A-G Mark Dreyfus clears way for pilot Daniel Duggan’s extradition to the US

The Albanese government has waved through Washington’s request to hand over a former American fighter pilot to US authorities.

Former US jet pilot and now Australian citizen Daniel Duggan is fighting against his extradition.

The Albanese government has waved through Washington’s request to hand over a former American fighter pilot to US authorities, who accuse him of providing military training to ­pilots working for the People’s Republic of China.

Attorney-General Mark Dre­y­fus last week agreed to receive the US’s extradition request for Daniel Duggan, 54, who has been in custody since October 21.

The former Marine has been indicted in the US on charges including conspiracy to unlawfully export defence services to China, conspiracy to launder money, and violating the arms export control act and international traffic in arms regulations.

The political decision to receive the US request for extradition clears the way for a magistrate to now determine whether Mr Duggan is eligible for surrender – a separate legal decision which could be appealed all the way to the High Court.

An Attorney-General’s Department spokeswoman confirmed the decision.

“Under Australia’s Extradition Act 1988 and Australia’s extradition treaty with the US, the Attorney-General was required to make a decision by 25 December 2022 as to whether to formally receive the extradition request,’’ she said.

“The Attorney-General has complied with this requirement, and Mr Duggan’s lawyer has been informed of that decision.’’

Mr Duggan had been arrested in rural NSW in October following a request from the US for his “provisional arrest.’’

Washington then lodged a formal extradition request on December 9.

The decision by Mr Dreyfus is a substantial development in the complicated extradition process and comes as a major blow for Mr Duggan, who strongly denies any wrongdoing and has vowed to fight his extradition. He will go before a magistrate on January 10.

If he is later found eligible for surrender, he still has a number of appeal avenues, including the Federal Court of Australia in the first instance.

That decision could then be further appealed to the Full Court of the Federal Court, where it would be heard before three Federal Court judges. His matter then could potentially end up at Australia’s highest court, the High Court in Canberra.

Mr Duggan’s wife Saffrine, who is raising his six children on the farm near Orange where her husband was arrested, described the decision as “disgusting and despicable”.

“It is appalling and it all runs off the back of the US,” she told The Australian on Tuesday.

“He’s pissed, he’s angry, upset, emotionally distraught.’’

Saffrine Duggan, the wife of former US fighter pilot Daniel Duggan. Picture: Liam Mendes

A former US pilot who flew in Harrier “jump jet” fighter planes, Mr Duggan moved to Australia in the late 2000s and set up a business offering joy flights to tourists near Hobart, called Top Gun Tasmania. He has six children from two marriages to Australian women, and has been married to Saffrine Duggan since 2015.

She has previously described him as a patriot with the “morals of an angel’’ and said he would never act contrary to Australia’s national interests.

Mr Duggan, a permanent Australian resident since 2002, renounced his US citizenship a decade later, solely holding Australian citizenship. His children are all Australian citizens.

Saffrine Duggan, left, Daniel Duggan and family members. Picture: Instagram

Authorities have not explained why they moved against Mr Duggan now, more than a decade after his alleged offences, which relate to short-term contracts he allegedly conducted with the Test Flying Academy of South Africa on three occasions between 2010 and 2012.

The academy, which is deeply connected to Chinese state-owned aviation entities, is the subject of intense scrutiny from the Five Eyes intelligence partners, the US, UK, Australia, New Zealand and Canada.

Mr Duggan was arrested days after the British government was embarrassed by media reporting of 30 retired RAF pilots taking ­lucrative contracts to train military pilots in China.

After living for years in China, where he ran a bar and worked in aviation and exporting, Mr Duggan had relocated to Australia with the intention of taking up a job on the NSW south coast.

Mr Duggan’s lawyer Dennis Miralis has previously told Downing Centre Local Court in Sydney that the indictment levelled against his client was “wrong at law’’ as Australia did not have the same legislation as the US which prohibits providing defence services to China.

Australian National University international law professor Donald Rothwell told The Australian the political process in which the Attorney-General approved the extradition had now been met.

“Duggan still has the right to contest the extradition and we know that his lawyers have flagged a number of grounds in which they’re going to pursue that before the courts,’’ he said.

Professor Rothwell said there were two primary grounds upon which Mr Duggan could seek to contest the extradition.

“An Australian judge will need to be satisfied that Duggan is subject to relevant US law with respect to his alleged conduct, that will inevitably go to some level of technicality about the actual extent of US law,” he said.

Professor Rothwell flagged a possibility for the US to apply for the extradition on the grounds of “nationality” since the alleged offending occurred between 2010 and 2012, while Mr Duggan was a US citizen.

“That provides a potential jurisdictional basis for US law to apply for Mr Duggan’s extradition, and that as a US national Duggan was subject to US law even when that alleged conduct occurred outside of the US,” Professor Rothwell said.

The second ground for appeal was on the notion of double criminality. “This is a very basic principle of extradition law, and that is that when an extradition request is made, the basis of the extradition request in terms of the criminal charge is a criminal charge that is respected or recognised in the country from which extradition is sought,” he said.

“So there needs to be double criminality both under US law and Australian law.”

Professor Rothwell said he was unaware of an equivalent Australian law applicable to Australian citizens to which Mr Duggan has been charged with in the US, but noted he did not have ­access to the charge street.

“I’m not aware of any cases where Australians have been charged with equivalent offences having been committed outside of Australia, so it certainly seems to me as being a good, solid legal argument for Duggan and his legal team to mount.’’