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Extradition
(Convention for the Suppression of Acts of Nuclear Terrorism) Regulation 2012
FRLI: F2012L02434
Portfolio: Attorney-General
PJCHR Comments: Report 1/2013 and 3/2013
Extradition
(Cybercrime) Regulation 2013
FRLI: F2013L00214
Portfolio: Attorney-General
Extradition
(Piracy against Ships in Asia) Regulation 2013
FRLI: F2013L00397
Portfolio: Attorney-General
Summary of committee view
1.1
The committee
seeks clarification as to whether the Extradition Act 1988:
- in not requiring
the Attorney-General to consider if there are substantial grounds for believing
there is a real risk that a person might be subjected to cruel, inhuman or
degrading treatment or punishment if extradited, is consistent with the
Australia's obligations under article 7 of the International Covenant on
Civil and Political Rights (ICCPR) and article 3 of the Convention against
Torture;
- in not requiring
the Attorney-General to consider if there are substantial grounds for believing
there is a real risk that a person might be subjected to the death penalty if
extradited, is consistent with Australia's obligations with respect to the
right to life under the ICCPR and the Second Optional Protocol to the ICCPR,
and why the Act does not include a requirement for monitoring compliance with
any assurances given
- in not allowing
for an extradition objection if, on surrender, a person may suffer a flagrant
denial of justice, is consistent with the right to a fair hearing and
Australia’s obligations under the ICCPR not to return a person to a
jurisdiction where they may face a serious violation of rights guaranteed by
article 14 and other provisions of the ICCPR ;
- in not requiring
any evidence to be produced before a person can be extradited, and in
preventing a person subject to extradition from producing evidence about the
alleged offence, is consistent with the right to a fair hearing and the right
to liberty
- in providing for
a presumption against bail except in special circumstances is consistent with
the right to liberty;
- in not providing
for a more expansive list of grounds for discrimination as an extradition
objection is consistent with the right to equality.
1.2
The committee
also seeks clarification as to whether the implementation of the provisions of
the Cybercrime Convention provide for adequate protection of human rights.
1.3
The committee
notes that these instruments, in extending the operation of the Extradition Act
to over 30 new countries – including countries that may not have the same
standards of detention and trial that we would see in Australia –demonstrates
the need to examine the adequacy of the human rights safeguards in the Extradition
Act 1988.
Overview
1.4
The Extradition
(Convention for the Suppression of Acts of Nuclear Terrorism) Regulation 2012
applies the Extradition Act 1988 to all countries that are party to the
International Convention for the Suppression of Acts of Nuclear Terrorism
(ICSNT). It does so by ensuring that the definition of an 'extradition country'
in the Extradition Act is taken as including a country for which the ICSNT is
in force. The Extradition Act then applies to those countries subject to the
terms of the ICSNT.
1.5
The Extradition
(Cybercrime) Regulation 2013 applies the Extradition Act 1988
to all countries who are party to the Council of Europe Convention on
Cybercrime. It also does so by ensuring that the definition of an 'extradition
country' in the Extradition Act is taken as including a country for which the
Cybercrime Convention is in force. In addition, this instrument states that the
Extradition Act applies to those countries subject to the terms and conditions
of the Cybercrime Convention.
1.6
The Extradition
(Piracy against Ships in Asia) Regulations 2013 applies the Extradition
Act 1988 to all countries who are party to the Regional Cooperation
Agreement on Combating Piracy and Armed Robbery against Ships in Asia (Piracy
Agreement). It also does so by ensuring that the definition of an 'extradition
country' in the Extradition Act is taken as including a country for which the
Piracy Agreement is in force. In addition, this instrument states that the
Extradition Act applies subject to the Piracy Agreement. This regulation
extends the countries to which Australia will extradite someone; including to
Myanmar/Burma, China and Vietnam.
Compatibility with human rights
1.7
The statements
of compatibility for the ICSNT and Cybercrime regulations state that neither
instrument 'engage[s] any of the applicable rights or freedoms'. The statement
for the ICSNT regulations states that the existing extradition regime 'contains
a number of human rights safeguards that appropriately balance Australia's need
to comply with our international obligations while ensuring that the rights of
individuals are protected'. The statement of compatibility for the Cybercrime
regulations states that the instrument 'does not alter any of the human rights
safeguards that are already contained in Australia's extradition regime' and concludes:
While
Australia's Extradition regime engages with some human rights, it does so in a
reasonable and proportionate way and does not operate to limit or restrict
those rights.[1]
1.8
The Piracy
Agreement regulations states that the regulation does not alter any of the
human right safeguards already in place and is therefore 'compatible with the
applicable rights and freedoms'.
