Magistrates are concerned with four types of extradition proceedings, namely extradition:
to another State or Territory of Australia
from Australia to a country other than New Zealand
from Australia to New Zealand, and
The three principal Commonwealth Acts governing these procedures are respectively:
Service and Execution of Process Act 1992
Extradition Act 1988, and
Mutual Assistance in Criminal Matters Act 1987.
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.
If a copy of the warrant is produced to the magistrate, the court must, subject to ss 84 and 83(10) and (14), either:
order that the person be remanded on bail on condition that the person appears in the State where the warrant was issued at such a time and place that the magistrate specifies: s 83(8)(a), or
order that the person be taken in such custody or otherwise as the magistrate specifies, to a specified place in the place of issue of the warrant: s 83(8)(b). An order under s 83(8)(b) may be suspended for a specified period (s 83(11)) in which event the magistrate must order that the person be remanded on bail or in such custody as is specified: s 83(12).
State powers to remand the person and allow bail for that purpose apply: 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 further adjourn the proceedings. 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).
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.
When a person is taken before a magistrate under s 83, the magistrate must, before dealing with the matter, make reasonable enquiries as to whether the person is under restraint: s 84(1).
A “person under restraint” is defined in s 3(1) as a person who:
is on bail; or
has been conditionally released from prison (whether on parole, licence, work release, home detention or otherwise) before the end of a term of imprisonment to which he or she has been sentenced; or
is subject to the supervision of another person under a probation order; or
is serving a period of home detention or a term of imprisonment by way of periodic detention; or
is subject to;
a community service order; or
a community based order; or
an attendance order; or
a work and development order; or
any other restriction on his or her movements, imposed by law or by order of a court, that is inconsistent with a person complying with a subpoena served on the person under this Act;
but does not include a person who is in prison.
If the person under restraint is on bail, the magistrate must enquire as to the reporting requirements of the bail: s 84(2). The magistrate may, on application, adjourn the proceedings for up to seven days: s 84(5). If the magistrate adjourns the proceedings, he or she must remand the person on bail or in custody, and inform the correction service or police station to which the person is required to report. When the proceedings resume, the person’s supervisor or a police officer may make submissions to the magistrate: s 84(6).
If the person under restraint is not on bail, the magistrate must adjourn the proceedings for up to seven days, remand the person on bail or in custody, and give notice to the correction service of the State in which the person is under restraint. When the proceedings resume, the person’s supervisor or a person from the correction service may make submissions to the magistrate: s 84(4).
If a person under restraint is remanded on bail under a s 83(8)(a) order, it is a condition to which the grant of bail is subject that the person must return as soon as practicable to the State where the person was under restraint: s 84(7).
If a person under restraint is remanded in custody under a s 83(8)(b) order, a magistrate may make orders relating to the return of the person in custody to the State where the person was under restraint: s 84(8).
If an order is made under ss 83(8)(a) or 83(12)(a), an instrument setting out the conditions of bail must be prepared and signed by:
the magistrate or the person who prepared the instrument, and
the person who is subject to the order: s 85(1) and (2).
The person and the court before which the person has been remanded to appear must each be given a copy of the instrument: s 85(3).
The magistrate must revoke the order and make an order under s 83(8)(b) or (12)(b) if the person refuses to sign the instrument or does not comply with a condition of bail: s 85(4).
A person who has incurred reasonable expenses as a result of compliance (by that person or another person) with:
an order of a magistrate under s 83(8) in relation to a person brought before the magistrate under a warrant to which this section applies, or
an order of that kind made by the Supreme Court of a State under s 86,
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 warrant was issued because of a person’s failure to comply with a subpoena, and
is not a person under restraint, or
is a person under restraint who has failed to comply with s 36: s 87(3).
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.
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.
The person who has been taken into custody pursuant to an order made, may apply to the court of issue, or authority of issue, of the warrant for an order that he or she be released from custody: s 90(2).
The respondent is to be the person at whose request the warrant was issued.
Notice of the application must be served on the respondent:
by sending it by post to his or her address for service in the proceeding in relation to which the warrant was issued, or
by sending it by fax to that address, or
by leaving a copy of the application at that address: s 90(4).
