Extradition and Mutual Assistance in Criminal Matters Legislation Amendment
Bill 2011

Australian Human Rights Commission
Submission to the House of Representatives Standing Committee on Social Policy
and Legal Affairs

1 August 2011

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Table of Contents

• 1 Introduction
• 2 Summary
• 3 Recommendations
• 4 Amendments to the Extradition Act
  • 4.1 Refusal of extradition where extradition may result in torture or cruel, inhuman or degrading treatment or punishment
  • 4.2 Refusal of extradition where extradition may result in exposure to the death penalty
  • 4.3 Refusal of extradition where extradition may result in discrimination
• 5 Amendments to the Mutual Assistance Act
  • 5.1 Clarification that grounds for refusal apply at the investigation stage
  • 5.2 Torture or cruel, inhuman or degrading treatment or punishment as a mandatory ground of refusal
  • 5.3 Limit the discretion to provide assistance in death penalty matters where a person has been arrested or detained on suspicion of committing an offence
  • 5.4 Expansion of discrimination as a ground for refusal
    

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1 Introduction

1. The Australian Human Rights Commission welcomes the opportunity to make this
   submission to the House of Representatives Standing Committee on Social Policy
   and Legal Affairs on the Extradition and Mutual Assistance in Criminal
   Matters Legislation Amendment Bill 2011 (the Bill).

2 Summary

2. The Commission has actively participated in the consultation process leading
   to the proposed amendments to the Extradition Act 1988 (Cth) (Extradition
   Act) and the Mutual Assistance in Criminal Matters Act 1987 (Cth) (Mutual
   Assistance Act). The Commission made submissions to the Attorney-General’s
   Department in relation to the:
   • exposure draft of the Extradition and Mutual Assistance in Criminal
     Matters Legislation Amendment Bill 2011;
   • exposure draft of the Extradition and Mutual Assistance in Criminal
     Matters Legislation Amendment Bill 2009; and
   • 2006 Discussion paper ‘A new extradition system – a review of
     Australia’s extradition law and practice’
3. The Commission emphasises the importance of ensuring that Australia’s
   extradition and mutual assistance laws operate in a manner consistent with
   international human rights.
4. The Commission does not have the capacity to prepare a detailed submission
   on the Bill. However, we hope the following brief comments will be of
   assistance. We would be willing to provide further assistance on any specific
   issue at your request.

3 Recommendations

5. The Commission makes the following key
   recommendations:

Extradition:

Recommendation 1: That subsection 22(3)(b) and proposed subsection
15B(3)(a) of the Extradition Act be expanded to provide that the
Attorney-General must not make a surrender determination where there are
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
or cruel, inhuman or degrading treatment or punishment.

Recommendation 2: That the residual power of the Attorney-General
contained in subsection 22(3)(c) of the Extradition Act, to surrender a person
for an offence which is punishable by the death penalty, be removed.

Mutual assistance:

Recommendation 3: That the proposed mandatory ground for refusing
mutual assistance be expanded to include circumstances where there are
substantial grounds to believe the provision of assistance would result in the
person being subjected to torture or cruel, inhuman or degrading treatment or
punishment.

Recommendation 4: That the Mutual Assistance Act be amended to limit
the Attorney-General’s discretionary power to provide mutual assistance in
‘special circumstances’ where the offence is one in respect of which
the death penalty may be imposed in the foreign country to situations where the
assistance is exculpatory in nature.

4 Amendments to the
Extradition
Act

4.1 Refusal of
extradition where extradition may result in torture or cruel, inhuman or
degrading treatment or punishment

6. The Commission welcomes the proposal to align the wording of subsection
   22(3)(b) of the Extradition Act with Australia’s non-refoulement obligation under the CAT,^[1] by
   providing that the Attorney-General may only make a surrender determination if
   he or she does not have 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.
7. However, the Commission recommends that this
   protection to be expanded in order to comply with Australia’s
   international human rights obligations.
8. Article 7 of the ICCPR provides that ‘no one shall be subjected to
   torture or to cruel, inhuman or degrading treatment or
   punishment’.^[2]
9. As a State Party to the ICCPR, Australia has undertaken to take the
   necessary steps, in accordance with its constitutional processes, to adopt such
   laws or other measures as may be necessary to give effect to the prohibition on
   torture or cruel, inhuman or degrading treatment or
   punishment.^[3]
10. The Commission recommends that subsection 22(3)(b) of the Extradition Act be
    expanded to provide that the Attorney-General must not make a surrender
    determination where there are substantial grounds for believing that the person
    would be in danger of being subjected to torture or cruel, inhuman or
    degrading treatment or punishment.
11. The Commission also notes the proposed insertion of section 15B and
    recommends that subsection 15B(3)(a) be expanded to provide that the
    Attorney-General may only determine that the person be surrendered to the
    extradition country concerned if the Attorney-General does not have 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 or cruel, inhuman or degrading treatment or punishment.

