Pointing to how this represents another example of how Australians are stripped of fundamental protections to enhance diplomatic and administrative convenience, widely published criminologist Dr Ian Warren, says under Australia’s current model of extradition, foreign justice agencies are not required to show there is sufficient evidence to justify proceeding with a case against one of our citizens.

The Deakin University senior lecturer, who has extensively researched transnational criminal justice for over a decade, says the “no-evidence” standard – which removes the process of judicial review of prima facie evidence – views extradition as an executive function only.

This means the final decision is made by the Attorney-General away from the transparent processes of Australia’s courts.

“While our extradition regime was enacted in 1988 to ensure fugitives could not escape justice, the impact of a globalised digital economy and the extraterritorial reach of foreign justice agencies has created a situation where Australian executives, fintech and tech entrepreneurs are increasingly vulnerable to prosecution from countries they may never have stepped foot in at the time of an alleged offence,” he told Lawyers Weekly.

Dr Warren said that in viewing extradition as an executive function only, the “no-evidence model” eliminates any consideration of the evidence gathering practices of the foreign justice agency and should be removed from Australian extradition law.   

Introduced to make the extradition process more efficient, it limits the magistrate’s or judge’s discretion to determine eligibility for extradition by eliminating consideration of any significant factual requirements.

Dr Warren says Australia should reinstate the protection of requiring prima facie evidence against the accused. 

“This should be applied to all extradition treaties signed by Australia and be incorporated into the Extradition Act,” he said.

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“Failure to do so creates inconsistencies with some other nations under existing treaties.

“For example, Australian authorities seeking people located in the United States must show they have evidence that meets the probable cause standard before extradition will be granted.”

By contrast, US authorities do not have to meet this standard in cases involving Australians. 

Dr Warren affirmed that courts should retain a central role in any decision to send an Australian to face a jury empanelled in a foreign country.

“Any process that removes grounds for judicial review or alters that process in extradition is problematic because it is already potentially stacked against the person sought by the foreign justice agency for political reasons,” Dr Warren said.

“From my point of view, the ‘[no-evidence]’ model is just another way of stacking the cards against the person being sought by the foreign justice agency.”