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Chapter 2 Proposed Amendments to the Extradition Act 1988
Current extradition law and practice
Extradition is the legal process by which one country surrenders a
person to another country to face criminal charges or serve a sentence. The
extradition process in Australia is governed by the Extradition Act 1988
(Extradition Act), a number of bilateral and inherited treaties on extradition
and a number of multilateral treaties which include extradition obligations to
which Australia is a party; these include the United Nations Convention
against Corruption and the United Nations Convention against Transnational
Organised Crime. Australia also participates in various non-treaty
arrangements based on reciprocity with a number of countries including
Cambodia, Canada, Japan and the United Kingdom.
Under the Extradition Act, the Attorney-General is responsible for
extradition. In practice, under the current administrative arrangements the
majority of extradition decisions are made by the Minister for Home Affairs and
Justice. Reference to the Attorney-General in the legislation should also be
taken to mean the Minister for Home Affairs and Justice.
Australia’s current extradition system contains two processes:
- for countries other
than New Zealand, extradition requests are made on a Government-to-Government
- for New Zealand,
extradition requests are effectively made on a police-to-police basis where
Australian authorities ‘back’ and endorse an arrest warrant issued by a New
Zealand court. The Attorney-General is not formally involved in this process
and the decision to surrender a person is made by a magistrate.
In the 2009-10 financial year Australia made 19 extradition requests to
foreign countries, 13 people were extradited to Australia, and 30 requests were
still being progressed. In the same year Australia received 30 requests,
extradited 6 people, and refused one request.
Extradition from Australia
There are several stages involved in extraditing a person from
- following the receipt
of a formal extradition request, the Attorney-General issues a notice to
proceed under section 16 of the Extradition Act
- a magistrate conducts
a hearing to determine whether the person is eligible for surrender. At this
stage, and at any point thereafter, a person may consent to their surrender to
the requesting country
- if an urgent
provisional arrest warrant has not been issued and the person has been found
eligible for surrender, the magistrate will now issue an arrest warrant. The
person must be remanded in custody until the Attorney-General makes a final
- the magistrate’s
decision is, under the current legislation, subject to review by the Federal
Court, or a Supreme Court of a State or Territory
- after a person has
been found eligible for surrender by a magistrate, the Attorney-General is
required to make a final determination on whether to surrender the person,
taking into account a wide range of factors
In urgent cases, a foreign country may also make a request for a
person’s provisional arrest if it is believed there is a real risk a person
will flee from Australia’s jurisdiction before a formal extradition request can
be submitted to Australian authorities. If the request is accepted, a
provisional arrest warrant will be issued. Once arrested, the person must be
remanded in custody, pending the submission of a formal extradition request to
Australian authorities, unless there are ‘special circumstances’ in the case
that require a person to be remanded on bail.
Extradition from Australia to New Zealand
The process for extraditing a person to New Zealand is further
streamlined in a ‘backing of warrants’ system. Essentially, under this
arrangement, Australian authorities ‘back’ or endorse a validly issued New
Zealand warrant. A person is then brought before a magistrate who determines
whether or not to surrender the person to New Zealand. There is no involvement
by the Executive Government in this process.
Extradition to Australia
Outgoing requests for the surrender of a person to Australia are
governed by the Extradition Act, treaties and the domestic law of the requested
foreign jurisdiction. When a person is wanted for extradition to Australia,
Australian authorities will draft an extradition request. If the
Attorney-General signs the request, it is sent to the
foreign country through diplomatic channels for consideration and action.
The International Crime Cooperation Central Authority within the
Attorney-General’s Department works to facilitate the submission of extradition
requests to and from Australia.
