Attorney General Mark Dreyfus is currently deliberating on whether to send Australian citizen Dan Duggan to the United States after the former US Marine fighter pilot lost his bid against his extradition in May this year.
An Australian citizen, Duggan was arrested in October 2022 on behalf of the US government by the Australian Federal Police in the NSW regional town of Orange, where he was living with his wife Saffrine and their six Australian kids. The pilot had served as a US Marine over the 13 years to 2002, which was the same year he first came to live in this country, and he became naturalised in 2012.
Duggan, 56, is currently detained on remand at the Macquarie Correctional Centre maximum security facility for men, in the town of Wellington, and he’s been held in prolonged isolation within a number of NSW correctional facilities over the last two years without charge.
Washington accuses the ex-Marine of conspiring with eight others to export US defence services in the form of pilot training.
The key legal question that continues to haunt the case against Duggan remains the extradition requirement of ‘dual criminality’ being met, which means that the crime he’s accused of committing in the United States is also a crime in Australia.
But by the time Duggan’s legal team was before the court to argue against extradition in May this year, it understood that the battle for his freedom had to be tackled at the legislative level, as laws going back to the 1980s ensure that extradition requests can be rigged.
ASIO had long been monitoring
Duggan worked in South Africa instructing Chinese nationals on how to fly, which included techniques for landing jets on aircraft carriers using a 1960s training plane at the Test Flying Academy of South Africa (TFASA) over March, April and November 2012. But there were no actual aircraft carriers involved.
The academy is a respected flying school that’s been delivering training to the Chinese aviation sector since 2003. Duggan was informed that he would be training Chinese civilian test pilots.
The allegations within the 2017 US Department of Justice indictment that alleges he engaged in a conspiracy were only raised publicly for the first in December 2022, when Washington’s official extradition request was lodged locally. The document claims Duggan’s activities in South Africa were in violation of a US International Traffic in Arms Regulations (ITAR) ban on exports to China.
But since these revelations, details have emerged of two meetings that an officer from the Australian Security Intelligence Organisation (ASIO) initiated in Hobart not long after his return from flight training in South Africa in late 2012 and prior to his moving to China to work as an aviation consultant in March 2013, with his family in tow.
The initial meeting involved the ASIO officer, another more senior ASIO representative and an agent from the US Naval Central Intelligence Service (NCIS), and Duggan was taken by surprise that additional people were involved. The second meeting that took place in February 2013 involved his ASIO contact and the NCIS agent from the United States.
During these meetings it was clear to Duggan that the agents were well aware of his flight training activities at the TFASA school in South Africa, yet they were “indifferent” to them. But he also found they had “an entirely different attitude towards the ‘business’ activities and possibilities in China”.
Duggan did express his willingness not to go back to China if his proposed activities there or his prior actions in South Africa “were inappropriate to ASIO”, however he says the agents encouraged him to return in order to conduct business and “make money”.
The Duggan family returned to Australia prior to the commencement of the Covid pandemic, while the former US Marine continued to manage the AVIBIZ flying consultancy in the Chinese city of Qingdao, until his return to Australia in September 2022.
The father-of-six has explained that not only did the ASIO agents not discourage him from working in China as a consultant, but in fact he considered they were seeking to recruit him to spy for ASIO by gathering information and contacts for them.
According to a May 2024 letter Duggan sent to the Inspector General of Intelligence and Security (IGIS), of which a copy has been seen by Declassified Australia and other media outlets, the pilot says he was asked by ASIO to collect information in China, as “a human intelligence source”, and he believes ASIO were offering to “recruit” him in that regard.
Duggan goes on to add that after his first meeting with ASIO that he had considered assisting the agency. But on asking to sign a written agreement cited during the initial meeting at the second meet, it appeared that his main ASIO contact had forgotten the document, so the agreement was never formally established. As the meeting concluded, he was told “be careful, we’ll be in touch”.
The former US Marine did agree to maintain contact with an ASIO intermediary while in China, and this comprised of a former Australian embassy consular official. The intermediary had not raised any issues in regard to Duggan’s consultancy work or any other matters right up until after his return to Australia.
ASIO’s attempt to recruit
Following his October 2022 arrest, Duggan submitted a complaint to the Inspector General of Intelligence and Security. This led to an inquiry and ASIO director general Mike Burgess said in March that the IGIS, Christopher Jessup, after investigating the complaint, had cleared the spying agency of any wrongdoing.
The IGIS reported that although ASIO was found to have acted “both ethically and within the law at all times in matters regarding Daniel Duggan”, the intelligence agency had transcended “the bounds of propriety in one respect”. But the IGIS declined to detail that impropriety, and the full report remains classified.
In the March 2024 letter Duggan sent to the IGIS in response to the inquiry findings, the ex-US Marine pilot outlines that, when ASIO met with him before he went to China, he’d been asked to “help them in gathering intelligence valuable to ASIO”.
