SUBMISSION TO THE ATTORNEY-GENERAL’S DEPARTMENT ON THE EXTRADITION REVIEW DISCUSSION PAPER

April 2006


1. INTRODUCTION

1.1 The Human Rights and Equal Opportunity Commission (‘HREOC’) is established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘HREOC Act’). It is Australia's national human rights institution.

1.2 Its functions are set out in section 11(1) of the HREOC Act and include the power to promote an understanding and acceptance, and the public discussion, of human rights in Australia.

1.3 HREOC makes this submission in response to the Attorney General’s Department (AGD) Discussion paper “A new extradition system – a review of Australia’s extradition law and practice” (the Discussion Paper”).[1]

1.4 HREOC recognises that there is a balancing act between the demand for effective international cooperation in the suppression of crime and safeguarding human rights in the extradition process.[2] Given the serious consequences of extradition and the potential for human rights abuses to occur during this process, HREOC believes adequate statutory safeguards are essential.

1.5 This submission makes comments about various issues addressed in the Discussion Paper. It focuses on the extradition process once a state has requested Australia extradite a person (hereafter “an extraditable person”) for an offence in a country other than Australia. Where HREOC has not mentioned a certain proposal or a specific aspect of any one proposal, it means that HREOC has not had the opportunity to form a view on that issue. It should not be read as opposition or support of that proposal.

2. RECOMMENDATIONS

Recommendation 1: The “appropriate safeguards principle” should be amended to state: “the extradition process should have appropriate human rights safeguards and provide appropriate judicial review, having regard to Australia’s obligations under international human rights conventions, in particular, the International Covenant for Civil and Political Rights (ICCPR), the Convention Against Torture and Other Cruel or Degrading Treatment or Punishment (CAT), the Convention of the Rights of the Child (CRC), The Convention Relating to the Status of Refugees (The Refugee Convention) and the principle of non-refoulement.”

Recommendation 2: Australia should be able to receive extradition requests from any country subject to the provision of adequate human rights safeguards set out in a statutory framework.

Recommendation 3: Given the serious consequences of extradition, HREOC is of the view that, as part of the extradition reform process, the AGD should invite the ALRC to consider the appropriate evidentiary standard in relation to requests for extradition from Australia.[3]

Recommendation 4: Section 22(3) should be expanded to state that an eligible person is only to be surrendered for extradition if the Attorney-General is satisfied that the extradition offence is not a trivial offence.

Recommendation 5: The Act should contain a presumption in favour of the principle of dual criminality. The Attorney-General may exercise a discretionary power to reverse the presumption if there is a compelling reason why extradition should be granted and the decision to extradite is consistent with the other safeguards contained in the Act. Further, the Act should require the Attorney-General to table written reasons for a decision to reverse the presumption of dual criminality in Parliament.[4]

Recommendation 6(a): HREOC strongly recommends that the Act should extend the list of extradition objections to include a mandatory prohibition on extraditing minors.[5]

In the alternative to recommendation 6(a):

Recommendation 6(b): The Act should expand the list of extradition objections to include a prohibition on the extradition of a child under 16 years of age. Such a provision would ensure Australia’s compliance with Article 3(b) of CRC.

Recommendation 6(c): The Act should be amended to include a general obligation to take into account the best interests of children as a primary consideration in all decisions which affect them (as required by article 3 of the CRC).

Recommendation 6(d): The surrender of a child for extradition should only be made in exceptional circumstances and subject to the requesting country providing an undertaking that:

(a) the child’s rights under CRC will be protected, regardless of whether or not the requesting state is a signatory to CRC; [6] and

(b) the child’s trial for the extradition offence will be consistent with standards in Australia’s domestic criminal law as they relate to children.

Recommendation 7: The political offence exception should be retained.

Recommendation 8: The Act should be amended to provide that where an offence attracts the death penalty the person should only be surrendered if the Attorney-General is satisfied that, by virtue of an undertaking given by the extradition country, one of the following is applicable: if the person is tried for the offence, the death penalty will not be imposed on the person; and the requesting country has not previously failed to comply with an undertaking not to impose the death penalty.

Recommendation 9: Subsection 22(3) should be expanded to provide that the Attorney-General must refuse to surrender a person if that person has a well founded fear of persecution or will face a real risk of other violations of fundamental human rights in the requesting country.

Recommendation 10: Subsection 22(3)(b) should be amended to include the words “inhuman or degrading treatment or punishment in the requesting country”.

Recommendation 11: The Act should be expanded to include an extradition objection that an extradition request must be refused in circumstances where (a) the extraditable person has suffered a violation of the right to a fair trial or (b) it is reasonably foreseeable that the extraditable person will suffer a violation of the right to a fair trial upon extradition. Alternatively, subsection 22(3) should be expanded to provide that the Attorney-General should not surrender a person for extradition unless the Attorney-General is satisfied that the person will have or has had the right to fair trial.

Recommendation 12: Subsection 22(3) of the Act should be amended to include a provision that an eligible person shall not be surrendered if the Attorney-General is satisfied that by reason of:

(a) the trivial nature of the offence;

(b) the accusation against the eligible person not having been made in good faith or in the interests of justice;

(c) the eligible person’s physical or mental capacity; or

(d) any other sufficient cause

it would, having regard to all the circumstances, be unjust or oppressive or too severe a punishment to surrender the eligible person.

Recommendation 13 (a): The Act specify the maximum period of detention pending extradition. If extradition exceeds this period the detained person may apply to be released.

Recommendation 13(b): The Act expand subsection 22(3) to provide that a person who has been detained pending extradition for a period in excess of 6 months, is only to be surrendered if the requesting country undertakes that, upon conviction and while imposing sentence on the extradited individual, the person will be given credit for the period of detention pending extradition.

Recommendation 14: Double jeopardy should always be an extradition objection, regardless of whether the offence for which the person has already been finally convicted or acquitted occurred in Australia or another country.

Recommendation 15: Subsections 7(b) and (c) of the Act should be retained and expanded to include sex, sexuality, ethnicity, colour, language or other status.

Recommendation 16: The principle of speciality should be retained in subsection 22(3) (d).

Recommendation 17 (a): Section 19 and subsection 22(3) should be retained in incoming extradition requests involving a request from a ‘backing of warrants country’.

Recommendation 17 (b): The relevant factors to consider in the process of prescribing a country as ‘a backing of warrants country’ should be clearly set out in the Act and include, at a minimum, that the Attorney-General is satisfied that the requesting country has made undertakings that it:

(a) will not impose the death penalty;

(b) will not subject persons to torture or inhumane or degrading treatment;

(c) will ensure persons will be accorded the minimum guarantees of a fair trial as provided by article 14 of the ICCPR;

(d) will respect the principles of speciality, dual criminality and double jeopardy;

(e) will not seek the extradition of a person for the purpose of prosecuting or punishing the person on account of his or her race, religion, nationality, political opinions, ethnicity, sex, sexuality or other status;

(f) will not seek the extradition of a person if the country believes that the person may be prejudiced at his or her trial or punished, detained or restricted in his or her personal liberty by reason of his or her race, religion, nationality, political opinion, ethnicity, sex, sexuality or other status.

(g) will not make requests to extradite minors or, in the alternative, agrees that minors should only be subject to extradition in extraordinary circumstances and in full compliance the rights conferred by CRC.

If a declared ‘backing of warrants country’ breaches any of the above undertakings, the Act should require that its status as a ‘backing of warrants country’ be immediately revoked.

Recommendation 18 (a): Sections 19 and 21 of the Act be retained in the extradition procedure

Recommendation 18 (b): Administrative decisions under the Act should be reviewable under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).

Recommendation 19: Time limits should be developed in relation to all aspects of the extradition procedure, subject to the requirements of natural justice and procedural fairness.

Recommendation 20: The current presumption against bail in the Act should be removed in favour of the prima facie right to bail.

Recommendation 21: A person should be able to consent to extradition at any time during the extradition process, subject to a statutory requirement that:

(a) the person receive, or be given the opportunity to receive, free legal advice prior to consenting to extradition;

(b) the person has the capacity to consent;

(c) The person can not consent to be extradited for an offence in relation to which:

    1. the death penalty may be imposed;
    2. the person may be subject to torture.