The court of issue, or authority of issue, of the warrant may order that the person be released from custody if it is satisfied that it is not necessary for the person to be held in custody in order to secure his or her attendance to give the evidence or produce the document or thing: s 90(5).
The court of issue, or authority of issue, of the warrant may further order that the person be remanded on bail on condition that he or she appear, at a specified time or day, before the court, authority, tribunal or person to which the evidence is to be given or the document or thing is to be produced: s 90(7).
The grounds on which a person may seek release have been considerably narrowed. The magistrate must order that a person be released if the magistrate is satisfied that the warrant is invalid: s 83(10). The previous grounds of charge of a trivial nature, warrant not made in good faith, extradition unjust or oppressive, are abolished by the 1992 Act.
Under the new provisions, 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, and following. Section 96(3) limits the circumstances in which a suppression order may be made. Interim suppression orders may be made (s 98): suppression orders 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:
The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered.
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) 132 FCR 352 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  FCA 30 at  Cowdroy J, after reviewing various authorities, found:
In view of the above authorities, it is now established that the Court may take into account as constituting “material that was before the magistrate” any material that was admitted by the Magistrate as well as any material that was rejected by the Magistrate provided that in the course of rejecting the material the Magistrate had engaged in “an active intellectual process” in relation to that material.
Cowdroy J adopted and approved the finding of the Full Court in Cabal v United Mexican States (2001) 108 FCR 311 at  as follows:
Proceedings for review brought in this Court under s 21 of the Act are subject to the operation of the provisions of the Evidence Act 1995 (Cth) notwithstanding the fact that those provisions are not applicable to the initial proceedings brought before a magistrate under s 19 of the Act.
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:
DPP v Hendra Rahardja  NSWLC 11 per Lulham LCM
Rahardja v The Republic of Indonesia  FCA 639 per Tamberlin J
Rahardja v The Republic of Indonesia  FCA 1297 per Wilcox, Spender and Dowsett JJ.
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 [55-160] ff. In for example, Vasiljkovic v The Commonwealth of Australia (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 :
There is nothing in the Act or Regulations that seeks to attach any legal significance to the fact that the plaintiff was at the relevant time a citizen of Australia as well as of Serbia and Montenegro. This represents a legislative choice in keeping with past Australian practice, and with the practice of many, but not all, other nations.
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) 132 FCR 352.
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 [55-220].
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 Attorney-General (Cth) (2001) 113 FCR 154.
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), on bail, for such period as may be necessary for proceedings under ss 15A (waiver of extradition), 18 (consent to extradition) or 19 (determination of eligibility for surrender).
Section 15(6) provides:
A magistrate shall not remand a person on bail under this section unless there are special circumstances justifying such remand.
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 in an extradition matter is a strict one: see generally Bertran v Minister for Justice (1999) 94 FCR 404. 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 :
Subclause (6) provides that a person shall not be granted bail unless there are special circumstances. Such a provision is considered necessary because experience has shown that there is a very high risk of persons sought for extraditable offences absconding. In many cases the person is in Australia to avoid arrest in the country where he is alleged to have committed the offence, ie the person left the jurisdiction to avoid justice.
The court found at –:
In our view that is what the phrase “special circumstances justifying such remand” in s 15(6) means — circumstances different in some way that provides a reason for a more favourable view of the grant of bail than that attending the ordinary run of extradition cases where a person might be expected to be remanded in custody.
If s 15(6) stood alone, we would not have thought that a person who establishes special circumstances justifying remand on bail was necessarily entitled to bail. The sub-section would appear to posit a necessary but not sufficient condition for the grant of bail. However, when subss (2) and (6) are read together, this impression dissipates. Under subs (2) a person is to be remanded in custody “or, subject to subs (6), on bail”. Thus, if special circumstances justifying bail are made out, bail is to be granted.
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  “some caution must be exercised in using them in relation to s 15(6)”.
