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Australian Year Book of International Law |
Ned Aughterson[∗]
In DPP v Kainhofer,[1] Toohey J referred to an observation of Professor Ivan Shearer that since the mid 1980s there has been in Australia ‘a substantial shift away from judicial review of the extradition process towards the exercise of unreviewable executive discretion’,[2] and concluded that it is a view that ‘has force’.[3] The same can be said generally in relation to the views and influence of Ivan Shearer in the area of international extradition law. His formative text Extradition in International Law,[4] published in 1971, remains influential: over 30 years later one continues to find references to and reliance upon the text in judicial decisions and legal writings.
The object of this paper is to reflect on the shift referred to by Professor Shearer and to consider whether or not it has occurred and, if so, whether or not it has abated. An examination of more recent developments, including judicial interpretation of the powers that have been assigned to magistrates[5] or the courts, suggest that the view expressed ten years ago has perhaps even greater force today, particularly when looked at in the context of trends overseas.
Extradition law seeks to strike a balance between, on the one hand, facilitating the return of persons to foreign states and, on the other hand, protecting certain national interests and individual rights.[6] How that balance is achieved differs from country to country. The difference arises not only in relation to the relative weight given to those ideals, but also by reference to the processes adopted to advance them.
Mechanisms used to facilitate the return of persons include enlarging the types of offences for which extradition is allowed; simplifying processes, including in relation to arrest and detention; minimising documentary and evidential requirements; prescribing time limits; and limiting the objections or exceptions to extradition.
National interests and individual rights have been protected by a variety of measures. It is considered contrary to national interests for a state to use its criminal processes for conduct it does not itself consider criminal. Hence the principle of double criminality, which requires that the alleged conduct constitute an offence in both jurisdictions.[7] An allied principle is the rule of speciality, which, in broad terms, requires an undertaking from the requesting state that, if surrendered, the person will be prosecuted only for the offences for which extradition was granted.[8] Of course, these principles also serve the individual interest. Individual rights are more directly protected by provisions such as those that deny extradition where the death penalty might be imposed; where the person will be subjected to torture; where there will be double jeopardy; where there is actual or potential discrimination on account of race, religion, nationality or political opinions; where it can be shown that the offence is a political offence;[9] or where the person is a national of the requested state.
The principal objects of the Australian extradition legislation are set out in section 3 of the Extradition Act 1998 (Cth) (‘the Act’) and include enabling Australia to ‘carry out its obligations under extradition treaties’. Reflecting the dual objective of extradition arrangements, as noted above, in R v Horseferry Road Magistrates’ Court; Ex parte Bennett Lord Griffiths stated:
Extradition procedures are designed not only to ensure that criminals are returned from one country to another but also to protect the rights of those who are accused of crimes by the requesting country.[10]
The protections provided for the individual in Australia include the ‘objections’ to extradition in section 7 of the Act,[11] exceptions arising by treaty or regulations,[12] and the prohibitions against extradition that must be considered by the Attorney-General pursuant to section 22 of the Act.[13] Provision is made for the principle of double criminality at sections 16(2)(a)(ii) and 19(2)(c) and for the principle of speciality at section 22(4) of the Act.
There are four steps in the Australian extradition process, each involving a discrete exercise of power.[14] First, pursuant to section 12 of the Act, a request is made to an Australian magistrate for the issue of a warrant for the arrest of the person sought. A warrant may be issued only if the magistrate is ‘satisfied’ that the person is an ‘extraditable person’ in relation to the requesting country. The term ‘extraditable person’ is defined in section 6 and, broadly, imports requirements that the offence in question be an ‘extradition offence’[15] and either that there has been a conviction for the offence or that a warrant is in force in the requesting state for the arrest of the person in relation to an offence that the person is ‘accused’ of having committed.[16]
Either prior to or subsequent to the arrest, a formal, documented application for extradition will be received from the requesting state. Following the arrest and remand in custody or on bail of the person sought, the second step will take place. This involves a determination by the Attorney-General as to whether or not the application should proceed to the next stage. Again, there are prerequisites to a positive determination.[17] The Attorney-General must consider afresh whether the person is an ‘extraditable person’ in relation to the extradition country and, in addition, must be of the opinion that double criminality can be established and must not be of the opinion that there is an ‘extradition objection’ in terms of section 7 of the Act. Where it is determined that the application should proceed, the Attorney-General issues a notice under section 16 of the Act, directing a magistrate to conduct an extradition hearing pursuant to section 19.
The section 19 hearing before a magistrate represents the third step in the process. The magistrate ‘is not at large’,[18] jurisdiction being confined to a consideration of whether the necessary documentation has been produced,[19] whether double criminality can be established, whether there are any ‘extradition objections’ under section 7 of the Act and, where imported by treaty or regulation, whether a prima facie case can be established. While, section 11(1) of the Act allows that other preconditions to extradition might arise by treaty or regulation, because of section 11(6) the only such matter that can be considered by the magistrate is a requirement to establish a prima facie case. Other matters, including any additional human rights protections, are determined by the Attorney-General.[20]
Pursuant to section 21 of the Act, there is a right of review and, ultimately, appeal from the determination of the magistrate. Subject to review and appeal, where the magistrate finds that the person is ‘eligible for surrender’ the matter is referred to the Attorney-General for final determination as to whether the person will be surrendered.
At this fourth and final step, the Attorney-General must take into account a number of factors. While ultimately the decision rests on the exercise of a discretion,[21] section 22(3) of the Act prescribes several preconditions: namely, that the death penalty will not be imposed or carried out; that a speciality assurance has been given; and that the Attorney-General is satisfied that there is no extradition objection, that the person will not be subjected to torture and that there are no applicable exceptions to extradition.[22]
In some instances – such as in relation to double criminality, extradition objections and the question of whether the person is an ‘extraditable person’ – the same matters are considered at different stages of the process. However, it has been held that the respective repositories of power exercise separate functions and, to the extent of any overlap, one does not review the formation or non-formation of an opinion or state of satisfaction or non-satisfaction of another. In DPP v Kainhofer,[23] it is stated:
the section 19 magistrate does not review the Attorney-General‘s non formation of an opinion under s 16; nor does the Attorney-General review the s 19 magistrate’s state of non-satisfaction. The existence or possible existence of extradition objections fall for consideration by the Attorney-General under s 16, by the s 19 magistrate and again by the Attorney-General under s 22 but on each occasion the repository of the relevant power makes an independent determination of the issue on which the existence of the power depends.
Whether or not it can be said that the process outlined above represents a substantial shift away from judicial review of the extradition process towards the exercise of unreviewable executive discretion rests not only on a consideration of which powers are left to the magistrates and courts, in comparison with earlier legislative approaches, but also on the limitations imposed on the exercise of those particular powers, including through ongoing judicial interpretations.
Ten years ago, Shearer suggested that the Extradition Act of 1988 ‘substantially modified the institution of extradition in Australian law and practice’.[24] He noted that two features stood out:
the abolition of the requirement that a requesting State produce evidence of guilt sufficient to establish a prima facie case …; and a substantial shift away from judicial review of the extradition process towards the exercise of unreviewable executive discretion.[25]
As recognised by Shearer, the abolition of the requirement to establish a prima facie case in itself exemplifies the shift, in that so far ‘as the strength of the allegations (against the person) are concerned, only unreviewable executive discretion now stands between an Australian citizen charged with an offence and her or his extradition to a foreign State’.[26]
The other primary factor referred to by Shearer, indicative of the suggested shift, is the general applicability of the ‘rule of non-inquiry’; that is, non-inquiry by the courts into the conditions or circumstances awaiting the person in the requesting state, including whether the rule of law or human rights norms are observed.[27]
Under the Act this is largely left to the Attorney-General, both in the form of a general discretion to deny surrender in section 22(3)(f) of the Act and by specific reference to a requirement to deny extradition unless there is an undertaking that the death penalty will not be applied and the Attorney-General is ‘satisfied’ that, following surrender, the person will not be subjected to torture.[28] It is also left to the Attorney-General to determine whether any other protections arising under an applicable treaty are implemented,[29] such as non-extradition of nationals and a power to deny extradition where the person has been convicted by a special tribunal or in their absence or where there are humanitarian grounds for refusing surrender.
