Published on 24 March 2006.

24 March 2006: Submission to the Australian Attorney-General's Department on the Extradition and Mutual Assistance Review

The Australian Law Reform Commission (ALRC) makes the following submission to the Attorney-General’s Department extradition and mutual assistance review.

For the information of the Department, the ALRC would like to highlight the relevant recommendations made in our report The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation (2001, ALRC 92), in relation to original and appellate jurisdiction in matters arising under the Extradition Act 1988 (Cth). The report is available online at <www.alrc.gov.au>.

In Chapter 20, the ALRC notes that, under international law, extradition is regarded as a matter of comity rather than obligation, and therefore depends upon the existence of a treaty or reciprocal agreements. The application of Australian extradition law has the potential to raise international sensitivities (eg, the need to pass judgment on whether there is an objection to extradition based on the political nature of the offence in question, or the likelihood that the person may be prejudiced in the foreign country by reason of his or her race, religion, nationality or political opinions).

Extradition is a field in which foreign countries are entitled to expect Australian courts to speak with one voice. Although the allocation of jurisdiction to state magistrates is not necessarily antithetical to that objective, in the ALRC’s opinion such an arrangement makes it more difficult to achieve—the more widely dispersed the jurisdiction, the less frequently it will be exercised in a particular court, and the greater the difficulty of developing expertise and maintaining uniformity.

Consequently, the ALRC recommends that federal legislation be amended to provide that original and appellate jurisdiction in matters arising under the Extradition Act 1988 (Cth) be conferred exclusively on federal courts. In particular, jurisdiction to make orders determining a person’s eligibility for surrender should be conferred on the Federal Magistrates Court of Australia (FMC).

This would be consistent with the use of the FMC as a lower tier federal court able to deal with less complex matters of federal jurisdiction. The ALRC also recommends that jurisdiction to review orders of a federal magistrate should be conferred on the Federal Court of Australia, and jurisdiction to hear an appeal from such a review should be conferred on a Full Court of the Federal Court. (See Recommendation 20–2.)

The ALRC is aware of the workload and resource constraints of the FMC, but notes that the extradition jurisdiction is not too onerous. For example, in 2004–05 there were only 15 new extradition requests made to Australia. As noted in the Department’s Federal Civil Justice System Strategy Paper, changes in the size and workload of the federal courts needs to occur incrementally. The addition of the small number of extradition matters to the FMC’s current jurisdiction would be consistent with this approach.

Further, the general federal law jurisdiction of the FMC is expanding and the number of Federal Magistrates is growing. The FMC’s 2004–05 Annual Report notes that, whereas in previous years more than 80 per cent of the judicial resources of the Court were allocated to family law matters, the general federal law jurisdiction now accounts for over 30 per cent of the FMC’s judicial resources, while the number of federal magistrates has increased to 31, compared with 23 at the same time in the previous year.