The court summarised the approach under s 15(6) at  as follows:
Under s 15(6) one starts with the presumption implicit in the sub-section, and explicit in the Explanatory Memorandum, that ordinarily bail is not to be granted. One then asks whether an applicant has established the existence of special circumstances which displace that presumption. One does not ask whether there are special circumstances in the abstract, but whether there are “special circumstances justifying such remand”. In answering the question it is appropriate to take into account the particular circumstances of the applicant together with broad community standards including a predisposition against unnecessary detention in custody.
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 The 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:
before a decision has been made by the Attorney-General under s 16 as to whether or not to give a s 16 notice that an extradition request has been received: s 15A(1), or
after the Attorney-General has given a s 16 notice, but before the magistrate has either advised the Attorney-General of the person’s consent to surrender under s 18 or determined the person’s eligibility for surrender under s 19: s 15A(2).
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:
voluntarily waives extradition
is legally represented or was given adequate opportunity to be legally represented, and
confirms they wish to waive extradition after the magistrate has informed them that:
they cannot apply for the order to be revoked once made
the extradition country may not have given or will not be required to give a speciality assurance (that the person will not be tried for other offences) if the order is made
after the order is made, they will be surrendered to the extradition country if the Attorney-General makes a surrender determination under s 15B(2).
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 person is an extraditable person in relation to the extradition country, and
that if the conduct of the person for which surrender of the person is sought, or equivalent conduct had taken place in Australia at the time at which the extradition request was received, the conduct or equivalent conduct would have constituted an extradition offence in relation to Australia.
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 para 19(2)(a) and if applicable para 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:
has not received an extradition request in relation to the person within 45 days of the date of arrest (s 17(2)(b)(i)), or
has received a request but has not issued a s 16(1) notice within 50 days of the date of arrest (s 17(2)(b)(ii))
the person should be brought before a magistrate.
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:
in relation to s 17(2)(b)(i):
there are exceptional circumstances why the extradition country has not made an extradition request in relation to the person
the Attorney-General is likely to receive such a request within a particular period that is reasonable in all the circumstances, and
the Attorney-General is likely to determine whether or not to give a s 16(1) notice within a particular period that is reasonable in all the circumstances
in relation to s 17(2)(b)(ii), the Attorney-General is likely to give a notice within a particular period that is reasonable in all the circumstances.
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:
committal to prison or release on bail without any proceedings to determine if the person should be extradited, and
surrender to the extradition country if the Attorney-General issues a warrant.
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). 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:
a person is on remand under s 15
the Attorney-General has given a notice under s 16(1) in relation to the person
an application is made to a magistrate on behalf of the person, or the extradition country for the proceedings to be conducted, and
the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings.
Section 19(2) provides that the person is only eligible for surrender if:
the supporting documents in relation to the offence have been produced to the magistrate
where the Act applies in relation to the extradition country that any other documents required to be produced are produced
the magistrate is satisfied to dual criminality, that is, if the conduct of the person constituting the offence had taken place in NSW and at the time the extradition request was received, that conduct or that equivalent conduct would have constituted an extradition offence in NSW, and
the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence.
Section 19(3) defines “supporting documents” in para 2(a) to mean:
if for an accused person a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant
if a convicted person, such duly authenticated documents as provide evidence of the conviction, the sentence imposed or the intention to impose a sentence and the extent to which a sentence imposed has not been carried out, and
in any case:
a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence, and
a duly authenticated statement in writing setting out the conduct constituting the offence.
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:
by warrant in the statutory form, order that the person be committed to prison, or release the person on bail, to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under s 22(5)
inform the person that he or she may, within 15 days after the day on which the order in the warrant is made, seek a review of the order under s 21(1), and
record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and to the Attorney-General.
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:
New South Wales magistrates are not prohibited by the provision of former s 23(2) Local Courts Act 1982 (now repealed) from making surrender determinations under s 19 of the Act. Section 23(2) Local Courts Act allows a magistrate with the approval of the Governor “to hold and exercise the functions of the office of Magistrate and another office or appointment”. The appellant argued that the “other office or appointment” was restricted to functions in NSW and could not apply to Commonwealth appointments. The High Court rejected such argument: Williams v United States of America (2007) 161 FCR 220.
