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Joint Standing Committee on Treaties
24/11/2016
Treaty on Extradition between Australia and The People’s Republic of China

GRAY, Mr Mark, Assistant Secretary, Criminal Casework, Attorney-General's Department

HARMER, Ms Anna, Acting First Assistant Secretary, Criminal Justice Policy and Programs Division, Attorney-General's Department

KELLY, Ms Wendy, Director, Treaties Taskforce, Attorney-General's Department

ROBERTSON, Mr Broughton, Acting Assistant Secretary, East Asia Branch, North Asia Division, Department of Foreign Affairs and Trade

Committee met at 15:17

Treaty on Extradition between Australia and The People's Republic of China

CHAIR ( Mr Robert ): Good afternoon. I declare open this public hearing of the Joint Standing Committee on Treaties. Thank you for coming at short notice; I appreciate it is Thursday afternoon. These are public proceedings, although the committee may agree to a request to have evidence heard in camera or may determine that certain evidence should be heard in camera. I remind all witnesses that, in giving evidence to the committee, they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee. If a witness objects to answering a question, the witness should state the ground upon which the objection is taken and the committee will determine whether it will insist on an answer, having regard to the ground which is claimed. If the committee determines to insist on an answer, a witness may request that the answer be given in camera. Such a request may, of course, also be made at any other time.

For those Commonwealth officers present—I do not believe there are any state officers—I particularly draw your attention to an order of the Senate of 13 May 2009 specifying the process by which a claim of public interest immunity should be raised. Copies are available from the secretariat should you need them.

The extract read as follows—

Public interest immunity claims

That the Senate—

(a) notes that ministers and officers have continued to refuse to provide information to Senate committees without properly raising claims of public interest immunity as required by past resolutions of the Senate;

(b) reaffirms the principles of past resolutions of the Senate by this order, to provide ministers and officers with guidance as to the proper process for raising public interest immunity claims and to consolidate those past resolutions of the Senate;

(c) orders that the following operate as an order of continuing effect:

(1) If:

   (a) a Senate committee, or a senator in the course of proceedings of a committee, requests information or a document from a Commonwealth department or agency; and

   (b) an officer of the department or agency to whom the request is directed believes that it may not be in the public interest to disclose the information or document to the committee, the officer shall state to the committee the ground on which the officer believes that it may not be in the public interest to disclose the information or document to the committee, and specify the harm to the public interest that could result from the disclosure of the information or document.

(2) If, after receiving the officer’s statement under paragraph (1), the committee or the senator requests the officer to refer the question of the disclosure of the information or document to a responsible minister, the officer shall refer that question to the minister.

(3) If a minister, on a reference by an officer under paragraph (2), concludes that it would not be in the public interest to disclose the information or document to the committee, the minister shall provide to the committee a statement of the ground for that conclusion, specifying the harm to the public interest that could result from the disclosure of the information or document.

(4) A minister, in a statement under paragraph (3), shall indicate whether the harm to the public interest that could result from the disclosure of the information or document to the committee could result only from the publication of the information or document by the committee, or could result, equally or in part, from the disclosure of the information or document to the committee as in camera evidence.

(5) If, after considering a statement by a minister provided under paragraph (3), the committee concludes that the statement does not sufficiently justify the withholding of the information or document from the committee, the committee shall report the matter to the Senate.

(6) A decision by a committee not to report a matter to the Senate under paragraph (5) does not prevent a senator from raising the matter in the Senate in accordance with other procedures of the Senate.

(7) A statement that information or a document is not published, or is confidential, or consists of advice to, or internal deliberations of, government, in the absence of specification of the harm to the public interest that could result from the disclosure of the information or document, is not a statement that meets the requirements of paragraph (1) or (4).

(8) If a minister concludes that a statement under paragraph (3) should more appropriately be made by the head of an agency, by reason of the independence of that agency from ministerial direction or control, the minister shall inform the committee of that conclusion and the reason for that conclusion, and shall refer the matter to the head of the agency, who shall then be required to provide a statement in accordance with paragraph (3).

(d) requires the Procedure Committee to review the operation of this order and report to the Senate by 20 August 2009.

