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Australian Parliamentary Joint Committee on Human Rights |
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FRL No.
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Purpose
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The regulations make a number of amendments to the Extradition
(Commonwealth countries) Regulations 2010, including amending the definition
of
an ‘extradition country’ and the requirements relating to documents
that must be produced for eligibility for surrender
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Portfolio
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Attorney-General
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Authorising legislation
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Disallowance
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15 sitting days after tabling (tabled in the House of Representatives and
in the Senate on 4 February 2025). Notice of motion to disallow
must be given by
15 April 2025 in the House and by 14 May 2025 in the
Senate)[20]
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Rights
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Criminal process rights; effective remedy; equality and non-discrimination;
fair hearing; liberty; torture or cruel, inhuman or degrading
treatment or
punishment
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1.25 Under the Extradition Act 1988 (Extradition Act), Australian can consider and progress extradition requests from an ‘extradition country’ relating to persons in Australia. An ‘extradition country’ is defined as any country, colony, territory or protectorate of a country declared as such by the regulations.[21] These regulations amend the definition of an ‘extradition country’ in the Extradition (Commonwealth countries) Regulations 2010 (Extradition regulations) to include all countries that are a member of the Commonwealth of Nations, and a country, colony, territory or protectorate specified in subregulation 5(2) of the Extradition regulations, which includes all British Overseas Territories.[22] This amendment has the effect of establishing new extradition relationships with Cameroon, Gabon, Mozambique, Rwanda and Togo, as these countries were not previously listed in the Extradition regulations, and continuing extradition relationships with all other Commonwealth countries and British Overseas Territories that were previously listed in the Extradition regulations.[23] The breadth of the amended definition means that if a country joins or leaves the Commonwealth in the future the regulations will not need to be amended.[24]
1.26 The regulations also amend requirements relating to documents that must be produced by the Commonwealth country seeking extradition. A person may be subject to extradition where either a warrant is in force for their arrest in relation to an alleged serious offence;[25] or where they have been convicted of such an offence and there is either an intention to impose a sentence on them, or the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served.[26] In order for a person to be eligible for surrender in relation to an extradition offence, certain documents must be produced to a magistrate or eligible judge. These regulations amend the additional documents that must be produced to include:
• a statement of the person’s identity, nationality and physical description and, to the extent possible, the person’s whereabouts; and
• in relation to an extradition offence of which the person is accused, a recital of the evidence in support of extradition, and specified authenticated statements and certificates in relation to that evidence.[27]
1.27 By facilitating the extradition of persons in Australia to various Commonwealth countries and British Overseas Territories to face proceedings in relation to serious offences (including alleged offences) pursuant to the Extradition Act, the regulations engage and may limit multiple human rights. In order to assess the human rights compatibility of the regulations with international human rights law, it is necessary to assess the compatibility of the Extradition Act as relevant to these regulations in relation to the multiple rights.[28] This is because the Extradition Act provides the legislative basis for extradition in Australia and the safeguards contained in the Extradition Act apply to any request for extradition which Australia may receive from a Commonwealth country or British Overseas Territory (noting that the Extradition regulations, which these regulations amend, give effect to the London Scheme for Extradition Within the Commonwealth, which is a less-than-treaty status arrangement allowing members of the Commonwealth to cooperate on extradition without the need for a treaty).[29] The statement of compatibility acknowledges that both the Extradition Act and the regulations (which apply the Extradition Act to requests made by members of the Commonwealth) engage multiple human rights.[30]
1.28 The committee has considered the human rights compatibility of the Extradition Act and related legislative instruments on a number of previous occasions. Most recently, in Report 8 of 2023, the committee considered that the Extradition (Republic of North Macedonia) Regulations 2023, which enabled extradition pursuant to the Extradition Act to the Republic of North Macedonia, risked being incompatible with multiple rights, including the prohibition against other cruel, inhuman or degrading treatment or punishment, criminal process rights and the rights to a fair hearing, equality and non-discrimination, liberty and effective remedy. The committee recommended amendments to the Extradition Act to improve its human rights compatibility.[31] Noting that these suggested amendments to the Extradition Act have not been implemented, the committee’s previous human rights concerns in relation to the Extradition Act (as set out below) remain applicable to these regulations.[32]
1.29 Most of the below rights (excepting absolute rights) may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective. The statement of compatibility states that the overall objective of the Extradition Act and the regulations is to facilitate the apprehension and surrender of individuals for the purposes of criminal prosecution or to serve a prison sentence in another country and ultimately combat serious crime.[33] This constitutes a legitimate objective for the purposes of international human rights law. In general terms, facilitating the extradition of persons to various Commonwealth countries and British Overseas Territories in relation to an extradition offence is rationally connected to this stated objective. The key question considered below is therefore whether the Extradition Act contains sufficient safeguards to ensure that absolute rights are not engaged and, in the case of rights that may be limited, any limitation is proportionate.