Proposed legislative amendments to the Extradition Act 1988
Statutory appeal of extradition decisions
The Bill proposes to remove the jurisdiction of State and Territory
Supreme Courts to hear appeals made under the Extradition Act. Under the
proposed measures, all future appeals must be directed to the Federal Court of
Under the current legislative arrangements other extradition
proceedings, such as an application for judicial review of a decision made by
the Attorney-General, are already generally brought in the Federal Court. The
amendments will clarify the process for seeking judicial review of extradition
decisions and allow the federal court to develop its expertise in extradition
Waiver of extradition proceedings
The proposed amendments would provide for a new, more streamlined
extradition process for individuals who choose to consent to their surrender to
a foreign country. Under the current legislative arrangements, a person may
only consent to his or her extradition after they have been brought before a magistrate
following the Attorney‑General’s issuing of a notice accepting the
extradition request under section 16 of the Extradition Act. Further, the
person must remain in custody until the Attorney-General issues a final
surrender determination under section 22 of the Act. This process can be quite
lengthy, resulting in the person spending an extended time remanded in custody
waiting for the resolution of various extradition processes.
The legislation proposes adding a new section 15A to the Extradition Act
which would allow a person to inform a magistrate that they wish to waive
extradition. If a person consents to their extradition, under the amendments
they will be able to either waive the extradition process or consent to
surrender using the current consent process. A person will be able to waive
extradition at any time after a person is remanded under section 15 until the
magistrate informs the Attorney-General that the person has been found eligible
for surrender under section 19 or has consented to their surrender under
A person may elect to waive extradition in relation to one or all of the
offences listed in the provisional arrest warrant or in the extradition
request. However, it will not be possible for a person to waive extradition in
relation to only one, or some, of the offences listed in the extradition
In accepting a person’s decision to waive extradition, the magistrate
must be satisfied:
- the person’s decision
is informed and made voluntarily
- the person
understands the consequences of choosing to waive extradition, and
- the person has legal
representation or has been given an adequate opportunity to obtain legal
If a magistrate is satisfied as to these matters, he or she must then
notify the Attorney-General of the person’s decision to waive extradition.
Once the Attorney-General is notified of a person’s decision to waive
extradition, he or she is required to determine if the person should be
surrendered. The Attorney-General could only determine that the person be
surrendered if he or she is satisfied:
- there are no
substantial grounds for believing that, if a person were surrendered, the
person would be in danger of being subjected to torture, and
- if the person were to
be surrendered, there is no risk the death penalty would be carried out upon
the person in relation to any offence.
The Law Council of Australia notes that in operation, a magistrate
should ensure that a person is not only informed of the consequences of waiving
extradition, but also fully understands the implications arising from the
While acknowledging that the new waiver provisions may reduce the amount
of time a person spends in custody, pending the conclusion of the formal
extradition process, the Law Council of Australia remains concerned that a
person may make a decision to waive extradition when:
… if they do not waive their rights:
- they will be detained
throughout the extradition process unless they can overcome the presumption
against bail; and
- the potential period
of their detention will be unknown and may extend over several years, in part
because the Extradition Act imposes few timeframes on Executive
These factors may be regarded as adding an element of duress
to the decision making process and may impact on the voluntariness of a
person’s decision to waive their rights.
The Law Council of Australia suggests that further reforms are needed to
ensure the integrity of a person’s decision to waive extradition, including
removing the current presumption against bail and imposing statutory time
limits on decisions made by the Executive under the Act.
Amendments relating to political offences
Under the current legislation, a person cannot be extradited from
Australia for a political offence. A political offence is currently defined in
the Extradition Act as an offence against the law of a foreign country that is
of a political character. The legislation then goes on to state that certain
offences are not to be considered ‘political offences’ for the purposes of
The Bill will amend section 5 of the Extradition Act to expressly
exclude the following offences from the political offence definition:
- an offence that
involves an act of violence against a person’s life or liberty
- an offence prescribed
by regulations to be an extraditable offence in relation to a country, or countries,
- an offence prescribed
by regulations not to be a political offence in relation to a country or countries.
The amendments to the political offence definition are designed to
streamline the political offence definition by moving all exceptions and
exclusions of the definition into regulations made under the Extradition Act.
Australia is party to a large number of bilateral and multilateral treaties
that relate to international crime and international crime cooperation. Many of
these treaties impose an obligation on Australia to ensure that certain
offences are not considered political offences for the purposes of extradition.
Australia currently meets these international obligations by listing relevant
offences which are excluded from the definition within section 5 of the
Extradition Act itself. The amendments will move the bulk of this list to
regulations and make it possible to add further exceptions to the political
offence definition through the amendment of regulations.