4.2 Refusal of
extradition where extradition may result in exposure to the death
penalty

12. The Commission expresses concern over the residual power of the
    Attorney-General contained in subsection 22(3)(c) of the Extradition Act, to
    surrender a person for an offence which is punishable by the death penalty.
13. Section 22(3)(c) of the Extradition Act provides:
    

    For the
    purposes of subsection (2), the eligible
    person is only to be surrendered in relation to a qualifying
    extradition offence if:

    (c) where the offence is punishable by a penalty of death—by virtue of an undertaking given by
    the extradition
    country to Australia, one of the following is applicable:

    (i) the person will not be tried for the offence;

    (ii) if the person is tried for the offence,
    the death penalty will not be imposed on the person;

    (iii) if the death penalty is imposed on the person, it will not be carried
    out;

14. Australia has committed itself to opposing the death penalty by becoming a
    party to the Second Optional Protocol on the International Covenant on Civil
    and Political Rights Aiming at the Abolition of the Death Penalty (the Second Optional Protocol).
15. As stated in the preamble to the Second Optional Protocol, ‘all
    measures of abolition of the death penalty should be considered as progress in
    the enjoyment of the right to
    life’.^[4]
16. ‘Every human being has the inherent right to life’ as protected
    by article 6 of the ICCPR.^[5]
17. The United Nations Human Rights Committee (HRC) has held that
    ‘countries that have abolished the death penalty, [have] ... an obligation
    not to expose a person to the real risk of its
    application’.^[6]
18. Furthermore, the HRC has expressed the following concerns with regards to
    Australia’s compliance with the ICCPR:

    The Committee notes
    with concern the residual power of the Attorney-General, in ill-defined
    circumstances, to allow the extradition of a person to a state where he or she
    may face the death penalty, as well as the lack of a comprehensive prohibition
    on the providing of international police assistance for the investigation of
    crimes that may lead to the imposition of the death penalty in another state, in
    violation of the State party’s obligations under the Second Optional
    Protocol.

    The State party should take the necessary legislative and other steps to
    ensure that no person is extradited to a state where he or she may face the
    death penalty, as well as whereby it does not provide assistance in the
    investigation of crimes that may result in the imposition of the death penalty
    in another state, and revoke the residual power of the Attorney-General in this
    regard.^[7]

19. In their Concluding Observations on Australia the United Nations Committee
    Against Torture expressed concern about the reliance on diplomatic assurances
    and reminded State parties that:

    under no circumstances can they
    resort to diplomatic assurances as a safeguard against torture or ill-treatment
    where there are substantial grounds for believing that a person would be in
    danger of being subjected to torture or ill-treatment upon
    return.^[8]

20. The Commission is of the view that the imposition of the death penalty can
    constitute a violation of the prohibition of inhuman treatment under article 3
    of CAT and article 7 of the ICCPR. Accordingly, the Commission is concerned
    about any reliance on undertakings or diplomatic assurances where there are
    substantial grounds to believe that if an individual were surrendered to the
    extradition country he or she would face a real risk of being subjected to the
    death penalty.
21. The Commission recommends that the residual power of the Attorney-General
    contained in subsection 22(3)(c) of the Extradition Act, to surrender a person
    for an offence which is punishable by the death penalty, be
    removed.

4.3 Refusal of
extradition where extradition may result in discrimination

22. The Commission welcomes the proposal to expand the scope of extradition
    objections to include discrimination on the grounds of sex and sexual
    orientation.

5 Amendments to the
Mutual Assistance
Act

5.1 Clarification
that grounds for refusal apply at the investigation stage

23. The Commission welcomes the clarification that grounds for refusing mutual
    assistance apply to requests relating to the investigation stage, and not
    just at the prosecution or punishment stage.
24. This expands the scope of grounds for refusal that safeguard human
    rights.