Shearer gives the example of Stanton v DPP,[30] where extradition was sought by the Philippines. While the court was concerned as to the likelihood of a fair trial if the persons sought were returned, the Act gave no scope for judicial review on that ground. In the event, the Attorney-General subsequently refused surrender.
While there is potential for review of the Attorney-General’s determination pursuant to section 39B of the Judiciary Act,[31] in practice it seems that no such review has ever been successful in the context of extradition proceedings.[32] That review is not a review on the merits of the decision, but is concerned with whether the matter was within power and whether the appropriate process was followed.[33] Certainly, it would be difficult to show, to the extent that any determination rests on discretion, that the exercise of discretion has miscarried. As noted by the Full Court of the Federal Court in Papazoglou v Republic of the Philippines:
While determinations made by the Attorney-General under ss 16 and 22 of the Extradition Act can be reviewed pursuant to s 39B of the Judiciary Act, that review is limited in scope. Even if the Attorney-General ultimately decides that a person should not be surrendered, that person may be required to spend a considerable time in custody without any court having power to determine whether there is evidence to support the charges and, as this case shows, without a court having power to consider whether the proceedings against the person constitute an abuse of the court’s process.[34]
To compound the difficulty, even in those instances where power is assigned to the magistrate pursuant to section 19 of the Act, with the express power of review and appeal under section 21 of the Act, the provisions are framed and have been interpreted by the courts in a way that limits their effectiveness, so that ultimately the matter is likely to return to the Attorney-General for determination. Those limitations are considered under the next heading.
Magistrates are involved in the extradition process at the first and third steps noted above: respectively, the issuing of a warrant for the arrest in Australia of the person sought, and the conduct of a hearing to determine whether or not he or she is ‘eligible’ for surrender to the requesting state. The magistrate only determines eligibility and strictly makes no final determination: where there is eligibility, it is for the Attorney-General, at the fourth step of the process, to determine whether or not the person will be surrendered. On the other hand, as there is no res judicata in relation to extradition proceedings, where the magistrate finds that the person is not eligible for surrender the requesting state might bring a fresh application.[35] Whether or not any fresh application will proceed rests on the discretion of the Attorney-General, as it is a precondition to any section 19 hearing that a notice be given under section 16 of the Act.
The Act, in section 21, provides for review and appeal only in relation to the third step, the extradition hearing. Any judicial review of the other steps of the process rests on section 39B of the Judiciary Act.[36]
The role of the magistrate in issuing a warrant for the arrest of the person in Australia, under section 12 of the Act, is inevitably limited, in that the magistrate is only required to be satisfied ‘on the basis of information given by affidavit’ that the person is an ‘extraditable person’.[37] The term ‘extraditable person’ is defined in section 6 and, broadly, imports requirements that the offence in question be an ‘extradition offence’,[38] and either that there has been a conviction for the offence or that a warrant is in force in the requesting state for the arrest of the person in relation to an offence that the person is ‘accused’ of having committed.[39] It also involves a consideration of the question of identity.[40]
In relation to the term ‘accused’, in essence it seems that the relevant distinction is between an application for the extradition of a person who is actually wanted for prosecution for an offence as distinct from seeking return purely for the purposes of interrogation.[41] In DPP v Kainhofer,[42] while the Court did not consider the meaning of the term ‘accused’,[43] finding only that it was not a matter for determination by the section 19 magistrate, it did echo a common theme:
in considering whether a person is an extraditable person under s 6(a)(i) of the Act, it is necessary to bear in mind the statutory object of enabling Australia to carry out its obligations under extradition treaties with countries that adopt a variety of criminal procedures different from our own.[44]
One consequence of the strict demarcation between the steps in the extradition process and, in the present instance, the inability of the section 19 magistrate to reconsider this issue, is that if the person sought wishes to challenge a finding that he or she is an ‘extraditable person’, separate application must be made to the Federal Court, with the inevitable time and cost implications.
While at the third step in the process, the extradition hearing under section 19 of the Act, magistrates are given a significant role in determining ‘eligibility’ for surrender, it remains an administrative function with the magistrate sitting as a persona designata and not as a court.[45]
As such, the magistrate does not have any inherent jurisdiction and while the magistrate may have certain implied powers, it has been held that the nature of the powers conferred under section 19 of the Act is not consistent with an implied power to stay proceedings as an abuse of process.[46] In Papazoglou v Republic of the Philippines[47] it was argued that an abuse of process arose because, if extradited, the person would be exposed to 15 years of imprisonment in the Philippines in respect of conduct for which he would have received only a few months imprisonment in Australia. Also, the relevant conduct took place in both Victoria and the Philippines and there was an implied representation by the Victorian authorities that if he pleaded guilty in Australia to certain other offences he would not be prosecuted in relation to the conduct for which extradition was now sought. While the court held that it is ‘difficult to resist the notion that Australians have a fundamental right not to be detained in custody without an opportunity to assert before a court that the proceedings against them should be regarded as an abuse of process’, it was nevertheless held that that was the inevitable effect of the terms of the Act.[48]
In addition to the limitations imposed by the scope and nature of the power given to magistrates, additional limitations arise in terms of how the matters expressly assigned to the magistrate are framed in the legislation and how the courts have interpreted those provisions. As is noted above,[49] the magistrate is confined to a consideration of the following matters: whether the necessary documentation has been produced; whether double criminality can be established; whether there are any ‘extradition objections’ under section 7 of the Act; and, where imported by treaty or regulation, whether a prima facie case can be made out. Each of these matters is considered in turn, though because of the close relationship between certain of the required documentation and the principle of double criminality those two issues are considered together.
The determination of double criminality rests on the statement of conduct produced by the requesting state pursuant to section 19(3)(c)(ii) of the Act. That sub-section requires a statement in writing setting out the ‘conduct constituting the offence’ in relation to which extradition is sought. Section 10(2) provides:
A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed.
By section 19(2)(c), the magistrate must be satisfied that at the time of the extradition request the ‘conduct constituting the offence’, or equivalent conduct, would have constituted an offence in the state or territory in Australia where the extradition hearing is held. That is determined solely by reference to the section 19(3)(c)(ii) statement.[50] It follows that if that statement includes allegations made against the accused beyond those strictly necessary to constitute the offence in the requesting state, then it is more likely a notional Australian offence will be found and double criminality established.
