Introduction and purpose:
Some more background …
The U.S. indictment (containing their version of the facts) of Dan Dugan is here.
Mr. Duggan’s citizenship status is an issue …
https://mediacore-live-production.akamaized.net/audio/01/va/Z/ui.mp3
24:34 to about 27:10 – begins talking about U.S. citizenship relinquishment in January 26, 2012. He gets the certificate in 2016. U.S. claiming that he is a citizen until gets a CLN.
https://www.listennotes.com/podcast-clips/notorious-04-from-top-gun-to-wanted-man-P24udWMzkDw/
https://audio.listennotes.com/e/p/a72a45e1cc694f65876a5706e9418203/
The case of Dan Duggan continues. His case involves many issues. An excellent summary and analysis appeared on July 22, 2025 in an article by Paul Degrorie – an Australian based journalist.
One of the issues is whether Mr. Duggan was a U.S. citizen at the time of alleged offenses.
Australia has a number of “international crime” agreements. A partial description of what they are and how they work is here. The purpose of this post is to consolidate the 1974 Australian U.S. extradition treaty and the 1997 protocol to have the provisions in one place. Extradition is complicated. Changes in the law of one country can affect whether the extradition may apply. For example, here is a situation where a chnage in Mexico’s laws impacts whether the U.S. has rights of extradition under the U.S. Mexico extradition treaty.
Consolidation of the 1974 U.S./Australian Extradition Treaty with 1974 original treaty and 1997 protocol included:
Note: See Appendix C for a description of HOW the United States interprets the treaty.
________________________________________________________________________-
The parts of the 1974 treaty that have been deleted appear with a line drawn through them.
The parts of the 1997 protocol that are new appear in italics.
The parts that are unaffected remain the same.
TREATY ON EXTRADITION BETWEEN AUSTRALIA AND THE UNITED STATES OF AMERICA
AUSTRALIA AND THE UNITED STATES OF AMERICA, desiring to make more effective the cooperation of the two countries for the reciprocal extradition of offenders, agree as follows:
Article I
Each Contracting Party agrees, under the conditions and circumstances established by this Treaty, reciprocally to deliver up persons found in its territory who have been charged with or convicted of any of the offences mentioned in Article II of this Treaty committed within the territory of the other Contracting Party, or outside that territory under the conditions specified in Article IV of this Treaty.
Article II
The text of Article II of the Treaty is replaced by the following:
“(1) An offence shall be an extraditable offence if it is punishable under the laws in both Contracting Parties by deprivation of liberty of more than one year, or by a more severe penalty. However, if the request for extradition relates to a person convicted of such an offence who is wanted for the enforcement of a sentence of imprisonment, the executive authority of the requested State shall have authority to refuse extradition if a period of less than six months of imprisonment remains to be served.
(2) The following offences shall be extraditable if they meet the requirements of paragraph (1): conspiring to commit, attempting to commit, aiding or abetting, counselling or procuring the commission of, or being an accessory after the fact to, any offence described in that paragraph.
(3) For the purpose of this Article, an offence shall be an extraditable offence:
(a) whether or not the laws in the Contracting Parties place the offence within the same category of offences or describe the offence by the same terminology; and
(b) whether or not the offence is one for which United States federal law requires proof of interstate transportation, or use of the mails, or of other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a United States federal court.
(4) If the offence has been committed outside the territory of the requesting State, extradition shall be granted if the laws in the requested State provide for the punishment of an offence committed outside of its territory in similar circumstances. If the laws in the requested State do not so provide, the executive authority of the requested State may, in its discretion, grant extradition.
(5) Subject to the laws in the requested State, if extradition has been granted for an extraditable offence, it shall also be granted for any other offence specified in the request even if the latter offence is punishable by deprivation of liberty of one year or less, provided that all the other requirements of extradition are met.”
(1) Persons shall be delivered up according to the provisions of this Treaty for any of the following offences provided these offences are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year or by death:
1. Murder or willful murder; assault with intent to commit murder.
2. Manslaughter.
3. Aggravated or willful wounding or injuring; assault occasioning actual bodily harm.
4. Unlawful throwing or application of any corrosive or injurious substances upon the person of another.
5. Rape; indecent assault, including unlawful sexual acts with or upon children.
6. Illegal abortion.
7. Procuring, or trafficking in, women or young persons for immoral purposes; living on the earnings of prostitution.
8. Abandoning or exposing a child when the life of that child is or is likely to be injured or endangered.
9. Bigamy.
10. Kidnapping; child stealing; abduction; false imprisonment.
11. Robbery.
12. Burglary; housebreaking or any similar offence.
13. Larceny.
14. Embezzlement.
15. Obtaining any property, money or valuable securities by false pretences or other form of deception.
16. An offence against the law relating to bribery.
17. Extortion.
18. Receiving any property, money or valuable securities knowing the same to have been unlawfully obtained.
19. Fraud by an agent, bailee, banker, factor or trustee, by a director or officer of a company or by a promoter of a company, whether existing or not.
20. An offence relating to counterfeiting or forgery.
21. Perjury; subornation of perjury; conspiring to defeat the course of justice.
22. Arson.
23. An act done with the intention of endangering the safety of any person travelling upon a railway or in any aircraft or vessel or other means of transportation.
24. Any seizure or exercise of control, by force or violence or threat of force or violence, or by any other form of intimidation, of an aircraft.
25. Piracy, by statute or by law of nations; revolt on board a vessel against the authority of the master of the vessel.
26. Malicious injury to property.
27. An offence against the bankruptcy laws.
28. An offence against the laws relating to narcotics, dangerous drugs or psychotropic substances.
29. Dealing in slaves.
(2) Extradition shall also be granted for any other offences that are made extraditable under the extradition laws of Australia and which are felonies under the laws of the United States of America.
(3) Extradition shall also be granted for any offence against a federal law of the United States of America of which one of the above-mentioned offences is a substantial element, even if transporting or transportation or the use of the mails or of interstate facilities is also an element of the specific offence.
(4) Extradition shall also be granted for aiding, abetting, counselling or procuring the commission of, being an accessory before or after the fact to, or attempting or conspiring to commit, any of the offences mentioned in the preceding paragraphs of this Article.
(5) If extradition is requested for any offence mentioned in a preceding paragraph of this Article and that offence is punishable under the laws of both Contracting Parties by a term of imprisonment exceeding one year or by death, that offence shall be extraditable under the provisions of this Treaty whether or not the laws of both Contracting Parties would place that offence within the same category of offences made extraditable by that preceding paragraph of this Article and whether or not the laws of the requested State denominate the offence by the same terminology.
Article III
(1) For the purposes of this Treaty, the territory of a Contracting Party means all the territory under the jurisdiction of that Contracting Party, including airspace and territorial waters, and also includes –
(a) any vessel registered in any territory under the jurisdiction of that Contracting Party; and
(b) any aircraft registered in any such territory provided that the aircraft is in flight when the relevant offence is committed.
(2) For the purposes of this Treaty –
(a) the territory under the jurisdiction of a Contracting Party includes the Territories for the international relations of which that Contracting Party is responsible;
(b) an aircraft shall be considered in flight from the moment when the power is applied for the purpose of take-off until the moment when the landing run ends.
Article IV
When the offence for which extradition has been requested has been committed outside the territory of the requesting State –
(a) if the United States of America is the requested State – the executive authority of the United States of America; or
(b) if Australia is the requested State – the Attorney-General of Australia,
shall have the power to grant the extradition if the laws of the requested State provide for jurisdiction over such an offence committed in similar circumstances.
Article V
(1) Neither of the Contracting Parties shall be bound to deliver up its own nationals under this Treaty but the executive authority of each Contracting Party shall have the power to deliver them up if, in its discretion, it considers that it is proper to do so.
(2) For the purposes of this Article –
(a) a reference to the executive authority of a Contracting Party shall, in the case of Australia, be construed as a reference to the Attorney-General of Australia;
(b) Australian protected persons shall be deemed to be nationals of Australia; and
(c) the nationality of a person shall be determined to be that which he held at the time when he was charged with the offence for which his extradition is requested.
Article VI
Extradition shall be granted only if the evidence is found sufficient, according to the laws in the territory where the person whose extradition is requested is found, either to justify his trial or committal for trail if the offence with which he is charged or its equivalent had been committed in that territory or to prove that he is the identical person convicted by the courts of the requesting State.
Article VII
(1) Extradition shall not be granted in any of the following circumstances:
(a) when the person whose extradition is requested is being proceeded against, has been tried and discharged or punished, or has been pardoned, in the territory of the requested State for the offence for which his extradition is requested;
(b) when the prosecution for the offence has become barred by lapse of time according to the laws of the requesting State; or
(c) when the offence in respect of which extradition is requested is of a political character, or the person whose extradition is requested proves that the extradition request has been made for the purpose of trying or punishing him for an offence of a political character.
(2) If any question arises whether a case comes within the provisions of subparagraph (c) of paragraph (1) of this Article, the requested State shall decide that question.
