An Act relating to the extradition of persons to and from Australia
Part I—Preliminary
1 Short title
This Act may be cited as the Extradition Act 1988.
2 Commencement
This Act shall come into operation on a day to be fixed by Proclamation.
3 Principal objects of Act
The principal objects of this Act are:
(a) to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence;
(b) to facilitate the making of requests for extradition by Australia to other countries; and
(c) to enable Australia to carry out its obligations under extradition treaties.
4 Exclusion of other laws
This Act excludes the operation of:
(a) the Imperial Acts known as the Extradition Acts, 1870 to 1935;
(b) the Imperial Act known as the Fugitive Offenders Act, 1881; and
(c) any other laws relating to extradition of persons to and from Australia that were in force in a Territory immediately before the commencement of this Act.
5 Interpretation
In this Act, unless the contrary intention appears:
eligible Federal Circuit Court Judge means a Judge of the Federal Circuit Court of Australia in relation to whom a consent under subsection 45A(1) and a nomination under subsection 45A(2) are in force.
extraditable person has the meaning given by section 6.
extradition arrest warrant means a warrant issued under section 12.
extradition country means:
(a) any country (other than New Zealand) that is declared by the regulations to be an extradition country; or
(b) any of the following that is declared by the regulations to be an extradition country:
(i) a colony, territory or protectorate of a country;
(ii) a territory for the international relations of which a country is responsible; or
(c) until the regulations provide that this paragraph does not apply in relation to the foreign state, any foreign state to which the former Foreign Extradition Act applied by virtue of section 9 of that Act.
extradition objection has the meaning given by section 7.
extradition offence means:
(a) in relation to a country other than Australia—an offence against a law of the country:
(i) for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months; or
(ii) if the offence does not carry a penalty under the law of the country—the conduct constituting which is, under an extradition treaty in relation to the country, required to be treated as an offence for which the surrender of persons is permitted by the country and Australia; or
(b) in relation to Australia or a part of Australia—an offence against a law of Australia, or a law in force in the part of Australia, for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months.
extradition request means a request in writing by an extradition country for the surrender of a person to the country.
extradition treaty, in relation to a country, means a treaty to which the country and Australia are parties (whether or not any other country is also a party), being a treaty relating in whole or in part to the surrender of persons accused or convicted of offences.
Federal Court means the Federal Court of Australia.
former Foreign Extradition Act means the Extradition (Foreign States) Act 1966 as in force immediately before the commencement of this Act.
indorsed New Zealand warrant means a New Zealand warrant that has been indorsed under section 28.
magistrate means:
(a) a magistrate of a Territory other than the Australian Capital Territory; or
(b) a magistrate of a State or the Australian Capital Territory in relation to whom an arrangement is in force under section 46; or
(c) a Judge, or an acting Judge, of the Local Court of the Northern Territory in relation to whom an arrangement is in force under section 46.
New Zealand warrant means a warrant that purports to be issued by a court, a judge, a magistrate or an officer of a court, of New Zealand, being a warrant for the arrest of a person accused or convicted of an offence against the law of New Zealand.
offence includes an offence against a law relating to taxation, customs duties or other revenue matter or relating to foreign exchange control.
police officer means a member or special member of the Australian Federal Police or a member of the police force of a State or Territory.
political offence, in relation to a country, means an offence against the law of the country that is of a political character (whether because of the circumstances in which it is committed or otherwise and whether or not there are competing political parties in the country), but does not include:
(a) an offence that involves an act of violence against a person’s life or liberty; or
(b) an offence prescribed by regulations for the purposes of this paragraph to be an extraditable offence in relation to the country or all countries; or
(c) an offence prescribed by regulations for the purposes of this paragraph not to be a political offence in relation to the country or all countries.
prison includes a gaol, lock‑up or other place of detention.
provisional arrest warrant means a warrant issued under section 29.
statutory form, in relation to a warrant, notice, indorsement, application or certificate, means the form of the warrant, notice, indorsement, application or certificate, as the case may be, set out in the regulations.
surrender offence, in relation to a person whom the Attorney‑General has determined, under subsection 15B(2) or 22(2), is to be surrendered to an extradition country in relation to an extradition offence or offences, means:
(a) that offence or each of those offences; and
(b) in the case of a determination under subsection 22(2)—any offence of which the Attorney‑General has been advised in relation to the person under subsection 20(2).
surrender warrant means:
(a) where the expression is used in Part II:
(i) a warrant issued, or required to be issued, under section 23; or
(ii) a warrant issued, or permitted to be issued, under section 25; or
(b) where the expression is used in Part III:
(ia) a warrant issued, or required to be issued, under subparagraph 33A(2)(b)(i); or
(i) a warrant issued, or required to be issued, under paragraph 34(1)(c); or
(ii) a warrant issued, or required to be issued, under subsection 35(2); or
(iii) a warrant issued, or permitted to be issued, under section 37.
temporary surrender warrant means:
(a) where the expression is used in Part II—a warrant issued, or permitted to be issued, under subsection 24(1); or
(b) where the expression is used in Part III—a warrant issued, or permitted to be issued, under subsection 36(1).
treaty includes a convention, protocol, agreement or arrangement.
6 Meaning of extraditable person
Where:
(a) either:
(i) a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or
(ii) a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and:
(A) there is an intention to impose a sentence on the person as a consequence of the conviction; or
(B) the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served;
(b) the offence or any of the offences is an extradition offence in relation to the country; and
(c) the person is believed to be outside the country;
the person is, for the purposes of this Act, an extraditable person in relation to the country.
7 Meaning of extradition objection
For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if:
(a) the extradition offence is a political offence in relation to the extradition country; or
(b) the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, sex, sexual orientation, religion, nationality or political opinions or for a political offence in relation to the extradition country; or
(c) on surrender to the extradition country in respect of the extradition offence, 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, sex, sexual orientation, religion, nationality or political opinions; or
(d) assuming that the conduct constituting the extradition offence, or equivalent conduct, had taken place in Australia at the time at which the extradition request for the surrender of the person 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 by a competent tribunal or authority 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.
8 Certain places etc. to be part of a country
(1) For the purposes of the application of this Act in relation to a country (other than Australia):
(a) a colony, territory or protectorate of the country;
(b) a territory for the international relations of which the country is responsible; and
(c) a ship or aircraft of, or registered in, the country;
are, except in the case of a colony, territory or protectorate that is an extradition country, each deemed to be part of the country.
(2) For the purposes of the application of this Act in relation to Australia:
(a) an external Territory; and
(b) a ship or aircraft of, or registered in, Australia;
are each deemed to be part of Australia.
9 Law of a country
A reference in this Act to a law of a country includes a reference to a law of, or in force in, a part of the country.
10 Interpretative provisions relating to offences
(1) Where a person has been convicted in the person’s absence of an offence against the law of an extradition country, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person is deemed not to have been convicted of that offence but is deemed to be accused of that offence.
(2) A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed.
(3) In determining for the purposes of paragraph 7(d) or 19(2)(c) whether, if conduct constituting an extradition offence in relation to an extradition country, or equivalent conduct, had taken place in Australia or in a part of Australia at a particular time, that conduct or equivalent conduct would have constituted an offence of a particular kind in relation to Australia or the part of Australia, the following provisions have effect:
(a) where the conduct or equivalent conduct consists of 2 or more acts or omissions—regard may be had to all or to only one or some of those acts or omissions;
(b) any difference between the denomination or categorisation of offences under the law of the country and the law of Australia, or the law in force in the part of Australia, as the case requires, shall be disregarded.
(4) A reference in this Act to an extradition offence for which surrender of a person is sought by an extradition country is, in relation to a time after the Attorney‑General has given a notice under subsection 16(1) in relation to the person, a reference to any extradition offence to which the notice (including the notice as amended) relates.
11 Modification of Act in relation to certain countries
(1) The regulations may:
(a) state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations; or
(b) make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications, other than such limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country.
(1A) The regulations may provide that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country.
(1B) Regulations may be made under both subsections (1) and (1A) in relation to a specified extradition country.
(1C) For the purposes of subsections (1) and (1A), the limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty may be expressed in the form that this Act applies to the country concerned subject to that treaty.
(2) For the purposes of subsections (1) and (1A), but without otherwise affecting the generality of that subsection, the reference in paragraphs (1)(a) and (b) and subsection (1A) to this Act applying subject to limitations, conditions, exceptions or qualifications is deemed to include a reference to this Act applying subject to a modification to the effect that a number of days greater or less than the 45 days referred to in paragraph 17(2)(a) applies for the purposes of that paragraph.
(3) Until the regulations make provision as mentioned in subsection (1) in relation to an extradition country, being a foreign state to which paragraph (c) of the definition of extradition country in section 5 applies, this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications to which the former Foreign Extradition Act, in its application in relation to the extradition country as a foreign state, was subject by virtue of section 9 of that Act, but only to the extent that they are not inconsistent with limitations, conditions, exceptions or qualifications provided for by regulations under subsection (1A).
(4) Where, by virtue of subsection (1) or (3), this Act applies in relation to an extradition country subject to a limitation, condition, qualification or exception that, but for this subsection, would have the effect that a person is not eligible for surrender to the extradition country in relation to an extradition offence for the purposes of subsection 19(2) unless the sufficient evidence test is satisfied, then, that limitation, condition, qualification or exception shall be taken instead to have the effect that the person is not eligible for surrender to that country in relation to that offence for the purposes of subsection 19(2) unless the prima facie evidence test is satisfied.
(5) For the purposes of subsection (4):
(a) a reference to the sufficient evidence test being satisfied is a reference to the provision of evidence that, if the conduct of the person constituting the extradition offence referred to in that subsection had taken place in a part of Australia, would be sufficient to:
(i) justify trial of the person in relation to an offence against a law in force in the part of Australia;
(ii) justify committal of the person for trial in relation to such an offence; or
(iii) establish a prima facie case that the person committed such an offence; and
(b) a reference to the prima facie evidence test being satisfied is a reference to the provision of evidence that, if the conduct of the person constituting the extradition offence referred to in that subsection had taken place in the part of Australia referred to in paragraph (a) of this subsection, would, if uncontroverted, provide sufficient grounds to put the person on trial, or sufficient grounds for inquiry by a court, in relation to the offence.
(6) For the purpose of determining under subsection 19(1) whether a person is eligible for surrender in relation to an extradition offence for which surrender of the person is sought by an extradition country, no limitation, condition, qualification or exception otherwise applicable under this section (not including a limitation, condition, qualification or exception having the effect referred to in subsection (4)) has the effect of requiring or permitting a magistrate or eligible Federal Circuit Court Judge to be satisfied of any matter other than a matter set out in paragraph 19(2)(a), (b), (c) or (d).
Part II—Extradition from Australia to Extradition Countries
12 Extradition arrest warrants
(1) Where:
(a) an application is made, in the statutory form, on behalf of an extradition country to a magistrate or eligible Federal Circuit Court Judge for the issue of a warrant for the arrest of a person; and
(b) the magistrate or Judge is satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country;
the magistrate or Judge shall issue a warrant, in the statutory form, for the arrest of the person.
