4.1
This Chapter examines some of the issues involved in the proposed Treaties. In particular, the Chapter deal with:
the no evidence standard;
extraterritorial foreign fighter offences;
monitoring of extradited persons.
Torture
4.2
Article 4 of the Agreement between Australia and the Hashemite Kingdom of Jordan on Extradition (the Proposed Extradition Treaty) states that one of the grounds under which an extradition must be refused is if there are substantial grounds for believing that the person whose extradition is requested would be in danger of being subjected to torture if extradited.
4.3
The submission from the Law Council of Australia notes that, in 2006, a Special Rapporteur to the United Nations Office of the High Commissioner for Human Rights advised that torture was widespread in Jordan, and was undertaken with impunity.
4.4
A more recent report by the United Nations Office of the High Commissioner for Human Rights shows that Jordan has made progress in eliminating torture. The Advanced Unedited version of the Concluding Observation of the fifth periodic report of Jordan indicates that torture has been prohibited under the Jordanian Constitution since 2011, and concerns about torture now relate to the definition of torture in the Jordanian criminal code.
4.5
While torture may still be an issue in Jordan, the evidence suggests that matters have sufficiently improved so that torture concerns in themselves are not, in the Committee’s view, sufficient to prevent ratification of the proposed treaties.
No evidence standard
4.6
As discussed in Chapter 2, the proposed Extradition Treaty is based on the United Nations Model Extradition Treaty, which uses a ‘no evidence’ standard for extradition requests.
4.7
The proposed Extradition Treaty NIA explains that the ‘no evidence’ standard is based on the reasoning that the extradition process is not a test of the guilt or innocence, but rather an administrative process to determine whether a person is to be surrendered to face justice in the requesting party.
4.8
In its submission to the inquiry, the Law Council of Australia raised some concerns about the no evidence standard in the Model Extradition Treaty. The Law Council argues that:
There is, of course, a reasonable argument that the ‘no evidence’ approach is appropriate for democracies where rule of law is guaranteed. However, where there is very substantial concerns about the rule of law and the ability of a State to afford those charged with a criminal offence a right to a fair trial, then the adoption of the ‘no evidence’ rule is very likely to compromise the human rights of an extradited person.
4.9
In response to the Law Council’s submission, the Attorney-General’s Department stated that the Extradition Act 1988 provides safeguards for decision making and opportunities for review of extradition decisions.
4.10
Once the Attorney-General has made a determination as to whether a person sought by another country can be extradited, the person concerned can seek a determination from a Federal Court Judge or Magistrate as to whether they are eligible to be extradited. The grounds of determining eligibility for extradition are limited to the grounds under which extradition can be refused.
4.11
In other words, the Magistrate or Judge’s determination is not a review of the evidence of criminality or any other matter outside the mandatory and discretionary grounds for refusal.
4.12
The person whose extradition is being sought can then seek a further review by the Federal Court.
4.13
As the review process is limited to an assessment against the mandatory and discretionary criteria for refusing an extradition request, the review process cannot make a decision about rule of law issues such as the independence of the judiciary and access to a defence lawyer.
4.14
These rule of law issues can consequently only be considered by the Attorney-General under section 22(3)(f) of the Extradition Act, and are not subject to appeal.
4.15
In relation to access to a defence lawyer, Human Rights Watch’s latest Report on Jordan indicates that the country made significant reforms to its judicial system in 2017. In particular, Human Rights Watch notes that criminal procedure laws have changed to guarantee all suspects the right to access a lawyer from the time of arrest.
4.16
In the Committee’s view, these changes to criminal procedure laws in Jordan, provided they are applied, are sufficient for the purposes of the proposed treaties.
Judicial independence
4.17
The Jordanian legal system uses a mix of traditional, French and British legal traditions. Under the Jordanian Constitution, the judicial branch of Government is separate from the executive branch.
4.18
However, the Law Council argues that one of the Jordanian courts, the State Security Court, is different as the three judges are appointed, and can be removed by, the executive branch of Government, and two of those judges are serving military personnel.
4.19
The State Security Court is also a matter of concern to the United Nations Office of the High Commissioner for Human Rights, which bluntly stated in the Advanced Unedited version of the Concluding Observation of the fifth periodic report of Jordan:
The Committee is concerned at reports that this court is neither independent nor impartial, that its practices violate the right to a fair trial, and that it consistently tries civilians under the new Anti-Terrorism Law.
