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While not strictly an international law matter, extradition law has international law aspects and draws upon an understanding not only of Australia's extradition laws but upon foreign law, international law and administrative law concepts. It is both a multi-disciplinary area of law and a field of its own.
Diaspora Legal advises and provides representation in defence of extradition proceedings.
There are four stages to extradition proceedings under the Extradition Act 1988 (Cth).
Proceedings for the determination of eligibility are the third stage of the extradition process—that is determination by a magistrate or eligible Federal Circuit Court Judge under section 19 whether the Respondent is eligible for surrender. Such proceedings do not determine whether the Respondent will in fact be surrendered to Samoa; that determination is at the discretion of the Attorney-General at the fourth stage.
A magistrate’s functions under the Act are administrative not judicial. A magistrate exercising power under the Act does so in a personal capacity, not as a member of the Court.
Magistrates of Queensland may perform the functions of a magistrate under the Act by virtue of section 46(1) and the definition of ‘magistrate’ in section 5. Subparagraph 46(1)(a) allows the Governor-General of Australia to enter into arrangements with the governor of a state for the performance of functions of a magistrate under the Act. Section 5 defines a magistrate as a person for whom an arrangement is in force under section 46. The Governor-General of Australia and the Governor of Queensland have made an arrangement that all persons who hold office as magistrates of Queensland can perform the functions of magistrate under the Act.
As the magistrate is sitting in a personal capacity in the exercise of administrative powers under the Act, the rules of evidence and the Evidence Act 1995 (Cth) do not apply.
Principles of administrative law govern a magistrate’s exercise of powers under the Act.
The functions of a magistrate in section 19 proceedings are limited, as noted by the High Court in Director of Public Prosecutions (Commonwealth) v Kainhofer (1995) 185 CLR 528 at 537, as follows:
A s 19 magistrate must be satisfied that the conditions of jurisdiction prescribed by sub-s(1) are satisfied. Then consideration must be given to the compliance of the supporting documents with the requirements of sub-s(2)(a) and (b). The character of “the conduct of the person constituting the offence … or equivalent conduct” must be ascertained under sub- s(2)(c). And, finally, the magistrate must decide whether the person has shown any substantial grounds for believing that there is an extradition objection in relation to the offence: sub-s(2)(d). The term “extradition objection” is defined by s 7.
In determining eligibility for surrender the magistrate is confined to considering the matters specified in sections 19(1) and (2) and cannot have regard to other matters falling outside the ambit of those sections.
A magistrate is neither required nor permitted to consider or determine the validity or appropriateness of prior findings or decisions under the Act.
In particular, a magistrate has no power to review:
(a) whether the person is an ‘extraditable person’ as defined in section 6;
(b) the validity of the decision of the magistrate who issued the section 12 extradition arrest warrant;
(c) the validity of the decision to make an order of remand under section 15; and
(d) the validity of the decision to give a notice under section 16.
Rather, a magistrate must proceed on the basis that if the order of remand under section 15 and the section 16 notice are not invalid on their face, the person is an extraditable person and the orders are valid.
The extradition process in Australia involves no consideration or determination within Australia of whether the person whose extradition has been requested by a foreign country is guilty or innocent of the extradition offence10. Extradition is an administrative process undertaken for the purpose of enabling the foreign country to undertake that determination.11
Section 19(5) of the Act provides:
In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate 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.
The magistrate must proceed to determine whether the requirements of section 19(2) are met once satisfied of the existence of the conditions precedent in section 19(1). It is not the function of the magistrate to determine whether any other provision of the Act is satisfied.
Section 19(1) stipulates four conditions precedent which if satisfied obliges the magistrate to conduct proceedings to determine eligibility for surrender. It provides:
(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.
Section 19(2) provides that a person is only eligible for surrender if four conditions are satisfied:
(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 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 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.Extradition (Republic of Indonesia) Regulations