Discretion is the Better Part of Treaty: An Analysis of the China-Australia Extradition Treaty

By Grant Kynaston and Harry Rogers (SCIL Interns)
On September 6, 2007, the Attorney-General at the time, Philip Ruddock, signed the Treaty on Extradition between Australia and the People’s Republic of China (“the Treaty”). Almost ten years later, it is still not in force. On March 28, 2017, following its latest attempt to secure its ratification, the Federal Government was compelled to withdraw the Treaty from parliamentary consideration, after it became clear that the Senate was likely to disallow regulations necessary for its domestic implementation. Nonetheless, the Government remains committed to its ratification: until the Treaty enters into force, Australia will continue to lack a clear framework for dealing with those extradition requests from China that do not fall under existing multilateral conventions to which both countries are party. However, it is argued that the Treaty, as it stands, lacks sufficient protections against unjust extraditions, and the Government’s counter-argument, that Ministerial discretion provides a final veto on extradition requests, is questionable in its efficacy under Australian law.

Article 23(1) of the Treaty provides that it will enter into force after an exchange of diplomatic notes confirming that both parties have taken all necessary steps for the Treaty to be effective. In addition to the usual procedures for tabling a treaty in Parliament,1 these necessary steps include the implementation of regulations under the Extradition Act 1988 (Cth) (“the Act”) to add China as “an extradition country” for the purposes of that Act. The relevant regulations – the Extradition (People’s Republic of China) Regulations 2017 (Cth) (no longer in force) – were made on 9 February, 2017; per s 11(1)(a) of the Act, they stated that the Act applies in relation to China subject to the exceptions and qualifications necessary to give effect to the Treaty, a copy of which is set out in the regulations themselves. These regulations proved to be a sticking point: an unlikely coalition of Labor, the Greens, the Nick Xenophon Team, and Cory Bernardi threatened to disallow them and so managed to force the Government to pull the Treaty, even though the Senate has no formal role in treaty ratification.
Although they came from disparate quarters – MPs, Senators, Amnesty International, and the Law Council of Australia, to name a few – the main objections to the proposed Treaty were similar: China’s criminal justice system has systemic defects, and the Treaty did not provide sufficient safeguards against them. “[China] has a 99 per cent conviction rate, about 1.3 million people are found guilty, and 1,000 are found not guilty. That doesn’t strike me as an open and transparent legal system,” Senator Bernardi said.
In their dissenting report of December 2016, the Labor members of the Joint Standing Committee on Treaties noted their concern about the lack of safeguards present in the Treaty, and the difficulty involved in ensuring the implementation of those that were present, given the lack of transparency in the Chinese judicial system. Of particular concern to both the Labor members and other commentators was the omission of the right to refuse an extradition request where extradition would be “unjust or oppressive”, a provision present in a large number of Australia’s bilateral extradition treaties. That omission has the effect that systemic failures of justice, as opposed to specific concerns about unfair prejudice, or the possibility of torture or the death penalty, are not grounds on which Australia could legally refuse an extradition request.
The Government remains supportive of the Treaty and intends to find a way to build sufficient support for it to enter into force, even if its nearly ten-year long history does not give much cause for optimism. Indeed, in a recent meeting with Meng Jianzhu, the head of the Chinese Communist Party’s Central Commission for Political and Legal Affairs, on 21 April, 2017, Attorney-General George Brandis and Foreign Minister Julie Bishop reaffirmed their “commitment to pursue ratification of the bilateral extradition treaty”. Given this eagerness, It is important to address the Government’s defense of the proposed Treaty, and the legal issues raised by that defense.
Analysis of the Government’s Defense
In defending the Treaty, the Government focused on the discretionary and mandatory grounds for the refusal of an expedition request, at Articles 3 and 4. However, as noted above, these grounds do not offer protection where an extradition request is “unjust or oppressive”. Thus, in the alternative, the argument was made that the Attorney-General maintained full discretion as to the refusal of a request: s 22(3)(f) of the Act provides that an eligible person may only be surrendered under s 22(2) if “the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence.” In the National Interest Analysis, at [21], the Attorney-General’s Department suggested that this discretion is “additional” to the grounds outlined in the Treaty.
It is generally accepted that the discretion in s 22(3)(f) is broad and largely unfettered. In Riviera v Minister for Justice and Customs (2007) 160 FCR 115, at paragraph [14], the Full Court of the Federal Court of Appeal noted:

“The discretion is unfettered and the Minister may, in the exercise of the discretion, take into account any matters, or no matters, provided that the discretion is exercised in good faith and consistently with the objects, scope and purpose of the Act.”