The Committee notes that the current definition of political offence in
the Extradition Act already allows certain offences which are prescribed by a
multilateral treaty not to be a political offence for the purposes of
extradition, to be excluded from the definition through regulations.
Extradition objection on the grounds of sex and sexual orientation
Under the current legislation, a person cannot be extradited from
Australia if there is an ‘extradition objection’ in relation to the case. An
‘extradition objection’ is defined in section 7 of the Extradition Act and
includes situations where a person’s surrender is sought for the purposes of
punishing the person on account of his or her race, religion, nationality,
political opinions, or for a political offence. It also covers situations where
if the person were to be surrendered, they may suffer prejudice on the basis of
his or her race, religion, nationality or political opinions.
The Bill proposes to expand the definition of ‘extradition objection’ to
include situations where a person is (or would be) discriminated against on the
basis of their ‘sex’ or ‘sexual orientation’. This proposed amendment will
ensure that an extradition request must be refused if surrender is sought for
the purposes of punishing a person on account of his or her sex or sexual
orientation, or where the person may face discrimination on the basis of his or
her sex or sexual orientation if they were to be surrendered.
A similar amendment is also proposed for the Mutual Assistance Act.
Notice of receipt of extradition request
Under the current legislation, there are a number of factors the
Attorney-General must consider and be satisfied of before he or she issues a
notice under section 16 of the Extradition Act, conferring jurisdiction on a
magistrate to conduct extradition proceedings.
The Bill proposes to streamline the initial stages of the extradition
process by limiting the number of factors the Attorney-General is required to
consider before issuing a notice under section 16. Currently, the
Attorney-General cannot issue a notice under section 16 unless he or she is of
the opinion that:
- the person is an
extraditable person in relation to an extradition country, and
- the alleged criminal
conduct for which the person is being sought for extradition would also
constitute a criminal offence if the conduct occurred in Australia (dual
The Attorney-General is also prohibited from issuing a notice under
section 16 if he or she is of the opinion that an extradition objection exists
in relation to the extradition offence.
The Bill would make amendments to section 16 of the Extradition Act to
remove the statutory requirement for the Attorney-General to consider
extradition objections or dual criminality, before issuing a notice. Under the
measures, the Attorney-General would exercise his or her general discretion to
issue a notice conferring jurisdiction on a magistrate to consider an
extradition request. To issue the notice, the Attorney-General would only need
to be satisfied that the person is an extraditable person in relation to the
extradition country. The Attorney-General would no longer need to consider dual
criminality and extradition objections before issuing a notice under section
It is suggested that these measures will expedite the early stages of
the extradition process and allow a matter to go before a magistrate in a more
timely fashion. It will also reduce double handling in considering dual
criminality and extradition objections through the extradition process.
Currently, dual criminality is considered both by the Attorney-General at the
section 16 stage and by a magistrate at the section 19 stage. Extradition
objections are also twice considered by the Attorney-General; once in issuing a
section 16 notice, and again in making a final surrender determination under
section 22. The magistrate also considers extradition objections in making his
or her ruling on the eligibility of a person for surrender.
In consultation, there were concerns raised about the removal of the
dual criminality consideration from the section 16 stage of extradition
proceedings. There is concern that
this amendment risks weakening section 16 as a ‘gatekeeper’ stage that prevents
a person from being detained for an extended period of time and subjected to
lengthy legal proceedings on the basis of an extradition request that is
unlikely to ultimately result in the person’s surrender.
The Committee notes that the Bill does not remove safeguards, but rather
reorders their consideration and removes duplication in the extradition process.
The proposed amendments will not affect a person’s substantive rights or
protections. Dual criminality and extradition objections would still be
considered either by the Attorney-General at the section 22 stage or by a
magistrate at the section 19 stage of the extradition process.
However, the importance of the ‘gatekeeper’ function of section 16
should not be minimised. The Attorney-General’s decision to exercise his or her
discretion in issuing a section 16 notice is a serious one – and is reliant on
the comprehensive gathering of information and consideration of relevant facts.
The Committee notes the importance of ensuring that thorough investigations are
always conducted and due consideration is given to every request to ensure that
individuals are not unnecessarily detained as the result of a frivolous or
unfounded extradition request, or where there is obviously an extradition
objection in relation to the particular request.
