3.1
This Chapter provides a summary of the background and provisions of the proposed treaties.
Proposed Extradition Treaty
Background
3.2
The proposed Agreement between the Government of Australia and the Hashemite Kingdom of Jordan on Extradition (the proposed Extradition Treaty) is intended to ensure that criminals, including foreign fighters, involved in transnational crimes cannot evade justice by crossing borders.
3.3
Australia currently has bilateral extradition treaties with 39 countries and extradition obligations under a number of multilateral agreements.
3.4
Extradition treaties are given legal effect in Australia by the Extradition Act 1988.
3.5
The 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 relevant multilateral or bilateral treaties.
3.6
Australia has made one extradition request to Jordan, in 2008, however this was refused. The Jordanian Constitution requires a bilateral extradition treaty for Jordan to action an extradition request from Australia. Therefore the proposed Extradition Treaty is required before Jordan can consider Australian extradition requests.
3.7
Because there is no equivalent requirement on Australia’s part, Jordan has made a number of extradition requests of Australia. These are assessed on a case by case basis against the extradition criteria discussed below. In the last ten years, Australia has declined 40 extradition requests from Jordan.
Reasons to undertake proposed treaty action
3.8
The proposed Extradition Treaty National Interest Analysis (proposed Extradition Treaty NIA) states that Jordan is an important partner in the Middle East for the Australian Government’s efforts to combat serious crime including organised crime and terrorism.
3.9
In particular, the proposed Extradition Treaty NIA identifies the reasons for making the treaty as being to ensure Australia’s ability to prosecute foreign fighters and those who engage in terrorism.
3.10
The proposed Extradition Treaty NIA states that Jordan is a transit country for foreign fighters, and a formal extradition relationship with Jordan is critical in ensuring that those who engage in foreign fighter acts cannot evade justice.
Obligations
3.11
The proposed Extradition Treaty obliges Australia and Jordan to consider one another’s requests for the extradition of persons who are wanted for an ‘extraditable offence’ on a case by case basis.
3.12
According to Article 3 of the proposed Treaty, an extraditable offence is:
an act or omission that is an offence in both parties; and
is punishable by both parties with a prison sentence of at least 1 year.
3.13
The extraditable offence does not need to be specifically the same in the terminology used or the way it is codified. In other words, the test as to whether the offence is extraditable relates to the act of the offence, rather than its specific treatment in Jordanian or Australian law.
3.14
This is called the ‘double criminality’ test, and is discussed in detail in relation to the extradition of foreign fighters in the next chapter.
Mandatory grounds for refusing extradition
3.15
The proposed Extradition Treaty includes provisions that specify internationally accepted mandatory and discretionary grounds for refusing extradition.
3.16
Under Article 4 of the proposed Extradition Treaty, extradition must be refused in any of the following circumstances:
where there are substantial grounds for believing that the extradition request has been made in order to prosecute or punish a person because of that person’s race, sex, religion, nationality or political opinion, or that person’s position may be prejudiced for any of those reasons;
if the offence for which extradition is requested is an offence under military law but not an offence under the criminal law of the requesting country;
if the offence for which extradition is requested, or any other offence that may be established, carries the death penalty, and the requesting country has not provided an undertaking that the death penalty will not be imposed or, if imposed, will not be carried out;
where there are substantial grounds for believing that the person whose extradition is requested would be in danger of being tortured if extradited;
if the offence for which extradition is requested is a political offence; or
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 for the offence for which extradition is sought.
Discretionary grounds for refusing extradition
3.17
Article 4(2) of the proposed Extradition Treaty sets out discretionary grounds for refusing an extradition request. Extradition may be refused where:
the offence for which extradition is requested is considered by the requested Party as having been committed wholly or partially within its jurisdiction;
a prosecution for the offence for which extradition is requested is pending in the requested country;
the authorities of the requested country have decided not to prosecute the person for the offence for which extradition is requested;
the person whose extradition is requested would be liable to be tried or sentenced or has been sentenced by an extraordinary or ad-hoc court or tribunal in the requesting country; or
the requested country considers that, given the age, health or other personal circumstances of the person whose extradition is requested, the extradition of the person would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment.
3.18
Where Australia is the requested country, section 22(3)(f) of the Extradition Act provides that a person can only be surrendered if the Attorney-General, at his or her discretion, considers that the person should be surrendered for the extradition offence.
3.19
This requirement is additional to the mandatory and discretionary grounds for refusal and the other requirements for extradition. In making his or her determination, the Attorney-General may also have regard to international law considerations.
3.20
Documentation must be provided with each extradition request. The required documentation includes:
a statement of each offence for which extradition is requested;
a statement of the acts and omissions that are alleged against the person;
the text of the laws establishing each offence and describing the penalties involved;
a statement about any applicable time limitations on proceedings or punishment;
details establishing the identity and nationality of the person whose extradition is sought;
a statement of the location of the person, if known;
if the person is accused of an offence, a warrant for the arrest of that person;
if the person has been convicted of an offence, documentary evidence of the conviction, any sentence imposed, the fact that the sentence is immediately enforceable and the extent to which any sentence imposed has not been carried out; and
if the person has been convicted in absentia, a document authorising the person’s arrest and any options available to the person to challenge the conviction or sentence.