The position has been clarified under the equivalent provisions of the Local Court Act 2007, which replaced the Local Courts Act 1982. Clause 5(1) Pt 1 Sch 1 provides that “a Magistrate must not engage in any business or employment outside the duties of his or her office except with the approval of the Governor”.
Reasonable time in which to prepare — s 19(1)(d)
In Brock v United States of America (2007) 157 FCR 121 the person submitted that the circumstances in which he had been held as an “extreme high risk prisoner” on remand under s 15 were such that he was never going to be in a position to able to prepare for a hearing before the magistrate. The Full Court agreed that the primary judge was correct in concluding that in determining whether “a reasonable time to prepare” had been allowed the circumstances of an individual on remand may well be relevant but the weight to be given to them was a matter for the magistrate.
The document or documents specifying the offence
“The conduct of the person constituting the offence” s 19(2)(c) need only specify the acts or omissions that constitute the offence. It is not necessary to provide evidence of those acts or omissions De Bruyn v Republic of South Africa (1999) 96 FCR 290.
The s 19(3)(c) document will also provide the information required to satisfy s 19(2)(c) (dual criminality). The information may be sufficient to satisfy s 19(3)(c), but not s 19(2)(c).
Whether a statement satisfies the statutory definition in s 19(3)(c) is a matter of practical judgment and assessment: see De Bruyn, above; see also Griffith v United States of America (2005) 143 FCR 182.
The relationship between s 19(2)(c), (3)(c)(i) and (3)(c)(ii) and the function of the magistrate was explained in Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 299 the court said:
But it does not follow from the adoption of this legislative scheme either, that the warrants in the present case are invalid because they contain a statement of facts which goes beyond the facts necessarily constituting the offence in Germany, or that the magistrate may have regard only to those facts which are absolutely necessary ingredients of the foreign crime. The magistrate is no expert in foreign law. He is not required to determine what the facts are that are the minimum facts necessary to constitute the foreign crime. That there has been a foreign crime committed is, for the purpose of the proceedings before the magistrate, proved by the warrant duly authenticated. What the facts relevant to that crime are is proved by the duly authenticated statement under s 19(3)(c)(ii). That the offence is an extraditable offence is proved by the s 19(3)(c)(i) document. All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s 19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law.
Whether a s 19(3)(c)(ii) statement adequately sets out the conduct constituting the offence is a matter of practical judgment: see McDade v United Kingdom  FCA 1868 at –.
Authentication of documents — s 19(7) and (7A)
The principles were discussed in Haddad v Larcombe (1989) 42 A Crim R 139, (on appeal Federal Republic of Germany v Haddad (1990) 21 FCR 496) and in Rahardja v The Republic of Indonesia  FCA 639 (and on appeal Rahardja v Republic of Indonesia  FCA 1297).
In Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 290 the Full Court stated:
While a document duly authenticated under s 19(7) is admissible in evidence it can only be acted on if it is understood. For a Tribunal to act upon the document, applying its own understanding of the foreign language uncommunicated to the parties would involve an abuse of natural justice. [Emphasis added.]
In the latter case of Federal Republic of Germany v Haddad (1990) 21 FCR 496 at 499, the Full Court said:
We have … extended the statement of principle of the court in Zoeller’s case; we act on the view that material placed before the Court to satisfy the requirements of s 19(7)(b) should not be received, if written in a language other than English, unless its English meaning is proved or admitted.
The person is not eligible for surrender if the person satisfies the magistrate that there are substantial grounds for believing there is an extradition objection in relation to the offence: s 19(2)(d).
Section 7 provides that there is an extradition objection if:
the extradition offence is a political offence in relation to the extradition country
the surrender of the person is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, religion, nationality or political opinions, or for a political offence in relation to the extradition country
on surrender, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, religion, nationality or political opinions
assuming that the conduct constituting the extradition offence had taken place in Australia, that conduct or equivalent conduct would have constituted a military offence under the military law, but not also under the ordinary criminal law of Australia, or
the person has been acquitted or pardoned in the extradition country or Australia or has undergone the punishment provided by the law of that country or Australia in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence.
The person will often call considerable evidence, including expert evidence to seek to prove an extradition objection: see Rahardja, above.