Prohibition against torture and cruel, inhuman or degrading treatment or punishment
1.30 To the extent that persons extradited to foreign countries may be at risk of torture and other poor treatment, this measure engages the prohibition against torture and cruel, inhuman or degrading treatment or punishment.[34] This prohibition is absolute and may never be subject to any limitations. The United Nations (UN) Human Rights Committee has held that this prohibition prohibits extradition of a person to a place where that person may be in danger of torture or cruel, inhuman or degrading treatment or punishment.[35]
1.31 The Extradition Act provides that the Attorney-General cannot determine that a person be surrendered to an extradition country if they have substantial grounds for believing that the person would be in danger of being subjected to torture.[36] The statement of compatibility states the Attorney-General may consider all material reasonably available to assist in determining whether the person may be subjected to torture, such as relevant international legal obligations, government and non-government reports, information provided through the diplomatic network and information provided by the person who is the subject of the extradition request.[37] The Extradition Act also provides a broad discretion for the Attorney-General not to surrender a person in relation to an offence.[38] However, the Extradition Act does not explicitly require the Attorney-General to consider whether there are substantial grounds to believe there is a real risk that a person may be subjected to other cruel, inhuman or degrading treatment or punishment, and does not explicitly prohibit extradition where such a risk is established.
1.32 In relation to the prohibition against torture, the statement of compatibility states that the decision on whether to surrender a person is made by the Attorney-General on a case-by-case basis, in accordance with the safeguards in the Extradition Act (namely, the prohibition on surrender if there are substantial grounds for believing the person would be in danger of being subjected to torture).[39] In light of these safeguards, the prohibition against torture appears to be appropriately protected.
1.33 However, Australia's non-refoulement obligations apply to the prohibition against torture and other cruel, inhuman or degrading treatment or punishment in its entirety. The Extradition Act does not expressly provide that extradition must be refused where there are substantial grounds for believing a person may be in danger of being subject to cruel, inhuman or degrading treatment or punishment. The statement of compatibility states that the Attorney-General’s general discretion under the Extradition Act provides a basis to refuse extradition where there are concerns about cruel, inhuman or degrading treatment or punishment.[40] The statement of compatibility states that the Attorney-General makes surrender determinations on a case-by-case basis in accordance with the safeguards in the Extradition Act and in line with Australia’s international legal obligations. The statement of compatibility also notes that a person who is the subject of an extradition request may seek judicial review of the Attorney-General’s surrender determination.[41]
1.34 While the statement of compatibility identified some safeguards, these do not appear to be sufficient. Where a measure limits a human right, discretionary or administrative safeguards alone may not be sufficient for the purpose of a permissible limitation under international human rights law. This is because an administrative or discretionary safeguard is less stringent than the protection of statutory processes as there is no requirement to follow it. This is particularly relevant when considering that the prohibition against torture and other cruel, inhuman or degrading treatment or punishment is absolute and can never be permissibly limited. While it may be that the Attorney-General may refuse extradition on the basis that a person may be subjected to cruel, inhuman or degrading treatment or punishment, there is no requirement that extradition be refused on this basis.
1.35 With respect to the availability of judicial review, it is unlikely that this form of review will be sufficient to fulfil the international standard required of 'effective review' in the context of non-refoulement decisions because it is only available on a number of restricted grounds of review.[42] The obligation of non-refoulement and the right to an effective remedy require an opportunity for independent, effective and impartial review of decisions to deport or remove a person.[43] The purpose of an 'effective' review is to 'avoid irreparable harm to the individual'.[44] Judicial review in Australia represents a limited form of review in that it allows a court to consider only whether the decision was lawful (that is, within the power of the relevant decision maker). The court cannot undertake a full review of the facts (that is, the merits), as well as the law and policy aspects of the original decision to determine whether the decision is the correct or preferable decision. Judicial review in the absence of merits review has been found to be insufficient for the purposes of ensuring persons have access to an effective remedy. In Singh v Canada, the UN Committee against Torture stated that:
...the State party should provide for judicial review of the merits, rather than merely of the reasonableness, of decisions to expel an individual where there are substantial grounds for believing that the person faces a risk of torture.[45]
1.36 As such there is a risk that the Extradition Act and by extension the regulations are incompatible with the prohibition against other cruel, inhuman or degrading treatment or punishment.
