The extradition of persons to another State or Territory of Australia is governed by the Service and Execution of Process Act 1992 which replaced the 1901 Act. Magistrates should note that they no longer have the power to refuse extradition interstate on the basis of the “unjust, oppressive or too severe a penalty” ground contained in the previous Act.

Section 82(1) of the Service and Execution of Process Act 1992 provides that a person named in a warrant issued in one State may be apprehended in another State. The requirement for endorsement of warrants has been abolished. This section does not apply in relation to a person who is in prison. As soon as practicable after being apprehended, the person is to be taken before a magistrate: s 83(1).

If a copy of the warrant is produced to the magistrate, the court must, subject to ss 84 and 83(10) and (14), either:

The bail law of the State or Territory granting the bail applies: s 88(1).

The decision of the court is subject to review by the Supreme Court: s 86(1).

If a copy of the warrant is not produced, the court may order that the person be released, or adjourn the proceedings: s 83(3). If there is a further failure to produce the warrant, the magistrate may release the person or, if “reasonable cause” is shown, further adjourn the proceedings: s 83(4). The total time of the adjournments referred to in s 83(3) and (4) must not exceed five days: s 83(5). If the warrant is not produced within the five days, the person must be released: s 83(7).

The person must be released if the court is satisfied that the warrant is invalid: s 83(10). In Visser v Commissioner of Australian Federal Police (No 3) [2012] NSWSC 1387, Button J noted that the “tide of authority” does not require the magistrate to consider whether the issuing of a warrant by a Victorian court is or was an abuse of process. This is a question for the Victorian courts. As Button J observed at [26], “the applicant has not pointed to any defect in the warrant that establishes that it is invalid. There is nothing on its face that suggests that it is defective.”

The magistrate may adjourn the proceedings, and another magistrate may continue to conduct the proceedings: s 83(14). A magistrate is not bound by the rules of evidence: s 83(14).

A copy of the warrant sent via facsimile may be acted upon. Section 4 provides that there is a presumption that a document that purports to be a copy of the original is such a copy unless evidence is adduced that raises real doubt that it is a copy of the original.

A person who has incurred reasonable expenses as a result of compliance (by that person or another person) with:

is entitled to payment, from the person at whose request the warrant was issued, of an amount equal to those expenses: s 87(2).

Such an entitlement does not exist if:

The court or authority that issued the warrant may make orders to ensure that the person who incurred those expenses receives the exact amount of those expenses: s 87(4).

If the warrant was issued by a court, the orders may be made by an officer of the court if the rules governing the procedure of the court so provide: s 87(5).

The grounds on which a person may seek release have been considerably narrowed from the 1992 Act. The magistrate must order that a person be released if the magistrate is satisfied that the warrant is invalid: s 83(10).

Magistrates conducting an extradition proceeding under s 83 have the power to order that a report of proceedings and finding of the court not be published: s 96. Section 96(3) specifies the circumstances in which a suppression order may be made. Interim suppression orders may be made: s 98. Suppression orders may be varied or revoked: s 99. A suppression order must specify where it is to be enforceable: s 97(3).

The extradition of persons from Australia is governed by the Extradition Act 1988 (“the Act”). The overall scheme for which the Act provides was described by the Full Court in Harris v Attorney–General (Cth) (1994) 52 FCR 386 at 389 in terms that were accepted by the High Court in Kainhofer v DPP (1994) 52 FCR 341 as follows:

Hearings for the extradition of a person from Australia are often very strongly contested and therefore take considerable time to determine. The matters are usually conducted by representatives of the DPP on behalf of the requesting country. The applicant will often be put to strict proof of the many technical matters required to be proved under the Act.

In determining eligibility to surrender and in making consequential orders, the magistrate exercises administrative functions not the judicial power of the Commonwealth: Pasini v United Mexican States (2002) 209 CLR 246 at 254–255.

Particular attention has to be given to the admission of evidence. Section 21 of the Act provides that either the extradited person, or the requesting country, may, within 15 days of the order by a magistrate, apply either to the Federal Court or the Supreme Court for a review of the order. There is then provision for a further appeal to the Full Federal Court and finally to the High Court. Section 21(6)(d) of the Act provides: “[t]he court to which the application or appeal is made shall have regard only to the material that was before the magistrate”.

Counsel for either party will be anxious to record all possible objections to evidence because if objection is not taken before the magistrate, objection cannot made at the review: Zoeller v Federal Republic of Germany (1989) 23 FCR 282. However, see also Dutton v O’Shane [2003] FCAFC 195 where the court held that evidence excluded by the magistrate may be admitted on the review because the material “was before the magistrate”.

