Extradition

[46-000] Introduction

Last reviewed: March 2026

Note:: the use of the term “magistrate” in this chapter includes a Local Court judge in NSW: s 16C Acts Interpretation Act 1901 (Cth).

Four types of extradition proceedings may arise in the Local Court, namely extradition:

(a): to another State or Territory of Australia
(b): from Australia to a country other than New Zealand
(c): from Australia to New Zealand, and
(d): to Australia.

The three principal Commonwealth Acts governing these procedures are respectively:

(a): Service and Execution of Process Act 1992 (Cth)
(b): Extradition Act 1988 (Cth), and
(c): Mutual Assistance in Criminal Matters Act 1987 (Cth).

[46-020] Interstate extradition

Last reviewed: March 2026

Note:: All references to legislative provisions in [46-020]–[46-080] are to the Service and Execution of Process Act 1992 (Cth) (SEPA) unless otherwise stated.

The SEPA governs the extradition of persons to another State or Territory of Australia.

Apprehension of person on warrant

Section 82(1) provides that a person named in a warrant issued in one State may be apprehended in another State. This section does not apply in relation to a person who is in prison: s 82(2). As soon as practicable after being apprehended, the person is to be taken before a magistrate of the State in which the person was apprehended: s 83(1).

Powers of the court

Under s 83(8) and subject to ss 84 and 83(10), (14), if the warrant or a copy of the warrant is produced, the magistrate must order:

(a): the person be remanded on bail on condition that they appear at such time and place in the place of issue of the warrant as the magistrate specifies, or
(b): 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.

An order under s 83(8)(b) may be suspended for a specified period (s 83(11)) in which event the magistrate must order the person be remanded on bail or in such custody as is specified: s 83(12).

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

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

If a copy of the warrant is not produced, the court may order 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). The magistrate may resume the proceeding at any time before the end of a period of adjournment if the warrant or a copy of it becomes available: s 83(6). 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). Whether the issuing of a warrant by a court in another State is or was an abuse of process need not be considered; that is a question for a court in the other state: Visser v Commissioner of Australian Federal Police (No 3) [2012] NSWSC 1387 at [23], and the cases cited.

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. A document that purports to be a copy of the original is presumed as such a copy unless evidence is adduced that raises real doubt that it is: s 4.

[46-040] Powers of the court — person under restraint

Last reviewed: March 2026

When a person is taken before a magistrate under s 83 SEPA, the magistrate must, before dealing with the matter, make reasonable enquiries of the person to find out:

(a): whether they are a person under restraint; and
(b): if so, the State or States under whose law they are under restraint: s 84(1) SEPA.

A “person under restraint” is defined in s 3(1) as a person who:

(a)

is on bail; or

(b)

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

(c)

is subject to the supervision of another person under a probation order; or

(d)

is serving a period of home detention or a term of imprisonment by way of periodic detention; or

(e)

is subject to;

(i)

a community service order; or

(ii)

a community based order; or

(iii)

an attendance order; or

(iv)

a work and development order; or

(v)

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 with them 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, they 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 s 83(8)(b) order is made, a magistrate may make orders relating to the return of the person, in such custody or otherwise as the magistrate specifies, to the State where the person was under restraint: s 84(8).

[46-060] Procedure on remand on bail

Last reviewed: March 2026

If an order is made under s 83(8)(a) or (12)(a), an instrument setting out the conditions of bail must be prepared, or caused to be prepared, by the magistrate, and signed by:

(a): the magistrate or the person who prepared the instrument, and
(b): 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, which is a condition precedent to the person’s release on bail: s 85(4).

Entitlement to expenses

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

(a): 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
(b): 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:

(a)

the warrant was issued because of a person’s failure to comply with a subpoena, and

(b)

that person:

(i): is not a person under restraint, or
(ii): 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: 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).

[46-080] Release of persons unnecessarily detained

Last reviewed: March 2026

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: s 90(3).

Notice of the application must be served on the respondent:

(a): personally, or
(b): by sending it by post to their address for service in the proceeding in relation to which the warrant was issued, or
(c): by sending it by fax to that address, or
(d): 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 their 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 they 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).

Suppression orders

Magistrates conducting an extradition proceeding under s 83 may order non-publication of a report of proceedings or the court’s findings: 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).