Right to equality and non-discrimination, right to a fair hearing and criminal process rights
1.37 Under the Extradition Act, a person may object to their extradition on limited grounds,[46] including where: the surrender of the person is actually sought for the purpose of prosecuting or punishing the person on account of their race, sex, sexual orientation, religion, nationality or political opinions or for a political offence in relation to the extradition country; or where, on surrender, the person may be prejudiced at their trial, or punished, detained or restricted in their liberty because of their race, sex, sexual orientation, religion, nationality or political opinions.[47] If an objection to extradition is made out on one of these grounds, a magistrate or eligible Judge is prevented from finding that the person is eligible for surrender and the Attorney-General cannot make a surrender determination.[48]
1.38 As the list of personal attributes in the Extradition Act is limited and does not cover all attributes protected under international law, including language, colour, opinions (other than political opinions), social origin, birth or other status (such as age, marital status, disability and place of residence within a country), the measure engages and may limit the right to equality and non-discrimination. The right to equality and non-discrimination provides that everyone is entitled to enjoy their rights without discrimination of any kind and that all people are equal before the law and entitled without discrimination to equal and non discriminatory protection of the law.[49] The right to equality encompasses both 'direct' discrimination (where measures have a discriminatory intent) and 'indirect' discrimination (where measures have a discriminatory effect on the enjoyment of rights).[50] Indirect discrimination occurs where 'a rule or measure that is neutral at face value or without intent to discriminate' exclusively or disproportionately affects people with a particular protected attribute.[51]
1.39 The statement of compatibility notes that the Attorney-General may take into account other considerations relating to discrimination under the general discretion (that is, an eligible person is only to be surrendered in relation to an extradition offence if the Attorney-General, in their discretion, considers that the person should be surrendered in relation to the offence).[52] Considerations may include other personal attributes such as age, health or other personal circumstances. The statement of compatibility also notes that a person subject to extradition has an opportunity to make representations to the Attorney-General before they make a surrender determination, so other personal attributes can be taken into account before a decision is made.[53]
1.40 However, as noted above, discretionary safeguards are not as stringent as legislative safeguards, and future Attorneys-General may not consider it necessary to consider such matters when exercising their discretion to surrender a person for extradition. There is therefore a risk that a person may be extradited in circumstances where they may be unlawfully discriminated against, and as such, the Extradition Act and the regulations may not fully protect the right to equality and non-discrimination.
1.41 Further, in not allowing for an extradition objection on the basis that a person may suffer a flagrant denial of justice in the extradition country, the measure engages and may limit the right to a fair hearing and fair trial. The right to a fair trial and fair hearing requires that all persons shall be equal before the courts and that everyone has the right to a fair and public hearing in the determination of any criminal charge. Article 14 of the International Covenant on Civil and Political Rights in turn sets out a series of minimum guarantees in criminal proceedings, such as the right to be tried without undue delay.
1.42 An extradition request of itself does not amount to determination of a criminal charge.[54] However, jurisprudence from the European Court of Human Rights has recognised that fair trial rights may be engaged where a person is extradited in circumstances where there is a real risk of a flagrant denial of justice in the country to which the individual is to be extradited.[55] Such circumstances, the Court has stated, would render proceedings 'manifestly contrary to the provisions of Article 6 [the right to a fair trial in the European Convention] or the principles embodied therein'.[56] This means that, in the European context, the right to a fair hearing and fair trial includes an obligation not to return a person (non-refoulement) to a country where they risk a flagrant denial of justice.