The Federal Court has interpreted the term ‘conduct constituting the offence’ broadly. Rather than focusing on the words ‘by virtue of which’ the offence has been committed in section 10(2),[51] in Zoeller v Federal Republic of Germany the Court placed emphasis on the words ‘is alleged to have been committed’, concluding that the statement of conduct was not invalid because it contained a statement of facts, ‘which goes beyond the facts necessarily constituting the offence’ in the requesting state and that it did not follow that ‘the magistrate may have regard only to those facts which are absolutely necessary ingredients of the foreign offence’.[52] It was added that the ‘magistrate is no expert in foreign law. He is not required to determine what the facts are that are the necessary facts to constitute the foreign crime.’[53] However, it is suggested that the reference in section 10(2) to the acts by which the offence ‘has, or is alleged to have, been committed’, simply reflects the fact that extradition may be sought of persons either charged with or convicted of an offence. The effect of the approach adopted by the Federal Court seems to be that the ‘conduct constituting the offence’ is whatever the requesting state specifies in the section 19(3)(c)(ii) statement, regardless of whether it bears any relationship to the conduct that will be prosecuted following surrender.
In Government of Canada v Aronson,[54] where a similar provision was considered,[55] the House of Lords held that a person could be extradited only if the conduct relevant to the ingredients of the foreign offence constituted a corresponding offence under the United Kingdom law. Lord Bridge gave examples of the ‘startling results’ were the law to be otherwise.[56] For example, double criminality would not depend on whether the acts charged were criminal in both states, but on the manner in which the statement of conduct were drafted. As noted by Lord Lowry:
The “act or omission constituting the offence” cannot in my opinion mean “the conduct, as proved by the evidence, on which the charge is grounded,” because the evidence of such conduct could prove something more than what has been charged. In such a case the conduct proved would not be the act or omission constituting the offence of which the fugitive is accused …[57]
One of the vagaries of the Federal Court approach is demonstrated by the circumstances where a person is charged with an offence that, in this country, is not a crime, but, incidentally, the statement of conduct makes reference to acts or omissions that would constitute a crime in this country. In that event, under the approach in Zoeller, it seems that double criminality will be established. That will be so even though, following surrender, the person will be prosecuted only for the offence for which extradition was sought and which does not satisfy the requirements of double criminality, rather than for the notional offence that does satisfy the principle. That is the very outcome that the principle of double criminality was intended to avoid.
A stricter approach was adopted in relation to earlier Australian legislation, as reflected in Riley v Commonwealth.[58] In Zoeller it was stated that the legislation considered in Riley required the establishment of a prima facie case and the Court seems to have used the fact of the abolition of that requirement as signalling a unique and broader approach to double criminality. However, the abolition of the requirement to establish a prima facie case, with the reduction of individual rights that that entails, might more appropriately justify a counterbalancing stricter approach to the principle of double criminality.[59]
It will always be difficult to establish the political offence and discrimination objections to extradition. As noted by French J in Cabal v United Mexican States (No 3):
It is no light matter for the magistrate or this Court to conclude that there are substantial grounds for believing that the requesting country is acting in bad faith, especially given the necessary assumption that the offence has been committed. There is also the existence of the Treaty itself to which regard must be had. Where there is a treaty in force, its existence no doubt reflects a degree of mutual trust and confidence between the contracting parties as to their bona fides and the fairness of treatment that would be meted out by one or the other to a fugitive who has been surrendered.[60]
That difficulty is exacerbated by section 19(5) of the Act, which prohibits the magistrate from receiving evidence ‘to contradict an allegation that the person has engaged in conduct constituting an extradition offence’. This provision was first enacted in 1985, on the rationale that an extradition hearing is not intended to determine guilt or innocence and, accordingly, evidence to that effect should not be led.[61] One consequence is that a person is unable to lead clearly exculpatory evidence, such as alibi evidence.[62] Another important consequence is that, as interpreted by the courts, section 19(5) curtails the potential for establishing a political offence or discrimination on account of race, religion, nationality or political opinions under section 7 of the Act.
In Cabal v United Mexican States (No 3),[63] French J referred to section 19(5) of the Act and stated that as it cannot be contended that the requested person has not engaged in the alleged conduct, any objection of discrimination under section 7(b) of the Act ‘must be raised on the premise that the person has engaged in conduct constituting the offence’. His Honour added:
This excludes debate before the magistrate that the charges have been falsely fabricated because of the person’s political opinion. That wider consideration, if available at all, is reserved for the Attorney-General in deciding whether to issue a notice under s 16 and, ultimately, whether to surrender the requested person under s 22.[64]
It is doubtful that section 19(5) was ever intended to have that effect. It is noted that in introducing section 19(5) the express concern was to avoid a mini trial in this country on the merits of the case, which is properly the province of the courts in the requesting state. In other words, it is not the role of the Australian magistrate to prejudge guilt or innocence. However, extradition objections are a matter for the magistrate in this country and there will be circumstances where apparent innocence of the offence could be suggestive of an ulterior purpose on the part of the requesting state.
In a submission to the Joint Standing Committee on Treaties, Julian Burnside QC made the compelling point that it is difficult to demonstrate discrimination without being able to lead evidence that the charges were false:
where a requested person seriously alleges [such] an extradition objection … it is likely that the person did not engage in the conduct … That is to say, it is likely that the person has been falsely accused. There is an argument that this prevents evidence being led to show, for example, that the requested person has been framed for political reasons.[65]
There is no general requirement under the Act for the establishment of a prima facie case, or any other indicia of guilt of the alleged offences, as a precondition to extradition. While such a requirement can be imported by regulations applying to a particular country,[66] generally it has not been incorporated into modern extradition treaties.[67] Perhaps ironically, by virtue of the Extradition (Commonwealth) Countries Regulations, it is a precondition to extradition to most member states of the British Commonwealth.[68]
As noted by Shearer, the abolition of the requirement to establish a prima facie case in the mid 1980s was said to be justified:
in the interests of efficiency and speed of handling requests, and so as to give reciprocity of treatment to those foreign countries that did not apply – or even understand – the prima facie evidence requirement.[69]
Shearer added:
In my view, the abandonment of the prima facie requirement in Australia‘s extradition treaty and legislative policy was over-hasty and unwise. It is unjust that a person (especially an Australian citizen) may be extradited to a foreign country on the mere demand (albeit subject to certain safeguards) of that country’s authorities and without any opportunity for an Australian court to examine the evidence.[70]
On the other hand, it has been suggested that the requirement to establish a prima facie case ‘reflects an unjustified attitude of superiority on the part of common law systems and is considered “alien and unacceptable” by civil law countries’.[71] It is said that in the civil law system there is no equivalent to a committal hearing and that these countries find it ‘impossible or prohibitively expensive’ to meet the requirement.[72] While some commentators have disputed the potential difficulties facing civil law states,[73] Shearer has responded in the following fashion:
I suggest that the sense of justice of most people would be offended by any law, statutory in basis or not, that can have people taken away from their own home to a distant country to face trial on matters alleged against them and in relation to which the courts in their own country have no power to review for probable cause or reasonable suspicion. The civil law countries do not return our favour: they refuse altogether to surrender their own citizens, prima facie case or no prima facie case.[74]
Provision is made in section 21 of the Act for review of the magistrate’s decision and for further appeal, ultimately to the High Court. There are difficulties with the review process.[75] One such difficulty is that while the review is by way of rehearing so that the court can reach its own conclusions on eligibility for surrender,[76] section 21(6)(d) of the Act provides that ‘the court to which the application or appeal is made shall have regard only to the material that was before the magistrate’.
