An Act relating to the Extradition of Criminals to and from Commonwealth Countries.
[Assented to 29 October 1966]
BE it enacted by the Queen’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—
Part I.—Preliminary.
Short title.
This Act may be cited as the Extradition (Commonwealth Countries) Act 1966.
Commencement.
This Act shall come into operation on a date to be fixed by Proclamation.
Parts.
This Act is divided into Parts, as follows:—
Part I.—Preliminary (Sections 1–7).
Part II.—Extradition to and from Declared Commonwealth Countries.
Division 1.—Application of Part (Section 8).
Division 2.—Extradition to Declared Commonwealth Countries (Sections 9–18).
Division 3.—Extradition from Declared Commonwealth Countries (Sections 19–22).
Part III.—Extradition to and from certain Commonwealth Countries neighbouring Australia (Sections 23–30).
Part IV.—Miscellaneous (Sections 31–37).
Interpretation.
4.—(1.) In this Act, unless the contrary intention appears—
“Australia” includes all the Territories of the Commonwealth not forming part of the Commonwealth, including the Territory of Nauru;
“declared Commonwealth country” means a country declared by the regulations to be a Commonwealth country in relation to which Part II. applies;
“extradition crime” means an offence against the law of, or of a part of, a declared Commonwealth country—
(a) the maximum penalty for which is death or imprisonment for not less than twelve months; and
(b) the act or omission constituting which would, if it took place in, or within the jurisdiction of, the part of Australia where the person accused or convicted of the offence is found, constitute an offence against the law in force in that part of Australia that—
(i) is described in the First Schedule to this Act; or
(ii) would be so described if the description concerned contained a reference to any intent or state of mind on the part of the person committing the offence, or to any circumstance of aggravation, necessary to constitute the offence;
“fugitive” means a person accused of an extradition crime that is alleged to have been committed, or convicted of an extradition crime that was committed, at a place in a declared Commonwealth country or within the jurisdiction of, or of a part of, such a country;
(a) a Chief, Stipendiary, Police, Resident or Special Magistrate of a Territory other than the Territory of Nauru;
(b) a Magistrate of the District Court of the Island of Nauru; or
(c) where the Governor-General has made an arrangement with the Governor of a State under section 31 of this Act—a person who holds an office specified in the arrangement;
“overseas warrant” means a judicial or other document issued under the law of, or of a part of, a declared Commonwealth country and authorizing the apprehension of a person, and includes a warrant referred to in section 24 of this Act;
“prison” includes a gaol, lock-up or other place of detention;
“Territory” means a Territory of the Commonwealth and includes the Territory of Nauru.
(2.) A reference in this Act to a fugitive from a declared Commonwealth country shall be read as a reference to a fugitive
accused of an extradition crime that is alleged to have been committed, or convicted of an extradition crime that was committed, at a place in that country or within the jurisdiction of, or of a part of, that country.
(3.) For the purposes of this Act, a person shall be deemed not to have been convicted of an offence against the law of, or of a part of, a declared Commonwealth country where the conviction is, under that law, a conviction for contumacy, but a person so convicted for contumacy shall be deemed to be accused of an offence against that law.
(4.) A reference in this Act to the Supreme Court of a Territory shall, in relation to the Territory of Nauru, be read as a reference to the Central Court of the Island of Nauru constituted by the Judge or an Acting Judge of that Court.
(5.) For the purposes of this Act—
(a) a colony, territory or protectorate of a country other than Australia;
(b) a territory for the international relations of which a country other than Australia is responsible; and
(c) a ship or aircraft of, or registered in, a country other than Australia,
shall, unless the contrary intention appears, each be deemed to be within the jurisdiction, and to be part, of that country.
(6.) The last preceding sub-section does not apply in relation to a colony, territory or protectorate of a declared Commonwealth country or in relation to a territory for the international relations of which a declared Commonwealth country is responsible, if the colony, territory or protectorate is itself a declared Commonwealth country or is a country in relation to which Part III. applies.
Extension to external Territories.
This Act extends to every Territory of the Commonwealth not forming part of the Commonwealth, including the Territory of Nauru.
Exclusion of Fugitive Offenders Act, 1881.
This Act excludes the operation of the Imperial Act known as the Fugitive Offenders Act, 1881.
Saving of warrants in force under Fugitive Offenders Act, 1881.
7.—(1.) Any warrant issued or indorsed in Australia under the Imperial Act known as the Fugitive Offenders Act, 1881 and in force immediately before the commencement of this Act in respect of a fugitive from a declared Commonwealth country has effect as if it had been issued in accordance with the form prescribed for the purposes of Part II. of this Act by a person having
authority under that Part to issue such a warrant, and any proceedings instituted before the commencement of this Act in relation to such a fugitive under that Imperial Act may be continued and dealt with under Part II. of this Act.
(2.) Any warrant issued or indorsed in Australia under the Imperial Act known as the Fugitive Offenders Act, 1881 and in force immediately before the commencement of this Act in respect of a person accused or convicted of an offence against the law in force in a country in relation to which Part III. of this Act applies has effect as if it had been issued or indorsed, as the case may be, in accordance with the form prescribed for the purposes of Part III. of this Act by a person having authority under that Part to issue or indorse such a warrant, and any proceedings instituted before the commencement of this Act in relation to such a person under that Imperial Act may be continued and dealt with under Part III. of this Act.
Part II.—Extradition to and from Declared Commonwealth Countries.
Division 1.—Application of Part.
Application of Part in relation to Commonwealth countries.
8.—(1.) The regulations may declare a country other than Australia that is specified in the regulations to be a Commonwealth country in relation to which this Part applies and, subject to the next succeeding sub-section, where the regulations for the time being in force so declare, this Part applies in relation to that country.
(2.) The regulations may provide that this Part applies in relation to a declared Commonwealth country subject to such limitations, conditions, exceptions or qualifications as are specified in the regulations and, where the regulations for the time being in force so provide, this Part applies in relation to that country subject to those limitations, conditions, exceptions or qualifications.
Division 2.—Extradition to Declared Commonwealth Countries.
Liability of fugitive to be surrendered.