In Snedden v Republic of Croatia [2009] FCA 30 at [26] Cowdroy J, after reviewing various authorities, found:

Cowdroy J adopted and approved the finding of the Full Court in Cabal v United Mexican States [2001] FCA 583 at [189] as follows:

The admission of evidence before a magistrate under s 19 of the Act is therefore not subject to the Evidence Act.

Magistrates hearing contested extradition cases may find helpful the following series of cases:

The Act defines “magistrate” in s 5 to include: (b) “a magistrate of a State”.

The Act applies to a country which is declared by regulation to be an extradition country: s 5. Special provisions relate to New Zealand: see Extradition to New Zealand at [46-160] ff. In for example, Vasiljkovic v Commonwealth (2006) 227 CLR 614 the High Court held that the Commonwealth had power under the external powers to declare by the Extradition (Croatia) Regulations 2004 that Croatia was an extradition country.

In Vasiljkovic, above, the person sought to be extradited was an Australian citizen. It was argued that Australian citizens are immune from removal by extradition from Australia. The argument was rejected. Gleeson C J remarked at [8]:

Extradition offences are those which carry a penalty of death or imprisonment of 12 months or more, or other offences included in any extradition treaty: s 5. For discussion regarding the meaning of “imprisonment of 12 months or more”: see Dutton v O’Shane [2003] FCAFC 195.

An extraditable person is one for whom an arrest warrant has been issued for, or who has been convicted but not sentenced for, or who has not completed a sentence for an extradition offence and who is believed to be outside the country where the offence was committed: s 6.

An application on behalf of an extradition country may be made in statutory form (Form 4) to a magistrate for the issue of a warrant (Form 5) for the arrest of a person. If satisfied on the basis of information given by affidavit that the person is an extraditable person in relation to the extraditing country, the magistrate shall issue a warrant in the statutory form: s 12. The person making the affidavit is usually present to adopt the affidavit on oath. The application is generally made in chambers.

On the issue of such a warrant, the magistrate must immediately send to the Commonwealth Attorney-General a report that the warrant has been issued with a copy of the affidavit: s 12(2). A suggested form of report is set out in Form 5 at [46-220].

The Attorney-General can direct a magistrate to cancel a warrant on the grounds set out in s 12(3).

See DPP (Cth) v Kainhofer (1995) 185 CLR 528.

A magistrate may issue a search warrant if informed by affidavit by a police officer that there are reasonable grounds for suspecting that a thing which is material evidence for the extradition offence or proceeds of the offence, is in any place: s 14. The required contents of the warrant are set out in s 14(3).

The magistrate may require a further affidavit giving information as to the grounds for the issue of the warrant: s 14(2)(a). The warrant shall not be issued unless the magistrate is satisfied there are reasonable grounds for the warrant: s 14(2)(b).

See Cabal v A-G (Cth) [2001] FCA 583.

A person who is arrested under a provisional warrant shall be brought as soon as is practicable before a magistrate and shall be remanded by the magistrate in custody, or, subject to s 15(6) special circumstances, on bail, for such period as may be necessary for proceedings under ss 15A (waiver of extradition), 18 (consent to surrender for extradition) or 19 (determination of eligibility for surrender).

Section 15(6) provides:

The Bail Act 2013 does not apply to extradition proceedings. Section 49B Extradition Act 1988 provides that any decision to remand or release a person on bail may be made on such terms and conditions as the court thinks fit.

The test for granting bail pursuant to s 15(6) in an extradition matter is a strict one: see generally Bertran v Vanstone [1999] FCA 1117. In that matter the applicant had been granted bail in Mexico after his arrest in Australia for the offences for which extradition was sought. The Federal Court upheld the magistrate’s decision to refuse bail. The court referred to the Explanatory Memorandum that accompanied the Extradition Bill 1987 which explains the “special circumstances” requirement in s 15(6) as follows at [12]:

The court found at [14]–[15]:

The court went on to point out that the provisions in s 21(6) for the granting of bail in a review of a magistrate’s decision by the Federal Court or Supreme Court are different and at [16] “some caution must be exercised in using them in relation to s 15(6)”.

The court summarised the approach under s 15(6) at [20] as follows:

The cases under s 21(6) referred to, include Holt v Hogan (No 1) (1993) 44 FCR 572 at 579 and Schoenmakers v DPP (1991) 30 FCR 70.

