Dual Criminality Is Essential for Extradition, But It Didn’t Exist When Duggan Was Arrested

Greens Senator David Shoebridge tabled a petition in federal parliament on 2 July, calling on the federal attorney general Mark Dreyfus to refuse to extradite Australian citizen and former US marine pilot Daniel Duggan in regard to having trained Chinese nationals to fly in 2012.

At the time Shoebridge tabled the petition in the Senate, it had been signed by 24,720 Australians, while three weeks on, the online petition has garnered the signatures of 26,947 individuals, who are all pleading with the nation’s chief lawmaker to allow the father-of-six to return home.

Duggan was arrested by AFP officers in October 2022 in the NSW town of Orange, where he lives with his family. The authorities wouldn’t tell him why he was being arrested. And he was then placed in solitary in a maximum-security facility, where he was also classified as “high-risk”.

Dan is charged under a 2017 Trump-era indictment over a conspiracy with eight other unnamed individuals to export defence services in violation of a US arms embargo, which translates to training foreign nationals, including Chinese people, to fly at a world renowned flight school in South Africa.

Indeed, Duggan has been remanded in prolonged isolation for 21 months now, as the US attempts to extradite him, with Dreyfus having signed off on the initial stage of the process in December 2022.

However, on 24 May, after numerous hearings over contested matters, NSW Magistrate Daniel Reiss greenlighted the US extradition request.

And the balls back in Dreyfus’ court now, as the nation’s chief lawmaker must make the final decision on an extradition that reeks of geopolitical motivations designed to heighten the current cold war climate leading up to a US war on China, which this nation is subserviently following it into.

Dreyfus can turn this around

Section 22 of the Extradition Act 1988 (Cth) provides that once a magistrate has decided an individual is an eligible person for extradition in relation to the qualifying extradition offence, the AG must “as soon as is reasonably practicable… determine whether the person is to be surrendered”.

But this is by no means the end of the road for Duggan, as the pilot and his legal representatives, which include esteemed ACT barrister Bernard Collaery, who’s providing his services on a pro bono basis, are about to file a section 22 submission to contest extradition.

As to what Collaery and his associates are about to pull out of their hat remains to be seen, but the Duggan case is one that has been strewn with irregularities that have provided the legitimate hope that the case might be dropped but have also left Dan suffering through a long stretch on remand.

A standout anomaly relating to the Duggan case is that in 2022, right before his arrest, he’d been managing a flight school in China, when he received a message from ASIO stating he’d been provided security clearance for an ASIC card, which opens up opportunities for working as a pilot in Australia.

On return, however, the card clearance offer was no longer on the table. And two weeks later he ended up on remand in Silverwater. Duggan then put in a formal complaint to the Inspector General of Intelligence and Security, suggesting that he’d been lured back to Australia in order to arrest him.

In the US, spies can lure suspects in this way, however Australian agents can’t use such techniques. And ASIO asserted in March that the classified report cleared its agents of any wrongdoing, however the IGIS had contacted the Free Dan Duggan team and informed them that one breach had occurred.

Dual criminality

Dan Duggan was a fighter pilot for the US marines over the 13 years ending in 2002. He became an Australian citizen in 2010, which was around the same time he became associated with the Test Flying Academy of South Africa (TFASA).

The alleged offending behaviour occurred in 2012. Duggan is said to have trained Chinese nationals to land on aircraft carriers. And Dan’s position at TFASA was to train nationals from all over the world to fly. And this was a common practice of ex-servicepeople on leaving the military.

The Extradition Act is not the only piece of legislation that contains the laws that govern Dan’s extradition, as the 1976 Treaty on Extradition between Australia and the USA, also contains provisions that outline the rules when attempting to extradite a person from Australia to the US.

And the 2017 Trump indictment lays four charges against Dan, which consist of one count of conspiracy, another of money laundering and two of exporting defence services in violation of a US embargo on military exports to China”. And in these circumstances, flying skills are a military export.

However, there was no prohibition at that time on ex-servicepeople from the Australian Defence Forces training foreign nationals in the skills they’d learnt whilst serving in the military, such as how to fly a plane. 

And section 19(2)(c) of the Extradition Act stipulates that a person is eligible for surrender if the offence the extraditing country seeks to pursue is also an offence in the Australian jurisdiction where the proceedings are taking place and was at the time that the extradition request had been made.

While section 10(3) of the Extradition Act clarifies this dual criminality requirement, in that if the conduct constituting the extradition offence in the extradition country had occurred in Australia at a particular time, that conduct would have constituted an offence of a similar kind in this country too.

Comparable standards a little too late

The key aberration in the Duggan case is that ex-servicepeople, especially pilots, training others how to fly after finishing their time in the military was a common practice.

This was evidenced by the actions of the UK and Australia on arrest of Duggan, as both nations decided to inquire as to whether any of their ex-military pilots who’d been working as flight instructors had broken the law, yet none had, due to the fact that it wasn’t illegal.

And further to this point, during 6 September 2023 Senate Foreign Relation Committee hearings regarding the AUKUS partnership, US Senator Bob Menendez raised concerns about the UK and Australia’s export control regimes operating differently and not comparable to those in the States.

Menendez was referring to the International Traffic in Arms Regulations (ITAR), which controls the import and export of defence products from the US. This regime commenced in 1976, however the measures involved have been heightened ever since the late 1990s.

ITAR laws not only cover actual weapons, but they relate to restrictions on ex-servicepeople teaching certain military skills. These regulations also contain a list of export controlled and embargoed countries, and China is one such nation that was placed on the list in 1989.

And in response to Senator Menendez’s question, US assistant secretary of state for political – military affairs Jessica Lewis replied that the US government was “confident that Australia and the UK, and the United States will end up with comparable standards”.

And Lewis was right, at least in regard to our nation, as in March this year the Defence Amendment (Safeguarding Australia’s Military Secrets) Bill 2024 and the Defence Trade Controls Amendment Bill 2024 were both passed in parliament.

A range of laws are included in these bills, which have served to classify those who’ve worked for the ADF but have since left as foreign work restricted individuals, which bars them from working for a military organisation or government body or even a designated foreign country, without permission.

And breaking these new laws, which include providing training to foreign nationals, can see an individual sent away for up to 20 years.

So, as Lewis said during the US Senate committee hearings last September, Australia did end up with comparable laws. However, these weren’t in place at the time that the extradition request for Duggan was issued by the United States.

And as sections 10 and 19 of the Extradition Act both stipulate dual criminality is needed for an extradition to legally take place, and the comparable extradition offence must be in place “at the time at which the extradition request in relation to the person was received”.

So, in terms of Duggan’s case, the offences that the US has primarily charged him with, weren’t reflected in the laws of this country at the time the extradition request was made.

Indeed, the crime that the US charges Duggan with only commenced being a crime in this country in March this year, which was 18 months after the AFP took him away from his six kids and wife, Saffrine, which would indicate there are no grounds for which Dan can be extradited under local law.

The Duggan family is trying to raise funds to cover legal expenses, as the AFP froze a property Saffrine owns on the NSW south coast at the behest of the US, and the family hasn’t been able to receive Legal Aid.