Every fugitive from a declared Commonwealth country is liable, subject to this Part and to any limitations, conditions, exceptions or qualifications to which the application of this Part in relation to that country is subject, to be apprehended and surrendered to that country as provided by this Part and is so liable whether the offence to which the requisition for the surrender of the fugitive relates is alleged to have been committed, or was committed, before or after the commencement of this Act or before or after the time when that country became a declared Commonwealth country.
Restrictions on surrender of persons to Commonwealth countries.
10.—(1.) A person is not liable to be surrendered to a declared Commonwealth country if the offence to which the requisition for his surrender relates is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character.
(2.) For the purposes of the last preceding sub-section, an offence against the law of a declared Commonwealth country may be regarded as being an offence of a political character notwithstanding that there are not competing political parties in that country.
(3.) A person who is held in custody, or has been admitted to bail, in Australia in respect of an offence that is alleged to have been committed in Australia, or is undergoing a sentence for a conviction in Australia, is not liable to be surrendered to a declared Commonwealth country until he has been discharged from custody, or the recognizances upon which he was admitted to bail have been discharged, as the case may be, whether as a result of his acquittal, on the expiration of his sentence or otherwise.
(4.) A person is not liable to be surrendered to a declared Commonwealth country in respect of an offence if he has been acquitted or pardoned by a competent tribunal or authority in any country, or has undergone the punishment provided by the law of, or of a part of, any country, in respect of that offence or of another offence constituted by the same act or omission as that offence.
Restrictions on power of Attorney-General to authorize the apprehension, or order the surrender, of a fugitive.
11.—(1.) The Attorney-General shall not give a notice under sub-section (1.) of the next succeeding section, or issue a warrant under sub-section (2.) of section 17 of this Act, in respect of a fugitive from a declared Commonwealth country if the Attorney-General has substantial grounds for believing that—
(a) the requisition for the surrender of the fugitive, although purporting to have been made in respect of an offence for which, but for this section, he would be liable to be surrendered to that country, was made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or
(b) if the fugitive is surrendered to that country, he may be prejudiced at his trial, or punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality or political opinions.
(2.) If the Attorney-General is satisfied that, by reason of—
(a) the trivial nature of the offence that a fugitive is alleged to have committed or has committed;
(b) the accusation against a fugitive not having been made in good faith or in the interests of justice; or
(c) the passage of time since the offence is alleged to have been committed or was committed,
and having regard to the circumstances under which the offence is alleged to have been committed or was committed, it would be unjust, oppressive or too severe a punishment to surrender the fugitive, or to surrender him before the expiration of a particular period, the Attorney-General shall not issue a warrant under sub-section (2.) of section 17 of this Act in respect of the fugitive, or shall not issue such a warrant before the expiration of that period, as the case may be.
(3.) The Attorney-General shall not issue a warrant under sub-section (2.) of section 17 of this Act in respect of a fugitive from a declared Commonwealth country unless provision is made by the law of that country, or that country has entered into an agreement with, or given an undertaking to, the Commonwealth, by virtue of which the fugitive will not, unless he has been returned, or has had an opportunity of returning, to Australia—
(a) be detained or tried in that country for any offence that is alleged to have been committed, or was committed, before his surrender other than—
(i) the offence to which the requisition for his surrender relates or any other offence of which he could be convicted upon proof of the facts on which that requisition was based; or
(ii) any other extradition crime in respect of which the Attorney-General consents to his being so detained or tried, as the case may be; or
(b) be detained in that country for the purpose of his being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before his surrender to the first-mentioned country other than—
(i) an offence of which he could be convicted upon proof of the facts on which the requisition referred to in the last preceding paragraph was based; or
(ii) any other offence in respect of which the Attorney-General could issue a warrant (whether under this Act or under the Extradition (Foreign States) Act 1966) for his surrender to that other country and in respect of which the Attorney-General consents to his being so detained.
Notices by Attorney General.
12.—(1.) Subject to the next succeeding sub-section, where a requisition for the surrender of a fugitive who is, or is suspected of being, in or on his way to Australia is made to the Attorney-General by a declared Commonwealth country, the Attorney-General shall—
(a) if a warrant for the apprehension of the fugitive has not been issued under section 14 of this Act—by notice in writing in accordance with Form 1 in the Second Schedule to this Act and directed to a Magistrate, inform the Magistrate that the requisition has been made and authorize him to issue a warrant for the apprehension of the fugitive; or
(b) if a warrant for the apprehension of the fugitive has been issued under section 14 of this Act and a person has been apprehended under the warrant—by notice in writing in accordance with Form 2 in the Second Schedule to this Act and directed to a Magistrate before whom the person may be brought, inform the Magistrate that the requisition has been made.
(2.) If the Attorney-General is of the opinion that the fugitive is not liable to be surrendered to the country, he shall not give a notice under the last preceding sub-section in respect of the fugitive.
Priority of requisitions.
13.—(1.) Where requisitions are received by the Attorney-General from two or more declared Commonwealth countries for the surrender of the one fugitive, the Attorney-General shall determine to which of those countries the fugitive is to be surrendered and may refuse to surrender the fugitive to the other country or countries.
(2.) In making a determination under the last preceding sub-section, the Attorney-General shall have regard to all the circumstances and, in particular, to—
(a) the relative seriousness of the offences to which the requisitions relate;
(b) the respective dates on which the requisitions were made; and
(c) the citizenship or nationality, and the ordinary place of residence, of the fugitive.
Issue of warrants.
14.—(1.) Where—
(a) a Magistrate is authorized by the Attorney-General by a notice under paragraph (a) of sub-section (1.) of section 12 of this Act to issue a warrant for the apprehension of a fugitive; or
(b) an application is made as prescribed to a Magistrate for the issue of a warrant for the apprehension of a fugitive who is, or is suspected of being, in or on his way to Australia,
and there is produced to the Magistrate such evidence as would, in his opinion, according to the law in force in the State or Territory of which he is a Magistrate, justify—
(c) the apprehension of the fugitive by a member of the Police Force of that State or Territory without the issue of a warrant; or
(d) the issue of a warrant for the apprehension of the fugitive, if the act or omission constituting the extradition crime had taken place in, or within the jurisdiction of, that State or Territory, the Magistrate shall issue a warrant for the apprehension of the fugitive in accordance with Form 3 or Form 4, as the case may be, in the Second Schedule to this Act.