A difficulty arises where material was rejected by the magistrate, but admitted upon review or appeal or where, for example, cross-examination of witnesses before the magistrate was wrongly disallowed. This places the parties in an ‘invidious position’.[77] Certainly there is potential for unfairness. While it has been accepted that material that was proffered to the magistrate, but rejected for admission, is material that was ‘before the magistrate’ for the purposes of section 21(6)(d) of the Act,[78] the review or appeal court cannot speculate on the oral evidence that might have been led had proper examination of the witnesses been allowed.[79]
Also, while rejected material can be admitted on review, it has been held that there is a separate question of the weight that can be given to that material. In Cabal v United Mexican States,[80] the Full Court of the Federal Court stated:
It is obviously unfair that a person who has erroneously been prevented by a magistrate from tendering evidence in support of an extradition objection should be denied redress on review to this Court, or by the Supreme Court if that be the Court of review. At the same time it is also unfair that should such redress be granted, the requesting State is denied the opportunity to answer that material. In our view the matter should receive urgent attention.
Accordingly, in Dutton v O’Shane,[81] where the magistrate had rejected certain affidavit evidence, it was held that while the evidence should be admitted the appropriate response was to reduce the weight to be given to the material because of the lack of opportunity to cross-examine the deponents.
In Dutton,[82] it was submitted that there is greater unfairness to the person sought, as the proper conduct of the section 19 hearing is of greater significance to the accused person than the requesting state. Should the application fail, the requesting state can bring a fresh application and correct any deficiencies in the earlier hearing. That second chance is not available to the person sought. It was also submitted that the requesting state should take responsibility for its wrongful objection to the admissibility of evidence. The Court seemed to be of the view that this was simply a consequence of the ‘contrived state of affairs’ created by section 21(6)(d) of the Act.[83]
It is instructive to compare the approaches taken in other jurisdictions, in the present context in relation to the manner in which certain of the matters referred to above are dealt with and, in particular, the scope for judicial review of the extradition process. Reference is here made to the approaches in the United Kingdom and the United States of America. The observations made are general and, to an extent, selective.
New United Kingdom legislation, the Extradition Act (‘the UK Act’), was introduced at the end of 2003.[84] The legislation creates two categories of states, dealt with separately under parts 1 and 2 of the UK Act. By regulation, states are categorised as falling within either part 1 or part 2 and they can be moved between those categories.
Part 1 is primarily aimed at member states of the European Community and provides a simplified procedure, including allowing the arrest warrants of part 1 states to be executed in England.[85] There has been established a European Arrest Warrant (EAW) to facilitate that process, the framework for which was set up after 11 September 2001.[86] At the moment, part 1 states are those European states that have adopted the framework for the EAW.[87] In relation to category one states, there is no application for extradition to the executive and the process is entirely in the hands of the courts. Once the EAW is executed in the United Kingdom, the courts consider all relevant matters, including whether there has been a valid speciality assurance.[88] The process is also facilitated, in relation to both parts 1 and 2 states, by the imposition of time limits for removal of the person following the extradition order by the courts.[89]
Generally, part 2 adopts a more traditional approach, in the sense that the Secretary of State, after receiving an application from another state, must initiate the extradition process and a United Kingdom arrest warrant must be issued.[90] However, the involvement and discretion of the Minister is relatively limited. Other than where there are competing requests, the Secretary of State ‘must’ issue a certificate to proceed where there is a valid request.[91] Also, while the Secretary of State considers whether appropriate assurances have been given in relation to speciality and non-imposition of the death penalty,[92] where it is found that the appropriate assurances have been given, the Secretary must order extradition, other than in very limited circumstances, notably where it is in the interests of national security.[93] The death penalty question arises only in relation to part 2 states, as section 1(3) of the UK Act stipulates that a state cannot be designated for the purposes of part 1 where the death penalty may be imposed under the general criminal law of that state.
While the requirement to establish a prima facie case has been removed in relation to part 1 states, generally it has been preserved in relation to other states.[94] However, the Secretary of State may designate a part 2 state as not having to meet this requirement.[95] To date, Australia, Canada, Israel, New Zealand, South Africa, the United States of America, and the European Community states that have not yet adopted the framework for the EAW are so designated. Also, while generally the principle of double criminality has been preserved,[96] in relation to part 1 states the principle does not apply where the conduct falls within the ‘European framework list’ and is punishable in the requesting state by at least three-years imprisonment.[97]
As well as streamlining the extradition process, the UK Act has been promoted as representing a major advance in the protection of human rights; it being suggested that the Act ‘for the first time ensures human rights for individuals’.[98] Extradition cannot take place where it would be contrary to a person’s rights under the European Convention on Human Rights, the courts being required to determine whether extradition is compatible with the Convention rights within the meaning of the Human Rights Act 1998 (UK).[99] The impact of the Human Rights Act has been the subject of some debate, in particular in relation to the extent to which it gives rise to substantive review and to an ‘abandonment of judicial deference to the executive’.[100] In R (Daly) v Secretary of State for the Home Department,[101] Lord Bingham, with whom the other Law Lords agreed, stated:
In Smith and Grady v United Kingdom [1999] ECHR 72; (1999) 29 EHRR 493, the European Court held that the orthodox domestic approach of the English courts had not given the applicants an effective remedy for the breach of their rights under article 8 of the Convention because the threshold of review had been set too high. Now, following the incorporation of the Convention by the Human Rights Act 1998 and the bringing of that Act fully into force, domestic courts must themselves form a judgment whether a Convention right has been breached (conducting such inquiry as is necessary to form that judgment) and, so far as permissible under the Act, grant an effective remedy.
Alegre and Leaf refer to the case of Ex Parte Ramda[102] as demonstrating that the UK judiciary are prepared to question the level of human rights protection provided even by European Union member states, including in extremely politically sensitive areas such as terrorism.[103] In that case, the extradition order of Ramda, who was wanted for trial in France in relation to a series of terrorist bombings, was quashed, in effect requiring the Home Secretary to reconsider whether evidence against the person sought had been obtained from a co-accused by means of torture or inhuman or degrading treatment. If that were the case, with the consequent likelihood of an unfair trial in the requesting state, the Home Secretary would be obliged to refuse extradition. In any event, Leigh suggests: ‘If domestic judges refuse to cast off deference [to the executive] in defence of Convention rights those in Strasbourg are unlikely to be so reticent.’[104]
In addition to the protections under the Human Rights Act, specific bars to extradition appear in sections 11 and 79 of the UK Act, including where there would be double jeopardy, where it would be unjust or oppressive to surrender given the passage of time, and where the warrant or request for extradition is issued or made for the purpose of prosecuting or punishing the person on account of their ‘race, religion, nationality, gender, sexual orientation or political opinions’.[105] Again, the courts determine these matters. On the other hand, the political offence exception has been abolished.[106] Finally, under the UK Act the general provisions relating to bail apply,[107] unlike in Australia where ‘special circumstances’ for a grant of bail must be established.[108]
There are two striking features of the United States extradition process: the requirement to establish probable cause and the principle of non-inquiry into the processes or likely treatment of the person following surrender.