Consent to accessory extradition
Under section 20 of the Extradition Act, a person who has been found
eligible for surrender by a magistrate or who has consented to their
extradition may also consent to being surrendered for offences that are not
‘extradition offences’. For instance, a foreign country may not yet have issued
a warrant in respect of certain offences but the individual may wish to still
consent to their surrender for these offences to allow any sentence resulting
from the charges to be served concurrently. This is known as consent to
accessory extradition and allows a person to have all outstanding charges
against them dealt with upon their surrender to the foreign country.
At present, section 18 of the Extradition Act allows a person to consent
to surrender for ‘extradition offences’ in respect of which the
Attorney-General has given notice under subsection 16(1). Section 5 of the
Extradition Act defines an ‘extradition offence’ as an offence that is
punishable by at least 12 months imprisonment.
The proposed amendments in the Bill will clarify the circumstances in
which a person can consent to accessory extradition. The amendments would make
it clear that a person can consent to accessory extradition for offences that
are punishable by more than 12 months imprisonment that are listed in the
extradition request but are not listed in the section 16 notice accepting the
The proposed measures will require a magistrate to be satisfied that
there is no extradition objection in relation to any of the additional
extradition offences and be satisfied that the person is, or has had an
opportunity to legal representation. The magistrate must also inform the person
of certain consequences that would arise from their consent to additional
extradition offences before asking the person whether he or she consents to
being surrendered in respect of those offences.
Where a person consents to additional extradition offences, the offences
would be deemed to be ‘qualifying extradition offences’ for the purposes of
section 22 of the Extradition Act. The Attorney-General would consider the
additional extradition offences in determining whether the person is eligible
for surrender under section 22. The Attorney-General would therefore retain a
general discretion to refuse extradition and would also be required to be
satisfied that there is no ‘extradition objection’ in relation to the
additional extradition offence(s).
Amendments relating to extradition to Australia from other countries
Some countries are prohibited by their domestic law from surrendering a
person (to Australia or any other country) in the absence of an undertaking as
to the maximum sentence that may be imposed on the person. For instance, a
country’s constitution may prohibit extradition when a person may be subject to
life imprisonment if surrendered. This can be problematic in cases where a
person may be technically liable to be sentenced to a life sentence, but it is
unlikely that such a sentence would be imposed given the circumstances
surrounding the offence.
The proposed amendments contained in the Bill will allow the
Attorney-General to give a legally enforceable undertaking to a foreign country
as to the maximum sentence that could be imposed upon a person, before the
person is extradited to Australia. This undertaking could either state that
life imprisonment will not be imposed on the person or specify the maximum
period of imprisonment that can be imposed upon a person.
In practice, such undertakings would only be given with the agreement of
the relevant State or Territory if the person is to be prosecuted for the
offence or offences in a State or Territory. The new provisions would also
provide that the Attorney-General must consult with the relevant State or
Territory Attorney-General before giving such an undertaking.
Prosecution in lieu of extradition
Under the current legislation, a person may only be prosecuted in lieu
of extradition where extradition has been refused because the person is an
Australian citizen. The proposed amendments to section 45 of the Extradition
Act will allow a person to be prosecuted in lieu of extradition in any case
where Australia has refused an extradition request, regardless of their
nationality. The amendments will allow Australia to prosecute persons in
situations where the criminal justice system of the requesting country would
give rise to an extradition objection or where a country is not an extradition
country for the purposes of the Extradition Act.
Any person for whom extradition has been refused could be prosecuted in
Australia for conduct that occurred outside of Australia if the conduct would
have constituted an offence against Australian law had it occurred in Australia.
The prosecution of the person in such circumstances would not be dependent on
Australia exercising extraterritorial jurisdiction over the offence.
Prosecution in lieu could only be undertaken with the consent of the
Attorney-General. Under the proposed legislation, the Attorney-General would
have discretion to refer a case to the relevant law enforcement agency and the
Commonwealth Director of Public Prosecution (CDPP) for investigation and
prosecution. The CDPP would need to independently assess whether the person
should be prosecuted in accordance with the CDPP’s Prosecution Policy. Current
policy requires the CDPP to be satisfied that there is sufficient evidence to
prosecute the case and considering all the circumstances surrounding the case,
the prosecution would be in the public interest.