(2.) A warrant issued under this section may be executed in any State or Territory.
(3.) Where a Magistrate issues a warrant under this section without having been authorized by the Attorney-General by a notice under paragraph (a) of sub-section (1.) of section 12 of this Act to issue the warrant, the Magistrate shall forthwith send to the Attorney-General a report stating that he has issued the warrant and the evidence produced to him on the application for the warrant.
(4.) It is a sufficient compliance with the last preceding sub-section in relation to any evidence consisting of testimony given on oath, or declared or affirmed to be true, by a person if—
(a) where the testimony was given in writing—the Magistrate sends to the Attorney-General a copy of that writing certified by him to be a true copy; or
(b) where the testimony was given orally—
(i) if the testimony has been reduced to writing—the Magistrate sends to the Attorney-General that writing certified by him to be a true record of the testimony; or
(ii) if the testimony has not been reduced to writing—the Magistrate sends to the Attorney-General the notes made by the Magistrate in respect of the testimony and certified by him to be a true summary of the testimony.
(5.) Where the Attorney-General—
(a) receives a report of the issue of a warrant and the evidence as provided by the last two preceding sub-sections; or
(b) otherwise becomes aware of the issue of such a warrant, he may, if he thinks fit, by order in writing, direct that the warrant be cancelled.
(6.) Where a person has been apprehended under a warrant that is so directed to be cancelled—
(a) if the person is held in custody—the person holding him in custody shall, upon receipt of the order, cause him to be released; or
(b) if he has been admitted to bail—the recognizances upon which he was admitted to bail are, by force of this sub-section, discharged.
Proceedings after apprehension of person.
15.—(1.) A person who is apprehended under a warrant issued in pursuance of the last preceding section shall, unless he is sooner released, be brought as soon as practicable before a Magistrate in the State or Territory in which he is apprehended.
(2.) A Magistrate may remand a person brought before him under this section, either in custody or on bail, for a period or periods not exceeding seven days at any one time and, where a Magistrate remands a person for such a period, the person may, at the expiration of the period, be brought before that Magistrate or before any other Magistrate.
(3.) In the application of the succeeding sub-sections of this section in relation to a person who has been apprehended under a warrant issued in pursuance of the last preceding section, the expression “the Magistrate” means the Magistrate before whom the person is brought after he was apprehended or at the expiration of a period for which he has been remanded under this section, as the case may be.
(4.) If the person was apprehended under a warrant issued otherwise than in pursuance of an authority by the Attorney-General in a notice under paragraph (a) of sub-section (1.) of section 12 of this Act, the Magistrate shall remand the person in accordance with sub-section (2.) of this section until the Magistrate receives a notice under paragraph (b) of sub-section (1.) of section 12 of this Act from the Attorney-General informing the Magistrate that a requisition for the surrender of the person has been made to the Attorney-General by a declared Commonwealth country.
(5.) Where the Magistrate does not receive such a notice within such time as is reasonable having regard to all the circumstances, the Magistrate shall—
(a) if the person apprehended is held in custody—order that he be released; or
(b) if he has been admitted to bail—make an order discharging the recognizances upon which he was admitted to bail.
(6.) If the person was apprehended under a warrant issued in pursuance of an authority by the Attorney-General in a notice under paragraph (a) of sub-section (1.) of section 12 of this Act or the Magistrate receives a notice by the Attorney-General under paragraph (b) of that sub-section and—
(a) there is produced to the Magistrate a duly authenticated overseas warrant in respect of the person issued in the declared Commonwealth country that made the requisition for the surrender of the person;
(b) there is produced to the Magistrate—
(i) in the case of a person who is accused of an extradition crime—such evidence as would, in the opinion of the Magistrate, according to the law in force in the State or Territory of which he is a Magistrate, justify the committal for trial of the person if the act or omission constituting that crime had taken place in, or within the jurisdiction of, that State or Territory; or
(ii) in the case of a person who is alleged to have been convicted of an extradition crime—sufficient evidence to satisfy the Magistrate that the person has been convicted of that crime; and
(c) the Magistrate is satisfied, after hearing any evidence tendered by the person, that the person is liable to be surrendered to the declared Commonwealth country that made the requisition for the surrender,
the Magistrate shall, by warrant in accordance with Form 5 in the Second Schedule to this Act, commit the person to prison to await the warrant of the Attorney-General for his surrender but otherwise shall order that the person be released.
(7.) Where the Magistrate is of the opinion that it would be dangerous to the life or prejudicial to the health of the person to commit him to prison, he may, in lieu of committing him to prison, by warrant, order that he be held in custody at the place where he is for the time being, or at any other place to which the Magistrate considers that he can be removed without danger to his life or prejudice to his health, until such time as he can without such danger or prejudice be committed to prison or he is surrendered and, in such a case, the warrant shall be in accordance with Form 5 in the Second Schedule to this Act with such variations as are necessary to meet the circumstances of the case.
(8.) Where, in pursuance of this section, a Magistrate commits a person to prison or otherwise orders that he be held in custody, he shall forthwith send to the Attorney-General a certificate to that effect and such report, if any, relating to the proceedings as he thinks fit.
Power of Magistrate or court to release, or postpone surrender of, person.
If a Magistrate before whom a person is brought in pursuance of the last preceding section, or a court to which the person has applied for a writ of habeas corpus, is satisfied that, by reason of—
(a) the trivial nature of the offence that the person is alleged to have committed or has committed;
(b) the accusation against the person not having been made in good faith or in the interests of justice; or
(c) the passage of time since the offence is alleged to have been committed or was committed,
and having regard to the circumstances under which the offence is alleged to have been committed or was committed, it would be unjust, oppressive or too severe a punishment to surrender the person to a declared Commonwealth country, or to surrender him before the expiration of a particular period, the Magistrate or court may—
(d) order that the person be released;
(e) order that the person be surrendered after the expiration of a period specified in the order and order his release on bail until the expiration of that period; or
(f) make such other order as he or it thinks just.
Surrender of fugitive to Commonwealth country.
