Commonwealth Numbered Regulations - Explanatory Statements

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EXTRADITION (PEOPLE'S REPUBLIC OF CHINA) REGULATIONS 2017 (F2017L00185)

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Justice

Extradition Act 1988

Extradition (People's Republic of China) Regulations 2017

The Extradition Act 1988 (the Act) provides the legislative basis for extradition in Australia. The Act allows Australia to receive extradition requests from countries that are declared to be an 'extradition country' under the Act, and facilitates the making of requests for extradition by Australia to other countries.

Section 55 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Section 5 of the Act defines an 'extradition country' to include a country that is declared by regulations to be an extradition country. Paragraph 11(1)(a) of the Act provides that regulations may apply the Act to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty between Australia and that country, being a treaty a copy of which is set out in the regulations.

The Regulations give effect in Australian domestic law to the Treaty on Extradition between Australia and the People's Republic of China, signed at Sydney on 6 September 2007 (the Treaty). The Treaty was the subject of public hearings by the Joint Standing Committee on Treaties, which recommended binding treaty action be taken in Report 167 tabled on 16 December 2016.

Australia does not currently have a bilateral arrangement with China to enable extradition. However, Australia can consider requests for extradition from China for offences under multilateral conventions to which both countries are party, including corruption, money laundering and other serious crimes. The Treaty establishes a bilateral extradition relationship that allows extradition for offences punishable under the laws of both countries, and meets the specific needs of each country. The Regulations specify that the Act applies to extradition requests received from China subject to the Treaty.

The Treaty contains a range of internationally accepted human rights safeguards, including grounds on which extradition can be refused. The Treaty includes mandatory grounds for refusal which the Minister must consider in determining whether or not to extradite a person to China. These include where the person sought may be sentenced to death for the offence, unless the Requesting Party undertakes that the death penalty will not be imposed or, if imposed, will not be carried out; where there are substantial grounds for believing the person has been or will be subjected to torture or other cruel, inhuman or humiliating treatment or punishment; where the person may be discriminated against on specific grounds (for example race, sex, language or religion), and where the offence is a political or a military offence.

These grounds of refusal are consistent with the Act and operate in addition to a number of discretionary grounds for refusal in the Treaty. For example, the Minister may refuse extradition if it would be incompatible with humanitarian considerations in view of that person's age, health or other personal circumstances.

Consultation outside of the Australian Government was not undertaken for this legislative instrument, as it relates to criminal justice and law enforcement matters, does not have direct, or substantial indirect, effects on business and does not restrict competition.

The Regulations commence on the day on which the Treaty enters into force. Article 23(1) of the Treaty provides that each Party shall inform the other by diplomatic note when all necessary steps have been taken for entry into force of this Treaty. This Treaty shall enter into force on the thirtieth day from the date of the later diplomatic note.

The Office of Best Practice Regulation advised that a Regulation Impact Statement was not necessary for these Regulations.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Details of the Regulations are set out in the Attachment.

Authority: Section 55 of the Extradition Act 1988

ATTACHMENT

Details of the Extradition (People's Republic of China) Regulations 2017

Item 1 - Name of Instrument

This item provides that the title of the Instrument is the Extradition (People's Republic of China) Regulations 2017.

Item 2 - Commencement

This item provides that the Instrument commences on the date the Treaty enters into force. Article 23 of the Treaty sets out when the extradition treaty enters into force and provides that each Party shall notify the other by diplomatic note when their domestic process for the implementation of the Treaty has been completed. The Treaty shall enter into force on the thirtieth day from the date of the later notification.

Item 3 - Authority

This item provides that the Instrument is made under the Extradition Act 1988.

Item 4 - Definitions

This item defines the terms used in the Instrument. In this Instrument:

(1)   References to the word Act are interpreted as being references to the Extradition Act 1988.

(2)   References to the words extradition treaty are interpreted as meaning the Treaty on Extradition between Australia and the People's Republic of China, done at Sydney in Australia on 6 September 2007 and set out in Schedule 1 to the proposed Instrument.

Item 5 - Declaration of the People's Republic of China as an extradition country

Australia can only extradite a person to an extradition country, or to New Zealand, under the procedures set down in the Extradition Act 1988 (the Act). Section 5 of the Act provides that an 'extradition country' is any country (other than New Zealand) that is declared by the regulations to be an extradition country; or any colony, territory or protectorate of a country, or a territory for the international relations of which a country is responsible, that is declared by regulations to be an extradition country.

