GENERAL OVERVIEW

Extradition for taxation offences may take a variety of forms, each of which are governed by different laws.

A person living in Australia may be the subject of extradition proceedings under the Extradition Act 1988 (Commonwealth) for breaching the taxation laws of another nation.

A person living outside of Australia may be the subject of extradition proceedings commenced in Australia for a breach of the taxation laws of Australia, such as the Income Tax Assessment Act 1936 (Commonwealth).

A person living in Australia in one State may be the subject of proceedings to extradite him or her from that State to another State, under the Service and Execution of Process Act 1992 (Commonwealth).

In this Information Page we will give an overview of each of these possibilities.

We do not attempt to analyse the law comprehensively in the short space available as all areas of taxation and extradition law are relatively complicated. The best advice we can give in the short space available here is that if you are suspected of committing a taxation offence and are contacted by the taxation authorities and / or police is to seek specialist legal advice URGENTLY. 

EXTRADITING PEOPLE FROM AUSTRALIA

The law governing extradition proceedings in Australia for situations when foreign nations seek to extradite a person from Australia, is to be found in the Extradition Act of 1988 passed by the Commonwealth Parliament of Australia.

The first step in the proceedings is for the foreign government to seek the extradition of the person by filing documents at the Local Court level in Australia, which is known as the “extradition” request.

The Magistrate at the Local Court level must then make a decision as to whether or not the person who is the target of the extradition proceedings is “eligible for surrender”.

If the person is “eligible for surrender”, then the Magistrate has power to order the imprisonment of the person pending the person’s extradition to the foreign nation.

A person is only “eligible for surrender” for an “extradition offence”, which is defined by the Act in the following terms:

• it is an offence against the law of the foreign country;
• the maximum penalty for the offence in the foreign country is death, imprisonment or other deprivation of liberty for a period of not less than 12 months.

It can be seen, therefore, that in the context of extradition for taxation offences that the alleged offences must be relatively serious before the Court in Australia is given power to order the extradition of the person.

The Act goes on to provide further restrictions against the extradition of persons, stating that a person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:

• the supporting documents in relation to the alleged offence have been produced to the Magistrate; and
• the Magistrate is satisfied that if the alleged conduct which is the subject of the extradition proceedings had been committed in Australia that an offence would have been committed; and
• the person does not satisfy the Magistrate that there are substantial grounds for believing that there is an “extradition objection” in relation to the offence.

The Court will consider carefully what supporting documents are produced, and this is an area where specialist legal advice could be critical, because it is necessary to have an understanding of the laws and procedures of the foreign nation in order to advise a client as to whether the appropriate “supporting documents” have been produced to the Australian Court. The law reports in Australia refer to many cases in which the technicalities of the documents produced by the prosecuting authorities of foreign nations have been challenged.

The provision that the Magistrate must not believe that there are substantial grounds for an “extradition objection” is also a critical provision and we deal further with issue.

Without attempting to exhaustively define an “extradition objection” in the short space available here, such an “extradition objection” exists if it can be shown by the person who is the subject of the extradition proceedings that:

• the surrender of the person, in so far as it purports to be sought for the extradition offence, in this case, a taxation offence, is actually sought by the foreign country for the purpose of prosecuting or punishing the person on account of his or her race, religion, nationality or political opinions; or
• on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, religion, nationality or political opinions; or
• assuming that the conduct constituting the extradition offence, or equivalent conduct, had taken place in Australia at the time at which the extradition request for the surrender of the person was received, that conduct or equivalent conduct would have constituted an offence under the military law - but not also under the ordinary criminal law - of Australia; or
• the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country, or Australia, or has undergone punishment provided by the law of that country or Australia in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence.

If you are facing extradition from Australia to another country, it is most advisable to seek expert legal assistance, in order to develop your case for opposing the order for extradition sought (if that is your wish) and also for legal representation in Court. This area of the law is complicated, and expert legal help may well determine whether or not you succeed. 

EXTRADITING PEOPLE TO AUSTRALIA

We are necessarily limited in what we can say about the extradition of persons to Australia, because the Australian taxation authorities must commence legal proceedings in the nation in which the person who is the subject of the proceedings is living.

The course of those legal proceedings and the success or failure of the proceedings will depend on the facts of the case and how the law of that foreign nation in respect of extradition proceedings applies to those facts.

