Extradition in Australia: The 1988 Act, Two-Track Review, and How to Fight a Request

The Extradition Act 1988 (Cth) is Australia’s primary legislation governing international extradition. It establishes two tracks. The treaty track applies where Australia has a bilateral extradition treaty with the requesting state — treaties exist with the United States, United Kingdom, Canada, New Zealand, and many European, Asian, and Pacific states (approximately 35 bilateral treaties plus multilateral arrangements). The non-treaty track allows the Australian government to designate a country by regulation, enabling extradition proceedings even without a formal treaty, provided reciprocity is assured.

The dual criminality requirement is central to both tracks: the conduct alleged must constitute a criminal offence under the law of the relevant Australian state or territory (not only federal law), with a penalty of at least 12 months imprisonment. The requesting state must also satisfy the Australian standard of a prima facie case — evidence sufficient to put a person on trial in Australia. This prima facie standard is more demanding than the UK’s case-record approach for Category 2 countries and has been the basis for successful challenges in Australian Federal Court proceedings.

The process proceeds in stages. An arrest warrant is issued by a magistrate. The magistrate then conducts a review hearing to determine whether the request is formally in order and whether a prima facie case exists. If the magistrate commits the person to await surrender, the matter passes to the Attorney-General of Australia, who has a discretionary power to refuse extradition on grounds including death penalty risk, political offence, persecution risk, and unjust or oppressive consequences. Federal Court review of the Attorney-General’s decision is available on administrative law grounds. The role of an INTERPOL Red Notice in Australian proceedings is similar to the UK: it can support a provisional arrest request pending the formal extradition request.

Australia and New Zealand operate closely aligned extradition systems under a mutual “backing of warrants” arrangement for trans-Tasman extradition that operates separately from the general framework. Both countries have active treaty relationships with the US and UK and have surrendered nationals to both. Canada’s system involves extensive Charter of Rights review, which has in some cases produced different outcomes than comparable Australian proceedings. The general mechanics of international extradition are explained on our services page.

US financial crime requests. The US has an active extradition treaty with Australia and regularly submits requests in financial fraud, cybercrime, and narcotics cases. Australian magistrates have in the past committed individuals on US requests, with the Attorney-General declining only in limited cases involving disability or humanitarian concerns. The prima facie standard has provided some protection, but US federal indictments are typically drafted to satisfy it.

Provisional arrest and bail. A person in Australia subject to a Red Notice may be provisionally arrested and face bail hearings that weigh flight risk heavily — particularly in cases involving foreign nationals with limited ties to Australia. Australian courts have denied bail in high-profile extradition cases where the requesting state’s case appeared strong. Bail appeals to the Federal Court are available.

State law complexity. Dual criminality under Australian law requires the conduct to be an offence under the law of the relevant Australian state or territory, not merely under federal law. Some conduct that constitutes a federal offence in the US may not map precisely to a state criminal offence in Australia, creating a potential dual criminality challenge specific to Australian proceedings.

Human rights assessment. The Attorney-General’s discretionary power includes consideration of whether extradition would be unjust, oppressive, or incompatible with humanitarian considerations. Courts have been reluctant to substitute their judgment for the AG’s on these grounds, but the Federal Court retains administrative law review jurisdiction and has intervened where the AG’s decision process was flawed.

Our team advises individuals facing extradition proceedings in Australia on both the magistrate hearing stage and the Attorney-General decision stage. Key areas of focus include: challenging prima facie evidence where the requesting state’s documentation is insufficient or the offence does not map to Australian law; arguing the political-offence exception where applicable; and preparing submissions for the Attorney-General on humanitarian grounds, death penalty risk, and the disproportionate impact of surrender on dependants in Australia.

Where a Red Notice is active, we pursue a CCF challenge in parallel. A suspended or deleted Notice removes the basis for further INTERPOL-triggered encounters at Australian airports and reduces reputational consequences with Australian financial institutions.

Facing extradition proceedings in Australia or a Red Notice situation in Australia? Contact our team for urgent legal advice.