    Recommendation 22: In the event that a person consents to extradition, the magistrate could issue a surrender warrant at any stage in extradition proceedings if the Magistrate was satisfied:

    (a) the person has the capacity to surrender;

    (b) the person has received or had been given the opportunity to receive free legal advice;

    (c) there are no relevant extradition objections in relation to the extradition offence;

    (d) the death penalty would not be imposed/carried out on the person;

    (e) the person subject to the extradition request would not be subject to torture of inhuman or degrading treatment.

    3. ISSUE 1: GUIDING PRINCIPLES

    3.1 The Discussion Paper states that extradition reform issues are guided by the following principles: Efficiency; Reduced duplication; Transparency; Appropriate safeguards; Technological neutrality; Predictability; and Sovereignty.

    3.2 The Discussion Paper states that extradition reform issues will be guided by, inter alia, the principle that the extradition process “should have appropriate human rights safeguards and provide appropriate judicial review”.

    3.3 HREOC considers that such a guideline principle does not provide a sufficiently clear framework in which to determine what human rights safeguards are “appropriate”.

    Recommendation 1: The “appropriate safeguards principle” should be amended to state: “the extradition process should have appropriate human rights safeguards and provide appropriate judicial review, having regard to Australia’s obligations under international human rights conventions, in particular, the International Covenant for Civil and Political Rights (ICCPR), the Convention Against Torture and Other Cruel or Degrading Treatment or Punishment (CAT), the Convention of the Rights of the Child (CRC), The Convention Relating to the Status of Refugees (The Refugee Convention) and the principle of non-refoulement.”

    4. ISSUE 2: COUNTRIES AUSTRALIA WILL DEAL WITH

    Should Australia be able to receive extradition requests from any country?

    4.1 Currently Australia can only receive extradition requests from a country which is declared as an “extradition country” in the regulations.[7]

    4.2 The Discussion Paper proposes that, to combat international crime and avoid becoming a safe haven for criminals, Australia could make and receive requests to and from any country without the need for treaties or regulations on a non-reciprocal basis.

    4.3 The Discussion Paper recognises that Australia may have concerns about dealing with certain countries because of their human rights record. However, it submits that these concerns could be addressed by applying specific safeguards included in the extradition process on a case by case basis.

    4.4 HREOC observes that Australia has previously entered into extradition treaties with countries whose human rights records are arguably a cause for concern. HREOC considers that the human rights record of a requesting state (good or bad) can not be relied upon as the sole indicator of whether or not the rights of the subject of an extradition requests will be protected in the particular circumstances of a specific case.

    4.5 HREOC is of the view that the human rights record of the requesting state can be adequately dealt with on a case by case basis if adequate human rights safeguards are included in The Extradition Act 1988(Cth) (The Act) and consistently applied to all incoming extradition requests.

    Recommendation 2: Australia should be able to receive extradition requests from any country, subject to the provision of adequate human rights safeguards set out in a statutory framework.

    What standard of information should apply?

    4.6 Prior to 1985 a requesting country had to make out a prima facie case for the arrest and extradition of the person. This was removed when the Act was passed.[8]

    4.7 The Act currently provides for the ‘no evidence’ rule. This means that in proceedings under section 19[9] the person subject to the extradition request is not entitled to adduce, and the magistrate is not entitled to receive, any evidence to contradict the allegation that the person has committed an offence.[10]

    4.8 Under the ‘no evidence’ rule requesting countries are required to provide:

      (a) in the case of an offence for which the person is accused – a duly authenticated warrant; or

      (b) in the case of an offence for which the person is convicted – duly authorised documentation of the conviction, sentence imposed, and the extent to which the sentence imposed has not been carried out; and

      (c) under subsection 19(3):[11]

      (i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of , the offence; and

      (ii) a duly authenticated statement in writing setting out the conduct constituting the offence.

    4.9 In 2001 the Joint Standing Committee on Treaties (JSCT) expressed reservations about the “no evidence” model of extradition procedure in its report, Extradition – a review of Australian Extradition Law and Policy (JSCT report). The JSCT Report cited the concerns of Professor Aughterson who stated:

    There has been a trend towards streamlining the extradition process so as to facilitate extradition. This has been at the expense of individual rights. That is exemplified by the general abolition of the requirement to establish a prima facie case and the allocation of responsibility for the protection of individual rights to the executive.[12]

    4.10 The JSCT Report noted that, with the exception of criminal justice agencies, most witnesses supported the prima facie requirement as a necessary and not particularly onerous safeguard of the rights of those whose extradition from Australia is sought.[13] However, the JSCT report also accepted the evidence of the majority of witnesses that to reinstate this test in its original form would present particular difficulties for civil law countries and could inhibit effective law enforcement.[14]

    4.11 While the JSCT Report’s recommendation acknowledged the practical difficulties associated with changing the basis of Australia’s extradition arrangements, it did not favour the continuation of the default ‘no evidence’ model in relations to requests for extradition from Australia. The JSCT Report recommended the Attorney-General refer for inquiry and report by the Australian Law Reform Commission (ALRC) matters relating to the appropriate evidentiary standard in relation to requests from Australia.

    4.12 This recommendation was not implemented and, in response to the JSCT Report, the AGD stated that the ‘no evidence’ standard would continue to apply. The Discussion Paper indicates that there has been no change in this position.

    4.13 HREOC would like to note its concerns that the ‘no evidence’ model may not protect sufficiently the rights of the person subject to the extradition request. As one commentator has observed:

      Extradition proceedings are such that a person, even a national of the requested state, may be detained for a long time before being surrendered to a foreign country on standards or evidence well below those normally required by an ordinary criminal trial.[15]

    Recommendation 3: Given the serious consequences of extradition, HREOC is of the view that, as part of the extradition reform process, the AGD should invite the ALRC to consider the appropriate evidentiary standard in relation to requests for extradition from Australia.[16]

    5. ISSUE 3: ‘EXTRADITION OFFENCE’

    5.1 The Act currently provides that Australia extradites for offences which carry a maximum penalty of not less than 12 months imprisonment in the foreign country. [17]

    5.2 HREOC considers that, given the potentially grave consequences of extradition to another country, it is appropriate to ensure that a person is not extradited for a trivial offence.

    5.3 In relation to the issue of the appropriate threshold for an extraditable offence, the JSCT Report observed that Commonwealth offences punishable by a maximum of one year include those relating to failure to provide information or providing false and misleading information, as well as obstructive property offences against the Commonwealth.[18]

    5.4 The JSCT Report concluded that:

      ...given the serious consequences of extradition to a foreign country, we consider it inappropriate that extradition should be available in respect of minor offences. There are two options: [1] either that the threshold for an extradition offence be increased to at least two years imprisonment or deprivation , or [2] that the Act specify that the trial nature of the offence is a matter that the Attorney-General must consider in determining whether to surrender a person. [19]

    5.5 HREOC supports the second option recommended by the JSCT Report. While the Attorney-General could arguably exercise a discretion under subsection 22(3)(f) not to surrender a person if the nature of offence was trivial, HREOC considers it is appropriate to amend subsection 22(3) to state a person should only be surrendered if the Attorney-General is satisfied that the offence for which extradition is sought is not a trivial offence.

    5.6 HREOC observes under Extradition (Commonwealth Countries) Regulations 1998 the trivial nature of the offence is a relevant factor for the Attorney-General to consider in deciding whether to order the surrender of a person. However, this requirement is not uniform.[20] Expanding subsection 22(3) to make the trivial nature of the offence an explicit ground for rejecting the surrender of an eligible person would also have the advantage of providing uniformity and consistency in extradition decision-making procedures.

    Recommendation 4: Section 22(3) should be expanded to state that an eligible person is only to be surrendered for extradition if the Attorney-General is satisfied that the extradition offence is not a trivial offence..[21]

    5.7 A request for extradition may relate to the person who is wanted for the enforcement of a sentence of imprisonment or other deprivation of liberty imposed for such as offence. In relation to such a request, HREOC is of the view that extradition should only be granted if the original sentence was not less than 12 months imprisonment in the foreign country, a period of at least 12 months remain to be served and, the Attorney-General considers that the offence for which the sentence was imposed was not a trivial offence.

