Explainer: why the government 'pulled' Australia's extradition treaty with China

The federal government today announced it will not proceed with the ratification of an extradition treaty with China. This followed strong indications that the Senate would block it from coming into force.

The treaty contains most of the usual protections against anyone being extradited to China where their human rights would be violated. But an important omission is a guarantee that extradition would not be approved when it would be “unjust or oppressive”.

This failure to implement puts Australia at a significant disadvantage. The usual procedures for extradition between countries with substantial and complex bilateral relations will now not be available.

Background to the treaty

The treaty was concluded in 2007. Under the standard procedure for ratification, the government submitted the treaty to the Joint Standing Committee on Treaties, which recommended its ratification.

However, the committee made several recommendations for better human rights protections – not all of which the government accepted.

A dissenting report by the committee’s Labor MPs recommended that ratification be delayed until after an independent review of the Extradition Act:

… to ensure that Australia’s extradition system continues to be consistent with community expectations and international legal obligations regarding the rule of law and human rights.

The government did not accept that recommendation on the grounds that the act had been subject to several reviews in recent years.

There has been some confusion over what the Senate would actually have done had the government not pulled the treaty. The Senate cannot prevent ratification, which is entirely a matter for the government. The Senate’s relevant power is that it can disallow regulations.

Independent Senator Cory Bernardi had given notice of a motion to disallow the regulations approved by the governor-general that would have added China as “an extradition country” under the Extradition Act. This would have meant no extradition to China could take place under the treaty.

The government’s decision to withdraw the treaty apparently means it will not proceed to ratification. It recognised it could not be implemented.

What are the objections to the treaty?

The objections to the treaty are mostly based on the Chinese legal system’s deficiencies.

The Law Council of Australia has said that China:

… does not act in accordance with procedural fairness and rule of law standards in criminal proceedings.

And political theorist Francis Fukuyama wrote last year that:

China does not have true rule of law because there is no independent judicial system.

The treaty does include the standard provisions that extradition would not take place where:

• the offence is political;

• the person may have been prosecuted on discriminatory grounds (including race, religion, nationality and political opinion);

• the person has already been convicted or punished (double jeopardy);

• the offence is a military offence only; or

• if transferred, the prisoner was likely to suffer torture or face the death penalty.

The Australian government also emphasised that the Extradition Act contains a general discretion to refuse surrender. This enables consideration by the decision-maker (the attorney-general or the justice minister) of human rights concerns, including whether an extradited person would have access to a fair trial.

However, the Law Council of Australia has assessed that the assurances regarding this right provided inadequate protection. This is because they relied on the discretion of the decision-makers in each country, and the process could be “influenced by a wide range of factors”.

The treaty contains a discretionary ground for refusal of an extradition request where extradition would be:

… incompatible with humanitarian considerations in view of that person’s age, health or other personal circumstances.

However, the treaty did not add to this provision the words “unjust or oppressive”, which are contained in ten other Australian bilateral extradition treaties. The attorney-general’s department was unable to explain to the parliamentary committee why these words had not been included. It stressed that each extradition treaty is unique.

The decision not to proceed with the extradition treaty creates an anomalous situation in which Australia does not have bilateral extradition arrangements with its largest two-way trading partner in goods and services. The two-way movement of students, tourists and businesspeople is very large. It is bound to give rise to situations in which a valid request for extradition may be made by either Australia or China.

An extradition agreement is not essential to responding to an extradition request, which can be handled ad hoc. But there is now no mechanism with appropriate safeguards to mandate how such a request should be dealt with.