17.—(1.) When, in pursuance of this Part, a Magistrate commits a person (in this section referred to as “the prisoner”) to prison, or otherwise orders that he be held in custody, to await the warrant of the Attorney-General for his surrender to a declared Commonwealth country, the Magistrate shall inform the prisoner that he will not be surrendered until after the expiration of the period of fifteen days from the date of the committal or order and that, if he asserts that his detention is unlawful, he may apply to a court of competent jurisdiction for a writ of habeas corpus.
(2.) After—
(a) the expiration of the period referred to in the last preceding sub-section; or
(b) if, within that period, an application for a writ of habeas corpus is made by the prisoner and the court to which the application is made or, where an appeal is brought from the decision of that court to another court, the other court does not order that the prisoner be released—the expiration of the period of fifteen days from the date of the decision of the first-mentioned court or the appellate court, as the case may be,
whichever is the later, the Attorney-General shall, if he is satisfied that the prisoner is liable to be surrendered to the declared Commonwealth country, by warrant in accordance with Form 6 in the Second Schedule to this Act or, where the prisoner is held in
custody otherwise than at a prison, in accordance with that Form with such variations as are necessary to meet the circumstances of the case, order that the prisoner be delivered into the custody of a person specified in the warrant and be conveyed by that person to a place in that country or within the jurisdiction of, or of a part of, that country and there surrendered to some person appointed by that country to receive him.
(3.) A warrant issued in pursuance of the last preceding sub-section may be executed according to its tenor.
(4.) If the prisoner escapes from the custody of the person executing the warrant in or to a State or Territory, he may be retaken in the same manner as a person accused of an offence against the law in force in that State or Territory may be retaken upon an escape from lawful custody.
(5.) Any property in the possession of the prisoner at the time of his apprehension that may be material as evidence in proving the offence to which the requisition for his surrender relates shall, if the Attorney-General by instrument in writing so directs, be delivered up with the prisoner on his surrender.
Discharge of fugitive who is not conveyed out of Australia within two months.
Where a person who, in pursuance of this Part, has been committed to prison, or otherwise ordered to be held in custody, is in custody in Australia at the expiration of two months after—
(a) the date of the committal or order; or
(b) if an application for a writ of habeas corpus has been made by the person—the date of the decision of the court to which the application was made or, where an appeal has been brought from that decision to another court, the date of the decision of the other court,
whichever is the later, the Supreme Court of the State or Territory in which the person is held in custody, upon application made to it by the person and upon proof that reasonable notice of the intention to make the application has been given to the Attorney-General, shall, unless reasonable cause is shown for the delay, order that the person be released.
Division 3.—Extradition from Declared Commonwealth Countries.
Definition.
In this Part, “extraditable crime” means an offence (wherever committed) against the law in force in Australia or in a part of Australia the maximum penalty for which is death or imprisonment for a period of not less than twelve months, being an offence that—
(a) is described in the First Schedule to this Act; or
(b) would be so described if the description concerned contained a reference to any intent or state of mind on
the part of the person committing the offence, or to any circumstance of aggravation, necessary to constitute the offence.
Requisition to Commonwealth country for surrender of person to be made by Attorney-General.
Where a person accused or convicted of an extraditable crime is, or is suspected of being, in or on his way to a declared Commonwealth country or within the jurisdiction of, or of a part of, such a country, the Attorney-General may make a requisition to that country for the surrender of the person.
Person surrendered may be brought into Australia.
Where a person accused or convicted of an extraditable crime is surrendered by a declared Commonwealth country, the person may be brought into Australia and delivered to the proper authorities to be dealt with according to law.
Person surrendered by Commonwealth country in respect of an offence not to be prosecuted or detained for other offences.
Where a person accused or convicted of an extraditable crime is surrendered by a declared Commonwealth country, the person shall not, unless he has been returned, or has had an opportunity of returning, to that country—
(a) be detained or tried in Australia for any offence that is alleged to have been committed, or was committed, before his surrender other than—
(i) the offence to which the requisition for his surrender relates or any other offence of which he could be convicted upon proof of the facts on which that requisition was based; or
(ii) any other extraditable crime in respect of which that country consents to his being so detained or tried, as the case may be; or
(b) be detained in Australia for the purpose of his being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before his surrender to Australia other than—
(i) an offence of which he could be convicted upon proof of the facts on which the requisition referred to in the last preceding paragraph was based; or
(ii) any other offence in respect of which the country by which he was surrendered to Australia consents to his being so detained.
Part III.—Extradition to and from certain Commonwealth Countries neighbouring Australia.
Countries in relation to which Part III. applies.
This Part applies in relation to New Zealand, the Colony of Fiji, the Gilbert and Ellice Islands Colony and the British Solomon Islands Protectorate.
Indorsement of warrants.
24.—(1.) Where a court, a Judge, a Magistrate or an officer of a court in a country in relation to which this Part applies has issued a warrant for the apprehension of a person accused or convicted of an offence against the law of that country and the person is, or is suspected of being, in or on his way to Australia, a Magistrate may, if the warrant is duly authenticated, make an indorsement on the warrant in accordance with Form 7 in the Second Schedule to this Act authorizing the execution of the warrant in Australia.
(2.) A warrant so indorsed is sufficient authority to the person bringing the warrant, to all other persons to whom the warrant is directed and to all Commonwealth Police Officers and all members of the Police Force of any State or Territory to execute the warrant in any State or Territory in accordance with this Part.
Issue of warrants.
A Magistrate may, if a warrant referred to in the last preceding section authorizing the apprehension of a person is not produced to him or he requires further information or proof before indorsing such a warrant, issue a warrant in accordance with Form 8 in the Second Schedule to this Act for the apprehension of the person upon such information and under such circumstances as, in his opinion, justify the issue of the warrant.
Proceedings after apprehension or person.
26.—(1.) A person who is apprehended under a warrant referred to in section 24 of this Act or under a warrant issued in pursuance of the last preceding section shall be brought as soon as practicable before a Magistrate in the State or Territory in which he is apprehended.