    6. ISSUE 4: DUAL CRIMINALITY

    6.1 The principle of dual criminality requires the conduct constituting the offence, either in total or part, be an offence in the requested state, as well as the requesting state, at the time the request is made. The absence of dual criminality is currently an extradition objection. [22]

    6.2 The Discussion Paper proposes making dual criminality a discretionary ground of refusal. The Discussion Paper also proposes that, as a safeguard, the Minister could retain the discretion to refuse extradition on the basis of dual criminality on a case by case basis where there are concerns about the nature of the offences for which the requesting country seeks extradition.

    6.3 HREOC observes that the principle of dual criminality focuses on the question of whether the conduct is criminal in both the requested and requesting state. Therefore if the offences in the requesting state and the requested state relate to the same or equivalent conduct it does not matter whether these offences are defined differently. [23]

    6.4 The United Nations Model Treaty on Extradition explicitly provides for the principle of dual criminality, subject to the provision that, in determining whether an offence is an offence punishable under the laws of both countries it should not matter whether:

        (a) the laws of the Parties place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology

        (b) under the laws of the parties the constituent elements of the offence differ, it being understood that the totality of the acts or omissions as presented by the requesting State shall be taken into account. [24]

    6.5 The traditional rationale of dual criminality principle has been articulated by Professor Shearer as resting “in part on the basic principle of reciprocity” and “in part of the maxim nulla poena sine lege”. Shearer states:

      ... the double criminality rule serves the most important role of ensuring that a person’s liberty is not restricted as a consequence of offences not recognised as criminal by the requested state. The social conscience is not embarrassed by an obligation to extradite a person who would, according to its own standards, be guilty of acts deserving punishment. [25]

    6.6 However, in a recent article on developments in extradition law, Gavan Griffin QC and Claire Harris note that in recent years there has been a decline in the significance of the principle of dual criminality. The article observes that the Extradition Act 2003 (UK) introduced a “Fast-Track” extradition programme which allows extradition from the UK in relation to offences carrying a maximum sentence of one year or more, without any requirement that they are also offences in the UK.

    6.7 The rationale for this development was that “if an offence is a crime on the statute book of our European partners then the UK should respect that”.[26] However, as Griffin and Harris observe:

      The adoption of such a principle may be appropriate in the circumstances of relatively ‘homogenous ‘states such as those in the EU, where the degree of integration ensures a high level of familiarity with the legal systems of Member States, and where common legal standards and accompanying enforcement mechanisms, such as the Convention for the Protection of Human Rights and Fundamental Freedoms ensure clear safeguards against potential abuses. The abandonment of the double criminality principle is clearly less appropriate where such commonality is absent. This obvious difference was recognised by the UK Government, which did not recommend the elimination of the double criminality requirement in its extradition relations with states outside the EU. [27]

    6.8 HREOC observes that the principle of dual criminality is consistent with the principles of sovereignty, predictability, transparency and appropriate safeguards. Removing the requirement for dual criminality and creating a non-reviewable discretionary power for the Minister to refuse a request for extradition on the basis of dual criminality undermines these principles, in particular the principles of predictability and transparency.

    6.9 HREOC is of the view that the principle of dual criminality offers an important safeguard against the extradition of persons for offences which have not been considered as involving criminal conduct by the Australian legislature and which may be trivial in nature or contrary to Australia’s obligations under International Conventions.

    Recommendation 5: The Act contain a presumption in favour of the principle of dual criminality. The Attorney-General may exercise a discretionary power to reverse the presumption if there is a compelling reason why extradition should be granted and the decision to extradite is consistent with the other safeguards contained in the Act. Further, the Act should require the Attorney-General to table written reasons for his decision to reverse the presumption of dual criminality in Parliament.[28]

    7. ISSUE 8: MINORS

    7.1 The Discussion Paper observes that there is no specific provision in the Act about extraditing a minor (a person under the age of 18) and that currently a request to extradite a child would be considered by the Minister in his general discretion when determining whether to surrender a person.[29]

    Should Australia extradite minors, and if so in what circumstances?

    7.2 HREOC considers that the issue of the extraditing minors must be considered in light of the rights conferred by CRC.

    7.3 Relevantly, Article 40 of CRC specifically protects the rights of the child in circumstances where the child has alleged as, accused of or recognised as having infringed the penal law.[30]

    7.4 HREOC is particularly concerned about the potential detention of children pending extradition. Relevantly, Article 37 provides that state parties shall ensure that:

      (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

      (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time ;

      (c) Each child deprived of his or her liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

      (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his other liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

    7.5 HREOC observes that other rights under CRC that may be relevant in considering a request to extradite a child include:

      (a) In all actions concerning children the best interests of the child shall be a primary consideration.[31]

      (b) A child shall not be punished on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.[32]

      (c) States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. [33]

      (d) States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.[34]

      (e) No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.[35]

      (f) A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.[36]

      (g) States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.[37]

      (h) States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.[38]

      (i) States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity.[39]

    7.6 HREOC considers that, in the context of the above provisions, it is difficult to envisage a situation in which the extradition of a child would be consistent with human rights principles.

    7.7 HREOC is of the view that the extradition of a child would only be permissible in exceptional circumstances and subject to stringent guarantees to ensure that the child’s rights under CRC will be protected.

    Recommendation 6(a): HREOC strongly recommends that the Act should extend the list of extradition objections to include a mandatory prohibition on extraditing minors.[40]
    In the alternative to recommendation 6(a):
    Recommendation 6(b): The Act should expand the list of extradition objections to include a prohibition on the extradition of a child under 16 years of age. Such a provision would ensure Australia’s compliance with Article 3(b) of CRC.
    Recommendation 6 (c): The Act should be amended to include a general obligation to take into account the best interests of children as a primary consideration in all decisions which affect them (as required by article 3 of the CRC).
    Recommendation 6(d): The surrender of a child for extradition should only be made in exceptional circumstances and subject to the requesting country providing an undertaking that:

    (a) the child’s rights under CRC will be protected, regardless of whether or not the requesting state is a signatory to CRC; [41] and

    (b) the child’s trial for the extradition offence will be consistent with standards in Australia’s domestic criminal law as they relate to children.

    8. ISSUE 9: POLITICAL OFFENCE EXCEPTION

    8.1 The political offence exception provides that the requested state must refuse extradition if the offence for which the extradition is sought is of a political character. The Act currently prohibits extradition for a ‘political offence’. [42]

    8.2 The definition of a political offence is contained in s 5 and includes a long list of conduct which will not constitute a political offence for the purposes of the Act.[43] However, as Professor Aughterson has observed, “the positive ambit of the term ‘political offence’ is not clarified, other than to state it means that an offence of a political character’.

    8.3 The United Nations Model Treaty on Extradition provides extradition should not be granted if the offence for which the extradition is requested is regarded by the State as an offence of a political nature.

    8.4 HREOC observes that the protection provided by the political offence exception currently contained in subsection 7(a) of the Act is broader than the protection provided in s 7(b) the Act. Section 7(b) provides for an extradition objection if the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on the account of his or her race, religion, nationality or political opinions.

    8.5 Section 7(b) requires the person to establish that the request for the offence was sought for the purpose of prosecuting the person on account of his or her political opinions, race, religion, nationality or political opinion. Section 7(a) does not require the person subject to the request to establish the intention behind the prosecution; it is sufficient that the offence is a ‘political offence’. This safeguard avoids the potential for a requesting state to argue that the purpose of extradition is not to prosecute the person on account of their political opinions but to preserve public order or prevent trespass.

    8.6 HREOC is of the view that the political offence exception provides valuable safeguard against the prosecution of offences which criminalise conduct involving offences of a political character. Such offences could include, but are not limited to, political advocacy, protest, dissent or industrial action not intended to cause serious physical harm, death, the endangerment of life or create a risk to the health and safety of the public or a section of the public.

    Recommendation 7: The political offence exception should be retained.

    9. HREOC’S SUBMISSIONS ON HUMAN RIGHTS SAFEGUARDS

    9.1 The principal safeguards in the Act are currently contained in the list of extradition objections[44] that will act as a bar to extradition under subsections 16(2)(b), 19(2)(d) or 22(3) which provides a person is only to be extradited if the Attorney-General is satisfied:

    (a) there is no extradition objection;

    (b) the person will not be subjected to torture;

    (c) the death penalty will not be imposed or carried out;

    (d) a speciality assurance has been given;

    (e) a mandatory ground for refusal in the regulations does not apply, or a discretionary ground for refusal does not apply;

    (f) in the Attorney-General’s discretion, the person should be surrendered.

