19Determination of eligibility for surrender

#### 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 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 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.