45Prosecution of persons instead of extradition

#### 45 Prosecution of persons instead of extradition Offence (1) A person commits an offence if: (a) a magistrate or eligible 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.