The United States constitutional right to due process imports the requirement to establish probable cause in relation to all applications for extradition. While this sets a lesser standard than the requirement to establish a prima facie case,[109] and the strict rules of evidence do not apply,[110] there is at least a need to establish reasonable grounds for belief of guilt. Consistent with that requirement, article XI(3)(c) of the extradition treaty with Australia requires not evidence but ‘a description of the facts, by way of affidavit, statement, or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it’.[111]
As noted above, the trend in Australia has been to abolish the requirement to establish a prima facie case in extradition proceedings. Even where the requirement does remain, section 19(5) of the Act serves to prevent the person from leading evidence to contradict an allegation that he or she has engaged in conduct constituting the offence.[112] That is unlike the position pertaining to committal proceedings for an offence against Australian law. Also, in extradition proceedings in the United States evidence ‘explaining away or completely rebutting probable cause’ is admissible, so that evidence of an alibi is admissible if it ‘negates or obliterates’ probable cause.[113]
On the other hand, the United States courts frequently note that they cannot enquire into the motive, when seeking extradition, of states with which the United States has extradition treaties, or the processes or likely treatment of the person following surrender. While this approach has to be seen in the context of the fact that in the United States the only basis for review of the extradition hearing is through the writ of habeas corpus, suggested rationales are that the very fact of entering into a treaty indicates that the executive considered the processes in the requesting state sufficiently fair and that such an inquiry is not in the interest of international comity,[114] and that any opinion of the courts ‘might cause embarrassment to the executive branch in the conduct of foreign affairs’.[115] In Martin v Warden, Atlanta Pen,[116] the Court stated: ‘judicial intervention in extradition proceedings based on humanitarian considerations is inappropriate … Rather humanitarian considerations are properly reviewed by the Department of State.’
However, more recently, it has been suggested that jurisdiction could arise where specific protections are imposed under international conventions to which the United States is a party. The Ninth Circuit has held that the Secretary of State has a ‘clear and nondiscretionary duty’ under article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[117] to consider the prospect of torture in the requesting state when determining whether to extradite a person, and that the Secretary’s decision is reviewable by the courts.[118]
If anything, the concern expressed by Professor Shearer ten years ago is even more pertinent today. At least in relation to the general abolition of the requirement to establish a prima facie case, the shift away from judicial review towards unreviewable executive discretion has been justified on the basis that it is a necessary step in facilitating the execution of extradition treaties with civil law states, which in turn facilitates the combating of crime. However, though not necessarily requiring adherence to strict rules of evidence,[119] a requirement of sufficient material to raise a reasonable or probable cause has been preserved in other common law countries, including the United States and Canada, w ithout an evident effect on extradition arrangements with civil law states.[120]
More generally, it has been suggested that extradition involves issues of international relations, which is the province of the executive.[121] In part, the present approach also rests on the proposition that Australia only signs treaties in circumstances where it can have confidence in the other country’s criminal justice system.[122] Shearer has disagreed with this justification, noting that conditions can suddenly deteriorate through a coup or emergency situation, or that there may be ‘a steady erosion of the rule of law such as in Zimbabwe’.[123] Others have questioned the underlying premise of the justification. In Cabal v United Mexican States,[124] the Full Court of the Federal Court stated:
Australia has extradition treaties with many countries. A number of these countries have legal systems very different from our own. Some of them would not be regarded as affording those charged with serious criminal offences anything approximating what we would consider a fair trial. They appear to have very little regard for the importance of an independent judiciary and the rule of law. Some are reputed to be governed by regimes which are thoroughly corrupt.
Certainly, it is misleading to assert that extradition is merely a preliminary step towards trial in another state. As noted by Gyles J in De Bruyn v Republic of South Africa
The Act affects the liberty of the subject in a drastic fashion – the consequences are far more serious than being charged with a crime in Australia. Principles which are applicable in this case (where it might be thought that the appellant has few merits) are equally applicable to the case of a long-standing Australian citizen with an impeccable record. The questions which arise under this statute cannot be dealt with as though they are ordinary commercial or administrative law issues.[125]
The Joint Standing Committee on Treaties of the Australian Commonwealth Parliament has acknowledged that it is not ‘good policy’ to dispense with the rights of the accused ‘simply to streamline the judicial process’.[126] The Joint Standing Committee does not favour continuation of the ‘no evidence’ model and has recommended further inquiry as to an appropriate evidentiary standard for extradition requests to Australia.[127] The Committee has also questioned whether the Minister has the ‘opportunity to consider fully whether the extradition request is soundly based’ and noted ‘the concerns raised in evidence that the exercise of the Minister’s discretion is largely unreviewable’.[128]
It has been argued that given Australia’s support over a number of years for the ‘no evidence’ model as a means of facilitating extradition, it would be ‘extremely difficult’ for Australia to now change its position.[129] The Joint Standing Committee on Treaties of the Australian Commonwealth Parliament responded to this argument in the following terms:
While we acknowledge there may be some difficulty, we believe that there is wisdom in Professor Shearer’s argument that “it is better to be ultimately right than persistently wrong”.[130]
[∗] Foundation Professor of Law, Charles Darwin University.
[1] (1995) 185 CLR 528.
[2] I A Shearer, ‘Extradition and Human Rights’ (1994) 68 Australian Law Journal 451, 452.
[3] Above n. 1, 541. See, also, Joint Standing Committee on Treaties of the Parliament of the Commonwealth of Australia, Extradition – a review of Australia’s law and policy, Report 40 (2001) 57, where the Committee came to a similar conclusion.
[4] I A Shearer, Extradition in International Law (1971).
[5] Under the Extradition Act 1988 (Cth), the magistrate carries out an administrative function as a persona designata and does not sit as a court: see s 46 of the Act and DPP v Kainhofer (1995) 185 CLR 528, 538; Zoeller v Federal Republic of Germany (1989) 23 FCR 282, 290, Todhunter v USA [1995] FCA 1198; (1995) 57 FCR 70, 80. Nevertheless, in some respects, such as the observance of the rules of natural justice, the magistrate must act judicially: Riley v Evans (1983) 80 FLR 219, 229. As to the duty to ‘act judicially’, see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 365-67.
[6] There is, of course, also a national interest in facilitating extradition; not only to encourage reciprocal treatment, but also because today criminal activity frequently crosses national boundaries and effective counter measures require international cooperation.
[7] As stated by the Quebec Court of Appeal in United States of America v Manno (1996) 112 CCC (3d) 544, 552: ‘the extradition process essentially rests on the respect of two basic principles: the so-called rule of “double criminality” and the rule of “speciality”‘.
[8] This principle also serves to prevent prosecution for political offences or for other offences in relation to which the requested state has denied extradition in the interests of protecting individual rights.
[9] The political offence objection also serves national interests in so far as it reflects the idea that there should not be interference in the internal political affairs of foreign states.
[10] [1993] UKHL 10; [1994] 1 AC 42, 61. See also, Bou-Simon v Attorney-General (Cth) (Unreported, Federal Court, Emmett J, 8 September 1998), [30]. Similarly, in Foster v Minister for Customs and Justice [1999] FCA 687; (1999) 164 ALR 357, 368 Drummond J referred to the principle of speciality and stated that the principle ‘is not concerned only with matters affecting Australia‘s national interests but also with the protection of the fugitive from injustice in the extradition country’.
[11] ‘Objections’ arise where the offence is a political offence; where actual or potential discrimination can be shown on account of the nationality, race, religion or political opinions of the person sought; where the offence is a military offence; and where double jeopardy arises or there has been a pardon.
[12] Modification of the Act to accommodate treaties and other arrangements is allowed by ss 11 and 55 of the Act. Section 11 is an unusual provision in so far as the regulations, usually incorporating a treaty, can modify the provisions of the Act: as to s 11, see E P Aughterson, Extradition Australian Law and Procedure (1995) 27-30. As to typical exceptions to extradition arising by treaty, such as the prohibition on the extradition of nationals, diplomatic immunity, convictions in absence or by special tribunals, and circumstances of injustice or oppression, see Aughterson, ibid ch 6.
[13] See below n 28 and related text.
[14] See generally, Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386, 389, where the Full Federal Court characterised the stages of the extradition process as (1) commencement; (2) remand; (3) determination by a magistrate of eligibility for surrender; and (4) executive determination that the person is to be surrendered. See also DPP v Kainhofer (1995) 185 CLR 528, 533-38 for ‘a brief conspectus of the Act’.