(2) The magistrate or Judge shall forthwith send to the Attorney‑General a report stating that the magistrate or Judge has issued the warrant, together with a copy of the affidavit.
(3) Where:
(a) the Attorney‑General has received the report under subsection (2) or has otherwise become aware of the issue of the warrant;
(b) the person has not been arrested under the warrant; and
(c) either:
(i) the Attorney‑General decides not to give a notice under subsection 16(1) in relation to the person; or
(ii) the Attorney‑General considers for any other reason that the warrant should be cancelled;
the Attorney‑General shall, by notice in writing in the statutory form, direct a magistrate or eligible Federal Circuit Court Judge to cancel the warrant.
(4) A notice given under subsection (3) is not a legislative instrument.
13 Search and seizure upon arrest
(1) Where a police officer:
(a) arrests a person under an extradition arrest warrant; and
(b) has reasonable grounds for suspecting that property in the vicinity of the person that is under the apparent control of the person:
(i) may be material as evidence in proving any offence in relation to which the warrant was issued or for which surrender of the person is sought by the extradition country concerned; or
(ii) has been acquired by the person as a result of such an offence;
the police officer may seize that property.
(2) Where a police officer:
(a) arrests a person under an extradition arrest warrant; and
(b) has reasonable grounds for suspecting that there is on the person, in the clothing that the person is wearing or in or on any property in the vicinity of the person that is under the apparent control of the person, any thing, including a sum of money:
(i) that may be material as evidence in proving any offence in relation to which the warrant was issued or for which surrender of the person is sought by the extradition country concerned; or
(ii) that has been acquired by the person as a result of such an offence;
the police officer may search that person, that person’s clothing or that property, and may seize any thing found as a result of that search.
(3) Subsection (2) does not authorise a police officer to remove, or to require the person to remove, any of the clothing that the person is wearing.
(4) A person shall not be searched under subsection (2) except by a police officer of the same sex.
(5) A police officer may retain any property or thing seized under subsection (1) or (2) pending any direction from the Attorney‑General as to the manner in which the thing is to be dealt with.
(6) Nothing in this section shall be taken to prevent or restrict the search of a person or of clothing worn by, or of property under the immediate control of, a person, upon the admission of the person as an inmate of a prison after having been charged with an offence.
(7) The powers conferred by this section are in addition to, and not in derogation of, any other powers conferred by law.
(8) If a direction under subsection (5) is given in writing, the direction is not a legislative instrument.
14 Search and seizure warrants
(1) Where a magistrate or eligible Federal Circuit Court Judge is informed by affidavit that there are reasonable grounds for suspecting that there may be in any place any thing:
(a) that may be material as evidence in proving any offence in relation to which an extradition arrest warrant was issued or for which surrender of a person is sought by an extradition country; or
(b) that has been acquired by a person as a result of such an offence;
and the affidavit sets out those grounds, the magistrate or Judge may issue a warrant, in the statutory form, authorising a police officer named in the warrant, with such assistance, and by such force, as is necessary and reasonable:
(c) to seize the thing;
(d) to enter upon or into the place and to seize the thing; or
(e) to enter upon or into the place, to search the place for any such thing and to seize any such thing found in the place.
(2) The magistrate or Judge shall not issue the warrant unless:
(a) there has been given to the magistrate or Judge by affidavit such further information (if any) as the magistrate or Judge requires concerning the grounds on which the issue of the warrant is being sought; and
(b) the magistrate or Judge is satisfied that there are reasonable grounds for issuing the warrant.
(3) The warrant shall state:
(a) the purpose for which it is issued, including a reference to the nature of any offence referred to in paragraph (1)(a);
(b) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night;
(c) the kind of things authorised to be seized; and
(d) that it ceases to have effect on a specified day, not being later than 1 month after the day of issue of the warrant.
(4) If, in the course of searching in accordance with the warrant for a thing that may be material as evidence in proving an offence or that has been acquired as a result of an offence, being a thing of a kind stated in the warrant:
(a) a police officer finds any thing that the police officer believes on reasonable grounds to be connected with the offence, although not of a kind stated in the warrant; and
(b) the police officer believes on reasonable grounds that it is necessary to seize that thing in order to prevent its concealment, loss or destruction;
the warrant is deemed to authorise the police officer to seize the thing.
(5) Where a police officer seizes a thing in accordance with this section, the police officer may retain the thing pending any direction from the Attorney‑General as to the manner in which it is to be dealt with.
(5A) If a direction under subsection (5) is given in writing, the direction is not a legislative instrument.
(6) In this section:
place includes any public place, area of water, premises, vessel, aircraft or vehicle in any part of Australia.
thing includes a vessel, aircraft or vehicle.
15 Remand
(1) A person who is arrested under an extradition arrest warrant shall be brought as soon as practicable before a magistrate or eligible Federal Circuit Court Judge in the State or Territory in which the person is arrested.
(2) The person shall be remanded by a magistrate or eligible Federal Circuit Court Judge in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under one or more of sections 15A, 18 and 19 to be conducted.
(3) If a person is remanded in custody after making an application for bail, the person cannot make another application for bail during that remand unless there is evidence of a change of circumstances that might justify bail being granted.
(4) At any time before proceedings under section 15A, 18 or 19 commence in relation to a person (in this section called the transferee) who is on remand under subsection (2), the Attorney‑General may, by warrant in the statutory form:
(a) where the transferee is in custody—direct a magistrate or eligible Federal Circuit Court Judge to order the release of the transferee into the custody of a specified police officer and authorise that police officer to take the transferee in custody to appear before a magistrate or eligible Federal Circuit Court Judge in a specified State or Territory; or
(b) where the transferee has been granted bail—direct a magistrate or eligible Federal Circuit Court Judge to order the discharge of the recognizances on which bail was granted and authorise a specified police officer to take the transferee in custody to appear before a magistrate or eligible Federal Circuit Court Judge in a specified State or Territory.
(5) The transferee shall be remanded by a magistrate or eligible Federal Circuit Court Judge in the specified State or Territory in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under one or more of sections 15A, 18 and 19 to be conducted.
(6) A magistrate or eligible Federal Circuit Court Judge shall not remand a person on bail under this section unless there are special circumstances justifying such remand.
15A Waiver of extradition
Application of section—before decision has been made as to whether or not to give section 16 notice
(1) This section applies to a person who is on remand under section 15 at a particular time (the waiver time) if, as at the waiver time, the Attorney‑General has not yet made a decision as to whether or not to give a notice in relation to the person under subsection 16(1) in relation to one or more extradition offences.
Application of section—after section 16 notice given
(2) This section also applies to a person who is on remand under section 15 at a particular time (the waiver time) if:
(a) before the waiver time, the Attorney‑General gave a notice in relation to the person under subsection 16(1) in relation to one or more extradition offences; and
(b) as at the waiver time, a magistrate or eligible Federal Circuit Court Judge has not done either of the following:
(i) advised the Attorney‑General under subparagraph 18(2)(b)(ii) that the person has consented to be surrendered in relation to the extradition offence or all of the extradition offences;
(ii) determined under subsection 19(1) that the person is eligible for surrender in relation to any of the extradition offences.
Person may inform a magistrate or Judge that he or she wishes to waive extradition
(3) The person may inform a magistrate or eligible Federal Circuit Court Judge that he or she wishes to waive extradition in relation to:
(a) if an extradition request has not been made for the surrender of the person—the extradition offence or all of the extradition offences specified in the extradition arrest warrant to which the remand relates; or
(b) if an extradition request has been made for the surrender of the person—the extradition offence or all of the extradition offences for which surrender of the person is sought.
Magistrate or Judge must make order etc. if satisfied of matters
(4) If a magistrate or eligible Federal Circuit Court Judge is satisfied of the matters in subsections (5)(a), (c) and (d) in relation to the person, and has informed the person as mentioned in paragraph (5)(b), the magistrate or Judge must:
(a) by warrant in the statutory form, order that the person be committed to prison pending a determination by the Attorney‑General under subsection 15B(2) that the person be surrendered, or not be surrendered, in relation to the extradition offence or extradition offences mentioned in paragraph (3)(a) or (b), as the case may be; and
(b) advise the Attorney‑General in writing that the person wishes to waive extradition for those offences.
(5) Before making an order under paragraph (4)(a) in relation to a person, the magistrate or Judge:
(a) must be satisfied that the person voluntarily informed a magistrate or eligible Federal Circuit Court Judge under subsection (3); and
(b) must inform the person:
(i) that, once the order is made, the person cannot apply for the order to be revoked; and
(ii) of the consequences of the fact that the extradition country concerned may not have given, and if the order is made will not be required to give, a speciality assurance (of a kind mentioned in subsection 22(4)) in relation to the person; and
(iii) that certain requirements in this Act that would otherwise apply in respect of the person will not apply if the order is made (including, but not limited to, requirements relating to extradition objections); and
(iv) that, after the order is made, the person will be surrendered to the extradition country concerned if the Attorney‑General determines under subsection 15B(2) that the person is to be so surrendered; and
(c) having informed the person as mentioned in paragraph (b)—must be satisfied that the person has confirmed that he or she wishes to waive extradition as mentioned in subsection (3); and
(d) must be satisfied that the person is legally represented, or was given an adequate opportunity to be legally represented, in the proceedings before the magistrate or Judge.
Rules that apply until magistrate or Judge decides not to make an order
(6) After a person informs a magistrate or eligible Federal Circuit Court Judge under subsection (3) that the person wishes to waive extradition in relation to an extradition offence or extradition offences, the following rules apply unless and until a magistrate or eligible Federal Circuit Court Judge decides not to make an order under paragraph (4)(a) in relation to the person:
(a) if a decision as to whether or not to give a notice under subsection 16(1) had not, as at the waiver time, been made in relation to the person in relation to the extradition offence or extradition offences—the Attorney‑General must not decide whether or not to give such a notice;
(b) if, before the waiver time, a notice under subsection 16(1) had been given in relation to the person in relation to the extradition offence or extradition offences:
(i) sections 18 and 19 do not apply to the person in relation to the extradition offence or extradition offences; and
(ii) any proceedings that were on foot as at the waiver time under section 18 or 19 in relation to the person in relation to the extradition offence or extradition offences are stayed.
Magistrate or Judge must advise Attorney‑General if not satisfied of matters
(7) If a magistrate or eligible Federal Circuit Court Judge is not satisfied of the matters in paragraphs (5)(a), (c) and (d) in relation to the person, the magistrate or Judge must advise the Attorney‑General in writing that the magistrate or Judge has decided not to make an order under paragraph (4)(a) in relation to the person.
15B Attorney‑General must make surrender determination
(1) This section applies if a magistrate or eligible Federal Circuit Court Judge has advised the Attorney‑General under paragraph 15A(4)(b) that a person wishes to waive extradition in relation to one or more extradition offences.
(2) The Attorney‑General must, as soon as is reasonably practicable, having regard to all the circumstances, determine whether or not the person is to be surrendered to the extradition country concerned in relation to the extradition offences.