    9.2 HREOC is of the view that while the combined effect of sections 7, 19 and subsection 22(3) currently provide important safeguards, the Act should expand the existing safeguards to better reflect Australia’s international obligations.

    The Death Penalty

    9.3 Subsection 22(3)(c ) of the Act currently provides that that an eligible person subject to an extradition request where the offence is punishable by the death penalty the person is only to be surrendered if the requesting state provides an undertaking that:

      • (a) the person will not be tried for the offence;
      • (b) if the person is tried for the offence, the death penalty will not be imposed on the person; or
      • (c) if the death penalty is imposed on the person it will not be carried out.

    9.4 HREOC observes that to comply with Australia’s obligations under the ICCPR, safeguards are necessary to ensure that a person subject to an extradition request is not extradited for an offence for which the death penalty may be imposed.

    9.5 In Roger Judge v. Canada,[45] the HRC unanimously determined that Canada had breached its obligations under article 6(1) of the ICCPR by deporting Mr Judge “without ensuring that the death penalty would not be carried out.” The HRC also held Canada was in breach of articles 6 and 2(3) of the ICCPR for arbitrarily deciding to deport Mr. Judge “to a state where he is under sentence of death without affording him the opportunity to avail himself of an available appeal.” The HRC stated: 

      For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application. Thus, they may not remove, either by deportation or extradition, individuals from their jurisdiction if it may be reasonably anticipated that they will be sentenced to death, without ensuring that the death sentence will not be carried out.[46]

    9.6 In McCrea v Minister for Customs and Justice[47] the Full Bench of the Federal Court upheld the primary judge’s decision that Australian courts do not have the power to inquire into whether an extraditing country will honour an undertaking not to impose the death penalty, stating that such an undertaking is not enforceable at law.[48]

    9.7 However the Full Federal Bench did not accept the primary judge’s conclusion that the Act does not require the undertaking to be effective, only that such an undertaking is made. The Full Federal Bench stated that s23(3)(c ) was an important safeguard and “the seriousness of the subject matter suggests that it is very unlikely that nothing more than compliance with a verbal formula was intended”, adding [at 275]:

      There is much to be said for the view that the expression “by virtue of an undertaking” requires that the decision maker consider whether the undertaking is one that, in the context of the system of law and government of the country seeking surrender, has the character of an undertaking by virtue of which the penalty of death would not be carried out.

    9.8 HREOC considers that, in light of Australia’s international obligations and bi-partisan opposition to the death penalty a person should not be surrendered for an offence punishable for the death penalty without an undertaking from the requesting country that the death penalty will not be imposed or the person will not be tried for the offence. Given that any undertaking provided by the requesting country to Australia is not legally enforceable, HREOC considers it is not sufficient for the requesting country to undertake that if the death penalty is imposed on the person it will not be carried out.

    Recommendation 8: The Act be amended to provide that where an offence attracts the death penalty the person should only be surrendered if the Attorney-General is satisfied that, by virtue of an undertaking given by the extradition country, one of the following is applicable: if the person is tried for the offence, the death penalty will not be imposed on the person; and the requesting country has not previously failed to comply with an undertaking not to impose the death penalty.

    Non refoulement

    9.9 Article 33 of the Refugees’ Convention prohibits State Parties from returning (‘refouling’) a refugee to the frontier of a country where, amongst other things, his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group.

    9.10 The international obligations of non-refoulement can also apply to persons who may not have a fear of persecution for the reasons set out under the Refugees’ Convention but who face a ‘real risk’ of violation of their fundamental human rights, for example, the right not to be subject to inhuman or degrading treatment.

    9.11 The principle of non-refoulement is also found in Article 3 of CAT which provides no state party shall expel, return or extradite a person to another State where there are substantial grounds for believing he would be subject to torture (see para 9.14-918).

    9.12 General Comment 20 of the UN Human Rights Committee states:

      States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.[49]

    9.13 Non-refoulement is a principle of customary international law, as well as a creature of treaty. As commentator Guy Goodwin-Gill has observed:

      [T]he principle of non-refoulement, both as a treaty and a custom-based norm, extends to every individual having a well-founded fear of persecution, or who faces a substantial risk of torture, or possible other serious violations of fundamental human rights. Moreover, the principle of non-refoulement prohibits the return of such individual by any means whatsoever, including refusal of admission at the frontier, deportation, expulsion, forcible return no matter the place of interception, and extradition[50]

    9.14 In HREOC’s view, when considering an extradition request, Australia is obliged to consider whether there is a real risk that, at a minimum, the following rights will be violated:

      • The right to life (article 6 of the ICCPR; article 6 CRC);
      • The right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment (article 7 of the ICCPR; article 1 & 16 of CAT; article 37 CRC); and
      • The right not to be arbitrarily detained (article 9(1) of the ICCPR; article 37 CRC); and
      • The right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person (article 10(1) of the ICCPR; article 37 CRC).
    Recommendation 9: Subsection 22(3) should be expanded to provide that the Attorney-General must refuse to surrender a person if that person has a well founded fear of persecution or will face violations of fundamental human rights in the requesting country.

    Torture or inhuman degrading treatment or punishment

    9.15 Article 7 of the ICCPR provides no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, while the CAT specifically prohibits extradition to a State where the requested person is in danger of being subjected to torture.[51]

    9.16 Article 16 of CAT provides that each State Party shall also undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity

    9.17 In Soering v United Kingdom, the European Court of Human Rights (ECHR) considered whether the extradition of a person from the United Kingdom to the United States should be refused because, if extradition was granted, the person was likely to spend several years on ‘death row’ awaiting execution. This treatment, it was argued, was contrary to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantees freedom from inhuman and degrading treatment. In upholding Soering’s claim, the ECHR stated [at 89]:

      It would hardly be compatible with the underlying values of the Convention, that “common heritage of political traditions, ideals, freedom and the rule of law” to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed... in the Court’s view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article (art.3). [52]

    9.18 The ECHR’s decision is Soering was followed by the HRC in Ng v. Canada[53] where it held that execution by gas asphyxiation would not meet the test of “least possible physical and mental suffering”, and constitute cruel and inhuman treatment, in violation of article 7 of the ICCPR. As Canada could reasonably have foreseen that Mr Ng, if sentenced to death, would be executed in a way that amounts to a violation of article 7, Canada’s decision to extradite Mr Ng. without seeking and receiving assurances that he would not be executed violated article 7.

    9.19 Subsection 22 (3)(b) of the Act provides that an eligible person can only be surrendered in relation to an extradition offence if the Attorney-General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture.

    Recommendation 10: Section 22(3)(b) be amended to include the phrase “inhuman or degrading treatment or punishment in the requesting country”.

    The right to a fair trial

    9.20 HREOC observes that the Act does not currently contain a specific provision to safeguard the eligible person’s right to a fair trial as guaranteed by article 14 of the ICCPR.

    9.21 Article 3(f) of The United Nations Model Treaty on Extradition provides, in part, that if a person whose extradition that an extradition request must be refused if that person has not received or would not receive the minimum guarantees in criminal proceedings, as contained in article 14 of the ICCPR.

    9.22 In Soering v United Kingdom the ECHR observed that extradition might be refused “in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country”.[54]

    9.23 HREOC is of the view that, consistent with Australia’s obligations under the ICCPR, the extradition process should prohibit extradition in circumstances where the person subject to the extradition request suffered a violation of their fair trial rights when they were convicted and sentenced in the requesting state and the person subject to extradition request risks having these rights violated upon extradition.

    Recommendation 11: The Act should be expanded to include an extradition object that an extradition request must be refused in circumstances where (a) the extraditable person has suffered a violation of the right to a fair trial or (b) it is reasonably foreseeable that the extraditable person will suffer a violation of the right to a fair trial upon extradition. Alternatively, subsection 22(3) should be expanded to provide that the Attorney-General should not surrender a person for extradition unless the Attorney-General is satisfied that the person will have or has had the right to fair trial.

