Chapter 3 Treaty between Australia and the Socialist Republic of Vietnam on
Extradition done at Canberra on 10 April 2012
On 11 September 2012, the Treaty between Australia and the Socialist
Republic of Vietnam on Extradition done at Canberra on 10 April 2012 (‘the
Treaty’) was tabled in the Commonwealth Parliament.
Vietnam and Australia work closely in a range of areas and both
countries’ education, business and travel relationships continue to grow. Two-way
trade between Australia and Vietnam now amounts to over A$6 billion. Australia
is a leading destination for Vietnamese students, with more than 23,000 student
enrolments in Australian education institutions. After the United States of
America, Australia is the second most common destination for Vietnamese
migrants. People born in Vietnam represent the sixth largest migrant community
in Australia. Given Australia’s developing ties with Vietnam, it is timely to
strengthen our bilateral international cooperation arrangements.
The proposed Treaty is indicative of Australia's commitment to
developing and improving Australia's international legal cooperation
relationships in order to combat transnational crime. Vietnam is an important
regional partner in the fight against transnational crime. Having an effective
extradition relationship with Vietnam is key to ensuring that criminals who
cross our respective borders are not impervious to prosecution.
The Treaty provides effective extradition arrangements between Australia
and Vietnam. The Attorney-General’s Department explained that Australia does
not have bilateral arrangements with Vietnam to facilitate extradition. The Department
Currently, there is no bilateral framework in place, which
means that we can only consider requests from Vietnam under multilateral
conventions to which we are both parties, such as the UN [United Nations] Convention
Against Corruption or the UN Convention Against Transnational Organized Crime. Those
multilateral treaties to which we are both parties do contain extradition
obligations, but there is no existing bilateral framework which would apply to
…there have not been any extraditions under the multilateral
conventions… no person has been brought before the courts pursuant to an
extradition request from Vietnam.
The Treaty will enable Australia to cooperate with Vietnam to request or
grant extradition for any offences punishable under the laws of both countries
by imprisonment for a maximum period of at least one year or by a more severe
The Treaty is consistent with other Australian bilateral extradition
treaties and is able to be implemented under Australia’s existing domestic
legislative framework for extradition. The Treaty adds to Australia’s existing
network of 38 other modern bilateral extradition treaties and to our
extradition obligations under a number of multilateral agreements. The
safeguards and protections in the proposed Treaty are consistent with those in
the Extradition Act 1988.
Reasons for Australia to take the proposed treaty action
The following summary of the proposed treaty action and its claimed
benefits is taken from the National Interest Analysis (NIA).
It is in Australia’s interests that criminals cannot evade justice
simply by crossing borders. The Treaty will oblige Vietnam to consider
Australian requests for extradition and to grant extradition where the
requirements set out in the Treaty are met. Whilst Australia can request
extradition of any country in the absence of a treaty, there are no assurances
that the other country will consider such a request.
Implementation will enable Australia to receive extradition requests
from Vietnam and oblige Australia to consider them. The Extradition Act 1988
only allows Australia to receive extradition requests from countries declared
to be an ‘extradition country’ in regulations, although Australia can currently
consider extradition requests for offences covered by multilateral instruments to
which both countries are parties.
The Treaty contains a number of important safeguards and human rights
protections, including mandatory grounds for refusal of extradition where a
person would be subject to the death penalty or torture.
The Attorney-General’s Department noted:
…there are certain serious offences which do still carry the
death penalty under the Vietnamese penal code, including murder, treason and
terrorism offences. Statistics on the use of the death penalty in Vietnam are
classified and have not been released by the Vietnamese government. …
[However] Amnesty International has reported that at least five executions were
carried out in 2011.
An undertaking not to impose the death penalty is done by the issuance
of a formal, written document that is communicated through official channels.
The Treaty adopts the ‘no evidence’ standard for extradition requests.
The ‘no evidence’ standard is included in the UN Model Extradition Treaty.
Australia has over 30 bilateral extradition treaties which adopt this
standard. The term ‘no evidence’ does not mean ‘no information’. Rather,
it means that an extradition request needs to be supported by a statement of
the conduct alleged against the person in respect of each offence for which extradition
is sought, instead of evidence sufficient to prove each alleged offence under
the laws of the requested country.
The Treaty will oblige Australia and Vietnam to consider one another’s
requests for the extradition of persons who are wanted for prosecution, or for
the imposition or enforcement of a sentence for an extraditable offence.