(2.) A Magistrate may remand a person brought before him under this section, either in custody or on bail, for a period or periods not exceeding seven days at any one time and, where a Magistrate remands a person for such a period, the person may, at the expiration of the period, be brought before that Magistrate or before any other Magistrate.
(3.) In the application of the succeeding sub-sections of this section in relation to a person who has been apprehended under a warrant referred to in section 24 of this Act or under a warrant issued in pursuance of the last preceding section, the expression “the Magistrate” means the Magistrate before whom the person is brought after he was apprehended or at the expiration of a period for which he has been remanded under this section, as the case may be.
(4.) Where the person was apprehended under a warrant issued in pursuance of the last preceding section and the warrant referred to in section 24 of this Act authorizing the apprehension of the person has not been indorsed, the Magistrate may, and shall if a reasonable time has elapsed for the indorsement of the warrant—
(a) if the person apprehended is held in custody—order that he be released; or
(b) if he has been admitted to bail—make an order discharging the recognizances upon which he was admitted to bail.
(5.) Where—
(a) the person was apprehended under a warrant referred to in section 24 of this Act; or
(b) the person was apprehended under a warrant issued in pursuance of the last preceding section and the warrant referred to in section 24 of this Act authorizing the apprehension of the person has been indorsed,
the Magistrate shall, subject to the next succeeding section, by warrant in accordance with Form 9 in the Second Schedule to this Act, order the person to be surrendered to the country in which the warrant referred to in section 24 of this Act was issued and, for that purpose, to be delivered into the custody of the person bringing that warrant or of any other person to whom that warrant was directed.
(6.) Where the Magistrate is of the opinion that it would be dangerous to the life or prejudicial to the health of the person to surrender him to the country referred to in the last preceding sub-section, he may, in lieu of ordering that he be surrendered to that country, by warrant, order that he be held in custody at the place where he is for the time being, or at any other place to which the Magistrate considers that he can be removed without danger to his life or prejudice to his health, until such time as he can without such danger or prejudice be surrendered to that country and, in such a case, the warrant shall be in accordance with Form 9 in the Second Schedule to this Act with such variations as are necessary to meet the circumstances of the case.
(7.) A warrant issued in pursuance of either of the last two preceding sub-sections may be executed according to its tenor.
(8.) If the person so ordered to be surrendered escapes from the custody of the person executing the warrant in or to a State or Territory, he may be retaken in the same manner as a person accused of an offence against the law in force in that State or Territory may be retaken upon an escape from lawful custody.
(9.) Any property in the possession of the person so ordered to be surrendered at the time of his apprehension that may be material as evidence in proving the offence for which he is being surrendered shall, if the Magistrate so directs, be delivered up with the person on his surrender.
Restriction on power of Magistrate to order surrender of person.
If a Magistrate before whom a person is brought under this Part, is satisfied that, by reason of—
(a) the trivial nature of the offence that the person is alleged to have committed or has committed;
(b) the accusation against the person not having been made in good faith or in the interests of justice; or
(c) the passage of time since the offence is alleged to have been committed or was committed,
and having regard to the circumstances under which the offence is alleged to have been committed or was committed, it would be unjust, oppressive or too severe a punishment to surrender the person to a country in relation to which this Part applies, or to surrender him before the expiration of a particular period, the Magistrate may—
(d) order that the person be released;
(e) order that the person be surrendered after the expiration of a period specified in the order and order his release on bail until the expiration of that period; or
(f) make such other order as he thinks just.
Review of order of Magistrate.
28.—(1.) Where—
(a) a person apprehended is dissatisfied with an order made under sub-section (5.) or sub-section (6.) of section 26 of this Act or under the last preceding section; or
(b) a Magistrate has made, under sub-section (6.) of section 26 of this Act or under the last preceding section, an order for the release of an apprehended person, or an order for the surrender or admittance to bail of such a person under the terms of which the person is not, or may not be, required to be surrendered to a country in relation to which this Part applies within three months after the date of the order,
the apprehended person or the person bringing the warrant, as the case requires, may apply to the Supreme Court of the State or Territory in which the person was apprehended for a review of the order, and the Court may review the order.
(2.) The Court to which an application is made for the review of an order may—
(a) order the release on bail of the apprehended person on such terms and conditions as the Court thinks fit; or
(b) direct that the apprehended person be kept in such custody as the Court directs in the State or Territory in which the person was apprehended until the order has been reviewed.
(3.) The review of the order shall be by way of rehearing, and evidence in addition to, or in substitution for, the evidence given on the making of the order may be given on or in connexion with the review.
(4.) For the purposes of a review under this section, a copy of a public document or of a document filed in a Department or office of the Commonwealth or of a State or Territory, certified to
be a tree copy of the document by the person purporting by the certificate to have charge of the document, is admissible as evidence of the facts stated in the copy.
(5.) Upon the review of an order, the Court may confirm or vary the order, or quash the order and substitute a new order in its stead.
(6.) The order as confirmed or varied, or the substituted order, shall be executed according to its tenor as if it had been made by the Magistrate.
Discharge of person who is not conveyed out of Australia within one month.
Where a person who, in pursuance of this Part, has been ordered to be surrendered to a country in relation to which this Part applies is in custody in Australia at the expiration of one month after—
(a) the date of the order; or
(b) if the order was made by a Magistrate and an application for a review of the order has been made—the date of the decision of the court on the review or, where an appeal has been brought from that decision to another court, the date of the decision of the other court,
whichever is the later, the Supreme Court of the State or Territory in which the person is held in custody, upon application made to it by the person and upon proof that reasonable notice of the intention to make the application has been given to the person holding him in custody, shall, unless reasonable cause is shown for the delay, order that the person so held in custody be released.
Persons surrendered from a country in relation to which this Part applies.
Where a person accused or convicted of an offence (wherever committed) against the law in force in Australia or in a part of Australia is surrendered by a country in relation to which this Part applies, the person may be delivered to the proper authorities to be dealt with according to law.
Part IV.—Miscellaneous.
Arrangements between Governor-General and Governors of States.
31.—(1.) The Governor-General may arrange with the Governor of a State for the performance by all or any of the persons who from time to time hold office as Chief, Stipendiary, Police, Resident or Special Magistrates of that State of the functions of a Magistrate under this Act.