(3) The Attorney‑General may only determine that the person be surrendered to the extradition country concerned if:
(a) the Attorney‑General does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to torture; and
(b) the Attorney‑General is satisfied that, on surrender to the extradition country, there is no real risk that the death penalty will be carried out upon the person in relation to any offence.
(4) If the Attorney‑General determines that the person is not to be surrendered, the Attorney‑General must, by notice in writing in the statutory form, direct a magistrate or eligible Federal Circuit Court Judge to order the release of the person from custody.
16 Notice by Attorney‑General
(1) Where the Attorney‑General receives an extradition request from an extradition country in relation to a person, the Attorney‑General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate or eligible Federal Circuit Court Judge, state that the request has been received.
Person must be extraditable person in relation to extradition country
(2) The Attorney‑General must not give the notice unless the Attorney‑General is of the opinion that the person is an extraditable person in relation to the extradition country.
(3) As soon as practicable after the person is remanded under section 15 or the notice is given, whichever is the later:
(a) a copy of the notice; and
(b) copies of the documents referred to in paragraph 19(2)(a) and, if applicable, paragraph 19(2)(b);
shall be given to the person.
(4) A notice given under subsection (1) is not a legislative instrument.
16A Attorney‑General may give an amended notice
Scope
(1) This section applies if the Attorney‑General has given a notice (the original notice) under subsection 16(1) in relation to a person.
Attorney‑General may give an amended notice
(2) Subject to subsection (4), the Attorney‑General may, in his or her discretion, give an amended notice at any time before:
(a) the person has consented in accordance with section 18 to being surrendered to the extradition country concerned in relation to the extradition offence or extradition offences specified in the original notice; or
(b) a magistrate or eligible Federal Circuit Court Judge has determined in accordance with section 19 that the person is eligible for surrender in relation to the extradition offence or extradition offences specified in the original notice.
(3) The amended notice must be in writing in the statutory form expressed to be directed to any magistrate or eligible Federal Circuit Court Judge.
(4) The Attorney‑General must not give an amended notice under subsection (2) that specifies one or more extradition offences that were not specified in the original notice unless the Attorney‑General is satisfied that he or she could give a notice under subsection 16(1) in the same form as the amended notice.
(5) For the purposes of this Act, a reference to a notice given under subsection 16(1) includes a reference to an amended notice given under subsection (2) of this section.
(6) An amended notice given under subsection (2) is not a legislative instrument.
Copies of amended notice and documents to be given to the person
(7) As soon as practicable after the person is remanded under section 15, or an amended notice is given under subsection (2) of this section, whichever is the later:
(a) a copy of the amended notice; and
(b) if the amended notice specifies one or more extradition offences that were not specified in the original notice—the copies of the documents referred to in:
(i) paragraph 19(2)(a); and
(ii) if applicable—paragraph 19(2)(b);
to the extent that those documents relate to those extradition offences;
must be given to the person.
Revocation in accordance with the Acts Interpretation Act 1901
(8) This section does not limit the power of the Attorney‑General to revoke the original notice in accordance with subsection 33(3) of the Acts Interpretation Act 1901.
17 Release from remand
(1) Where a person is on remand under section 15 and:
(a) the Attorney‑General decides not to give a notice under subsection 16(1) in relation to the person; or
(b) the Attorney‑General considers for any other reason that the remand should cease;
the Attorney‑General shall, by notice in writing in the statutory form, direct a magistrate or eligible Federal Circuit Court Judge to order:
(c) if the person is in custody—the release of the person from custody; or
(d) if the person has been granted bail—the discharge of the recognizances on which bail was granted.
(2) Where:
(a) a person is, under section 15, on remand 45 days (or such greater or lesser number of days as may be applicable, by virtue of subsection 11(2), under the regulations) after the day on which the person was arrested; and
(b) either:
(i) the Attorney‑General has not received an extradition request from the extradition country concerned in relation to the person; or
(ii) the Attorney‑General has received such a request but a notice has not been given under subsection 16(1) in relation to the person within the period of 5 days after the end of the period of days referred to in paragraph (a);
the person must be brought before a magistrate or eligible Federal Circuit Court Judge.
(2A) The magistrate or Judge must order the release of the person from custody, or the discharge of the recognisances on which bail was granted to the person, unless the magistrate or Judge is satisfied:
(a) if subparagraph (2)(b)(i) applies:
(i) that the extradition country concerned has not made an extradition request in relation to the person because of exceptional circumstances; and
(ii) that the Attorney‑General is likely to receive an extradition request from the extradition country concerned in relation to the person within a particular period that is reasonable in the circumstances; and
(iii) that, after receiving the extradition request, the Attorney‑General is likely to make a decision to give, or not to give, a notice under subsection 16(1) in relation to the person within a particular period that is reasonable in the circumstances; or
(b) if subparagraph (2)(b)(ii) applies—that the Attorney‑General is likely to make a decision to give, or not to give, a notice under subsection 16(1) within a particular period that is reasonable in the circumstances.
(3) Where:
(a) a magistrate or eligible Federal Circuit Court Judge was satisfied:
(i) under subparagraph (2A)(a)(ii) that an extradition request was likely to be received in relation to a person within a particular period; or
(ii) under subparagraph (2A)(a)(iii) or paragraph (2A)(b) that a decision was likely to be made to give, or not to give, a notice under subsection 16(1) in relation to a person within a particular period; and
(b) the request is not received, or the decision is not made, within the period;
the person shall be brought before a magistrate or eligible Federal Circuit Court Judge who shall order the release of the person from custody, or the discharge of the recognizances on which bail was granted to the person, as the case requires.
(4) Subsection (2) does not apply to a person at any time after the person has informed a magistrate or eligible Federal Circuit Court Judge under subsection 15A(3) that the person wishes to waive extradition, unless and until a magistrate or eligible Federal Circuit Court Judge decides not to make an order under paragraph 15A(4)(a) in relation to the person.
(5) If:
(a) a person informs a magistrate or eligible Federal Circuit Court Judge under subsection 15A(3) that the person wishes to waive extradition; and
(b) a magistrate or eligible Federal Circuit Court Judge decides not to make an order under paragraph 15A(4)(a) in relation to the person;
then, for the purposes of applying subsection (2) of this section to the person, the period of days referred to in paragraph (2)(a) of this section is to be calculated exclusive of the period:
(c) beginning on the day on which the person informs the magistrate or Judge that the person wishes to waive extradition; and
(d) ending on the day on which the Attorney‑General receives the magistrate’s or Judge’s advice under subsection 15A(7) that the magistrate or Judge has decided not to make an order under paragraph 15A(4)(a) in relation to the person.
(6) A notice given under subsection (1) is not a legislative instrument.
18 Consent to surrender
(1) Where:
(a) a person is on remand under section 15; and
(b) the Attorney‑General has given a notice under subsection 16(1) in relation to the person;
the person may inform a magistrate or eligible Federal Circuit Court Judge that the person consents to being surrendered to the extradition country concerned in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought by that country.
(1A) If:
(a) the Attorney‑General has given a notice (the original notice) under subsection 16(1) in relation to a person; and
(b) during proceedings conducted in relation to the person under this section, the Attorney‑General gives an amended notice under subsection 16A(2) in relation to the person; and
(c) the amended notice specifies one or more extradition offences that were not specified in the original notice; and
(d) the magistrate or Judge considers it necessary to give the person time to inform the magistrate or Judge whether the person consents to being surrendered to the extradition country in relation to any of those extradition offences;
the magistrate or Judge may adjourn the proceedings for such period as the magistrate or Judge considers reasonable to allow the person to so inform the magistrate or Judge.
(2) Where the person informs the magistrate or Judge that he or she so consents, the magistrate or Judge shall, unless the magistrate or Judge has reason to believe that the consent was not given voluntarily:
(a) advise the person that the effect of so consenting will be that:
(i) the person will be committed to prison or, subject to subsection (3), released on bail, without any proceedings being conducted under section 19 to determine whether the person is eligible for surrender in relation to any extradition offence; and
(ii) the person will, if the Attorney‑General issues a surrender warrant or a temporary surrender warrant, be surrendered to the extradition country; and
(b) if, after the person has been advised as mentioned in paragraph (a), the person again consents to being surrendered—order that the person be committed to prison or (subject to subsection (3)) released on bail, to await:
(i) surrender under a surrender warrant or temporary surrender warrant; or
(ii) release, or the discharge of the recognisances on which bail was granted, under an order under subsection 22(5).
(3) A magistrate or eligible Federal Circuit Court Judge must not release a person on bail under this section unless there are special circumstances justifying such release.
(4) If a magistrate or eligible Federal Circuit Court Judge makes an order under paragraph (2)(b), the magistrate or Judge must advise the Attorney‑General in writing of the offence or the offences in respect of which the person has consented.
(5) An order committing a person to prison under paragraph (2)(b) must be made by warrant in the statutory form.
19 Determination of eligibility for surrender
(1) Where:
(a) a person is on remand under section 15;
(b) the Attorney‑General has given a notice under subsection 16(1) in relation to the person;
(c) an application is made to a magistrate or eligible Federal Circuit Court Judge by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; 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;
the magistrate or Judge shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.
(2) For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:
(a) the supporting documents in relation to the offence have been produced to the magistrate or Judge;
(b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate or Judge of any other documents—those documents have been produced to the magistrate or Judge;
(c) the magistrate or Judge is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and
(d) the person does not satisfy the magistrate or Judge that there are substantial grounds for believing that there is an extradition objection in relation to the offence.
(3) In paragraph (2)(a), supporting documents, in relation to an extradition offence, means:
(a) if the offence is an offence of which the person is accused—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 the offence is an offence of which the person has been convicted—such duly authenticated documents as provide evidence of:
(i) the conviction;
(ii) the sentence imposed or the intention to impose a sentence; and
(iii) 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.
(4) Where, in the proceedings:
(a) a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and
(b) the magistrate or Judge considers the deficiency or deficiencies to be of a minor nature;
the magistrate or Judge shall adjourn the proceedings for such period as the magistrate or Judge considers reasonable to allow the deficiency or deficiencies to be remedied.
(4A) If:
(a) the Attorney‑General has given a notice (the original notice) under subsection 16(1) in relation to a person; and
(b) during proceedings conducted in relation to the person under this section, the Attorney‑General gives an amended notice under subsection 16A(2) in relation to the person; and
(c) the amended notice specifies one or more extradition offences that were not specified in the original notice; and
(d) the magistrate or Judge considers it necessary to give the person and the extradition country time to prepare for the conduct of proceedings under this section in relation to any of those extradition offences;
the magistrate or Judge may adjourn the proceedings for such period as the magistrate or Judge considers reasonable to allow the person and the extradition country to prepare for the conduct of those proceedings.
(5) In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate or Judge is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.
(6) Subject to subsection (5), any document that is duly authenticated is admissible in the proceedings.
