Extradition process in Australia
The Full Federal Court in Harris v Attorney-General (1994) 52 FCR 386 outlined the stages of the process under the Extradition Act.
- A foreign country makes a request for the extradition of a suspect from Australia;
- The Attorney-General serves written notice on the Federal Circuit and Family Court of Australia;
- A magistrate issues a warrant for the arrest of the accused and considers whether there are special circumstances to allow bail;
- The Attorney-General decides whether the accused should be extradited to the requesting country. Even if the court grants extradition, the Attorney-General may overturn that decision.
If the request meets the necessary requirements, the Attorney-General or his representative issues a warrant for the arrest of the requested person. Warrants may be for attendance (for voluntary appearance in court) or for arrest.
After arrest, the person is brought before the Magistrates Court, where the grounds for extradition and his rights are explained to him. The court considers the possibility of release on bail, taking into account the risk of flight and other factors.
If the court decides that all the requirements are met, it orders the person to be surrendered to the Attorney-General for final determination. Otherwise, extradition is refused and the person is released.
The requested person has the right to appeal the decision to the Federal Court or the Supreme Court of Australia within a further 15 days. If the party is not satisfied with the decision of the Federal Court, he or she may appeal to the Full Federal Court within 15 days. The party may then apply to the High Court for special leave.
The main piece of legislation governing extradition in Australia is the Extradition Act 1988, which sets out the procedures and requirements for the extradition of persons both from Australia to other countries and to Australia from overseas. The Act also gives the Attorney-General’s Department the power to act as a central authority for international extradition matters.
Interstate extradition in Australia is governed by the Service and Enforcement of Judgments Act 1992. Under this Act, the police of any Australian jurisdiction can arrest a person on a warrant from any other state or territory.
Once arrested, the accused must appear before a magistrate in that jurisdiction along with the warrant. The home jurisdiction has priority in prosecuting offences committed in that state or territory prior to extradition. This means that the extraditing state must wait until the person has been tried and served their sentence before bringing charges.
Australia has bilateral agreements with other countries to regulate extradition procedures. Australia also has obligations under multilateral treaties aimed at combating specific crimes.
Australia has extradition agreements with more than 140 countries, providing a legal basis for the extradition of criminals and the exchange of information. But despite this wide network of treaties, there are a number of countries with which Australia does not have formal extradition agreements:
- Russia
- China
- Saudi Arabia
- Iran
- North Korea
- Somalia
- Yemen
- Syria
- Eritrea
- Vietnam
- Mongolia
- Afghanistan
- Nepal
- Bhutan
- Kazakhstan
- Uzbekistan
- Qatar
- Madagascar
People accused or convicted of serious crimes in Australia may escape justice by fleeing to countries without extradition agreements.
Australia has bilateral extradition agreements with the following countries:
- Argentina
- Hong Kong
- Malaysia
- Spain
- Austria
- Hungary
- Mexico
- Sweden
- Belgium
- India
- Monaco
- Switzerland
- Brazil
- Indonesia
- Netherlands
- Turkey
- Ireland
- Norway
- United Arab Emirates
- Israel
- USA
- Finland
- Italy
- France
- Korea
- Poland
- Venezuela
- Germany
- Latvia
- Portugal
- Vietnam
- Greece
- Luxembourg
- South Africa
Members of the British Commonwealth of Nations have a slightly different extradition regime with Australia. The procedure is governed by the Extradition Regulations. In addition, Australia also has a separate agreement with New Zealand, under which law enforcement agencies in both jurisdictions can decide extradition matters without government or court intervention. This is known as “backing of warrants”.
Extradition Treaty between the US and Australia
The first extradition treaty between the United States and Australia was concluded back in 1976. The treaty sets out the legal framework and procedures for the extradition of individuals between the United States and Australia.
The requesting party (either the United States or Australia) prepares a formal extradition request containing:
- Description of the crime and its classification;
- Text of applicable laws;
- Evidence supporting the validity of the request;
- Information on the identity and location of the wanted person.
The request is made through diplomatic channels or directly between the US Department of Justice and the Australian Attorney General’s Department.
Once the request is received, the competent authorities of the requested country issue a warrant for the arrest of the person. The arrested person is brought before a court for a preliminary hearing, where the following is checked:
- Legitimacy of the request;
- Availability of sufficient evidence;
- Compliance with procedural requirements.
The court assesses whether the act meets the criteria of dual criminality and whether there are any obstacles to extradition. If the court decides in favor of extradition, the case is transferred to the executive authorities, who make the final decision on extradition.
How can Interpol lawyers help you?
Our experienced INTERPOL lawyers can help challenge and mitigate extradition requests using legal mechanisms.
If your extradition request is accompanied by an INTERPOL Red Notice, our lawyers can help verify the legality of the notice. They can challenge it if there is political motivation, insufficient evidence or other human rights violations.
Our lawyers can defend you in court, challenging the extradition request on the basis of international treaties and Australian laws. We analyze all the circumstances of the case to find grounds for refusing extradition, such as the threat of the death penalty, torture or human rights violations.
We provide comprehensive advice on extradition issues, taking into account international treaties, Australian laws and INTERPOL obligations. This allows us to build a defense strategy that takes into account the specifics of your case.
Our lawyers can negotiate with Australian government agencies and INTERPOL representatives to settle the extradition issue before trial or minimize the consequences for the client.
Contact us today to receive qualified assistance with extradition matters in Australia and protect your rights internationally!