Article VIII
The text of Article VIII of the Treaty is replaced by the following:
“If, under the law of the requesting State, an offence for which the extradition of a person is requested is subject to a penalty of death, the requested State may refuse the extradition unless the requesting State gives an undertaking that the death penalty will not be imposed or, if imposed, will not be carried out.”
If, under the law of the requesting State, an offence for which the extradition of a person is requested, or any other offence for which he may be detained or tried under paragraph (1) of Article XIV, is subject to a penalty of death but the law of the requested State does not provide for such a penalty in a similar case, the requested State may recommend to the requesting State that any punishment imposed for any of those offences be a less severe punishment.
Article IX
The text of Article IX of the Treaty is replaced by the following:
“(1) If the extradition request is granted in the case of a person who is being prosecuted or is serving a sentence in the territory of the requested State, the requested State may temporarily surrender the person sought to the requesting State for the purpose of prosecution. The person so surrendered shall be kept in custody in the requesting State and shall be returned to the requested State after the conclusion of the proceedings against that person, in accordance with conditions to be mutually determined in writing between the Contracting Parties.
(2) The requested State may postpone the extradition proceedings against, or the surrender of, any person who is being prosecuted or who is serving a sentence in that State. The postponement may continue until the prosecution of the person sought has been concluded and any sentence has been served.”
When the person whose extradition is requested is being proceeded against or is serving a sentence in the territory of the requested State for an offence other than that for which extradition has been requested, his surrender may be deferred until the conclusion of the proceedings and the full execution of any punishment that may be or may have been imposed on him.
Article X
The determination that extradition based upon the request therefor should or should not be granted shall be made in accordance with the law of the requested State and the person whose extradition is sought shall have the right to use such remedies and recourses as are provided by that law.
Article XI
The text of Article XI of the Treaty is replaced by the following:
“(1) All requests for extradition shall be made through the diplomatic channel.
(2) The request for extradition shall be supported by:
(a) documents, statements, or other types of information which describe the identity and probable location of the person sought;
(b) a description of the conduct constituting the offence;
(c) a statement of the law describing the essential elements of the offence for which extradition is requested; and
(d) a statement of the law describing the punishment for the offence and the law relating to the limitation of legal proceedings.
(3) A request for the extradition of a person who is sought for prosecution or who has been found guilty in his absence shall also be supported by:
(a) a copy of the warrant or order of arrest issued in the requesting State for the arrest of the person for the offence;
(b) a copy of the charging document, if any; and
(c) a description of the facts, by way of affidavit, statement, or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it.
(4) A request for extradition of a person who has been found guilty of the offence for which extradition is sought, other than a person who has been found guilty in his absence, shall also be supported by:
(a) a copy of the judgment of conviction, if available, or a statement by a judicial authority that the person has been found guilty;
(b) information establishing that the person sought is the person to whom the finding of guilt refers;
(c) a copy of the sentence imposed, if the person has been sentenced, and a statement establishing to what extent the sentence has been carried out; and
(d) if the person has been found guilty but no sentence has been imposed, a statement affirming that it is intended to impose a sentence.
(5) The documents which accompany an extradition request shall be received and admitted as evidence in extradition proceedings if:
(a) in the case of a request from the United States, they
(i) purport to be signed or certified by a judge, magistrate, or officer in or of the United States; and
(ii) purport to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal of the requesting State or of a Minister of State, or of a Department or officer of the Government of the requesting State;
(b) in the case of a request from Australia, they are certified by the principal diplomatic or consular officer of the United States resident in Australia, as provided by the extradition laws of the United States; or
(c) they are certified or authenticated in any other manner accepted by the law of the requested State.”
(1) The request for extradition shall be made through the diplomatic channel.
(2) The request shall be accompanied by a description of the person sought, a statement of the facts of the case, the text of the applicable laws of the requesting State including the law defining the offence, the law prescribing the punishment for the offence and the law relating to the limitation of the legal proceedings.
(3) When the request relates to a person who has not yet been convicted, it must also be accompanied by a warrant of arrest issued by a judge or other judicial officer of the requesting State and by such evidence as, according to the laws of the requested State, would justify his trial or committal for trial if the offence had been committed there, including evidence proving the person requested is the person to whom the warrant of arrest refers.
(4) When the request relates to a person already convicted, it must be accompanied by the judgment of conviction and sentence, if any, passed upon him in the territory of the requesting State, by a statement, if applicable, showing how much of the sentence has not been served and by evidence proving that the person requested is the person to whom the judgment refers.
(5) The warrant of arrest and deposition or other evidence, given under oath or affirmed, and judicial documents establishing the existence of the conviction, or certified copies of those documents, shall be admitted in evidence in the examination of the request for extradition when –
(a) in the case of a request by Australia – those documents or certified copies bear the signature, or are accompanied by the attestation, of a judge, magistrate or officer of Australia or are authenticated by the official seal of the Attorney-General and, in any case, are certified by the principal diplomatic or consular officer of the United States of America in Australia; or
(b) in the case of a request by the United States of America – the warrant, if any, bears on original signature, or the other documents are certified, by a judge, magistrate or officer of the United States of America and, in any case, are authenticated by the oath of a witness or sealed with the official seal of the Department of State on behalf of the Secretary of State or of the Department of Justice on behalf of the Attorney General.
Article XII
The text of Article XII of the Treaty is replaced by the following:
“(1) In case of urgency, either Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Department of Justice in the United States and the Attorney-General’s Department in Australia. The facilities of the International Criminal Police Organisation (Interpol) may be used to transmit such a request.
(2) The application for provisional arrest shall contain:
(a) a description of the person sought;
(b) the location of the person sought, if known;
(c) a brief statement of the facts of the case, including, if possible, the time and location of the offence;
(d) a description of the laws violated or alleged to have been violated and, where applicable, the penalty which may be imposed;
(e) a statement of the existence of a warrant of arrest or finding of guilt or judgment of conviction against the person sought; and
(f) a statement that a request for the extradition of the person sought will follow.
(3) On receipt of the application, the requested State shall take appropriate steps to secure the arrest of the person sought. The requesting State shall be notified without delay of the disposition of its application and the reasons for any denial.
(4) A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of arrest pursuant to the application of the requesting State if the executive authority of the requested State has not received the formal request for extradition and the supporting documents required in Article XI.
(5) The fact that the person sought has been discharged from custody pursuant to paragraph (4) of this Article shall not prejudice the subsequent rearrest and extradition of that person if the extradition request and supporting documents are received at a later date.”
(1) In the case of urgency a Contracting Party may apply for the provisional arrest of the person sought pending the presentation of the request for extradition through the diplomatic channel.
(2) The application shall contain a description of the person sought, an indication of intention to request the extradition of the person sought and a statement of the existence of a warrant of arrest or a judgment of conviction against that person, and such further information, if any, as would be necessary to justify the issue of a warrant of arrest had the offence been committed, or the person sought been convicted, in the territory of the requested State.
(3) On receipt of such an application the requested State shall take the necessary steps to secure the arrest of the person claimed.
(4) A person arrested upon such an application shall be set at liberty upon the expiration of forty-five days from the date of his arrest if a request for his extradition accompanied by the documents specified in Article XI has not been received.
(5) Paragraph (4) of this Article shall not prevent the institution of proceedings with a view to extraditing the person sought if the request is subsequently received.
Article XIII
(1) If the requested State requires additional evidence or information to enable it to decide on the request for extradition, that State may request that such evidence or information be furnished within such period as it specifies.
(2) If the person sought is under arrest and the additional evidence or information submitted as aforesaid is not sufficient or if such evidence or information is not received within the period specified by the requested State, he shall be discharged from custody.
(3) The discharge of a person from custody under paragraph (2) of this Article shall not bar the requesting State from submitting another request in respect of the same offence.
“(4) If the person sought, after being personally advised by the competent authority of the requested State of his right to formal extradition proceedings, consents to surrender to the requesting State, the requested State may surrender the person as expeditiously as possible and without further proceedings.”
Article XIV
The text of Article XIV of the Treaty is replaced by the following:
“(1) A person extradited under this Treaty may not be detained, tried, or punished in the requesting State except for:
(a) the offence for which extradition is granted or any other offence of which the person could be convicted on proof of the conduct constituting the extradition offence provided that the offence carries the same or a lesser punishment;
(b) any offence committed after the extradition; or
(c) any offence for which the executive authority of the requested State consents to the person’s detention, trial or punishment. For the purposes of this subparagraph, the requested State may require the submission of the documents specified in Article XI.
(2) A person extradited under this Treaty by a Contracting Party may not be extradited to a third State for an offence committed prior to his surrender unless that Contracting Party consents.
(3) Paragraphs (1) and (2) of this Article shall not prevent the detention, trial, or punishment of an extradited person, or the extradition of that person to a third State, if:
(a) that person leaves the territory of the requesting State after extradition and voluntarily returns to it; or
(b) that person does not leave the territory of the requesting State within fifteen days of the day on which the person is free to do so.”
(1) A person extradited under this Treaty may be detained, tried or punished in the territory of the requesting State for any offence mentioned in Article II for which the person could be convicted upon proof of the facts upon which the request for extradition was based.