    Extradition would be “unjust or oppressive”

    9.24 HREOC observes that in the United Kingdom, extradition will be barred if it would be unjust or oppressive to extradite the person because of the passage of time since the person was alleged to have committed the extradition offence.[55]

    9.25 The meaning of the words “unjust and oppressive” was considered in Kakis v Government of the Republic of Cyprus, where Lord Diplock stated:

      ‘Unjust’ I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, ‘oppressive’ as directed to the hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping and between them they would cover all cases where to return him would not be fair.[56]

    9.26 HREOC observes that the Act does not currently require specific consideration, either by a magistrate, or by the Attorney-General, of whether it would be unjust or oppressive to extradite the person.

    9.27 However, the Extradition (Commonwealth Countries) Regulations 1998 state that, in addition to the conditions set out in s 22(3) of the Act for the surrender of an eligible person in relation to an extradition offence, such a person shall not be surrendered in relation to such an offence if the Attorney-General is satisfied that by reason of:

      • (a) the trivial nature of the offence;
      • (b) the accusation against the eligible person not having been made in good faith or in the interests of justice; or
      • (c) any other sufficient cause;

      it would, having regard to all the circumstances, be unjust or oppressive or too severe a punishment to surrender the eligible person or to surrender the eligible person before the expiry of a period specified by the Attorney General. [57]

    9.28 HREOC considers that regulation 7 of the Extradition (Commonwealth Countries) Regulations 1998 should be considered in relation to all extradition requests, not only requests from Commonwealth Countries.[58]

    9.29 HREOC further considers that the provisions of regulation 7 would be strengthened by requiring the Attorney-General to be satisfied that by reason of the eligible person’s mental of physical capacity it would, have regard to all the circumstances, be unjust or oppressive or too severe a punishment to surrender the eligible person.

    Recommendation 12: Section 22(3) of the Act be amended to include a provision that an eligible person shall not be surrendered if the Attorney-General is satisfied that by reason of:

    (e) the trivial nature of the offence;

    (f) the accusation against the eligible person not having been made in good faith or in the interests of justice;

    (g) the eligible person’s physical or mental capacity; or

    (h) any other sufficient cause

    it would, having regard to all the circumstances, be unjust or oppressive or too severe a punishment to surrender the eligible person.

    Right not to be arbitrarily detained

    9.30 HREOC is concerned about the length of time a person may spend in detention, pending extradition. [59] These concerns are exacerbated by the current presumption against bail in the Act (see further para 16.1-16.6).

    9.31 Detention according to domestic laws (i.e. 'lawful' detention) might still be 'arbitrary' under international law. Relevantly, Article 9 of the ICCPR provides:

      Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

    9.32 The term ‘arbitrary’ has been interpreted as requiring more than compliance with domestic law. In Van Alphen v Netherlands, the HRC held the term includes “inappropriateness, injustice and lack of predictability”[60] while in A v Australia the HRC stated international law will be arbitrary if it is 'not necessary in all the circumstances of the case' or not a proportionate means to achieving a legitimate aim.[61]

    9.33 ‘Proportionality’ in the context of article 9 requires one to consider the relationship between the purpose underlying the person’s detention and the means by which the purpose is achieved. Therefore, even if the initial detention is not arbitrary, a subsequent period of detention may become arbitrary, for example, because of the length of the detention or because the detention ceases to be a proportionate response.[62]

    9.34 The United Nations Economic and Social Council Report of the Working Group on Arbitrary Detention[63] recommends:

      (a) Governments lay down, in domestic law, the maximum permissible period of detention pending extradition of an individual to the requesting State.

      (b) The requesting State, upon conviction and while imposing sentence on the extradited individual, take into account the period of detention served by him/her pending extradition by giving credit for that period of detention.

    9.35 HREOC observes that article 5(1)(f) of the ECHR provides for the lawful arrest or detention of a person against whom action is being taken with a view to deportation or extradition. The term lawful has been interpreted by the ECHR to mean lawful and not arbitrary.[64]

    9.36 In Quinn v France [65]the ECHR held that:

      It is clear from the wording of ... article 5 para(1)(f) ... that deprivation of liberty under this sub-paragraph will be justified only for as long as extradition proceedings are being conducted. It follows that if such proceedings are not being prosecuted with due diligence, the detention will cease to be justified under Article 5(1)(f).[66]

    9.37 HREOC considers that it is appropriate to ensure that detention pending extradition is proportionate. Section 26 of the Act currently provides that if a person is not removed from Australia within 2 months from the date of issue of a surrender warrant, the person can apply to be released. However, HREOC considers it would be appropriate to specify the maximum permissible time that a person may be detained, pending extradition.

    9.38 HREOC observes that such a provision could be potentially open to abuse. HREOC is of the view that the Act can safeguard against this abuse for providing strict statutory time limits to expedite court proceedings, executive actions and submissions by the extraditable person (see para. 15.1-15.6)

    Recommendation 13 (a): The Act specify the maximum possible period of detention pending extradition. If extradition exceeds this period the detained person may, on application to the Federal Court, be released.
    Recommendation 13(b): The Act expand subsection 22(3) to provide that a person who has been detained pending extradition for a period in excess of 6 months, is only to be surrendered if the requesting country undertakes that, upon conviction and while imposing sentence on the extradited individual, the person will be given credit for the period of detention pending extradition.

    10. ISSUE 10: DOUBLE JEOPARDY

    10.1 Double jeopardy, the principle that a person should not be twice tried or punished for the same offence or for offences arising from the same conduct, is currently an extradition objection[67] and, as such is a mandatory ground for: (a) the Attorney-General to refuse to issue a notice accepting the request[68]; (b) the magistrate to the determine that person is not eligible for surrender[69] and (c) the Attorney-General refusing to surrender an eligible person for extradition. [70]

    10.2 The principle of double jeopardy is a fundamental human right provided for by Article 14(7) of the ICCPR which states:

      No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with law and penal procedure in each country.

    10.3 HREOC supports the Discussion Paper’s conclusion that “double jeopardy provides important safeguards for the protection of the person’s human rights and should be retained in the extradition process”.

    10.4 HREOC notes that currently if a person has been acquitted, pardoned or punished for an offence constituted by the same conduct as the extradition offence in a third country, this would currently be considered in the Minister’s discretion.

    10.5 HREOC considers the principle of double jeopardy should always be a mandatory ground for refusing an extradition request. In HREOC’s view there is no reason why this principle should not apply to a person who is subject to an extradition request in relation to an offence for which the person has already been finally convicted or acquitted in accordance with law and penal procedure in any country.

    Recommendation 14: Double jeopardy should always be an extradition objection, regardless of whether the offence for which the person has already been finally convicted or acquitted by a court of law occurred in Australia or another country.

    11. ISSUE 11: DISCRIMINATION ISSUES

    11.1 HREOC is of the view that Australia should continue to not extradite a person sought for the purpose of prosecuting or punishing a person on account of his or her race, religion, nationality or political opinion. This is consistent with the principle of non-refoulement and Article 3(b) of the United Nations Model Treaty on Extradition [71]

    11.2 HREOC is of the view that Australia should continue not to extradite a person, in circumstances where that person may be prejudiced at his or her trial or punished, detained or restricted in his or her personal liberty, by reason of his or her race, religion, nationality or political opinion.

    Should Australia extend these grounds in the Extradition Act to include colour, sex, language and other status?

    11.3 HREOC considers that the discrimination provisions of the Act should be extended to include sex, sexuality, ethnic origin, colour, language or other status.

    11.4 The United Nations Model Treaty on Extradition includes the terms ethnic origin, sex or status. In HREOC’s view sexuality should also be explicitly included. It is, for example, clearly inappropriate for Australia to permit extradition sought for the purpose of prosecuting a person on account of their homosexuality.

    Recommendation 14: Subsections 7(b) and (c) of the Act should be retained and expanded to include sex, sexuality, ethnicity, colour, language or other status.

    12. ISSUE 13: SPECIALITY

    12.1 The principle of speciality guarantees that a person surrendered to a foreign country will not be detained, prosecuted or punished for any offence committed prior to surrender, other than the offence for which extradition was granted.

    12.2 The Act currently provides that an eligible person is only to be surrendered in relation to a qualifying extradition offence if the extradition country concerned has given a speciality assurance in relation to the person. [72] The Discussion Paper observes that requests to waive speciality are dealt with on a case by case basis.

