Treaty on Extradition between Australia and the People's Republic of China
Introduction
3.1
This chapter examines the Treaty on Extradition Between Australia and the People’s Republic of China. The Treaty was signed on 6 September 2007 and tabled in the Parliament on 2 March 2016.
3.2
Australia currently has 39 similar bilateral extradition treaties, making this the 40th such agreement. In 2014–15 Australia granted a total of ten extraditions under the existing treaties.
3.3
Under Australia’s extradition framework, the Extradition Act 1988 provides the legal basis for extradition between Australia and another country. The Extradition Act sets out a number of mandatory requirements which must be met before Australia can make or receive an extradition request. Those requirements are supplemented by requirements contained in multilateral or bilateral treaties. According to the National Interest Analysis (NIA), Australia considers each individual extradition request on a case-by-case basis in light of its domestic legislative framework for extradition and its international obligations.
Overview
3.4
The Attorney-General’s Department (AGD) emphasised the important role that extradition treaties play in combating serious crime, including international crime:
Having an effective extradition relationship is important to ensure that criminals cannot evade prosecution or punishment by crossing borders. As links between [China and Australia] grow, it is in Australia’s interest to have a framework to be able to work in partnership with China in the fight against crime.
3.5
The AGD explained that current extradition arrangements with China are restricted, and that the proposed Treaty will expand each country’s ability to prosecute offenders:
Currently Australia can only extradite to China for a limited range of offences out of those covered by multilateral conventions to which both Australia and China are a party, such as the UN Convention against Corruption. The proposed treaty will strengthen our international crime cooperation relationship by extending extradition coverage to all offences considered to be serious by both countries, such as murder and fraud.
3.6
The NIA claims that the safeguards and protections in the proposed Treaty are consistent with those in the Extradition Act. The AGD listed the following mandatory grounds for refusal to allow extradition of an individual:
where there are substantial grounds for believing the person has been or will be subjected to torture or other cruel, inhumane or humiliating treatment or punishment;
where the person may be discriminated against on specific grounds;
where the offence is a political or military offence;
where the person would be exposed to double jeopardy;
where a person is immune from prosecution by reason of lapse of time;
a judgement has been rendered in absentia and there is no guarantee the case will be retried after the extradition; or
where an offence was not an offence in the requested country at the time that it occurred.
3.7
Consistent with the Extradition Act, the proposed Treaty adopts the ‘no evidence’ standard for extradition requests. The NIA states that this accords with the international approach to simplifying extradition requests and is consistent with the United Nations Model Treaty on Extradition.
3.8
The AGD explained that ‘no evidence’ does not mean no information:
The no evidence standard treats the determination of guilt or innocence as fundamentally a matter for the courts of the requesting country … The requesting country must provide a statement setting out the conduct alleged against the person in respect of the offence for which extradition is sought as well as an arrest warrant or relevant judicial documents. The treaty requires the provision of sufficient information to enable the requested country to determine whether the person is sought for the legitimate purpose of the enforcement of criminal law and to enable the requested country to consider whether there is a basis for refusing the request.
3.9
The AGD stressed that extradition is not an automatic process and that there are opportunities for review of extradition decisions at each stage of the process.
Issues raised
3.10
Despite the assurances offered by the AGD and the NIA that the Treaty is consistent with the Extradition Act and with Australia’s domestic legislative arrangements, serious concerns have been raised over the human rights safeguards contained in the proposed Treaty action. These include:
the right to a fair trial;
possible imposition of the death penalty;
protection from torture, cruel, inhuman, humiliating treatment or punishment;
omission of the words ‘unjust or oppressive’ from Article 4(c);
extradition of minors; and
monitoring of individuals extradited to China.
Right to a fair trial
3.11
There is a body of evidence suggesting that China’s criminal justice system ‘does not act in accordance with procedural fairness and rule of law standards in criminal proceedings’. This has raised questions as to whether China can guarantee the right to a fair trial for individuals extradited to the country. Amnesty International summed up the issues that have prompted the concerns:
China does not have an independent judiciary. Many suspected criminals are unable to access legal counsel, especially in politically ‘sensitive’ cases. Forced ‘confessions’ extracted through torture and other forms of ill-treatment continue to play an important role in the Chinese criminal justice system, despite some recent laws, regulations, and policies attempting to curb the practice.