The Treaty provides that an extraditable offence is an offence which, at
the time of the request, is punishable under the laws of both Parties by
imprisonment for a maximum period of at least one year or by a more severe
penalty. Where extradition is sought to enforce a sentence of imprisonment for
such an offence, extradition shall be granted only if at least six months of
the sentence remains to be served.
The obligation to extradite is qualified by a number of internationally
accepted mandatory and discretionary grounds for refusal which reflect grounds
contained in the Extradition Act 1988. The Requested Party is obliged
to refuse an extradition request in any of the following circumstances:
- where there are
substantial grounds for believing that the extradition request ‘has been made
for the purpose of prosecuting or punishing a person on account of that
person’s race, ethnic origin, gender, language, religion, nationality,
political opinion or other status, or that that person’s position may be
prejudiced for any of those reasons’;
orientation has also been added to the Extradition Act 1988 as a
ground for refusal and it applies to this Treaty. The Treaty itself includes a
ground of refusal in relation to 'other status' and this can include sexual
- where the person
whose extradition is requested would be exposed to ‘double jeopardy’: that is,
where that person has already been acquitted, pardoned, or punished under the
laws of the Requested Party or another country in respect of the offence for
which extradition is sought;
- where a lapse of time
has meant that the person whose extradition is requested has become immune from
prosecution or punishment under the laws of the Requesting Party;
- if the offence for
which extradition is requested, or any other offence for which the person may
be detained or prosecuted under the proposed Treaty, carries the death penalty,
and the Requesting Party has not provided an undertaking that the death penalty
will not be imposed or, if imposed, will not be carried out; or
- where there are
substantial grounds for believing that the person would be subject to torture
in the Requesting Party’s territory.
The Minister cannot surrender a person to another country for an offence
punishable by death unless the requesting country first gives an undertaking
that the person will not, one way or another, be put to death.
Extradition may be refused where:
- the Requested Party
regards the offence for which extradition is sought as a political offence or
an offence under military law but not under the ordinary criminal law of the
- the offence for which
extradition is requested is considered by the Requested Party as having been
committed within its own jurisdiction;
- a prosecution in
respect of the offence for which extradition is requested is already pending
for the relevant individual in the Requested Party;
- the authorities of
the Requested Party have decided not to prosecute the person for the offence in
respect of which extradition is requested;
- the person whose
extradition is requested has been sentenced or would be liable to be tried or
sentenced by an extraordinary or ad hoc court or tribunal in the
Requesting Party; or
- the Requested Party
considers that the extradition of the person would be ‘unjust or oppressive,
or, in exceptional cases, because of the personal circumstances of the person
sought, the extradition would be incompatible with humanitarian
The Treaty provides that either Party may refuse extradition of its own
nationals. If such an extradition is not granted, the Requesting Party may ask
the Requested Party to prosecute that person in lieu of extradition. If such a
request is made and the laws of the Requested Party allow it, the Requested
Party must submit the case to its authorities to determine whether a
prosecution may be undertaken.
The Treaty will not affect the Parties’ obligations arising from any
other multilateral instrument. This would include situations where a Party is
obliged to refuse extradition under specific international treaty obligations
outside of the Treaty.
Particular information and documentation must be provided in support of
an extradition request. The Treaty provides
extradition may still be granted, even if all of the relevant requirements have
not been met, provided that the person consents to be extradited.
In urgent cases a Party may request the provisional arrest of the person
sought to be extradited before the extradition request is presented. The
request for provisional arrest must be accompanied by the information listed in
listed in Article 10(2) (including a statement of the existence of an arrest
warrant or conviction against the person sought).
Article 12 deals with the situation where an extradition request is
received for the same person from two different countries. It sets out six
factors that must be considered by the Requested Party in deciding to which
country the person is to be extradited, including the relative seriousness of
the offences for which extradition is sought if the requests relate to
Article 13 sets out the procedure for surrendering the person to the
Requesting Party once a decision to extradite has been made. For instance, it
requires that the Requesting Party remove the person from the territory of the
Requested Party within such reasonable period as the Requested Party may
Article 14 makes provision for the surrender, upon request, of all
property found in the Requested Party’s territory that has been acquired as a
result of the offence for which extradition is requested, or may be required as
evidence. Surrender of such property is subject to the law of the Requested
Party and the rights of third parties.
Article 15 allows extradition to be postponed to allow the Requested
Party to prosecute or enforce a sentence against the person for an offence
other than an offence constituted by conduct for which extradition is sought.
Article 16 sets out the rule of speciality, which prohibits the
Requesting Party from prosecuting or punishing an extradited person for any
offence other than an offence for which extradition was granted, or any other
extraditable offence provable on the same facts and punishable by the same or
lesser penalty, unless the Requested Party consents.
