What Is Extradition?
Extradition is the legal process by which one jurisdiction surrenders a person to another for the purpose of criminal prosecution or to serve a sentence. It ensures that individuals cannot avoid justice simply by crossing borders.
In Australia, extradition is divided into two streams:
- Domestic extradition: between states and territories of Australia
- International extradition: between Australia and foreign countries
Domestic Extradition: State and Territory Cooperation
Legislative Framework
Interstate extradition is governed by the Service and Execution of Process Act 1992 (Cth) (SEPA). The Act facilitates the efficient movement of individuals wanted in one state who are apprehended in another. Notably, it removed the magistrate’s former discretion to refuse extradition on the grounds that it would be “unjust or oppressive”.
Apprehension on Warrant
Under section 82 of SEPA, a person named in a warrant from one state may be apprehended in another without the need for endorsement. Once apprehended, the person must be brought before a magistrate as soon as practicable (s 83).
Role of the Magistrate
In NSW, a magistrate must determine whether to:
- Remand the person on bail to appear in the issuing state at a specified time and place (s 83(8)(a)), or
- Order custody and transfer to the issuing state (s 83(8)(b))
If the warrant is not produced within five days of apprehension, the person must be released (s 83(7)).
A magistrate may also adjourn the proceedings for various reasons, including where the person is under another form of restraint, such as parole or community service obligations (s 84). Special provisions apply in such circumstances to ensure compliance with existing legal obligations.
Bail and Court Procedure
Bail is governed by the laws of the state where it is granted (s 88). If bail is refused or revoked, the person may be held in custody until transferred.
Where bail is granted under s 83(8)(a), both the magistrate and the person must sign the bail instrument (s 85), and conditions may include returning to the state where the person was previously under legal restraint (s 84(7)).
Rights and Expenses
If a person incurs reasonable expenses as a result of complying with a warrant (e.g. travel to another state), they are entitled to reimbursement from the person who requested the warrant (s 87). The issuing court or authority may make an order to enforce payment.
Review and Release
A person taken into custody under a warrant may apply to the issuing court for release if continued detention is unnecessary (s 90). The warrant must be valid. If found invalid, the magistrate must release the person (s 83(10)). Suppression orders may be made under s 96 to protect the integrity or privacy of the proceedings.
International Extradition: Cross-Border Justice
Legislative Framework
International extradition is governed by the Extradition Act 1988 (Cth). Requests are managed by the Commonwealth Attorney-General’s Department and typically involve formal arrangements with the requesting country, often underpinned by treaties.
The Extradition Process
The standard process in Australia follows five stages:
- Extradition request received
- Attorney-General authorises arrest
- Arrest and bail consideration (only granted in “special circumstances”)
- Magistrate determines eligibility for surrender
- Attorney-General makes final decision on surrender
The individual may seek review of the magistrate’s decision through the Federal or Supreme Court, with strict time limits on appeals.
Legal Safeguards
Extradition will generally be refused if:
- The alleged offence is political or military in nature
- The individual has already been tried or pardoned for the same offence
- The request is made for discriminatory purposes
- The person may face torture, the death penalty, or unfair trial
- The offence is not recognised under Australian law (lack of dual criminality)
Countries with Agreements
Australia maintains bilateral extradition treaties with over 40 countries, including the United States, France, Germany, Indonesia, India, and Brazil. However, there is no automatic right to extradition. Even with a treaty, each case must meet strict legislative requirements.
Australia has a simplified process for extradition to and from New Zealand, which reflects the close legal, cultural and political ties between the two nations.
Mutual Legal Assistance: Beyond Extradition
While extradition involves the surrender of persons, Mutual Legal Assistance (MLA) refers to cross-border cooperation in gathering and sharing evidence for criminal proceedings.
Governing Law
The Mutual Assistance in Criminal Matters Act 1987 (Cth) facilitates this cooperation. It enables Australian authorities to:
- Request evidence
- Conduct witness interviews
- Recover criminal proceeds located overseas
Most requests are made under Mutual Legal Assistance Treaties (MLATs), which formalise the obligations between Australia and foreign countries.
Opposing Extradition
Opposing extradition is a complex and time-sensitive legal process. The individual or requesting country may challenge a magistrate’s decision regarding eligibility for surrender, but the grounds for doing so are limited and strictly defined. Appeals must be made quickly, with applications to review a magistrate’s finding on eligibility generally required within 15 days. Further challenges to higher courts, including the High Court, are also subject to strict deadlines. In some circumstances, it may be possible to seek judicial review of decisions related to bail or the Attorney-General’s final approval to extradite. However, these reviews focus on whether legal procedures were properly followed, rather than the substance of the case.
If you or someone you know has been arrested and is due to appear in court for extradition, it is essential you receive legal advice from an experienced criminal defence lawyer. To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640), Perth (08 6255 6909) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.
