22Surrender determination by Attorney‑General

#### 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 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 Judge to order the release of the person; or (b) if the person has been released on bail—direct a magistrate or eligible 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.