1.9
In relation to
the ICSNT regulations the committee previously commented[2]
that it was not clear from the statement of compatibility how the existing
extradition arrangements are considered to be compatible with human rights. The
committee said that in order for it to be satisfied that the instrument is
compatible with human rights it is necessary to understand how the Extradition
Act 1988 (which the instrument extends the operation of) complies with
human rights.
1.10
On 26 February
2013 the Attorney-General responded to the committee setting out information on
the human rights protections contained in Australia's extradition regime.[3]
This response, insofar as it sets out views on the compatibility of Australia's
extradition regime generally, would apply to the extension of the Extradition
Act under the Cybercrime regulations.
1.11
The
Attorney-General's letter sets out the extradition process and notes that there
are a number of grounds on which a person can object to being extradited,
including that:
- the extradition
offence is a political offence;
- that the person
is actually being sought to be extradited on account of their race, sex, sexual
orientation, religion, nationality or political opinions, or that they may be
prejudiced at trial or detained on these grounds;
- the offence is a
military offence but not a criminal offence; and
- the person will
be subject to double jeopardy.
1.12
Under the
extradition regime, a magistrate makes an order determining whether a person is
eligible for surrender and the Attorney-General makes the final decision as to
whether a person is to be surrendered for extradition. The Attorney-General's
letter notes that the Extradition Act 1988 provides that a person must
not be surrendered where there are substantial grounds to believe the person
would be in danger of being subjected to torture; where the death penalty
applies, unless an undertaking is given that the death penalty will not be
carried out; or where the country seeking the person has not given an assurance
that the person will only be tried for the offences contained in the
extradition request. The Attorney-General's letter also notes:
There
is also a broad discretion under section 22 of the Extradition Act to refuse
surrender. This discretion provides an additional mechanism to refuse
extradition in circumstances where there are legitimate human rights concerns.
The person subject to extradition also has the opportunity to make
representations regarding any human rights concerns. In considering whether a
person should be surrendered, those matters raised by the person the subject of
the extradition request will be considered.
In
circumstances where a person believes that human rights concerns were not
adequately considered in the extradition process, they may seek review under
the Extradition Act or under section 39B of the Judiciary Act 1903
and section 75(v) of the Constitution of Australia.[4]
1.13
However, the
committee notes that a Ministerial discretion – that by its very nature means
it may, or equally may not, be exercised, cannot be classified as a human
rights safeguard. Australia's obligations under the human rights treaties are
not discretionary. The committee also notes that proceedings for judicial
review of a decision can only address the questions of whether the magistrate
or Attorney-General adequately considered the matters they were required to
consider. If the Extradition Act does not require all human rights to be
considered or complied with in the making of a decision whether or not to
extradite, a person who 'believes that human rights concerns were not
adequately considered in the extradition process' will have limited ability to
seek a remedy for this. As such, it is necessary to examine whether the
existing legislation does adequately include human rights as matters for
consideration.
1.14
The committee
has a number of concerns with the compatibility of the Extradition Act 1988
with human rights, as set out below. As these three legislative instruments
extend and modify the operation of the Act, it follows that these concerns
apply equally to these instruments. The committee notes that it has not been
able to exhaustively review the Extradition Act 1988 or the conventions
or Agreement which the instruments refer to, but hopes that the
Attorney-General, in responding to the committee's concerns, may undertake a
wider review to consider compatibility with human rights of this important
legislation.
Prohibition
against torture, cruel, inhuman and degrading treatment
1.15
Paragraph
22(3)(b) of the Extradition Act 1988 provides that a person is only to
be surrendered for extradition if 'the Attorney-General does not have
substantial grounds for believing that, if the person were surrendered to the
extradition country, the person would be in danger of being subjected to
torture'. This wording is consistent with the requirement in article 3 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT) which provides:
No
State party shall expel, return ('refouler') or extradite a person to another
State where there are substantial grounds for believing that he would be in
danger of being subjected to torture.
1.16
However, while
the provisions in the Extradition Act are consistent with the CAT, they may not
be consistent with the prohibition on torture in article 7 of the International
Covenant on Civil and Political Rights (ICCPR). Article 7 of the ICCPR
relevantly provides:
No
one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment.
