Commonwealth Numbered Regulations - Explanatory Statements

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EXTRADITION (EL SALVADOR) REGULATIONS 2017 (F2017L01581)

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Justice

Extradition Act 1988

Extradition (El Salvador) Regulations 2017

The Extradition Act 1998 (the Act) provides the legislative basis for Australia's extradition processes. It allows Australia to receive extradition requests from countries that are declared to be an 'extradition country' under the Act, and facilitates the making of requests for extradition by Australia to other countries.

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

Section 5 of the Act defines an 'extradition country' to include a country that is declared by the regulations to be an extradition country. Paragraph 11(1)(b) of the Act provides that the regulations may make provision for the application of the Act in relation to a specified extradition country subject to certain limitations, conditions, exceptions or qualifications. 

The Extradition (El Salvador) Regulations 2017 (the Regulations) declare El Salvador as an extradition country under the Act. Australia's extradition relationship with El Salvador is currently governed by the Treaty between the United Kingdom of Great Britain and Ireland and El Salvador for the Mutual Surrender of Fugitive Criminals, signed at Paris on 23 June 1881 (the Treaty). Australia inherited the Treaty when it obtained its independent status as a Constitutional Monarchy. Australia is seeking to modernise its extradition relationship with El Salvador. This ensures that Australia is able to extradite individuals for a greater array of offences, apply the modern evidence standard applicable under the Act and extradite nationals.

Paragraph 17(2)(a) of the Act requires that a person on remand under section 15 of the Act must be brought before a magistrate or eligible Federal Circuit Court judge 45 days after the person was arrested if a request for his or her extradition has not been received. The relevant judicial officer must then determine whether that person should be released. Subsection 11(2) of the Act states that the reference to limitations, conditions, exceptions or qualifications in subsections 11(1) and 11(1A) includes modification to the number of days specified in paragraph 17(2)(a). The Regulations modify the standard period to 60 days allowing a reasonable period of time for an extradition request to be received from El Salvador in relation to a particular person. Modification to apply a 60 day period is common and has been included, for example, in regulations applying the Act to Croatia, Bosnia & Herzegovina and the Solomon Islands.

Extradition requests made pursuant to the Regulations are subject to the various safeguards set out in the Act. These safeguards ensure that any extradition request is considered in accordance with Australia's international obligations. For example, extradition will not be permitted where the person sought may be sentenced to death for the offence, unless the requesting party undertakes that the death penalty will not be imposed or, if imposed, will not be carried out; where there are substantial grounds for believing the person has been or will be subjected to torture or other cruel, inhuman or humiliating treatment or punishment; where the person may be discriminated against on specific grounds (such as race, sex, language or religion); and where the offence is a political or a military offence.

The Regulations also allow a number of discretionary grounds for refusal, including where a request would be incompatible with humanitarian considerations in view of that person's age, health or other personal circumstances. Additionally, the Regulations allow the
Attorney-General to retain a broad discretion to refuse any extradition request.

Consultation outside the Australian Government was not undertaken for the Regulations as they relate to criminal justice and law enforcement matters. Additionally, the Regulations do not have direct, or substantial indirect, effects on business, nor do they restrict competition.

The Office of Best Practice Regulation has advised that a Regulation Impact Statement is not required.

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

The Regulations commence on the day after they are registered with the Federal Register of Legislation.

Details of the Regulations are set out in the Attachment.

Authority: Section 55 of the Extradition Act 1988

ATTACHMENT

Details of the Extradition (El Salvador) Regulations 2017

Section 1 - Name of the Regulations

This section provides that the title of the Regulations is the Extradition (El Salvador) Regulations 2017.

Section 2 - Commencement

This section provides that the Regulations commence on the day after they are registered.

Section 3 - Authority

This section specifies that the Regulations are made under the Extradition Act 1988.

Section 4 - Definitions

This section provides that in the Regulations the word Act means the Extradition Act 1988.

Section 5 - Declaration of El Salvador as an extradition country

This section provides that for the purposes of paragraph (a) of the definition of extradition country in section 5 of the Act, El Salvador is declared to be an extradition country. 

Section 6 - Application of Act

This section provides that the Extradition Act 1988 applies to El Salvador subject to the modification of the period nominated in paragraph 17(2)(a) from 45 days to 60 days.

Statement of Compatibility with Human Rights

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

Extradition (El Salvador) Regulations 2017

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

Overview of the legislative instrument

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

Australia's extradition relationship with El Salvador is currently governed at domestic law by the Treaty between the United Kingdom of Great Britain and Ireland and El Salvador for the Mutual Surrender of Fugitive Criminals 1883 (the Treaty). Australia inherited the Treaty when it obtained its independent status as a Constitutional Monarchy.

The legislative instrument declares El Salvador as an 'extradition country' under paragraph (a) of the definition of extradition country in section 5 of the Extradition Act. This will modernise the current extradition relationship between Australia and El Salvador by enabling extradition requests to be considered on the basis of the Extradition Act and relevant regulations rather than the Treaty.

Human rights implications

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

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

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

*         right to life;

*         right to a fair hearing and fair trial;

*         right to liberty; and

*         right to equality and non-discrimination.

Australia's extradition regime contains a number of measures that ensure Australia meets both international criminal justice obligations and human rights obligations. The Extradition Act contains a number of mandatory requirements that must be met before Australia can make or receive an extradition request. Australia considers each individual extradition request on a case-by-case basis in light of its domestic legislative framework as well as international obligations.