[46-100] Overseas extradition

Last reviewed: March 2026

Note:: all references to legislative provisions in [46-100]–[46-180] are to the Extradition Act 1988 (Cth) unless otherwise stated.

Extradition Act 1988

The extradition of persons from Australia is governed by the Extradition Act. The Full Federal Court in Harris v Attorney–General (Cth) (1994) 52 FCR 386 at 389 (accepted by the High Court in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 547) stated:

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.

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 [14]–[18].

Admissibility of evidence

Section 21 provides that either the extradited person, or the requesting country, may, within 15 days of the order by a magistrate, apply to the Federal Court for a review of it. There is also provision for a further appeal to the Full Federal Court and finally to the High Court. Pursuant to s 21(6)(d), the court to which the application or appeal is made is only to regard the material that was before the magistrate.

If objection to evidence 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 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:

… 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.

The admission of evidence before a magistrate under s 19 is also not subject to the Evidence Act: Cabal v United Mexican States (2001) 108 FCR 311 at [189] cited in Snedden v Republic of Croatia at [28] (Note: that s 19 proceedings are administrative in nature also impliedly supports this proposition).

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

Rahardja v The Republic of Indonesia [2000] FCA 639
Rahardja v The Republic of Indonesia [2000] FCA 1297
DPP v Rahardja [2003] NSWLC 11
Republic of Chile v Rivas [2020] NSWLC 9
Pauga v Chief Executive of Queensland Corrective Services (2023) 298 FCR 96.

Definitions

The Act defines “magistrate” in s 5 to include: (ba) a judge, or an acting judge, of the Local Court of NSW in relation to whom an arrangement is in force under s 46. Section 16C(3) of the Acts Interpretation Act 1901 (Cth) provides a reference to a “magistrate” includes a reference to “a judge, or an acting judge” of the Local Court of NSW.

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. Australian citizens are not immune from removal by extradition from Australia: Vasiljkovic v Commonwealth (2006) 227 CLR 614 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.

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.

Provisional warrants

An application on behalf of an extradition country may be made in statutory form (Form 4 of the Extradition Regulations 1988 (Cth)) to a magistrate for the issue of a warrant (Form 5 of the Extradition Regulations) 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 or eligible judge shall issue a warrant in the statutory form: s 12(1). 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 or judge 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).

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

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

Search warrants

A magistrate or eligible judge may issue a search warrant if informed by affidavit 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 or judge shall not issue the warrant unless further required information (if any) as to the grounds for the warrant is provided, and the magistrate or judge is satisfied there are reasonable grounds for the warrant: s 14(2).

See Cabal v Attorney-General (Cth) (2001) 113 FCR 154.

Remand under s 15

A person who is arrested under a provisional warrant shall be brought as soon as is practicable before a magistrate or eligible judge and shall be remanded by the magistrate or judge 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).

A magistrate or eligible judge shall not remand a person on bail under s 15 unless there are special circumstances justifying such remand: s 15(6). Any decision to remand or release a person on bail may be made on such terms and conditions as the court thinks fit: s 49B. The Bail Act 2013 does not apply to extradition proceedings.

Any decision to remand or release a person on bail may be made on such terms and conditions as the court thinks fit: s 49B.

The test for granting bail pursuant to s 15(6) in an extradition matter is a strict one requiring special circumstances to be demonstrated: see generally United Mexican States v Cabal (2001) 209 CLR 165 (Note: this case concerned s 21(6) and a review of a judge’s bail decision). In United Mexican States v Cabal the Court held at [61]–[62]:

[B]ail in extradition cases should be granted only when two conditions are fulfilled. First, the circumstances of the individual case are special in the sense that they are different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges … To constitute “special circumstances”, the matters relied on “need to be extraordinary and not factors applicable to all defendants facing extradition.” Second, there must be no real risk of flight … In this area of law, the history and character of the defendant and the potential punishment facing the defendant are likely to be surer guides to the risk of flight than bail conditions — even rigorous conditions. A person, fearing punishment and inclined to flee, is unlikely to be diverted from that course by the prospect that his or her sureties may forfeit their securities or by stringent reporting conditions. Even if the defendant has to report twice daily to the police, he or she will have a period of 12–14 hours in which to leave Australia.