3.12
The Law Council of Australia (LCA) points to China’s limited number of bilateral extradition treaties, particularly with democratic countries, as evidence of general concern over its record in this regard. China does not have extradition treaties with the United States of America (USA), the United Kingdom (UK), Canada, the European Union (EU) or New Zealand.
3.13
The LCA also highlighted that China is not a party to the International Covenant on Civil and Political Rights (ICCPR) which protects the right to a fair trial. Australia is a party to the ICCPR and, in the LCA’s opinion, will violate its obligations under the Covenant if it extradites individuals to China where there is a risk they may not receive the right to a fair trial:
The Law Council’s position, and it corresponds with European jurisprudence, is that you are prohibited under the ICCPR from returning someone to face a situation in which there might be a fundamental denial of fair trial rights.
3.14
The proposed Treaty will operate in conjunction with the Extradition Act and the AGD considers that this will provide the means to refuse extradition if there is doubt that an individual will have access to a fair trial:
The extradition treaty itself has a ground of refusal in respect of incompatibility with humanitarian consideration in view of the person’s circumstances. In addition, the Extradition Act contains a general discretion to refuse extradition, in which the minister may have regard to any relevant circumstances. Collectively, those would operate together to permit the minister to consider trial arrangements, which would legitimately be a relevant consideration in determining whether or not to surrender a person and would permit the minister to have regard to the extent to which a fair trial is available in the in the circumstances of that particular person.
3.15
The AGD is satisfied that the process of negotiating each extradition decision on a case-by-case basis mitigates the risk:
… it is open to the Australian government to have a conversation with the Chinese government to say, ‘In relation to this person that you want to have go back to your country, we might need to have a set of assurances.’ We might say, for example … ‘Yes, we would extradite the person only if the trial is held in open court, only if that person has access to legal representation and only if the person has an opportunity to test the evidence.’ The thing about extradition is that it is about what you can arrange for that particular person, so the minister has to be satisfied of the circumstances for that person going back into a country.
3.16
However, the LCA considers this process unsatisfactory for a number of reasons, including:
if China instigated a reciprocal request under this arrangement, it could raise issues regarding Australia’s sovereignty and the separation of powers, as the Australian Executive Government would not wish to guarantee that Australian courts ‘would conduct proceedings against a person in a manner that diverges from the usual procedures of the court’;
as the proposed process has ‘no basis in the text of the Treaty’ it could prove difficult to persuade China to accept it, leaving Australia obliged to surrender the individual under international law; and
it provides inadequate protection for an individual’s right to a fair trial as it relies on the discretion of the decision makers in each country and the process could be ‘influenced by a wide range of factors’.
3.17
Further, the proposed process does not address the issues raised regarding Australia’s obligations under the ICCPR. The process could leave Australia open to a challenge before the United Nations (UN) Human Rights Committee.However, the AGD does not accept this interpretation of the ICCPR clause:
The ICCPR imposes particular non-refoulement obligations in relation to certain fundamental rights. It does not create a non-refoulement obligation in respect of a fair trial.
Possible implementation of the death penalty
3.18
Under Article 3(f) of the Treaty a request for extradition may be refused if the offence for which the extradition has been requested carries the death penalty and the requesting Party does not provide an undertaking ‘that the death penalty will not be imposed or, if imposed, will not be carried out’. As China is known to impose the death penalty for non-lethal offences–and there is a lack of transparency around its imposition–concerns have been raised over the effectiveness of this Article.
3.19
Amnesty International suggests that the Article should unequivocally stipulate that ‘the death penalty will not be imposed’. However, the AGD explained that, in line with the doctrine of the separation of powers, an executive government cannot stop the judicial arm of government from imposing a death penalty but it can ensure that such a sentence is not carried out:
So, in fact, when we negotiate death penalty undertakings with countries, including obviously with our colleagues in the United States, it would make it pretty much impossible for countries around the world to be able to give us a death penalty undertaking that the death penalty would not be imposed, because that would actually be, in many instances, interfering with the independence of the judiciary … what the executive government can do is that they can say ‘if it is imposed’ … If a court does impose the death penalty, the death penalty undertaking then has those words that ‘it will not be carried out’.