This item provides that the People's Republic of China is an extradition country for the purposes of section 5 of the Act. The effect of this item is that Australia can receive extradition requests from the People's Republic of China in relation to extradition offences, which are defined in the Treaty as offences which are punishable under the laws of both Parties by imprisonment for a period of at least one year or by a more severe penalty.

Item 6 - Application of Act

The Act provides the legal framework for extradition to and from Australia. This item provides that the Act applies to the People's Republic of China, subject to the Treaty, for the purposes of paragraph 11(1)(a) of the Act. This means that any request received from the People's Republic of China for extradition offences will be determined in accordance with the Act, subject to any modifications necessary to meet the requirements of the Treaty. For example, paragraph 22(3)(e) of the Act provides that an eligible person is only to be surrendered to a foreign country subject to a section 11 treaty limitation, such as the grounds for refusal which may apply in a treaty. In this case there are a range of mandatory and discretionary grounds for refusal in the Treaty which would modify the application of the Act, including that a person shall not be surrendered to a foreign country where the Requested Party has substantial grounds for believing the person sought has been or will be subjected to torture or other cruel, inhuman or humiliating treatment or punishment.

Schedule 1 - Treaty on Extradition between Australia and the People's Republic of China

This schedule contains the text of the Treaty.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Extradition (People's Republic of China) Regulations 2017

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Extradition Act 1988 (the Extradition Act) provides the legislative basis for extradition in Australia. The Extradition Act allows Australia to receive extradition requests from countries that are declared to be an 'extradition country' under the Extradition Act, and facilitates the making of requests for extradition by Australia to other countries.

The Extradition (People's Republic of China) Regulations 2017 (the Regulations) give effect in Australian domestic law to Australia's obligations under the Treaty on Extradition between Australia and the People's Republic of China (the Treaty), done at Sydney on
6 September 2007. The Regulations apply the Extradition Act to China by declaring that country to be an 'extradition country' for the purposes of the Extradition Act.

The Regulations allow Australia to make and receive extradition requests to and from China for extradition offences. Extradition offences are offences against a law of a foreign country for which the maximum penalty is imprisonment for a period of not less than 12 months or a more severe penalty.

Human Rights Implications

The evolving nature of, and increased threats posed by, transnational crime requires Australia to have a robust and responsive extradition system that assists in effectively combating domestic and transnational crime, while providing appropriate safeguards. It is important to ensure that criminals cannot evade justice simply by crossing borders.

Extradition can engage a number of human rights, including the:

*         prohibition against torture, cruel, inhuman and degrading treatment;

*         right to life;

*         right to a fair hearing and fair trial;

*         right to liberty; and

*         right to equality and non-discrimination.

Australia's extradition regime contains a number of measures to ensure that the regime meets both international criminal justice obligations and human rights obligations. The Extradition Act sets out a number of mandatory requirements which must be met before Australia can make or receive an extradition request. Those requirements are supplemented by requirements contained in multilateral or bilateral treaties. Additionally, Australia will consider each individual extradition request on a case-by-case basis in light of its domestic legislative framework for extradition, as well as its international obligations.

The Extradition Process

The extradition process in Australia is comprised of three broad stages. Firstly, the Attorney-General or Minister for Justice has a discretion, under section 16 of the Extradition Act, to accept an extradition request. For an extradition request to be accepted, the person sought must be an extraditable person in relation to the extradition country. To be an extraditable person, the country seeking extradition must have a warrant in force for the arrest of the person, the relevant offence must be an extradition offence and the person must be believed to be outside of the country making the extradition request.

The second step in the process is for a magistrate or eligible Federal Circuit Court Judge to determine whether the person is eligible for surrender under section 19 of the Extradition Act. A person is only eligible for surrender if:

*     the necessary documents are produced;

*     any additional requirements imposed by regulations are met;

*     the conduct amounts to an offence in both countries; and

*    the magistrate is satisfied there are no substantial grounds for believing there is an extradition objection (section 7 of the Extradition Act).