( 13 May 2009 J.1941 )

(Extract, Senate Standing Orders)

The Senate has also resolved that an officer of a department of the Commonwealth or a state shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinion on matters of policy and does not preclude questions asking for an explanation of policies or factual questions about when and how policies were adopted. As chair, I will generally pull up any question that asks for an opinion anyway.

In accordance with the committee's resolution of 12 September 2016, this hearing will be broadcast on the parliament's website and the proof and official transcripts of proceedings will be published on the parliament's website. Those present here today are advised that filming and recording are permitted during the hearing. I also remind members of the media who may be present or listening on the web of the need to fairly and accurately report the proceedings of the committee. Please be aware that this hearing is starting as a public hearing. At some point, as chair I may close the public hearing and move into a private discussion if we need to and if the committee so wishes; otherwise it will stay as a public hearing.

I welcome Senator Kitching for her first meeting of the committee. You are very welcome, Senator. Otherwise we will now take evidence on the China extradition agreement.

Welcome. Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and therefore has the same standing as proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard and of course attracts parliamentary privilege. I now invite Ms Harmer to make an opening statement before we proceed to a wider committee discussion.

Ms Harmer : Thank you for the opportunity to appear before you today. I am inclined to make just a short statement because I thought it may be useful, having regard to both the passage of time and the change in membership of the committee since the committee was last considering the proposed treaty. The purpose of the treaty before the committee is to further facilitate extradition arrangements between Australia and China, building on an established law enforcement and international crime cooperation relationship. An effective extradition relationship helps to ensure that criminals cannot evade prosecution or punishment by crossing borders.

Extradition, simply put, is the process by which one country sends a person to another country to face criminal charges or to serve a sentence that has been imposed, and it is the Extradition Act 1988 that provides the legislative basis for extradition in Australia. The committee has previously accepted as an exhibit a flow chart that outlines the extradition process and identifies the different stages at which ministerial and judicial review occur. The department has provided that flow chart to the secretariat, and we have some additional copies if that becomes useful at all during questions today.

CHAIR: Yes, if you could pass that around, please.

Ms Harmer : Under the Extradition Act, Australia can only accept extradition requests from countries that have been declared by regulation to be extradition countries for the purposes of the Extradition Act. Extradition treaties complement the act and set out specific bilateral extradition requirements. All extradition requests are considered on a case-by-case basis, including having regard to the safeguards in the Extradition Act, the applicable treaty and the particular circumstances of the case in question.

At present, Australia has 39 bilateral extradition treaties. The proposed treaty, like other Australian bilateral treaties, contains a range of safeguards, including internationally recognised grounds on which extradition can be refused. As with all bilateral treaties on extradition, the proposed treaty does not automate or in any way guarantee extradition. All requests are considered by the relevant minister on a case-by-case basis and in accordance with the provisions of the treaty and the act.

The proposed treaty with China includes mandatory grounds for refusal which the minister must consider in determining whether or not to extradite a person to China. These include 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 it is imposed, that it will not be carried out. It includes where there are substantial grounds for believing that the person has been or will be subjected to torture or other cruel, inhuman or humiliating treatment or punishment. It includes where the person may be discriminated against on specific grounds such as, for example, their race, sex, language or religion; where the offence is a political or military offence; or where the offence was not an offence in the requesting country at the time it occurred—that is, that it is an offence with retrospective operation.

These grounds of refusal are consistent with the Extradition Act and operate in addition to a number of discretionary grounds for refusal in the proposed treaty. For example, the minister may refuse extradition if it would be incompatible with humanitarian considerations in view of that person's age, health or other personal circumstances. In addition, the proposed treaty provides that it does not affect the obligations of parties under multilateral conventions, including human rights treaties.

The requesting party must provide a statement setting out the conduct alleged against the person for whom extradition is sought as well as an arrest warrant or relevant judicial documents. This is what is known as the no-evidence standard and requires the provision of sufficient information to enable the requested country to determine whether the person is sought for the legitimate purpose of enforcement of the criminal law and to enable the requested country to consider whether there is a basis for refusing the request. This standard is consistent with the Extradition Act and also the United Nations Model Treaty on Extradition.

There are a number of opportunities for review of extradition decisions in Australia. It is open to any person who is a subject of an extradition request to challenge each stage of extradition. This includes judicial review under the Judiciary Act and also the Constitution and reviews of magistrates' decisions under the Extradition Act.