(2.) A copy of each arrangement made under this section shall be published in the Gazette.
Jurisdiction of Courts.
32.—(1.) The Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred upon the Supreme Court of each Territory, to hear and determine applications under sections 16, 18, 28 and 29 of this Act.
(2.) The jurisdiction with which the Supreme Court of a State is invested by this section is subject to the conditions and restrictions specified in paragraphs (a), (b) and (c) of sub-section (2.) of section 39 of the Judiciary Act 1903–1966.
(3.) The jurisdiction of a Court for the purposes of this section may be exercised by the Court constituted by a single Judge.
Overseas documents may be admitted in evidence if duly authenticated.
33.—(1.) In a proceeding under this Act—
(a) a document, duly authenticated, that purports to set out testimony given on oath, or declared or affirmed to be true, by a person in a proceeding in a declared Commonwealth country is admissible as evidence of the matters stated in the testimony;
(b) a document, duly authenticated, that purports to have been received in evidence, or to be a copy of a document that has been received in evidence, in a proceeding in a declared Commonwealth country is admissible in evidence;
(c) a document, duly authenticated, that certifies that a person was convicted on a date specified in the document of an offence against the law of, or of a part of, a declared Commonwealth country is admissible as evidence of the fact and date of the conviction; and
(d) a document, duly authenticated, that purports to be an overseas warrant is admissible in evidence.
(2.) A document is duly authenticated for the purpose of being admitted in evidence in a proceeding under this Act if—
(a) in the case of a document that purports to set out testimony given, declared or affirmed by a person in a proceeding in a declared Commonwealth country—the document purports to be certified by a Judge, Magistrate or officer in or of that country to be the original document containing or recording that testimony or a true copy of that original document;
(b) in the case of a document that purports to have been received in evidence, or to be a copy of a document that has been received in evidence, in a proceeding in a declared Commonwealth country—the document purports to be certified by a Judge, Magistrate or officer in or of that country to have been, or to be a true copy of a document that has been, so received in evidence;
(c) in the case of a document that certifies that a person has been convicted in a declared Commonwealth country of an offence—the document purports to be certified by a Judge, Magistrate or officer in or of that country; or
(d) in the case of a document that purports to be an overseas warrant—the document purports to be signed by a Judge, Magistrate or officer in or of the country in which the document was issued,
and the document purports to be authenticated by the oath of a witness or to be sealed with the official seal of a Minister of State in or of that country.
(3.) Nothing in this section prevents the proof of any matter, or the admission in evidence of any document, in accordance with any other law of the Commonwealth or any law of a State or Territory.
Conditions of imprisonment.
The laws of a State or Territory with respect to—
(a) the conditions of imprisonment of persons imprisoned in that State or Territory to await trial for offences against the law of that State or Territory;
(b) the treatment of such persons during imprisonment; and
(c) the transfer of such persons from prison to prison,
apply, so far as they are capable of application, in relation to persons who have been committed to prison in that State or Territory in pursuance of this Act.
Application of Removal of Prisoners (Territories) Act.
The Removal of Prisoners (Territories) Act 1923–1962 applies, with such modifications and adaptations, if any, as are prescribed, to and in relation to a person who has been committed to prison in pursuance of this Act by a Chief, Stipendiary, Police, Resident or Special Magistrate of a Territory in like manner as it applies to and in relation to a person who has been sentenced to imprisonment in that Territory.
Forms need not be strictly complied with.
Strict compliance with the forms in the Second Schedule to this Act is not required and substantial compliance is sufficient.
Regulations.
The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act, and, in particular—
(a) prescribing the practice and procedure in relation to the performance by Magistrates of functions under this Act, including the remanding of persons either in custody or on bail, the summoning of witnesses, the production of documents, the taking of evidence on oath or affirmation, the administering of oaths or affirmations, the payment of expenses of witnesses and the protection and immunity of Magistrates, of barristers and solicitors appearing before Magistrates and of witnesses; and
(b) prescribing penalties not exceeding a fine of Five hundred dollars for offences gainst the regulations.
THE SCHEDULES
——
FIRST SCHEDULE Sections 4 and 19.
1. Wilful murder; murder.
2. Manslaughter.
3. An offence against the law relating to abortion.
4. Maliciously or wilfully wounding or inflicting grievous bodily harm.
5. Assault occasioning actual bodily harm.
6. Rape.
7. Unlawful sexual intercourse with a female.
8. Indecent assault.
9. Procuring, or trafficking in, women or young persons for immoral purposes.
10. Bigamy.
11. Kidnapping; abduction; false imprisonment; dealing in slaves.
12. Stealing, abandoning, exposing or unlawfully detaining a child.
13. Bribery.
14. Perjury; subornation of perjury; conspiring to defeat the course of justice.
15. Arson.
16. An offence concerning counterfeit currency.
17. An offence against the law relating to forgery.
18. Stealing; embezzlement; fraudulent conversion; fraudulent false accounting; obtaining property or credit by false pretences; receiving stolen property; any other offence in respect of property involving fraud.
19. Burglar; housebreaking; any similar offence.
20. Robbery.
21. Blackmail or extortion by means of threats or by abuse of authority.
22. An offence against the law relating to bankruptcy or insolvency.
23. An offence against the law relating to companies.
24. Maliciously or wilfully damaging property.
25. An act done with the intention of endangering a vehicle, vessel or aircraft.
26. An offence against the law relating to dangerous drugs or narcotics.
27. Piracy.
28. Revolt against the authority of the master of a ship or the commander of an aircraft.
29. Contravention of a prohibition on the importation or exportation of precious stones, gold or other precious metals.
30. Aiding, abetting, counselling or procuring the commission of, being an accessory before or after the fact to, or attempting or conspiring to commit, an offence described in a preceding paragraph of this Schedule.
SECOND SCHEDULE
Form 1 Section 12.
COMMONWEALTH OF AUSTRALIA
Extradition (Commonwealth Countries) Act 1966
Notice by Attorney-General
To , a Chief [Stipendiary, Police, Resident or Special] Magistrate of the State of , being a person who holds an office specified in an arrangement made under section 31 of the Extradition (Commonwealth Countries) Act 1966.
or
To , a Chief [Stipendiary, Police, Resident or Special] Magistrate of the Territory of [or a Magistrate of the District Court of the Island of Nauru].