Even when special circumstances are proved and there is no real risk of flight, it does not follow that bail must be granted. For example, the defendant may pose a risk to the community or a particular individual … Before a Federal Court judge grants bail, the defendant ordinarily will need to show that the application for review has strong prospects of success as well as special circumstances and an absence of risk of flight.

The Court also stated at [72] that in extradition cases, the general rule is that defendants are to be held in custody whether or not their detention is necessary.

A person refused bail is not entitled to make another application for release on bail during that remand period 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.

Waiver of extradition

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

Notice by Attorney-General

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 that the person is an extraditable person in relation to the extradition country: s 16(2).

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 given, 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). Copies of the amended notice and relevant documentation are to be provided to the person as soon as possible after remand under s 15: s 16A(7).

Release from remand

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 or eligible judge.

Under s 17(2A), the magistrate or judge 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):
- the extradition country has not made an extradition request because of exceptional circumstances, and
- 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 (s 17(2A)(a)),
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 (s 17(2A)(b)).

See Peniche v Vanstone (1999) 96 FCR 38.

[46-140] Surrender hearings

Last reviewed: March 2026

Consent to surrender

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 or judge shall advise the person that the effect of consenting is:

(1): committal to prison or release on bail without any proceedings to determine if the person should be extradited, and
(2): surrender to the extradition country if the Attorney-General issues a warrant: s 18(2).

If the person consents to surrender after being so informed, the magistrate or judge 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: s 18(4); see also 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).

Determination of eligibility for surrender

Section 19(1) provides the magistrate or eligible judge shall conduct a hearing to determine if a person is eligible for surrender if:

(a): a person is on remand under s 15
(b): the Attorney-General has given a notice under s 16(1) in relation to the person
(c): an application is made to a magistrate or eligible judge by or on behalf of the person, or the extradition country for the proceedings to be conducted, and
(d): the magistrate or judge 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:

(a): the supporting documents in relation to the offence have been produced to the magistrate or judge
(b): where the Act applies in relation to the extradition country that any other documents required to be produced are produced
(c): the magistrate or judge 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 equivalent conduct would have constituted an extradition offence in NSW, and
(d): the person does not satisfy the magistrate or judge that there are substantial grounds for believing there is an extradition objection in relation to the offence.

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

(a)

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

(b)

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

(c)

in any case:

(i): a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence, and
(ii): a duly authenticated statement in writing setting out the conduct constituting the offence.

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

Section 19(4A) enables the magistrate or judge 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) specifying one or more different extradition offences that were not in the original s 16(1) notice.

Section 19(5) provides the person is not entitled to adduce and the magistrate or judge is not entitled to receive evidence to contradict an allegation 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 magistrate or judge 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 or judge determines that the person is eligible for surrender, the magistrate or judge shall:

(a): by warrant in the statutory form, order the person be committed to prison, or released on bail, to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under s 22(5)
(b): inform the person that they 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
(c): record in writing the extradition offence or extradition offences in relation to which the magistrate or judge 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 or judge must not release the person on bail unless there are special circumstances justifying their release.

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

Legal considerations regarding s 19

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

1.

Jurisdiction

Local Court judges are not prohibited by Sch 1 Pt 1 cl 5(1) of the Local Court Act 2007 from making surrender determinations under s 19 of the Act: Williams v United States of America (2007) 161 FCR 220. Schedule 1 Pt 1 cl 5(1) of the Local Court Act provides “a judge must not engage in any business or employment outside the duties of his or her office except with the approval of the Governor”.

2.

Reasonable time in which to prepare — s 19(1)(d)

In Brock v United States of America (2007) 157 FCR 121 the Court held, 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 is a matter for the magistrate: [32].

3.

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.

4.

Dual criminality

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 v Republic of South Africa; see also Griffith v United States of America (2005) 143 FCR 182. The conduct statement must contain sufficient information about the acts and omissions alleged for each extradition offence, to enable comparison with the Australian offence(s) relied on by the requesting State. The magistrate must understand enough about the acts and omissions alleged to be able to compare those with the Australian offence(s) relied on by the requesting State to satisfy the dual criminality requirement: Liem v Republic of Indonesia [2018] FCAFC 135 at [125]–[129], [138]. The reasons should make clear the precise findings made and include an adequate explanation of the conclusions reached concerning dual criminality, which may require a magistrate to “delv[ing] into the detail” of the conduct statement: Liem v Republic of Indonesia at [125]–[126], [129].