[15] As to the term ‘extradition offence’, see below n 38, 55 and related text.
[16] As to the term ‘accused’, see below n 39 and related text.
[17] See s 16 of the Act.
[18] Kainhofer v DPP (No 2) (1996) 70 FCR 184, 189.
[19] As to which see s 19(3) of the Act. The documents include a statement of the conduct constituting the extradition offence, which forms the basis for consideration of the principle of double criminality.
[20] Eg in Federal Republic of Germany v Parker (1998) 101 A Crim R 234, 252, it was held that whether any additional information required by treaty, in that case in relation to the identity of the person sought, had been produced was a matter for the Attorney-General.
[21] See s 22(3)(f) of the Act.
[22] ‘Exceptions’, as distinct from ‘objections’ to extradition, arise by treaty or regulation: see above n 12. In relation to ‘exceptions’ there is a subsidiary question of whether the exception is mandatory or permissive: see s 22(3)(e) of the Act.
[23] (1995) 185 CLR 528, 538 per Brennan CJ, Dawson and McHugh JJ. Also, in Foster v Attorney-General (Cth) (1997) 97 A Crim R 560, 575 Cooper J stated: ‘The decision at each stage takes effect either to terminate the process or constitute the condition precedent required for the next stage to occur. Further, the issues at each stage are not the same, although there may be some overlap, eg, the existence or possible existence of extradition objections.’
[24] Above n 2. Shearer observed that the Act also consolidated many changes made piecemeal over the years, including the general abolition of a requirement to establish a prima facie case in 1985.
[26] Ibid 451.
[27] It is left to the magistrate, and on review to the courts, to consider only those protections arising by virtue of the ‘extradition objections’ in s 7 of the Act, which include actual or potential discrimination on account of race, religion, nationality of political opinions: as to which see below n 49 and 60 and related text.
[28] See ss 11(6) and 22(3)(b) and (c) of the Act.
[29] Though it is noted the extradition objections in s 7 of the Act, which also are considered by the magistrate, might also appear as specific exceptions to extradition in the relevant treaty.
[30] (Unreported, Federal Court of Australia, Spender J, 12 January 1993.)
[31] DPP v Kainhofer (1995) 185 CLR 528, 541; Federal Republic of Germany v Parker (1998) 101 Crim L R 234, 252; Foster v Minister for Customs and Justice [1999] FCA 687; (1999) 164 ALR 357, 359; Forsyth v United Kingdom (Unreported, Federal Court of Australia, Carr J, 19 August 2003) [38].
[32] See Joint Standing Committee on Treaties Report 40, above n 3, 57. For recent unsuccessful applications under s 39B, see de Bruyn v Ellison [2004] FCA 880; McCrea v Minister for Customs & Justice [2004] FCA 1273.
[33] Foster v Minister for Customs and Justice [1999] FCA 687; (1999) 164 ALR 357, 359-60 per Drummond J. Compare below n 101 and related text.
[34] (1997) 74 FCR 108, 140. In that case, where it was argued that great injustice would result if extradition were ordered, the court noted: ‘A decision by the Attorney-General to surrender the person cannot be challenged on the merits’: at 128.
[35] See Wiest v DPP [1988] FCA 450; (1988) 23 FCR 472; Federal Republic of Germany v Parker
(1998) 101 A Crim R 234; Dutton v Republic of South Africa (1999) 62 ALR 625.
[36] See above n 31 and related text. Decisions under the Extradition Act are not decisions to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies: see Schedule 1(r) to the latter Act and Papazoglou v Republic of the Philippines (1997) 74 FCR 108, 114.
[37] Section 12(1)(b) of the Act. See also DPP v Kainhofer (1995) 185 CLR 528, 541 per Toohey J.
[38] The term ‘extradition offence’ is defined in s 5 and means an offence against the law of the requesting country for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months. Though note the qualification in paragraph (a)(ii) of the definition, as to which see Aughterson, above n 12, 55-56.
[39] As to the term ‘accused’, see DPP v Kainhofer (1995) 185 CLR 528.
[40] Federal Republic of Germany v Parker (1998) 101 A Crim R 234, 254.
[41] See DPP v Kainhofer (1995) 185 CLR 528, 555-64 per Gummow J.
[42] (1995) 185 CLR 528.
[43] Compare the observations of Gummow J, (1995) 185 CLR 528, 555-64.
[44] Ibid, 540. See, also, United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165, 190, where the High Court stated: ‘Australia … has a very substantial interest in surrendering the person in accordance with its treaty obligations. If Australia fails, when requested, to return a person against whom there is probable cause for concluding that he or she has committed an extraditable offence, it breaches its obligations under international law. If Australia fails to comply with a treaty, the rules of international law entitle the other party to the treaty to repudiate or suspend the performance of its own obligations under the treaty.’ See, also, Truong v The Queen [2004] HCA 10; (2004) 205 ALR 72, 102, 108 per Kirby J.
[46] Papazoglou v Republic of the Philippines (1997) 74 FCR 108, 130-31. The Court held that the magistrate does have some implied powers under the Act at 129.
[48] Ibid 130-31. The Court also doubted that in the exercise of its original jurisdiction it had power to give the relief sought: ibid 139. Ultimately, the Attorney-General exercised the discretion not to surrender Mr Papazoglou.
[49] See above n 18, and related text.
[50] Zoeller v Federal Republic of Germany (1989) 23 FCR 282, 300.
[51] The term ‘acts or omissions by virtue of which an offence is alleged to have been committed’ was considered recently by the High Court of Australia in Truong v The Queen [2004] HCA 10; (2004) 205 ALR 72, in the context of the operation of the speciality principle under s 42 of the Act. The appellant had been extradited from the United Kingdom for the offences of conspiracy to commit murder and conspiracy to kidnap and there was a question of whether his conviction in Victoria for the substantive offences of murder and kidnapping infringed the speciality principle. By s 42 of the Act he could be tried for any surrender offence or any other offence ‘of which the person could be convicted on proof of the conduct constituting any such offence’, which in turn imported the provisions of s 10(2) of the Act. The majority, Gleeson CJ, McHugh and Heydon JJ (Hayne J agreeing in relation to this issue), said that the words acts or omissions ‘by virtue of which an offence is alleged to have been committed’ directs attention to the concrete rather than the abstract (at p 79), and that the required exercise ‘is to proceed by reference to the actual conduct alleged against the person’ (at pp 80-81). Accordingly, as, in the present case, the alleged conduct included conduct sufficient to establish the substantive offences, the speciality principle was satisfied. In other words, it is not a question of whether there is a theoretical difference in the conduct constituting the respective offences, but rather whether the conduct ‘in this particular case’ included actual killing and kidnapping sufficient to found the substantive offences (at pp 82-83). On the other hand, Gummow, Kirby and Callinan JJ were of the view that s 42 should be understood as directing attention only to the evidence sufficient to establish the elements of the offence, in this case the offences of conspiracy to murder and conspiracy to kidnap. That would not be sufficient to establish the substantive offences. Gummow and Callinan JJ stated that the language in which s 42(a)(i) is expressed is ‘sufficiently intractable’ to gainsay the submission that s 42(a) did not apply in the present case (at pp 95-96). It is not clear where this leaves s 19(2)(c) of the Act. Unless it can be said that there should be a different approach to the rule of speciality (see eg at p 103, per Kirby J), at least on the approach adopted by Gummow, Kirby and Callinan JJ it would seem that the appropriate focus for the purposes of s 19(2)(c) of the Act should also be on the conduct necessary to constitute the offence in the requesting state; that is, the theoretical elements of the offence. Significantly in the present context, Kirby J stated (at pp 103-4): ‘it is the offence in respect of which the person was surrendered that is important, not what was disclosed in the form of evidence to the surrendering authorities. Were it otherwise, any country could call much evidence and then turn around and argue that the “other offence” was disclosed to the relevant authorities.’ That potential diminution of the principle of speciality applies equally to the principle of double criminality.