3.20
The LCA maintains that the undertaking not to carry out the death penalty in such a case is not legally enforceable and points out that the Treaty contains no provision for consequences for non-compliance:
There is no consequence. What is Australia going to do? What is the reality? Is Australia going to try to haul China before the International Court of Justice? It is a joke. That is the reality of it. It is impossible to impose an effective sanction against a breach of the death penalty undertaking, other than as an executive act the Attorney-General may refuse future requests, and that requires the discretion of the Attorney in any particular case.
3.21
The AGD, on the other hand, maintains that an undertaking of this nature is a deliberate and intentional government-to-government assurance that carries considerable weight:
… the nature of an undertaking, such as they are obtained in extradition practice, is to ensure that the undertaking has a particular quality of assurance on behalf of a government that a death penalty will not be carried out. That is the arrangement that has been adopted in respect of other bilateral treaties with countries with whom we have an extradition relationship, and what is required by the decision maker is to turn their mind to the adequacy of that assurance and the extent to which it gives confidence that it is an assurance that will be abided by and that it is an assurance by the national government, which then ensures that there is appropriate satisfaction that the death penalty will not be carried out.
3.22
Further, the AGD is adamant that there are consequences for non-compliance:
The undertaking is critically important. It is a key feature and recognised principle of international cooperation that there be the exchange of undertakings at a government-to-government level. I do not think I can emphasise enough how significant the giving of an undertaking in an extradition matter is. It underpins the bilateral crime cooperation relationship. Any breach of an undertaking would be regarded in the most serious terms and would impact not only on the international crime cooperation relationship between countries but on the broader bilateral relationship. A breach would be extraordinarily serious.
3.23
The AGD provided an example of China honouring a previous death penalty undertaking in a mutual assistance case. The murder case involved a Chinese national who had returned to China of his own accord after the event. A consequent mutual assistance request for evidence was acceded to on condition of a death penalty undertaking and the undertaking has been honoured.
3.24
The AGD also emphasised that Australia has a strong international reputation for opposing the death penalty and that it takes its obligations in this area very seriously:
So the capital punishment side is very straightforward and clear. We have an international obligation not to send someone back to face the death penalty. It has been the policy of successive Australian governments, notwithstanding those international obligations. It has been very clear that Australia is abolitionist.
3.25
The lack of transparency surrounding China’s use of the death penalty was also questioned. China does not publish information concerning the number of death sentences imposed or executed. The AGD was able to provide an estimate of 2 400 people executed for 2014 taken from an NGO report. The AGD pointed out that a number of other countries with which Australia has extradition treaties retain the death penalty: Indonesia, India, Malaysia, the United Arab Emirates, the United States of America, Vietnam, Brazil, Chile, Israel and the Republic of Korea. Data on the death penalty is not available for a number of those countries:
Amnesty International’s Global Report on Death Sentences and Executions in 2015 notes that the number of executions carried out by, and death sentences imposed in, Vietnam and Malaysia was unclear. The Report also notes that while the number of executions carried out by India and Indonesia was clear, the number of death sentences imposed was unclear.
Torture, cruel, inhuman, humiliating treatment or punishment
3.26
Under the mandatory grounds for refusal of an extradition request, Article 3(g) of the Treaty states that a request may be refused if the Requested Party ‘has substantial grounds for believing the person sought has been or will be subjected to torture or other cruel, inhuman or humiliating treatment or punishment’. Although this provision was generally welcomed there is concern regarding how the Government determines what constitutes ‘substantial grounds’.
3.27
The AGD stressed that an individual facing an extradition request has the opportunity to challenge each stage of the extradition process and may present relevant information if they are concerned they may be subject to torture or ill-treatment. The AGD indicated that the results of such judicial reviews are publicly available. To determine if there are substantial grounds to suspect that the individual is at risk, the Department undertakes extensive research into the conditions prevailing in the requesting country and seeks assurances regarding the individual case:
… there is extensive analysis that the Attorney-General’s Department do of things like State Department reports on human rights and various human rights reporting. That is a major part of what we do. We look at what the international human rights reporting is. We look at whatever representations are made by the person who is the subject of the extradition request … We would test it against … internationally recognised human rights reporting. We would test it, of course, with our own diplomats, who would be in posts around the world. We would test it with the foreign country. We would put all of those representations to the foreign country, and we would require the foreign country to give us very clear assurances about what their views are about the allegations of torture and mistreatment.