1.43 The UN Human Rights Committee has not yet ruled on whether article 14 engages non-refoulement obligations.[57] However, it has said that the risk of an unfair trial is a matter than must be given 'due weight' in considering whether deportation may result in a breach of the prohibition against torture and other cruel, inhuman or degrading treatment or punishment.[58] Nonetheless, the interpretation of the right to a fair trial and fair hearing under the European Convention on Human Rights is instructive.[59] Further, the position in European human rights law jurisprudence is consistent with the UN Model Treaty on Extradition, which includes a mandatory ground of refusing extradition if the person whose extradition is requested would not receive the minimum guarantees in criminal proceedings.[60]
1.44 The statement of compatibility acknowledges that the Extradition Act and regulations have the potential to engage the right to a fair hearing and criminal process rights where a person is extradited in circumstances where there is a real risk of a denial of these rights in the country to which the person is extradited.[61] However, it states that it is the government’s view that these rights do not extend to an obligation on Australia to not return a person to a country where they face a real risk of an unfair trial in violation of their rights under article 14.[62] The statement of compatibility states that nevertheless the Extradition Act contains various safeguards with respect to the right to a fair trial.[63] These safeguards include the Attorney-General’s general discretion to refuse surrender (as discussed above) and discretion to consider fair hearing and criminal process rights and any information provided to them by the person subject to the extradition request in making this decision. Another safeguard identified in the statement of compatibility is the availability of judicial review of administrative decisions made under the Extradition Act.[64] The statement of compatibility also notes that the Attorney-General may request assurances from the requesting country relating to the treatment and conditions applying to the individual upon extradition, such as requiring the person to be tried in open court or providing the person with access to legal representation.[65] Further, the statement of compatibility states that the Extradition Act protects against double jeopardy insofar as it prevents a finding that a person is eligible for surrender or the making of a surrender determination in circumstances where a person has been acquitted or pardoned, or has undergone punishment in respect of the extradition offence.[66]
1.45 As noted above, discretionary safeguards are not as stringent as legislative safeguards, and future Attorneys-General may not consider it necessary to consider such matters or seek such assurances from the requesting country when exercising their discretion to make a surrender determination. Additionally, in the absence of merits review, judicial review alone has limited safeguard value. Further, while the UN Human Rights Committee has not considered whether returning a person to face a flagrant denial of justice is a breach of the right to a fair trial, it has not ruled out that returning persons in such circumstances would be incompatible with rights. Given that this is a matter of settled law in the context of the European Convention on Human Rights (which is substantially similar to the International Covenant on Civil and Political Rights), there is a risk that sending a person to a country where they may suffer a flagrant denial of justice would not be compatible with the right to a fair trial. As such, as there is no requirement in the Extradition Act that the Attorney-General consider the right to a fair hearing and criminal process rights when making decisions regarding surrender for extradition, the Extradition Act may not be compatible with these rights. It therefore follows that the regulations, in facilitating extradition to various Commonwealth countries and British Overseas Territories pursuant to the Extradition Act, may also not be compatible with these rights.
Rights to liberty and effective remedy
1.46 The Extradition Act also establishes a presumption against bail except in special circumstances. This presumption applies with respect to all stages of the extradition process: holding persons arrested under an extradition warrant on remand; committing a person to prison where they have consented to the surrender; where a magistrate or Judge is determining whether the person is eligible for surrender; where review of an order of a magistrate or Judge relating to extradition surrender is sought; and where judicial review is sought of a determination by the Attorney-General that the person is to be surrendered for extradition.[67] As such, a person subject to an extradition warrant will be presumed to be held in jail until the matter is resolved. In addition, extradition may result in lengthy detention in the foreign country while the person is awaiting trial. Consequently, the measure engages and limits the right to liberty. This is acknowledged by the statement of compatibility.[68]
1.47 The right to liberty prohibits the arbitrary and unlawful deprivation of liberty.[69] The notion of 'arbitrariness' includes elements of inappropriateness, injustice and lack of predictability. Accordingly, any detention must be lawful as well as reasonable, necessary and proportionate in all of the circumstances. Detention that may initially be necessary and reasonable may become arbitrary over time if the circumstances no longer require detention. In this respect, regular review must be available to scrutinise whether the continued detention is lawful and non-arbitrary. More specifically, the right to liberty includes the right to take proceedings before a court in order that the court may decide on the lawfulness of the detention and release the individual if the detention is found to be unlawful.[70] The right to liberty applies to all forms of deprivation of liberty.
1.48 The right to liberty includes the right to release pending trial. Article 9(3) of the International Covenant on Civil and Political Rights provides that the 'general rule' for people awaiting trial is that they should not be detained in custody. The UN Human Rights Committee has stated on several occasions that pre-trial detention should remain the exception and that bail should be granted except in circumstances where the likelihood exists that, for example, the accused would abscond, tamper with evidence, influence witnesses or flee from the jurisdiction.[71] Measures that expand the circumstances in which there is a presumption against bail engage and limit this right. Where a person poses a flight risk, refusing the grant of bail may be a proportionate limitation on the right to liberty. However, a presumption against bail fundamentally alters the starting point of an inquiry as to the grant of bail.