The test under s 7(e) requires an assessment of whether there has been a final determination of the case: Harris v Attorney-General (Cth) (1994) 52 FCR 386.
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 [55-120] .
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.
Extradition between Australia and New Zealand follows a simplified process similar to that between the States and Territories of Australia. Professor EP Aughterson Extradition: Australian Law and Procedure, LBC, Sydney, 1995 summarises the current position as follows at p 236:
Part III of the Extradition Act provides for a simplified form for New Zealand, in recognition of Australia’s close relationship with that country. The process is frequently referred to as the “backing of warrants” procedure and is similar to the procedure which existed prior to 1992 for the return of persons from one Australian State or Territory to another. It involves the indorsement by an Australian magistrate of a New Zealand warrant, authorising the execution of the warrant in Australia by an Australian police officer. A formal requisition for surrender is not required and, other than in relation to temporary surrender warrants, the Attorney-General is not involved in the extradition process. [Footnotes omitted.]
In Bates v McDonald (1985) 2 NSWLR 89, Samuels JA explained the backing of warrants in the context of extradition from Australia to New Zealand by noting at 98 that it:
… takes account not only of the geographical proximity of Australia and New Zealand and the ease and frequency of travel between these two countries, but also their close economic and political relationship and, no less importantly, of their common legal and political traditions.
There is however an important difference. Extradition to New Zealand must be refused and a person released if a magistrate, or on appeal a judge, is satisfied by the person that:
the offence is of a trivial nature
the accusation was not made in good faith or the interests of justice, or
a lengthy delay has elapsed since the offence was allegedly committed
or for any other reason it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand: s 34(2).
It is proposed to summarise the various applicable sections of the Act and to provide some commentary in relation to ss 34(2) and 34(4).
Magistrates hearing contested matters where extradition is sought to New Zealand will find extremely helpful the judgment of His Honour Dillon LCM in New Zealand v Garchow, Lebler, Moloney  NSWLC 25. In that case New Zealand sought the extradition of three Catholic brothers against whom serious allegations had been made of sexual misconduct against students at Marylands School, Christchurch. Dillon LCM released Lebler, but made orders for the surrender of Moloney and Garchow. The orders against Moloney and Garchow, who appealed, were overturned by a single judge in the Federal Court. On appeal to a specially convened five-member court of the Full Court, the appeal by New Zealand was upheld and the decision of Dillon LCM in relation to Moloney and Garchow restored.
The three judgments are particularly instructive dealing with nearly all of the aspects of s 34(2). They are reported as follows:
New Zealand v Garchow, Lebler, Moloney  NSWLC 25 per Dillon LCM
Moloney and Garchow v New Zealand (2006) 235 ALR 159 per Madgwick J
New Zealand v Moloney and Garchow per Black CJ, Branson, Weinberg, Bennett, and Lander JJ (2006) 154 FCR 658.
The judgments will be further discussed in the commentary to s 34(2).
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) 159 ALR 367, 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. The contents of the warrant are included in s 31.
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 [55-160], 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:
committal to prison without any proceedings to determine if the person should be extradited, and
the person will be surrendered as soon as practicable.
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:
the offence is of a trivial nature
if the person is accused of an offence, the accusation was not made in good faith or in the interests of justice
a lengthy period has elapsed since the alleged offence, or
for any other reason it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand: s 34(2).
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 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 – as follows:
As Pt III of the Act is intended to relieve New Zealand of the obligation to show or defend even a prima facie case in the Australian courts it is unclear precisely what practical role s 34(4) is intended to play. It may be that it merely makes explicit what is in any event implicit in the statutory scheme. Subject to one qualification, which is discussed below, an extradition proceeding involving New Zealand does not allow for any consideration of the strength of the case against the person whose surrender is sought.
We conclude this survey of the statutory scheme by noting that there is nothing in the language of s 34(2) that suggests that an Australian magistrate, concerned with the possible application of that section, ought ordinarily to engage in a wide-ranging consideration of the merits, or otherwise, of the New Zealand criminal justice system. The scheme of Pt II of the Extradition Act suggests that the issue of injustice is to be more narrowly focused than this. It also suggests that a finding of injustice would not be made lightly.