An extradition objection includes, where the:

*         extradition offence is a political offence;

*         person is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, sex, sexual orientation, religion, nationality or political opinions;

*         person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, sex, sexual orientation, religion, nationality or political opinions;  

*         offence for which the person is sought is a military offence, but not a criminal offence; and

*         person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence.

Where the person is found eligible for surrender by the magistrate or eligible Federal Circuit Court Judge, the third step in the process is for the Attorney-General or Minister for Justice to make a determination regarding whether the person should be surrendered under section 22 of the Extradition Act.  The Extradition Act provides that a person must not be surrendered where (subsection 22(3)):

*       there is an extradition objection (as set out above) in relation to the relevant offence;

*       there are substantial grounds for believing that he or she would be in danger of being subjected to torture;

*       the requesting country has not given an assurance that the person sought will only be tried for the offences contained in the extradition request; or

*         the Attorney-General, in his or her discretion, does not consider that the person should be surrendered.

Further, paragraph 22(3)(c) of the Extradition Act provides that where an offence is punishable by a penalty of death, Australia cannot extradite a person unless an undertaking is given by the requesting party that:

*        the person will not be tried for the offence;

*        if the person is tried for the offence, the death penalty will not be imposed on the person; or

*        if the death penalty is imposed on the person, it will not be carried out.

The human rights protections outlined above will apply to any request for extradition received from China. The Regulations implementing the Treaty do not alter any of the human rights safeguards that are already contained in Australia's extradition regime. Article 21 of the Treaty also expressly preserves the rights enjoyed and obligations undertaken by the Parties under multilateral conventions.

In circumstances where a person believes that human rights concerns were not adequately considered in the extradition process, they may seek review under the Extradition Act or under section 39B of the Judiciary Act 1903 and section 75(v) of the Constitution.

The specific human rights engaged by this Regulation are discussed below.

Prohibition against torture, cruel, inhuman and degrading treatment

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and Article 7 of the ICCPR contain the prohibition on torture or cruel, inhuman or degrading treatment or punishment. This includes non-refoulement obligations not to return a person to a country where they would be at risk of harm by way of torture, or cruel, inhuman or degrading treatment or punishment.

The Extradition Act prohibits extradition where the decision-maker has substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to torture (paragraph 22(3)(b)). This language is consistent with Article 3 of the CAT.

The Treaty also contains a mandatory ground for refusal where the Requested Party has substantial grounds for believing the person sought has been or will be subjected to torture or other cruel, inhuman or humiliating treatment or punishment in the Requesting Party (Article 3(g)).

The decision whether to surrender a person is made by the relevant decision-maker (Attorney-General or Minister for Justice) on a case by case basis, in accordance with the safeguards in the Treaty and the Extradition Act and Australia's international obligations. For the purposes of considering whether to refuse surrender under section 22(3), the decision-maker may consider all material reasonably available to assist in determining whether the person may be subjected to torture. This may include relevant international law obligations, any representations or assurances from the requesting country, country information, reports prepared by government or non-government sources, information provided through the diplomatic network and those matters raised by the person who is the subject of the extradition request.

It is open to the decision-maker (the Attorney-General or the Minister for Justice) in an extradition matter to consider, where appropriate, whether ongoing monitoring of an extradited individual's prosecution, sentence and welfare should be a condition of the extradition.

It is also open to the person who is the subject of an extradition request to challenge decisions at each stage of the extradition proceedings.

These Regulations are consistent with a person's right in respect of prohibition against torture, cruel, inhuman and degrading treatment.

Right to life

Article 6 of the ICCPR provides that every human being has the inherent right to life. This right shall be protected by law and no one shall be arbitrarily or unlawfully deprived of his or her life. Australia has a non-refoulement obligation under Article 6 not to remove a person to a country where there is a real risk that the person will be subject to the death penalty.

Both Australia's Extradition Act and this Treaty reflect Australia's non-refoulement obligations and are consistent with the Australian Government's longstanding opposition to the death penalty.

Article 3(f) of the Treaty contains a mandatory ground of refusal in circumstances where the person sought may be sentenced to death for the offence for which the extradition is requested, unless the Requesting Party provides an undertaking that the death penalty will not be imposed or, if imposed, will not be carried out. This provision is consistent with paragraph 22(3)(c) of the Extradition Act, which requires an extradition request to be refused where the offence is punishable by a penalty of death, unless an undertaking has been provided that the person will not be tried for that offence; if tried, the death penalty will not be imposed; or, if the death penalty is imposed, it will not be carried out.

