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Extradition and Mutual Assistance Changes Slip in under the Radar

 By Adam Fletcher

Last Wednesday, in the aftermath of the infamous Labor leadership showdown and when all eyes were on the Carr for Canberra drama, federal Parliament passed the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011. Unless I missed it, the passage of this Bill into law garnered not a single headline, but it should have, because it makes major changes to Australia’s cooperation with other countries in criminal cases.

According to the Government’s press release, the Bill is aimed first and foremost at ‘streamlining the extradition process and cutting delays.’ A lot of this streamlining involves relieving the Attorney‑General of the burden of taking into account various considerations relevant to a person’s eligibility for extradition (mostly rights protections) because such consideration is said to duplicate the work of the magistrates who deal with extradition applications at first instance. An alternative view is that it removes a layer of accountability from a process which has already been criticised for its lack of review rights, but it will no doubt save time as intended.

For the first time, the 1988 Extradition Act, as amended by this Bill, allows a person to be extradited for minor offences (punishable by less than 12 months imprisonment) or to waive the extradition process altogether. A magistrate presiding over the case must be satisfied that the waiver is voluntary, and must inform the person of the consequences of his/her decision, but a lot of checks and balances can be bypassed this way. Thankfully, a requirement that the person be given an opportunity to have legal representation has been included, although it would be better if it were an mandatory requirement given the gravity of the decision.

Some of the existing protections in the Act involve refusal of extradition where a person may face the death penalty or torture. They still apply after these amendments, but the wording of the death penalty protection is different if someone waives extradition. Before authorising ‘surrender’ in a ‘normal’ extradition case, the Attorney-General has to consider the likelihood of the person being (a) tried, (b) convicted, and (c) sentenced to death, before proceeding to consideration of whether the death penalty is actually likely to be carried out. The new section on surrender determination after waiver simply requires her to consider whether there is a ‘real risk’ of the execution actually happening.

Still, there is less emphasis on diplomatic assurances from the requesting country, which is a welcome development. Such assurances are usually non-binding promises that the suspect will not be executed or tortured. Since there’s no reason to seek them unless the country in question is known to persecute people, they are a dubious way of ensuring compliance with the duty not to send people to places where we know their rights will be violated (the duty of non-refoulement). Interestingly, when the shoe is on the other foot, the Attorney-General will now be able to give a legal undertaking to other countries not to impose unduly harsh prison sentences (eg life sentences for minors) on suspects sought by Australia.

Unfortunately, and despite relevant recommendations, the amendments still do not prevent extradition if the person faces cruel, inhuman or degrading treatment or punishment which is not severe enough to amount to torture. Concerns over the likelihood of the person receiving a fair trial are also overlooked.

One of the more concerning aspects of these amendments is their potential effect on people who might be extradited for political offences. Before this Bill, extradition had to be refused if the alleged crime was really in the nature of a political protest. Specific crimes outlawed by multilateral treaties such as hostage-taking and war crimes have always been excluded, as have large‑scale crimes or attacks on diplomats or heads of State. Now though, the definition of ‘political offence’ will exclude ‘any offence that involves an act of violence against a person’s life or liberty’ or ‘any offence prescribed by regulations….’ This gives the Government flexibility to exclude a much broader range of ‘crimes’ over the nature of which there could be genuine disagreement. It also decreases transparency, as changes to regulations do not attract anywhere near the same level of scrutiny as amendments to statutes.

The Explanatory Memorandum clarifies that terrorist offences are among those which will not be considered political offences, but there have been many instances of unpleasant governments around the world which have not hesitated to call any group agitating for better political representation or independence ‘terrorists.’ Not even pacifist monks are immune. In fact, Fox News even called the Occupy protestors ‘domestic terrorists’ and reported that a Department of Defence exam labelled protests a form of ‘low-level terrorism.’ It is to be hoped (and expected) that the Australian Government would not extradite such people, but it would be better if the legislation didn’t even allow for the possibility.

If Australia declines to extradite foreign nationals, they can now be prosecuted here for their alleged overseas crimes. Unfortunately, and despite more recommendations to the contrary, absolute liability has been applied to proving the relevant criminal conduct took place. This means the person’s intentions in doing whatever they did are irrelevant, and that not even basic defences such as ‘mistake of fact’ are available. Investigating overseas crimes is notoriously difficult, but accused non‑citizens still deserve the same fair trial rights as Australians, and it is very rare to impose absolute liability for substantive elements of domestic crimes.

Despite these concerns, the Bill is noteworthy for some positive changes too. For example, people may no longer be extradited if they ‘may be punished, or discriminated against upon surrender, on the basis of [their] sex or sexual orientation.’ This is in addition to the existing grounds of objection; namely race, religion, nationality and political opinion.