(7) A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if:
(a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and
(b) it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal:
(i) in any case—of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or
(ii) where the extradition country is a colony, territory or protectorate—of the person administering the Government of that country or of any person administering a Department of the Government of that country.
(7A) Subsection (7) has effect in spite of any limitation, condition, exception or qualification under subsection 11(1), (1A) or (3).
(8) Nothing in subsection (6) prevents 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.
(9) Where, in the proceedings, the magistrate or Judge determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate or Judge shall:
(a) order that the person be committed to prison or (subject to subsection (9A)) released on bail, to await:
(i) surrender under a surrender warrant or temporary surrender warrant; or
(ii) release, or the discharge of the recognisances on which bail was granted, under an order under subsection 22(5);
(b) inform the person that he or she may, within 15 days after the day on which the order under paragraph (a) is made, seek a review of the order under subsection 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 the Attorney‑General.
(9A) A magistrate or eligible Federal Circuit Court Judge must not release a person on bail under paragraph (9)(a) unless there are special circumstances justifying such release.
(9B) An order committing a person to prison under paragraph (9)(a) must be made by warrant in the statutory form.
(10) Where, in the proceedings, the magistrate or Judge determines that the person is not, in relation to any extradition offence, eligible for surrender to the extradition country seeking surrender, the magistrate or Judge shall:
(a) order that the person be released; and
(b) advise the Attorney‑General in writing of the order and of the magistrate’s or Judge’s reasons for determining that the person is not eligible for surrender.
19A Consent to accessory extradition—extradition offences not specified in subsection 16(1) notice etc.
Scope
(1) This section applies if:
(a) a notice under subsection 16(1) has been given in relation to a person in respect of whom an extradition request has been made by an extradition country; and
(b) either:
(i) in proceedings under section 18, the person consents in accordance with that section to being surrendered to the extradition country in relation to the extradition offence or all of the extradition offences to which the notice relates; or
(ii) in proceedings under subsection 19(1), a magistrate or eligible Federal Circuit Court Judge determines that the person is eligible for surrender to the extradition country in relation to one or more of the extradition offences to which the notice relates; and
(c) the extradition country requested in the extradition request that the person be surrendered for one or more extradition offences (the additional extradition offences) that are not specified in the notice.
Consent to being surrendered in respect of the additional extradition offences
(2) If the magistrate or Judge is satisfied that there is no extradition objection in relation to any of the additional extradition offences, the magistrate or Judge must, in those proceedings, ask the person whether he or she consents to being surrendered to the extradition country in respect of the additional extradition offences.
(3) Before asking the person whether he or she consents to being surrendered in respect of the additional extradition offences, the magistrate or Judge must:
(a) either:
(i) be satisfied that the person is legally represented; or
(ii) if the magistrate or Judge is not so satisfied—give the person an adequate opportunity to be legally represented; and
(b) inform the person that, if the person is surrendered, the person may be tried and sentenced in the extradition country for any additional extradition offence in relation to which the person gives consent; and
(c) inform the person that the person may be tried and sentenced in the extradition country even though, had the conduct of the person constituting the additional extradition offences, or equivalent conduct, taken place in Australia at the time the extradition request concerned was received, that conduct may not have constituted an extradition offence in relation to Australia.
Magistrate or Judge to advise Attorney‑General of consent
(4) If the person gives his or her consent to being so surrendered, the magistrate or Judge must, unless he or she considers that the consent was not given voluntarily, advise the Attorney‑General in writing of the additional extradition offences in respect of which the person has so consented.
20 Consent to accessory extradition—offences that are not extradition offences
(1) Where:
(a) either:
(i) in proceedings under section 18, a person consents in accordance with that section to being surrendered to an extradition country in relation to an extradition offence or extradition offences; or
(ii) in proceedings under subsection 19(1), a magistrate or eligible Federal Circuit Court Judge determines that a person is eligible for surrender to an extradition country in relation to an extradition offence or extradition offences; and
(b) the extradition country has requested that the person also be surrendered for an offence that is not an extradition offence or offences that are not extradition offences;
the magistrate or Judge shall, in those proceedings, ask the person whether he or she consents to being surrendered to the country in respect of the offence or any of the offences referred to in paragraph (b).
(2) Where the person gives his or her consent to being so surrendered, the magistrate or Judge shall, unless he or she considers that the consent was not given voluntarily, advise the Attorney‑General in writing of the offence or offences in respect of which the person has so consented.
21 Review of magistrate’s or Judge’s order
(1) Where a magistrate or eligible Federal Circuit Court Judge makes an order under subsection 19(9) or (10) in relation to a person whose surrender is sought by an extradition country:
(a) in the case of an order under subsection 19(9)—the person; or
(b) in the case of an order under subsection 19(10)—the extradition country;
may, within 15 days after the day on which the magistrate or Judge makes the order, apply to the Federal Court for a review of the order.
(2) The Federal Court may, by order:
(a) confirm the order of the magistrate or Judge; or
(b) quash the order.
(2A) If the Federal Court quashes the order, it must:
(a) in the case of an order under subsection 19(9)—order the release of the person or the discharge of the recognisances on which bail was granted; or
(b) in the case of an order under subsection 19(10)—order that the person be committed to prison or (subject to subsection (2B)) released on bail, to await:
(i) surrender under a surrender warrant or temporary surrender warrant; or
(ii) release, or the discharge of the recognisances on which bail was granted, under an order under subsection 22(5).
(2B) The Federal Court must not release a person on bail under paragraph (2A)(b) unless there are special circumstances justifying such release.
(2C) An order committing a person to prison under paragraph (2A)(b) must be made by warrant in the statutory form.
(3) The person or the extradition country, whether or not the person or country was the applicant for review under subsection (1), may appeal to the Full Court of the Federal Court from the order of the Federal Court.
(4) The person or the extradition country is not entitled to appeal to the Full Court more than 15 days after the day on which the order of the Federal Court is made.
(5) The High Court shall not grant special leave to appeal against the order of the Full Court made on the appeal referred to in subsection (3) if the application for special leave is made more than 15 days after the day on which the order of the Full Court is made.
(6) Where the person or the extradition country:
(a) applies under subsection (1) for a review of an order; or
(b) appeals under subsection (3) against an order made on that review; or
(c) appeals to the High Court against an order made on that appeal;
the following provisions have effect:
(d) subject to section 21A, the court to which the application or appeal is made shall have regard only to the material that was before the magistrate or Judge;
(e) if an order for the release of the person (whether or not on bail) has been made under subsection 19(9) or (10), or subsection (2A) of this section—the court to which the application or appeal is made may order both:
(i) if the person was released on bail—the discharge of the recognisances on which bail was granted; and
(ii) the arrest of the person;
(f) if:
(i) if an order for the release of the person has not been made; or
(ii) the person has been arrested under an order made under paragraph (e);
the court to which the application or appeal is made may:
(iii) order that the person be kept in such custody as the court directs; or
(iv) if there are special circumstances justifying such a course, order the release on bail of the person;
until the review has been conducted or the appeal has been heard;
(g) if the court to which the application or appeal is made determines that the person is eligible for surrender, within the meaning of subsection 19(2), in relation to an extradition offence or extradition offences—the court shall include in its judgment on the review or appeal a statement to that effect specifying the offence or offences.
21A Admission of evidence etc. on review or appeal
Scope
(1) This section applies if a person or extradition country:
(a) applies under subsection 21(1) for a review of an order;
(b) appeals under subsection 21(3) against an order made on that review; or
(c) appeals to the High Court against an order made on that appeal.
Admission of evidence
(2) If:
(a) a party to the relevant proceedings under section 19 was prevented from adducing evidence (the excluded evidence) in the proceedings; and
(b) the review court considers that the party should have been permitted to adduce the excluded evidence in those proceedings;
the court may receive:
(c) the excluded evidence; and
(d) further evidence, or submissions, that directly relate to the excluded evidence.
Documents containing deficiencies
(3) If:
(a) a document is:
(i) a document to which the review court must have regard under paragraph 21(6)(d); or
(ii) a document that is received by the review court under subsection (2) of this section; and
(b) the document contains a deficiency of relevance to the review or appeal; and
(c) the court considers the deficiency to be of a minor nature;
the court must adjourn the proceedings for such period as is necessary to allow the deficiency to be remedied.
(4) This section does not entitle the person to whom the proceedings relate to adduce, or the court to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.
Definition
(5) In this section:
review court means the court to which the application or appeal was made.
22 Surrender determination by Attorney‑General
(1) In this section:
eligible person means a person who has been committed to prison or released on bail:
(a) by order of a magistrate or eligible Federal Circuit Court Judge made under section 18; or
(b) by order made under subsection 19(9) or 21(2A) (including because of an appeal referred to in section 21), where no proceedings under section 21 are being conducted or are available in relation to the determination under subsection 19(9) to which the order relates.
qualifying extradition offence, in relation to an eligible person, means the following:
(a) if paragraph (a) of the definition of eligible person applies—any extradition offence in relation to which the person consented in accordance with section 18;
(b) if paragraph (b) of the definition of eligible person applies—any extradition offence in relation to which:
(i) the magistrate or Judge who made the order under subsection 19(9); or
(ii) the court that conducted the final proceedings under section 21;
determined that the person was eligible for surrender within the meaning of subsection 19(2);
(c) in any case—any extradition offence in relation to which the person has consented in accordance with section 19A.
(2) The Attorney‑General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.
(3) For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if:
(a) the Attorney‑General is satisfied that there is no extradition objection in relation to the offence; and
(b) the Attorney‑General does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to torture; and
(c) where the offence is punishable by a penalty of death—by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable:
(i) the person will not be tried for the offence;
(ii) if the person is tried for the offence, the death penalty will not be imposed on the person;
(iii) if the death penalty is imposed on the person, it will not be carried out; and
(d) the extradition country concerned has given a speciality assurance in relation to the person; and
(e) where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that:
(i) surrender of the person in relation to the offence shall be refused; or
(ii) surrender of the person in relation to the offence may be refused;
in certain circumstances—the Attorney‑General is satisfied:
(iii) where subparagraph (i) applies—that the circumstances do not exist; or
(iv) where subparagraph (ii) applies—either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and
(f) the Attorney‑General, in his or her discretion, considers that the person should be surrendered in relation to the offence.
(4) For the purposes of paragraph (3)(d), the extradition country shall be taken to have given a speciality assurance in relation to the eligible person if, by virtue of:
(a) a provision of the law of the country; or
(b) a provision of an extradition treaty in relation to the country; or
(c) an undertaking given by the country to Australia;
the eligible person, after being surrendered to the country, will not, unless the eligible person has left or had the opportunity of leaving the country:
(d) be detained or tried in the country for any offence that is alleged to have been committed, or was committed, before the eligible person’s surrender other than:
(i) any surrender offence; or
(ii) any offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the eligible person could be convicted on proof of the conduct constituting any surrender offence; or
(iii) any extradition offence in relation to the country (not being an offence for which the country sought the surrender of the eligible person in proceedings under section 19) in respect of which the Attorney‑General consents to the eligible person being so detained or tried; or
(e) be detained in the country for the purpose of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the eligible person’s surrender to the first‑mentioned country, other than any offence in respect of which the Attorney‑General consents to the eligible person being so detained and surrendered.