(2) Except as provided in to paragraph (1) of this Article, a person extradited under this Treaty shall not be detained, tried or punished in the territory of the requesting State for an offence other than that for which extradition has been granted, or be extradited by that State to a third State, unless –
(a) he has left the territory of the requesting State after his extradition and has voluntarily returned to it;
(b) he has not left the territory of the requesting State within thirty days after being free to do so; or
(c) the offence concerned is one for which the requested State has consented to his detention, trial or punishment or to his extradition to a third State and is an offence mentioned in Article II.
(3) A request for the consent of the requested State under subparagraph (c) of paragraph (2) of this Article shall be accompanied by such information and documents as are requested by that State.
(4) This Article does not apply to offences committed after the extradition.
Article XV
The text of Article XV of the Treaty is replaced by the following:
“If the requested State receives requests from the other Contracting Party and from any other State or States for the extradition of the same person, either for the same offence or for a different offence, the executive authority of the requested State shall determine to which State it will surrender the person. In making its decision, the requested State shall consider all relevant factors, including not limited to:
(a) whether the requests were made pursuant to treaty;
(b) the place where each offence was committed;
(c) the respective interests of the requesting States;
(d) the gravity of the offences;
(e) the nationality of the victim;
(f) the possibility of further extradition between the requesting States; and
(g) the chronological order in which the requests were received from the requesting States.”
A requested State, upon receiving two or more requests for the extradition of the same person either for the same offence, or for different offences, shall determine to which of the requesting States it will extradite the person sought, taking into consideration the circumstances and particularly the possibility of a later extradition between the requesting States, the seriousness of each offence, the place where the offence was committed, the nationality and residence of the person sought, the dates upon which the requests were received and the provisions of any extradition agreements between the requested State and the other requesting State or States.
Article XVI
The text of Article XVI of the Treaty is replaced by the following:
“(1) The requested State shall promptly notify the requesting State of its decision on the request for extradition.
(2) If the request is denied in whole or in part, the requested State shall provide information as to the reasons for the denial of the request. The requested State shall provide copies of pertinent judicial decisions on request.
(3) If the request for extradition is granted, the competent authorities of the Contracting Parties shall arrange for the time and place of the surrender of the person sought.
(4) If the person sought is not removed from the territory of the requested State within the time prescribed by the law of that State, that person may be discharged from custody, and the requested State may subsequently refuse extradition for the same offences.”
(1) The requested State shall promptly communicate to the requesting State through the diplomatic channel the decision on the request for extradition.
(2) Where extradition of a person for an offence is granted, the person shall be conveyed by the appropriate authorities of the requested State to a port or airport in the territory of that State agreed between that State and the requesting State.
(3) If a warrant or order for the extradition of a person sought has been issued by the competent authority and he is not removed from the territory of the requested State within such time as is prescribed by the laws of that State, he may be set at liberty, and the requested State may subsequently refuse to extradite that person for the same offence.
(4) Australia is not required to extradite a person before the expiration of fifteen days after the date on which he has been held judicially to be liable to extradition, or, of proceedings for a writ of habeas corpus have been brought, before the expiration of fifteen days after the final decision of the competent court has been given.
Article XVII
The text of Article XVII of the Treaty is replaced by the following:
“(1) To the extent permitted under its laws, the requested State may seize all articles, documents, and evidence connected with the offence in respect to which extradition is or is to be sought and surrender those items to the requesting State if extradition is subsequently granted. The items mentioned in this Article may be surrendered even when extradition cannot be effected due to the death, disappearance, or escape of the person sought.
(2) The requested State may require that the surrender of any property be subject to satisfactory assurances from the requesting State that the property will be returned to the requested State as soon as practicable. The requested State may also defer surrender of any property if it is needed as evidence in the requested State.
(3) The rights of third parties in any property shall be duly respected.”
(1) To the extent permitted under the law of the requested State and subject to the rights of third parties, which shall be duly respected, all articles found in the requested State that have been acquired as a result of the offence or may be required as evidence shall, if the requesting State so requests, be surrendered if extradition is granted.
(2) Subject to the qualifications of paragraph (1) of this Article, the above-mentioned articles shall, if the requested State so requests, be surrendered to the requesting State even if the extradition, having been agreed to, cannot be carried out owing to the death or escape of the person sought.
(3) Where the law of the requested State or the rights of third parties so require, any articles so surrendered shall be returned to the requested State free of charge if that State so requests.
Article XVIII
The text of Article XVIII of the Treaty is replaced by the following:
“(1) The requested State shall advise, assist, and otherwise represent the interests of the requesting State in any proceedings arising out of a request for extradition.
(2) The requesting State shall bear the expenses related to any translation of documents and the transportation of the person surrendered. The requested State shall pay all other expenses incurred in that State by reason of the extradition proceedings.
(3) Neither State shall make any pecuniary claim against the other arising out of the arrest, detention, examination, or surrender of the person sought under this Treaty.”
(1) Expenses related to the transportation of the person sought to the requesting State shall be paid by the requesting State.
(2) The requested State shall make all necessary arrangements for, and meet the cost of, the representation of the requesting State in any proceedings arising out of a request for extradition.
(3) No pecuniary claim, arising out of the arrest, detention, examination and surrender of persons sought under the terms of this Treaty, shall be made by the requested State against the requesting State.
Article XIX
The text of Article XIX of the Treaty is replaced by the following:
“(1) Either Contracting Party may authorise transportation through its territory of a person surrendered to the other State by a third State. A request for transit shall contain a description of the person being transported and a brief statement of the facts of the case. A person in transit shall be held in custody during the period of transit.
(2) No authorisation is required where air transportation is used and no landing is scheduled on the territory of the other Contracting Party. If an unscheduled landing occurs on the territory of the other Contracting Party, the other Contracting Party may require the request for transit as provided in paragraph 1. That Contracting Party shall detain the person being transported until the request for transit is received and the transit is effected, so long as the request is received within 96 hours of the unscheduled landing.”
(1) The right to transport through the territory of one of the Contracting Parties a person surrendered to the other Contracting Party by a third State shall be granted on request made through the diplomatic channel.
(2) In the case of a national of the requested State, the request shall establish that conditions are present which would warrant extradition of the person by the State of transit.
(3) The request may be refused if reasons of public order are opposed to the transit.
(4) Permission for the transit of a person surrendered shall include authorisation for accompanying officials to hold that person in custody or request and obtain assistance from authorities in the State of transit in maintaining custody.
(5) The Party to which the person has been extradited shall reimburse the Party through whose territory such person is transported for any expenses incurred by the latter in connection with such transportation.
Article XX
This Treaty applies to offences mentioned in Article II committed before, on or after the date on which this Treaty enters into force, provided that no extradition shall be granted for an offence committed before that date which was not an offence under the laws of both Contracting Parties at the time of its commission.
Article XXI
(1) This Treaty is subject to ratification and the instruments of ratification shall be exchanged in Canberra as soon as possible.[1]
(2) This Treaty shall enter into force thirty days after the exchange of instruments of ratification.[2]
(3) This Treaty may be terminated by either Contracting Party giving notice of termination to the other Contracting Party at any time and the termination shall be effective six months after the date of receipt of such notice.
(4) This Treaty shall terminate and replace, as between the Contracting Parties to the present Treaty, the Treaty on Extradition between Great Britain and the United States of 22 December 1931, as made applicable to Australia.[3]
Notwithstanding Article XX of the Treaty, this Protocol shall apply in all cases in which the request for extradition is made after its entry into force regardless of whether the offence was committed before or after that date.
This Protocol shall enter into force on the date on which the Contracting Parties have exchanged written notification that they have complied with their respective requirements for the entry into force of this Protocol.[2]
IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by their respective Governments, have signed this Protocol.
DONE at Seoul, this 4th day of September, 1990.
FOR AUSTRALIA: FOR THE UNITED STATES OF AMERICA:
[Signed:] [Signed:]
MICHAEL DUFFY DICK THORNBURG
[1]ATS 1976 No. 10 Rules 1988 No. 298; UNTS 1041 p. 97; TIAS 8234.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Treaty.
DONE at Washington this fourteenth day of May, 1974.
FOR AUSTRALIA: FOR THE UNITED STATES OF AMERICA:
[Signed:] [Signed:]
PATRICK SHAW KENNETH RUSH
[1] Instruments of ratification were exchanged at Canberra on 8 April 1976.
[2] The Treaty entered into force 8 May 1976.
[3] The Treaty was amended by the Protocol Amending the Treaty on Extradition Between Australia and the United States of America of 14 May 1974 which entered into force on 21 October 1992.
[4] Australia and the United States exchanged notes in 2017 to confirm the interpretation of Article XI(3)(c) of the Treaty.
Initiating Note from the United States of America to Australia
The Department of State of the United States refers to the Treaty on Extradition Between the United States of America and Australia, signed at Washington May 14, 1974, (the “Treaty”) as amended by the Protocol Amending the Treaty on Extradition Between the United States of America and Australia, signed at Seoul September 4, 1990, (the “Protocol”) and confirms the following interpretation of the Treaty, as amended by the Protocol, as set forth below:
Article XI(3)(c) of the Treaty, as amended by the Protocol, states that “A request for the extradition of a person who is sought for prosecution or who has been found guilty in his absence shall also be supported by…a description of the facts, by way of affidavit, statement, or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it.”