1.17
Article 7 of the
ICCPR is broader than article 3 of CAT as it not only prohibits torture but
also prohibits 'cruel, inhuman or degrading treatment or punishment'. The UN
Human Rights Committee has held that article 7 prohibits states from
extraditing a person to a place where that person may be in danger:
In
the view of the Committee, 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.[5]
1.18
More recently,
the UN Human Rights Committee has expanded on this comment, noting:
Moreover,
the article 2 obligation requiring that States Parties respect and ensure the
Covenant rights for all persons in their territory and all persons under their
control entails an obligation not to extradite, deport, expel or otherwise
remove a person from their territory, where there are substantial grounds for
believing that there is a real risk of irreparable harm, such as that
contemplated by articles 6 and 7 of the Covenant, either in the country to
which removal is to be effected or in any country to which the person may
subsequently be removed. The relevant judicial and administrative authorities
should be made aware of the need to ensure compliance with the Covenant
obligations in such matters.[6]
1.19
The
committee intends to write to the Attorney-General to ask why
section 22(3) of the Extradition Act 1988 does not explicitly
require the Attorney-General to consider if there are substantial grounds for
believing there is a real risk that a person might be subjected to cruel,
inhuman or degrading treatment or punishment if extradited.
Death
penalty
1.20
Section 22 of
the Extradition Act 1988 requires the Attorney-General not to surrender
a person to a country where the offence is punishable by a penalty of death,
unless the country gives an undertaking that the person will not be tried for
the offence; if tried, the death penalty will not be imposed; or if the death
penalty is imposed it will not be carried out. This is an important safeguard
and helps to safeguard the right to life as guaranteed by article 6 of the
ICCPR. However, diplomatic assurances and undertakings can be breached, and the
Act does not require the Attorney-General to refuse extradition – even where
there are undertakings in effect – if there are substantial grounds to believe
the person would be in danger of being subjected to the death penalty. It also
does not require any monitoring of the treatment of people extradited to ensure
that assurances are being complied with.
1.21
The
committee intends to write to the Attorney-General to ask why
section 22(3) of the Extradition Act 1988 does not require the
Attorney-General to consider if there are substantial grounds for believing
there is a real risk that a person might be subjected to the death penalty if
extradited. It also intends to ask why the Act does not include a requirement
for monitoring compliance with any assurances given.
Right
to a fair trial
Flagrant
denial of justice
1.22
Under article 14
of the ICCPR everyone has the right to a fair and public hearing in the determination
of any criminal charge. The European Court of Human Rights, when considering an
analogous right, has held that fair trial rights may be raised by 'an expulsion or extradition decision in circumstances where the
fugitive had suffered or risked suffering a flagrant denial of justice in the
requesting country'. The Court has indicated that certain forms of unfairness
could amount to a flagrant denial of justice, including:
- conviction
in
absentia
with no possibility subsequently to obtain a fresh determination of the merits
of the charge;
- a
trial which is summary in nature and conducted with a total disregard for the
rights of the defence;
- detention
without any access to an independent and impartial tribunal to have the
legality of the detention reviewed;
- deliberate
and systematic refusal of access to a lawyer, especially for an individual
detained in a foreign country.[7]
1.23
As the Minister
for Home Affairs has previously noted, the committee's general reference to
international human rights bodies may encompass the European Court of Human
Rights as it contains rights that are analogous to those in the ICCPR.[8]
The UK courts have
similarly held: ‘It can
be regarded as settled law that where there is a real risk of a flagrant denial
of justice in the country to which an individual is to be deported article 6
[the right to a fair hearing under the European Convention] may be
engaged’.[9]
1.24
Given
international human rights case-law recognises the denial of a right to a fair
trial as a basis on which extradition may be refused, it is concerning that the
Extradition Act 1988 does not provide denial of a fair hearing as a
ground for an extradition objection. The committee notes that a broad
discretion conferred on the Attorney-General to surrender a person for extradition
only if he or she considers the person should be surrendered, is an
insufficient protection given the discretion is non-compellable and
non-reviewable in relation to this ground.
1.25
The
committee intends to write to the Attorney-General to ask why the Extradition
Act 1988 does not include an extradition objection if, on surrender, a
person may suffer a flagrant denial of justice in contravention of article 14
of the ICCPR.
No
requirement for a prima facie case to be established
1.26
Prior to 1988,
extradition laws in Australia required that a State requesting the extradition
of a person produce evidence of guilt sufficient to establish a prima facie
case. This is similar to what is required under the general criminal law when a
magistrate commits a person for trial. This was removed with the introduction
of the Extradition Act 1988. Not only does the Act not require the
requesting State to produce any evidence to demonstrate there is a case to
answer before a person is extradited, it also prohibits the person who may be
subject to the extradition from producing any evidence to contradict an
allegation that the person has engaged in conduct constituting an extradition
offence (and prohibits a magistrate from receiving any such evidence).[10]
In addition, the review provisions in the Act expressly prohibit a person from
adducing such evidence, and prohibits the court from receiving such evidence,
on review or appeal.[11]
1.27
In 2001 the
Joint Standing Committee on Treaties undertook a review of Australia's law and
policy on extradition.