[52] Zoeller v Federal Republic of Germany (1989) 23 FCR 282, 300. See, also, Cabal v United Mexican States [2001] FCA 427; (2001) 108 FCR 311, 341. Cf De Bruyn v Republic of South Africa [1999] FCA 1344; (1999) 96 FCR 290, 292-93, 296-97.
[53] Ibid. It seems to have been assumed in Zoeller v Federal Republic of Germany (1988) 19 FCR 64, 90 that under earlier legislation the magistrate could inquire as to the nature of the offence in the requesting state.
[54] [1989] UKHL 6; [1990] 1 AC 579.
[55] Under s 3(1)(c) of the Fugitive Offenders Act, a person could be extradited only if ‘the act or omission constituting the offence’ would constitute an offence against the law of the United Kingdom. Compare the consideration of Aronson in Zoeller v Federal Republic of Germany (1989) 23 FCR 282, 296-97.
[56] [1989] UKHL 6; [1990] 1 AC 579, 589-90.
[57] Ibid 609.
[58] [1985] HCA 82; (1985) 159 CLR 1, 18-20 per Deane J. See also Linhart v Elms (1998) 81 ALR 557, 582.
[59] Bassiouni explains the more strict concrete approach to double criminality in civil law states (as distinct from the common law abstract approach) as follows: ‘It is noteworthy that under common law the examining magistrate weighs the existence of probable cause to believe the offence charged has been committed. In civil law systems the examining magistrate does not inquire into the probable cause of the evidence.’ See M Cherif Bassiouni, International Extradition: United States Law and Practice (1987) 349-49.
[60] [2000] FCA 1204; (2000) 186 ALR 188, 268. See, also, Dutton v O’Shane (Unreported, Supreme Court NSW, James J, 20 November 2002) [321].
[61] Extradition (Commonwealth Countries) Amendment Bill 1985, Second Reading Speech, Attorney-General Mr L Bowen, House of Representatives 1985 Debates, vol HR 140, 596. See, also, Joint Standing Committee on Treaties Report 40, above n 3, 58.
[62] See, below, n 113 and related text.
[63] [2000] FCA 1204; (2000) 186 ALR 188, 266.
[64] Ibid.
[65] Joint Standing Committee on Treaties Report 40, above n 3, 59. Also, can it be said that there is a breach of s 19(5) where a person endeavours to raise the objection under s 7(e) of the Act: that previously they have been ‘acquitted or pardoned’ in relation to the offence?
[66] See above n 19 and related text.
[67] Though see agreements or treaties with Hong Kong art 5; Israel art XI(iii); Republic of Korea art 3; Norway art 8; and United States of America art XI.
[68] The requirement has been removed in relation to South Africa, the United Kingdom and Canada: see Extradition (South Africa) Regulations 2001; Extradition (Canada) Regulations 2004; Extradition (United Kingdom) Regulations 2004; Extradition (commonwealth Countries) Regulations 1998. In referring to this different approach in relation to Commonwealth countries, the Joint Standing Committee on Treaties of the Australian Parliament has noted: ‘we found it incongruous that quite different standards of proof apply to extradition requests from Commonwealth countries and civil law countries, and that far more supporting evidence is required from countries whose systems of justice closely resemble Australia’s. Conversely, less is required of countries where the implications of agreeing to surrender a person are potentially much more onerous, in that the legal system is quite different, proceedings may well be conducted in another language, and there may be reservations about due legal process and the protection of human rights‘: see Joint Standing Committee on Treaties of the Parliament of the Commonwealth of Australia, An Extradition Arrangement with Latvia and an Agreement with the United States of America on Space Vehicle Tracking and Communication, Report 36, October 2000, 13; Joint Standing Committee on Treaties Report 40, above n 3, 21.
[69] Joint Standing Committee on Treaties Report 36, above n 68, Submission 8, 50-51. See also Joint Standing Committee on Treaties Report 40, above n 3, 3. As to the object of facilitating the conclusion of extradition treaties with civil law states, see Hansard, House of Representatives, 9 December 1987, 3069, 3078-79, 3108.
[70] Joint Standing Committee on Treaties Report 36, above n 68, Submission 8, 50-51; Joint Standing Committee on Treaties Report 40, above n 3, 3. Dr David Chaikin, a Senior Assistant Secretary of the International Branch in the Attorney-General’s Department when the key policy changes were made in the mid-1980s has also expressed the view that, in making the changes, Australia ‘went too far’ and that ‘it was a mistake’: Report 40, above n 3, 29.
[71] See submission to the Joint Standing Committee on Treaties by the Commonwealth Attorney-General’s Department: Report 40, above n 3, 26.
[72] Ibid.
[73] See Joint Standing Committee on Treaties Report 40, above n 3, 45.
[74] Ibid 29. Shearer has also expressed the view that the perceived difficulties facing civil law states ‘has been greatly exaggerated’: ibid 44-45. It is noted that since mid 1995, approximately 20 per cent of persons extradited from Australia have been Australian citizens: see Australian Government Attorney-General’s Department, Annual Reports for the years 1995-1996 to 2003-2004, <www.ag.gov.au>, ‘Publications’ – ‘Annual Reports’ folders.
[75] In Dutton v O’Shane [2003] FCAFC 195; (2003) 200 ALR 710, 739, Finn and Dowsett JJ noted that the appeal in that case ‘again illustrates the difficulties that the peculiar review process mandated by s 21 of the Act creates for a court when called upon to review a magistrate’s s 19 order’.
[76] Cabal v United Mexican States [2001] FCA 427; (2001) 108 FCR 311, 338; Dutton v O’Shane [2003] FCAFC 195; (2003) 200 ALR 710, 741.
[77] Dutton v O’Shane [2003] FCAFC 195; (2003) 200 ALR 710, 740.
[78] Cabal v United Mexican States (No 2) [2000] FCA 445; (2000) 172 ALR 743, 749 per French J. See also Dutton v O’Shane> [2003] FCAFC 195; (2003) 200 ALR 710, 745.
[79] Dutton v O’Shane [2003] FCAFC 195; (2003) 200 ALR 710, 745, 746.
[80] [2001] FCA 427; (2001) 108 FCR 311, 348.
[81] (Unreported, Supreme Court NSW, James J, 20 November 2002) [327]. See also Dutton v O’Shane [2003] FCAFC 195; (2003) 200 ALR 710, 746 per Finn and Dowsett JJ.
[82] Ibid
[83] Ibid 746. The Court considered that ‘it may well be the case that there are some miscarriages and errors in the s 19 review, which are only capable of correction (if at all) by such avenues for judicial review or administrative action and/or declaratory relief as may be available in the circumstances’: ibid 744.