The United States confirms its understanding that the reference to “reasonable grounds” in Article XI(3)(c) of the Treaty, as amended by the Protocol, was intended to require the Requesting State to provide an affidavit, statement, or declaration setting forth the facts which in its view provide a reasonable basis for the belief that an offense has been committed and that the person sought committed it. The United States further confirms that this standard does not require or invite the Requested State to establish independently (or for a court of law to determine) that the offense (or offenses) for which extradition is sought are properly charged and supported by legally admissible evidence under the laws of the Requesting State.
The Department of State proposes that, if the Government of Australia concurs with this interpretation, then this Note and the Note of the Embassy of Australia in reply affirmatively concurring with the interpretation set forth in this Note, would record our two Governments’ shared understanding as to the interpretation of the Treaty, as amended by the Protocol.
Department of State,
Washington July 17, 2017
Note of reply from Australia to the United States of America
Note No.: 195/2017
The Embassy of Australia presents its compliments to the Department of State of the United States of America and has the honor to refer to the Department of State’s diplomatic note dated 17 July 2017 concerning the interpretation of Article XI(3)(c) of the Treaty on Extradition Between the United States of America and Australia, signed at Washington May 14, 1974, (the “Treaty”) as amended by the Protocol Amending the Treaty on Extradition Between the United States of America and Australia, signed at Seoul September 4, 1990, (the “Protocol”).
The Embassy of Australia informs the Department of State that the Government of Australia concurs with the interpretation set forth in the Department of State’s Note and confirms that this Note and the Department of State’s Note record the shared understanding of our two Governments as to the interpretation of the Treaty, as amended by the Protocol.
The Embassy of Australia avails itself of this opportunity to renew to the Department of State the assurances of its highest consideration.
Washington D.C
22 August 2017
_________________________________________________________________________________
Appendix A – Original 1976 Treaty
https://www.austlii.edu.au/au/other/dfat/treaties/1976/10.html
TREATY ON EXTRADITION BETWEEN AUSTRALIA AND THE UNITED STATES OF AMERICA
AUSTRALIA AND THE UNITED STATES OF AMERICA, desiring to make more effective the cooperation of the two countries for the reciprocal extradition of offenders, agree as follows:
Article I
Each Contracting Party agrees, under the conditions and circumstances established by this Treaty, reciprocally to deliver up persons found in its territory who have been charged with or convicted of any of the offences mentioned in Article II of this Treaty committed within the territory of the other Contracting Party, or outside that territory under the conditions specified in Article IV of this Treaty.
Article II
The text of Article II of the Treaty is replaced by the following:
“(1) An offence shall be an extraditable offence if it is punishable under the laws in both Contracting Parties by deprivation of liberty of more than one year, or by a more severe penalty. However, if the request for extradition relates to a person convicted of such an offence who is wanted for the enforcement of a sentence of imprisonment, the executive authority of the requested State shall have authority to refuse extradition if a period of less than six months of imprisonment remains to be served.
(2) The following offences shall be extraditable if they meet the requirements of paragraph (1): conspiring to commit, attempting to commit, aiding or abetting, counselling or procuring the commission of, or being an accessory after the fact to, any offence described in that paragraph.
(3) For the purpose of this Article, an offence shall be an extraditable offence:
(a) whether or not the laws in the Contracting Parties place the offence within the same category of offences or describe the offence by the same terminology; and
(b) whether or not the offence is one for which United States federal law requires proof of interstate transportation, or use of the mails, or of other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a United States federal court.
(4) If the offence has been committed outside the territory of the requesting State, extradition shall be granted if the laws in the requested State provide for the punishment of an offence committed outside of its territory in similar circumstances. If the laws in the requested State do not so provide, the executive authority of the requested State may, in its discretion, grant extradition.
(5) Subject to the laws in the requested State, if extradition has been granted for an extraditable offence, it shall also be granted for any other offence specified in the request even if the latter offence is punishable by deprivation of liberty of one year or less, provided that all the other requirements of extradition are met.”
(1) Persons shall be delivered up according to the provisions of this Treaty for any of the following offences provided these offences are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year or by death:
1. Murder or willful murder; assault with intent to commit murder.
2. Manslaughter.
3. Aggravated or willful wounding or injuring; assault occasioning actual bodily harm.
4. Unlawful throwing or application of any corrosive or injurious substances upon the person of another.
5. Rape; indecent assault, including unlawful sexual acts with or upon children.
6. Illegal abortion.
7. Procuring, or trafficking in, women or young persons for immoral purposes; living on the earnings of prostitution.
8. Abandoning or exposing a child when the life of that child is or is likely to be injured or endangered.
9. Bigamy.
10. Kidnapping; child stealing; abduction; false imprisonment.
11. Robbery.
12. Burglary; housebreaking or any similar offence.
13. Larceny.
14. Embezzlement.
15. Obtaining any property, money or valuable securities by false pretences or other form of deception.
16. An offence against the law relating to bribery.
17. Extortion.
18. Receiving any property, money or valuable securities knowing the same to have been unlawfully obtained.
19. Fraud by an agent, bailee, banker, factor or trustee, by a director or officer of a company or by a promoter of a company, whether existing or not.
20. An offence relating to counterfeiting or forgery.
21. Perjury; subornation of perjury; conspiring to defeat the course of justice.
22. Arson.
23. An act done with the intention of endangering the safety of any person travelling upon a railway or in any aircraft or vessel or other means of transportation.
24. Any seizure or exercise of control, by force or violence or threat of force or violence, or by any other form of intimidation, of an aircraft.
25. Piracy, by statute or by law of nations; revolt on board a vessel against the authority of the master of the vessel.
26. Malicious injury to property.
27. An offence against the bankruptcy laws.
28. An offence against the laws relating to narcotics, dangerous drugs or psychotropic substances.
29. Dealing in slaves.
(2) Extradition shall also be granted for any other offences that are made extraditable under the extradition laws of Australia and which are felonies under the laws of the United States of America.
(3) Extradition shall also be granted for any offence against a federal law of the United States of America of which one of the above-mentioned offences is a substantial element, even if transporting or transportation or the use of the mails or of interstate facilities is also an element of the specific offence.
(4) Extradition shall also be granted for aiding, abetting, counselling or procuring the commission of, being an accessory before or after the fact to, or attempting or conspiring to commit, any of the offences mentioned in the preceding paragraphs of this Article.
(5) If extradition is requested for any offence mentioned in a preceding paragraph of this Article and that offence is punishable under the laws of both Contracting Parties by a term of imprisonment exceeding one year or by death, that offence shall be extraditable under the provisions of this Treaty whether or not the laws of both Contracting Parties would place that offence within the same category of offences made extraditable by that preceding paragraph of this Article and whether or not the laws of the requested State denominate the offence by the same terminology.
Article III
(1) For the purposes of this Treaty, the territory of a Contracting Party means all the territory under the jurisdiction of that Contracting Party, including airspace and territorial waters, and also includes –
(a) any vessel registered in any territory under the jurisdiction of that Contracting Party; and
(b) any aircraft registered in any such territory provided that the aircraft is in flight when the relevant offence is committed.
(2) For the purposes of this Treaty –
(a) the territory under the jurisdiction of a Contracting Party includes the Territories for the international relations of which that Contracting Party is responsible;
(b) an aircraft shall be considered in flight from the moment when the power is applied for the purpose of take-off until the moment when the landing run ends.
Article IV
When the offence for which extradition has been requested has been committed outside the territory of the requesting State –
(a) if the United States of America is the requested State – the executive authority of the United States of America; or
(b) if Australia is the requested State – the Attorney-General of Australia,
shall have the power to grant the extradition if the laws of the requested State provide for jurisdiction over such an offence committed in similar circumstances.
Article V
(1) Neither of the Contracting Parties shall be bound to deliver up its own nationals under this Treaty but the executive authority of each Contracting Party shall have the power to deliver them up if, in its discretion, it considers that it is proper to do so.
(2) For the purposes of this Article –
(a) a reference to the executive authority of a Contracting Party shall, in the case of Australia, be construed as a reference to the Attorney-General of Australia;
(b) Australian protected persons shall be deemed to be nationals of Australia; and
(c) the nationality of a person shall be determined to be that which he held at the time when he was charged with the offence for which his extradition is requested.
Article VI
Extradition shall be granted only if the evidence is found sufficient, according to the laws in the territory where the person whose extradition is requested is found, either to justify his trial or committal for trail if the offence with which he is charged or its equivalent had been committed in that territory or to prove that he is the identical person convicted by the courts of the requesting State.
Article VII
(1) Extradition shall not be granted in any of the following circumstances:
(a) when the person whose extradition is requested is being proceeded against, has been tried and discharged or punished, or has been pardoned, in the territory of the requested State for the offence for which his extradition is requested;
(b) when the prosecution for the offence has become barred by lapse of time according to the laws of the requesting State; or
(c) when the offence in respect of which extradition is requested is of a political character, or the person whose extradition is requested proves that the extradition request has been made for the purpose of trying or punishing him for an offence of a political character.