The relationship between s 19(2)(c), (3)(c)(i) and (ii) and the function of the magistrate was explained in Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 299–300 where the Court said:

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 [1999] FCA 1868 at [13]–[17], citing Zoeller v Federal Republic of Germany at 294 and Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 519.

5.

Authentication of documents — s 19(7) and (7A)

The principles were discussed in Haddad v Larcombe (1989) 42 A Crim R 139 (and on appeal Federal Republic of Germany v Haddad (1990) 21 FCR 496), and in Rahardja v The Republic of Indonesia [2000] FCA 639 (and on appeal Rahardja v Republic of Indonesia [2000] FCA 1297).

Material placed before the Court to satisfy the s 19(7)(b) requirements should not be received if in a language other than English unless its English meaning is proved or admitted: Federal Republic of Germany v Haddad at 499, discussing Zoeller v Federal Republic of Germany at 290.

6.

Extradition objection

A person is not eligible for surrender if the person satisfies the magistrate or eligible judge there are substantial grounds for believing there is an extradition objection in relation to the offence: s 19(2)(d).

Section 7 provides there is an extradition objection if:

(a): the extradition offence is a political offence in relation to the extradition country, or
(b): the surrender of the person is actually sought for the purpose of prosecuting or punishing the person on account of their race, sex, sexual orientation, religion, nationality or political opinions, or for a political offence in relation to the extradition country, or
(c): on surrender, the person may be prejudiced at their trial, or punished, detained or restricted in their personal liberty, by reason of their race, sex, sexual orientation, religion, nationality or political opinions, or
(d): assuming that the conduct constituting the extradition offence had taken place in Australia at the time at which the extradition request was received, that conduct or equivalent conduct would have constituted an offence under the military law, but not also under the ordinary criminal law of Australia, or
(e): 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 v Republic of Indonesia.

For s 7(b), a person must show that the reason for the feared persecution is the relevant attribute, that is, their political opinion. A bare causal connection is not sufficient. However, that does not exclude the possibility that the occasion for persecution may be something other than the relevant attribute. For instance, an individual might be punished harshly for a minor offence because that individual possesses the relevant attribute: Cabal v United Mexican States (No 3) [2000] FCA 1204 at [218].

In Republic of Croatia v Snedden (2010) 241 CLR 461 at [69]–[70], the Court said:

Section 7(c) requires a causal connection between the punishment the respondent might suffer on trial, after surrender, and his political opinions. The phrase “by reason of” means that the person may be punished, detained or restricted in his or her personal liberty because of his or her political opinions. Section 7(c) relevantly requires the respondent to show that on trial, after surrender, he may be punished because of his political opinions.

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 at 410.

Consent to accessory extradition

Where a person is to be surrendered to an extradition country in relation to extradition offence(s) by consent (s 18) or as determined by a magistrate or eligible judge (s 19), and the extradition country requests the person be surrendered for non-extradition offence(s), the magistrate judge shall only do so if the person consents: s 20.

Review of judges’ orders

Section 21 sets out the provisions relating to a review of the magistrate or eligible judges’ orders: see commentary regarding evidence on appeal: at Admissibility of evidence in [46-100] .

Surrender determination by Attorney-General

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.

[46-160] Extradition to New Zealand

Last reviewed: March 2026

Extradition between Australia and New Zealand follows a simplified process similar to that between the States and Territories of Australia. Professor EP Aughterson’s Extradition: Australian law and procedure, Lawbook Co Ltd, Sydney, 1995 provides the following 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 … 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.]

Endorsement of New Zealand warrants

An application may be made in the statutory form to a magistrate or eligible judge 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 or judge shall endorse the warrant in statutory form (Form 16 of the Extradition Regulations 1988) authorising the execution of the warrant in Australia: s 28. The endorsement must be on the warrant itself, and not on a separate piece of paper: see Samson v McInnes (1998) 89 FCR 52.

Provisional arrest warrants

An application may be made on behalf of New Zealand (Form 18 of the Extradition Regulations) 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 a magistrate or eligible judge is informed by affidavit that a warrant has been issued in New Zealand, and having regard to any relevant information where the magistrate or eligible judge considers the issue of a warrant is justified, they shall issue a warrant: s 29.

