgoing New Zealand extradition requests 2 of 6

3 How does Australia make an extradition request to a foreign country? Australian law enforcement agency identifies the need to extradite and obtains an arrest warrant A Commonwealth, State or Territory law enforcement agency identifies the need to extradite a person from a foreign country for prosecution in Australia or to serve a sentence of imprisonment, and obtains an arrest warrant. Urgent provisional arrest requests If it is an urgent matter, the Attorney-General s Department, on receipt of an arrest warrant from the Commonwealth, State or Territory law enforcement agency, can seek the provisional arrest of a person through Interpol channels or directly from the foreign country. For more information, please refer to Fact sheet 1 Provisional Arrest Requests. Prosecution and law enforcement agencies prepare documents in support of the extradition request Prosecution and law enforcement agencies work together with the Attorney-General s Department to prepare documentation to support the extradition request. Attorney-General or the Minister decides whether to make the extradition request The Attorney-General or the Minister decides whether to make an outgoing extradition request. This decision may be subject to judicial review. Attorney-General's Department sends the extradition request to the foreign country The Attorney-General s Department transmits the extradition request to the foreign country through the diplomatic channel and liaises with the Central Authority in the foreign country about the progress of the extradition request. The foreign country conducts extradition proceedings in accordance with their laws and decides whether to agree to Australia s extradition request. Surrender and return of person The Attorney-General s Department advises the relevant Australian law enforcement agency if the person is to be surrendered. The Attorney-General's Department liaises with the foreign country and the Australian law enforcement agency to arrange the logistics of surrender. The Australian law enforcement agency escorts the person back to Australia. There is a different process for making extradition requests to New Zealand. For more information, please refer to Flowchart 7 Procedure for Outgoing New Zealand Extradition Requests. The timeframe varies significantly in each case and is dependent on the domestic laws and processes for extradition in the foreign country and any treaty requirements. 3 of 6

4 How can a foreign country make an extradition request to Australia? Extradition requests and urgent provisional arrest requests The incoming extradition process starts with an extradition request from a foreign country. The foreign country sends their request to the Attorney-General s Department. A foreign country can also make an urgent request to provisionally arrest a person before they send a formal extradition request to Australia. For more information, please refer to Fact sheet 1 Provisional Arrest Requests. Stage 1: Attorney-General or the Minister formally receives and accepts the extradition request The Attorney-General or the Minister must decide whether to accept an extradition request. If a request is accepted, a notice to a magistrate that the request has been received is issued. To accept an extradition request, the Attorney-General or the Minister must be of the opinion that the person is an extraditable person in relation to the extradition country. 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. Extradition country means a country declared to be an extradition country in regulations for the purposes of the Extradition Act. The decision by the Attorney-General or the Minister to issue a notice accepting an extradition request can be subject to judicial review. Stage 2: The person is arrested and the magistrate remands the person in custody or grants bail If the Attorney-General or the Minister issues a notice formally accepting an extradition request, a magistrate must issue an extradition arrest warrant if the magistrate is satisfied that the person is an extraditable person in relation to the extradition country. The extradition arrest warrant is executed by Australian police and once the person is arrested, the person must be remanded in custody by a magistrate unless there are special circumstances that justify the grant of bail. Once a person is remanded, the person can waive the extradition process and skip stages 3 and 4 below. For more information about waiving the extradition process, refer to Fact sheet 3 Waiver of Extradition. Stage 3: The magistrate determines whether the person is eligible for surrender Once a person is remanded, a magistrate determines whether the person is eligible for surrender. In determining whether the person is eligible for surrender, a magistrate considers: whether the necessary documents are produced if there are any additional requirements imposed by regulations whether there is dual criminality, and 4 of 6

5 whether there is an extradition objection. Dual criminality means that the conduct constituting the offence for which the person s extradition is sought would amount to an offence in both Australia and the foreign country. Extradition objections include if: a person s extradition is sought for a political or military offence the person has been acquitted, pardoned or undergone punishment for the same conduct constituting the offence the person s extradition is sought for the purpose of prosecuting or punishing the person on the basis of his/her race, sex, sexual orientation, religion, nationality, or political opinions, or the person may be prejudiced at trial, punished, or detained on the basis of his/her race, sex, sexual orientation, relation, nationality, or political opinions. If the magistrate determines that the person is eligible for surrender, he/she must commit the person to prison to await the Attorney-General s or the Minister s surrender determination unless there are special circumstances justifying the grant of bail. A review of the magistrate s determination can be sought. The person or foreign country can seek review of the magistrate s determination as to the person s eligibility for surrender to the Federal Court of Australia within 15 days of the magistrate s order. The Federal Court s decision can be appealed to the Full Court of the Federal Court within 15 days of the Federal Court s order. The Full Court of the Federal Court s decision can be appealed to the High Court of Australia if a special leave application is made within 15 days of the Full Court s order and special leave is granted. Alternative Stage 3: The person consents to their extradition A person may inform a magistrate that he/she consents to extradition. The magistrate must order that the person be committed to prison to await the Attorney-General s or the Minister s surrender determination if: the consent was voluntarily given, and after advising the person that he/she will be committed to prison to await the Attorney- General s or the Minister s surrender determination, and the person will be surrendered if the Attorney-General or the Minister issues a surrender warrant, the person consents to their extradition. Bail is available at this stage if there are special circumstances justifying the grant of bail. 5 of 6

6 Stage 4: Attorney-General or the Minister decides if the person should be surrendered If the magistrate determines the person is eligible for surrender, or if the person consents to extradition, the Attorney-General or the Minister decides whether to surrender the person as soon as is reasonably practicable. In deciding whether to extradite a person who has been found eligible for extradition, the Attorney- General or the Minister considers: whether there are any extradition objections whether there are substantial grounds for believing that the person would be in danger of being subjected to torture on surrender to the foreign country whether the offence is punishable by a penalty of death whether the foreign country concerned has given a speciality assurance in relation to the person treaty requirements, and any other issue. The Attorney-General s or the Minister s surrender determination can be subject to judicial review. Stage 5: Surrender of person If the Attorney-General or the Minister decides to surrender the person to the foreign country, the Attorney-General s Department liaises with the foreign country about the logistics of surrender. Authorities from the foreign country escort the person from Australia to the foreign country. If the person is not removed from Australia within two months from the surrender warrant being issued, the person can apply to the courts to be released. The timeframe for return of a person varies significantly in each case and depends on factors such as whether the person consents to extradition and/or pursues the avenues of judicial review available in the extradition process. 6 of 6

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