(2) If any question arises whether a case comes within the provisions of subparagraph (c) of paragraph (1) of this Article, the requested State shall decide that question.
Article VIII
If, under the law of the requesting State, an offence for which the extradition of a person is requested, or any other offence for which he may be detained or tried under paragraph (1) of Article XIV, is subject to a penalty of death but the law of the requested State does not provide for such a penalty in a similar case, the requested State may recommend to the requesting State that any punishment imposed for any of those offences be a less severe punishment.
Article IX
When the person whose extradition is requested is being proceeded against or is serving a sentence in the territory of the requested State for an offence other than that for which extradition has been requested, his surrender may be deferred until the conclusion of the proceedings and the full execution of any punishment that may be or may have been imposed on him.
Article X
The determination that extradition based upon the request therefor should or should not be granted shall be made in accordance with the law of the requested State and the person whose extradition is sought shall have the right to use such remedies and recourses as are provided by that law.
Article XI
(1) The request for extradition shall be made through the diplomatic channel.
(2) The request shall be accompanied by a description of the person sought, a statement of the facts of the case, the text of the applicable laws of the requesting State including the law defining the offence, the law prescribing the punishment for the offence and the law relating to the limitation of the legal proceedings.
(3) When the request relates to a person who has not yet been convicted, it must also be accompanied by a warrant of arrest issued by a judge or other judicial officer of the requesting State and by such evidence as, according to the laws of the requested State, would justify his trial or committal for trial if the offence had been committed there, including evidence proving the person requested is the person to whom the warrant of arrest refers.
(4) When the request relates to a person already convicted, it must be accompanied by the judgment of conviction and sentence, if any, passed upon him in the territory of the requesting State, by a statement, if applicable, showing how much of the sentence has not been served and by evidence proving that the person requested is the person to whom the judgment refers.
(5) The warrant of arrest and deposition or other evidence, given under oath or affirmed, and judicial documents establishing the existence of the conviction, or certified copies of those documents, shall be admitted in evidence in the examination of the request for extradition when –
(a) in the case of a request by Australia – those documents or certified copies bear the signature, or are accompanied by the attestation, of a judge, magistrate or officer of Australia or are authenticated by the official seal of the Attorney-General and, in any case, are certified by the principal diplomatic or consular officer of the United States of America in Australia; or
(b) in the case of a request by the United States of America – the warrant, if any, bears on original signature, or the other documents are certified, by a judge, magistrate or officer of the United States of America and, in any case, are authenticated by the oath of a witness or sealed with the official seal of the Department of State on behalf of the Secretary of State or of the Department of Justice on behalf of the Attorney General.
Article XII
(1) In the case of urgency a Contracting Party may apply for the provisional arrest of the person sought pending the presentation of the request for extradition through the diplomatic channel.
(2) The application shall contain a description of the person sought, an indication of intention to request the extradition of the person sought and a statement of the existence of a warrant of arrest or a judgment of conviction against that person, and such further information, if any, as would be necessary to justify the issue of a warrant of arrest had the offence been committed, or the person sought been convicted, in the territory of the requested State.
(3) On receipt of such an application the requested State shall take the necessary steps to secure the arrest of the person claimed.
(4) A person arrested upon such an application shall be set at liberty upon the expiration of forty-five days from the date of his arrest if a request for his extradition accompanied by the documents specified in Article XI has not been received.
(5) Paragraph (4) of this Article shall not prevent the institution of proceedings with a view to extraditing the person sought if the request is subsequently received.
Article XIII
(1) If the requested State requires additional evidence or information to enable it to decide on the request for extradition, that State may request that such evidence or information be furnished within such period as it specifies.
(2) If the person sought is under arrest and the additional evidence or information submitted as aforesaid is not sufficient or if such evidence or information is not received within the period specified by the requested State, he shall be discharged from custody.
(3) The discharge of a person from custody under paragraph (2) of this Article shall not bar the requesting State from submitting another request in respect of the same offence.
Article XIV
(1) A person extradited under this Treaty may be detained, tried or punished in the territory of the requesting State for any offence mentioned in Article II for which the person could be convicted upon proof of the facts upon which the request for extradition was based.
(2) Except as provided in to paragraph (1) of this Article, a person extradited under this Treaty shall not be detained, tried or punished in the territory of the requesting State for an offence other than that for which extradition has been granted, or be extradited by that State to a third State, unless –
(a) he has left the territory of the requesting State after his extradition and has voluntarily returned to it;
(b) he has not left the territory of the requesting State within thirty days after being free to do so; or
(c) the offence concerned is one for which the requested State has consented to his detention, trial or punishment or to his extradition to a third State and is an offence mentioned in Article II.
(3) A request for the consent of the requested State under subparagraph (c) of paragraph (2) of this Article shall be accompanied by such information and documents as are requested by that State.
(4) This Article does not apply to offences committed after the extradition.
Article XV
A requested State, upon receiving two or more requests for the extradition of the same person either for the same offence, or for different offences, shall determine to which of the requesting States it will extradite the person sought, taking into consideration the circumstances and particularly the possibility of a later extradition between the requesting States, the seriousness of each offence, the place where the offence was committed, the nationality and residence of the person sought, the dates upon which the requests were received and the provisions of any extradition agreements between the requested State and the other requesting State or States.
Article XVI
(1) The requested State shall promptly communicate to the requesting State through the diplomatic channel the decision on the request for extradition.
(2) Where extradition of a person for an offence is granted, the person shall be conveyed by the appropriate authorities of the requested State to a port or airport in the territory of that State agreed between that State and the requesting State.
(3) If a warrant or order for the extradition of a person sought has been issued by the competent authority and he is not removed from the territory of the requested State within such time as is prescribed by the laws of that State, he may be set at liberty, and the requested State may subsequently refuse to extradite that person for the same offence.
(4) Australia is not required to extradite a person before the expiration of fifteen days after the date on which he has been held judicially to be liable to extradition, or, of proceedings for a writ of habeas corpus have been brought, before the expiration of fifteen days after the final decision of the competent court has been given.
Article XVII
(1) To the extent permitted under the law of the requested State and subject to the rights of third parties, which shall be duly respected, all articles found in the requested State that have been acquired as a result of the offence or may be required as evidence shall, if the requesting State so requests, be surrendered if extradition is granted.
(2) Subject to the qualifications of paragraph (1) of this Article, the above-mentioned articles shall, if the requested State so requests, be surrendered to the requesting State even if the extradition, having been agreed to, cannot be carried out owing to the death or escape of the person sought.
(3) Where the law of the requested State or the rights of third parties so require, any articles so surrendered shall be returned to the requested State free of charge if that State so requests.
Article XVIII
(1) Expenses related to the transportation of the person sought to the requesting State shall be paid by the requesting State.
(2) The requested State shall make all necessary arrangements for, and meet the cost of, the representation of the requesting State in any proceedings arising out of a request for extradition.
(3) No pecuniary claim, arising out of the arrest, detention, examination and surrender of persons sought under the terms of this Treaty, shall be made by the requested State against the requesting State.
Article XIX
(1) The right to transport through the territory of one of the Contracting Parties a person surrendered to the other Contracting Party by a third State shall be granted on request made through the diplomatic channel.
(2) In the case of a national of the requested State, the request shall establish that conditions are present which would warrant extradition of the person by the State of transit.
(3) The request may be refused if reasons of public order are opposed to the transit.
(4) Permission for the transit of a person surrendered shall include authorisation for accompanying officials to hold that person in custody or request and obtain assistance from authorities in the State of transit in maintaining custody.
(5) The Party to which the person has been extradited shall reimburse the Party through whose territory such person is transported for any expenses incurred by the latter in connection with such transportation.
Article XX
This Treaty applies to offences mentioned in Article II committed before, on or after the date on which this Treaty enters into force, provided that no extradition shall be granted for an offence committed before that date which was not an offence under the laws of both Contracting Parties at the time of its commission.
Article XXI
(1) This Treaty is subject to ratification and the instruments of ratification shall be exchanged in Canberra as soon as possible.[1]
(2) This Treaty shall enter into force thirty days after the exchange of instruments of ratification.[2]
(3) This Treaty may be terminated by either Contracting Party giving notice of termination to the other Contracting Party at any time and the termination shall be effective six months after the date of receipt of such notice.
(4) This Treaty shall terminate and replace, as between the Contracting Parties to the present Treaty, the Treaty on Extradition between Great Britain and the United States of 22 December 1931, as made applicable to Australia.[3]
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Treaty.
DONE at Washington this fourteenth day of May, 1974.
FOR AUSTRALIA: FOR THE UNITED STATES OF AMERICA:
[Signed:] [Signed:]
PATRICK SHAW KENNETH RUSH
[1] Instruments of ratification were exchanged at Canberra on 8 April 1976.
[2] The Treaty entered into force 8 May 1976.
[3] The Treaty was amended by the Protocol Amending the Treaty on Extradition Between Australia and the United States of America of 14 May 1974 which entered into force on 21 October 1992.
[4] Australia and the United States exchanged notes in 2017 to confirm the interpretation of Article XI(3)(c) of the Treaty.