Where a person has been extradited under the proposed Treaty, the
Requesting Party must not then extradite the person to a third country for any
offence committed prior to the person’s extradition.
A person can be extradited to a Party from a third country through the
territory of the other Party. In these circumstances, the Party seeking the
person’s extradition must request permission for transit from the other Party.
The Requested Party shall make all necessary arrangements for the
representation of the Requesting Party in any proceedings arising out of a
request for extradition, and shall otherwise represent the interests of the
The Treaty is expected to be implemented by way of regulations made
under the Extradition Act 1988. Section 11 of the Act allows
regulations to be made subject to a bilateral extradition treaty between that
country and Australia. This is how extradition treaties are given effect in
Australia’s domestic law.
The Requesting Party must bear the expenses incurred in conveying the
person from the Requested Party’s territory. The Requested Party agrees to pay
all other expenses incurred in its territory in connection with extradition
proceedings arising out of an extradition request. Expenses incurred in relation
to extradition requests received or made by Australia will be met from existing
When seeking to establish extradition agreements, a country's human
rights record is examined through an extensive consultation process, including
with Australian diplomatic posts.
Although Vietnam is signatory to the main human rights convention – the
International Covenant on Civil and Political Rights – and the Vietnamese
Government has also indicated a commitment to acceding to the Convention
against Torture, Vietnam’s human rights record is questionable. The Department
of Foreign Affairs and Trade observed:
We have noted over the longer term that there has been an
improvement overall in its human rights observance. However, we would also
assess that Vietnam has lost ground in some human rights areas—specifically, in
the area of the protection of civil and political rights in the last couple of
years. It continues to make some incremental progress in terms of economic and
social rights—the two broad strands of human rights. The things that we are most
seized by in terms of human rights in Vietnam is the imprisonment of
individuals for the peaceful expression of their political and religious
The treaty does provide numerous grounds of refusal in relation to human
rights protection. If the Australian Government is concerned about human rights
safeguards, then those concerns can be taken into account and, in appropriate
cases, extradition refused.
In the past, the Committee has made recommendations that the Australian
Government monitor those individuals extradited to those countries with whom
Australia has signed extradition treaties, with regard to the United Arab
Emirates and India in JSCOT Reports 91 and 110
respectively. This included Australian and non-Australian nationals. In
response, the Committee heard that:
The government did respond in the context of both the India
and the United Arab Emirates reports in relation to the committee's recommendations.
Extra measures have been put in place in relation to those. In the context of
the committee's report on the proposed treaty with India, the government
accepted the recommendation that all Australians who are subject to extradition
should receive a face-to-face meeting with an Australian consular
official—unless that person, of course, objects—and their welfare would
continue to be monitored by our consular arrangements.
In relation to non-nationals, as was outlined in the
government's response to the committee's reports, there is no legal framework
under the Vienna convention on consular relations, which we can use to monitor
non-nationals. However, in response to the committee's concerns, the government
has asked us to undertake additional measures so that, where a foreign national
is extradited from Australia, the government would formally advise that
person's country of citizenship, subject to the person's consent, and that
country of citizenship would monitor that person's welfare.
Notwithstanding the Australian Government’s welcome reforms in response
to the Committee’ concerns, the Committee re-iterates its recommendation that
new and revised extradition agreements should explicitly provide a requirement
that the requesting country provide annual information concerning the status of
The Committee recommends that new and revised extradition
agreements should explicitly provide a requirement that the requesting
country provide annual information concerning the trial status and health of
extradited persons and the conditions of the detention facilities in which
they are held.
Australia and Vietnam have a growing relationship. The Committee notes
that Australia is the second most common destination for Vietnamese migrants
and that people born in Vietnam represent the sixth largest migrant community
in Australia. Given Australia’s developing ties with Vietnam, the Committee
agrees that it is timely to strengthen our bilateral international cooperation
The Committee agrees that it is in Australia’s interests that criminals
cannot evade justice simply by crossing borders and this Treaty provides for an
effective extradition relationship with Vietnam. It is key to ensuring that
criminals who cross our respective borders are not impervious to prosecution.
The Committee also notes the provisions for refusal, including
protections against the use of the death penalty, and punishing a person on
account of that person’s race, ethnic origin, gender, language, religion,
nationality, political opinion or sexual orientation.
Given this balance, the Committee supports the Treaty and recommends
that binding treaty action be taken.
The Committee supports the Treaty between Australia and
the Socialist Republic of Vietnam on Extradition done at Canberra on 10 April
2012 and recommends that binding treaty action be taken.