Duggan had initially hesitated to sign a document formalising the arrangement, but later he “decided to assist ASIO”. However, at their second meeting in early 2013, the lead ASIO agent “forgot” to bring the relevant document to sign, and as a result, the arrangement was never formally struck.
The Australian citizen further underscores in the correspondence to the IGIS that in relation to his then recent training activities in South Africa “neither ASIO or NCIS made any claim or gave any warning that the activity was considered illegal”.
ASIO had been aware of Duggan’s flight training activities in Australia and South Africa long before the Hobart meetings. In his letter to the IGIS in May, the pilot explains that the domestic spying agency had been providing him with security clearances for Aviation Security Identification Cards (ASICs), as required on a two-year basis, at least four times prior to their first meeting.
An ASIC card provides extra clearance for pilots, who operate to or from Australian commercial airports.
A law to fit the ‘crime’
The revelations around the US grand jury’s tolling request have the federal government intimately involved in the White House attempt to extradite Duggan going back to at least mid-2016.
According to the submission prepared by his lawyer Bernard Collaery and others, the suggestion is that the Australian government created the section 83.3 offence in order to ensure that ‘dual criminality’ was established, and this was done with the knowledge that a provision within section 19(2)(c) of the Extradition Act 1988 (Cth) would serve to criminalise the extradition subject retrospectively.
A commentary produced by Cardinal Legal intelligence analyst Dr Glenn Kolomeitz, which was included with the submission, posits that the local offence establishing ‘dual criminality’ did not pass into law until after the 2017 indictment had been finalised and this leads to “a reasonable inference [that] the timing has been exploited or manipulated in order to facilitate” Duggan’s extradition.
“There is no expressed or implied prohibition in the Australian Constitution on the enactment of laws with retrospective effect,” Kolomeitz makes certain. He adds that there are common law protections against retrospective legislation while article 15 of the International Covenant on Civil and Political Rights (ICCPR) specifically prohibits the application of retrospective criminal laws.
A political pawn in the anti-China game
Along with other commentators, Kolomeitz asserts that the case against Duggan “reeks of politics”. The lawyer insists that the 2017 indictment was produced at the time the US, the UK and Australia were commencing to frame policies around “China as an adversary” and former Australian foreign minister Bob Carr has also noted that this was when local media began propagating a ‘China panic’.
Duggan raises this point in his May letter to the IGIS, as he states that “it is widely known a change in geopolitical strategy within the Five Eyes network coincides with the timing of the prosecution of the indictment against me”. Established in 1946, the Five Eyes is the primary intelligence sharing relationship between the US, the UK, Australia, New Zealand and Canada.
The former US Marine’s arrest further came just four days after the BBC reported that up to 30 British pilots had been employed to train Chinese pilots, some at the same South African flying school for whom Duggan worked.
The UK Defence Department stated on the day of the report that they were “taking decisive steps to stop Chinese recruitment schemes attempting to headhunt serving and former UK Armed Forces pilots to train People’s Liberation Army personnel in the People’s Republic of China”.
Both Australia and New Zealand later vowed to investigate their own ex-military pilots in regard to training foreign nationals post-service, which was once a common practice.
In line with the requirements of the AUKUS military pact, both Australia and the United Kingdom vowed to introduce laws mimicking the US export control regime which Australia did in March this year, when it passed two pieces of defence legislation to facilitate this.
As for why Washington has singled out Duggan to serve as an example to other ex-military officers who might consider doing business with China at a time when tensions between the United States and Beijing are only mounting, it appears linked to another TFASA flying school employee.
Duggan had unwittingly worked alongside Chinese businessman, Stephen Su Bin, who was the TFASA business agent in Beijing when Dan was training pilots for the school in South Africa in 2012.
Su Bin was later revealed as a hacker and arrested in Canada on behalf Washington in 2014. He was then extradited to the United States, where he pleaded guilty to having assisted Chinese hackers steal documents related to Boeing and other military aircraft. In 2016, the Chinese national was sentenced to just under four years prison in relation to these crimes.
Duggan was then barred from leaving China for the next seven years due to unfounded suspicions that he was involved in the arrest of Su Bin. His ASIO intermediary then “advised” him to visit the embassy as it could assist him in “leaving China”, but Duggan says he didn’t take up the offer to leave partly as Chinese monitoring and surveillance had increased.
The pilot told the IGIS in May that, despite earlier media reports suggesting that he was lured back to this country by ASIO with the understanding that he’d been provided with a security clearance for his Australian Security Identification Card, it was his decision to return to Australia as soon at the seven-year ban on leaving had expired, and he doesn’t consider the spying agency enticed his return.
Duggan further sets out in his submission that on applying for the ASIC card in early October 2022, he appeared to have been approved, and the card was in the mail, but he was then notified that due to an “adverse security assessment”, his card had been cancelled and retrieved. A few days later, a letter arrived from ASIO head Mike Burgess explaining this decision, however it was dated 28 September 2022.