Initiating Note from the United States of America to Australia
The Department of State of the United States refers to the Treaty on Extradition Between the United States of America and Australia, signed at Washington May 14, 1974, (the “Treaty”) as amended by the Protocol Amending the Treaty on Extradition Between the United States of America and Australia, signed at Seoul September 4, 1990, (the “Protocol”) and confirms the following interpretation of the Treaty, as amended by the Protocol, as set forth below:
Article XI(3)(c) of the Treaty, as amended by the Protocol, states that “A request for the extradition of a person who is sought for prosecution or who has been found guilty in his absence shall also be supported by…a description of the facts, by way of affidavit, statement, or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it.”
The United States confirms its understanding that the reference to “reasonable grounds” in Article XI(3)(c) of the Treaty, as amended by the Protocol, was intended to require the Requesting State to provide an affidavit, statement, or declaration setting forth the facts which in its view provide a reasonable basis for the belief that an offense has been committed and that the person sought committed it. The United States further confirms that this standard does not require or invite the Requested State to establish independently (or for a court of law to determine) that the offense (or offenses) for which extradition is sought are properly charged and supported by legally admissible evidence under the laws of the Requesting State.
The Department of State proposes that, if the Government of Australia concurs with this interpretation, then this Note and the Note of the Embassy of Australia in reply affirmatively concurring with the interpretation set forth in this Note, would record our two Governments’ shared understanding as to the interpretation of the Treaty, as amended by the Protocol.
Department of State,
Washington July 17, 2017
Note of reply from Australia to the United States of America
Note No.: 195/2017
The Embassy of Australia presents its compliments to the Department of State of the United States of America and has the honor to refer to the Department of State’s diplomatic note dated 17 July 2017 concerning the interpretation of Article XI(3)(c) of the Treaty on Extradition Between the United States of America and Australia, signed at Washington May 14, 1974, (the “Treaty”) as amended by the Protocol Amending the Treaty on Extradition Between the United States of America and Australia, signed at Seoul September 4, 1990, (the “Protocol”).
The Embassy of Australia informs the Department of State that the Government of Australia concurs with the interpretation set forth in the Department of State’s Note and confirms that this Note and the Department of State’s Note record the shared understanding of our two Governments as to the interpretation of the Treaty, as amended by the Protocol.
The Embassy of Australia avails itself of this opportunity to renew to the Department of State the assurances of its highest consideration.
Washington D.C
22 August 2017
_____________________________________________________________________________________
Appendix B – 1997 Protocol
https://www.austlii.edu.au/cgi-bin/viewdoc/au/other/dfat/treaties/1992/43.html
Protocol amending the Treaty on Extradition between Australia and the United States of America of 14 May 1974 [1992] ATS 43
Australian Treaty Series 1992 No 43
DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
CANBERRA
Protocol amending the Treaty on Extradition between Australia and the United States of America of 14 May 1974
(Seoul, 4 September 1990)
Entry into force: 21 December 1992
AUSTRALIAN TREATY SERIES
1992 No. 43
Australian Government Publishing Service
Canberra
(c) Commonwealth of Australia 1995
PROTOCOL AMENDING THE TREATY ON EXTRADITION BETWEEN AUSTRALIA AND THE UNITED STATES OF AMERICA OF 14 MAY 1974
AUSTRALIA AND THE UNITED STATES OF AMERICA;
DESIRING to make more effective the Extradition Treaty between the Contracting Parties signed at Washington May 14, 1974[1] (hereinafter referred to as “the Treaty”);
HAVE AGREED as follows:
Article 1
The text of Article II of the Treaty is replaced by the following:
“(1) An offence shall be an extraditable offence if it is punishable under the laws in both Contracting Parties by deprivation of liberty of more than one year, or by a more severe penalty. However, if the request for extradition relates to a person convicted of such an offence who is wanted for the enforcement of a sentence of imprisonment, the executive authority of the requested State shall have authority to refuse extradition if a period of less than six months of imprisonment remains to be served.
(2) The following offences shall be extraditable if they meet the requirements of paragraph (1): conspiring to commit, attempting to commit, aiding or abetting, counselling or procuring the commission of, or being an accessory after the fact to, any offence described in that paragraph.
(3) For the purpose of this Article, an offence shall be an extraditable offence:
(a) whether or not the laws in the Contracting Parties place the offence within the same category of offences or describe the offence by the same terminology; and
(b) whether or not the offence is one for which United States federal law requires proof of interstate transportation, or use of the mails, or of other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a United States federal court.
(4) If the offence has been committed outside the territory of the requesting State, extradition shall be granted if the laws in the requested State provide for the punishment of an offence committed outside of its territory in similar circumstances. If the laws in the requested State do not so provide, the executive authority of the requested State may, in its discretion, grant extradition.
(5) Subject to the laws in the requested State, if extradition has been granted for an extraditable offence, it shall also be granted for any other offence specified in the request even if the latter offence is punishable by deprivation of liberty of one year or less, provided that all the other requirements of extradition are met.”
Article 2
Article III and Article IV of the Treaty are deleted.
Article 3
The text of paragraph 2 of Article V of the Treaty is replaced by the following:
“If the requested State refuses to extradite a national of that State on the basis of nationality it shall, if the requesting State so requests and the laws of the requested State allow, submit the case to the competent authorities in order that proceedings for the prosecution of the person may be undertaken in respect of all offences for which the extradition has been requested.”
Article 4
Article VI of the Treaty is deleted.
Article 5
The text of Article VIII of the Treaty is replaced by the following:
“If, under the law of the requesting State, an offence for which the extradition of a person is requested is subject to a penalty of death, the requested State may refuse the extradition unless the requesting State gives an undertaking that the death penalty will not be imposed or, if imposed, will not be carried out.”
Article 6
The text of Article IX of the Treaty is replaced by the following:
“(1) If the extradition request is granted in the case of a person who is being prosecuted or is serving a sentence in the territory of the requested State, the requested State may temporarily surrender the person sought to the requesting State for the purpose of prosecution. The person so surrendered shall be kept in custody in the requesting State and shall be returned to the requested State after the conclusion of the proceedings against that person, in accordance with conditions to be mutually determined in writing between the Contracting Parties.
(2) The requested State may postpone the extradition proceedings against, or the surrender of, any person who is being prosecuted or who is serving a sentence in that State. The postponement may continue until the prosecution of the person sought has been concluded and any sentence has been served.”
Article 7
The text of Article XI of the Treaty is replaced by the following:
“(1) All requests for extradition shall be made through the diplomatic channel.
(2) The request for extradition shall be supported by:
(a) documents, statements, or other types of information which describe the identity and probable location of the person sought;
(b) a description of the conduct constituting the offence;
(c) a statement of the law describing the essential elements of the offence for which extradition is requested; and
(d) a statement of the law describing the punishment for the offence and the law relating to the limitation of legal proceedings.
(3) A request for the extradition of a person who is sought for prosecution or who has been found guilty in his absence shall also be supported by:
(a) a copy of the warrant or order of arrest issued in the requesting State for the arrest of the person for the offence;
(b) a copy of the charging document, if any; and
(c) a description of the facts, by way of affidavit, statement, or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it.
(4) A request for extradition of a person who has been found guilty of the offence for which extradition is sought, other than a person who has been found guilty in his absence, shall also be supported by:
(a) a copy of the judgment of conviction, if available, or a statement by a judicial authority that the person has been found guilty;
(b) information establishing that the person sought is the person to whom the finding of guilt refers;
(c) a copy of the sentence imposed, if the person has been sentenced, and a statement establishing to what extent the sentence has been carried out; and
(d) if the person has been found guilty but no sentence has been imposed, a statement affirming that it is intended to impose a sentence.
(5) The documents which accompany an extradition request shall be received and admitted as evidence in extradition proceedings if:
(a) in the case of a request from the United States, they
(i) purport to be signed or certified by a judge, magistrate, or officer in or of the United States; and
(ii) purport to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal of the requesting State or of a Minister of State, or of a Department or officer of the Government of the requesting State;
(b) in the case of a request from Australia, they are certified by the principal diplomatic or consular officer of the United States resident in Australia, as provided by the extradition laws of the United States; or
(c) they are certified or authenticated in any other manner accepted by the law of the requested State.”
Article 8
The text of Article XII of the Treaty is replaced by the following:
“(1) In case of urgency, either Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Department of Justice in the United States and the Attorney-General’s Department in Australia. The facilities of the International Criminal Police Organisation (Interpol) may be used to transmit such a request.
(2) The application for provisional arrest shall contain:
(a) a description of the person sought;
(b) the location of the person sought, if known;
(c) a brief statement of the facts of the case, including, if possible, the time and location of the offence;
(d) a description of the laws violated or alleged to have been violated and, where applicable, the penalty which may be imposed;
(e) a statement of the existence of a warrant of arrest or finding of guilt or judgment of conviction against the person sought; and
(f) a statement that a request for the extradition of the person sought will follow.
(3) On receipt of the application, the requested State shall take appropriate steps to secure the arrest of the person sought. The requesting State shall be notified without delay of the disposition of its application and the reasons for any denial.