(5) Where the Attorney‑General determines under subsection (2) that the eligible person is not to be surrendered to the extradition country in relation to any qualifying extradition offence, the Attorney‑General must, by notice in writing:
(a) if the person has been committed to prison—direct a magistrate or eligible Federal Circuit Court Judge to order the release of the person; or
(b) if the person has been released on bail—direct a magistrate or eligible Federal Circuit Court Judge to order the discharge of the recognisances on which bail was granted.
(6) If a determination under subsection (2) is made in writing, the determination is not a legislative instrument.
(7) An order made under subsection (5) is not a legislative instrument.
23 Surrender warrants
Where the Attorney‑General determines under subsection 15B(2) or 22(2) that a person is to be surrendered to an extradition country in relation to an extradition offence or extradition offences, the Attorney‑General shall, unless the Attorney‑General issues a temporary surrender warrant, issue a warrant for the surrender of the person to the extradition country under this section.
24 Temporary surrender warrants
(1) Subject to this section, where:
(a) the Attorney‑General determines under subsection 15B(2) or 22(2) that a person is to be surrendered to an extradition country in relation to an extradition offence or extradition offences; and
(b) the person is serving a sentence or sentences of imprisonment in respect of an offence or offences against a law of Australia; and
(c) any surrender offence in relation to the person is an offence of which the person is accused; and
(d) the Attorney‑General is satisfied that:
(i) it is in the interests of the administration of justice that a warrant under this subsection be issued instead of a surrender warrant; and
(ii) the extradition country has given adequate undertakings to the Attorney‑General in relation to:
(A) the trial of the person in the extradition country for any surrender offence of which the person is accused;
(B) the return of the person to Australia; and
(C) the custody of the person while travelling to and from, and while in, the extradition country;
the Attorney‑General may issue a warrant under this subsection.
(2) For the purposes of paragraph (1)(b), the person shall be taken not to be serving a sentence of imprisonment if the person has been released on parole or licence, or has been otherwise conditionally released, for the remainder of the sentence.
(3) Where any offence referred to in paragraph (1)(b) is an offence against the law of a State or the Northern Territory, the Attorney‑General shall not issue the warrant unless:
(a) the Attorney‑General is satisfied that the law of the State or the Northern Territory, as the case may be:
(i) would permit the release of the person for the purpose of surrender to the extradition country under such a warrant; and
(ii) would, if the person were surrendered to the extradition country under such a warrant, permit the time spent by the person in custody in connection with the warrant (including time spent in custody outside Australia) to be counted towards the sentence or sentences in respect of the offence; and
(b) consent to the surrender of the person to the extradition country under such a warrant has been given to the Attorney‑General by:
(i) the appropriate Minister of the Crown of the State; or
(ii) the appropriate Minister of the Northern Territory;
as the case requires.
(4) Where, while the person is in the extradition country pursuant to the warrant, the person ceases to be liable to serve the sentence or sentences of imprisonment in Australia, the Attorney‑General shall inform the extradition country that the undertakings referred to in subparagraph (1)(d)(ii) are no longer required to be complied with.
(5) Where any offence referred to in paragraph (1)(b) is an offence against a law of the Commonwealth or of a Territory (other than the Northern Territory), any time spent by the person in custody in connection with the warrant (including time spent in custody outside Australia) shall be counted as time served towards the sentence or sentences of imprisonment referred to in that paragraph.
(6) If:
(a) the Attorney‑General informs an extradition country as mentioned in subsection (4); and
(b) the Attorney‑General does so in writing;
the written instrument is not a legislative instrument.
25 Surrender warrants after temporary surrender
(1) Where:
(a) a person is surrendered to an extradition country under a temporary surrender warrant;
(b) the person is returned to Australia in pursuance of undertakings referred to in subparagraph 24(1)(d)(ii); and
(c) the extradition country still seeks the surrender of the person;
subject to subsection (2), the Attorney‑General may, in his or her discretion, issue a warrant for the surrender of the person to the extradition country under this subsection.
(2) If the temporary surrender warrant referred to in paragraph (1)(a) was issued after the Attorney‑General determined under subsection 22(2) that the person was to be surrendered, the Attorney‑General shall not issue a surrender warrant under subsection (1) unless:
(a) by virtue of:
(i) a provision of the law of the extradition country; or
(ii) a provision of an extradition treaty in relation to the extradition country; or
(iii) an undertaking given by the extradition country to Australia;
the person, if surrendered to the extradition country, will not, unless the person has left or had the opportunity of leaving the country:
(iv) be detained or tried in that country for any offence that is alleged to have been committed, or was committed, before the person’s surrender under the temporary surrender warrant referred to in paragraph (1)(a), other than any offence to which subparagraph 22(4)(d)(i), (ii) or (iii) applies; or
(v) be detained in the country for the purpose of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the person’s surrender to the first‑mentioned country under the temporary surrender warrant, other than any offence in respect of which the Attorney‑General consents to the person being so detained and surrendered; and
(ba) the Attorney‑General does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to torture; and
(b) where any surrender offence in relation to the person is punishable by a penalty of death—if the person is surrendered in respect of that offence, then, by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable:
(i) except where there is only one such offence—the person will not be tried for that offence;
(ii) if the person is tried for the offence—the death penalty will not be imposed on the person;
(iii) if the death penalty is imposed or was imposed while the person was surrendered under the temporary surrender warrant—it will not be carried out.
(3) If the temporary surrender warrant referred to in paragraph (1)(a) was issued after the Attorney‑General determined under subsection 15B(2) that the person was to be surrendered, the Attorney‑General may only issue a surrender warrant under subsection (1) if:
(a) the Attorney‑General does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to torture; and
(b) the Attorney‑General is satisfied that, on surrender to the extradition country, there is no real risk that the death penalty will be carried out upon the person in relation to any offence.
26 Form and execution of surrender warrants and temporary surrender warrants
(1) A surrender warrant or a temporary surrender warrant in relation to a person (in this subsection called the eligible person) shall:
(a) in the case of a surrender warrant—specify all of the surrender offences in relation to the eligible person;
(b) in the case of a temporary surrender warrant—specify all of the surrender offences of which the eligible person is accused;
(c) if the person has been committed to prison—require the person in whose custody the eligible person is being held to release the eligible person into the custody of any police officer;
(ca) if the person has been released on bail—authorise any police officer to take the person into custody and to take the person before a magistrate or eligible Federal Circuit Court Judge or, if a court made the order releasing the person on bail, before that court, for the purposes of the discharge of the recognisances on which bail was granted;
(d) authorise the eligible person to be transported in custody and, if necessary or convenient, detained in custody, by any police officer, for the purpose of enabling the eligible person to be placed in the custody of a specified person or a person included in a specified class (in this subsection called the escort officer) and transported out of Australia;
(e) authorise the escort officer to transport the eligible person in custody out of Australia to a place in the extradition country for the purpose of surrendering the eligible person to a person appointed by the extradition country to receive the eligible person; and
(f) be in writing in the statutory form.
(1A) To avoid doubt, subject to this section and subsection 33(3) of the Acts Interpretation Act 1901, a surrender warrant or a temporary surrender warrant remains in force until the eligible person is surrendered, at a place in the extradition country, to a person appointed by the extradition country to receive the eligible person.
(2) Subject to this section, a surrender warrant or a temporary surrender warrant shall be executed according to its tenor.
(3) Where a surrender warrant is issued in respect of a person:
(a) who is in custody; or
(b) to whom bail has been granted;
in respect of an offence that is alleged to have been committed, or of which the person has been convicted, in Australia, the warrant shall not be executed until the person has been released from custody in respect of that offence or any recognizances on which the person has been granted bail in respect of that offence have been discharged, as the case requires.
(4) For the purposes of subsection (3), a person who is serving a sentence of imprisonment shall be taken not to be in custody if the person has been released on parole or licence, or has been otherwise conditionally released, for the remainder of the sentence.
(5) Where:
(a) a surrender warrant or a temporary surrender warrant is issued in relation to a person;
(b) the person is in custody in Australia under the warrant, or otherwise under this Act, more than 2 months after the day on which the warrant was first liable to be executed;
(c) the person applies to the Federal Court; and
(d) reasonable notice of the intention to make the application has been given to the Attorney‑General;
the Federal Court shall, subject to subsection (6), order that the person be released from that custody.
(6) Where the Federal Court is satisfied that the person has not been conveyed out of Australia under the warrant within the period of 2 months or since the person last made an application under subsection (5), as the case may be:
(a) because to do so would have been dangerous to the life or prejudicial to the health of the person; or
(b) for any other reasonable cause;
the Federal Court shall not order that the person be released from custody.
27 Delivery of property to extradition country
(1) Where:
(a) property or a thing is seized under section 13 or 14; and
(b) the property or thing:
(i) may be material as evidence in proving any offence referred to in subparagraph 13(1)(b)(i) or paragraph 14(1)(a), as the case requires, in relation to a person whose surrender is sought by an extradition country; or
(ii) has been acquired as a result of such an offence;
the Attorney‑General may, whether or not a surrender warrant or a temporary surrender warrant is issued in respect of the person, direct, by notice in writing, that the property or thing be sent to the extradition country.
(2) A notice given under subsection (1) is not a legislative instrument.
Part III—Extradition from Australia to New Zealand
28 Indorsement of New Zealand warrants
Where:
(a) an application is made, in the statutory form, on behalf of New Zealand to a magistrate or eligible Federal Circuit Court Judge for the indorsement of a New Zealand warrant under this subsection; and
(b) the magistrate or Judge is informed by affidavit that the person for whose arrest the warrant is in force is, or is suspected of being, in or on his or her way to Australia;
the magistrate or Judge shall make an indorsement on the warrant, in the statutory form, authorising the execution of the warrant in Australia by any police officer.
29 Provisional arrest warrants
Where:
(a) an application is made, in the statutory form, on behalf of New Zealand to a magistrate or eligible Federal Circuit Court Judge for the issue of a warrant in relation to a person under this section;
(b) the magistrate or Judge is informed by affidavit that a New Zealand warrant has been issued in relation to the person;
(c) no application is before the magistrate or Judge under section 28 for the indorsement of such a warrant; and
(d) the magistrate or Judge considers that the issue of a warrant in relation to the person under this section is, having regard to any information that the magistrate or Judge considers relevant, justified in all the circumstances;
the magistrate or Judge shall issue a warrant, in the statutory form, for the arrest of the person.
30 Search and seizure upon arrest
(1) Where a police officer:
(a) arrests a person under an indorsed New Zealand warrant or a provisional arrest warrant; and
(b) has reasonable grounds for suspecting that property in the vicinity of the person that is under the apparent control of the person:
(i) may be material as evidence in proving any offence in relation to which the provisional arrest warrant or any indorsed New Zealand warrant in relation to the person was issued; or
(ii) has been acquired by the person as a result of such an offence;
the police officer may seize that property.