The extradition process

The extradition process consists of three broad stages, and the Extradition Act requires consideration of safeguards at all three stages. First, the Attorney-General (the decision-maker) has a discretion under section 16 of the Extradition Act whether to accept an extradition request. The decision-maker can only accept an extradition request, if he or she is of the opinion that the person sought is an extraditable person in relation to the extradition country. A person is an extraditable person if, there is a warrant in force in the requesting country for their arrest or, where the person has been convicted, the requesting country either intends to sentence that person, or if they have been sentenced, the whole or part of their sentence remains outstanding. In addition, the relevant offence must be an extradition offence, and the person must be believed to be outside of the country making the extradition request.

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

*         the necessary documents are produced;

*         any additional requirements imposed by regulations are met;

*         the magistrate or Judge is satisfied that the person's alleged conduct amounts to an offence in both countries; and

*         the magistrate or Judge is satisfied there are no substantial grounds for believing there is an 'extradition objection.'

Section 7 of the Extradition Act provides that an extradition objection arises where:

*         the person is sought for a political offence in relation to the extradition country; or

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

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

*         the conduct constituting the offence for which the person is sought constitutes a military offence, but not a criminal offence; or

*         the offence for which the person is sought is an offence for which they have been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or have undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence (a double jeopardy ground of refusal).

Finally, if the person is found eligible for surrender, then the decision-maker must make a determination whether the person should be surrendered under section 22 of the Extradition Act. A person must not be surrendered where:

*         there is an extradition objection in relation to the offence; or

*         there are substantial grounds for believing that, if surrendered, the person would be in danger of being subjected to torture; or

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

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

*         the person will not be tried for the offence; or

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

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

The decision-maker also has a broad discretion under subsection 22(f) of the Extradition Act to refuse surrender.

At this stage of the extradition process, the person subject to extradition has the opportunity to make representations regarding any matter that they consider relevant to the decision-maker's determination, including human rights concerns. In circumstances where a person believes that human rights concerns were not adequately considered in the extradition process, they may seek review under the Extradition Act or under section 39B of the Judiciary Act 1903 and section 75(v) of the Constitution.

The specific human rights engaged by this legislative instrument are discussed below.

Prohibition against torture, cruel, inhumane and degrading treatment

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

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

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

It is open to the decision-maker to consider, where appropriate, whether ongoing monitoring of an extradited individual's prosecution, sentence, and welfare should be a condition of the extradition. It is also open to the person who is the subject of an extradition request to challenge decisions at each stage of the extradition proceedings.

This legislative instrument is consistent with a person's right in respect of prohibition against torture, cruel, inhuman, and degrading treatment.

Right to life

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

The Extradition Act reflects Australia's non-refoulement obligations and is consistent with the Australian Government's longstanding opposition to the death penalty. Paragraph 22(3)(c) of the Extradition Act requires an extradition request to be refused where the offence is punishable by a penalty of death, unless an undertaking has been provided that the person will not be tried for that offence or, if tried, the death penalty will not be imposed; or, if the death penalty is imposed, it will not be carried out.

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

Given the public nature of extradition, the Australian Government would most likely be aware of a breach of a death penalty undertaking. Australia monitors Australian citizens who have been extradited through its consular network and it is also open to the decision-maker to consider, where appropriate, whether ongoing monitoring of an extradited individual's prosecution, sentence and welfare should be a specific condition of the extradition.

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

This legislative instrument is consistent with the right to life under the ICCPR and the Second Optional Protocol to the ICCPR.

Right to a fair hearing and fair trial

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

The Australian Government's position is that Article 14 of the ICCPR does not contain non-refoulement obligations. However, the Extradition Act operates in a way that enables the decision-maker to consider humanitarian considerations such as a right to a fair trial in deciding whether to surrender a person. Section 7(e) of the Extradition Act includes a double jeopardy ground of refusal. A person cannot be extradited if they have been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or have undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct that constitutes the extradition offence. This consideration is taken into account at the section 19 (eligibility hearing before a magistrate) stage of the extradition process.

Paragraph 22(3)(f) of the Extradition Act contains a general discretion to refuse surrender, which enables the decision-maker to consider human rights concerns,  which, could include whether an extradited individual would have access to a fair trial. Relevant considerations may include the extent to which an individual would receive appropriate procedural guarantees in a criminal trial in the country to which he or she is being extradited. In accordance with the principle of procedural fairness, the person subject to extradition also has the opportunity to make representations regarding any human rights concerns.

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

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

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

Right to liberty

Article 9(1) of the ICCPR protects the right to freedom from arbitrary detention. The use of the term 'arbitrary' means that the detention, in all the circumstances, must be reasonable, necessary and proportionate to the end that is sought. Article 12 of the ICCPR provides that everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement. This right may be limited under article 12(3) where the limitation is provided by law, and is necessary to protect national security, public order, public health or morals or the rights and freedoms of others.

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

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

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

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

To the extent that this legislative instrument limits the right to liberty, it does so in a way that is reasonable and proportionate.

Right to equality and non-discrimination

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

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

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

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

The person subject to the extradition has an opportunity to make representations to the decision-maker regarding all of the protected attributes in Article 26 of the ICCPR.

This legislative instrument is consistent with the right to equality and non-discrimination.

Conclusion on this instrument and human rights implications

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