(4) A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of arrest pursuant to the application of the requesting State if the executive authority of the requested State has not received the formal request for extradition and the supporting documents required in Article XI.
(5) The fact that the person sought has been discharged from custody pursuant to paragraph (4) of this Article shall not prejudice the subsequent rearrest and extradition of that person if the extradition request and supporting documents are received at a later date.”
Article 9
Article XIII of the Treaty is amended by deleting the words “evidence or” wherever they occur in Article XIII(1) and Article XIII(2), and by adding the following:
“(4) If the person sought, after being personally advised by the competent authority of the requested State of his right to formal extradition proceedings, consents to surrender to the requesting State, the requested State may surrender the person as expeditiously as possible and without further proceedings.”
Article 10
The text of Article XIV of the Treaty is replaced by the following:
“(1) A person extradited under this Treaty may not be detained, tried, or punished in the requesting State except for:
(a) the offence for which extradition is granted or any other offence of which the person could be convicted on proof of the conduct constituting the extradition offence provided that the offence carries the same or a lesser punishment;
(b) any offence committed after the extradition; or
(c) any offence for which the executive authority of the requested State consents to the person’s detention, trial or punishment. For the purposes of this subparagraph, the requested State may require the submission of the documents specified in Article XI.
(2) A person extradited under this Treaty by a Contracting Party may not be extradited to a third State for an offence committed prior to his surrender unless that Contracting Party consents.
(3) Paragraphs (1) and (2) of this Article shall not prevent the detention, trial, or punishment of an extradited person, or the extradition of that person to a third State, if:
(a) that person leaves the territory of the requesting State after extradition and voluntarily returns to it; or
(b) that person does not leave the territory of the requesting State within fifteen days of the day on which the person is free to do so.”
Article 11
The text of Article XV of the Treaty is replaced by the following:
“If the requested State receives requests from the other Contracting Party and from any other State or States for the extradition of the same person, either for the same offence or for a different offence, the executive authority of the requested State shall determine to which State it will surrender the person. In making its decision, the requested State shall consider all relevant factors, including not limited to:
(a) whether the requests were made pursuant to treaty;
(b) the place where each offence was committed;
(c) the respective interests of the requesting States;
(d) the gravity of the offences;
(e) the nationality of the victim;
(f) the possibility of further extradition between the requesting States; and
(g) the chronological order in which the requests were received from the requesting States.”
Article 12
The text of Article XVI of the Treaty is replaced by the following:
“(1) The requested State shall promptly notify the requesting State of its decision on the request for extradition.
(2) If the request is denied in whole or in part, the requested State shall provide information as to the reasons for the denial of the request. The requested State shall provide copies of pertinent judicial decisions on request.
(3) If the request for extradition is granted, the competent authorities of the Contracting Parties shall arrange for the time and place of the surrender of the person sought.
(4) If the person sought is not removed from the territory of the requested State within the time prescribed by the law of that State, that person may be discharged from custody, and the requested State may subsequently refuse extradition for the same offences.”
Article 13
The text of Article XVII of the Treaty is replaced by the following:
“(1) To the extent permitted under its laws, the requested State may seize all articles, documents, and evidence connected with the offence in respect to which extradition is or is to be sought and surrender those items to the requesting State if extradition is subsequently granted. The items mentioned in this Article may be surrendered even when extradition cannot be effected due to the death, disappearance, or escape of the person sought.
(2) The requested State may require that the surrender of any property be subject to satisfactory assurances from the requesting State that the property will be returned to the requested State as soon as practicable. The requested State may also defer surrender of any property if it is needed as evidence in the requested State.
(3) The rights of third parties in any property shall be duly respected.”
Article 14
The text of Article XVIII of the Treaty is replaced by the following:
“(1) The requested State shall advise, assist, and otherwise represent the interests of the requesting State in any proceedings arising out of a request for extradition.
(2) The requesting State shall bear the expenses related to any translation of documents and the transportation of the person surrendered. The requested State shall pay all other expenses incurred in that State by reason of the extradition proceedings.
(3) Neither State shall make any pecuniary claim against the other arising out of the arrest, detention, examination, or surrender of the person sought under this Treaty.”
Article 15
The text of Article XIX of the Treaty is replaced by the following:
“(1) Either Contracting Party may authorise transportation through its territory of a person surrendered to the other State by a third State. A request for transit shall contain a description of the person being transported and a brief statement of the facts of the case. A person in transit shall be held in custody during the period of transit.
(2) No authorisation is required where air transportation is used and no landing is scheduled on the territory of the other Contracting Party. If an unscheduled landing occurs on the territory of the other Contracting Party, the other Contracting Party may require the request for transit as provided in paragraph 1. That Contracting Party shall detain the person being transported until the request for transit is received and the transit is effected, so long as the request is received within 96 hours of the unscheduled landing.”
Article 16
Notwithstanding Article XX of the Treaty, this Protocol shall apply in all cases in which the request for extradition is made after its entry into force regardless of whether the offence was committed before or after that date.
Article 17
This Protocol shall enter into force on the date on which the Contracting Parties have exchanged written notification that they have complied with their respective requirements for the entry into force of this Protocol.[2]
IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by their respective Governments, have signed this Protocol.
DONE at Seoul, this 4th day of September, 1990.
FOR AUSTRALIA: FOR THE UNITED STATES OF AMERICA:
[Signed:] [Signed:]
MICHAEL DUFFY DICK THORNBURG
[1]ATS 1976 No. 10 Rules 1988 No. 298; UNTS 1041 p. 97; TIAS 8234.
_______________________________________________________________
Appendix C – U.S. Comments on the 1990 Protocol
US Comments on Protocol to US Australia extradition treaty
https://www.congress.gov/treaty-document/105th-congress/27/document-text
LETTER OF SUBMITTAL
———-
Department of State,
Washington, August 27, 1997.
The President,
The White House.
The President: I have the honor to submit to you the Treaty
between the Government of the United States of America and the
Government of Australia on Mutual Assistance in Criminal
Matters (the “Treaty”), signed at Washington on April 30,
1997, and a related exchange of notes signed the same date. I
recommend that the Treaty and the related exchange of notes be
transmitted to the Senate for its advice and consent to
ratification.
The Treaty covers mutual legal assistance in criminal
matters. In recent years, similar bilateral treaties have
entered into force with a number of other countries. This
Treaty contains many provisions similar to those in the other
treaties and all of the essential provisions sought by the
United States. It will enhance our ability to investigate and
prosecute a variety of offenses, including drug trafficking,
terrorism, money laundering, and other violent and white-collar
crimes. The Treaty is designed to be self-executing and will
not require new legislation.
Article 1 sets forth a non-exclusive list of the major
types of assistance to be provided under the Treaty, including
taking the testimony or statements of persons; providing
documents, records, and other articles of evidence; serving
documents; locating or identifying persons; transferring
persons in custody for testimony or other purposes; executing
requests for searches and seizures and for restitution;
immobilizing instrumentalities and proceeds of crime; assisting
in proceedings related to forfeiture or confiscation; and any
other form of assistance not prohibited by the laws of the
Requested State. The scope of the Treaty includes not only
criminal offenses, but also proceedings related to criminal
offenses, which may be civil or administrative in nature.
Article 1 does not require dual criminality for assistance
to be provided under the Treaty. It is understood that
assistance will be provided without regard to whether the
conduct involved would constitute an offense under the laws of
the Requested State.
Article 1(3) states explicitly that the Treaty is not
intended to create rights in private parties to obtain,
suppress or exclude any evidence, or to impede the execution of
a request.
Article 2 provides for the establishment of Central
Authorities and defines Central Authorities for purposes of the
Treaty. For the United States, the Central Authority is the
Attorney General or a person designated by the Attorney
General. For Australia, the Central Authority is the Attorney-
General or a person designated by the Governor-General to be
the Minister responsible for the administration of legislation
relating to mutual assistance in criminal matters. The article
provides that the Central Authorities shall communicate
directly with one another for the purposes of the Treaty.
Article 3 sets forth the circumstances under which a
Requested State’s Central Authority may deny assistance under
the Treaty. A request may be denied if it relates to a military
offense that would not be an offense under ordinary criminal
law. In addition, a request may be denied if its execution
would prejudice the security or similar essential public
interests of the Requested State, or if the request relates to
a political offense (a term expected to be defined on the basis
of that term’s usage in extradition treaties). Diplomatic notes
exchanged between the Parties at the time of the signing of the
Treaty on April 30, 1997 set forth the understanding of the
Parties that the term “essential interests” will be
interpreted to include certain limitations on assistance set
forth in Australian domestic law, which includes a
discretionary limitation on providing assistance in death
penalty cases, for so long as the relevant law is in effect.
Before denying assistance under Article 3, the Central
Authority of the Requested State is required to consult with
its counterpart in the Requesting State to consider whether
assistance can be given subject to such conditions as the
Central Authority of the Requested State deems necessary. If
the Requesting State accepts assistance subject to these
conditions, it is required to comply with the conditions. If
the Central Authority of the Requested State denies assistance,
it is required to inform the Central Authority of the
Requesting State of the reasons for the denial.