1.49 The statement of compatibility states that the test of whether ‘special circumstances’ justify remand on bail comprises two stages:
First, the person seeking bail must establish that ‘special circumstances’ exist. In order to constitute ‘special circumstances’, the matters relied on need to be ‘different from the circumstances that persons facing extradition would ordinarily endure.’ Second, the person must also establish that there is no real risk of flight. Where these two conditions are satisfied, there remains a general discretion for the magistrate or eligible Judge, or court to which a review application or appeal is made, to consider whether to grant bail based on the circumstances of the matter.[72]
1.50 The statement of compatibility states that the ‘special circumstances’ test allows decision-makers to consider individual circumstances and applicants have successfully obtained bail in Australia during the extradition process.[73] Circumstances that have been found to amount to ‘special circumstances’ in individual cases include extensive physical or mental health issues and family or caring responsibilities.[74] The statement of compatibility states that the ‘special circumstances’ test is necessary given the serious flight risk posed by individuals in many extradition matters.[75] It also notes that judicial review of the decision to refuse bail is available and a person may apply for a writ of habeas corpus.[76] The statement of compatibility further notes that while there is no time limit on the length of extradition custody, the Attorney-General is required to make a surrender decision as soon as practicable and there are opportunities for an individual to challenge the length of time taken at each stage of the extradition process.[77]
1.51 While the statement of compatibility refers to cases where the ‘special circumstances’ test has been met, this does not alter the fact that there is a presumption against bail and that the ‘special circumstances’ test is a high threshold to satisfy. Indeed, Australian jurisprudence has established that 'special circumstances' are to be interpreted narrowly,[78] and that considerations of whether a person poses a flight risk are not relevant to an assessment of special circumstances.[79] Additionally, the potential limit on the right to liberty is exacerbated by the fact that the Extradition Act prohibits the person who may be subject to the extradition from producing any evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence.[80] It is noted, however, that the amended requirements relating to documents that must be produced by the Commonwealth country seeking extradition, namely requiring a record of the case to be produced, may somewhat mitigate the risk that a person is held in protracted detention pending extradition for an offence of which they ultimately may not have any prospect of being convicted.
1.52 Further, the UN Human Rights Committee has found that the availability of judicial review in the context of detention under the Extradition Act is an inadequate safeguard for the purposes of the right to liberty. In the case of Griffiths v Australia, the UN Human Rights Committee found a breach of the right to liberty in relation to a person detained pending extradition for over two years under the Extradition Act.[81] It noted that extradition is not limited in time under Australian law and as a general rule in extradition cases, persons are to be held in custody whether or not their detention is necessary. It noted that the length of detention does not amount to 'special circumstances' under the case law of the High Court. The UN Human Rights Committee emphasised that effective review of the lawfulness of detention is ‘not limited to mere compliance of the detention with domestic law, but must include the possibility to order a release if the detention is incompatible’ with rights, with ‘such a review needing to be, in its effects, real and not merely formal’.[82] As there is no opportunity under the Extradition Act to obtain substantive review of the continued compatibility of detention with rights, nor of being released from detention on this ground, the UN Human Rights Committee found there was a breach of the right to liberty and that Australia had not demonstrated that the person had an effective remedy in relation to this breach.[83]
1.53 Noting the lack of any time limits on detention pending extradition, the presumption against bail in the Extradition Act and the UN Human Rights Committee's findings in relation to this matter, the Extradition Act appears to be incompatible with the right to liberty and there may not be an effective remedy in relation to any such violation.[84] As such, this instrument, by facilitating extradition pursuant to the Extradition Act to various Commonwealth countries and British Overseas Territories, also risks incompatibility with these rights.
1.54 The committee notes that facilitating the extradition of persons in Australia to various Commonwealth countries and British Overseas Territories to face proceedings in relation to serious offences (including alleged offences) pursuant to the Extradition Act 1988 (Extradition Act) engages and may limit multiple human rights. The committee notes that assessing the human rights compatibility of the regulations requires an assessment of the compatibility of the Extradition Act (as relevant to the regulations) with these multiple rights, including the prohibition against torture or cruel, inhuman or degrading treatment or punishment; the rights to equality and non-discrimination and fair hearing; criminal process rights; and the rights to liberty and an effective remedy.
1.55 The committee has considered the human rights compatibility of the Extradition Act and related legislative instruments on a number of previous occasions.[85] Most recently, in Report 8 of 2023, the committee considered that the Extradition (Republic of North Macedonia) Regulations 2023, which enabled extradition pursuant to the Extradition Act to the Republic of North Macedonia, risked being incompatible with multiple rights, including the prohibition against other cruel, inhuman or degrading treatment or punishment and the rights to a fair hearing, equality and non-discrimination, liberty and effective remedy. The committee recommended amendments to the Extradition Act to improve its human rights compatibility.[86] Noting that these suggested amendments to the Extradition Act have not been implemented, the committee considers that its previous human rights concerns in relation to the Extradition Act remain applicable to these regulations.