Search warrants

A magistrate or eligible judge may issue a search warrant if informed by affidavit there are reasonable grounds (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: s 31(1). A warrant is to refer to the matters set out in s 31(3).

The magistrate or judge 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 or judge is satisfied there are reasonable grounds for the warrant: s 31(2)(b).

Arrest and remand on indorsed or provisional warrants

A person brought before a magistrate or eligible judge shall be remanded for a period necessary for proceedings under ss 33A, 34, or both, 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), (3). A person is not entitled to apply to another magistrate or eligible judge for release on bail after an application has been refused: s 32(4).

Release from remand

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

Consent to surrender

Where:

(a): a person is on remand under s 32, and
(b): an indorsed New Zealand warrant has been obtained in relation to the person,

the person may consent to being surrendered to New Zealand in relation to the offence for which the indorsed warrant has been obtained: s 33A(1).

Unless there is a reason to believe consent was not given voluntarily, the magistrate or eligible judge must advise the person that the effect of consenting is:

(a): committal to prison without any proceedings to determine if the person should be extradited, and
(b): the person will be surrendered as soon as practicable.: s 33A(2)(a).

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

Order for release

Extradition to New Zealand must be refused and a person released if a magistrate or eligible judge, or a judge on appeal, is satisfied by the person that:

(a): the offence is of a trivial nature
(b): the accusation was not made in good faith or the interests of justice
(c): 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); see discussion of New Zealand v Garchow [2005] NSWLC 25 and New Zealand v Moloney (2006) 154 FCR 250 below.

Surrender warrants

Where:

a person has been remanded after being arrested under an indorsed New Zealand warrant, or
a person has been remanded after being arrested under a provisional arrest warrant and an indorsed New Zealand warrant has been obtained in relation to the person, and

a magistrate or eligible judge is requested to conduct surrender warrant proceedings, they shall:

order the person be surrendered to New Zealand, by warrant under s 38(1), and
order that, pending the execution of the warrant, the person be committed to prison by warrant in the statutory form: s 34(1).

If a magistrate or judge makes an order for surrender in relation to a person, they are required to inform the person they may seek a review of the order under s 35 within 15 days: s 34(3).

In relation to surrender warrant proceedings or an order for release under s 34(1), (2) respectively the magistrate or judge cannot receive evidence to contradict an allegation that the person has engaged in the conduct constituting the offence: s 34(4). 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, unless it would be oppressive to order surrender because there is no real chance of conviction or the allegations are wholly misconceived or could not possibly be right: New Zealand v Moloney (2006) 154 FCR 250 at [33], [59].

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

1.: In New Zealand v Venkataya (1995) 57 FCR 151, it was alleged 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. The magistrate also took into account the hardship the person would suffer from the loss of his business if he was forced to return to New Zealand. The Court found, on review, although the case was a difficult one, the very great delay in bringing the charges against the person and the irremediable prejudice that had been demonstrated by reason of the destruction of important evidence meant the magistrate’s decision should be confirmed.
2.: 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 (representative charges). The person argued it would be unjust within the meaning of s 34(2) to surrender them to face trial on representative charges which the High Court in S v The Queen (1989) 168 CLR 266 had found gave rise to a miscarriage of justice. Although the New Zealand Court of Appeal declined to follow S v The Queen (see R v Accused [1993] 1 NZLR 385) the Full Court refused to surrender the person stating at [26]–[29]:

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.
3.: In the Local Court decision of New Zealand v Garchow [2005] NSWLC 25, Maloney and Garchow’s appeals to the Federal Court were successful, and the Court, applying Bannister v New Zealand, overturned the orders: Moloney v New Zealand [2006] FCA 438. New Zealand appealed to the Full Federal Court, and the Full Court overturned the Federal Court judge’s decision, reinstated the magistrate’s orders, and surrendered Moloney and Garchow to New Zealand: New Zealand v Moloney (2006) 154 FCR 250. The Full Court distinguished Bannister’s case, finding that the differences between the rules of evidence and procedure covering severance of counts involving sexual offences between Australia and New Zealand did not mean it would be unjust to return the persons to New Zealand and there was still an open question as to how any New Zealand trial might proceed: New Zealand v Moloney at [70], [128], [133].