It considered the 'no evidence' model and noted 'the consequences for a person who is
facing extradition to a foreign country, where the legal system, language and
availability of legal assistance may present great difficulties, mean that
extradition cannot be treated merely as an administrative step.'[12] It concluded that 'to provide better
protection for the rights of individuals whose extradition is being sought from
Australia ... there are persuasive grounds for Australia to consider increasing
its evidentiary requirements from the default “no evidence” model'.[13]
1.28
The
committee intends to write to the Attorney-General to ask whether the Extradition
Act 1988, in not requiring any evidence to be produced before a person can
be extradited, and in preventing a person subject to extradition from producing
evidence about the alleged offence, is consistent with the right to a fair
hearing under article 14 of the ICCPR.
1.29
As
extradition invariably results in the detention of a person pending extradition
and often lengthy detention in the foreign country while awaiting trial, the
committee also intends to ask whether allowing the extradition and detention of
someone without first testing the basic evidence against them, is consistent
with the right to liberty under article 9 of the ICCPR.
Right
to liberty
1.30
There are a
number of provisions in the Extradition Act 1988[14]
that provide that a person who is subject to extradition proceedings should not
be remanded or released on bail 'unless there are special circumstances
justifying' this. This means that under the Act there is a presumption that a
person will be detained unless they can prove there are special circumstances
that they should not be.
1.31
Article 9 of the
ICCPR sets out the right to liberty, including the right not to be subjected to
arbitrary detention. Imposing a rule that bail will be refused except in
special circumstances, appears to limit this right. As such, the limitation
must be shown to seek to achieve a legitimate objective, have a rational
connection to that objective and be proportionate. While preventing people who
may be a flight risk from avoiding the extradition process might be seen to be
a legitimate objective, it is not clear that a blanket prohibition on bail except in special
circumstances is a proportionate response. As the House of Representatives
Standing Committee on Social Policy and Legal Affairs said, in relation to
legislation amending the Extradition Act:
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.[15]
1.32
In its draft
general comment on article 9 of the ICCPR (which draws on the Human Rights
Committee’s jurisprudence on the issue) the Human Rights Committee commented in
relation to the analogous situation of pre-trial detention:
Courts
must examine whether alternatives to pretrial detention, such as bail,
electronic bracelets, or other conditions, would render detention unnecessary
in the particular case. If the defendant is a foreigner, that fact must not be
treated as sufficient to establish that the defendant may flee the
jurisdiction.[16]
1.33
The
committee intends to write to the Attorney-General to ask whether provisions of
the Extradition Act 1988, which contain a presumption against
bail except in special circumstances, are consistent with the right to liberty.
Right
to equality
1.34
Article 26 of
the ICCPR provides:
All
persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status.
In addition, the Convention on the
Rights of Persons with Disabilities provides for equality for persons with
disabilities.
1.35
Section 7 of the
Extradition Act 1988 sets out grounds on which a person might raise an
objection to extradition, which include grounds to object if it can be shown
that the person to be extradited is to be prosecuted or punished, or may be
prejudiced at trial or have their liberty restricted, on account of their
'race, sex, sexual orientation, religion, nationality or political opinions'.
This is an important safeguard; however, this list does not include all the
grounds for discrimination as set out in the international conventions,
including disability, language, opinions (other than political opinions), or
social origin.
1.36
The
committee intends to write to the Attorney-General to ask why a more expansive
list of grounds for discrimination is not included in section 7 of the Extradition
Act 1988.
Right
to presumption of innocence
1.37
Section 45 of
the Extradition Act 1988 makes it an offence, where a person has been
remanded in custody for an extradition offence, for the person to have earlier
engaged in conduct which would have constituted an offence against Australian
law if the conduct had occurred in Australia. The purpose of this provision is
to enable a person to be prosecuted in Australia for the offence rather than
being extradited. Subsection 45(2) provides that absolute liability applies to
the requirement that the person has been remanded, that they engaged in conduct
outside Australia at an earlier time, and that the conduct would have
constituted an offence under Australian law had the conduct occurred in
Australia.