A person refused bail is not entitled to make another application for release on bail during that remand unless there is evidence of a change in circumstances that might justify a grant of bail: s 15(3).

Upon the conduct of proceedings under ss 18 or 19, further provisions exist for a person to be granted bail (subject to a finding of special circumstances) rather than committed to prison pending a surrender determination by the Attorney-General under s 22.

In Vasiljokiv v Commonwealth (2006) 227 CLR 614 it was argued that the power granted by s 15 to magistrates to remand a person, the subject of an extradition application in custody, contravened the general principle that persons should only be deprived of their liberty by judicial power. It was argued that the Extradition Act was constitutionally invalid because it omitted to interpose the judicial power to magistrates before a decision was made by the magistrate depriving the person subject to an extradition request of liberty. The power vested in a magistrate to conduct extradition hearings is administrative in nature, not judicial: Pasini v United Mexican States (2002) 209 CLR 246.

The High Court held that the general principle is subject to “exceptional cases” and the hearing of extradition cases and the power to refuse bail came within the description of exceptional cases.

Section 15A enables a person to waive extradition, whether:

The magistrate is to make an order that the person be surrendered and advise the Attorney-General in writing that the person wishes to be extradited if satisfied, under s 15A(5), that the person:

The magistrate is to issue a warrant committing the person to prison pending a surrender determination by the Attorney-General: s 15A(4)(a). There is no power to consider an application for bail where the person has waived extradition.

If the magistrate is not satisfied of the matters in subsection (5), they must advise the Attorney-General in writing that they have decided not to make an order: s 15A(7).

Section 16(1) gives the Attorney-General the discretion to give notice that an extradition request has been received. The notice can only be given if the Attorney-General is of the opinion:

The Attorney-General shall not issue the notice if of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences for which surrender of the person is sought.

In carrying out the function under s 16, the Attorney-General in effect screens the application and provides an initial safeguard against unmeritorious extradition applications.

See generally Williams v Minister for Justice and Customs (2007) 157 FCR 286.

Section 16(3) provides for a copy of the s 16 notice and copies of the documents referred to in s 19(2)(a) and if applicable s 19(2)(b) to be given to the person as soon as practicable after the person is remanded under s 15 or the notice is issued, whichever is the later.

Under s 16A, the Attorney-General may give an amended notice at any time prior to the person consenting to surrender under s 18 or the determination of eligibility for surrender under s 19. The notice must not specify any offence/s not in the original notice unless the Attorney-General is satisfied a s 16(1) notice could have been given in the same form as the amended notice: s 16A(4). Requirements for copies of the amended notice and relevant documentation to be provided to the person as soon as possible after remand under s 15 apply: s 16A(7).

Section 17 provides for a direction by the Attorney-General for the release of the person if the Attorney-General decides not to issue a s 16 notice or for any other reason decides that the remand should cease.

Section 17(2) provides that if the Attorney-General:

Under s 17(2A), the magistrate must release the person from custody or discharge the recognizances on which bail was granted to the person unless satisfied that:

See Peniche v Vanstone (1999) 96 FCR 38.

Where a person has been arrested under a provisional warrant and remanded, and the Attorney-General has issued a notice under s 16 that an extradition request has been received, the person may consent to being surrendered in respect of the offence(s) in the warrant: s 18.

Unless of the view that the consent was not given voluntarily, the magistrate shall advise the person that the effect of consenting is:

If the person consents to surrender after being so informed, the magistrate issues a warrant to commit the person to prison: s 18(2)(b), unless s 18(3) applies. The Attorney-General is to be immediately informed in writing of the offence or offences in respect of which consent has been given: see DPP (Cth) v Kainhofer (1995) 185 CLR 528.

A person must not be released on bail upon consenting to surrender unless there are special circumstances justifying the release: s 18(3).

Section 19 is the crucial section which sets out the basis of the hearing as to whether the magistrate makes an order that the person is eligible for surrender to the extradition country in relation to the extradition offence.

Section 19(1) provides that the magistrate shall conduct the hearing if:

Section 19(2) provides that the person is only eligible for surrender if:

Section 19(3) defines “supporting documents” in para 2(a) to mean:

Section 19(4) permits the magistrate to adjourn the proceedings for a reasonable time to allow minor deficiencies in a document or documents to be remedied.

Section 19(4A) enables the magistrate to adjourn the proceedings for a reasonable time to enable the person and the extradition country more time to prepare for the proceedings in circumstances where the Attorney-General has issued an amended notice under s 16A(2) that specifies one or more different extradition offences that were not in the original s 16(1) notice.