Note:: the commentary regarding these decisions is brief, and a magistrate hearing a contested extradition hearing to New Zealand should consider these decisions carefully, including the Local Court decision of New Zealand v Garchow [2005] NSWLC 25 as it provides a good example of a case where a person was released, and persons were surrendered (and, regarding the latter, the magistrate’s orders were reinstated by the Full Federal Court).

Further principles regarding s 34

1.

No discretion under s 34

Section 34(2) requires a magistrate or eligible judge to make a judgement, 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 them New Zealand v Garchow at [95]; New Zealand v Moloney at [75].

2.

Onus of proof

The person opposing the extradition bears the onus, on the balance of probabilities, of proving that, for a relevant reason “it would be unjust, oppressive or too severe a punishment to surrender” to New Zealand: s 34(2).

3.

“Trivial nature”

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 Director of Public Prosecutions (1987) 15 FCR 411 at 413.

4.

Accusations not made in good faith

An accusation not made in good faith is one made without an honest belief in its truth: Bates v McDonald (1985) 2 NSWLR 89 at 99. 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 Director of Public Prosecutions.

5.

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 person in the conduct of their trial is considered. The term “oppressive” directs the magistrate to consider the hardship to the person resulting from changes to their circumstances that have occurred after the alleged offence and before the arrest: Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 at 782–783.

[46-180] Extradition to Australia

Last reviewed: March 2026

Magistrates or eligible judges may be required to take evidence in Australia for use in matters concerning applications for extradition to Australia: see s 43. 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(2). Each page of the evidence of each witness is to be certified as follows:

I, [insert name, designation or magistrate/eligible judge] certify that this is the original document containing the testimony of [insert name of witness] and presented in evidence before me at [insert location and date].

[Signature of magistrate/judge]

Each exhibit is also to be certified:

This is the [true copy/original] of exhibit [insert exhibit number] shown to [insert name of witness] at the time of the making of the [statement/ affidavit] herein.

This [........] day of [........] 20[........]

Before me at [insert location and date]

[Signature of magistrate/judge]

The evidence exhibit and a certificate (Form 26 of the Extradition Regulations 1988) are to be sent to the Attorney-General.

No legal representation

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

[46-200] Mutual assistance in criminal matters

Last reviewed: March 2026

Note:: All references to legislative provisions in [46-200] are to the Mutual Assistance in Criminal Matters Act 1987 (Cth) (MACMA) unless otherwise stated.

Requests by foreign countries

Magistrates or eligible judges 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: s 13(1A).

Under MACMA, where the Attorney-General so authorises, the magistrate or judge

may take the evidence on oath
shall cause the evidence to be put in writing
shall certify that the evidence was taken by the magistrate or judge, and
cause the writing so certified to be sent to the Attorney General: s 13(2).

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 the person’s legal representative: s 13(3).

The person to whom the proceedings relate, 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: s 13(4).

The certificate under s 13(2) shall state, when that evidence was taken or the documents or other articles were produced, whether:

the person to whom the proceedings relate or their legal representative (if any), or
any other person giving evidence or producing documents or articles, or their legal representative

was present: s 13(5).

Criminal matter

Section 3 defines “criminal matter” as including:

(a): a criminal matter relating to revenue (including taxation and customs duties),
(b): a criminal matter relating to foreign exchange control,
(c): a matter relating to the forfeiture or confiscation of property in respect of an offence,
(d): a matter relating to the imposition or recovery of a pecuniary penalty in respect of an offence, and
(e): 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.

Requests by foreign countries for search and seizure

Where:

(a): a proceeding or investigation relating to a criminal matter involving a serious offence has commenced in a foreign country,
(b): there are reasonable grounds to believe that evidential material relating to the investigation or proceeding is located in Australia, and
(c): the foreign country requests the Attorney-General to arrange for the evidential material to be obtained,

the Attorney-General may authorise a police officer, in writing, to apply to a magistrate or eligible judge for a search warrant in respect of the evidential material: s 15.

The procedure to be followed, the tests and requirements to be satisfied, the contents of the warrant, the things authorised by a search warrant, and the restrictions on personal searches are set out in ss 38A–38G . Sections 38H and 38I set out the requirements for and formalities relating to warrants issued by telephone.