The exception to which the Full Court referred in  above are cases where:
The courts have accepted that it would be oppressive to order surrender if there was no real chance of a conviction or that the allegations against the accused were wholly misconceived or could not possibly be right: at .
Dillon LCM in New Zealand v Garchow, above, remarked at :
The guilt or innocence of the accused is, generally speaking, irrelevant to the proceedings. There may be cases in which an accused is able to demonstrate that a prosecution case is futile from the outset, in which case it is appropriate not to extradite the person, but these are very rare and are exceptions to the general rule: see, for example, Kenneally v New Zealand (1999) 91 FCR 292.
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:
In New Zealand v Venkataya (1995) 57 FCR 151, it was alleged that the person had committed a number of serious sexual offences over a lengthy period between 14 and 20 years earlier. The magistrate ordered the person’s release on the basis that a number of important records concerning the police investigation that were relevant to the defence had been lost. He also took into account the hardship he would suffer from the loss of his business if he was forced to return to New Zealand. On review, Sackville J concluded that although the case was a difficult one, the very great delay in bringing the charges against the first respondent and the irremediable prejudice that had been demonstrated by reason of the destruction of important evidence meant that the magistrate’s decision should be confirmed.
In Bannister v New Zealand (1999) 86 FCR 417, the allegation against the person did not particularise specific incidents, but rather alleged acts of rape and indecent assault each between certain dates. It was the practice in New Zealand to bring “representative” or “specimen charges”. That practice was inconsistent with the very strong views of the High Court of Australia in S v The Queen (1989) 168 CLR 266. In R v Accused  1 NZLR 385 the New Zealand Court of Appeal declined to follow S v The Queen. It was argued in Bannister that it would be unjust within the meaning of s 34(2) to surrender the person to face trial on representative charges which the High Court had found to give rise to a risk of a miscarriage of justice. The Full Court refused to surrender the person stating at –:
We conclude that it is appropriate, in considering whether, “for any other reason” it would be unjust or oppressive, pursuant to s 34(2), to surrender the appellant to New Zealand, to have regard to the quality of the trial which he would be likely to receive. Clearly enough, the standards to be applied to that issue are those which prevail in the Australian community. No court should be eager to pass judgment upon the process of another judicial system, particularly where the two systems share a common jurisprudential history and operate in societies which are, in many respects, similar. This is particularly so where, as in the case of Australia and New Zealand, the respective legislatures have demonstrated a clear desire to facilitate interaction at all levels. We do not suggest that criminal trials in New Zealand are generally more or less fair than similar proceedings in this country. However, on this very important procedural point, the two systems have diverged. In considering the present application, we can only apply the decision of our own ultimate appellate court.
We can, however, act only upon the evidence as it is before us and the submissions made in respect of that evidence. The intimation made on behalf of New Zealand that it intends to proceed upon the four counts as representative charges in the way discussed in R v Accused leads us to conclude that it would be unjust or oppressive to return the appellant to New Zealand. It may be possible for a further application for extradition to be made in a way which resolves the difficulties which we have identified.
In his very extensive judgment in New Zealand v Garchow, above, Dillon LCM discussed numerous matters which would impact upon a decision as to whether because of delay, or for any other reason, it would be unjust, oppressive or too severe a penalty to surrender the persons to New Zealand. He considered very strong arguments that important differences in the way in which the trials would proceed in New Zealand than in Australia. Dillon LCM refused to surrender the person Lebler because of the extreme delay in his case of some 40 to 50 years, his age, 81 years, and his very poor health. He concluded at :
I am, of course, conscious of the gravity of the offences alleged against Br Lebler. Some of them are the most serious of all alleged against the opponents. If he is guilty of those offences it is tragic that the complaints were not brought forward at a much earlier time. It is, however, of the utmost importance that convictions for serious crime be obtained fairly. One of the key features of a fair trial is that the accused has a real chance of mounting any defence reasonably open to him or her. In my view, due to his infirmity and the passage of time, any conviction obtained against Br Lebler could not be obtained by a fair trial. It follows that he must be released.