Omission of the words ‘unjust and oppressive’
3.28
The discretionary grounds for refusal of an extradition request include incompatibility with humanitarian considerations in view of that person’s age, health or other personal circumstances (Article 4(c)). However, the Extradition (Commonwealth Countries) Regulations, which cover 50 Commonwealth jurisdictions, add the words ‘unjust or oppressive’; broadening the criteria to allow factors beyond humanitarian considerations, including general injustice or oppressiveness, to be taken into account.
3.29
Ten of Australia’s bilateral extradition treaties also include these words. The LCA would like to see the words included consistently in future extradition treaties as well as the China Treaty:
Our position would be that there needs to be a consistent position taken which would protect minimum human rights in all of our treaties. In the case of this one, it could be done by including such a provision in the regulations, should they be made, to apply the act to China.
3.30
The AGD was unable to provide an explanation as to why the words ‘unjust or oppressive’ had not been included in this extradition treaty, stressing that each extradition treaty is unique:
No Australian modern bilateral extradition treaty is identical to another. Bilateral treaties are, by their nature, negotiated as between the two parties, and there is a difference in the features of the language of them.
3.31
The Department again reiterated that the discretionary grounds in the Treaty and the Extradition Act, taken separately or together, would ensure that humanitarian considerations are assessed for each individual case:
… the provisions in the proposed treaty between Australia and China contain a range of grounds of refusal that are intended to give effect to our international obligations. These are complemented by the Australian Extradition Act, which is absolutely consistent with our international obligations and permits relevant considerations to be taken into account.
Evidential standards
3.32
The Treaty adopts the ‘no evidence’ model for extradition which is currently Australia’s policy position. The AGD explained that ‘no evidence’ does not mean no information:
The no evidence standard treats the determination of guilt or innocence as fundamentally a matter for the courts of the requesting country … The requesting country must provide a statement setting out the conduct alleged against the person in respect of the offence for which extradition is sought as well as an arrest warrant or relevant judicial documents. The treaty requires the provision of sufficient information to enable the requested country to determine whether the person is sought for the legitimate purpose of the enforcement of criminal law and to enable the requested country to consider whether there is a basis for refusing the request.
3.33
The LCA considers the evidentiary threshold too low. There is no provision requiring the requesting state to provide evidence in support of the offence and no means to challenge the strength of the evidence provided:
In Australia extradition objections are limited to what is contained in section 7 [of the Treaty] and, in the main, that relies upon being able to satisfy the court that the crime for which it is being requested the person be extradited is not a crime within Australia, the crime is based upon some political basis or the crime is a military crime and not a civilian crime.
3.34
The LCA would prefer to see Australia return to a more rigorous evidential standard:
… there are really three different models. One is the no-evidence model, where you put in a request with a list of asserted things, which is now essentially the Australian position. The second is an intermediate stage, which I think the US has to some extent, of probable cause, which is the standard for issuing an arrest warrant. The third standard is the old Australian position—that is, of a prima facie case under which you had to have evidence which was admissible before an Australian court under the peculiar common-law rules of evidence. It was felt that that was too problematic. We have gone from that third very difficult situation back to having virtually no barriers. The Law Council’s submission is that we need to rethink that and perhaps move back towards the other end of the scale.
Extradition of minors
3.35
The LCA expressed concern that Australia’s current extradition regime does not include specific protection for children.As there is no mandatory requirement with regard to extraditing a child, the LCA suggests that potentially Australia could surrender a 10 year old or a 14 year old. The LCA argues that the lack of specific protection for children in the current regime may fail to meet Australia’s obligations under the United Nations Convention on the Rights of the Child.