(2) Where a police officer:
(a) arrests a person under an indorsed New Zealand warrant or a provisional arrest warrant; and
(b) has reasonable grounds for suspecting that there is on the person, in the clothing that the person is wearing or in or on any property in the vicinity of the person that is under the apparent control of the person, any thing, including a sum of money:
(i) that may be material as evidence in proving any offence in relation to which the provisional arrest warrant or any indorsed New Zealand warrant in relation to the person was issued; or
(ii) that has been acquired by the person as a result of such an offence;
the police officer may search that person, that person’s clothing or that property, and may seize any thing found as a result of that search.
(3) Subsection (2) does not authorise a police officer to remove, or to require the person to remove, any of the clothing that the person is wearing.
(4) A person shall not be searched under subsection (2) except by a police officer of the same sex.
(5) A police officer may retain any property or thing seized under subsection (1) or (2) pending any direction from the Attorney‑General as to the manner in which the thing is to be dealt with.
(6) Nothing in this section shall be taken to prevent or restrict the search of a person or of clothing worn by, or of property under the immediate control of, a person, upon the admission of the person as an inmate of a prison after having been charged with an offence.
(7) The powers conferred by this section are in addition to, and not in derogation of, any other powers conferred by law.
(8) If a direction under subsection (5) is given in writing, the direction is not a legislative instrument.
31 Search and seizure warrants
(1) Where a magistrate or eligible Federal Circuit Court Judge is informed by affidavit that there are reasonable grounds for suspecting that there may be in any place any thing:
(a) that may be material as evidence in proving any offence in relation to which an indorsed New Zealand warrant or a provisional arrest warrant was issued; or
(b) that has been acquired by a person as a result of such an offence;
and the affidavit sets out those grounds, the magistrate or Judge may issue a warrant, in the statutory form, authorising a police officer named in the warrant, with such assistance, and by such force, as is necessary and reasonable:
(c) to seize the thing;
(d) to enter upon or into the place and to seize the thing; or
(e) to enter upon or into the place, to search the place for any such thing and to seize any such thing found in the place.
(2) The magistrate or Judge shall not issue the warrant unless:
(a) there has been given to the magistrate or Judge by affidavit such further information (if any) as the magistrate or Judge requires concerning the grounds on which the issue of the warrant is being sought; and
(b) the magistrate or Judge is satisfied that there are reasonable grounds for issuing the warrant.
(3) The warrant shall state:
(a) the purpose for which it is issued, including a reference to the nature of any offence referred to in paragraph (1)(a);
(b) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night;
(c) the kind of things authorised to be seized; and
(d) that it ceases to have effect on a specified day, not being later than 1 month after the day of issue of the warrant.
(4) If, in the course of searching in accordance with the warrant for a thing that may be material as evidence in proving an offence or that has been acquired as a result of an offence, being a thing of a kind stated in the warrant:
(a) a police officer finds any thing that the police officer believes on reasonable grounds to be connected with the offence, although not of a kind stated in the warrant; and
(b) the police officer believes on reasonable grounds that it is necessary to seize that thing in order to prevent its concealment, loss or destruction;
the warrant is deemed to authorise the police officer to seize the thing.
(5) Where a police officer seizes a thing in accordance with this section, the police officer may retain the thing pending any direction from the Attorney‑General as to the manner in which it is to be dealt with.
(5A) If a direction under subsection (5) is given in writing, the direction is not a legislative instrument.
(6) In this section:
place includes any public place, area of water, premises, vessel, aircraft or vehicle in any part of Australia.
thing includes a vessel, aircraft or vehicle.
32 Remand
(1) A person who is arrested under an indorsed New Zealand warrant or under a provisional arrest warrant shall be brought as soon as practicable before a magistrate or eligible Federal Circuit Court Judge in the State or Territory in which the person is arrested.
(2) The person shall be remanded by a magistrate or eligible Federal Circuit Court Judge in custody, or, subject to subsection (3), on bail, for such period or periods as may be necessary for proceedings for the purposes of section 33A or 34, or both, to be conducted.
(3) A magistrate or eligible Federal Circuit Court Judge shall not remand the person on bail unless there are special circumstances justifying such remand.
(4) Where a magistrate or eligible Federal Circuit Court Judge remands the person in custody after the person has made an application for bail, the person is not entitled to apply to any other magistrate or eligible Federal Circuit Court Judge for release on bail during that remand.
33 Release from remand
Where:
(a) a person has been remanded after being arrested under a provisional arrest warrant;
(b) an indorsed New Zealand warrant has not been obtained in relation to the person; and
(c) a magistrate or eligible Federal Circuit Court Judge is satisfied that there has been reasonable time for such a warrant to be obtained;
the magistrate or Judge shall:
(d) if the person is held in custody—order that the person be released; or
(e) if the person has been granted bail—order the discharge of the recognizances on which bail was granted.
33A Consent to surrender
(1) Where:
(a) a person is on remand under section 32; and
(b) an indorsed New Zealand warrant has been obtained in relation to the person;
the person may inform the magistrate or Judge that he or she consents to being surrendered to New Zealand in relation to an offence for which the indorsed warrant has been obtained.
(2) Unless there is reason to believe that the consent was not given voluntarily, the magistrate or Judge must:
(a) advise the person that the effect of so consenting will be that:
(i) the person will be committed to prison without any proceedings being conducted under section 34; and
(ii) the person will be surrendered to New Zealand as soon as practicable; and
(b) if, after the person has been so advised, the person again consents to being surrendered:
(i) by warrant in accordance with subsection 38(1), order that the person be surrendered to New Zealand as soon as practicable; and
(ii) by warrant in the statutory form, order that, pending the execution of the warrant referred to in subparagraph (i), the person be committed to prison.
34 Surrender warrants
(1) Where:
(a) either:
(i) a person has been remanded after being arrested under an indorsed New Zealand warrant; or
(ii) 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
(b) a request is made to a magistrate or eligible Federal Circuit Court Judge by or on behalf of the person or New Zealand for proceedings to be conducted under this section;
the magistrate or Judge shall, unless the magistrate or Judge makes an order under subsection (2):
(c) by warrant in accordance with subsection 38(1), order that the person be surrendered to New Zealand; and
(d) by warrant in the statutory form, order that, pending the execution of the warrant referred to in paragraph (c), the person be committed to prison.
(2) If the magistrate or Judge is satisfied by the person that, because:
(a) the offence in relation to which any indorsed New Zealand warrant in relation to the person was issued is of a trivial nature;
(b) if that offence is an offence of which the person is accused—the accusation was not made in good faith or in the interests of justice; or
(c) a lengthy period has elapsed since that offence was committed or allegedly committed;
or for any other reason, it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand, the magistrate or Judge shall order that the person be released.
(3) The magistrate or Judge shall, after making an order in relation to the person under paragraph (1)(c), inform the person that he or she may, within 15 days after the day on which the order is made, seek a review of the order under section 35.
(4) In the proceedings under this section, the person is not entitled to adduce, and the magistrate or Judge is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an offence in relation to which any indorsed New Zealand warrant was issued.
35 Review of magistrate’s or Judge’s order
(1) Where a magistrate or eligible Federal Circuit Court Judge makes an order under section 34 in relation to a person:
(a) in the case of an order under paragraph 34(1)(c)—the person; or
(b) in the case of an order under subsection 34(2)—New Zealand;
may, within 15 days after the day on which the magistrate or Judge makes the order, apply to the Federal Court for a review of the order.
(2) The Federal Court may, by order:
(a) confirm the order of the magistrate or Judge; or
(b) quash the order of the magistrate or Judge and direct a magistrate or eligible Federal Circuit Court Judge to:
(i) in the case of an order under paragraph 34(1)(c)—order the release of the person; or
(ii) in the case of an order under subsection 34(2)—order, by warrant, that the person be surrendered to New Zealand.
(3) The person or New Zealand, whether or not the person or New Zealand was the applicant for review under subsection (1), may appeal to the Full Court of the Federal Court from the order of the Federal Court.
(4) The person or New Zealand is not entitled to appeal to the Full Court more than 15 days after the day on which the order of the Federal Court is made.
(5) The High Court shall not grant special leave to appeal against the order of the Full Court made on the appeal referred to in subsection (3) if the application for special leave is made more than 15 days after the day on which the order of the Full Court is made.
(6) Where the person or New Zealand:
(a) applies under subsection (1) for a review of an order;
(b) appeals under subsection (3) against an order made on that review; or
(c) appeals to the High Court against an order made on that appeal;
the following provisions have effect:
(d) in the case of an application for review—the court to which the application is made shall review the order by way of rehearing, and may have regard to evidence in addition to or in substitution for the evidence that was before the magistrate or Judge;
(e) in the case of an appeal—the court to which the appeal is made shall have regard only to the material that was before the court that conducted the review;
(f) if, because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has been released, the court to which the application or appeal is made may order the arrest of the person;
(g) if:
(i) because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has not been released; or
(ii) the person has been arrested under an order made under paragraph (f);
the court to which the application or appeal is made may:
(iii) order that the person be kept in such custody as the court directs; or
(iv) if there are special circumstances justifying such a course, order the release on bail of the person;
until the review has been conducted or the appeal has been heard.
36 Temporary surrender warrants
(1) Subject to this section, where:
(a) a surrender warrant has been issued in relation to a person under subsection 34(1) or in compliance with an order of a court under subparagraph 35(2)(b)(ii) (including on any appeal referred to in section 35);
(b) no proceedings are being conducted or available under section 35 in relation to the order set out in the warrant or the order of the court, as the case requires;
(c) the person is serving a sentence or sentences of imprisonment in relation to an offence or offences against a law of Australia;
(d) the offence in relation to which any indorsed New Zealand warrant in relation to the person was issued is an offence of which the person is accused; and
(e) the Attorney‑General is satisfied that:
(i) it is in the interests of the administration of justice that a warrant under this subsection should be issued; and
(ii) New Zealand has given adequate undertakings to the Attorney‑General in relation to:
(A) the trial of the person in New Zealand for any offence referred to in paragraph (d) of which the person is accused;
(B) the return of the person to Australia; and
(C) the custody of the person while travelling to and from, and while in, New Zealand;
subject to subsection (4), the Attorney‑General may issue a warrant under this subsection.
(2) For the purposes of paragraph (1)(c), the person shall be taken not to be serving a sentence of imprisonment if the person has been released on parole or licence, or has been otherwise conditionally released, for the remainder of the sentence.
(3) Where the Attorney‑General issues a warrant under subsection (1), the surrender warrant referred to in paragraph (1)(a) is by force of this subsection cancelled.
(4) Where any offence referred to in paragraph (1)(c) is an offence against the law of a State or the Northern Territory, the Attorney‑General shall not issue the warrant unless:
(a) the Attorney‑General is satisfied that the law of the State or the Northern Territory, as the case may be:
(i) would permit the release of the person for the purpose of surrender to New Zealand under such a warrant; and
(ii) would, if the person were surrendered to New Zealand under such a warrant, permit the time spent by the person in custody in connection with the warrant (including time spent in custody outside Australia) to be counted towards the sentence or sentences in respect of the offence; and
(b) consent to the surrender of the person to New Zealand under such a warrant has been given to the Attorney‑General by:
(i) the appropriate Minister of the Crown of the State;
(ii) the appropriate Minister of the Northern Territory;
as the case requires.