Section 19(5) provides that the person is not entitled to adduce and the magistrate is not entitled to receive evidence to contradict an allegation that the person had engaged in conduct constituting an extradition offence.

Section 19(6) provides that subject to s 19(5) any document that is duly authenticated is admissible in the proceedings.

Section 19(7) sets out the requirements regarding authentication which includes a document which purports to be signed or certified by a judge, magistrate or officer of the extradition country and it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal by nominated persons.

Section 19(8) allows the proof of any matter or the admission of any document in the proceedings in accordance with any other law of the Commonwealth or any law of a State or Territory.

Section 19(9) provides that, where in the proceedings a magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence, the magistrate shall:

Section 19(9A) provides that the magistrate must not release the person on bail unless there are special circumstances justifying their release.

Section 19(10) provides that if the magistrate determines that the person is not eligible for surrender, the magistrate shall order that the person be released and advise the Attorney-General in writing of the order and of the magistrate’s reasons for determining that the person is not eligible for surrender.

Section 19 has been the subject of numerous decisions in the appellate jurisdiction. The following are some of the applicable principles:

If making an eligibility for surrender order either by consent or pursuant to s 19, a magistrate shall, pursuant to s 20, make a surrender order for an offence other than an extradition offence, only if the person consents.

Section 21 sets out the provisions relating to a review of the magistrates’ orders: see commentary regarding evidence on appeal: see Admissibility of evidence at [46-120] .

Sections 15B (where the person has waived extradition) and 22 (where the person has consented to extradition or an eligibility for surrender determination has been made) provide for the Attorney-General to finally determine whether an eligible person is to be surrendered in relation to a qualifying extradition offence. The sections set out all the matters the Attorney-General is to take into account.

Sections 23, 24, 25 and 26 set out provisions relating to the surrender warrants, temporary surrender warrants and delivery of property if issued by the Attorney-General.

An application may be made in the statutory form to a magistrate for the endorsement of a New Zealand warrant. If informed by affidavit that the person for whose arrest the warrant has been issued is or is suspected of being in or on the way to Australia, the magistrate shall endorse the warrant in statutory form (Form 16) authorising the execution of the warrant in Australia: s 28.

The endorsement must be on the warrant itself. In Samson v McInnes (1998) 89 FCR 52, the Federal Court held that a warrant was not valid where the endorsement was found on a separate piece of paper, with the consequence that the actions flowing from the warrant were likewise flawed.

An application may be made on behalf of New Zealand (Form 18) for the issue of a warrant for the arrest of a person, provided no application has been made for endorsement of a warrant under s 28.

If informed by affidavit that a warrant has been issued in New Zealand, and having regard to any information the magistrate thinks relevant, and where the magistrate considers the issue of a warrant is justified, the warrant shall be issued: s 29.

A magistrate may issue a search warrant if informed by affidavit that there are reasonable grounds (which are set out in the affidavit) for suspecting that there is, in any place, a thing which is of material evidence for the offence or proceeds of the offence in respect of which a warrant has been endorsed or a provisional warrant issued. Section 31(3) sets out the particulars a warrant should contain.

The magistrate may require a further affidavit giving further information as to the grounds for the issue of the warrant: s 31(2)(a). The warrant shall not be issued unless the magistrate is satisfied there are reasonable grounds for the warrant: s 31(2)(b).

A person brought before a magistrate shall be remanded for a period necessary for proceedings under s 34 to be conducted (see Surrender proceedings at [46-160], below): s 32.

The person shall be remanded in custody unless there are special circumstances justifying remand on bail: s 32(2) and (3). A person is not entitled to apply to another magistrate for release on bail after an application has been refused.

When a person has been so remanded and an indorsed New Zealand warrant has not been obtained and a magistrate is satisfied there has been reasonable time for such a warrant to be obtained, the magistrate shall order the person be released from custody or discharged from bail: s 33.

Where a person is on remand under s 32 and an indorsed New Zealand warrant has been obtained and a request has been made to a magistrate by or on behalf of the person or the government of New Zealand for proceedings to be conducted under s 34, the person may consent to being surrendered to New Zealand in relation to the offence for which the indorsed warrant has been obtained.

Unless of the view that the consent was not given voluntarily, the magistrate shall advise the person that the effect of consenting is:

If the person consents to surrender after being so informed, the magistrate will issue a warrant (Form 21) in accordance with s 38(1) ordering the person to be surrendered to New Zealand as soon as practicable and a warrant (Form 22) to commit the person to prison pending surrender: s 33A(2).