    12.3 The Discussion Paper proposes that a more efficient way of dealing with speciality could be to require a requesting country to make an appropriate undertaking when making an extradition request. The Discussion paper states that this undertaking could allow the requesting country to prosecute the person for any other offences, provided certain human rights are guaranteed.[73]

    12.4 Commentators have observed that while the traditional rationale for the principle of speciality was state sovereignty ...

      There is a second, and from the perspective of the requested person, a critically more important function of the rule of speciality which is directed to the protection of the rights of the person subject to extradition.[74]

    12.5 The principle of speciality is a safeguard which ensures that requested States can accurately ascertain whether there is a relevant extradition objection. It acts as a safeguard against the potential abuse of human rights by the requesting state. Without the principle of speciality, other safeguards such as dual criminality, non-discrimination and double jeopardy become meaningless.

    12.6 The Discussion Paper proposes that safeguards could still be maintained by entering into an undertaking with the requesting country. It is unclear what safeguards would be protected by such an undertaking and whether the content of such undertakings would vary on a case by case basis.

    12.7 HREOC observes that negotiating such an undertaking on a case by case basis would be time consuming. The safeguards which apply to extradition procedure should be predictable and transparent. All extradition requests should be subject to the same level of safeguards and, in particular, should be assessed in light of whether or not there is a relevant extradition objection or bar to surrender under subsection 22 (3).

    12.8 HREOC also considers that if the principle of speciality was removed a person subject to extradition request would not be able to validly consent to surrender. If a person subject to an extradition consents to extradition it is imperative that the person know and understand what he or she is consenting to. Without the principle of speciality meaningful consent is not possible.

    Recommendation 15: The principle of speciality should be retained in subsection 22(3)(d).

    13. ISSUE 16: BACKING OF ARREST WARRANTS

    13.1 The Discussion Paper considers a possible model for incoming extradition requests involve a ‘backing of warrants system’. Under this proposal Australia would determine which countries are ‘backing of warrants extradition countries” by adherence to human rights conventions and reference to issues such as death penalty, torture, discrimination, double jeopardy, fair trial, independent judiciary and the right to be heard.

    13.2 The ‘backing of warrants’ system would bypass the current procedure whereby the Attorney-General accepts or reject the request.[75] Instead, the AFP would receive a request containing a foreign arrest warrant from a backing of warrants country through the backing of arrest warrants liaison officer.

    13.3 The Commonwealth Director of Public Prosecutions (CDPP) would then seek indorsement of the foreign arrest warrant from a State or Territory Magistrate.[76]

    13.4 HREOC is of the view that a ‘backing of warrants’ system could avoid duplication in the early stages of extradition procedure. However, this view is subject to HREOC’s view section 19 and subsection 22(3) should be retained in the process of incoming extradition requests involving backing of arrests warrants. This is because general provision of non-unenforceable undertakings by a requesting country to observe human rights may not adequately address the human rights concerns that arise in a particular case.

    Recommendation 16 (a): Section 19 and subsection 22(3) should be retained in incoming extradition requests which involve a backing of warrants request.
    Recommendation 16 (b): The relevant factors to consider in the process of prescribing a country as ‘a backing of warrants country’ should be clearly set out in the Act and include, at a minimum, that the Attorney-General is satisfied that the requesting country has made undertakings that it:

    (a) will not impose the death penalty in relation to extradition requests made to Australia;

    (b) will not subject persons who are surrendered for extradition to torture or inhumane or degrading treatment;

    (c) will ensure that persons who are surrendered for extradition will be accorded the minimum guarantees of a fair trial as provided by article 14 of the ICCPR;

    (d) will respect the principles of speciality, dual criminality and double jeopardy;

    (e) will not seek the extradition of a person for the purpose of prosecuting or punishing the person on account of his or her race, religion, nationality, political opinions, ethnicity, sex, sexuality or other status;

    (f) will not seek the extradition of a person if the country believes that the person may be prejudiced at his or her trial or punished, detained or restricted in his or her personal liberty by reason of his or her race, religion, nationality, political opinion, ethnicity, sex, sexuality, colour, language or other status.

    (g) will not make requests to extradite minors; or

    (h) agrees that minors should only be subject to extradition in exceptional circumstances and in accordance with the rights provided in CRC.

    The statutory criteria for declaring ‘a backing warrants country’ should also state that, if a declared ‘backing of warrants country’ breaches any of the above undertakings, its status as a ‘backing of warrants country’ should be immediately revoked.

    13.5 HREOC is happy to discuss the appropriate statutory criteria for declaring ‘a backing warrant country’ in detail with the AGD.

    14. ISSUE 17: JUDICIAL REVIEW MECHANISM

    14.1 HREOC is concerned that one of the consequences of the Attorney-General’s proposal to adopt a single judicial review mechanism is that a person subject to an extradition requests loses the rights to apply for review under s21.

    14.2 Under section 19 a magistrate determines if the person is eligible for surrender. Section 19 provides that a person is only eligible for surrender if:

      • (a) the necessary documents are produced;
      • (b) any additional requirements imposed by regulations are discharged;
      • (c) the conduct would have constituted an extradition offence if done in Australia; and
      • (d) there are no substantial grounds for believing there is an extradition objection in relation to the offence.

    14.3 Under s21 the person subject to the extradition request or the extradition country (represented by the CDDP) may, within 15 days after the day on which the magistrate makes the order, apply to the Federal Court or the Supreme Court of the State or Territory, for a review of the order.[77]

    14.4 The Federal or Supreme Court is only entitled to take into consideration the material that was before the magistrate.[78] The review is restricted to ensuring that the proper supporting documentation has been provided and that there are no grounds for an extradition objection.[79]

    14.5 The review rights provided by s21 are very important because they provide the only opportunity for a unique form of review within the existing extradition procedure.[80] While the review under section 21 is subject to the statutory requirement that the court to which the application or appeal is made shall only have regard to the material that was before the magistrate, Charles Colquhuon has observed there is no provision which limits the court to consideration the court to consideration of whether the magistrate committed an error of law.[81] Moreover Coloquhuon states:

      [Section] 21 (6) (g) specifically contemplates that a review court may determine that the person is eligible for surrender. Hence in South Africa v Dutton [(1997) 77 FCR 128 ] Hill J held that the review contemplated by section 21 is not judicial review, in the sense of a review which is confined to correcting legal error, but “a rehearing in which the court undertaking the review is authorised to reach its conclusion on eligibility for surrender”.[82]

    HREOC is of the view that the removal of the review rights in section 21 removes a form of review which is unique within the extradition procedure.

    14.6 HREOC notes that, in light of its above concerns about the removal of review rights under s21, HREOC does not support the model of processing incoming extradition requests proposed in Flow Chart 1 of the Discussion Paper.[83]

    Recommendation 17: Sections 19 and 21 of the Act be retained in the extradition procedure

    14.7 HREOC is of the view that, despite its limitations, s 21 is an important avenue of review. However, HREOC observes that many of the important decisions made under the Act, specifically in relation to human rights, are made by the Attorney-General under s22(3). These decisions cannot be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (ADJR)[84] Review is therefore only available under s 75(v) of the Constitution and s 39B of the Judiciary Act.

    14.8 HREOC observes s13 of the ADJR Act confers a statutory right to obtain reasons for a decision. Although a court can make an order for reasons to be provided in judicial review under s75(v) of the Constitution and s39B of the Judiciary Act, this is not automatic.

    14.9 HREOC is of the view that, given the seriousness of a decision to extradite, a person should have a statutory right to obtain reasons for the Attorney-General’s decision. Such a right would be particularly critical in the event that the review right under s21 was removed.

    Recommendation 18: Administrative decisions under the Act should be reviewable under the ADJR Act.

    15. ISSUE 19: TIME LIMITS

    15.1 The Discussion Paper proposes that statutory time limits could be applied to actions by the executive and submissions by persons subject to extradition requests.

    15.2 HREOC considers appropriate statutory time limits could be developed in relation to actions undertaken by the executive, submissions by persons subject to extradition requests and the length of time a person can be detained during the extradition process, prior to the issue a surrender warrant.[85]

    15.3 HREOC is of the view that such time limits would be a useful way of expediting the extradition process and ensuring persons subject to extradition requests were not subject to lengthy periods of detention, pending the issue of a surrender warrant.