When it comes to the provision of official assistance in criminal matters under the 1987 Mutual Assistance Act, Australia can now refuse to assist if it would result in torture or discrimination on the basis of sexual orientation (in addition to existing grounds). Refusals on the basis of human rights can also be made at the investigation stage (rather than after prosecution or punishment as previously), which greatly expands this protection. However, as with extradition, ill-treatment and unfair trials still do not constitute grounds for refusal.

This Act constitutes major reform in the area of extradition and mutual assistance, and I could go on ad nauseam about other human rights issues it raises (including eg presumptions against bail, ‘serious offence’ thresholds and cooperation with requests for surveillance from foreign countries). If you have an interest in this area, I urge you to familiarise yourself with these important changes and consider their implications.

,

About Adam Fletcher

Adam is a PhD Student in the Faculty of Law at Monash University.

View all posts by Adam Fletcher

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38 Comments on “Extradition and Mutual Assistance Changes Slip in under the Radar”

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  5. Concerned Australian Says:

    Australian nationals need more protection against extradition to other countires not less! Government should have “duty if care” for their nationals.

    This new ammendments is ridiculous making our government bow down to any countries request especially USA thinking we can’t try our own people in our own country.

    More protection is needed for nationals who have ever left Australia yet been accused of a crime but another country, when they have never phyically set foot in that country, when they should be tried here!!!

    Why is our government so eager to hand Australians over, especially knowing they could get unfair trial, harsh and unusual over zealous punishment? Minor crimes should never be extraditable.

    Australians need to feel safe in their own country under a trusted government that will try them under our own capable justice system, especially if the Australua citizen has never left the country or ever been to the requesting country .

    Reply

  6. low-level terrorism Says:

    Looking forward for someone being extradited for dancing in public since it also might be considered as “low-level terrorism” by USA authorities.

    Reply

    • Adam Fletcher Says:

      That footage is absolutely appalling, and the whole story makes me despair for human/civil rights in the US (assuming I’m not missing any important information about the protestors). There should be consequences for police who act in this fashion.

      Reply

  7. amanessinger Says:

    Hmm … as nobody mentions his name:

    Can Julian Assange run for Senate without at least once being physically present in Australia?

    If he has to enter Australia, would his status as a candidate protect him?

    If so, can he even have the status of a candidate before having been present in Australia?

    I certainly assume protection once being elected, but what after his term is over?

    Or would it have sufficed for extradition to be called a high-tech terrorist by Joe Biden anyway?

    Reply

    • Sarah Joseph Says:

      In answer to your questions.
      1. Apparently so
      2. I don’t think so
      3. very doubtful, esp in light of my thoughts on number 2
      4. Elected officials can be charged with crimes. I don’t know if they can be extradited. It may not have come up before. There would be no protection after a term, I doubt.
      5. no, that would not suffice for extradition.

      Reply

  8. richard Says:

    In America, the stereotype of Australians has always been, as far as I remember, that they All had Balls, the size of Giant Wombats,,,I watched too many Croc Dundee re-runs I guess,,because it just doesn’t seem to be true.. People of Austraila should not tolerate this kind of treatment from it’s government officials.
    If you pay taxes in a country for the better part of your life,,you ought to be protected by, and tried by a jury of peers, within that country… And if a government doesn’t have the strength to do that, maybe the entire country Ought to be Subject to a bigger “better” government,,halfway across the world…
    Or better yet…the people should install a stronger group to run their government,,,for the benefit and protection of its citizens.
    Grow a pair,,”down under”

    Reply

    • Rod S Says:

      You’ve hit the nail on the head there Richard – Australian governments has become progressively more arrogant every year since the 1980’s and the Australian people are too weak-willed to do anything about it. This treaty with the dictatorship UAE is an absolute disgrace and a shameful blot on Australia’s human rights record. There are two simple and sickening reasons why this treaty was passed:-
      1) Rudd, Gillard etc are dumb enough swallow stories of trade threats from DFAT bureaucrats,
      2) the motion was tabled in the Senate at the END of the LAST day of the parliamentary year….less than half of the Senate even bothered to turn up (37 in all!), and how many of them do you suppose read the terms of the treaty or bothered to learn anything about the UAE?

      MONEY TALKS and the UAE has more than people like Rudd and Gillard could fathom…so they bend over and sacrifice innocent citizens.

      The US and the UK do not have such treaties with the UAE. So why does Australia?

      Reply

  9. Alister Cyril Blanc Says:

    “Concerns over the likelihood of the person receiving a fair trial are also overlooked”

    Doesn’t this sound a bit Banana-Republic esque?

    Torture is bad but kangaroo courts are ok?