These proposed measures will ensure that there is recourse for
Australian authorities to prosecute a person who cannot be surrendered to a
foreign country. This will have a deterrent effect and ensure that Australia is
not seen as a safe haven for criminals evading justice in foreign countries due
to the lack of an extradition relationship between Australia and the foreign
In earlier Government public consultation on the Bill, submissions to
the Attorney-General’s Department were critical of the proposed amendments that
would make any offence prosecuted under the new measures an offence of absolute
liability. If the CDPP were to
commence proceedings against a person under the amended section 45, the prosecution
would not be required to prove intention or recklessness in committing the
offence. The submissions suggest that ordinary standards and burdens of proof
should apply to any prosecution under section 45.
Technical amendments relating to notices
Under the current provisions in the Extradition Act, the
Attorney-General can give notices at various stages of the extradition process
including, for example, the Attorney-General can issue notices that state an
extradition request has been received under section 16 of the Act and notices
under section 17 directing a magistrate to release a person from remand.
In some cases, it is necessary for the Attorney-General to amend a
section 16 notice after the notice has been given, for instance, to rectify a
minor deficiency or to add additional extradition offences to the notice. While
the current legislation implies that a notice can be amended, there is no
express power in the Extradition Act to allow the Attorney-General to amend the
notice. There is also no process specified in the legislation for making such
The Bill proposes to make various minor and technical amendments to the
Extradition Act provisions that provide for the giving of notices by the
Attorney-General. Under the measures, the Attorney-General will be able to make
amendments to a section 16 notice up until the time at which a magistrate
determines a person is eligible for surrender or a person consents to their
If an amended notice is issued to list new offences, while proceedings
are in progress before a magistrate under section 18 or 19 of the Extradition
Act, the magistrate could adjourn proceedings to give the person and the
foreign country requesting extradition, additional time to prepare for
proceedings in relation to the new offences.
Amendments to the Extradition Act are also proposed to give clear
guidance on when a notice is taken to be ‘given’. This can be particularly
important in determining if the Attorney-General has given a section 16 notice
within 45 days of a person’s arrest under a provisional arrest warrant. The
proposed amendments will specify that a notice is taken to be given at the time
at which the notice, or a copy of the notice, is handed to the magistrate, or
delivered in the ordinary course of post, or at the time at which the fax,
email or other electronic communication is sent to the magistrate. Under these
amendments, if an email is sent to a magistrate on 1 July 2011, the notice will
be taken to be given on this day, regardless of when the magistrate views the
Amendments relating to remand and bail
Proposed amendments to the Extradition Act will extend the availability
of bail to the later stages of the extradition process. Currently, once a
person is found eligible for surrender by a magistrate, they must be remanded
in custody to wait for a final surrender determination by the Attorney-General.
The amendments will allow a person to be remanded on bail in ‘special
It can take a significant amount of time to complete the various stages
of the extradition process, particularly if a person challenges the decision of
the Attorney-General or the magistrate. It is appropriate therefore for the
legislation to allow for persons to be remanded on bail in special circumstances
pending the conclusion of the extradition process.
The Committee received a number of submissions commenting on the
proposed amendments relating to bail and remand. All submissions that commented
on the issue were supportive of the proposed measures. However, there were also
some submissions that recommended further steps be taken to amend the current
presumption against bail in extradition proceedings. Under the current
provisions in the Extradition Act, a person may only be remanded on bail if
they can prove that ‘special circumstances’ exist to justify such a course of
The Human Rights Law Resource Centre (HRLC) writes that the current
position in relation to bail ‘is manifestly incompatible with the prohibition
against arbitrary detention [in article 9 of the International Convention on
Civil and Political Rights], which requires that any detention be
reasonable, necessary, proportionate and subject to judicial review’.
The Law Council of Australia observes in its submission that:
… many people who are subject to extradition requests are
Australian citizens and permanent residents. They are in Australia, not to
avoid justice, but because Australia is their usual place of abode. They may
have strong ties to the community and limited means or desire to leave
Australia. Nonetheless, such people are likely to be remanded in custody
throughout the extradition process because of the operation of an inflexible
rule based on a generalisation about the type of people who are ordinarily
subject to extradition proceedings.
