Protocol Amending the 1974 Extradition Treaty with Australia

PROTOCOL AMENDING THE 1974 EXTRADITION TREATY WITH AUSTRALIA

TREATY DOC. 102-23

1990 U.S.T. LEXIS 226

September 4, 1990, Date-Signed

MESSAGE FROM THE PRESIDENT OF THE UNITED STATES

TRANSMITTING THE PROTOCOL AMENDING THE TREATY ON EXTRADITION BETWEEN THE UNITED STATES OF
AMERICA AND AUSTRALIA, SIGNED AT SEOUL ON SEPTEMBER 4, 1990

TEXT:

102D CONGRESS

SENATE

LETTER OF TRANSMITTAL

THE WHITE HOUSE, February 19, 1992.

To the Senate of the United States:

With a view to receiving the advice and consent of the Senate to ratification, I transmit herewith the Protocol
Amending the Treaty on Extradition between the United States of America and Australia, signed at Seoul on
September 4, 1990. I also transmit for the information of the Senate the report of the Department of State
with respect to the Protocol.

The Protocol supplements and amends the Treaty on Extradition between the United States of America and
Australia, signed at Washington on May 14, 1974. It is designed to update and standardize the conditions
and procedures for extradition between the United States and Australia. Most significant, it removes an
outdated [*2] list of extraditable offenses from the 1974 Treaty and expands upon the dual criminality
approach contained in that Treaty. The Protocol also provides a legal basis for temporarily surrendering
prisoners to stand trial for crimes against the laws of the requesting State. The provisions in this Protocol
follow generally the form and content of extradition treaties recently concluded by the United States.

This Protocol will make a significant contribution to international cooperation in law enforcement/a>. I recommend
that the Senate give early and favorable consideration to the Protocol and give its advice and consent to
ratification.

GEORGE BUSH.

LETTER OF SUBMITTAL

DEPARTMENT OF STATE,

Washington, February 13, 1992.

The PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you the Protocol Amending the Treaty on Extradition between
the United States of America and Australia, signed at Seoul on September 4, 1990. I recommend that this
Protocol be transmitted to the Senate for its advice and consent to ratification.

The provisions of this Protocol follow generally the form and content of extradition treaties recently concluded
by the United States. It represents [*3] a concerted effort by the Department of State and the Department
of Justice to modernize the legal tools available for the extradition of serious offenders such as narcotics
traffickers and terrorists.

Upon entry into force, this Protocol will supplement and amend the 1974 Treaty on Extradition between the
United States of America and Australia, signed at Washington on May 14, 1974.

Article 1 of the Protocol replaces Article II of the 1974 Treaty in its entirety. It rearticulates the dual
criminality approach contained in the 1974 Treaty which is used to determine whether a particular offense is
extraditable and eliminates the outdated list of extraditable offenses contained in the 1974 Treaty. This
modern extradition practice emphasizes extradition based on underlying criminal conduct rather than the
particular designation of the offense contained in our respective criminal codes. A dual criminality clause
permits extradition for any conduct that is punishable in both States by imprisonment or other detention for at
least one year. Inclusion of a dual criminality clause obviates the need to renegotiate or supplement the
Treaty as offenses, such as computerrelated crimes or money [*4] laundering, become punishable under the
laws of both States.

Article 1 of the Protocol also requires extradition for conspiring, attempting or participating in the commission
of an offense under the Treaty, as amended.

An offense is extraditable under Article 1 of the Protocol, notwithstanding any interstate transportation or
mail-use elements required to establish U.S. Federal jurisdiction. This provision will allow the United States to
obtain extradition for such offenses even though Australian law does not include analogous jurisdictional
elements for similar underlying criminal behavior.

Article 1 further requires extradition for extraterritorial offenses so long as the law of the requested State
would provide for extraterritorial jurisdiction under similar circumstances. The requested State is also given the
discretion to grant extradition for extraterritorial offenses in all other cases.

Article 2 of the Protocol deletes Articles III and IV of the 1974 Treaty concerning territorial jurisdiction which
is now covered in more general terms under Article I of the Protocol.

Article 3 of the Protocol replaces Article V(2) of the 1974 Treaty. The Article, as amended, would continue
[*5] to permit the requested State to grant or deny extradition of its nationals but, in cases where
extradition is denied, would provide a mechanism for the requesting State to require submission to prosecution
by the requested State, to the extent permitted by its laws, of all offenses for which extradition has been
sought.

Article 4 of the Protocol deletes Article VI of the 1974 Treaty concerning the standard of proof required to
support extradition. This concept is now covered by Article 7 of the Protocol.

Article 5 of the Protocol replaces Article VIII of the 1974 Treaty and permits the requested State to deny
extradition for a capital offense, if the requesting State fails to provide sufficient assurance that the death
penalty will not be imposed or carried out.