5.2 Torture or cruel,
inhuman or degrading treatment or punishment as a mandatory ground of
refusal

25. The Commission welcomes the proposal to insert an express mandatory ground
    for refusal where there are substantial grounds to believe the provision of
    assistance would result in a person being subjected to torture.
26. This enhanced protection offered by changing the discretionary ground
    of refusal to a mandatory ground of refusal is a welcome amendment that
    affirms Australia’s strong position against torture.
27. However, the Commission recommends that this protection be further expanded
    to comply with Australia’s international human rights obligations.
28. Article 7 of the ICCPR provides that ‘no one shall be subjected to
    torture or to cruel, inhuman or degrading treatment or
    punishment’.^[9]
29. The Commission recommends that the proposed mandatory ground for refusal be
    expanded to circumstances where there are substantial grounds to believe the
    provision of assistance would result in the person being subjected to torture or
    cruel, inhuman or degrading treatment or punishment.

5.3 Limit the discretion
to provide assistance in death penalty matters where a person has been arrested
or detained on suspicion of committing an offence

30. The Commission welcomes the proposal to expand the scope of the grounds on
    which the Attorney-General must refuse a request for mutual assistance to
    include circumstances where a person has been arrested or detained on
    suspicion of committing an offence which carries the death penalty, not just
    when they have been charged with or convicted of the offence.
31. However, the Commission notes with concern the discretionary power of the
    Attorney-General to provide mutual assistance in ‘special
    circumstances’ where the offence is one in respect of which the death
    penalty may be imposed in the foreign
    country.^[10]
32. As discussed, Australia has committed itself to opposing the death penalty
    by becoming a party to the Second Optional Protocol.
33. The explanatory memorandum to the Bill states:
    

    As is the case in
    respect of existing subsection 8(1A), the ‘special circumstances of the
    case’ warranting assistance may include, but are not limited to,
    circumstances where the assistance is exculpatory in nature or where the
    requesting country has provided an undertaking that the death penalty will not
    be imposed, or if it is imposed, will not be carried
    out.^[11]

34. The Commission expresses concern about the reliance on undertakings or
    diplomatic assurances where there are substantial grounds to believe the
    provision of assistance would result in an individual being subjected to the
    death penalty.
35. The Commission supports the provision of assistance where that assistance is
    exculpatory in nature as provided in the explanatory memorandum. However, the
    Commission remains concerned that ‘special circumstances’ are not
    defined and therefore a real risk remains that an individual may be exposed to
    human rights violations.
36. The Commission recommends an amendment to the Mutual Assistance Act to limit
    Attorney-General’s discretionary power to provide mutual assistance in
    ‘special circumstances’ where the offence is one in respect of which
    the death penalty may be imposed in the foreign country to situations where the
    assistance is exculpatory in nature.

5.4 Expansion of
discrimination as a ground for refusal

37. The Commission welcomes the proposal to extend the grounds on which a mutual
    assistance request must be refused to include discrimination on the basis of
    sexual
    orientation.

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^[1] Convention against Torture
and other Cruel, Inhuman and Degrading Treatment or Punishment, article
3(1).

^[2] International Covenant
on Civil and Political Rights, article
7.

^[3] International Covenant on
Civil and Political Rights, article
7.

^[4] Second Optional Protocol
on the International Covenant on Civil and Political Rights Aiming at the
Abolition of the Death Penalty,
preamble.

^[5] International
Covenant on Civil and Political Rights, article
6.

^[6] In Judge v Canada 829/1998, U.N. Doc. CCPR/C/78/D/829/1998
(2003).

^[7] UN Human Rights
Committee, ‘Consideration of Reports Submitted by State Parties Under
Article 40 of the Covenant, Concluding Observations of the Human Rights
Committee, CCPR/C/AUS/CO/5, 2 April 2009, Advanced Unedited
Version.

^[8] UN Committee Against
Torture, Concluding Observations of the Committee against Torture: Australia, CAT/C/AUS/CO/3, 22 May 2008,
[16]

^[9] International Covenant
on Civil and Political Rights, article
7.

^[10] Mutual Assistance in
Criminal Matters Act 1987 (Cth) section
8.

^[11] Explanatory Memorandum,
Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill
2011, [3.43].