The Court should not be constrained in its ability to reach a
decision on bail which is appropriate in the circumstances of each individual
In justifying the persistence with the presumption against bail, the
Attorney-General’s Department states that:
The current presumption against bail for persons sought for
extradition is appropriate given the serious flight risk posed by the person in
extradition matters, and Australia’s international obligations to secure the
return of alleged offenders to face justice in the requesting country. The High
Court in United Mexican States v Cabal has previously observed
that to grant bail where a risk of flight exists would jeopardise Australia’s
relationship with the country seeking extradition and jeopardise our standing
in the international community.
The removal or substantial qualification of the existing
presumption (which has been a feature of Australia’s extradition regime since
the mid-1980s) may impede Australia’s ability to meet our extradition treaty
obligation to return the person to the requesting country to face criminal
charges or serve a sentence.
As previously noted by the Joint Standing Committee on Treaties (JSCOT),
in the common law there is a general presumption in favour of bail in ordinary
criminal proceedings (with exceptions for certain serious offences). 
Evidence given to JSCOT indicates that the presumption against bail was
included in the legislation on the basis that ‘there was a very high risk of a
person escaping, particularly since in many cases the person had fled the
jurisdiction for Australia to evade justice’.
There is however, no such general presumption against bail in the
extradition legislation of Canada, New Zealand or the United Kingdom.
It is also not a feature of the Service and Execution of Process Act 1992,
which legislates for the extradition of persons between States, Territories and
Federal jurisdiction within Australia.
The Committee expresses its concern regarding the presumption against
bail, and notes that the Explanatory Memorandum to the Bill and the evidence
provided by the Attorney-General’s Department fail to provide adequate
justification on this point. The Committee does not doubt that bail is likely
and rightly to be refused in the majority of extradition cases, and considers
that this amendment will have little effect on the outcome of bail application
in such cases.
However, as a matter of principle, the Committee notes that it has not
been convinced of the need for the Bill to prescribe a presumption either
against or in favour of bail.
Other minor and technical amendments
Division 9 of Part 3, Schedule 2 of the Bill will make a number of minor
and technical amendments to the Extradition Act. The proposed amendments will
simplify the language used in various sections of the Act and rectify a number
of technical drafting issues.
Other issues raised in consultation
The ‘no-evidence’ model for extradition
Several of the submissions received by the Committee raised concerns
related to the 1988 legislative move to a ‘no-evidence’ model for extradition.
The principal Act was drafted in 1988 to move Australia to a modern system for
extradition in which a country requesting extradition no longer needed to
provide any evidence of a person’s guilt with the request. This reflects a
policy position that extradition proceedings are administrative in nature and
should not determine or consider a person’s guilt or innocence. This question
is most appropriately dealt with in criminal proceedings in the requesting
In practice, this strict adherence to an extradition model that largely
precludes the introduction of evidence of a person’s guilt or innocence is
contentious. For instance, in relation to the proposed amendments to the
definition of ‘political offence’ Emeritus Professor Ivan Shearer points out
that in the context of Australia’s ‘no-evidence’ model, it could potentially be
difficult for a magistrate to determine whether an offence is a political
offence or not. Professor Shearer writes that he:
… can foresee a problem for magistrates and courts on appeal
in applying this provision when the Act prohibits their testing the evidence on
which a foreign request is based. Whether the acts alleged are terrorist in
nature or not cannot be decided merely by applying the dual criminality test;
it requires a detailed examination of the facts and circumstances of the case.
Both the Law Council of Australia and the Human Rights Law Resource
Centre also suggest that the section 19(5) be amended to allow a person to
adduce evidence to support their arguments. The HLRC proposes that a person
should be allowed to present evidence to respond to and challenge the
statements put forward by the requesting state.
Similarly, the Law Council of Australia contends that a person should be
allowed to adduce evidence that would support their argument that an extradition
objection exists in their particular case.
Legislation and policy in relation to extradition are characterised by a
need to balance criminal justice outcomes with adequate human rights
protections. The move to a no-evidence model for extradition has operated to
streamline Australia’s extradition system and arguably makes it a more
effective legal tool for tackling transnational crime issues.