Death penalty undertakings are an established tool in extradition. It is the Australian Government's longstanding experience that undertakings in relation to the death penalty in extradition cases have always been honoured. Undertakings are written government assurances and a breach of an undertaking would have serious consequences for the extradition relationship, and the broader bilateral cooperation relationship with the foreign country. The decision-maker (Attorney-General or Minister for Justice) would consider the reliability of any death penalty undertaking on a case by case basis.

Given the public nature of extradition, the Australian Government would most likely be aware of a breach of a death penalty undertaking. Further, Article 19 of the Treaty requires China to provide Australia with information about the proceedings or execution of a sentence against a person extradited under the Treaty. Australia monitors Australian citizens who have been extradited through its consular network, in accordance with the Vienna Convention on Consular Relations and the Agreement on Consular Relations between Australia and China. It is also open to the decision-maker (Attorney-General or Minister for Justice) in an extradition matter to consider, where appropriate, whether ongoing monitoring of an extradited individual's prosecution, sentence and welfare should be a specific condition of the extradition.

It is open to the person who is the subject of an extradition request to challenge decisions at each stage of the extradition proceedings.

These Regulations are consistent with the right to life under the ICCPR and the Second Optional Protocol to the ICCPR.

Right to a fair hearing and fair trial

Article 14(1) of the ICCPR provides that all persons shall be equal before the courts and tribunals. In the determination of any criminal charge against them, or of their rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

The Australian Government's position is that Article 14 of the ICCPR does not contain non-refoulement obligations. However, the Treaty and the Extradition Act operate in a way that enables the decision-maker (Attorney-General or Minister for Justice) to consider humanitarian considerations such as fair trial in deciding whether to surrender a person.

Subsection 7(e) of the Extradition Act includes a double jeopardy ground of refusal. A person cannot be extradited if they have been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or have undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence. A similar ground for refusal is contained in Article 3(d) of the Treaty. This consideration is taken into account at the section 19 (eligibility hearing before a magistrate) and section 22 (surrender determination by the Attorney-General or the Minister for Justice) stages of the extradition process.

The Treaty contains a mandatory ground for refusal of an extradition request where the request for extradition is made by the Requesting Party pursuant to a judgment rendered in absentia and the Requesting Party does not guarantee to have the case retried after extradition (Article 3(h)).

Article 4(c) of the proposed Treaty contains a discretionary ground for refusal of an extradition request where extradition would be 'incompatible with humanitarian considerations in view of that person's age, health or other personal circumstances'. This provision would cover issues that include injustice or oppression, particularly where they are intricately linked to the person's personal circumstances. Additionally, paragraph 22(3)(f) of the Extradition Act contains a general discretion to refuse surrender, which enables consideration by the decision-maker (the Attorney-General or the Minister for Justice) of human rights concerns, including whether an extradited individual would have access to a fair trial. Relevant considerations may include the extent to which an individual would receive appropriate procedural guarantees in a criminal trial in the country to which he or she is being extradited. In accordance with the principle of procedural fairness, the person subject to extradition also has the opportunity to make representations regarding any human rights concerns.

It is open to the relevant decision-maker (the Attorney-General or the Minister for Justice) to request assurances from the requesting country about the treatment and conditions applying to a person upon extradition where concerns exist about whether that person would receive a fair trial. Assurances could include that the trial be held in open court, that the person has access to legal representation, that the person has an opportunity to test the evidence against them or that the person will be imprisoned in particular jails. The decision-maker would consider any individual's claims and any representations or assurances provided by the requesting country. The decision-maker may also consider country information, reports prepared by government or non-government sources and information provided through the diplomatic network.

The right to a fair hearing is also engaged by the 'no evidence' standard for extradition requests, which has been adopted by the Treaty. This is the international approach adopted in the United Nations Model Treaty on Extradition and the scheme under the Extradition Act.