4.20
The Law Council claims that extradition to Jordan for alleged terrorism offences would not be prohibited under the proposed Agreement because the offences are not military offences and the State Security Court is not an ad-hoc court.
4.21
The Attorney-General’s Department advises that:
There are … safeguards in the proposed Extradition Agreement and the Extradition Act that will apply to the consideration of fair trial issues, including any concerns raised in relation to Jordan’s State Security Court. The decision whether to surrender a person will be made by the Minister on a case by case basis in accordance with those safeguards.
4.22
Given the assessment of the United Nations Office of the High Commissioner for Human Rights, the Committee considers that the Attorney-General’s Department should specifically state the concerns about the independence of the State Security Court in all cases it refers to the Attorney-General that might result in a person being tried in this court.
Death Penalty
4.23
Jordan has executed a number of convicted criminals in recent years, and according to the Law Council of Australia, 120 prisoners in Jordan are currently sentenced to death.
4.24
Australia’s extradition provisions contain well established procedures for dealing with requests for extradition for crimes that may incur the death penalty. The Extradition Act and the Mutual Assistance in Criminal Matters Act 1987 specifically prohibit the extradition of persons or provision of evidence if the offence for which the request is made carries the death penalty, and the requesting country has not provided an undertaking that the death penalty will not be imposed or, if imposed, will not be carried out.
4.25
The United Nations Model Extradition and Mutual Legal Assistance treaties contain no mechanism for redress were such an undertaking to be broken by a requesting country. However, the Committee notes the high risk to a country’s international reputation in doing so, provided the requested country was aware that this has occurred.
Extraterritorial offences
4.26
One of the specific reasons for Australia entering into the proposed treaties is to strengthen Australia’s ability to prosecute foreign fighters.
4.27
The Attorney General’s Department stated:
With foreign fighters coming out of Iraq and Syria, it makes sense, with Jordan being a nearby country, to make sure that you have strong international crime cooperation and relationships in place with the countries bordering the region. If foreign fighters are coming out of those countries, you can then pick them up in the nearby countries.
4.28
The group of offences to which this statement applies are commonly known as foreign fighters offences, and are detailed in Part 5.5 of the Criminal Code Act 1995. Of the offences detailed in Part 5.5, two are relevant here because they apply to people who have already allegedly engaged in foreign fighter activity:
the offence of engaging in hostile activity or engaging in subverting society in a foreign country; and
the offence of entering into a ‘declared area’ in which a terrorist group is engaged in fighting.
4.29
These offences are extraterritorial. That is, the offences involved take place wholly outside Australian territory.
4.30
According to the Law Council of Australia, the double criminality test makes extradition for extraterritorial offences more complicated than for other offences.
4.31
The double criminality test holds that for extradition to occur, the offence must be considered an offence in both countries.
4.32
There are two possible approaches to dealing with extraterritorial foreign fighter offences when considering double criminality:
the requested country must have similar extraterritorial foreign fighter laws; that is, Jordan must prohibit its citizens from engaging in hostile activity or entering into declared areas outside Jordan for the double criminality test to be met; or
the requested country need only prohibit the acts a foreign fighter might engage in; that is Jordan only needs to prohibit acts of violence and subversion within its borders for the double criminality test to be met.
4.33
Without clarification in the treaty it is not clear how the double criminality test is to be applied in relation to extraterritorial foreign fighter offences.
4.34
The Law Council points out that Australia has specific provisions in some of its bilateral extradition treaties to clarify how extraterritorial laws will be treated in extradition considerations.
4.35
The Attorney-General’s Department states that, if a foreign fighter can be brought to Australia, there is no issue in Australian domestic law that would make it difficult to prosecute that person.
4.36
However, the Attorney General’s Department does identify a caveat:
Difficulties may … arise in securing the fugitive’s return to Australia if the requirement for dual criminality is not met, that is if the alleged conduct does not constitute an offence in the requested country. As a matter of best practice, the Attorney-General’s Department assess whether dual criminality is likely to be met, and makes inquiries with the foreign country as necessary, prior to making an extradition request.
4.37
The Committee is concerned that, as the Australian Government emphasises the usefulness of this extradition treaty as a mechanism for extraditing foreign fighters, the Attorney-General’s Department did not make these inquiries during the negotiation for the proposed Extradition Treaty.
