The Federal Court held that Art II(1) of the Australia-US Extradition Treaty contains a dual criminality requirement but without any temporal condition requiring the conduct to have been criminal in both countries at the time it was committed. Treaty provisions addressing the mutuality of criminality between two States do not operate as limitations, conditions, exceptions or qualifications on the definition of 'extradition offence' in s 5 of the Extradition Act; rather, dual criminality is assessed at the s 19 stage under s 19(2)(c), and s 11(6) precludes treaty provisions from imposing additional or different requirements at that stage. The Court further held that 'similar circumstances' in Art II(4) refers to correspondence in the extraterritorial reach of offences and does not import a temporal requirement.
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