Dan Duggan Appeals Attorney General’s Decision to Extradite Him to the US

Dan Duggan’s legal team has commenced proceedings with the Federal Court of Australia to appeal the recent Australian attorney general decision to extradite the father-of-six children to the United States over a secret 2017 US grand jury indictment that contains some very dubious claims and criminal charges within it.

AG Mark Dreyfus delivered his decision to greenlight the extradition of Duggan, an Australian citizen, to the US, in much the same way he did when approving the extradition process itself in 2022, as on both occasions the nation’s chief lawyer dropped his decision right on the Christmas break: in 2022, he notified the family on 28 December, while this year, he delivered the message on 20 December.

“All aspects of the Australian government’s cooperation with the secret indictment will be under review in the court action,” said the Free Dan Duggan campaign in a 14 January press release. Indeed, there are some questionable aspects to the manner in which the viability of the indictment warranting extradition was secured.

Duggan was a US marine pilot for the 12 years to 2002, at which time he came to live in Australia. He married his Australian wife Saffrine, and they have six kids. By 2010, Duggan was running a joyride company Top Gun Australia. In 2012, he trained Chinese nationals on how to fly at the Test Flying Academy of South Africa (TSFASA), and he later went on to work in China as an aviation consultant.

The US is seeking to extradite the 56-year-old pilot in relation to a conspiracy set out in the 2017 grand jury indictment that alleges he trained Chinese military personnel to land jets on aircraft carriers whilst in South Africa in violation of a US arms embargo against China, of which Dreyfus has approved despite the glaring anomalies involved in the case.

Flight training didn’t raise ASIO’s eyebrows

“We have been forced to resort to court action because the government has not been transparent about this case, despite Dan being locked up in maximum security prison for the past 26 months with no Australian charges,” Saffrine Duggan said in a statement on Tuesday.

Dan was arrested in October 2022 by the Australian federal police as he came out of a supermarket in the regional NSW town of Orange, where the Duggans family home was. He’s since been remanded in prolonged solitary confinement at various NSW maximum security facilities, and he’s currently in the Macquarie Correctional Centre, in the rural town of Wellington.

The allegations against the Australian father set out in the 2017 District Court of Columbia grand jury indictment allege that as Dan was teaching Chinese nationals flight training in South Africa, those involved were Chinese military personnel. These allegations were only raised publicly in December 2022, after Dan was inside.

The document claims Duggan’s activities in South Africa were in violation of a US International Traffic in Arms Regulations (ITAR) embargo on China, as he’d engaged in the export of US defence services in the form of pilot training. If he is extradited, he’s facing two counts of violating the arms control embargo, conspiracy to defraud and money laundering.

After Duggan returned from his South African training, ASIO agents asked to meet with him in Hobart in early 2013, prior to his travelling to China to work as an aviation consultant. ASIO was aware of Dan’s work at TFASA and did not have an issue with it. The agency was more interested in his going to China, and he agreed to check in with an ASIO intermediary, whilst he was over there.

Duggan was not working for the Australian spying agency, but he did maintain periodic contact with an ASIO agent in Beijing, who had not raised any issues with the pilot as he was about to return to Australia.

“Dan is exercising his rights as an Australian citizen to due process under Australian law,” Saffrine continued in the statement regarding her husband’s Federal Court challenge of the extradition decision. “We are an Australian family, and we deserve a fair go.”

The US secret indictment

Certain aspects of the secret indictment the Federal Court will properly deliberate upon include the issue regarding ‘dual criminality’ which plagues the case. This involves a question relating to why the US grand jury, during the 2016 indictment proceedings, requested a tolling period, or a pause to the five-year statute of limitations relating to the alleged crimes that are the subject of the indictment.

A US affidavit attached to the 2017 indictment informs that the tolling period was granted, and it permitted the jury an extra 629 days in which to request evidence from the Australian government.

However, as the head of Duggan’s legal team, renowned barrister Bernard Collaery, outlined in the submission he provided Dreyfus with last August, there is no mention of why this nation had to be consulted.

The tolling period commenced on 8 August 2016, and Australia provided its response on 14 March 2018. A commentary produced by political analyst Dr Glenn Kolomeitz, which is part of the submission, suggests that as required ‘dual criminality’ was not enacted or met at the time the 2017 indictment was sealed, the “reasonable inference” is the pause was to secure that requirement.

If a foreign country wants to extradite from Australia, the Extradition Act 1988 (Cth) makes it necessary for the crime the person is accused of overseas to be a criminal offence over here.

Section 19(2)(c) of the Extradition Act provides that dual criminality is met “if the conduct of the person constituting the offence in relation to the extradition country” is also an offence in Australia “at the time at which the extradition request in relation to the person was received”.

Dual criminality has been met in the Duggan extradition request via section 83.3 of the Criminal Code Act 1995 (Cth), which contains the crime of providing military-style training that involves a foreign principal, and this offence carries a maximum of up to 20 years imprisonment.

But this Australian crime was not enacted into federal law until after the passing of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 on 28 June 2018, which inserted the offence into the Criminal Code. This was long after the secret indictment was sealed in 2017, but only months after the Australian government responded to the US jury request.

A political pawn in a not-so-certain agenda

The pending court case means that Duggan will remain on remand in Australia at least until its completion, so the 17 February deadline for extradition is no more.

The underlying question to all is this, why is the US government going to all this trouble to extradite an Australian father-of-six over dubious charges of breaching an arms embargo, and according to Kolomeitz, the answer is “the case reeks of politics”, as 2017 was the year in which the US commenced framing China as an aggressor, as it was seeking to launch a war against Beijing.

This 2017 shift in the framing of China in the public sphere was too noted by former Australian foreign affairs minister Bob Carr, who recalled, during a March 2023 anti-AUKUS meeting in Marrickville, that the change to the way in which the Australian media commenced portraying the East Asian giant involved that nation becoming increasingly aggressive on the international stage.

Yet, like many other global issues of the present, the inauguration of Donald Trump as US president next Monday, may trigger a change in the US approach to China, even though the indictment was produced during his previous term in office, and while the Australian court will deliberate upon the validity of extradition, the new US administration may question whether this debacle is all worth it.

With assistance from the AFP, the US seized a NSW south coast property belonging to Saffrine Duggan in October 2023, claiming it was bought with the proceeds of crime, as she was attempting to sell it to cover Dan’s legal fees.

The Duggans are now running a crowdfunding campaign to provide financial support for Dan’s Federal Court challenge. You can donate to the Free Dan Duggan fund here.