Perhaps the best advice we can provide is to seek the advice of reputable, well known legal advisers in that nation in order to receive the most accurate advice on what is in your best interests in that situation.

Lawyers working in that country in that specialised field will be able to provide you with the appropriate advice relevant to that country and its legal procedures in respect of extradition. 

EXTRADITING PEOPLE WITHIN AUSTRALIA FROM ONE STATE TO ANOTHER

Extradition of persons from one place or “jurisdiction” in Australia to another is facilitated by the Commonwealth’s Service and Execution of Process Act of 1992.

From the earliest times in the Federation of Australia, it was recognised that legal proceedings commenced in one jurisdiction, eg South Australia, required some mechanism to be enforceable in another place in Australia which was outside the immediate jurisdiction of the Courts and prosecution officials of South Australia, eg another State of Australia.

The Service and Execution of Process Act of 1992 replaced former Commonwealth legislation which dealt with this topic.

Essentially, the Act provides that where legal proceedings may be commenced in one jurisdiction in Australia, those proceedings may be served on a person in exactly the same form in another jurisdiction.

An example would be as follows:

1. Mrs X lives in Whyalla, South Australia. She works in two jobs, in a manufacturing firm and also as a taxi driver on weekends;
2. she has been underpaid income tax by $25,000 over a period of 3 years by not declaring to the Commissioner of Taxation in her annual income tax returns income derived from her second job as a taxi driver;
3. she is approached by investigators from the Taxation Office in relation to the alleged underpayment of taxation;
4. soon after, she takes flight to Tasmania;
5. the taxation officials in South Australia become aware that she has disappeared and commence a prosecution against her through the Director of Public Prosecutions based in Adelaide. She does not attend Court and an ex parte (in her absence) warrant is issued for her arrest;
6. she is apprehended in Tasmania on the warrant when attempting to pose as a licensed taxi driver in Hobart;
7. proceedings are then brought pursuant to the Service and Execution of Process Act to have the South Australian proceedings served upon her in Tasmania, and she is then extradited to South Australia to face the Court system there.

The most important point to bear in mind is that the Act is largely procedural. It is designed to facilitate the legal proceedings of a large nation and the basics of the legislation have been in existence since the earliest times of the Federation. The Court will be reluctant to find any fatal errors in the process because the Court will not want to frustrate the basis of the proceedings, which is that a person cannot escape the legal process in one jurisdiction in Australia simply by leaving that jurisdiction for another part of Australia.

Therefore, our advice is not to resist or obstruct the police officers or any Court officials involved if you are served with legal documents under the Act, but instead to make detailed notes at the time or as soon as possible afterwards, and to obtain copies of documents wherever possible, so that the legal technicalities of the service of the documents on you and their content can be considered by expert legal advisers at a later time and any relevant objections to the legal formality and content of the documents can be presented to the Court in opposition to the prosecution's application for an extradition. Remember that the officials serving the legal proceedings upon you are obliged under the Commonwealth Act to follow the same procedures as are required in the originating State, so detailed legal advice will be needed as to the procedures in that State. 

THE IMPORTANCE OF GETTING EXPERT ADVICE EARLY

The legal system is criticised very regularly for being slow to provide justice.

You will greatly improve your state of mind and also improve your chances of receiving a just outcome in your case if you seek legal advice early.

In the case of extradition for taxation offences, it is highly desirable to obtain specialist legal advice, so that you will have a better understanding of the legal procedures involved, what is likely to happen in your case and what options and techniques you have available to oppose the extradition application if this is your wish.

Also important is to obtain expert accounting advice as soon as possible, as legal advice can only go so far and lawyers are not competent to provide purely accounting advice. Much may hinge on the appropriate interpretation to be made of balance sheets, profit and loss statements, particular transactions, deductions and so on. Expert accounting advice may be vital in assisting you in these aspects of your case.

It is your decision whether or not you want to have legal representation.

Many legal firms will provide a free first interview and can help provide answers about how long your case with take to resolve, what you can do to avoid getting off on the wrong foot, what you can do to assist in the running of your case in terms of gathering evidence and so on, and also how much your case is likely to cost if you decide to have accounting advice and legal representation. 

FURTHER INFORMATION

This information is provided by the firm of Ryan & Bosscher Lawyers who specialize in this area of law. They are located at Level 1, 255 Castlereagh Street Sydney 2000, or call them on (02) 9266 0708. 

Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become a leading Criminal Defence firm in New South Wales. We are committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.