And on expressing concern that the top spy had intervened in his ASIC security clearance matter, Duggan was informed by a new ASIO contact that such “high level involvement” was indeed rare.
As Collaery outlined in a submission to the Attorney General in March, correspondence between Duggan and Su Bin was found on the hacker’s devices. It was after these details came to the attention of US authorities that the grand jury was called upon to consider the case of Dan Duggan.
Breaking a law that didn’t exist
“Under the Extradition Act,” a spokesperson for the Free Dan Duggan campaign explained to Declassified Australia, “you have a situation where a foreign government, like the United States, can come in years after the event and rely on legislation for ‘dual criminality’ that has not come into effect until many years after the alleged crime. You have a state of perpetual retrospectivity.”
“A foreign country, like the US, can already have an illegal activity that isn’t a crime here but as long as they make that a crime here before they make the extradition request, which could be 20, 30 or 40 years after the event, that’s allowed under our current Extradition Act,” the spokesperson said.
A team of lawyers, led by barrister Bernard Collaery, produced a detailed submission provided to the Attorney General in August. Collaery has been a victim himself of a vindictive Federal Government that sought to prosecute his alleged role in revealing the Australian government’s ‘alleged’ bugging of Timor-Leste government offices in 2004, in order to gain an advantage in oil and gas treaty negotiations.
The submission highlights that 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” also comprises a crime in Australia “at the time at which the extradition request” was received.
The anomaly involved in the establishment of ‘dual criminality’ in this case is that US submissions rely on the 2018-enacted offence contained in section 83.3 of the Criminal Code Act 1995 (Cth). This law makes military-style training provided to a foreign political organisation or a foreign government illegal. The flying academy in South Africa, TFASA, falls under the latter prohibited entity as it’s a foreign public enterprise.
Taken together the offence of providing military-style training involving a foreign principal and the Extradition Act’s retrospective clause serve to criminalise Duggan’s flight training in South Africa after the fact.
The submission currently before Dreyfus underscores that “other Australian citizen aviators who have provided like flying lessons to foreign nationals”, including Chinese citizens who have been provided visa clearance by ASIO, “both in Australia and abroad, are not retrospectively liable to prosecution”.
“This appears to offend the generally accepted notion that the law should apply equally,” the document adds.
Widening the ‘dual criminality’ net
The 2017 District Court of Columbia grand jury indictment pertaining to Duggan lays four US charges against him. These include money laundering, conspiracy to defraud, and two counts of violating an arms control embargo against China in terms of delivering a defence service. It’s the latter two counts that trigger doubts over whether ‘dual criminality’ is met under Australian law.
The legal submission to the Attorney General indicates that the US affidavit attached to the Trump era indictment outlines that in 2016, when the extradition and jury process was underway, a tolling period, or a pause to the five-year statute of limitations related to the alleged crimes, was applied, which provided approximately 629 extra days in order to allow Australia to reply to an official request.
The US made the request on 23 June 2016 and on 8 August that same year the tolling period was applied. The records of response from Australia were received in the US on 14 March 2018, when, by that stage, the indictment had already been finalised. The Australian submission was received prior to 1 January 2019 which was the date when the statute of limitations, including tolling, expired.
Duggan’s legal team asserts that as the Australian government has failed to respond to a request as to the purpose of the tolling period, the inference is that the US made a request to Australia during the grand jury process to ensure that ‘dual criminality’ was met under Australian law, as the US case is based upon the section 83.3 offence which had not yet been enacted into law in mid-2016.
The National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 was passed in Australian parliament on 28 June 2018. It inserted section 83.3 into the Criminal Code, with the offence being enacted into law after the jury paused for tolling and had then gone on to finalise the indictment.
In his submission to the chief Australian lawmaker, Collaery explains that a tolling period can only be granted when an official request has been made for evidence and that it “reasonably appears” is present in a foreign country. The barrister adds that the question involved here is whether the jury should have made such a request without providing any factual representations to support it.
The final stage in a sacrifice
With extradition already greenlighted, Attorney General Dreyfus is now considering the legal submission, and the Duggan family awaits the final decision.
If Duggan is denied a reprieve, he’s set to stand trial in the US to face a combined maximum penalty of up to 65 years imprisonment.
“People get the basic concept: that you can be going about your business in Australia and not break the law, but what you’re doing is considered an offence somewhere else for whatever reason,” the spokesperson for the Free Dan Duggan campaign said.
“But years later, they can change the law here and then that country where it has been an offence for a while can suddenly extradite you.”
—
Before you go…
If you appreciate Declassified Australia’s investigations, remember that it costs both time and money. Join almost 10,000 followers and get our Newsletter for updates.
We’d really appreciate if you could subscribe to Declassified Australia to support our ongoing investigations. Thank you.
