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.