The Bill will make amendments to further streamline Australia’s
extradition system and attempts to balance these measures with further
safeguards such as adding additional mandatory grounds for refusing surrender
to the legislation and extending the availability of bail to the latter stages
of the extradition process. It is largely a question of judgement in considering
whether these measures, and the Extradition Act as a whole, strikes the right
balance between the interests of justice and protecting the rights of the
It is a complex and precarious task to achieve the appropriate balance
between the interests of domestic and international justice, and protecting the
rights of the individual. The Committee considers that the amendments proposed
to the Extradition Act are well balanced and considered.
However, given the gravity of issues at stake, the Committee recommends
that the Government monitor and review the operation of the new amendments to
ensure that they are operating as intended and that adequate safeguards are in
place to protect the rights of the individual. The Committee recommends that the
Australian Government undertake a review of the operation of the amendments
within 3 years of the Bill passing.
Extending the grounds for refusing extradition
Submissions to the Committee suggest that the current grounds for
refusing extradition should be further extended to include:
- situations where it
is foreseeable, or there are substantial grounds for believing, that a person
may be subject to cruel, inhuman or degrading treatment or punishment
- refusal of
extradition where a person subject to an extradition request has had their
right to a fair trial violated or it is reasonably foreseeable that the person
will suffer a violation of their right to a fair trial if they were to be
- mandatory grounds for
refusing extradition where the person is a child,
- situations where a
person faces discriminate, on the basis of their gender identity, ethnic
origin, colour or language.
Evidence from the Attorney-General’s Department indicates that, while
not stipulated as grounds for refusal, any of these factors could be taken into
account by the Attorney-General in exercising his or her general discretion to
The general concern for submitters is that if these grounds for refusing
extradition are not legislated for, there is no statutory obligation on the
Attorney-General to turn his or her mind to these matters. In other words,
while the Attorney-General’s discretion to refuse extradition is unfettered,
there would be no guarantee that factors not legislated for would receive active
consideration in an extradition case.
The Attorney-General’s discretion is an important power under which
various factors, which would not arise in every extradition case, could be
considered. However, in the absence of a statutory obligation to consider
factors such as whether a person would receive a fair trial or if the person is
a child, it is important to ensure that the Attorney-General is thoroughly
briefed on all issues that may be taken into account in the exercise of his or
her general discretion, whether or not the issue is directly raised by the
person wanted for extradition in submissions to the Attorney-General.
The Committee supports the amendments as proposed, but adds a cautionary
note that the discretionary power of the Attorney-General is the final
safeguard in this streamlined extradition process. It is therefore incumbent on
the Attorney-General to ensure that all factors, including those not directly
raised by the person being sought for extradition, are considered in exercising
the discretion to grant or refuse an extradition request.
Undertakings in cases involving the death penalty
Submissions to the Committee from the Australian Human Rights
Commission, the Human Rights Law Resource Centre and the Australian Lawyers
Alliance all call for removal of the Attorney-General’s residual discretion to
extradite persons when the death penalty may be imposed.
Failing this, the Law Council of Australia suggests that the legislation
be amended to only allow extradition if a formal undertaking is provided by an
official with the authority to guarantee that the death penalty will not be
imposed in any circumstance. Further, if a requesting country breaches a death
penalty undertaking, the Law Council of Australia suggests that no further extradition
requests should be accepted from that country. Additionally it is suggested
that there be a legislative requirement for the Attorney-General to monitor and
report on compliance with death penalty undertakings following the surrender of
a person in such circumstances.
Currently, a person can be surrendered for an offence that carries the
death penalty if the requesting country provides an undertaking that the death
penalty will not be imposed, or if it is imposed, will not be carried out.
However, undertakings are not legally enforceable and there is no formal
mechanism available to monitor a foreign country’s compliance with an
undertaking given to the Australian Government.
Evidence from the Attorney-General’s Department indicates that as far as
the Department is aware, there have been no breaches of any undertakings given
to Australia by a foreign country to date.
The reliance on undertakings to facilitate extradition is discussed
further in Chapter 3, in relation to the undertakings required under the Mutual