(5) Where, while the person is in New Zealand pursuant to the warrant, the person ceases to be liable to serve the sentence or sentences of imprisonment in Australia referred to in paragraph (1)(c), the Attorney‑General shall inform New Zealand that the undertakings referred to in subparagraph (1)(e)(ii) are no longer required to be complied with.
(6) Where any offence referred to in paragraph (1)(c) is an offence against a law of the Commonwealth or of a Territory (other than the Northern Territory), any time spent by the person in custody in connection with the warrant (including time spent in custody outside Australia) shall be counted as time served towards the sentence or sentences of imprisonment referred to in that paragraph.
37 Surrender warrants after temporary surrender
Where:
(a) a person is surrendered to New Zealand under a temporary surrender warrant;
(b) the person is returned to Australia in pursuance of undertakings referred to in subparagraph 36(1)(e)(ii); and
(c) New Zealand still seeks the surrender of the person;
the Attorney‑General may, in his or her discretion, issue a warrant for the surrender of the person to New Zealand under this section.
38 Form and execution of surrender warrants and temporary surrender warrants
(1) A surrender warrant or a temporary surrender warrant in relation to a person (in this subsection called the eligible person) shall:
(a) authorise the eligible person to be taken into custody, transported in custody and, if necessary or convenient, detained in custody, by any police officer, for the purpose of enabling the eligible person to be placed in the custody of a specified person or a person included in a specified class (in this subsection called the escort officer) and transported out of Australia;
(b) authorise the escort officer to transport the eligible person in custody out of Australia to a place in New Zealand for the purpose of surrendering the eligible person to a person appointed by New Zealand to receive the eligible person; and
(c) be in writing in the statutory form.
(1A) To avoid doubt, subject to this section and subsection 33(3) of the Acts Interpretation Act 1901, a surrender warrant or a temporary surrender remains in force until the eligible person is surrendered, at a place in New Zealand, to a person appointed by New Zealand to receive the eligible person.
(2) Subject to this section, a surrender warrant or a temporary surrender warrant shall be executed according to its tenor.
(3) A surrender warrant issued under paragraph 34(1)(c) shall not be executed while any proceedings under section 35 in relation to the order of the magistrate or Judge set out in the warrant are being conducted or are available.
(4) A surrender warrant issued in compliance with an order of a court under subparagraph 35(2)(b)(ii) shall not be executed while any proceedings under section 35 in relation to the order are being conducted or are available.
(5) Where a surrender warrant is issued in respect of a person:
(a) who is in custody; or
(b) to whom bail has been granted;
in respect of an offence that is alleged to have been committed, or of which the person has been convicted, in Australia, the warrant shall not be executed before the person has been released from custody in respect of that offence or any recognizances on which the person has been granted bail in respect of that offence have been discharged, as the case requires.
(6) For the purposes of subsection (5), a person who is serving a sentence of imprisonment shall be taken not to be in custody if the person has been released on parole or licence, or has been otherwise conditionally released, for the remainder of the sentence.
(7) Where:
(a) a surrender warrant or a temporary surrender warrant is issued in relation to a person;
(b) the person is in custody in Australia under the warrant, or otherwise under this Act, more than 1 month after the day on which the warrant was first liable to be executed;
(c) the person applies to the Federal Court; and
(d) reasonable notice of the intention to make the application has been given to the Attorney‑General;
the Federal Court shall, subject to subsection (8), order that the person be released from that custody.
(8) Where the Federal Court is satisfied that the person has not been conveyed out of Australia under the warrant within the period of 1 month or since the person last made an application under subsection (7), as the case may be:
(a) because to do so would have been dangerous to the life or prejudicial to the health of the person; or
(b) for any other reasonable cause;
the Federal Court shall not order that the person be released from custody.
39 Delivery of property to New Zealand
(1) Where:
(a) property or a thing is seized under section 30 or 31; and
(b) the property or thing:
(i) may be material as evidence in proving an offence in relation to which an indorsed New Zealand warrant or the provisional arrest warrant referred to in that section was issued; or
(ii) has been acquired as a result of such an offence;
the Attorney‑General may, whether or not a surrender warrant or a temporary surrender warrant is issued in respect of the person to whom the warrant referred to in subparagraph (b)(i) relates, direct, by notice in writing, that the property or thing be sent to New Zealand.
(2) A notice given under subsection (1) is not a legislative instrument.
Part IV—Extradition to Australia from Other Countries
40 Requests for surrender of persons to Australia
A request by Australia for the surrender of a person from a country (other than New Zealand) in relation to an offence against a law of Australia of which the person is accused or of which the person has been convicted shall only be made by or with the authority of the Attorney‑General.
41 Surrendered persons to be brought into Australia
Where a person is surrendered to Australia in relation to an offence against a law of Australia of which the person is accused or of which the person has been convicted (whether or not pursuant to a request under section 40), the person shall be brought into Australia and delivered to the appropriate authorities to be dealt with according to law.
42 Speciality
Where an extraditable person in relation to Australia is surrendered to Australia by a country (other than New Zealand), the person shall not, unless he or she has left, or has had the opportunity of leaving, Australia or, in a case where the person was surrendered to Australia for a limited period, has been returned to the country:
(a) be detained or tried in Australia for any offence that is alleged to have been committed, or was committed, before the surrender of the person, other than:
(i) any offence in respect of which the person was surrendered or any other offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the person could be convicted on proof of the conduct constituting any such offence; or
(ii) any other offence in respect of which the country consents to the person being so detained or tried, as the case may be; or
(b) be detained in Australia for the purposes of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the surrender of the person to Australia, other than any other offence in respect of which the country that surrendered the person to Australia consents to the person being so detained and surrendered.
43 Evidence for purposes of surrender of persons to Australia
(1) Where the Attorney‑General suspects that a person is an extraditable person in relation to Australia (whether or not the Attorney‑General knows or suspects the person to be in a particular country or has made a request under section 40 or otherwise in relation to the person), the Attorney‑General may, by notice in writing in the statutory form expressed to be directed to any magistrate or eligible Federal Circuit Court Judge, authorise the taking of evidence for use in any proceedings for the surrender of the person to Australia.
(2) Where the Attorney‑General authorises the taking of evidence under subsection (1), a magistrate or eligible Federal Circuit Court Judge may take the evidence on oath or affirmation of each witness appearing before the magistrate or Judge to give evidence in relation to the matter and the magistrate or Judge shall:
(a) cause the evidence to be reduced to writing and attach a certificate, in the statutory form, in relation to the taking of the evidence; and
(b) cause the writing and the certificate to be sent to the Attorney‑General.
(3) At a proceeding in relation to a person before a magistrate or eligible Federal Circuit Court Judge under this section, a legal or other representative of the person is not entitled to appear.
(4) A notice given under subsection (1) is not a legislative instrument.
44 Persons temporarily surrendered to Australia
(1) Where a person is surrendered by a country to Australia pursuant to an undertaking by the Attorney‑General of Australia in relation to:
(a) the trial of the person in Australia in respect of a particular offence or offences;
(b) the return of the person to the country; and
(c) the custody of the person while travelling to and from, and while in, Australia;
the following provisions have effect:
(d) the person shall, while travelling to and from, and while in, Australia pursuant to the undertaking, be kept in such custody as the Attorney‑General orders in writing;
(e) the person shall not be tried in Australia in respect of any offence or offences other than an offence mentioned in paragraph (a);
(f) the person shall not, under any law of the Commonwealth, a State or a Territory, be subject to any detention that would prevent the person being returned to the country pursuant to the undertaking.
(2) Where:
(a) a person is held in custody in accordance with an order of the Attorney‑General under paragraph (1)(d); and
(b) the country that surrendered the person requests the release of the person from custody;
the Attorney‑General shall order that the person be released from custody.
(3) If the undertaking mentioned in subsection (1) is given in writing, the undertaking is not a legislative instrument.
(4) An order made under paragraph (1)(d) is not a legislative instrument.
(5) If an order under subsection (2) is made in writing, the order is not a legislative instrument.
44A Persons permanently surrendered to Australia
(1) This section applies if:
(a) a person is surrendered by a country to Australia; and
(b) before the person is surrendered to Australia, the Attorney‑General of Australia gives an undertaking to the country:
(i) that life imprisonment will not be imposed on the person; or
(ii) specifying the maximum period of imprisonment that may be imposed on the person;
in the event that the person is found to have committed a particular offence or offences punishable by Australian law.
(2) The person must not, under a law of the Commonwealth, a State or Territory, be sentenced to:
(a) if subparagraph (1)(b)(i) applies—life imprisonment; or
(b) if subparagraph (1)(b)(ii) applies—a period of imprisonment that is more than the period specified in the Attorney‑General’s undertaking.
(3) For an offence that is to be prosecuted in a State or Territory, the Attorney‑General of Australia must, before giving an undertaking, consult with the Attorney‑General of the State or Territory.
(4) If the undertaking mentioned in subsection (1) is given in writing, the undertaking is not a legislative instrument.
(5) To avoid doubt, the undertaking mentioned in subsection (1) must not specify a period that is longer than:
(a) in the event that the person is found to have committed a particular offence—the maximum period of imprisonment that applies to the offence; or
(b) in the event that the person is found to have committed particular offences—the total of each maximum period of imprisonment that applies to each offence.
Part V—Miscellaneous
45 Prosecution of persons instead of extradition
Offence
(1) A person commits an offence if:
(a) a magistrate or eligible Federal Circuit Court Judge in a State or Territory remands the person under section 15; and
(b) the person engaged in conduct outside Australia at an earlier time; and
(c) the conduct, or equivalent conduct, would have constituted an offence (the notional Australian offence) against a law of the Commonwealth, or the State or Territory, if the conduct or equivalent conduct had occurred in the State or Territory at the earlier time.
Note: This subsection creates an offence distinct from the notional Australian offence.
Absolute liability
(2) Absolute liability applies to paragraphs (1)(a) and (b), and to the circumstance in paragraph (1)(c) that the conduct, or equivalent conduct, referred to in that paragraph would have constituted the notional Australian offence if the conduct or equivalent conduct had occurred in the State or Territory at the earlier time.
Note: Paragraph (3)(a) provides for physical and fault elements etc. to apply in determining whether conduct would have constituted the notional Australian offence.
Determining whether conduct would have constituted notional Australian offence
(3) In determining whether the conduct, or equivalent conduct, referred to in paragraph (1)(c) would have constituted the notional Australian offence:
(a) the physical elements and fault elements (however described), if any, that apply in relation to the notional Australian offence have effect; and
(b) any defences or special liability provisions (however described) that apply in relation to the notional Australian offence have effect; and
(c) any procedures or limitations (however described) that apply in relation to the prosecution of the notional Australian offence have effect; and
(d) if the conduct outside Australia consisted of 2 or more acts or omissions, regard may be had to all, some or only one of those acts or omissions.
