Australian High Court Affirms Discretion of Requesting State to Request Extradition

On March 4, 2003, the High Court of Australia affirmed the validity of the Attorney General of Australia’s request to extradite Antony Gordon Oates, a director of a company based in Australia in 1995 whom the Australia Securities Commission charged with securities fraud. On January 11, 1995, Mr. Oates, the petitioner/appellant was a director of Bell Resources Ltd. a company based in Western Australia. An officer of the Australian Securities Commission brought a complaint and a warrant was issued for his arrest. On July 7, 1996, the Australian Attorney General requested the extradition of Oates to Australia from the Republic of Poland. The request charged Oates with: conspiracy to defraud contrary to section 412 of the Criminal Code of Western Australia; eight counts of improper use of position as a company director contrary to Section 229(4) of the Companies (Western Australia) Code: and eight counts of failure to act honestly as a company director contrary to Section 229(1) of the Companies (Western Australia) Code. Poland arrested Mr. Oates and he remained in custody until may 1997. Mr. Oates’ counsel argued that the Australian Attorney General had no right to request his extradition for crimes that were not expressly mentioned as extraditable crimes in the 1932 Extradition Treaty between Australian and Poland. The Request for extradition was invalid and should be quested. Oates’ counsel argued that the language of the 1988 Act imposed limitations on the exercise of power to make a request for extradition. The case indicates a creative way whereby a relator can challenge extradition, namely by mounting a challenge not in the requested state (here Poland), but also in the requesting state. Even if the challenge is not successful, the challenge sometimes can successfully influence proceedings in the requested state.