1.38
Absolute
liability means the prosecution is not required to prove fault and so such
provisions limit the right to be presumed innocent until proven guilty as
provided for in article 14 of the ICCPR. When this provision was amended in
2012, the explanatory memorandum explained that this means that the prosecution need not prove that
the person was reckless as to the elements required to establish the offence:
This
will ensure that the prosecution is not required to prove that the person
intended to engage in conduct outside Australia at an earlier time or that the
person was reckless as to whether that conduct would have constituted an
offence in Australia had the conduct or equivalent conduct occurred in
Australia. Further, new subsection 45(3) will set out the physical and fault
elements that need to be established by the prosecution.[17]
1.39
The
committee intends to write to the Attorney-General to ask how section 45
in the Extradition Act 1988, in applying absolute liability to the
offence, is consistent with the right to be presumed innocent under article 14
of the ICCPR.
Council
of Europe Convention on Cybercrime
1.40
The
Extradition (Cybercrime) Regulation 2013 extends the Extradition Act to all
countries who are signatories to the Convention on Cybercrime, and applies the
Act subject to the Convention. There are 38 countries that party to the
Cybercrime Convention, including around 11 countries that Australia did not
previously have an extradition treaty with. The Convention provides a framework
for international cooperation in the prevention and investigation of crimes
committed via the internet and other computer networks. As a result of
Australia’s decision to accede to this Convention changes were made to
Australian laws to require Internet Service Providers to store computer data
which can be provided, by warrant, at the request of a foreign country. Many of
the provisions of the Convention would appear to raise concerns with the right
to privacy under article 17 of the ICCPR.
1.41
The Cybercrime
Convention does not provide for specific protection of human rights in the
provisions of the treaty itself, however, it has a catch-all provision that
states:
Each
party shall ensure that the establishment, implementation and application of
the powers and procedures provided for in this Section are subject to
conditions and safeguards provided for under its domestic law, which shall
provide for the adequate protection of human rights and liberties, including
rights arising pursuant to obligations it has undertaken under the 1950 Council
of Europe Convention for the Protection of Human Rights and Fundamental
Freedoms, the 1966 United Nations International Covenant on Civil and Political
Rights, and other applicable international human rights instruments, and which
shall incorporate the principle of proportionality.[18]
1.42
Treaties in
Australia do not automatically form part of Australian law, rather it is up to
the government to legislate to incorporate the terms of the treaty. It is
unclear whether, in implementing the Cybercrime Convention, human rights and
liberties were adequately protected, as the amending legislation was introduced
before the committee began its work of reporting on bills.
1.43
The
committee intends to write to the Attorney-General to ask for details of the
procedures intended to ensure that the legislative and other arrangements for
implementation of the provisions of the Cybercrime Convention provided for
adequate protection of human rights and whether in fact they do so.
International
Convention for the Suppression of Acts of Nuclear Terrorism
1.44
The
Extradition (Convention for the Suppression of Acts of Nuclear Terrorism)
Regulation 2012 extends the Extradition Act to all countries who are
subject to the International Convention for the Suppression of Acts of Nuclear
Terrorism (ICSNT), and applies the Act subject to the Convention. There are 85
countries that are party to the ICSNT, including around 34 countries that
Australia did not previously have an extradition treaty with (which includes
countries such as Afghanistan, the Central African Republic, the Democratic
Republic of the Congo, Russia and Saudi Arabia).
1.45
The
Attorney-General's letter of 26 February 2013 to the committee stated:
The
effect of the Regulation is to allow Australia to make and receive extradition
requests to and from States Parties to the Convention, for offences specified
in the Convention. The offences described in the Convention relate to nuclear
terrorism and are therefore of a serious nature and of international concern.
...
The
Regulation does not alter any of the human rights safeguards that are already
contained in the Extradition Act.
1.46
The
committee notes that extending the operation of the Extradition Act to over 30
new countries – including countries that may not have the same standards of
detention and trial that we would see in Australia – demonstrates the need to
examine the adequacy of the human rights safeguards in the Extradition Act
1988.
Regional
Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in
Asia
1.47
The Extradition
(Piracy against Ships in Asia) Regulations 2013 extends the Extradition
Act 1988 to all countries who are party to the Piracy Agreement and
applies the Act subject to the Agreement. There are currently around 17 parties
to the Agreement, including four countries to which the Extradition Act does
not appear to currently apply: China, Lao, Burma and Vietnam.
1.48
The committee
notes that extending the operation of the Extradition Act to more countries –
including countries that do not have the same standards of detention and trial
that we would see in Australia – demonstrates the need to examine the adequacy
of the human rights safeguards in the Extradition Act 1988.
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