Melissa Parke (Fremantle, Australian Labor Party) Share this | Link to this | Hansard source

I wish to speak today about the extradition treaty between Australia and the Republic of India that forms part of report No. 110 of the Joint Standing Committee on Treaties. My concern is not with this treaty per se but with certain aspects of Australia’s extradition treaties in general. I was first alerted to these issues when JSCOT considered the extradition treaty between Australia and the United Arab Emirates in 2008 in the context of the committee’s report No. 91.

First, I want to acknowledge that extradition treaties are an important part of Australia’s criminal justice system and that they contribute to the effort to combat transnational organised crime, which has been made easier through modern international travel and communication technologies. We do not want Australia to become a safe haven for persons who have committed serious crimes in other countries. It is also in Australia’s interest and part of its duty as a good global citizen to cooperate with other countries as much as possible. However, it is with a measure of concern that I note the international trend towards a ‘no evidence’ standard for extradition cases, which means that, with most extradition requests received by Australia, a determination of guilt or innocence is regarded as a matter for the courts of the requesting state. While this has meant more expeditious processing of extradition cases—and I acknowledge that an in-depth examination of the possibility of the death penalty or torture being applied takes place prior to an extradition decision being taken—nevertheless, the no evidence standard means that a person can be extradited on the basis of quite limited information. I note that this is not the case for certain countries, including the United States, South Korea and India, which still require a prima facie case to be made out from the evidence that the person to be extradited could be found guilty of criminal conduct.

During the public hearing with regard to the extradition treaty with the UAE, the CEO of Civil Liberties Australia, Mr William Rowlings, said the following:

In talking about ministerial prerogative, our paper makes clear that there are effectively no standards or guidelines by which the minister is to make a serious judgement as to whether or not a person is to be extradited from Australia. The minister is not obliged to consider evidence and has only to consider information. This is a very low standard of level of satisfaction that any case has actually been made out. In effect, the minister is acting in a similar role to a committing magistrate in Australia but without the person to be extradited receiving the benefit of any of the legal protections of someone in a committal procedure in a court of law in Australia. Such a person cannot argue their case and see or know what the information is that has been put before the minister, and there is no mechanism for the person in question to receive any hearing to counter any allegations or to make a case for nonextradition.

According to Civil Liberties Australia, the person who is the subject of the extradition request is not entitled to see or know what information has been provided about them and their country’s circumstances to Australia. I think it is entirely fair to ask how a person who is the subject of an extradition request is meant to legitimately resist their extradition in such circumstances. They would be denied the natural justice right to know and respond to the terms in which they are accused, and Australia is in turn denied the important opportunity to perceive any possible inconsistencies or other shortcomings in the nature or process of the extradition request. However, the most disturbing aspect of the extradition system as I see it is that Australia’s involvement with an extradited person ends the moment they are extradited.

Also during the inquiry into the extradition treaty with the UAE, an officer from the Attorney-General’s Department stated the following:

There is no formal regime for follow-up reflected in our treaties or reflected in our practice. When it comes to extradition of Australian nationals, Australia has consular responsibilities and has the ability—and in practice it does this—to follow up the situation of the person who is being returned. However, when you have a circumstance whereby someone might be travelling through Australia and is sought for extradition, say, from the country in which they are a citizen, we do not have a mechanism in which we actually continue to check the prison conditions in which the person is being kept or continue to check on the processes that have been undertaken. In effect, Australia accepts the undertaking of the relevant country and that is where it stands.

In its treaties report No. 91, including the extradition treaty with the United Arab Emirates, JSCOT made a number of recommendations with the intention of seeing a process established to monitor the trial status, health and conditions of detention of people extradited from Australia. The government did not accept these recommendations on the grounds that, inter alia:

• it is not aware of any precedents for such a requirement in existing bilateral and multilateral extradition agreements;
• potential bilateral treaty partners would not accept a requirement to report on persons extradited from Australia, on the basis that it would provide an administrative burden that would hinder the operation of a treaty partner’s judicial system;

…            …            …

• the conditions of extradited non citizens is a matter for their country of nationality.

During JSCOT’s inquiry into the extradition treaty with India, the Attorney-General’s Department reiterated the government’s response and added:

• if a credible monitoring process was to be undertaken by Australia this would involve issues of resources and infringement of the sovereignty of the country requesting the extradition …

With regard to the claim that requiring information from a treaty partner concerning the fate of the extradited person would be ‘an administrative burden that would hinder the operation of a treaty party’s judicial system’, I believe this is significantly overstated when you consider that Australia assists with an average of 17 extraditions per year. So, if in 17 cases we ask for brief annual information for two or three years following the extradition about what happened in the trial, whether the person was acquitted or convicted, and the place and conditions of their detention, I fail to see how this could conceivably constitute an administrative burden that would hinder a country’s judicial system.

During the hearing, an officer from the Attorney-General’s Department also suggested that if we were to have a requirement for countries to provide information after the extradition, it would be pointless because we would have to take countries at their word or involve ourselves in burdensome monitoring. In my view this is not borne out by experience. Being required to report makes countries more attentive to due process. Many successful campaigns by Amnesty International on behalf of political prisoners are a testament to the fact that knowing you are being watched is an incentive to better behaviour.

With regard to the department’s argument that a follow-up mechanism would somehow infringe on that other country’s sovereignty, I note that whenever a country enters into an international treaty it is willingly giving up a part of its sovereignty. Indeed, a request by another country to extradite a person from Australia is also an infringement of Australia’s sovereignty, involving considerable time and expense for Australia. Why should we not require certain information from that country in return? The fact that something has not been done before is a poor argument against good policy.

In its report No.110, JSCOT has rejected the department’s arguments, as I have just outlined, and confirmed its support for the principle and practice of follow-up and monitoring. The committee recommended that new and revised extradition agreements should explicitly include a requirement for monitoring the follow-up of the cases of extradited persons. The committee noted that monitoring extradited persons would be a means of mitigating the risks associated with a no-evidence standard.

I strongly believe that the rising trend in extradition arrangements towards the no-evidence standard, in combination with the absence of any follow-up and monitoring, has the potential to undermine the positive trend towards greater international accountability and transparency and respect for human rights. It is now common for international human rights and environmental treaties to contain mechanisms for follow-up and monitoring. As the chair of JSCOT, the member for Wills, said in presenting report No.110 to the parliament:

Given the immense amount of work involved in any extradition, it does not seem unreasonable to ask countries to tell us, for example a year later, what happened to the extradited person. Are they in jail serving a sentence? Were they executed? Did they disappear? It is not unreasonable for us to simply ask what became of them.

Debate (on motion by Mr Hayes) adjourned.