1.56 In particular, the committee is concerned that many of the safeguards in the Extradition Act are discretionary, relying on the Attorney-General to exercise their general discretion not to surrender a person for extradition in the following circumstances:
• where there are substantial grounds for believing that the person would be in danger of being subjected to cruel, inhuman or degrading treatment or punishment;
• where there are substantial grounds for believing that, if the person were surrendered to the extradition county, the person would suffer a flagrant denial of justice in the extradition country; and
• where a person may be prosecuted, punished or detained or restricted in their liberty on the basis of personal attributes that are not listed in the Extradition Act, such as disability, language, non-political opinions, or social origin.
1.57 Noting the importance of the prohibition against torture and other cruel, inhuman or degrading treatment or punishment, the right to a fair hearing, criminal process rights and the right to equality and non-discrimination, the committee is concerned that leaving protection of such matters to ministerial discretion is not sufficient to adequately protect these rights. The committee also considers that the presumption against bail in the Extradition Act, and the lack of any ability to challenge the lawfulness of such continued detention, is incompatible with the rights to liberty and effective remedy. As such, the committee considers that these regulations, by facilitating extradition pursuant to the Extradition Act to various Commonwealth countries and British Overseas Territories, also risks incompatibility with these rights.
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Suggested action
1.58 As previously recommended, the committee considers the human rights
compatibility of the Extradition Act 1988 would be improved were it
amended:
(a) to expand the existing prohibition against torture to provide that the
Attorney-General may only determine that a person be surrendered
for extradition
if they do not have substantial grounds for believing that the person would be
in danger of being subjected to cruel,
inhuman or degrading treatment or
punishment;[87]
(b) to require the Attorney-General to be satisfied that there are no
substantial grounds for believing that, if the person were surrendered
to the
extradition county, the person would suffer a flagrant denial of justice in the
extradition country;
(c) to remove the presumption against
bail[88] and require that detention
pending extradition be subject to ongoing merits review considering the
necessity of the continued detention;
and
(d) to expand the meaning of an 'extradition objection' to include where a
person may be prosecuted, punished or detained or restricted
in their liberty on
the basis of a broader range of personal attributes (such as disability,
language, non-political opinions, or
social origin).
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1.59 The committee draws these human rights concerns to the attention of the Attorney-General and the Parliament.
[19] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Extradition Legislation Amendment (Commonwealth Countries) Regulations 2024, Report 2 of 2025; [2025] AUPJCHR 15.
[20] In the event of any change to the Senate or House's sitting days, the last day for the notice would change accordingly.
[21] Extradition Act 1988, section 5.
[22] Item 1, new regulation 5.
[23] Explanatory memorandum, p. 6.
[24] Explanatory memorandum, pp. 5–6.
[25] Section 5 of the Extradition Act 1988 provides that an extradition offence means an offence for which the maximum penalty is death or imprisonment or other deprivation of liberty for 12 months or more, or conduct which, under an extradition treaty, is required to be treated as an offence for which the surrender of persons is permitted by the requesting country and Australia.
[26] Extradition Act 1988, section 6. The Act also establishes that a person may be prosecuted in Australia for the conduct for which they may have been extradited, rather than being subject to extradition: section 45.
[27] Item 2, new subregulation 8.
[28] This entry does not consider the parts of the Extradition Act 1988 that only apply to extradition proceedings with New Zealand, and extradition to Australia.
[29] Explanatory statement, p. 1 and statement of compatibility, p. 14.
[30] Statement of compatibility, pp. 13–14. The rights identified as being engaged by the Extradition Act and the regulations are: the right to life; the prohibition against torture and other cruel, inhuman or degrading treatment or punishment; right to liberty; prohibition against expulsion of aliens without due process; right to a fair hearing and criminal process rights; right to equality and non-discrimination; and right to privacy.
[31] Parliamentary Joint Committee on Human Rights, Report 8 of 2023 (2 August 2023) pp. 152–153.
[32] In Report 8 of 2023, the committee concluded that its concerns with respect to the compatibility of the Extradition Act 1988 with the right to life and the right to be presumed innocent had been resolved on the basis that there appeared to be a limited risk that the Extradition Act would enable the extradition of a person where there is a real concern they may be subject to the death penalty and, in relation to section 45 of the Extradition Act, absolute liability attaches only to a jurisdictional element of the offence, applying to factual pre-conditions rather than the substantive element of the offence. As such, this report entry does not consider these rights.
[33] Statement of compatibility, p. 29.