    15.4 HREOC notes that time limits currently apply to the review of the magistrates’ order under section 21 and 35. These time limits apply to the period of time in which the person or extradition country are entitled to appeal or make an application for special leave to appeal to the High Court. HREOC is of the view that statutory time limits could also require courts to conduct the relevant proceedings within two months of an appeal being lodged.

    15.5 While HREOC considers strict time limits are necessary to expedite the extradition process, HREOC recommends that the Act contain a provision that provides that if the extraditable person fails to make an application for appeal within the statutory time limit but this failure could not reasonably be considered the fault of the extraditable person the statutory time limit may be extended.

    15.6 HREOC is willing to discuss what specific time periods would be appropriate in each of the above circumstances with the Attorney-General’s Department.

    Recommendation 19: Time limits should be developed in relation to all aspects of the extradition procedure, subject to the requirements of natural justice and procedural fairness.

    16. ISSUE 20: BAIL

    16.1 While in criminal proceedings there is generally there is a prima facie right to bail, subsection 15(6) of the Act provides that the magistrate shall not grant bail at the remand hearing unless there are “special circumstances”.

    16.2 The Attorney General has indicated that the current presumption against Bail will be retained.

    16.3 HREOC is concerned about the retention of the presumption against bail given the potential for a person to be detained for an extended period of time pending extradition.

    16.4 HREOC observes that, in relation to the issue of the presumption against bail, the JSCT report stated:

    We appreciate the high risk of absconding that many people, particularly non-nationals, present when a request for their extradition to another country to face trial has been made. However, we are also concerned that a strict requirement of ‘special circumstances’ could work to the detriment of a person who faces less serious charges, who has strong ties to the community and who would be considered to be at low risk of absconding in ordinary criminal proceedings. This matter is particularly serious given that a person may be held in detention for an extensive period if he or she exercises the right to challenge the extradition request [emphasis added]. [86]

    HREOC shares the concerns articulated by the JSCT report.

    16.5 HREOC notes that if a Court considers that, in the circumstances of the particular case, a person is unlikely to answer bail, bail will be refused.

    16.6 HREOC supports the JSCT Report’s recommendation that the ALRC should consider “whether the current presumption against bail unless there are special circumstances should be modified in light of the onerous consequences to persons who might be considered to be at low risk of absconding”.[87] HREOC notes the Government did not accept this recommendation.

    Recommendation 20: The current presumption against bail in the Act should be removed in favour of the prima facie right to bail.

    17. ISSUE 21: CONSENT TO EXTRADITION?

    Should a person be able to consent to extradition at any time during the process?

    17.1 HREOC is of the view that, considering the serious consequences of extraditing a person to a foreign country, a person’s consent to extradition should only be considered valid if the person has the capacity to consent and the person has been offered the opportunity to receive free legal advice.

    17.2 The provision of legal advice ensures that the person consenting to extradition fully understands the legal consequences of his or her decision and, in particular, whether or not there is a potential extradition objection in relation to the relevant extradition request. If the lawyer is of the view that the extraditable person lacks legal capacity, the lawyer can draw this issue to the attention of the magistrate or the Attorney-General.

    17.3 HREOC observes that subsection 45(5) of the Extradition Act 2003 (UK) provides that a person subject to extradition request can only consent to surrender if the person has legal representation or has been informed of the person’s right to apply for legal aid and been given an opportunity to do so but either refused or failed to apply or been granted legal aid but had that aid subsequently withdrawn.

    17.4 HREOC observes that the validity of a person’s consent to extradition is dependent upon the person knowing what they are consenting to. If the speciality rule was removed, it would not be possible for the person to provide a meaningful consent to extradition at any time during the extradition process.

    Recommendation 21: A person should be able to consent to extradition at any time during the extradition process, subject to a statutory requirement that:

    (a) the person receive, or be given the opportunity to receive, free legal advice prior to consenting to extradition;

    (b) the person has the capacity to consent;

    (c) The person can not consent to be extradited for an offence in relation to which:

      1. the death penalty may be imposed;
      2. the person may be subject to torture.

      Who should issue a surrender warrant, the magistrate or the Minister?

      Recommendation 22: In the event that a person consented to extradition the magistrate could issue a surrender warrant without the Minister making a surrender decision and without referring the matter to the Minister if the Magistrate is satisfied:
      (a) the person has the capacity to surrender;
      (b) the person has received or had been given the opportunity to receive free legal advice;
      (c) there are no relevant extradition objections in relation to the extradition offence;

      (d) the death penalty will not be imposed;

      (e) the person will not be subject to torture of inhuman or degrading treatment.


      [1] The Discussion Paper is available online at http://www.ag.gov.au/extradition2006/extradition.html
      [2] This balance was discussed in the European Court of Human Rights decision in Soering v United Kingdom [1989] ECHR 14 at 89.
      [3] See recommendation 1, Joint Standing Committee on Treaties, Extradition – a review of Australian Extradition Law and Policy, Report no. 40.