Whereas a requisition has been made to me, the Attorney-General of the Commonwealth, by , a declared Commonwealth country for the purposes of the Extradition (Commonwealth Countries) Act 1966, for the surrender of (in this Notice referred to as “the said fugitive”), who is accused [or has been convicted] of the offence of alleged to have been committed [or committed] in [or within the jurisdiction of] and is, or is suspected of being, in or on his way to Australia or a Territory of the Commonwealth:
Now therefore I, the Attorney-General of the Commonwealth, inform you that the said requisition has been made and authorize you to issue a warrant for the apprehension of the said fugitive provided that the provisions of the Extradition (Commonwealth Countries) Act 1966 relating to the issue of such a warrant have, in your opinion, been complied with.
Given under my hand at this day of , 19 .
———
Form 2 Section 12.
COMMONWEALTH OF AUSTRALIA
Extradition (Commonwealth Countries) Act 1966
Notice by Attorney-General
To , a Chief [Stipendiary, Police, Resident or Special] Magistrate of the State of , being a person who holds an office specified in an arrangement made under section 31 of the Extradition (Commonwealth Countries) Act 1966.
or
To , a Chief [Stipendiary, Police, Resident or Special] Magistrate of the Territory of [or a Magistrate of the District Court of the Island of Nauru].
I, the Attorney-General of the Commonwealth, hereby inform you that a requisition has been made to me by , a declared Commonwealth country for the purposes of the Extradition (Commonwealth Countries) Act 1966, for the surrender of , who is accused [or has been convicted] of the offence of alleged to have been committed [or committed] in [or within the jurisdiction of]
Given under my hand at this day of , 19 .
Second Schedule—continued
Form 3 Section 14.
COMMONWEALTH OF AUSTRALIA
Extradition (Commonwealth Countries) Act 1966
Warrant of Apprehension
To all Commonwealth Police Officers and all members of the Police Forces of the States and Territories of the Commonwealth.
Whereas the Attorney-General of the Commonwealth has notified me, a Chief [Stipendiary, Police, Resident or Special] Magistrate of the State of , being a person who holds an office specified in an arrangement made under section 31 of the Extradition (Commonwealth Countries) Act 1966, that a requisition has been made to him for the surrender of (in this Warrant referred to as “the said fugitive”), who is accused [or has been convicted] of the offence of alleged to have been committed [or committed] in [or within the jurisdiction of] and is, or is suspected of being, in or on his way to Australia or a Territory of the Commonwealth:
or
Whereas the Attorney-General of the Commonwealth has notified me, a Chief [Stipendiary, Police, Resident or Special] Magistrate of the Territory of [or a Magistrate of the District Court of the Island of Nauru], that a requisition has been made to him for the surrender of (in this Warrant referred to as “the said fugitive”), who is accused [or has been convicted] of the offence of alleged to have been committed [or committed] in [or within the jurisdiction of] and is, or is suspected of being, in or on his way to Australia or a Territory of the Commonwealth:
This is therefore to authorize and command you forthwith to find the said fugitive in any State or Territory of the Commonwealth and, having found him, to apprehend him and, if he is apprehended in a State, to bring him before any Chief, Stipendiary, Police, Resident or Special Magistrate of that State who holds an office specified in an arrangement made under section 31 of the Extradition (Commonwealth Countries) Act 1966, or, if he is apprehended in a Territory of the Commonwealth, to bring him before any Chief, Stipendiary, Police, Resident or Special Magistrate of that Territory or, in the case of the Territory of Nauru, before a Magistrate of the District Court of the Island of Nauru, to show cause why he should not be surrendered to in pursuance of the Extradition (Commonwealth Countries) Act 1966.
Given under my hand at this day of , 19 .
Second Schedule—continued
Form 4 Section 14.
COMMONWEALTH OF AUSTRALIA
Extradition (Commonwealth Countries) Act 1966
Warrant of Apprehension
To all Commonwealth Police Officers and all members of the Police Forces of the States and Territories of the Commonwealth.
Whereas it has been shown to me, a Chief [Stipendiary, Police, Resident or Special] Magistrate of the State of , being a person who holds an office specified in an arrangement made under section 31 of the Extradition (Commonwealth Countries) Act 1966, that (in this Warrant referred to as “the said fugitive”) is accused [or has been convicted] of the offence of alleged to have been committed [or committed] in [or within the jurisdiction of] and the said fugitive is, or is suspected of being, in or on his way to Australia or a Territory of the Commonwealth:
or
Whereas it has been shown to me, a Chief [Stipendiary, Police, Resident or Special] Magistrate of the Territory of [or a Magistrate of the District Court of the Island of Nauru], that (in this Warrant referred to as “the said fugitive”) is accused [or has been convicted] of the offence of alleged to have been committed [or committed] in [or within the jurisdiction of] and the said fugitive is, or is suspected of being, in or on his way to Australia or a Territory of the Commonwealth:
This is therefore to authorize and command you forthwith to find the said fugitive in any State or Territory of the Commonwealth and, having found him, to apprehend him and, if he is apprehended in a State, to bring him before any Chief, Stipendiary, Police, Resident or Special Magistrate of that State who holds an office specified in an arrangement made under section 31 of the Extradition (Commonwealth Countries) Act 1966, or, if he is apprehended in a Territory of the Commonwealth, to bring him before any Chief, Stipendiary, Police, Resident or Special Magistrate of that Territory or, in the case of the Territory of Nauru, before a Magistrate of the District Court of the Island of Nauru, to be further dealt with according to law.
Given under my hand at this day of , 19 .
Second Schedule—continued
Form 5 Section 15.
COMMONWEALTH OF AUSTRALIA
Extradition (Commonwealth Countries) Act 1966
Warrant of Commitment
To all Commonwealth Police Officers in the State [or Territory] of and all members of the Police Force of that State [or Territory] and to the Keeper of the Prison at in that State [or Territory].
