Attorney General’s Christmas Gift to Dan Duggan: You Will Be Extradited to the US

In a short statement delivered to the family of Australian pilot Dan Duggan on Friday, 20 December 2024, Federal attorney general Mark Dreyfus explained that he’d determined to extradite the father-of-six Australian kids to “the United States to face prosecution for the offences of which he is accused”, and the extradition will take place sometime after next Monday, 30 December and before 17 February.

One of the starkest anomalies involved in the case against the former US Marine pilot of 12 years is Australian law requires that a domestic offence covers the same criminal act a foreign country seeks extradition over, but the local crime that facilitates Duggan’s extradition wasn’t enacted until 2018, six years after the alleged crimes took place and a year after the US indictment was sealed.

NSW Magistrate Daniel Reiss greenlighted extradition of the former US Marine pilot to the United States back in May. However, the extradition process requires the AG to sign-off on the commencement of any extradition, and, as he has just done, to provide the final nod for an extradition to proceed.

Dreyfus has waited until Christmas, a month after federal parliament closed, to deliver his decision, it would seem, because this time of year sees much of the population on holiday and caught up in the festive season, so the timing results in the least political fallout, as most constituents aren’t watching.

Mind you, for Dan’s six Australian kids and his wife, Saffrine, to receive this decision just days before Christmas is highly traumatising.

After Dan’s barrister Bernard Collaery provided Dreyfus with a submission on 23 August, outlining why the case against his client should have been dropped – and those injustices are many and glaring – it’s been open for the attorney to have issued this decision at any point since.

Indeed, SCL featured an article last month, speculating that the reason the nation’s chief lawmaker hadn’t made the decision by then was that he might have been waiting until the Christmas/New Years break to deliver it, just as he did when approving the extradition process, as that announcement was made to the public on 28 December 2022.

Yet, for those continuing to pay attention, it appears that for the AG at least, this callous act of political expediency outweighs any undue harms that the delivery of his undesirable Christmas message might have upon the Duggans, and as well as upon the father himself, who, after 26 months, is continuing to be held in prolonged isolation on remand without any local charges.

Ensuring criminality

The Free Dan Duggan campaign outlined on Monday that Dan’s family are devastated to have learnt via a short letter from Dreyfus delivered to them last Friday, that the AG has determined to extradite him. And while he added that he’d taken the Collaery submission into consideration, Dreyfus gave no sound explanations as to why he’s come to this decision.

A 2017 District Court of Columbia grand jury indictment lays four charges against Duggan’s name: one count of money laundering, another of conspiracy to defraud, along with two counts of violating a US International Traffic in Arms Regulations (ITAR) ban on exporting US defence services to China, in the form of flight training to Chinese nationals, specifically on how to land on aircraft carriers.

Dan’s alleged crimes are said to have transpired when he worked at the Test Flying Academy of South Africa (TFASA). Duggan had been instructing Chinese nationals on techniques for landing jets using a 1960s training plane. This took place over three months in 2012 and while the training involved no actual aircraft carriers, the US claims the students were from the Chinese military.

Duggan was a pilot in the US Marines for the 12 years to 2002, and it was when he left the US military that he first came to live in Australia. And after marrying and having children, Dan became an Australian citizen in 2012.

Esteemed barrister Collaery provided the attorney general with “representations as to why he should not be surrendered to the United States”, as Dreyfus put it last Friday, and in arriving at his decision, the AG said he “took into consideration all material in front of” him, which means he’s clearly contemplated the issue surrounding ‘dual criminality’ that plagues the extradition case.

During the 2016 indictment hearings in the US, the grand jury requested a tolling period, or a pause to the five-year statute of limitations relating to the alleged crimes, and this was granted, according to a US affidavit that was attached to the indictment.

This meant the US grand jury was provided with an extra 629 days in which to request evidence from Australia and so that Canberra would have time to respond.

As no reasons for this tolling period were provided by the US affidavit, Dan’s legals found the only plausible inference is the grand jury paused to ensure that the requirement of ‘dual criminality’ was met under Australian law.

The Extradition Act 1988 (Cth) requires that if a foreign country wants to extradite someone from Australia, the crime they stand accused of overseas must too be a crime here. This is dual criminality.

However, section 19(2)(c) of the Extradition Act provides that dual criminality is met “if the conduct… constituting the offence in relation to the extradition country” is also a criminal offence in Australia “at the time at which the extradition request… was received”.

As a Free Dan Duggan campaign spokesperson explained to Sydney Criminal Lawyers in October, as dual criminality is met if the behaviour constitutes a criminal offence at the time of the extradition request, this means that if the said behaviour was not a criminal offence in this country at the time it was committed, it can later be made a crime to facilitate a specific extradition request.

As the spokesperson put it, this legal mechanism provides “a state of perpetual retrospectivity”.

In Duggan’s case, his training of Chinese nationals in 2012 was allegedly unlawful in the US due to a preexisting law. But at that time, the Australian citizen had done nothing wrong in this country, as this practice was not illegal. And this is regardless of whether the flight students were involved with the Chinese military, as the US claims, or they were regular civilians, as the school asserts.

Requested on 23 June 2016, the US grand jury’s tolling period commenced on 8 August that year, and at that time, the behaviour regarding the flight training in the indictment continued not to be an offence in Australia.

The US grand jury received a response from this country on 14 March 2018, prior to expiration of the tolling period on 1 January 2019, which was the last day the grand jury could have filed the indictment for the charges to stick with the extension of the statute of limitations. However, the grand jury had already sealed the indictment in 2017, despite the pending response.

Dual criminality has been met in respect of Duggan’s extradition request via section 83.3 of the Criminal Code Act 1995 (Cth), which contains the criminal offence of providing military-style training that involves a foreign principal. And this crime carries a maximum penalty of 20 years inside.

This offence, however, was not enacted into federal law until after the passing of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 in June 2018, long after Duggan is said to have committed the offences and a year after his indictment was sealed.

“Callous and inhumane”

“We are shocked and absolutely heartbroken by this callous and inhumane decision which has been delivered just before Christmas with no explanation or justification from the government,” said Saffrine, in a recorded video message on Monday.

“We feel abandoned by the Australian government and deeply disappointed that they have completely failed in their duty to protect an Australian family.”

Political analyst Dr Glenn Kolomeitz of Cardinal Legal has suggested the reason why Duggan has been thrown to the dogs is that he’s a convenient political pawn at a time when the US is attempting to frame “China as an adversary” in the lead up to a potential war with Beijing, and this is underscored by the indictment being filed in the same year, 2017, in which this policy outlook took hold.

The shift in the way that China was being framed in the public sphere was too noted by former foreign affairs minister Bob Carr, who told an anti-AUKUS meeting in Marrickville in March 2023, that he recalls a change to the way in which the Australian media was referring to China in 2017, in that it was being suggested that the East Asian giant was becoming increasingly aggressive.

The Duggan family are too facing financial hardship, as, on the request of the US, the Australian Federal Police seized a property that Saffrine owned on the NSW south coast at this time last year, as she’d been attempting to sell it to cover her husband’s legal costs. A US judge issued a restraint and forfeiture order in respect of the property and local authorities facilitated this.

“We are now considering our options,” said Saffrine, as her family face their second Christmas without their father.

“It is very difficult to explain to the children why this is happening to their father, especially now, at this time of year,” continued the mother-of-six, who has been tirelessly campaigning for her husband to be returned, ever since he was ripped away 26 months ago.

“We are all terrified that we may not see him for a very long time. My children are very, very sad.”