The magistrate shall order the person to be released, if satisfied by the person that:

No evidence can be adduced or received which contradicts an allegation that the person has engaged in conduct constituting the offence: s 34(4).

The magistrate is required under s 34(3) if he or she makes an order for surrender, to inform the person that he or she may, within 15 days, seek a review of the order under s 35.

It is proposed to deal first with s 34(4) which provides that the magistrate cannot receive evidence to contradict an allegation that the person has engaged in the conduct constituting the offence. In New Zealand v Moloney (2006) 154 FCR 250, the Full Court stated at [33]–[35] as follows:

The exception to which the Full Court referred in [33] above are cases where:

Dillon LCM in New Zealand v Garchow, above, remarked at [93]:

The consequence is that the magistrate may, notwithstanding s 34(4), have to consider carefully the allegations against the person in order to determine the decision required under s 34(2). The person is entitled to lead evidence as to the nature or quality of the case to be led against him or her which goes to any of the grounds provided for in s 34(2). This is illustrated by the following three cases:

Dillon LCM ordered the surrender of the persons Moloney and Garchow (New Zealand v Garchow, Lebler, Moloney [2005] NSWLC 25). They appealed. There was no appeal by New Zealand regarding Lebler.

Madgwick J upheld their appeals. He relied on the lengthy delay since the offences were committed. He relied on six other factors (see [7] of the Full Court judgment) but his decision was largely based on his finding that in Australia, but not New Zealand, accused persons in the position of Moloney and Garchow would be entitled to what is described in Australia as a “Longman warning”. Madgwick J stated at [110]:

New Zealand appealed to the Full Court which found that Madgwick J gave too much weight to the need for a “Longman warning” in assessing whether the persons Moloney and Garchow would receive a fair trial in New Zealand: see New Zealand v Moloney (2006) 154 FCR 250 at [222]. It distinguished Bannister’s case and held that the differences between the rules of evidence and procedure covering severance of counts involving sexual offences between Australia and New Zealand did not warrant the conclusion that it would be unjust to return the persons to New Zealand.

These are summaries only and the judgments referred to here should be considered carefully by any magistrate hearing a contested extradition hearing to New Zealand.

In proceedings under s 43 no legal or other representative of the person is entitled to appear: s 43(3).

Magistrates may be required to take evidence or to issue a warrant in Australia for use in a criminal matter in a foreign country. Where a request is made by a foreign country that evidence be taken in Australia or documents or other articles in Australia be produced for the purposes of proceedings in relation to a criminal matter in the foreign country, the Attorney-General may, by writing, authorise the taking of evidence or the production of the documents or other articles for transmission to the foreign country.

The Mutual Assistance in Criminal Matters Act 1987 is a quite lengthy, detailed but generally straightforward Commonwealth Act. It is essential that magistrates who are required to deal with an application under the Act consider the detailed provisions in the Act for the various types of application. The following is a very basic summary of some of the application but is no substitute for a careful consideration of the Act.

Where the Attorney-General so authorises, the magistrate may take the evidence on oath and shall cause the evidence to be put in writing and shall certify that the evidence was taken by the magistrate and cause the writing so certified to be sent to the Attorney General: s 13(2) Mutual Assistance in Criminal Matters Act.

The evidence of any witness may be taken in the presence or absence of the person to whom the proceedings in the foreign country relates or of the person’s legal representative.

The person to whom the proceedings relate or any other person giving evidence or producing documents or articles and the relevant authority of the foreign country may be legally represented at the hearing.

The certificate under s 13(2) Mutual Assistance in Criminal Matters Act shall state whether, when that evidence was taken or the documents or other articles were produced, the person to whom the proceedings relate or that person’s legal representative or any other person giving evidence or producing documents or articles or that person’s legal representative was present: s 13(5) Mutual Assistance in Criminal Matters Act.

Criminal matter includes:

whether arising under Australian law or a law of any foreign country: s 3 Mutual Assistance in Criminal Matters Act.

The Attorney-General may authorise a police officer, in writing, to apply to a magistrate for a search warrant requested by a foreign country where there are reasonable grounds to believe that a thing relevant to the investigation relating to a criminal matter is located in Australia.

The procedure to be followed, the tests and requirements to be satisfied, the contents of the warrant, the things authorised by a search warrant, restrictions on personal searches are set out in ss 38A, 38B, 38C, 38D, 38E, 38F and 38G Mutual Assistance in Criminal Matters Act. Sections 38H and 38I set out the requirements for and formalities relating to warrants issued by telephone.