3.36
While the AGD concedes that the Extradition Act does not apply any specific limits around age, it points out that age would be taken into consideration in assessing an individual’s circumstances. Additionally Australia’s and China’s obligations under the UN Convention on the Rights of the Child ensure children are protected under the extradition Treaty:
… there are two particular issues that I will draw to your attention. One is the extent to which the treaty itself includes a discretionary grant of refusal which has regard to the extent to which the extradition will be incompatible, having regard to particular matters, including the age of the person to be extradited. More generally, I draw your attention to the fact that both Australia and China are parties to the Convention on the Rights of the Child. A decision-maker on an extradition request in Australia would have regard to any international obligations Australia had, including those under the Convention on the Rights of the Child, and ensure that the decision that is made is consistent with those obligations.
Monitoring of persons extradited from Australia
3.37
The Committee has previously expressed concern over the monitoring of extradited individuals and made recommendations accordingly to successive governments. During this inquiry, the issue of effective monitoring of extradited individuals was again raised. The secrecy and lack of transparency attached to China’s judicial system–combined with allegations of the mistreatment of detainees and prisoners–have heightened concerns about this Treaty.
3.38
The NIA offers assurance that under Article 19 the Requesting Party must promptly provide the Requested Party with information about the proceedings and/or execution of a sentence against a person extradited under the Treaty. Further, where an Australian national or Australian permanent residence is to be surrendered to China pursuant to the Treaty, the AGD will inform the Department of Foreign Affairs and Trade (DFAT) of the extradition, including the terms of the extradition and any special conditions applying to the case. Following surrender, as long as the individual has entered China on a valid Australian travel document, DFAT can provide consular assistance to the person through the existing consular network to the extent practically and legally possible, and subject to the person’s ongoing consent.
3.39
These measures are not enough to allay concerns. Amnesty International questioned if the human rights safeguards provided within the Treaty would be effective with regard to the implementation of the death penalty or ill-treatment and torture, if Australia was unable to monitor individuals. The LCA also suggested that monitoring needed to be extended to non-citizens.
3.40
The AGD again reiterated the Department’s ability to seek assurances for individual cases if there was ongoing concern regarding a particular person:
… if there was a concern—so if a minister at any point clears that torture ground of refusal but in fact there were still a lot of claims made by the person—one of the things that we might have built into the agreement to extradite that particular person may well be a requirement that we have access to that person … If there are concerns … we can front-end load it to make sure that the relevant minister is absolutely assured that it is the appropriate thing to do to extradite the person in that case.
Implementation
3.41
The Treaty contains a number of obligations, set out in detail in the NIA. The NIA is available in the Australian Treaties Library.The NIA explains that Section 11 of the Extradition Act allows regulations to be made providing that the Extradition Act applies to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty between that country and Australia. Through this mechanism extradition treaties are given effect in Australia’s domestic law. The NIA states that the Agreement will be implemented by declaring China an ‘extradition country’ by way of regulations.
Costs of the treaty action
3.42
Article 20 provides that the Requested Party shall make all necessary arrangements for any proceedings in the Requested Party arising out of a request for extradition, and bear any incurred expenses. The Requesting party will bear the costs related to transportation and transit for the surrender of a person.
3.43
The NIA assures the Committee that, as is usual, expenses incurred by Australia for extradition requests received or made by Australia under the proposed Treaty will be met from existing budgets. For extradition requests made to Australia by China the cost is principally borne by AGD. For requests made by Australia to China, the cost is principally borne by the Australian investigative and prosecutorial agencies seeking extradition.
Conclusion
3.44
The Committee regularly examines extradition treaties and is aware of the important role that such treaties play in combating domestic and transnational crime. Australia does not wish to become a safe haven for people who commit serious offences and it must be able to bring back individuals from foreign countries who have offended against Australian law.
3.45
However, it is also important that the human rights of the individual are not sacrificed to the effectiveness of the extradition system. Australia has a strong commitment to international human rights as evidenced by its current bid for a seat on the UN Human Rights Council for the period 2018–20 and its ongoing support for the abolition of the death penalty.
3.46
The Committee welcomes the human rights safeguards provided in the extradition Treaty with China, but acknowledges the concerns raised regarding the implementation of those safeguards. The Committee cannot dismiss concerns over the lack of transparency in the Chinese justice system, allegations of the ill-treatment and torture of prisoners, and the continuing imposition of the death penalty.