[34] International Covenant on Civil and Political Rights, article 7; and Convention against Torture and other Cruel, Inhuman, Degrading Treatment or Punishment, articles 3–5.
[35] UN Human Rights Committee, General Comment No.20: Article 7 (Prohibition of Torture, or other Cruel, Inhuman or Degrading Treatment of Punishment) (1992) [9]; UN Human Rights Committee, General Comment No. 3: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (2004) [12]. See also UN Committee against Torture, General Comment No.4 on the implementation of article 3 of the Convention in the context of article 22 (2018) [26].
[36] Extradition Act 1988, paragraphs 15B(3)(a) and 22(3)(b).
[37] Statement of compatibility, p. 17.
[38] Extradition Act 1988, paragraph 22(3)(f).
[39] Statement of compatibility, p. 17.
[40] Statement of compatibility, p. 17.
[41] Statement of compatibility, p. 18.
[42] See Agiza v Sweden, UN Committee against Torture Communication No.233/2003 (2005) [13.7]; Singh v Canada, UN Committee against Torture Communication No.319/2007 (2011) [8.8]–[8.9]; Josu Arkauz Arana v France, UN Committee against Torture Communication No.63/1997 (2000); Alzery v Sweden, UN Human Rights Committee Communication No.1416/2005 (2006) [11.8]. For an analysis of this jurisprudence, see Parliamentary Joint Committee on Human Rights, Thirty-sixth report of the 44th Parliament (16 March 2016) pp. 182–183.
[43] International Covenant on Civil and Political Rights, article 2 (the right to an effective remedy).
[44] Alzery v Sweden, UN Human Rights Committee Communication No.1416/2005 (2006) [11.8].
[45] Singh v Canada, UN Committee against Torture Communication No.319/2007 (2011) [8.8]–[8.9].
[46] Extradition Act 1988, sections 19 and 22
[47] Extradition Act 1988, section 7. Further bases include where the extradition is for a political offence, where the conduct would not have constituted an offence under Australian criminal law, where the person has been pardoned or acquitted for the offence, and where the person has already been punished for the offence.
[48] Statement of compatibility, p. 82.
[49] International Covenant on Civil and Political Rights, articles 2 and 26. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights also prohibits discrimination specifically in relation to the human rights contained in the International Covenant on Economic, Social and Cultural Rights.
[50] UN Human Rights Committee, General Comment 18: Non-discrimination (1989).
[51] Althammer v Austria, UN Human Rights Committee Communication no. 998/01 (2003) [10.2]. The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'. See Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 3rd edition, Oxford University Press, Oxford, 2013, [23.39].
[52] Extradition Act 1988, paragraph 22(3)(f); Statement of compatibility, p. 27.
[53] Statement of compatibility, p. 27.
[54] Griffiths v Australia, UN Human Rights Committee Communication No. 193/2010 (2014) [6.5].
[55] See, Al Nashiri v Poland, European Court of Human Rights Application No.28761/11 (2014) [562]-[569]; Othman (Abu Qatada) v United Kingdom, European Court of Human Rights Application No. no. 8139/09 (2012), [252]-[262]; R v Special Adjudicator ex parte Ullah [2004] UKHL 26; [2004] 2 AC 323, per Lord Steyn at [41].
[56] See, Stoichkov v Bulgaria, European Court of Human Rights, Application No. 9808/02 (24 March 2005) at [54].
[57] The question has been raised in several individual complaints to the UN Human Rights Committee; however, the committee has decided these complaints on other bases without ruling on the question: see, for example, ARJ v Australia, UN Human Rights Committee Communication No. 692/1996 (1997) [6.15]; Kwok v Australia, UN Human Rights Committee Communication No. 1442/2005 (2009) [9.8]; and Alzery v Sweden, UN Human Rights Committee Communication No. 1416/2005 (2006) [11.9].
[58] Kwok Yin Fong v. Australia, UN Human Rights Committee Communication No. 1442/2005 (2009), paragraph [9.7].
[59] In 2007 the UN Working Group on Arbitrary Detention noted the reluctance of states to extend the application of the prohibition of refoulement to articles 9 and 14. However the Working Group continued by stating that 'to remove a person to a State where there is a genuine risk that the person will be detained without legal basis, or without charges over a prolonged time, or tried before a court that manifestly follows orders from the executive branch, cannot be considered compatible with the obligation in article 2 of the International Covenant on Civil and Political Rights, which requires that States parties respect and ensure the Covenant rights for all persons in their territory and under their control': see Report of the Working Group on Arbitrary Detention to the Human Rights Council, UN Doc. A/HRC/4/40 (2007) [44]–[49].
