Dissenting Report by Labor Members

Labor members support the recommendations in Chapter 2 regarding nuclear cooperation with the Ukraine. The Committee heard evidence about the risks involved with supplying nuclear material to Ukraine. Labor members agree that binding treaty action be taken providing the Australian Government develops a suitable contingency plan to address these risks.
Labor members also support the recommendations in Chapter 4 regarding minor treaty actions.
Labor members support the intent of some of the recommendations in Chapter 3 regarding the extradition treaty with China. Recommendations 3, 4 and 5 propose that the Australian Government obtain undertakings that a fair trial will be provided to extradited persons, and to take various steps to monitor the welfare of extradited persons. Labor members agree with these recommendations in principle. However, they do not fully address the serious reservations that the Committee itself has expressed in the report. Accordingly, Labor members cannot support Recommendation 6, and believe binding treaty action should not be taken at this time. The reasons for this are set out below.

The significance of extradition

Australia has ratified bilateral extradition treaties with thirty-nine countries. The extradition treaty with China would be the fortieth. Taken together, these treaties are an important crime-fighting tool that prevent individuals exploiting national boundaries to escape justice.
Extradition is more than an expression of comity between two nations, however. It involves serious questions of human rights. In surrendering an individual to another nation, Australia is placing faith in the adequacy and propriety of their criminal justice system.
This faith has consequences for both the person and for Australia itself. Australia’s duties to a person do not stop once they board a plane to face trial. As the Law Council of Australia explained in their submission, Australia is responsible under international law for human rights violations suffered by an extradited person in the destination country.1 Moreover, as this Committee noted in a previous report:
[2.29] Australia has a moral obligation to protect the human rights of extradited persons beyond simply accepting the undertakings of countries making extradition requests.2
Australia must take this obligation seriously.

Australia’s extradition framework

Extradition in Australia is conducted under the Extradition Act 1988 (Cth) in conjunction with various pieces of subordinate legislation.
In its submission to this inquiry, the Law Council of Australia raised a number of concerns about the operation of this legislative framework. These concerns include:3
the limited protections for the right to a fair trial,
the limited evidentiary thresholds for determining an extradition request,
the definition of a political offence,
adequacy of undertakings that the death penalty will not be imposed,
insufficient protections for children, and
inadequate monitoring systems.
These concerns are not new.
Five years ago, for instance, the governing legislation was amended by the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2011.
The House of Representatives Standing Committee into Social Policy and Legal Affairs (House Legal Affairs Committee) inquired into and reported on that bill. The House Legal Affairs Committee noted the human rights issues raised by extraditions and acknowledged:
[4.14] …the concerns of some submitters regarding the operation of the safeguards and the scope for the Attorney- General to exercise his or her discretion. 4
This Committee has been alive to those concerns. In almost every report into an extradition treaty in the last decade, this Committee has raised concerns about the human rights of extradited persons, or made recommendations regarding the monitoring of their welfare.

The Treaty

The general concerns about the operation of Australia’s extradition system take on particular potency in the context of this present treaty.
Labor members note the following comments by the Committee in the main report:
3.46The 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 judicial system, allegations of the ill-treatment and torture of prisoners, and the continuing imposition of the death penalty.
3.47…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…The Committee recommends that the decision maker must 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.
China has not ratified the International Covenant on Civil and Political Rights (ICCPR). This does not relieve Australia of its own obligations to an extradited person under the ICCPR.
It is true that Australia has existing extradition arrangements with countries that have not ratified the ICCPR. In 2011, for instance, the extradition treaty with the United Arab Emirates (a non-signatory to the ICCPR) entered into effect.
However, the treaty with China lacks important safeguards present in other extradition treaties, including the treaty with the United Arab Emirates.
Most seriously, the treaty omits a common safeguard, namely the ability to refuse a request where extradition would be ‘unjust or oppressive’. Ten of Australia’s other bilateral extradition treaties allow an extradition to be refused on the grounds that it would be “unjust or oppressive”. The exemption exists for fifty Commonwealth countries by virtue of a similarly worded provision in the Extradition (Commonwealth Countries) Regulations.
As the main report notes:
3.30The AGD was unable to provide an explanation as to why the words ‘unjust or oppressive’ had not been included in this extradition treaty…
The Law Council of Australia5 and Professor Byrnes6 have submitted that this omission places into doubt Australia’s ability to refuse to extradite a person on the basis that they may be denied a fair trial.

The need for a review

Taken together, the deficiencies in the treaty with China, and in Australia’s legislative framework for extradition raise concerns for Labor members.
In its report on the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2011, the House Legal Affairs Committee recommended that:
…within three years of its enactment, the Attorney-General’s Department conduct a review of the operations of the amendments contained in the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011.7
There is no evidence that that review has occurred. Even if an internal, departmental review was undertaken, there would be significant benefits to having an independent review conducted.
Australia’s network of extradition treaties has grown since the passage of the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2011. We now have extradition arrangements with a large range of countries whose legal systems differ in material ways from ours. In the last five years Australia has had extradition treaties with India, Vietnam, Uruguay, and the United Arab Emirates enter into force.
Labor members consider that it is time for a proper review of Australia’s extradition arrangements.
Recommendation 1: That binding treaty action for the Treaty on Extradition Between Australia and the People’s Republic of China be delayed until after an independent review of the Extradition Act 1988 (Cth) to ensure that Australia’s extradition system continues to be consistent with community expectations and international legal obligations regarding the rule of law and human rights.
Michael Danby MP
Senator Sam Dastayari
Senator Kimberley Kitching
Senator Jenny McAllister
Susan Templeman MP
Josh Wilson MP

  • 1
    Submission 1, Law Council of Australia, p. 15.
  • 2
    Report 91: Review into Treaties tabled on 12 March 2008, Joint Standing Committee on Treaties.
  • 3
    Submission 1, Law Council of Australia, p. 3.
  • 4
    Advisory report: Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, House of Representatives Standing Committee Social Policy and Legal Affairs.
  • 5
    Submissions 1 and 3, Law Council of Australia.
  • 6
    Submission 2, Professor Byrnes.
  • 7
    Advisory report: Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, House of Representatives Standing Committee Social Policy and Legal Affairs.

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