Whereas on this day of 19 , (in this Warrant referred to as “the said fugitive”) has been brought before me, a Chief [Stipendiary, Police, Resident or Special] Magistrate of the State of , being a person who holds an office specified in an arrangement made under section 31 of the Extradition (Commonwealth Countries) Act 1966, to show cause why he should not be surrendered in pursuance of the Extradition (Commonwealth Countries) Act 1966 on the ground of his being accused [or having been convicted] of the offence of alleged to have been committed [or committed] in [or within the jurisdiction of] :
or
Whereas on this day of , 19 , (in this Warrant referred to as “the said fugitive”) has been brought before me, a Chief [Stipendiary, Police, Resident or Special] Magistrate of the Territory of [or a Magistrate of the District Court of the Island of Nauru], to show cause why he should not be surrendered in pursuance of the Extradition (Commonwealth Countries) Act 1966 on the ground of his being accused [or having been convicted] of the offence of alleged to have been committed [or committed] in [or within the jurisdiction of] :
And whereas no sufficient cause has been shown to me why the said fugitive should not be surrendered in pursuance of the Extradition (Commonwealth Countries) Act 1966:
This is therefore to authorize and command—
(a) you, the said police officers, to convey the said fugitive to the prison at in the State [or Territory] of and deliver him there to the Keeper of the said prison together with this warrant: and
(b) you, the said Keeper, to receive the said fugitive into your custody in the said prison and there safely to keep him until he is delivered therefrom in accordance with law.
Given under my hand at this day of , 19 .
———
Form 6 Section 17
COMMONWEALTH OF AUSTRALIA
Extradition (Commonwealth Countries) Act 1966
Warrant for Surrender of Fugitive
To the Keeper of the Prison at and to
Whereas (in this Warrant referred to as “the said fugitive”) who is accused [or has been convicted] of the offence of alleged to have been committed [or committed] in [or within the jurisdiction of] was delivered into the custody of you the said Keeper by warrant dated the day of , 19 , in pursuance of the Extradition (Commonwealth Countries) Act 1966 [or the Removal of Prisoners (Territories) Act 1923–1962]:
Now therefore I, the Attorney-General of the Commonwealth, in pursuance of the Extradition (Commonwealth Countries) Act 1966, order—
(a) you, the said Keeper, to deliver the said fugitive into the custody of the said ; and
(a) you, the said , to receive the said fugitive into your custody and to convey him to a place in or within the jurisdiction of and there surrender him to some person appointed to receive him.
Given under my hand at this day of , 19 .
Second Schedule—continued
Form 7 Section 24.
COMMONWEALTH OF AUSTRALIA
Extradition (Commonwealth Countries) Act 1966
Indorsement on Warrant
Image unavailable in extracted textState or Territory of
to wit.
Whereas I, a Chief [Stipendiary, Police, Resident or Special] Magistrate of the State of , being a person who holds an office specified in an arrangement made under section 31 of the Extradition (Commonwealth Countries) Act 1966, am satisfied that the within warrant is duly authenticated for the purposes of the Extradition (Commonwealth Countries) Act 1966:
or
Whereas I, a Chief [Stipendiary, Police, Resident or Special] Magistrate of the Territory of [or a Magistrate of the District Court of the Island of Nauru], am satisfied that the within warrant is duly authenticated for the purposes of the Extradition (Commonwealth Countries) Act 1966:
This is therefore to authorize and command who brings me this warrant, all other persons to whom this warrant is directed and all Commonwealth Police Officers and all members of the Police Forces of the States and Territories of the Commonwealth to find the said in any State or Territory of the Commonwealth and, having found him, to apprehend him and, if he is apprehended in a State, to bring him before any Chief, Stipendiary, Police, Resident or Special Magistrate of that State who holds an office specified in an arrangement made under section 31 of the Extradition (Commonwealth Countries) Act 1966, or, if he is apprehended in a Territory of the Commonwealth, to bring him before any Chief, Stipendiary, Police, Resident or Special Magistrate of that Territory or, in the case of the Territory of Nauru, before a Magistrate of the District Court of the Island of Nauru, to be further dealt with according to law.
Given under my hand at this day of , 19 .
____
Form 8 Section 25.
COMMONWEALTH OF AUSTRALIA
Extradition (Commonwealth Countries) Act 1966
Warrant of Apprehension
To all Commonwealth Police Officers and all members of the Police Forces of the States and Territories of the Commonwealth.
Whereas [here specify the information and circumstances justifying the issue of the warrant]:
This is therefore to authorize and command you forthwith to find in any State or Territory of the Commonwealth and, having found him, to apprehend him and, if he is apprehended in a State, to bring him before any Chief, Stipendiary, Police, Resident or Special Magistrate of that State who holds an office specified in an arrangement made under section 31 of the Extradition (Commonwealth Countries) Act 1966, or, if he is apprehended in a Territory of the Commonwealth, to bring him before any Chief, Stipendiary, Police, Resident or Special Magistrate of that Territory or, in the case of the Territory of Nauru, before a Magistrate of the District Court of the Island of Nauru, to be further dealt with according to law.
Given under my hand at this day of , 19 .
Second Schedule—continued
Form 9 Section 26.
COMMONWEALTH OF AUSTRALIA
Extradition (Commonwealth Countries) Act 1966
Warrant for Surrender of Person
To
Whereas has been apprehended under a warrant indorsed in pursuance of section 24 of the Extradition (Commonwealth Countries) Act 1966 for an offence alleged to have been committed [or committed] against the law of :
or
Whereas has been apprehended under a warrant issued in pursuance of section 25 of the Extradition (Commonwealth Countries) Act 1966 and a warrant for his apprehension for an offence against the law of has been indorsed in pursuance of section 24 of the Extradition (Commonwealth Countries) Act 1966:
Now therefore I, a Chief [Stipendiary, Police, Resident or Special] Magistrate of the State of , being a person who holds an office specified in an arrangement made under section 31 of the Extradition (Commonwealth Countries) Act 1966 order that be surrendered to and, for that purpose, be delivered into the custody of you the said .
or
Now therefore I, a Chief [Stipendiary, Police, Resident or Special] Magistrate of the Territory of [or a Magistrate of the District Court of the Island of Nauru], order that be surrendered to and, for that purpose, be delivered into the custody of you the said .