[84] While it seems that an immediate political spur for the legislation was the ‘war on terrorism‘ (see UK, Hansard Debates, House of Commons, Third Standing Committee on Delegated Legislation, 15 December 2003, col 18), in 1997 the European Parliament noted that ‘judicial cooperation between the Member States of the European Union in criminal matters must be improved substantially, and thus rendered more effective, in order to combat crime, organized or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking, acts of active or passive corruption, fraud and other offences, and to ensure that no Member State can become a safe haven where a criminal can be safe from prosecution and punishment by another Member State’ and that ‘the system of extradition seems to have less and less justification and raison d’etre within a Union of States governed by the rule of law and equally respectful of human rights‘; but also noted that ‘the improved extradition procedure must not harm the rights of the defence, as laid down in the European Human Rights Convention and interpreted by the Strasbourg Court of Human Rights’: Official Journal C 304, 06/10/1997 p 131.
[85] Extradition Act 2003 (UK) s 3.
[86] UK, Hansard Debates, House of Commons, Eighth Standing Committee on Delegated Legislation, 14 July 2004, col 5.
[87] Ibid cols 3-5.
[88] Extradition Act 2003 (UK), s 17.
[89] Ibid ss 35, 117. It has been noted by the European Parliament that ‘the deprivation of liberty of a person who is the subject of an extradition procedure may entail violation of that person’s fundamental rights, which is why decisions on extradition should be taken as swiftly as possible’: Official Journal C 304, 06/10/1997 p 131.
[90] Ibid ss 70, 71.
[91] Ibid ss 70, 126.
[92] Ibid ss 94, 95.
[93] Ibid ss 93, 208.
[94] Ibid s 84. While ‘evidence’ is required, certain limited hearsay evidence made in a document to a police officer may be admitted as evidence: s 84(2).
[95] Ibid s 84(7).
[96] Ibid ss 64, 137.
[97] Ibid s 64(2). The ‘European framework list’ includes offences ranging from terrorism and murder to racism and xenophobia and illicit trade in human organs and tissue: see s 215 of the UK Act and Sched 2.
[98] See UK, Hansard Debates, House of Commons, Third Standing Committee on Delegated Legislation, 15 December 2003, col 9, per Caroline Flint, Under-Secretary of State for the Home Department.
[99] Extradition Act 2003 (UK), ss 21, 87. Protections included the right to a fair trial, freedom of expression, right to peaceful assembly and freedom of association, and non-discrimination on account of sex, race, colour, language, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
[100] For a discussion of the issues and relevant authorities, see I Leigh, ‘Taking Rights Proportionately: Judicial Review, the Human Rights Act and Strasbourg’ [2002] Sum Public Law 265. See also, in reply to Leigh, S Atrill, ‘Keeping the Executive in the Picture: a Reply to Professor Leigh’ [2003] Spr Public Law 41.
[101] [2001] 2 AC 532, 545-46. See also per Lord Styne at 546-47 and Lord Cooke at 548-49.
[102] R v Secretary of State for the Home Department, Ex Parte Ramda
[103] S Alegre and M Leaf, ‘Criminal Law and Fundamental Rights in the European Union: Moving towards Closer Cooperation’ (2003) 3 European Human Rights Law Review 325, 330. See also S Douglas-Scott, ‘The Rule of Law in the European Union – Putting the Security into the Area of Freedom, Security and Justice’ (2004) 29 European Law Review 219, 226.
[104] See Leigh, above n 100, 287.
[105] Extradition Act 2003 (UK) ss 11-14, 79-82.
[106] In relation to part 1 states, that is consistent with art 9 of the 14 October 2002 protocol to the 2000 Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, which provides that no offence may be regarded as a political offence as between member states. There is provision for member states to derogate from this principle, but not in relation to defined terrorist offences. However, under the UK Act the political offence exception has been discarded generally.
[107] See s 198 of the UK Act.
[108] See ss 15(6), 21(6)(f)(iv) of the Act and, in relation thereto, United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165.
[109] Under the requirement to establish a prima facie case, there must be evidence that would, if uncontradicted, be sufficient to prove each of the elements of the offence beyond reasonable doubt, whereas probable cause requires only reasonable grounds for belief of guilt or reasonable probability of guilt: see Stewart v Abraham [2001] USCA3 263; 275 F 3d 220, 229-230 (3rd Cir 2001) (compare per McKee J at 239); R v Debot (1986) 30 CCC (3d) 207, 219 (Ont CA), (1989) 52 CCC (3d) 193, 213 (SC Canada); R v Thon [1991] BCJ No 205 (BCSC); R v Chan (2001) BCSC 831, [22]; N Tompsett, ‘Necessary for Justice: Rearrests in Pennsylvania and the Fourth Amendment’ (2003) 76 Temple Law Review 921.
[110] Artukovic v Rison [1986] USCA9 264; 784 F 2d 1354 (9th Cir 1986); Emami v United States District Court for the Northern District of California 834 F 2d 1354 (9th Cir 1986); Matter of the Extradition of Cervantes 268 F Supp 2d 758 (SD Tex 2003); Matter of Extradition of Strunk 293 F Supp 2d 1117 (ED Cal 2003); Federal Republic of Germany v Ebke [2001] NTSC 17, [31] (SC Northwest Territories).
[111] In relation to that provision see Todhunter v Attorney-General (Cth) [1994] FCA 1238; (1994) 52 FCR 228, 251-52; Todhunter v United States of America [1995] FCA 1198; (1995) 57 FCR 70.
[112] See above n 61 and related text.
[113] Matter of the Extradition of Cervantes 268 F Supp 2d 758, 772 (SD Tex 2003). See also Matter of Extradition of Strunk 293 F Supp 2d 1117 (ED Cal 2003). For the purposes of Australian law, the effect of s 19(5) would be to exclude evidence of an alibi: see Todhunter v Attorney-General (Cth) [1994] FCA 1238; (1994) 52 FCR 228, 250.
[114] See, eg Glucksman v Henkel [1911] USSC 112; 221 US 508, 512 (1911) per Justice Holmes; Re Extradition of Howard [1993] USCA1 337; 996 F 2d 1320, 1329 (1st Cir 1993).
[115] Shapiro v Ferrandina [1973] USCA2 215; 478 F 2d 894 (2nd Cir 1973).
[116] [1993] USCA11 1121; 993 F 2d 824, 829-30 (11th Cir 1993). In that case it was also stated: ‘Although the rule of non-inquiry is not without its critics, it has been subject to assault only in dicta’: ibid 830, fn 10.
[117] GA Res 39/46 (93rd plen meeting) 10 December 1984 A/Res/39/.
[118] Corenjo-Barreto v Seifert 218 F 3d 1004 (9th Cir 2000); Barapind v Reno [2000] USCA9 422; 225 F 3d 1100, 1106 (9th Cir 2000). In Corenjo-Barreto, it was said that as the Convention had been implemented through legislation, jurisdiction arose under the Administrative Procedure Act. It has also been suggested that jurisdiction arises because of the ‘pre-existing, constitutionally-enshrined authority of a federal court to grant a writ of habeas corpus when a treaty is violated’: see In re Extradition of Mironescu 296 F Supp 2d 632, 636-37 (MDNC 2003).
[119] See above n 110 and related text.
[120] See Joint Standing Committee on Treaties Report 40, above n 3, 36, 38, 40.
[121] Ibid 53-54.
[122] Ibid 30.
[123] Ibid.
[124] [2001] FCA 427; (2001) 108 FCR 311.
[125] [1999] FCA 1344; (1999) 96 FCR 290, 295. See, also, Timar v Republic of Hungry (Unreported, Federal Court of Australia, Weinberg J, 5 November 1999); Joint Standing Committee on Treaties Report 40, above n 3, 30.
[126] Ibid 41-42.
[127] Ibid 43, 47.
[128] Ibid 42.
[129] Ibid 43.
[130] Ibid.
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