      [4] HREOC notes that this requirement is consistent with another of the extradition reforms guiding principles: transparency.
      [5] HREOC accepts that, in some circumstances, when an extradition request is made in relation to a person aged under 18 it may be appropriate for Australia to commence a prosecution in lieu under s 45 of the Act.
      [6] Only Zimbabwe and the United States have refused to sign and ratify CRC. This is significant, however, because the USA is Australia’s biggest extradition partner.
      [7] See s 5, Extradition Act 1988 (Cth).
      [8] One justification for the removal of the requirement to make out a prima facie case for the arrest and extradition of a person was, in part, that there had been many cases in which the State, often from a civil law background, failed to present sufficient evidence, or evidence in admissible form. See para 3.81 Joint Standing Committee on Treaties, Extradition – a review of Australian Extradition Law and Policy, Report no. 40.
      [9] See s 19(1) which provides a magistrate shall commence proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which the surrender of the person is sought by the magistrate.
      [10]See s 19(5).
      [11] Under s 19(2) the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought if the relevant supporting documents (as defined in s 19(3)) have been produced to the magistrate.
      [12] Para 3.24, JSCT Report.
      [13] Para 3. 39, JSCT Report.
      [14]Para 3.81, JSCT Report.
      [15] Charles Colquhuon, ‘Human Rights and Extradition Law in Australia’ (2000) 6(2) Australian Journal of Human Rights, 101.
      [16] See recommendation 1, JSCT Report
      [17] Section 5 defines an “extradition offence” as offences attracting an offence against the law of country other than Australia: (i) for which the maximum penalty is death or imprisonment, or deprivation of liberty for a period of not less than 12 months; or (ii) if the offence does not carry a penalty under the law of the country – the conduct constituting which is, under an extradition treaty in relation to the country, required to be treated as an offence for which the surrender of persons is permitted by the country and Australia; or (b) in relation to Australia or part of Australia – an offence against the law of Australia, or a law in force in the part of Australia, for which the maximum penalty is death or imprisonment , or other deprivation of liberty, for a period of not less than 12 months.
      [18] Para 4.55, JSCT Report.
      [19] Para 4.57, JSCT Report.
      [20] See for example reg. 7, Extradition (Commonwealth Countries) Regulations 1998.
      [21] In the alternative, HREOC considers the definition of an extraditable offence should be amended to increase the threshold for an extradition offence to imprisonment, or deprivation of liberty for a period of at least 2 years.
      [22] See subsection 7(d)
      [23] See E P Aughterson, 1995, Extradition: Australian Law and Procedures, Law Book Company, Sydney, p 64.
      [24] See Article 2 (a) and (b) of the United Nations Mode Treaty on Extradition A/RES/45/166.
      [25] LA Shearer, 1971, Extradition in International Law, Manchester University Press, Manchester, p137.
      [26] UK Home Office as quoted in Gavan Griffith, Claire Harris, “Recent Developments in the law of extradition”, Melbourne Journal of International Law, May 2005 vol.6 Iss.1
      [27] Gavan Griffith, Claire Harris, “Recent Developments in the law of extradition”, Melbourne Journal of International Law, May 2005 vol.6 Iss.1
      [28] This is consistent with another of the extradition reforms guiding principles: transparency.
      [29] See s 22(3) (f). HREOC observes that there is no statutory requirement that the Minister must consider the age of the child in the determining whether to surrender a child subject to an extradition request.
      [30] Article 40 (1) provides: States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:
      (a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;
      (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
      (i) To be presumed innocent until proven guilty according to law;
      (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;
      (iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;
      (iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;
      (v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;
      (vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used; (vii) To have his or her privacy fully respected at all stages of the proceedings.
      (3) States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:
      (a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;
      (b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.
      [31] Art 3(1) . This right might require the Act to state that no child may be extradited (ie a mandatory ground or refusal under the definition of extradition objections) or, alternatively, that the requesting state make an undertaking as to the child’s treatment in accordance with the Convention once he or she has been surrendered.
      [32] Art 2(2). This might be included in the grounds of mandatory refusal of extradition.
      [33] Art 9(1) – (2). This right might require that the parents be entitled to make representations before the court or to the Attorney-General directly when the child’s eligibility for surrender is determined.
      [34] Art 9(3). This right might require that the Act guarantee visiting rights during the child’s period in detention
      [35] Art 16(1). This right might require, for example, that the prima facie proof rule be reinstated, since detention and extradition interferes with family life, which should only be permitted in the most limited circumstances.
      [36] Art 20(1). This right might apply when the child is in detention.
      [37] Art 23(1). This right might mean that a disabled child should not be extradited.
      [38] Art 27(1). This right might be interpreted to mean that Australia should either (a) prosecute the child itself, or (b) the ensure that a prisoner transfer agreement is agreed in relation to the child because Australia’s high standard of living and child rehabilitation programs would help to prevent juvenile recidivism.
      [39] Art 28(1). This right might mean that Australia could only extradite a child subject to an undertaking that the child’s education be continued whilst in detention.
      [40] HREOC accepts that, in some circumstances, when an extradition request is made in relation to a person aged under 18 it may be appropriate for Australia to commence a prosecution in lieu under s45 of the Act.
      [41] Only Zimbabwe and the United States have refused to sign and ratify CRC. This is significant, however, because the USA is Australia’s biggest extradition partner.
      [42] See s 7.
      [43] Section 5 is also the subject of declarations, contained in extradition regulations, which provide that, an offence constituted by taking or endangering, attempting to take or endanger or participating in the taking or endangering of, the life of a person, being an offence committed in circumstances in which such conduct creates a collective danger, whether direct or indirect, to the lives of other persons is not a political offence for the purposes of the Act.
      [44] ‘Extradition objection’ is defined in s 7.
      [45] Communication No. 829/1998, U.N. Doc. CCPR/C/78/D/829/1998 (2003).
      [46] Para 10.4 Communication No. 829/1998, U.N. Doc. CCPR/C/78/D/829/1998 (2003).
      [47] (2005) 145 FCR 269.
      [48](2005) 145 FCR 269. Black CJ, Finkelstein and Finn JJ observed [at 274]: “The appellant’s case ultimately comes down to the simple proposition that unless the undertaking is legally enforceable either domestically or international ... it can not be an undertaking “by virtue of which” the penalty would not be carried out ... The difficulty with the appellant’s argument is that the undertaking provided for by s22(3) (c) is to be given by one country to another in the context of reciprocal international obligations. Undertakings of such a character are not ordinarily (if at all) enforceable in a domestic court or internationally. No mechanism for enforcement is provided or even suggested in the act.
      [49] Human Rights Committee, General Comment 20, Article 7 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 30 (1994).
      [50] Guy S. Goodwin-Gill, "The Principle of Non-Refoulement: Its Standing and Scope in International Law", A Study prepared for the Division of International Protection Office of the United Nations High Commissioner for Refugees, July 1993, at 2.
      [51] See Article 3(1) of CAT. Article 1 of CAT defines torture as:any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions” .
      [52] [1989] ECHR 14.
      [53] Communication No. 469/1991, U.N. Doc. CCPR/C/49/D/469/1991 (1994).
      [54] [1989] ECHR 14 at 113. The facts of the case did not disclose a violation of the right to a fair trial in this case.
      [55] A relevant consideration may be that the requesting territory fostered the subject of the request’s belief that extradition would not be requested. See Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779.
      [56] [1978] 1 WLR 779 at 782.
      [57] See reg. 7 Extradition (Commonwealth Countries) Regulations 1998.
      [58] As defined in reg.3, Extradition (Commonwealth Countries) Regulations 1998.
      [59] HREOC notes that detention pending extradition is not associated with an exercise of judicial power and is therefore characterised as administrative detention, not punitive detention.
      [60] Communication No. 305/1988, UN Doc CCPR/C/39/D/305/ 1988, 15 August 1990, para 5.8.
      [61] HRC, A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993, 30 April 1997, para 9.2. The HRC found that Australia’s mandatory detention of asylum seekers is not against international law per se, but that the failure to ensure periodic review of whether the detention continued to be appropriate caused the detention to be arbitrary and therefore a breach of international law, paras 9.3-9.4.
      [62] HRC, Van Alphen v The Netherlands, Communication No. 305/1988, UN Doc CCPR/C/39/D/305/ 1988, 15 August 1990, paras 5.6-5.8; HRC, Spakmo v Norway, Communication No. 631/1995, UN Doc CCPR/C/67/D/631/1995, 11 November 1999, para 6.3; HRC, A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993, 30 April 1997; HRC, Concluding Observations of the Human Rights Committee: Switzerland, UN Doc CCPR/C/79/Add.70, 8 November 1996, para 15.
      [63] E/CN.4/2001/14, 20 December 2000.
      [64]De Jong, Baljet and Van den Brink v Netherlands [1984] ECHR 5 at para. 44.
      [65] [ 1995] ECHR 9.
      [66] 18580/91 [1995] ECHR 9 (22 March 1995).
      [67] See subsection 7(e).
      [68] See section 16 .
      [69] See section 19.
      [70] See subsection 22(3).
      [71] Article 3(b) provides that if the requested State has substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin, political opinions, sex or status, or that that person’s position may be prejudiced for any of those reasons.
      [72] See subsection 22(3)(d).
      [73] HREOC notes that the Discussion Paper does not detail what human rights would be guaranteed and if this guarantee would vary between extradition requests.
      [74] Gavan Griffith, Claire Harris, “Recent Developments in the law of extradition”, Melbourne Journal of International Law, May 2005 vol.6 Iss.1.
      [75] Section 16 currently provides that where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received. Section 16(2) provides that the Attorney-General shall not give the notice unless the Attorney-General is of the opinion (i) that the person is an extraditable person in relation to the extradition country; and (ii) that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought or equivalent conduct, had taken place in Australia at the time which the extradition request was received the conduct or the equivalent conduct would have constituted an extradition offence in in relation to Australia.
      [76] The Discussion Paper states that the magistrate would indorse the arrest warrant if satisfied that the person is in Australia.
      [77] A person subject to the extradition request or the extradition country can appeal to the Full Federal Court within 15 days of an order being made by the Federal or Supreme Court ( s21(4)). A Special Leave application to the High Court will not be granted if it is made more than 15 days after the Full Federal Court makes its order (s 21(5)).
      [78] See subsection 21(6)(d).
      [79] The review court can not remit the decision to the magistrate’s court; the court must quash or confirm the order.
      [80] See further Charles Colquhuon, “Human Rights and Extradition Law in Australia’ (2000) 6(2) Australian Journal of Human Rights 101.
      [81] See Charles Colquhuon, “Human Rights and Extradition Law in Australia’ (2000) 6(2) Australian Journal of Human Rights 101
      [82] See Charles Colquhuon, “Human Rights and Extradition Law in Australia’ (2000) 6(2) Australian Journal of Human Rights 101.
      [83] See p.38.
      [84] ADJR Act, Sch 1(r).
      [85] HREOC notes that HREOC notes that s26(5) of the Extradition Act currently provides that:

      (a) where a surrender warrant or a temporary surrender warrant is issued in relation a person;

      (b) The person is in custody in Australia under the warrant, or otherwise under this Act, more than 2 months after the day on which the warrant was first liable to be executed;

      (c) The person applies to the Federal Court or Supreme Court of the State or Territory in which the person is in custody; and

      (d) Reasonable notice of the intention to make the application has been given to the Attorney General

      The court shall, subject to subsection 26(6) order that that person be released from custody.
      [86] See para 4.45, JSCT Report.
      [87] See para 4.47, JSCT Report.

       

      Human Rights and Equal Opportunity Commission Website: Legal Information Last updated 28 June 2006.