This Report contains the Committee’s views on the following treaties:
the Agreement between the Government of Australia and the Hashemite Kingdom of Jordan on Extradition; and
the Agreement between the Government of Australia and the Hashemite Kingdom of Jordan on Mutual Legal Assistance in Criminal Matters.
Australia’s bilateral extradition and mutual legal assistance treaties are based on model agreements developed by the United Nations in 1997. Australia has 39 bilateral extradition treaties and 30 bilateral mutual legal assistance treaties.
Extradition treaties establish a framework for handling the extradition of suspected criminals between parties.
Mutual legal assistance treaties enable the parties to request of each other the gathering of evidence and other material relevant to a criminal investigation.
These treaties enable nation states to combat transnational crime and terrorism in a globalised world, helping to prevent criminals and terrorists evading capture by living in or hiding evidence in another country.
The Committee has a history of support for these treaties, and has recommended that the two treaties being considered here be ratified.
However, the Committee has undertaken a more extensive examination of these treaties than it would normally undertake. There are two reasons for this:
The potential damage to Australia’s public perception of international criminal cooperation when rights to a fair trial and reasonable treatment are seen to be at risk. The potential damage was recently demonstrated when the Senate effectively prevented the Australian Government from ratifying an extradition treaty with China because of concerns over access to fair trials.
The Australian Government’s motivation for negotiating the proposed treaties – the pursuit of foreign fighters. Traditionally, extradition and mutual legal assistance treaties target persons who have committed a crime within the jurisdiction of the requesting country. This is not the case with foreign fighters from Australia, who commit extraterritorial crimes in a third country.
Evidence provided to the Committee suggests that, in the past, the Jordanian legal system could not be considered free and fair. In particular, evidence provided to the Committee indicates that Jordan has had issues with torture and providing access to defence lawyers.
The Committee has found that Jordan has taken some steps to address these concerns in recent years by prohibiting torture and providing access to defence lawyers at the time of arrest.
However, the Committee notes that a witness for the Government said that:
…I think we would take the view that Jordan, in the intervening period that some of these issues have been raised—including in our own engagement with them—are seeking to address them. We're not aware of it being a major issue at the moment, but that's not to say that isolated cases of torture do not occur.
The Committee remains concerned that the Jordanian State Security Court does not meet the international standard for judicial independence, and has suggested that the Attorney-General be advised accordingly when he or she considers all applications from Jordan for extradition or legal assistance that concern cases before this court.
The Committee is also concerned about the interpretation of the proposed Extradition Treaty in relation to extraterritorial foreign fighter laws. A lack of clarity in the interpretation may lead to an extradited person having a technical defence against prosecution.
To alleviate this prospect, the Committee has recommended that Australia and Jordan negotiate a less than treaty level agreement clarifying how extraterritorial offences will be interpreted under the proposed Extradition Treaty.