Michael Danby MP, Senator Kimberley Kitching, Senator Jenny McAllister, Susan Templeman MP, Josh Wilson MP
The Committee has been asked to consider the Agreement between the Government of Australia and the Hashemite Kingdom of Jordan on Extradition and the associated Agreement between the Government of Australia and the Hashemite Kingdom of Jordan on Mutual Legal Assistance in Criminal Matters.
Jordan is a country listed under the Extradition Act, and Australia can already consider extradition requests from Jordan. These proposed agreements create a bilateral framework under which Australia will be able to seek extradition from Jordan for the first time.
Labor members note that the proposed agreement would apply broadly, permitting extradition to Jordan on a wide range of offences. While Labor members recognise that the treaty would have value in relation to Australia’s efforts to prevent terrorism through the collection of evidence and, potentially, extradition of ‘foreign fighters’, this is only one area for which the treaty could be applied. We also note that Jordan has been and continues to be a strong partner internationally in the fight against Islamist extremist groups, particularly Islamic State, and continues to prosecute terrorists and proponents of terrorism to the full extent of its laws. Terrorists, including foreign fighters, will not find any sanctuary in Jordan.
Labor members support the objectives that have given rise to the treaty but do not support taking the treaty action at this time for broadly the same reasons set out in Report 167. Australia’s extradition arrangements, both under the Extradition Act and through recent bilateral agreements, have long needed review, not least because they include flaws that can and should be corrected. The Government has continued to fail to address this need. Furthermore, the issues that give rise to that state of affairs were once again raised through the inquiry process, and they have not been adequately addressed in the published report.
Accordingly, Labor members do not support the recommendations to take binding treaty action at this time.
Australia’s extradition framework and related obligations
As was observed in Report 167, Australia has ratified bilateral extradition treaties with thirty-nine countries. The proposed extradition treaty with Jordan stands to be the fortieth.
Labor members recognise the gravity of the underlying rationale for extradition arrangements, namely the international effort to ensure that serious criminal conduct does not escape justice by crossing transnational borders. This has particular significance in the effort we share with many countries to ensure that terrorism does not occur and does not spread.
But there is gravity too in our obligation to ensure that people in our jurisdiction, whether citizen or non-citizen, are not made subject of an unjust process or unacceptable treatment through return to another country. When any nation agrees to an extradition request it is placing faith in the probity of the criminal justice system in the recipient country, and that faith must be based on a rigorous assessment of its laws, institutions, practices, and outcomes.
As this Committee noted in a previous report:
Australia has a moral obligation to protect the human rights of extradited persons beyond simply accepting the undertakings of countries making extradition requests.
Indeed, we can go further in saying that Australia has a legal obligation to that effect.
Labor members of the Committee are again grateful to the Law Council of Australia for their work in illuminating the issues that still go unresolved in our current extradition arrangements, and in the proposed agreement.
Extradition in Australia is conducted under the Extradition Act 1988 (Cth) in conjunction with various pieces of subordinate legislation.
In its submission to this inquiry, the Law Council of Australia raised a number of ongoing concerns about the operation of this legislative framework. These concerns include:
the limited protections for the right to a fair trial,
the limited evidentiary thresholds for determining an extradition request,
the definition of a political offence,
adequacy of undertakings that the death penalty will not be imposed,
insufficient protections for children, and
inadequate monitoring systems.
These concerns are not new and were expressed in the Law Council’s submission to the Committee’s inquiry that resulted in Report 167.
It is important to remember that six years ago the relevant governing legislation was amended by the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2011.
At that time the House of Representatives Standing Committee into Social Policy and Legal Affairs (House Legal Affairs Committee) inquired into and reported on that bill. The House Legal Affairs Committee noted the human rights issues raised by extraditions and acknowledged:
[…] the concerns of some submitters regarding the operation of the safeguards and the scope for the Attorney- General to exercise his or her discretion.
This Committee has been alive to those concerns. In almost every report into an extradition treaty in the last decade, this Committee has raised concerns about the human rights of extradited persons, or made recommendations regarding the monitoring of their welfare.