[60] Model Treaty on Extradition, adopted by the UN General Assembly resolution 45/116 as amended by General Assembly resolution 52/88.
[61] Statement of compatibility, p. 23.
[62] Statement of compatibility, pp. 23–24.
[63] Statement of compatibility, p. 24.
[64] Statement of compatibility, pp. 24 and 25.
[65] Statement of compatibility, p. 24.
[66] Statement of compatibility, pp. 24–25; Extradition Act 1988, subsection 7(e).
[67] See Extradition Act 1988, remand (subsection 15(6)); consent to surrender (subsection 18(3)); determination of eligibility for surrender (subsection 19(9A)); review (section 21); and judicial review (section 49C).
[68] Statement of compatibility, p. 18.
[69] International Covenant on Civil and Political Rights, article 9.
[70] International Covenant on Civil and Political Rights, article 9(4).
[71] Smantser v Belarus, UN Human Rights Committee Communication No. 1178/03 (2008); WBE v The Netherlands, UN Human Rights Committee Communication No. 432/90 (1992); and Hill and Hill v Spain, UN Human Rights Committee Communication No. 526/93 (1997).
[72] Statement of compatibility, p. 19 (footnotes excluded from extract).
[73] Statement of compatibility, p. 20.
[74] Statement of compatibility, pp. 20–21.
[75] Statement of compatibility, p. 21.
[76] Statement of compatibility, pp. 21–22.
[77] Statement of compatibility, p. 22.
[78] The High Court of Australia has stated that: '[I]t is an error in a bail application in an extradition matter to take into account that there is "a predisposition against unnecessary or arbitrary detention in custody". The Parliament has made it plain that bail is not to be granted unless special circumstances are proved...[I]t is erroneous to take into account "those circumstances which ordinarily would fall for consideration on an application for bail where a person is charged domestically for the commission of a crime". Those circumstances ...can play no part in determining whether the applicant has established special circumstances.' See, United Mexican States v Cabal [2001] HCA 60 at [72].
[79] See, most recently Pauga v Chief Executive of Queensland Corrective Services [2023] FCAFC 58 (13 April 2023).
[80] Extradition Act 1988, subsection 19(5).
[81] Griffiths v Australia, UN Human Rights Committee, Communication no. 1973/2010 (2014) [7.5].
[82] Griffiths v Australia, UN Human Rights Committee, Communication no. 1973/2010 (2014) [7.5].
[83] Griffiths v Australia, UN Human Rights Committee, Communication no. 1973/2010 (2014) [7.5]. The UN Human Rights Committee found a breach under article 9(1) and 9(4) of the International Covenant on Civil and Political Rights.
[84] The right to an effective remedy requires the availability of a remedy which is effective with respect to any violation of rights and freedoms recognised by the International Covenant on Civil and Political Rights: article 2(3). While limitations may be placed in particular circumstances on the nature of the remedy provided (judicial or otherwise), states parties must comply with the fundamental obligation to provide a remedy that is effective. See UN Human Rights Committee, General Comment 29: States of Emergency (Article 4) (2001) [14].
[85] Parliamentary Joint Committee on Human Rights, First Report of 2013 (6 February 2013), p. 111; Sixth Report of 2013, pp. 149–160; Tenth Report of 2013, pp. 56–75; Twenty-second Report of the 44th Parliament (13 May 2015), Extradition (Vietnam) Regulation 2013 [F2013L01473] pp. 108–110; Report 2 of 2017 (21 March 2017), Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016, pp. 8–9; Report 4 of 2017 (9 May 2017), Extradition (People's Republic of China) Regulations 2017 [F2017L00185], pp. 70-73, and Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016, pp. 90–98; Report 3 of 2018 (27 March 2018), Extradition (El Salvador) Regulations 2017 [F2017L01581] and Extradition Legislation Amendment (2017 Measures No. 1) Regulations 2017 [F2017L01575], pp. 16–29; and Report 5 of 2018 (19 June 2018) Extradition (El Salvador) Regulations 2017 [F2017L01581] and Extradition Legislation Amendment (2017 Measures No. 1) Regulations 2017 [F2017L01575], pp. 77–108.
[86] Parliamentary Joint Committee on Human Rights, Report 8 of 2023 (2 August 2023) pp. 152–153.
[87] Extradition Act 1988, paragraphs 15B(3)(a) and 22(3)(b).
[88] Extradition Act 1988, subsections 15(6), 18(3), 19(9A), 21(2B) and 49C(3).
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