Article 4 prescribes the form and content of written
requests under the Treaty, specifying in detail the information
required in each request. The article permits other forms of
request in emergency situations but requires written
confirmation within ten days thereafter unless the Central
Authority of the Requested State agrees otherwise.
Article 5 requires the Central Authority of the Requested
State to execute the request promptly or, when appropriate, to
transmit it to the authority having jurisdiction to do so. It
provides that the competent authorities of the Requested State
shall do everything in their power to execute a request, and
that the courts of the Requested State shall have authority to issue
subpoenas, search warrants, or other orders necessary to execute the
request. The Central Authority of the Requested State must make all
arrangements for representation of the Requesting State in any
proceedings arising out of an assistance request.
Under Article 5(3), requests are to be executed in
accordance with the laws of the Requested State except to the
extent that the Treaty provides otherwise. However, the method
of execution specified in the request is to be followed except
insofar as it is prohibited by the laws of the Requested State.
If the Central Authority of the Requested State determines that
execution of the request would interfere with an ongoing
criminal investigation, prosecution, or proceeding in that
State, it may postpone execution or, after consulting with the
Central Authority of the Requesting State, impose conditions on
execution. If the Requesting State accepts assistance subject
to such conditions, it shall comply with them.
Article 5(5) further requires the Requested State, if so
requested by the Central Authority of the Requesting State, to
use its best efforts to keep confidential a request, its
contents, and any action taken on the request, and to inform
the Requesting State’s Central Authority if the request cannot
be executed without breaching confidentiality. This provides
the Requesting State an opportunity to decide whether to pursue
the request or to withdraw it in order to maintain
confidentiality.
This article also requires the Requested State’s Central
Authority to respond to reasonable inquiries by the Requesting
State’s Central Authority regarding the status of the execution
of a request; to report promptly to the Requesting State’s
Central Authority the outcome of its execution; and, if the
request is denied, to inform the Requesting State’s Central
Authority of the reasons for the denial.
Article 6 apportions between the two States the costs
incurred in executing a request. It provides that the Requested
State shall pay all costs, except for the following items to be
paid by the Requesting State: fees of expert witnesses; costs
of translation and transcription; and allowances and expenses
related to travel of persons pursuant to Articles 10 and 11.
Article 7 requires the Requesting State to comply with any
request by the Central Authority to the Requested State that
information or evidence obtained under the Treaty not be used
for proceedings other than those described in the request
without the prior consent of the Requested State. Further, if
the Requested State’s Central Authority requests that
information or evidence furnished be kept confidential or be
used in accordance with specified conditions, the Requesting
State must use its best efforts to comply with the conditions.
Once information is made public in the Requesting State in
accordance with either of these provisions, no further
limitations on use apply.
Article 8 provides that a person in the Requested State
from whom evidence is requested pursuant to the Treaty shall be
compelled, if necessary, to appear and, subject to the law of
that State on immunity, incapacity, or applicable privilege,
testify or produce documents, records, or other articles of
evidence. The article requires the Central Authority of the
Requested State, upon request, to furnish information in
advance about the date and place of the taking of the evidence.
Article 8(3) further requires the Requested State to permit
the presence of persons specified in the request and to permit
them to question the person giving the testimony or evidence
either directly or through a local legal representative. In the
event that a person whose testimony or evidence is being taken
asserts a claim of immunity, incapacity, or privilege under the
laws of the Requesting state, Article 8(4) provides that the
testimony or evidence shall be taken and the claim made known
to the Central Authority of the Requesting State for resolution
by its authorities.
Finally, in order to ensure admissibility in evidence in
the Requesting State, Article 8(5) provides a mechanism through
the use of Form A appended to the Treaty for authenticating
evidence that is produced pursuant to or that is the subject of
testimony taken in the Requested State.
Article 9 requires that the Requested State provide the
Requesting State with copies of publicly available records in
the possession of government departments and agencies in the
Requested State. The Requested State may further provide copies
of records or information in the possession of a government
department or agency, but not publicly available, to the extent
and under the same conditions as it would provide them to its
own law enforcement or judicial authorities. The Requested
State has the discretion to deny such requests entirely or in
part. Article 9 also provides that no further authentication
shall be necessary for admissibility into evidence in the
Requesting State of official records where the official in
charge of maintaining them authenticates the records through
the use of Form B appended to this Treaty.
Article 10 provides a mechanism for the Requesting State to
invite the voluntary appearance in its territory of a person
located in the Requested State. The Requesting State shall
indicate the extent to which the expenses will be paid.
Article 11 provides for temporary transfer of a person in
custody in the Requested State to the Requesting State for
purposes of assistance under the Treaty (for example, a witness
incarcerated in the Requested State may be transferred to the
Requesting State to have his deposition taken in the presence
of the defendant), provided that the person in question and the
Central Authority of the Requested State consent. The article
also provides for voluntary transfer of a person in the custody
of the Requesting State to the Requested State for purposes of
assistance under the Treaty (for example, a defendant in the
Requesting State may be transferred for purposes of attending a
witness deposition in the Requested State), if the person
consents and if the Central Authorities of both States agree.
Article 11(3) further establishes both the express
authority and the obligation of the receiving State to maintain
the person transferred in custody. The return of the person
transferred is subject to terms and conditions agreed to by the
Central Authorities, and the sending State is not required to
initiate extradition proceedings for return of the person
transferred. The person transferred receives credit for service
of the sentence imposed in the sending State for time served in
the custody of the receiving State. The article also provides
that if the sendingState advises the receiving State that the
transferred person is no longer required to be held in custody, that
person shall be freed from custody and treated as a person referred to
in Article 10 of this treaty.
Article 12 provides that a person present in the Requesting
State pursuant to Articles 10 or 11 will not be subject to
service of process or be detained, prosecuted, or subjected to
any restriction of personal liberty by reason of any acts or
convictions that preceded his departure from the Requested
State. Any safe conduct provided for by this article ceases
twenty-five days after the Central Authority of the Requesting
State has notified the Central Authority of the Requested State
that the person’s presence is no longer required, or if the
person has left the Requesting State and voluntarily returns to
it.
Article 13 obligates the Requested State to use its best
efforts to ascertain the location or identity of persons
specified in a request.
Article 14 obligates the Requested State to use its best
efforts to effect service of any document transmitted to it by
the Requesting State for that purpose. A request for the
service of a document requiring a person to appear in the
Requesting State must be transmitted a reasonable time before
the scheduled appearance. Proof of service is to be provided by
the Requested State in the manner specified in the request.
Article 15 obligates the Requested State to execute
requests for search, seizure, and delivery of any article to
the Requesting State if the request includes the information
justifying such action under the laws of the Requested State.
It provides that, upon request, every official who has custody
of a seized article is required to certify, through the use of
Form C appended to the Treaty, the continuity of custody, the
identity of the article, and the integrity of its condition. No
further certification is required. The certificate is
admissible in evidence in United States courts as proof of the
truth of the matters set forth therein. The Central Authority
of the Requested State may impose upon the Requesting State
terms and conditions deemed necessary to protect the articles
to be transferred.
Article 16 requires the Requesting State’s Central
Authority, upon request of its counterpart in the Requested
State, to return the articles provided under the Treaty when
they are no longer needed for the relevant investigation,
prosecution, or proceeding.
Article 17 provides that, upon request of the Central
Authority of the Requesting State and to the extent permitted
by its law, the Requested State must endeavor to locate, trace,
restrain, freeze, seize, forfeit, or confiscate the proceeds
andinstrumentalities of crime. The party having control of
forfeited or confiscated proceeds or instrumentalities is required to
dispose of them in accordance with its laws. To the extent permitted by
its laws, either party may transfer such property, or the proceeds of
its sale, to the other party upon mutually acceptable terms.
Article 17 further provides that where the Requesting State
seeks assistance in the enforcement of a court order which
restrains, forfeits, confiscates, or otherwise immobilizes the
proceeds of crime, the request must include the original signed
order, or a copy thereof, bearing the official seal of its
Central Authority.
Article 18 states that nothing in the Treaty shall prevent
the parties from providing assistance to each other through the
provisions of other treaties or arrangements, or through the
provisions of their national laws.
Article 19 provides that the Central Authorities of the
Contracting Parties shall consult, at times mutually agreed, to
enable the most effective use to be made of the Treaty, either
generally or in relation to a particular case.
Article 20 provides that the Treaty shall enter into force
on the date on which the parties exchange written notification
that they have complied with their respective requirements for
the entry into force of the Treaty. Article 20(2) provides that
the Treaty shall apply to requests whether or not the relevant
acts or omissions occurred prior to the Treaty entering into
force. Article 20(3) further provides that either party may
terminate the Treaty by written notice to the other party,
termination to take effect six months after the date on which
notice is given.
A Technical Analysis explaining in detail the provisions of
the Treaty is being prepared by the United States negotiating
delegation, consisting of representatives from the Departments
of Justice and State, and will be transmitted separately to the
Senate Committee on Foreign Relations.
The Department of Justice joins the Department of State in
favoring approval of the Treaty and related exchange of notes
by the Senate as soon as possible.
Respectfully submitted,
Madeleine Albright.