    Nice work, Julia, excluding liberty from the equation

    Reply

  10. Rod S Says:

    Why is my email address on your webpage?? Is it not supposed to be kept confidential?
    Rod

    Reply

    • Adam Fletcher Says:

      Hi Rod, the address doesn’t show up when I look at the page – I’m hoping only you can see it. If that’s not the case, I apologise and will try to make sure it’s removed.

      Reply

  11. Alastair Nicholson Says:

    I was wondering if is also intended to widen the range of countries to which extradition is possible or whether there is any proposal to do so. As I understand it, there were some recent discussions about the possibility of entering into extradition arrangements with the United Arab Republic. This could have serious ramifications in relation to countries like Dubai which has a doubtful record in relation to criminal prosecutions and the application of the rule of law and where many Australians are or have been employed. It appears that the new legislation might make their extradition more likely if such arrangements were to be put into place.

    Reply

    • Adam Fletcher Says:

      Hi Alistair,

      The issue of extradition arrangements (both informal and by treaty) is separate from the statutory reform process.

      You raise an interesting point though – I was not aware we had an extradition treaty with the UAE – it came into force on 7 September last year. It turns out we also have treaties with the UAE on mutual assistance, defence cooperation and air services. The Government’s analysis calls the UAE an “important partner in the Middle East….”

      The UAE extradition treaty (along with 30 others) also fails to require the requesting state to make out a prime facie case of criminality (the so-called ‘no evidence’ standard), which means extraditions could be granted based on very limited information. Melissa Parke MP raised this in Parliament on 12 May 2010. She pointed out that JSCOT has also expressed concern about eg prison conditions for returnees in the UAE and India, but the Government said it would be inappropriate and burdensome to monitor such things.

      In the absence of guarantees (either in the treaties or the law) in relation to ill-treatment (other than torture), dignity in detention and fair trials, your concern seems justified.

      Reply

      • Rod S Says:

        Hi Adam,

        this Treaty is truly disturbing for many reasons however one of the most troubling potential implications is the potential extradition of Australian citizens to the UAE for “criminal actions” such as dishonoured or ‘bounced’ cheques – something which is considered a civil matter under Australian law. The Treaty does not clearly make this important distinction and hence exposes literally thousands of Australians to being charged as criminals under the UAE Sharia law system. Where is the requirement of dual criminality in this shameful Treaty??
        I am certain that the politicians and bureaucrats responsible for this decision have absolutely no idea of the absurd commercial and legal conditions people have to live under in the UAE. For instance, the bizarre practice of issuing “post-dated” cheques for advance rental payments is standard practice in Dubai and unjustly exposes innocent expatriate tenants to unscrupulous landlords. In practice, requests to the banks to cancel such cheques are always rejected, thus exposing vulnerable expatriates to ‘criminal’ charges when the cheques ‘bounce’. Also, and far more common, is the problem of unscrupulous landlords failing to destroy “post-dated” cheques that are dated after a rental lease agreement has expired; the practice of unscrupulous Dubai landlords continuing to bank such cheques in the full knowledge that they should have been destroyed is widely known. The chance of a landlord presenting the ‘destroyed’ cheques to their tenant is impossible; the legal system is designed to protect landlords and not tenants (a fact the landlords are all too aware of).
        Do you know if this Treaty could actually be applied to the thousands of Australians who have had the misfortune of being caught up in this corrupt rental system in the UAE and had their “post-dated” cheque bounce?? Correct me if I am wrong but I am pretty certain that post-dating cheques in Australia is illegal…which would render any request for extradition on such basis groundless anyway?
        Thanks for your insights.
        Regards,
        Rod

        Reply

        • Adam Fletcher Says:

          Hi Rod,

          There are a lot of important questions relating both to human rights and Australian law in this, but perhaps the two most important points are that Australia has an obligation to make sure no one is imprisoned ‘merely on the ground of inability to fulfil a contractual obligation (ICCPR, article 11), and there is a requirement of dual criminality in article 3 of the treaty with the UAE (text available at: http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/dfat/treaties/ATS/2011/29.html).

          Reply

          • Rod S Says:

            Hi Adam,

            thanks very much for your reply. I haven’t checked the ICCPR article 11 yet but I did look at article 3 of the treaty and I am confused by part 2(b) “(b) it shall not matter whether the laws of the States place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology”. Have I interpreted this incorrectly?
            Thanks again for your insight.
            Rod
            ps. my email still comes up on this page from my end so i guess it’s something to do with my isp/machine…

    • Tafkao Says:

      For the sake of clarity – UAR and UAE aren’t interchangeable designations.

      United Arab Republic (ie Egypt + Syria) existed from 1958 – 1961, although Egypt retained that name until 1971 http://en.wikipedia.org/wiki/United_Arab_Republic.

      Reply

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