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Thursday, 9 February 2017
Page: 561

Senator McALLISTER (New South WalesDeputy Opposition Whip in the Senate) (18:15): I rise to speak on Report 167 of the Joint Standing Committee on Treaties. The report deals with a number of treaties, but I intend to focus my remarks this evening on the extradition treaty with China.

Although Labor members support the intent of some of the committee's recommendations regarding the extradition treaty with China, we cannot endorse them. The majority report makes a number of recommendations aimed at protecting the human rights of extradited persons. However, these recommendations do not fully address the serious reservations that the committee itself has expressed in the majority report. Accordingly, Labor members submitted a dissenting report indicating we do not believe binding treaty action should be taken at this time.

Labor recognises the value of extradition treaties, which includes combating crime and acting as an instrument of international relations. Australia has ratified bilateral extradition treaties with 39 countries. In coming years, this chamber will no doubt consider more. In our increasingly globalised world, it is in Australia's interest to build robust and transparent extradition relationships—relationships that prevent individuals exploiting national boundaries to escape justice.

However, extradition also enlivens serious questions of human rights. When Australia surrenders a person to another nation, we are placing faith in the adequacy and propriety of their criminal justice system. The committee heard evidence that Australia was responsible under international law for human rights violations suffered by a person once extradited. Perhaps more significantly, as the committee has previously noted:

Australia has a moral obligation to protect the human rights of extradited persons …

Australia's ability to do so depends on the interaction between our extradition framework and the specific terms of any extradition treaty. Labor members have concerns about that interaction in the current case. Submitters, including the Law Council of Australia, raised concerns in their evidence about the limitations of the Commonwealth Extradition Act. These include concerns about limited protections for the right to a fair trial, limited evidentiary thresholds for determining an extradition request, the definition of a political offence, insufficient protections for children and inadequate monitoring of the outcomes of an extradition. These concerns are not new, but they take on a particular potency in the context of this present treaty.

China has not ratified the International Covenant on Civil and Political Rights. In the majority report, it states:

The Committee cannot dismiss concerns over the lack of transparency in the Chinese justice system, allegations of the ill-treatment and torture of prisoners, and the continuing imposition of the death penalty.

Despite this, the treaty omits a common safeguard that allows for Australia to refuse extradition where it would be unjust or oppressive. The committee heard evidence that the absence of this provision significantly impedes Australia's ability to respond to the risks so explicitly identified in the committee's main report. In doing so, this treaty diverges from 10 of our other bilateral extradition treaties, as well as the Extradition (Commonwealth Countries) Regulations, which cover fifty Commonwealth countries. Taken together, the deficiencies in the treaty with China and in Australia's legislative framework for extradition raise concern for Labor members.

In 2011, the House Standing Committee on Social Policy and Legal Affairs inquired into a series of amendments made at that time to our extradition legislation. That committee recommended that the act be subject to a review by the Attorney-General's Department in three years time. The committee has received no evidence that this review took place. Since the passage of that amending legislation five years ago, Australia's network of extradition treaties has grown even further. We now have extradition arrangements with a large range of countries whose legal systems differ in material ways from our own. In the last five years, extradition treaties with India, Vietnam, Uruguay and the United Arab Emirates have entered into force.

Labor members consider that it is time for a proper review of Australia's extradition arrangements. As such, we recommend that binding treaty action for this treaty be delayed until after an independent review of the Extradition Act 1988 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. I seek leave to continue my remarks later.

Leave granted; debate adjourned.