(3A) Subsection (3) does not limit the Judiciary Act 1903.
Note: Division 1 of Part X, and subsection 79(1), of the Judiciary Act 1903 apply various State or Territory laws in relation to persons charged with offences against Commonwealth laws.
Penalty for offence
(3B) The maximum penalty for an offence against subsection (1) is the maximum penalty that applied to the notional Australian offence at the time the conduct referred to in paragraph (1)(b) was engaged in.
Offence is indictable
(3C) An offence against subsection (1) is an indictable offence.
Attorney‑General’s consent to prosecution of offence
(3D) Proceedings for an offence against subsection (1) must not be commenced without the Attorney‑General’s written consent.
(4) The Attorney‑General shall only give his or her consent under subsection (3D) in relation to the offence if:
(a) an extradition country has sought the surrender of the person in respect of an extradition offence, or offences including an extradition offence, constituted by the conduct referred to in paragraph (1)(b); and
(b) the Attorney‑General has determined under section 15B or 22 that the person is not to be surrendered to the extradition country.
Arresting, charging and remanding person before consent
(5) Notwithstanding that consent has not been given in relation to proceedings for an offence in accordance with subsection (3D):
(a) a person may be arrested for the offence, and a warrant for the arrest of a person for the offence may be issued and executed;
(b) a person may be charged with the offence; and
(c) a person so charged may be remanded in custody or on bail.
Consent is not a legislative instrument
(6) A consent given under subsection (3D) is not a legislative instrument.
45A Federal Circuit Court Judges—consent to nomination
(1) A Judge of the Federal Circuit Court of Australia may, by writing, consent to be nominated by the Attorney‑General under subsection (2).
(2) The Attorney‑General may, by writing, nominate a Judge of the Federal Circuit Court of Australia in relation to whom a consent is in force under subsection (1) to be an eligible Federal Circuit Court Judge for the purposes of this Act.
(3) A nomination under subsection (2) is not a legislative instrument.
45B Magistrates and Federal Circuit Court Judges—personal capacity
(1) A function or power conferred on a magistrate or eligible Federal Circuit Court Judge by this Act is conferred on the magistrate or Judge:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
(2) A magistrate need not accept a function or power conferred.
(3) A magistrate or eligible Federal Circuit Court Judge has, in relation to the performance or exercise of a function or power conferred on the magistrate or Judge by this Act, the same protection and immunity as if he or she were exercising that function or power as, or as a member of, the court of which the magistrate or Judge is a member.
46 Arrangements relating to magistrates
(1) The Governor‑General may:
(a) arrange with the Governor of a State for the performance, by all or any of the persons who from time to time hold office as magistrates of that State, of the functions of a magistrate under this Act; or
(b) arrange with the Chief Minister of the Australian Capital Territory for the performance, by all or any of the persons who from time to time hold office as magistrates of the Australian Capital Territory, of the functions of a magistrate under this Act; or
(c) arrange with the Administrator of the Northern Territory for the performance, by all or any of the persons who from time to time hold office as Judges of the Local Court of the Northern Territory, of the functions of a magistrate under this Act.
(2) A copy of each arrangement made under this section shall be published in the Gazette.
46A Giving notices to magistrates or Judges etc.
Scope
(1) This section applies if:
(a) the Attorney‑General decides to give a notice under subsection 16(1), 16A(2) or 43(1) directed to a magistrate or eligible Federal Circuit Court Judge; or
(b) the Attorney‑General is required to give a notice under subsection 12(3), 15B(4) or 17(1) directing a magistrate or eligible Federal Circuit Court Judge.
Giving the notice to a magistrate or Judge
(2) The notice, or a copy of the notice, may be handed to a magistrate or eligible Federal Circuit Court Judge or sent to a magistrate or eligible Federal Circuit Court Judge by post, fax, email or other electronic means.
When the notice is taken to be given
(3) The notice is taken, for the purposes of this Act, to be given:
(a) if the notice, or a copy of the notice, is handed to a magistrate or eligible Federal Circuit Court Judge—when the notice or copy is handed to the magistrate or Judge; or
(b) if the notice, or a copy of the notice, is sent to a magistrate or eligible Federal Circuit Court Judge by post—at the time at which the notice or copy would be delivered in the ordinary course of post; or
(c) if the notice, or a copy of the notice, is sent to a magistrate or eligible Federal Circuit Court Judge by fax, email or other electronic means—at the time when the notice or copy is sent to the magistrate or Judge.
47 Execution of certain warrants in any part of Australia
An extradition arrest warrant, a provisional arrest warrant or an indorsed New Zealand warrant may be executed in any part of Australia.
48 Transit
(1) Where a country (in this section called the receiving country), being an extradition country or New Zealand, wishes to transport in custody through Australia a person (in this section called the transferee) who is being surrendered to the receiving country by another country, then, subject to subsection (2), the following provisions have effect:
(a) the transferee may be transported in custody through Australia for the purposes of being so surrendered;
(b) where the aircraft or ship that transports the transferee makes a landing or calls at a place in Australia:
(i) the person holding the transferee in custody before the landing or call is made may hold the transferee in custody at the place for a period not exceeding 24 hours;
(ii) any police officer may provide such assistance at the place as is reasonable and necessary to facilitate the transporting of the transferee in custody;
(iii) any magistrate or eligible Federal Circuit Court Judge to whom application is made, in the statutory form, by or on behalf of the receiving country shall issue a warrant ordering a person specified in the warrant to hold the transferee in custody for such period or periods as the magistrate or Judge considers necessary to facilitate the transporting of the transferee;
(iv) the Attorney‑General may, on application by the receiving country, authorise in writing a magistrate or eligible Federal Circuit Court Judge to issue a warrant ordering a person specified in the warrant to hold the transferee in custody for a further specified period in order to facilitate the transporting of the transferee; and
(v) the Attorney‑General may at any time direct any person having custody of the transferee under this paragraph to release the transferee from custody.
(2) The total period or periods of any custody in accordance with subparagraphs (1)(b)(i) and (iii) shall not exceed 96 hours.
(3) An authorisation given under subparagraph (1)(b)(iv) is not a legislative instrument.
(4) If a direction under subparagraph (1)(b)(v) is given in writing, the direction is not a legislative instrument.
49 Arrest of persons escaping from custody
(1) Any police officer may, without warrant, arrest a person, if the police officer has reasonable grounds to believe that the person has escaped from custody authorised by this Act.
(2) The police officer must, as soon as practicable, take the person before a magistrate or eligible Federal Circuit Court Judge.
(3) If the magistrate or Judge is satisfied that the person has escaped from custody authorised by this Act, the magistrate or Judge may issue a warrant authorising any police officer to return the person to the custody referred to in subsection (1).
49A Arrest of person released on bail
(1) Any police officer may, without warrant, arrest a person who has been released on bail under this Act if the police officer has reasonable grounds for believing that the person has contravened, or is about to contravene, a term or condition of a recognizance on which bail was granted to the person.
(2) A person arrested under subsection (1) must, as soon as practicable, be brought before the court by which the person was admitted to bail.
49B Orders for bail to be on terms and conditions court, magistrate or Judge thinks fit
A decision under this Act of a court, magistrate or eligible Federal Circuit Court Judge to remand or release a person on bail may be made on such terms and conditions as the court, magistrate or Judge thinks fit.
49C Availability of bail during judicial review proceedings relating to certain determinations
(1) This section applies if:
(a) the Attorney‑General determines under subsection 15B(2) or 22(2) that a person is to be surrendered to an extradition country in relation to one or more extradition offences; and
(b) the person applies to a court for judicial review of the determination.
(2) The court to which the application is made, or any court hearing an appeal in relation to the determination, may, subject to subsection (3), order the release of the person on bail until the application has been determined or the appeal has been heard (as the case requires).
(3) A court must not release a person on bail under subsection (2) unless there are special circumstances justifying such release.
50 Solicitor‑client relationship in relation to communications
Where communications take place between officers of the Attorney‑General’s Department, on behalf of Australia, and officers of an extradition country or New Zealand, on behalf of that country or New Zealand, in relation to any proceedings or contemplated proceedings for the surrender of a person, there shall be taken, for the purposes of this Act and any other Act, to be a relationship of solicitor and client between the officers of Australia and the officers of the extradition country or New Zealand in relation to those communications.
51 Application of section 38 of the Judiciary Act 1903
A matter arising under an extradition treaty shall, for the purposes of section 38 of the Judiciary Act 1903, be deemed not to be a matter arising directly under a treaty.
52 Evidence of certain matters
A certificate by the Attorney‑General stating that:
(a) Australia or another specified country is a party to a specified treaty;
(b) the treaty entered into force for Australia or that other country, as the case may be, on a specified date; and
(c) as at the date of the certificate, the treaty remains in force for Australia or that other country;
is, for the purposes of any proceedings under this Act, prima facie evidence of the facts stated in the certificate.
53 Conditions of imprisonment
The laws of a State or Territory with respect to:
(a) the conditions of imprisonment of persons imprisoned in that State or Territory to await trial for offences against the law of that State or Territory;
(b) the treatment of such persons during imprisonment; and
(c) the transfer of such persons from prison to prison;
apply, so far as they are capable of application, in relation to persons who have been committed to prison in that State or Territory under this Act.
54 Application of certain Acts
(1) The Removal of Prisoners (Territories) Act 1923 applies, with such modifications (if any) as are set out in the regulations, in relation to a person who has been committed to prison under this Act in a Territory (other than the Northern Territory) in like manner as it applies in relation to a person who has been sentenced to imprisonment in that Territory.
(2) The Removal of Prisoners (Australian Capital Territory) Act 1968 applies, with such modifications (if any) as are set out in the regulations, in relation to a person who has been committed to prison under this Act in the Australian Capital Territory or in the Jervis Bay Territory.
(3) In this section:
modifications includes additions, omissions and substitutions.
54A Collection, use or disclosure of personal information for extradition purposes—the Privacy Act 1988
(1) The collection, use or disclosure of personal information about an individual is taken to be authorised by this Act for the purposes of the Privacy Act 1988 if the collection, use or disclosure is reasonably necessary for the purposes of the extradition of one or more persons to or from Australia, including making, or considering whether to make, an extradition request.
(2) In this section:
personal information has the same meaning as in the Privacy Act 1988.
55 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act;
and, in particular, may make regulations prescribing:
(c) the practice and procedure in relation to the performance by magistrates or eligible Federal Circuit Court Judges of functions under this Act, including:
(i) the remanding of persons either in custody or on bail;
(ii) the summoning of witnesses;
(iii) the production of documents;
(iv) the taking of evidence on oath or affirmation;
(v) the administering of oaths or affirmations;
(vi) the payment of expenses of witnesses; and
(vii) the protection and immunity of barristers and solicitors appearing before magistrates or eligible Federal Circuit Court Judges and of witnesses; and
(d) penalties not exceeding a fine of 20 penalty units for offences against the regulations.
