Topic: International obligations and human rights in Australian Extradition

Presenter: Craig Jensen, PhD candidate, UQ School of Law 

Advisors: Prof Anthony Cassimatis, Prof Ned Aughterson

Time: 11.30-12pm, 5 May 2020

Zoom link

Presentation Outline

Some human rights issues in outgoing Australian extradition. 

1. The most unreliable requesting States enjoy the lowest requirements when asking Australia to surrender an alleged offender.

Extradition law is not a single system of law. In most cases the law is found in the Extradition Act 1988 plus Treaty Regulations specific to the matter; for example, if the request is from Italy the Extradition (Italy) Regulations apply and impose additional requirements to those in the Act. There are separate, generic Regulations for Commonwealth countries. Treaties vary somewhat but there are 2 basic types: where no proof of guilt is required (“the no evidence model”) and where some evidence of guilt is required. Oddly enough the Regulations governing extradition to Commonwealth countries e.g. the UK and Canada contain higher hurdles to extradition than for others, with some evidence being required, a higher dual criminality test (2 years maximum penalty rather than 1 year) and surrender unavailable where it would be unjust or oppressive. Further, some non-Commonwealth extraditions also require some proof of guilt to be provided. The USA is an example. But often the request from a less reliable State is subject to the lowest requirements i.e. on the “no evidence” model.

2. X is to be surrendered to Repressia to face trial under a legal system where no defendant has a right to question witnesses or even to attend his trial. No “extradition objection” is sustainable.

This is because X will not be “prejudiced” at his trial because of his nationality or religious or political views as nobody in Repressia gets a fair trial! It has also been held that mere inability to speak the official language does not prove X will suffer trial prejudice based on nationality: Hempel v Attorney General. That would be so even if it uncertain whether a competent interpreter will be available at the trial because X’s disadvantage derives from an inability to speak a language, not his nationality or racial origins.

3. Australian standards are not necessarily Australian.

In Commonwealth v Adamas the High Court came to the strange conclusion that the Minister deciding whether to surrender X is not bound to take account only of Australian law and values but may also take account of the law and practice of the requesting State (Indonesia).

4. Conflict of interest

Repressia and Australia are negotiating a big wheat deal and the Repressian Ambassador makes it quite clear to the Australian government that if X is not surrendered the deal will not proceed. Even worse, the Minister is facing re-election in his marginal Federal seat and angry wheat farmers in his electorate are threatening to mount a large publicity campaign against him if he “doesn’t do the right thing” as regards the wheat deal and X.

5. Sufficiency of proof and s.19(5) of the Extradition Act 1988.

S.19 merely requires the Magistrate to consider, in a “no evidence” case, whether the conduct alleged by Repressia would if committed in Queensland amount to an offence carrying a maximum penalty of at least 12 months imprisonment. This is called the dual criminality test. Now here is the rub: s.19(5) prevents X from giving evidence of his innocence. The aim is to prevent an extradition hearing form turning into a trial.

6. Australian citizens are treated like international fugitives

The Act grants no special protections to X who happens to be an Australian citizen. Although many offenders are on the run from a foreign country some people are Australian citizens and residents. For example, the alleged offence may have occurred while X was on a holiday overseas


1. Judicializing extradition

Extradition between Australia and New Zealand is fully judicial i.e. the Minister plays no role in the outcome. But in all other cases, the procedure is partly judicial (the Court determines eligibility for surrender) and partly Executive (the Minister makes the final decision.) In the UK surrenders under the European Arrest Warrant are fully judicial and in the remaining cases, the Executive plays a reduced role. Conflicts of interest and double – handling between the Court and the Minister could be eliminated by assigning the whole process to the judicial arm.

2. A simple matrix

A more coherent system would divide the categories of person sought into A, Australian citizens and B, others and divide the requesting States into Category 1 (most reliable) and Category 2 (others) by Regulation. Not all Commonwealth countries have legal systems comparable to those in the UK or Canada so some Commonwealth requestors would be gazetted as Category 2.

The highest level of human rights safeguards would be afforded in an A to 2 extradition and the lowest in a B to 1 case. Possibly A would be restricted to citizens who are also resident in Australia.

3. Citizenship to be recognized and protected

As suggested above citizens deserve special safeguards as one of the fundamental rights of the citizen is the immunity against expulsion from the territory of Australia. Such protections could include requirements for some proof of guilt to be provided, that the Minister only surrender if positively satisfied that the trial will be fair and that a domestic trial under s.45 would be inappropriate.  S.45 of the Act allows the  Attorney-General to prosecute the person rather than extradite if the conduct would have been criminal, had it occurred in Australia. The power has never been exercised. But sometimes it is appropriate—e.g. a family from Brisbane are in Japan. X stabs Mrs X in an argument in front of their adult children When everyone returns to Brisbane all the parties and witnesses are here so why extradite X? X can be prosecuted as if he had engaged in the conduct in question in Australia.  This option would be far better for X if he is an Australian resident as he does not have to be uprooted to a foreign land. Admittedly, however, many extradition crimes are not suitable for trial in Australia under s.45, for example, fraud and tax evasion where there will be many documents and the issues will be complex and require an understanding of the financial and governmental systems of the foreign State. But some simpler cases such as homicide or drug possession might be fairly triable in Australia. Overseas witnesses can give evidence by video.

4. Australian standards should apply

The Adamas decision that the Minister need not apply only Australian standards should be reversed legislatively. It runs counter to orthodox justice, as demonstrated by the Full Federal Court in Newman v New Zealand [2012] FCAFC 133 which held that the touchstone for decision “must be Australian standards for it is Australia that is asked to surrender the person.” It also conflicts with statements to this effect by Gummow and Hayne JJ and Kirby J in Foster v Minister for Customs (2000) 200 CLR 442.