Government Claims Attorney General Can’t Reverse Decision to Extradite Dan Duggan

Former Australian attorney general Mark Dreyfus signed off on the process of Washington’s attempt to extradite Australian citizen Daniel Duggan in late 2022, and he provided the final greenlight last December, following the NSW Local Court having approved extradition. Yet, since Labor’s Michelle Rowland took over as the nation’s chief lawmaker in May, the AG’s power appears to have dissolved.

A former US marine pilot, Duggan has been held in prolonged isolation in NSW maximum-security correctional facilities since 21 October 2022, in respect of a US extradition request related to a 2017 District Court of Columbia grand jury indictment, which means that Duggan, a naturalised Australian since 2012, has been in prison for over 1,000 days without any criminal offences laid against him.

A recent letter from the Attorney General’s Department responding to the Duggan family, which comprises of wife Saffrine and six Australian children, notes that extradition is the process by which another nation requests that a person wanted for criminal prosecution be returned to it, and the potential for this to occur depends on the alleged conduct being criminalised in both countries.

Criminalisation in both countries is known as dual criminality, according to the AG’s letter, and this requirement is where the dubious nature of the Duggan extradition has been exposed, because the crime that Dan stands accused of, and of which he denies perpetrating, involves providing flight training to Chinese military personnel, yet this wasn’t a crime here at alleged time of commission.

Reversal of decision

“Dan Duggan, an Australia citizen has been in maximum-security for over 1,000 days,” said international lawyer and Australian Defence Force veteran Glen Kolomeitz in a recorded message last Friday, 15 August. “The US charges against him just don’t stack up. This case doesn’t bode well for the protection of Australian sovereignty, or indeed, for our own citizens from US overreach.”

“This sets a dangerous precedent: extradition for something that was not a crime at the time, handed over to a foreign country by our own country, his case hasn’t been tested in court and nor can it ever be tested in an Australian court,” the lawyer continues. “It has been 13 years since the alleged events.”

“Now, the attorney general can step in at any time and stop the extradition request.”

But according to the recent letter from the AG’s office, the ex-US marine pilot, who held the position for the 12 years prior to 2002, has been approved for extradition under the Extradition Act 1988 (Cth), and “the attorney general does not have the power to overturn the decision to surrender Mr Duggan to the United States to face prosecution for the offences for which he is accused”.

Sections 12 through to 27 of the Extraction Act set out the process regrading AG approval for the courts to assess extradition in relation to a request and in the case of that being a successful attempt, issuing the surrender certificate to hand the person over to a foreign power. There is no provision, however, ensuring that once the chief lawmaker does greenlight extradition, they can’t reverse this.

Not a crime over here

Subsection 19(2)(c) of the Extradition Act outlines that dual criminality is required for extradition to take place, and this means that if the conduct constituting a person’s alleged crime overseas had “taken place in the part of Australia… at the time at which the extradition request in relation to the person was received”, it would also have constituted a crime here.

Duggan, who recently turned 57, is charged in the 2017 US grand jury indictment with one count of conspiracy to defraud, another of money laundering, along with two counts of violating a US arms embargo on China in the form of flight training services. The US claims Duggan committed these offences while training Chinese military personnel to fly in South Africa in 2012, but Dan denies this.

The issue in respect of dual criminality is that the US arms embargo offence that involved violating the US International Traffic in Arms Regulations (ITAR) law, which bans ex-US military pilots from training Chinese military personnel, had no local equivalent here. So, despite Dan’s claim that he only trained Chinese nationals, not soldiers, even if he had trained military, it wasn’t a crime in Australia.

Duggan’s legal team, led by esteemed barrister Bernard Collaery, has raised the point that attached to the 2017 US indictment was a submission that outlined that the grand jury had requested a tolling period, or a pause to the five-year statute of limitations applying to the crime being considered, so that it could request evidence from the Australian government.

The jury was provided with a 629 day tolling period commencing on 8 August 2016, and the response from our government arrived in the States on 14 March 2018. Duggan’s lawyers have surmised that as there is no explanation as to what evidence was being ascertained from Australia, it must relate to whether dual criminality was made out in order for the request to be actioned.

The reason this appears to be the case is that dual criminality was achieved via the offence of providing military-style training that involves a foreign principal, contrary to section 83.3 of the Criminal Code Act 1995 (Cth). But the issue with this offence being the crime that provides the basis for extradition is that it passed into law in June 2018, the year after the indictment was sealed.

A pawn in the China war game

Section 39B of the Judiciary Act 1903 (Cth) permits Duggan to appeal the final decision of the attorney general to the Federal Court of Australia. The father-of-six will have his day in court to challenge the dubious nature of the case against him in October this year.

Kolomeitz told Sydney Criminal Lawyers in 2023 that he considers Duggan has been detained in this manner with a view to extradition to the United States because it serves to reinforce the justifications behind the cold war build up to a major military conflict against China that this country is currently engaged in at the behest of the United States.

So, in this way, Dan’s case serves as a cautionary tale in regard to what relations with Beijing can result in.

Further credence is provided to this scenario when it is considered that 2017 was when the Australian media commenced framing China as adversary, which is a phenomenon that former foreign minister Bob Carr told a 2023 anti-AUKUS meeting in Marrickville, he was aware began playing out at the time, when a “China panic” began being propagated. 

The Duggans are currently struggling to make ends meet as Dan’s wife, Saffrine, was attempting to sell a NSW south coast property that she owned in order to support the family and cover her husband’s legal costs, however the Australian federal police assisted Washington in placing a seizing order on that property, claiming it had been bought with the proceeds of crime.

“Dan’s family are relying on donations to help fund their Federal Court challenge. In the meantime, the Australian taxpayer is footing the bill for the United States,” Kolomeitz added in his comment on the Duggan extradition appeal. “It doesn’t sound very fair to me.”

Please donate to the Free Dan Duggan Chuffed fund or directly to the Free Dan Duggan campaign in order to help cover the legal representation for the extradition appeal of the Australian father-of-six