Dillon LCM ordered the surrender of the persons Moloney and Garchow (New Zealand v Garchow, Lebler, Moloney  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  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 :
The Longman requirement is, in my opinion, analogous to the rejection by the High Court of “representative charges” in Australia considered by this court in Bannister.
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 . 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 short summaries do not do justice to the three excellent judgments which should be considered carefully by any magistrate hearing a contested extradition hearing to New Zealand.
No discretion under s 34
Section 34(2) requires a magistrate to make a judgment not to exercise a discretion. If the court is satisfied that the person seeking to prove oppression or injustice has done so, it must release him or her: Garchow per Dillon LCM at ; Moloney per Full Federal Court at .
Onus of proof
The person opposing the extradition bears the onus, on the balance of probabilities, of proving in his case that, for a relevant reason “it would be unjust, oppressive or too severe a punishment to surrender” to New Zealand.
An offence of a “trivial nature” in s 34(2) is a reference to the charge as recited, rather than an examination of the evidence supporting that charge. However, it may be appropriate that particulars of the charge be provided to the person named to assist in making out his or her case: Narain v DPP (1987) 70 ALR 697 at 700 per Fox J.
Accusations not made in good faith
Whether an accusation was not made in good faith or in the interests of justice (see s 34(2)(b)) requires an examination of the motives of the person who lays the information and not the person making the complaint to the police: Narain v DPP, above. In construing s 27(b) of the Extradition Act 1966 (the corresponding provision of that Act to s 34(2) of the 1988 Act) Samuels JA in Bates v McDonald (1985) 2 NSWLR 89 said at 99:
An accusation not made in good faith is one made without an honest belief in its truth.
Unjust or oppressive
In determining if for any other reason it would be “unjust” to surrender a person to New Zealand, the risk of prejudice to the accused in the conduct of his trial is considered. The term “oppressive” directs the magistrate to consider the hardship to the accused resulting from changes to his or her circumstances that have occurred after the alleged offence and before the arrest: Kakis v Government of the Republic of Cyprus  1 WLR 779 at 782–783.
Generally magistrates play little part in applications for extradition to Australia. However magistrates may be required to take evidence in Australia for use in such matters: see s 43, Extradition Act. Where the Attorney-General authorises the taking of evidence for use in any proceedings for the surrender of the person to Australia, the evidence of each witness shall be reduced to writing: s 43. Each page of the evidence of each witness is to be certified as follows:
Each exhibit is also to be certified:
The evidence exhibit and a certificate (Form 26) see [55-240] are to be sent to the Attorney-General.
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 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:
a criminal matter relating to revenue (including taxation and customs duties)
a criminal matter relating to foreign exchange control
a matter relating to the forfeiture or confiscation of property in respect of an offence
a matter relating to the imposition or recovery of a pecuniary penalty in respect of an offence, and
a matter relating to the restraining of dealings in property, or the freezing of assets, that may be forfeited or confiscated, or that may be needed to satisfy a pecuniary penalty imposed, in respect of an offence,
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, B, C, D, E, and F Mutual Assistance in Criminal Matters Act. Sections 38H and I set out the requirements for and formalities relating to warrants issued by telephone.
COMMONWEALTH OF AUSTRALIA
Extradition Act 1988
Warrant for arrest under subsection 12(1)
To all police officers within the meaning of the Extradition Act 1988.
Now therefore I, (name and designation of magistrate), a magistrate within the meaning of the Extradition Act 1988, under subsection 12(1) of that Act, hereby authorise and request you to arrest † and to bring *him/*her/, as soon as practicable, before a magistrate in the *State/*Territory/ in which *he/*she/ is arrested to be dealt with according to law.
(Signature and designation of magistrate issuing warrant)
* Omit if not applicable.
† Insert name of person.
COMMONWEALTH OF AUSTRALIA
Extradition Act 1988
Certificate under subsection 43(2) in relation to taking of evidence in Australia
I, (name and designation of magistrate), a magistrate within the meaning of the Extradition Act 1988:
(Signature and designation of magistrate)
* Omit if not applicable.