3.21
Article 8 of the proposed Extradition Treaty provides that in urgent cases a requesting country may apply for the provisional arrest of a person pending receipt of a request for extradition.
3.22
A provisional arrest application must be accompanied by the following:
a statement about the reasons for urgency prompting the making of the application;
a description of the person;
details of the person’s location, if known;
for each offence for which extradition will be sought, a statement of the offence and the conduct constituting the offence;
a statement of the existence of a warrant for the arrest of the person or evidence of a court judgment of conviction;
a statement of the punishment that can be or has been imposed for the offence(s); and
a statement that a formal request for the extradition of the person will follow.
3.23
If a request for the extradition has been received from two countries, the requested country will determine which country to which the person should be extradited based on six criteria, including the relative seriousness of the offence if the requests relate to different offences, and the dates of the requests and the nationality of the person.
3.24
An extradition can be postponed by the requested country were the person concerned is being prosecuted or is undergoing a sentence for another offence. An extradition cannot be postponed so the person concerned can be prosecuted or sentenced for the offence that is the subject of the extradition request.
3.25
The extradited person cannot be extradited to a third country for any offence committed prior to the person’s surrender without the requested country’s consent.
Proposed Mutual Legal Assistance Treaty
3.26
Mutual Legal Assistance bilateral treaties establish a formal framework for the parties to request and exchange information on criminal investigations.
3.27
Australia has a network of 30 bilateral mutual assistance treaties.
3.28
The safeguards and protections in the proposed Agreement between Australia and the Hashemite Kingdom of Jordan on Mutual Legal Assistance in Criminal Matters (the proposed Mutual Legal Assistance Treaty) are the same as those contained in the Mutual Assistance in Criminal Matters Act 1987 which underpins Australia’s mutual assistance treaties.
Reasons to undertake the proposed treaty action
3.29
The proposed Mutual Legal Assistance Treaty National Interest Analysis (proposed Mutual Legal Assistance Treaty NIA) states that it is in Australia’s interests to be able to provide and request the widest possible assistance in criminal matters, so that criminals cannot evade justice where evidence of their criminal conduct is located in a foreign jurisdiction.
3.30
According to the proposed Mutual Legal Assistance Treaty NIA, such requests are necessary to disrupt and deter the movement of foreign fighters.
3.31
The proposed Mutual Legal Assistance Treaty NIA argues that:
Jordan is a key partner for Australia in the Middle East. The proposed Agreement will foster greater international crime cooperation engagement to improve procedures for the sharing of foreign evidence where necessary to support the prosecution of those involved in domestic and transnational crime including terrorism.
Obligations
3.32
Parties to the proposed Mutual Legal Assistance Treaty must provide assistance when a request for assistance is made.
3.33
A request for assistance must include the following:
a description of the assistance sought;
a description of the nature of the criminal matter;
a description of the acts or omissions that constitute the specific case under investigation;
details of the requirements to be followed; and
a timeline for completion of the request.
3.34
Article 1 of the proposed Mutual Legal Assistance Treaty lists the matters on which assistance can be given. These include:
taking evidence and obtaining statements;
providing copies of documents;
locating and identifying persons;
locating and confiscating the proceeds of crimes;
collecting forensic samples.
3.35
The proposed Mutual Legal Assistance Treaty lists a number of grounds under which the requested Party can deny a request:
the request relates to a political offence;
the offence is an offence under military law without a similar civil offence;
there are grounds for believing that if the request were granted, the person to whom the request relates may be tortured;
the request would prejudice the security of the requested Party;
the request relates to a matter that is not an offence in the requested Party;
the request would expose somebody to double jeopardy;
the request would impose an excessive burden on the requested Party; and
the request relates to an offence that attracts the death penalty.
3.36
Because Jordan uses the death penalty for a number of crimes, the proposed Mutual Legal Assistance Treaty states that Australia can only provide information in relation to crimes that are punished by the death penalty if Jordan provides an undertaking that the death penalty will not be imposed or carried out in the case in question.
3.37
The proposed Mutual Legal Assistance Treaty obliges the requested Party to carry out the request to the extent that its laws permit. The requested Party must advise the requesting Party promptly if it is unable to carry out the request.
Costs
3.38
The proposed Mutual Legal Assistance Treaty provides that the requested Party will meet the ordinary costs of fulfilling the request for assistance, and the requesting Party will pay the travel expenses of any person travelling to or from the requested Party in connection with a mutual assistance request.
3.39
If the expenses are substantial or extraordinary, the parties must consult to decide how the request is to be carried out, including the allocation of costs.