Article 6 of the Protocol replaces Article IX of the 1974 Treaty. It allows the requested State to postpone
extradition proceedings or surrender if the fugitive who is the subject of an extradition request is being
prosecuted or is serving a sentence in the requested State. Under this provision the requested State has the
discretion to grant extradition and surrender the fugitive temporarily to the requesting State for the [*6]
purpose of early prosecution in that State. This provision will allow a person serving a long sentence in the
requested State to be tried promptly in the requesting State and returned to the requested State to complete
his sentence. This alternative of temporary surrender is routinely included in our modern extradition treaties.

Article 7 replaces Article XI of the 1974 Treaty and specifies the procedures by which extradition is to be
accomplished. The procedures provided therein are similar to those found in other modern extradition treaties.

Articles 8 replaces Article XII of the 1974 Treaty. It provides for the provisional arrest and detention of a
fugitive for no more than 60 days pending receipt of a fully documented extradition request in conformance
with Article XI of the Treaty, as amended. The discharge of a fugitive from custody does not prejudice
subsequent rearrest and extradition upon later receipt of the extradition request and supporting documents.

Article 9 of the Protocol supplements and amends Article XIII of the 1974 Treaty. It continues the mechanism
for the submission of additional information whenever the requested State considers the information provided
with [*7] the request to be insufficient. Article XIII, as amended, would also permit expedited surrender
without formal proceedings where the person sought consents to surrender after having been advised by the
competent authority of his or her right to formal extradition proceedings.

Article 10 replaces Article XIV of the 1974 Treaty concerning the rule of speciality. This article provides,
subject to specific exceptions, that a person extradited under the Treaty, as amended, may not be detained,
tried, or punished for an offense other than that for which extradition has been granted without the consent
of the requested State; nor may he be extradited without the consent of the requested State to a third State
for any offense committed before his surrender. This limitation only applies until such time as the person
leaves the territory of the requesting State and voluntarily returns or fails to leave within 15 days of being
free to do so.

Article 11 of the Protocol replaces Article XV of the 1974 Treaty and sets forth a non-exclusive list of factors
to be considered by the requested State in determining to which State to surrender a person sought by more
than one State.

Article 12 of the [*8] Protocol replaces Article XVI of the 1974 Treaty. It requires the requested State to
notify the requesting State promptly of its decision on extradition and, if it denies extradition, in whole or in
part, to provide an explanation as well as copies of judicial decisions upon request. If extradition is granted,
the fugitive must be removed from the territory of the requested State within the time prescribed by the law
of the requested State, or the person may be released from custody and a subsequent request for his
extradition may be refused.

Article 13 of the Protocol replaces Article XVII of the 1974 Treaty and provides for the seizure and ultimate
surrender to the requesting State of all items connected with the offense for which extradition is sought. This
obligation is subject to the rights of third parties. Before surrender, the requested State may require
assurances that the objects be returned.

Article 14 of the Protocol replaces the text of Article XVIII of the 1974 Treaty and provides that the
requested State shall represent the requesting State in any proceedings in the requested State arising from a
request for extradition and bear all costs other than those arising from [*9] the translation of documents
and transportation of the fugitive.

Article 15 replaces Article XIX of the 1974 Treaty and governs the transit through the territory of one of the
contracting States of a person being surrendered to the other contracting State by a third State.

Article 16 of the Protocol stipulates that the Protocol applies to offenses committed before as well as after its
entry into force.

Article 17 provides that the Protocol will enter into force immediately upon the exchange of written notification
that both Parties have complied with their respective requirements for entry into force.

A Technical Analysis explaining in detail the provisions of the Protocol 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 this Protocol by the Senate
at an early date.

Respectfully submitted,

LAWRENCE S. EAGLEBURGER.

PROTOCOL AMENDING THE TREATY ON EXTRADITION BETWEEN THE UNITED STATES OF AMERICA AND
AUSTRALIA OF MAY 14, 1974

The United States [*10] of America and Australia;

Desiring to make more effective the Extradition Treaty between the Contracting Parties signed at Washington
May 14, 1974 (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 [*11] 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 other
requirements of extradition are met.”

ARTICLE 2

Article [*12] 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 [*13] 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
[*14] 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, [*15] 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

ARTICLE 8

The text of Article XII of the Treaty is replaced by the following:

“(1) In case of urgency, either [*16] 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;

(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 [*17] 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.” [*18]

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 [*19]
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 but not limited to:

(a) whether the requests were made pursuant to treaty;

(b) the place where each offence was committed;

(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 [*20] 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 [*21] 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 [*22] 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 [*23] 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.

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 THE UNITED STATES OF AMERICA:

FOR AUSTRALIA:

Protocol Amending the 1974 Extradition Treaty with Australia

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