4.38
Given that there appears to be a willingness on behalf of the Australian and Jordanian Governments to cooperate in the extradition process, the question of extraterritorial offences meeting the double criminality test may not be a significant hindrance to the extradition process for Australian foreign fighter suspects.
4.39
The Committee is concerned that the lack of clarity in the proposed Extradition Treaty in relation to extraterritorial offences might provide accused foreign fighters with a legal defence against prosecution.
4.40
The likelihood of such an argument succeeding is slim, but neither the Committee nor the Australian Government are in a position to second guess the judicial process. In these circumstances, the Committee must make a judgement of risk.
4.41
In the Committee’s view, the risk of a foreign fighter making a successful defence based on an argument that they were illegally extradited is small. However, the consequences would be significant, both in terms of the damage to the public perception of the extradition process and the threat posed by the potential release of a radicalised and experienced combatant into the Australian community.
4.42
Clarifying how extraterritorial offences are treated under the proposed Extradition Treaty would eliminate this small risk. The Committee recommends that the Government negotiate a less than treaty level status agreement to provide clarity to the application of the proposed Extradition Treaty to extraterritorial offences.
4.43
The Committee recommends that the Government negotiate a less than treaty level status agreement to provide clarity to the application of the Agreement between the Government of Australia and the Hashemite Kingdom of Jordan on Extradition to extraterritorial offences.
Monitoring extradited persons
4.44
As discussed in Chapter 2, in considering extradition treaties the Committee has sought to make sure that persons extradited from Australia obtain fair criminal proceedings and are not subject to treatment that would be considered cruel or inhuman by Australian standards.
4.45
The Committee’s Report 91, published in June 2008, examined a proposed extradition treaty with the United Arab Emirates, amongst others, and recommended that Australia implement formal monitoring arrangements of the trial status, health, and incarceration arrangements of people extradited from Australia.
4.46
The reason for this was to:
… ensure that Australia is not party, directly or indirectly, to any injustice or abuse of the human rights of persons it has extradited.
4.47
The Government agreed to establish formal monitoring arrangements for Australian citizens only.
4.48
The Attorney-General’s Department has advised that at present nine Australian citizens who have been extradited from Australia are being monitored.
4.49
The Committee accepts that there are difficulties in monitoring persons extradited from Australia who are not Australian citizens.
4.50
However, as noted previously, the Committee is concerned about the adverse impact on the public perception of the extradition and mutual legal assistance process if the process results in the death, torture or other mistreatment of a person. Monitoring extradited persons is an effective way of preventing such mistreatment of an extradited person.
4.51
The Committee recommends that the Attorney-General’s Department supplement its current annual reporting framework for extradition cases with the following information for each case of an Australian national or an Australian permanent resident held in a foreign country:
if a trial has taken place;
if so, the verdict handed down; and
if a sentence was imposed, what that sentence was, and the frequency and form of consular monitoring and contact post-sentencing, and other relevant information.
Conclusion
4.52
The Committee reiterates its support for treaties combating international crime and terrorism.
4.53
In relation to the proposed Treaties, the Committee notes that Jordan has in recent years made significant steps towards alleviating issues that have concerned this Committee in relation to other extradition and mutual legal assistance treaties.
4.54
In particular, the Committee notes that Jordan has made torture illegal and has guaranteed that accused persons will have access to lawyers from the time they are arrested.
4.55
The Committee is concerned about the application of the double criminality test in relation to extraterritorial offences, and has made a recommendation in relation to this matter.
4.56
The Committee is also concerned about extradition or mutual legal assistance in relation to matters before the Jordanian State Security Court, and suggests that the advice provided to the Attorney-General on all requests received by Australia that relate to matters before this court specifically state the concerns about its independence.
4.57
Bearing in mind these concerns, the Committee supports both the proposed treaties and recommends that binding treaty action be taken.
4.58
The Committee supports the Agreement between the Government of Australia and the Hashemite Kingdom of Jordan on Extradition and recommends that binding treaty action be taken.
4.59
The Committee supports the Agreement between Australia and the Hashemite Kingdom of Jordan on Mutual Legal Assistance in Criminal Matters and recommends that binding treaty action be taken.
The Hon Stuart Robert MP
Chair
12 February 2018