Extradition Matters
Our People:
If you have been charged with an offence in a jurisdiction that you are no longer in - for example, another state or another country - you should seek legal advice. Our expert team of criminal lawyers have years of experience in extradition cases.
What is the extradition process?
Extradition is the process by which a suspect located outside a jurisdiction is surrendered to the prosecuting jurisdiction in order for the criminal process to take place.
Sometimes extradition is confused with deportation. Deportation is the removal of a person who does not have any lawful right to enter or remain in a particular country. For more information on deportation, please see the Department of Home Affairs website.
There are two primary types of extradition that occurs in Victoria:
- Interstate Extradition; and
- International Extradition.
Australia also has a special arrangement in place with New Zealand.
In terms of extradition, the requesting state or requesting country is the location where outstanding charges have been filed, whereas the apprehending state or extraditing country is where the suspect is apprehended and extradited from.
Interstate Extradition
Section 51(xxiv) of the Australian Constitution gives concurrent power to both the state and federal parliaments to make laws for extradition of persons between the states. Part 5 of the Service and Execution of Process Act 1992 (Cth) governs interstate extradition and provides for a state to apprehend a person in accordance with a warrant issued by another state.
Apprehension | Interstate Extradition
A person may be extradited interstate where a warrant is executed in the requesting state and the person is apprehended in the apprehending state. It is not required by law for the apprehending officer to present the warrant upon apprehension. An apprehended person may face release and re-apprehension under the same warrant. In the case of re-apprehension, the warrant would need to be produced.
The person would then come before a Magistrate as soon as practicable in the apprehending state. For example, if you are arrested in Victoria for an alleged offence in New South Wales, you would face a Magistrate in the Victorian Magistrates' Court initially. The Magistrate is able to order:
- Release;
- Adjournment;
- Remand in custody; or
- Bail as specified.
It is important to note that under Section 83 of the Service and Execution of Process Act 1992 (Cth), the Magistrate is not bound by the rules of evidence that typically apply in criminal law cases.
If a person faces charges in the local jurisdiction, these will typically be prosecuted first, and any sentence finalised before extradition to the requesting state occurs.
Extradition - what to do
The local Magistrate may grant bail, or they may order for a person to be remanded in custody. If bail is granted, the bail laws of the issuing state apply. If you were apprehended and faced a Magistrate in Victoria, Victorian bail laws would apply. It would be common for a condition of the bail to involve prompt return and surrender to the requesting state.
Should a person be remanded in custody, the Magistrate may make orders for the return of the person to the requesting state to be prosecuted.
Interstate extradition matters can be very complicated and stressful. If you have been charged with an offence in another state, or have any questions regarding interstate extradition, please contact our team of experienced solicitors.
International Extradition
International extradition in Australia is governed by the Extradition Act 1988 (Cth).
It is a rule in international law that countries are entitled to conduct domestic affairs without interference. Australia has extradition treaties with many countries, so international extradition can look different depending on what treaties or mutual assistant agreements exist in a particular circumstance.
Australia will often refuse an extradition request if the requesting country imposes the death penalty for the crime alleged.
Citizens, Permanent Residents and Visa Holders being extradited from Australia
In international extradition cases, the Attorney General will receive an extradition request from another country, outlining the charges that the accused person faces. The requesting country will provide any materials that support their request - typically arrest warrants and a Brief of Evidence. Once the Attorney General has issued a written notice to the Federal Circuit and Family Court of Australia, the matter then falls to the Attorney General's Department, the Department of Foreign Affairs and Trade, and the Australian Federal Police.
Similarly to interstate extradition cases, the matter will be placed before a Magistrate, who may then choose to issue an Australian arrest warrant. This is pursuant under subsection 12(1) of the Act.
The extradition process can take a long time - sometimes years. Once the extradition is granted, the Australian Federal Police will apprehend the person and take them into custody. Our criminal lawyers can review your case, the relevant legislation and case law, and represent you at a bail hearing. At this hearing, the Court must be satisfied:
- Special circumstances exist that justify the grant of bail; and
- There is no real flight risk.
A case from 2001, United Mexican States v Cabal (2001) CLR 165, has set the precedent that the onus falls to the accused person to satisfy the Court of these factors. This is different to most criminal hearings, where the burden of proof is on the Prosecution. There is a presumption - also set by this case - that all persons facing extradition pose a flight risk.
Whether or not bail is granted, the Magistrate will then consider whether the person is eligible for surrender to the requesting country. Factors that impact this decision include:
- Dual criminality: if the offence is a major criminal offence under Australian law;
- Objections: if the person has already been sentenced in Australia for the offence, or if it is unlikely a fair trial will ensue from extradition;
- Human rights: Australia does not extradite a person if they are likely to face capital punishment, torture, or other violations of human rights;
- Political nature: Australia may refuse the extradition of a person suspected of political crimes; and
- Citizenship: an Australian citizen may face trial here rather than being extradited.
If you have been charged with an offence in another country, or have any questions regarding international extradition, please contact our team.
New Zealand Agreement
Australia and New Zealand have a unique agreement - known as the 'backing of warrants' system. This system is laid out in Part 3 of the Extradition Act, and essentially simplifies and expedites the extradition procedure by allowing police forces and prosecuting authorities to administer the scheme.
If you have been charged with an offence in New Zealand, or have any questions regarding the backing of warrants system, please contact our team.
Appealing Extradition
There are multiple avenues and levels of appeal for both the person facing extradition and the country that is requesting the extradition.
In the 15 days following a Magistrates' decision, an appeal can be lodged by either party to the Federal Court or the Supreme Court of the applicable jurisdiction. Parties may appeal a Federal Court decision to the Full Federal Court within 15 days. The final appellate level is an application for special leave to the High Court of Australia within another 15 days.
It is imperative that anyone facing extradition seek the advice of an expert criminal lawyer.
How to contact our Office
Melbourne Office
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MELBOURNE VIC 3000
T (03) 9200 2533
E enquiries@galballyobryan.com.au
Dandenong Office
Shop 9/147-151 Foster Street
DANDENONG VIC 3175
T (03) 9769 2510
E dandenong@galballyobryan.com.au
Pakenham Office
Shop 1, 15 John Street
PAKENHAM VIC 3810
T (03) 5941 7990
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