2.1
This Report examines the following proposed treaty actions:
the Agreement between the Government of Australia and the Hashemite Kingdom of Jordan on Extradition (the proposed Extradition Treaty); and
the Agreement between the Government of Australia and the Hashemite Kingdom of Jordan on Mutual Legal Assistance in Criminal Matters (the proposed Mutual Legal Assistance treaty).
2.2
The proposed treaties are being considered together because they have a similar purpose, similar underlying principles, and similar procedural obligations.
2.3
The issues raised during the inquiry relate largely to the proposed Extradition Treaty, so it is this treaty that is the focus of most debate in the Report.
History of extradition and mutual legal assistance
2.4
Extradition and mutual legal assistance treaties originated as a response to the influence of globalisation on crime. Criminal organisations make use of the removal of barriers to trade and movement between states to evade state based law enforcement regimes, internationalise illegal activities and expand sources and markets for illegal activities.
2.5
The United Nations model Treaty on Extradition, on which the bulk of Australian extradition treaties are based, was agreed in 1997. The model treaty establishes a framework for the extradition of wanted persons from one country to another.
2.6
The United Nations described the model Treaty as:
…an important tool in international cooperation in criminal matters, because of both its contents and structure. Its provisions are the result of a careful assessment of the needs and difficulties of countries in extradition procedures. It imposes clear and concise obligations, and contains acceptable safeguards for the requesting State (to whom extradition cannot be arbitrarily refused), the requested State (which maintains sovereignty and rights to protect persons wanted and nationals from unacceptable detention or treatment) and the person wanted (who has ample opportunity to have his or her particular circumstances examined).
2.7
Australia also uses the United Nations model Treaty on Mutual Legal Assistance in Criminal Matters as a model of its mutual legal assistance treaties. This model Treaty was also agreed in 1997 and establishes a framework for one country to request from another country the gathering of evidence and other material in relation to a criminal investigation.
2.8
The United Nations describes the benefits of a mutual legal assistance treaty in the following terms:
While law enforcement co-operation by way of informal agreement and otherwise remains an important component of international cooperation, there are inherent limits to it in that it will not generally extend to the use of compulsory measures. Similarly, court to court requests, particularly as between states of different legal traditions may be of limited application and can prove slow and time consuming. For this reason, many states are striving to adopt instruments and measures to allow for the rendering of formal mutual (legal) assistance in a direct and effective manner.
The inquiry
2.9
The Committee is taking a more considered and in-depth examination of the proposed treaties under consideration here because the issues involved are broader than those normally associated with such treaties.
2.10
In particular, the Committee notes that the main motivation for the Australian Government in negotiating these treaties with Jordan is to seek the extradition of, and evidence on ‘foreign fighters.’ As far as the Committee is aware, this is the first time that the issue of foreign fighters has been the main motivation for the negotiation of Australian extradition and mutual legal assistance treaties.
2.11
In addition, the Committee is concerned about the apparent erosion in the Australian public’s trust in international legal cooperation over recent years.
Motivation
2.12
As indicated above, the driver for the development of the United Nations model treaties on extradition and mutual legal assistance is cooperation in relation to criminal matters.
2.13
The Australian Government’s motivation in negotiating the proposed agreements with Jordan is different:
Cooperation between Australia and Jordan is extremely important in addressing the threat of foreign fighters.
2.14
Foreign fighters are not typical of the international criminals for which the model United Nations extradition and mutual legal assistance treaties were originally devised.
2.15
Extradition and mutual legal assistance treaties have been used to combat terrorism by seeking the extradition of, or information on individuals who have conducted or orchestrated terrorist acts against the requesting country.
2.16
Foreign fighters are committing a different sort of crime and are subject to a different legal regime in Australia. Significantly for this inquiry, Australia’s legislative response to the problem of foreign fighters is unusual in that it relies on a number of extraterritorial offences.
2.17
Foreign fighters are individuals who travel without the consent of their home country to another country for the purposes of participating in conflict. While people have always engaged in this activity, it has become a defining feature of conflict in the Middle East and central Asia, starting in the 1980s with numbers of Saudi Arabian citizens joining the Mujahedin in Afghanistan.
2.18
The civil war in Syria is one of latest conflicts to attract numbers of foreign fighters. Jordan, which borders Syria, is a transit country for foreign fighters entering and leaving Syria. The Attorney-General’s Department estimates that up to 100 Australian foreign fighters are currently involved in the civil war in Syria or similar conflicts in Iraq.
Public perception
2.19
Over the period of its existence, the Committee has reviewed a number of bilateral extradition and mutual legal assistance treaties. The Committee has always, and still maintains, a strong commitment to the principle of international legal cooperation as an effective method for preventing transnational crime and terrorism.
2.20
A consistent theme in the Committee’s consideration of these bilateral agreements has been a concern to ensure that persons extradited from Australia, and persons arrested in other countries as a result of legal assistance provided by Australia, are subject to fair criminal proceedings and are not subject to treatment that would be considered cruel or inhuman by Australian standards.
2.21
The public perception, and consequent ongoing support for, Australia’s extradition and mutual legal assistance activities, is easily damaged when rights to a fair trial and reasonable treatment are seen to be at risk.
2.22
For example, in 2017, a vote in the Senate effectively prevented the ratification of Australia’s bilateral Extradition Treaty with the Peoples Republic of China by disallowing its listing as an extradition country under the Extradition Act 1988. One of the reasons the Senate disallowed the listing of China was a concern about access to fair criminal proceedings.
2.23
Similar issues have been raised about Australian legal assistance to countries that use the death penalty. The most significant is the tip off provided by the Australian Federal Police to their Indonesian counterparts that lead to the arrest and subsequent execution of drug smugglers in 2015.
2.24
Although this particular case did not involve a mutual legal assistance treaty, it is characteristic of the risks posed to international cooperation in criminal matters by public perception.
2.25
Given the motivation for the proposed treaties, the unusual legislative basis under which they will be used, and concerns about the effect of poor public perception on international legal assistance activities, the Committee feels that a more comprehensive examination of the issues involved in the proposed treaties is warranted.
2.26
Chapter three of this Report examines the proposed treaties in detail and Chapter four of this Report deals with the issues arising out of the proposed treaties.