The need for a review of Australia’s extradition arrangements
In its report on the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2011, the House Legal Affairs Committee recommended that:
[…] within three years of its enactment, the Attorney-General’s Department conduct a review of the operations of the amendments contained in the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011.
Plainly that review has not occurred in any meaningful and independent form.
Australia’s network of extradition treaties has grown since the passage of the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2011. We now have extradition arrangements with a range of countries whose legal systems differ in material ways from ours. In the last six years Australia has entered into and ratified extradition treaties with India, Vietnam, Uruguay, and the United Arab Emirates.
As we have argued consistently, and as recently as in Report 167, Labor members consider that it is well past time for a proper review of Australia’s extradition arrangements.
The Proposed Extradition Agreement between the Government of Australia and the Hashemite Kingdom of Jordan
In addition to the general concerns about the operation of Australia’s extradition system, there are some concerns specific to this proposed treaty.
In relation to Australia’s obligation to ensure that any person extradited not be subject to torture, we draw attention to the following comments in the main report:
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 related to the definition of torture in the Jordanian criminal code [emphasis added].
Labor members of the Committee note that while Jordan has made some progress in relation to these issues, the submission by the Law Council of Australia included reference to contemporary evidence that torture is still practised, and, furthermore, the prohibition against torture in Jordanian law is too narrowly defined (it only includes conduct for the purpose of extracting a confession).
Moreover, the proposed treaty itself does not use the formulation prohibiting ‘torture, cruel, inhuman or degrading treatment or punishment’ which is used in the UN Model Extradition Treaty and whose prohibition and prevention, in those terms, is a non-derogable obligation under the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which Australia ratified on 21 December 2017.
A person reading this Report could easily be misled into thinking that the proposed treaty is consonant on the question of prohibited treatment with the UN Model Extradition Treaty.
For example, at [2.5] it states: “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.”
Labor members of the Committee sought to amend the Report to reflect that fact that “both the Extradition Act (Cth) and this proposed treaty do not include the formulation prohibiting ‘torture, cruel, inhuman or degrading treatment or punishment” – but this important matter of accuracy was not supported by Government members.
Labor members of the Committee agree with the position put forward by The Law Council that:
The proposed Extradition Treaty and the Extradition Act do not provide adequate safeguards to avoid surrendering a person in circumstances where they would be subjected to cruel, inhuman or degrading treatment or punishment.
In negotiating treaties, Australia should seek to ensure that the formulation accepted under international law is reflected in such treaties, covering the full scope of unacceptable treatment in line with Australia’s obligations under the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
Australia should encourage Jordan to ratify the Optional Protocol to the International Covenant on Civil and Political Rights and the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and to accept the competence of the Committee Against Torture to receive individual communications under article 22 of the CAT.
In the context of the concerns raised by the Law Council in terms of the operation of the existing legislation framework, and the ability to enforce undertakings effectively, we note that Jordan continues to employ the death penalty for a range of serious crimes.
Contact and Monitoring of People who are Extradited
Through the course of the Committee’s inquiry into the proposed treaty and related agreements it became clear that Australia’s approach to monitoring and assessing the circumstances and treatment of people whose extradition we facilitate is not as thorough or transparent as it should be.
Without knowing the consequences of extradition in each case where it occurs it is impossible for Australia to be sure that our extradition arrangements, and the decisions made under those arrangements, are in keeping with our human rights obligations.
For that reason, Labor members of the Committee proposed an additional recommendation in the course of the Committee’s consideration of Report 177, namely:
That the Government consider reporting biannually to the Joint Standing Committee on Treaties in an appropriate format the details of both Australian citizens and no-citizens extradited under bilateral agreements and/or the Extradition Act 1988 (Cth), including the status and progress or consequences of any legal action, the frequency and form of consular monitoring and contact, and other relevant information.
While this was not accepted, we are glad that an amended form of the similar recommendation made in Report 167 was adopted as Recommendation 2:
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.
Michael Danby MP
Josh Wilson MP
Senator Jenny McAllister
Susan Templeman MP
Senator Kimberley Kitching