This reasoning was followed recently by the same Court in Lobban v Minister for Justice (2016) 244 FCR 76 (see paragraph [102]).
Further to this, the Court has held that there is no requirement that this discretion take into account the possibility that a given extradition action may breach Australia’s international obligations. The general proposition stands that an international instrument is not taken as being a part of Australian municipal law unless enacted under legislation, but, in cases of ambiguity, international obligations may serve an interpretative purpose.2 Applying this specifically to s 22(3)(f), the Federal Court of Appeal in Snedden v Minister for Justice of the Commonwealth (2014) 230 FCR 82 noted at paragraph [53] that:

“…the relevant articles of the [Geneva] Conventions are not mandatory relevant considerations in the exercise of the statutory power under s 22(2) of the [Extradition Act 1988] and do not found jurisdictional error… The provisions of the Act do not require the Minister to have regard to those Conventions… nor did they become mandatory relevant considerations because Australia has obligations at international law under those Conventions.” (References omitted)

As such, it does appear that the Minister may exercise discretion to refuse extradition on a ground not provided for under the Treaty (for example, the belief that the accused would not receive a fair trial), as taking international instruments – here, the Treaty – and possible breaches of them into account is not mandatory. This would support the Government’s argument of the existence of a broad Ministerial veto power.
The matter is complicated by the position the proposed Treaty would have in Australian law. Unlike the 1966 International Covenant on Civil and Political Rights (ICCPR), for example (which in Honourable Brendan O’Connor v Adamas (2013) 210 FCR 364 (at paragraph [477]) was held to not create a non-refoulement obligation for Australia), this Treaty would affect the application of the Act in Australian domestic law, under the Extradition (People’s Republic of China) Regulations 2017 and per s 11(1)(a) of the Act. Judicial comment differs on the nature of the effect of s 11 in this regard. The Court in Federal Republic of Germany v Gregory Parker (1998) 84 FCR 323 argues at 328 that s 11 has the effect of making bilateral extradition treaties a part of domestic law. On the other hand, Lindgren J in Oates v Attorney-General for the Commonwealth of Australia (2001) 181 ALR 559 argues at paragraph [16] that the Act applies without direct modification, but subject to those limitations in the Treaty inconsistent with the Act. The former approach is likely to be preferred, as s 11(a), in specifying that the Act is subject to modifications “as are necessary to give effect to a bilateral extradition treaty”, would operate such that provisions in an extradition treaty take effect as though they were provisions of the Act itself; the treaty thus actively modifies Australian domestic law as it applies between two countries.3 Interpreting the Act and the Treaty together under Australian domestic law may then actually delimit the range of discretion legally allowed to the Minister under s 22(3)(f), as refusal outside the scope of the Treaty would bring the Minister into breach of Australian domestic law, thus providing a ground for judicial review for the refusal to extradite. Under this model, the limited range of grounds under the Treaty would provide the only grounds for refusal of an extradition request.
It is difficult to conclusively adjudicate whether the s 22(3)(f) discretion is broad enough to make up for the lack of protections within the Treaty itself: there is reason to suspect that the adoption of treaty provisions into Australian law under s 11 might limit discretion, but higher judicial authority on the specific relationship between the Minister’s discretion and such extradition treaties would be necessary for a more definitive answer. As far as unincorporated international instruments are concerned, however, precedent does support broad discretion: the courts are not concerned by exercises of discretion that bring Australia into breach of international human rights obligations, and it therefore may be safe to assume that discretion breaching an obligation to satisfy an extradition request mandated by treaty would be equally unobjectionable.
However, two issues remain with the Government’s argument itself, even if legally valid. Firstly, an exercise of discretion beyond the grounds found in the Treaty would still constitute a breach of an international obligation owed to China. Such a breach would severely weaken the basis for the Treaty, and provide China with a pretext for exercising similar discretion in response to Australian requests.
Secondly, even if allowable, the Minister’s ability to exercise discretion provides little comfort to those seeking refusal of an extradition request on a ground not found within the Treaty. As noted above, the Minister is not in jurisdictional error if human rights obligations – such as those in Article 14 of the ICCPR – are not considered: as such, there is no guarantee that the Minister would refuse an “unjust or oppressive” extradition request, and there is no domestic judicial remedy that would compel them to do so. In fact, given the political damage of refusal to the relationship between Australia and China, there is a strong incentive not to exercise discretion in this way.
Overall, the argument that flaws in the Treaty may be cured by Ministerial discretion is questionable legally, and in any case, hardly serves as a strong bulwark against unjust extraditions. If the Government is truly concerned about the potential for problematic requests, changes must be made to the Article 3 and 4 grounds within the Treaty, and the reliance on the Minister’s discretion limited.

1 This Treaty was tabled on March 2, 2017.
2 See Polites v Commonwealth (1945) 70 CLR 60; Bradley v Commonwealth (1973) 128 CLR 557, 582; Simsek v MacPhee (1982) 148 CLR 636.
3 Peter Johnston, ‘The incorporation of human rights fair trial standards into Australian extradition law’ (2014) 76 AIAL Forum 20, 22-23.