3.47
The Committee notes the AGD’s argument that the mandatory and discretionary grounds for refusal contained in the Treaty provide sufficient assurance that the human rights of an individual will be protected on a case-by-case basis. The Committee also understands that the Treaty will be executed in conjunction with the Extradition Act. However, the Committee considers that more needs to be done to take into consideration the conditions existing within the system as a whole in order to strengthen the protection of individual human rights.
3.48
There remains doubt about an individual’s access to a fair trial under the justice system in China. Although the Committee acknowledges the consideration that is given to each individual’s circumstances during the extradition process, the Committee recommends that the decision maker also take into account the broader issue of the current state of China’s criminal justice system when making a decision to extradite an individual.
3.49
The Committee recommends that the extradition decision maker take into account reports from government and non-government sources regarding the degree to which China’s criminal justice system currently complies with human rights and the rule of law, when making the decision to extradite an individual.
3.50
To further strengthen the assurance that an individual extradited to China will be provided with a fair trial, the Committee recommends that an undertaking to provide a fair trial is included in the surrender agreement.
3.51
The Committee recommends that undertakings to provide a fair and open trial are routinely included in agreements to surrender an individual to China.
3.52
The Committee acknowledges the attention successive governments have given to its recommendations for the improved monitoring of extradited individuals. The increased information provided by the AGD in its Annual Report as a result of the Committee’s recommendation in Report 91is welcome; as is the assurance that Australians imprisoned in foreign countries, wherever practical and legal, will receive at least one visit from consular officials annually.
3.53
Despite assurances from the AGD that ‘front-loading’ provides sufficient protection for extradited individuals regarding human rights, the Committee would again urge that a more systematic approach needs to be taken to ensure that individuals are not subject to human rights violations. The Committee understands from previous Government Responses that asking extradition partners to report on the condition of extradited individuals in their custody presents difficulties.
3.54
However, if annual consular visits are already being undertaken, the Committee considers it reasonable that the AGD’s reporting could be expanded to include details of individual’s status including whether a trial had taken place, if the person had been found guilty or not and what sentence had been imposed. If the Department considered it necessary to protect the privacy of individuals, an overall total could be provided for each individual question. This minimum monitoring could provide reassurance that individuals were accounted for and provide an added level of protection from execution, ill-treatment or torture.
3.55
The Committee recommends that the Attorney-General’s Department supplement its current annual reporting framework for extradition cases with the following information for each case of an Australian national or an Australian permanent resident held in a foreign country:
if a trial has taken place;
if so, the verdict handed down;
if a sentence was imposed, what that sentence was; and
whether an Australian embassy official was able to attend.
3.56
The Committee also considers, in line with its earlier recommendations, that foreign nationals extradited from Australia should be monitored in the requesting country, including China. Previously the Government has declined to accept such a recommendation, arguing that there is no precedent for such an arrangement and that it would require the consent of the requesting country. Further, it ‘would place pressure on the limited resources of Australia’s consular network, which has been established to assist Australians overseas’.
3.57
While the Committee acknowledges the Government’s arguments, it does not consider that the difficulties identified present an insurmountable barrier to providing minimum protection of foreign nationals extradited from Australia to their country of citizenship. Therefore it again recommends that Australia develops and implements a system to monitor such individuals.
3.58
The Committee recommends that, in the event that a foreign national is extradited to their country of citizenship, the extradition should be made on the understanding that the Australian Government will be informed through its diplomatic representatives of details of the trial, whether a consular official was able to attend, the outcome of any prosecution and, on request, the location and general health of the person while in custody as a result of a conviction.
3.59
Notwithstanding its ongoing concern to ensure the protection of human rights for extradited individuals, the Committee recognises the importance of an effective international extradition system and supports the Treaty on Extradition Between Australia and the People’s Republic of China.
3.60
The Committee supports the Treaty on Extradition Between Australia and the People’s Republic of China and, noting the power of the Minister for Justice to refuse extradition under the Extradition Act, recommends that binding treaty action be taken.