The term 'no evidence' does not mean 'no information'. Rather, as provided for in Article 7 of the Treaty, it requires the request for extradition to be accompanied by a range of documents including a statement of each offence for which extradition is sought and the applicable penalty, and a statement of the conduct which is alleged against the person in respect of each offence for which extradition is sought. These documents are considered by a magistrate or eligible Federal Circuit Court Judge under section 19 of the Extradition Act when determining whether the person is eligible for surrender. Evidence sufficient to prove each element of each alleged offence under the laws of the requested country (such as 'prima facie' evidence including witness statements and affidavits) is not required. This is because extradition is not a criminal process. Rather, it is an administrative process to determine whether a person is to be surrendered to face justice in the Requesting Party. The purpose of extradition proceedings is not to determine guilt or innocence.

It is open to the person who is the subject of an extradition request to challenge decisions at each stage of the extradition proceedings.

The provisions in the Extradition Act and the Treaty given effect by these Regulations operate consistently with the right to a fair hearing and fair trial under article 14 of the ICCPR.

Right to liberty

Article 9(1) of the ICCPR protects the right to freedom from arbitrary detention. The test regarding whether detention is arbitrary under article 9(1) of the ICCPR is whether, in all the circumstances, detention is reasonable, necessary and proportionate to the end that is sought.[1]

Article 12 of the ICCPR provides that everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement. This right may be limited under article 12(3) where the limitation is provided by law, and is necessary to protect national security, public order, public health or morals or the rights and freedoms of others.

In the extradition context, where a person has been found eligible for surrender, a magistrate must not release that person on bail unless there are special circumstances justifying such release, for example where the person is in extremely poor health and cannot be treated in prison. This ensures the Extradition Act is suitably flexible to accommodate exceptional circumstances that may necessitate granting a person bail.

The presumption against bail for persons sought for extradition is appropriate given the serious flight risk posed in extradition matters and Australia's international obligations to secure the return of alleged offenders to face justice in the requesting country. Unfortunately, reporting and other bail conditions are not always sufficient to prevent individuals who wish to evade extradition by absconding. In extradition cases there is an increased risk of persons absconding before they can be surrendered to the requesting foreign country.  If a person who has been remanded on bail absconds during extradition proceedings, it jeopardises Australia's ability to extradite the person which in turn would impede Australia's treaty obligations to return a person to the requesting country.  Ultimately, it can also lead to a state of impunity where a person can disappear and continue to evade law enforcement authorities. The validity of Australia's process of remanding a person during extradition proceedings has been confirmed by the High Court in Vasiljković v Commonwealth [2006] HCA 40. 

This is consistent with accepted international practice for a person to be held in administrative detention pending extradition proceedings. The Extradition Act provides that when a surrender warrant is issued, Australia has generally two months from the date of the warrant to transfer the person to the foreign country. This timeframe ensures that a person will not be held in custody indefinitely while awaiting transfer.

It is open to the person who is the subject of an extradition request to challenge decisions at each stage of the extradition proceedings.

To the extent that the Extradition Act and the Treaty given effect by these Regulations limit the right to liberty, they do so in a way that is reasonable and proportionate.

Right to equality and non-discrimination

Article 26 of the ICCPR provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Section 7 of the Extradition Act promotes this right by prohibiting extradition where:

*         the person is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, sex, sexual orientation, religion, nationality or political opinions; or

*         the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, sex, sexual orientation, religion, nationality or political opinions.

Article 3(b) of the Treaty contains a mandatory ground for refusal where  substantial grounds exist for believing that the request for extradition has been made for the purpose of prosecuting or punishing the person sought on account of that person's race, sex, language, religion, nationality, political opinion or personal status, or that that person's position in judicial proceedings may be prejudiced for any of those reasons.

Additionally, Article 4(c) of the Treaty contains discretionary grounds for refusal of an extradition request where extradition would be incompatible with humanitarian considerations in view of that person's age, health or other personal circumstances. This provision may cover issues that include additional protected attributes such as disability, colour, language, property, birth or other status.

The person subject to the extradition has an opportunity to make representations to the decision-maker (the Attorney-General or the Minister for Justice) regarding all of the protected attributes in Article 26 of the ICCPR.  

These Regulations are consistent with the right to equality and non-discrimination.

Conclusion

While this legislative instrument engages with and limits some human rights, the protections in the Extradition Act and the Treaty being implemented by this legislative instrument ensure that this legislative instrument does so in a reasonable and proportionate way.