The committee's previous hearings into this treaty have explored the operation of undertakings in extradition practice and also the monitoring of surrendered persons, so I thought I would touch on both of those briefly as well. 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. Issues such as whether a person will receive a fair trial, whether a person may be subject to torture and the treatment to which they would be subject on their surrender to China are all considered by the minister when making a decision on a case-by-case basis in the context of each request.

Article 4(c) of the proposed treaty contains a discretionary ground of 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. The treaty operates in conjunction with the Extradition Act, which includes a general discretion to refuse surrender. This is part of what my colleagues have previously referred to as the 'front-loaded approach' to the consideration of human rights that occurs when assessing each request for extradition. The process enables the minister to request any assurances from the foreign government about treatment and conditions that might apply to an individual upon surrender.

Monitoring of extradited persons is covered in a multifaceted approach. Article 19 of the treaty requires China to provide Australia with information about the proceedings or execution of a sentence against a person extradited under the proposed treaty. Australia monitors Australian citizens who have been extradited through its consular network in accordance with the Vienna Convention on Consular Relations and the agreement on consular relations between Australia and China. The Attorney-General's Department annual report contains information about extradition requests granted by Australia and also details of any breaches known to the department in relation to undertakings on extradited persons.

This proposed treaty is part of the government's commitment to strengthening international crime cooperation arrangements in order to combat serious crimes, including transnational crime. I again thank the committee for the opportunity to provide additional information. We are happy to answer any questions you may have.

CHAIR: Thanks. First of all, can you tell the why this has been hanging around for the last nine years and has not been dealt with?

Ms Harmer : Extradition relationships and the treaties which underpin them are naturally very important relationships, and the process of consideration of a treaty involves a number of steps. It is fair to say that this particular treaty has been the subject of extended consideration by successive governments over an extended period and naturally there is an extended process through which any treaty is considered—including, obviously, this committee. So it has taken some time, and serious consideration has been given to it over a number of years.

CHAIR: Have any of the other 39 treaties taken this long?

Ms Harmer : Treaties take a varied amount of time. Negotiations can be protracted and progress of treaties can be protracted. A number of them have taken some time through consideration by committees and addressing of any concerns that have been raised. It is fair to say that there is no hard and fast rule about how long it may take for a treaty to enter into force.

CHAIR: I accept that, but have any others taken this long?

Ms Harmer : I do not know that I could tell you exactly how long each of them have taken. There are a number that have been protracted. I cannot recall one that has taken quite this long.

Mr WALLACE: I have a series of questions. I may go through some and then come back. The no-evidence rule only allows or provides for a requirement of an arrest warrant and a statement of facts. The Law Council of Australia talk about a preference to winding back the clock to having prima facie evidence and that that would be preferable. What is concerning me, coming from Queensland, is that a person could be extradited based on an arrest warrant and what we would refer to as a QP9, which is a statement of facts by the police, without a shred of evidence to support the charge. It concerns me greatly that a Queensland judicial officer would be required to extradite a prisoner or an accused person to China without a shred of evidence. What do you say about that?

Ms Harmer : What is described as the no-evidence standard of extradition has been a feature of Australian extradition arrangements for almost 30 years now. It has been a feature of the Extradition Act since it was passed in 1988 and is a mechanism to address the differentiation between legal systems across sovereign nations. There are obviously no identical systems and there are multiple different approaches to establishing the evidence for an offence. I think one of the confusions with the no-evidence standard is the suggestion that it may amount to no information on which to assess the request.

Mr WALLACE: No. There is a statement of alleged fact—

Ms Harmer : That is correct.

Mr WALLACE: which is not evidence. You would accept that?

Ms Harmer : That is correct. So there is no requirement to provide evidence. That means there is not a requirement to provide, for example, witness statements or all the prima-facie evidence that supports the case. What is required is sufficient information to enable an assessment of the request—for example, such matters as whether dual criminality has been met, the existence of the arrest warrant and such other information as may be necessary to establish that the person is legitimately sought for the purposes of prosecution for an offence.

Mr WALLACE: Could you just repeat what you said just then?

Ms Harmer : Which part?

Mr WALLACE: Just the last part.

CHAIR: With reference to what, Mr Wallace?

Mr WALLACE: If a judge is being called upon to make a decision as to whether to extradite an accused person on the basis of an alleged statement of fact without any evidence to support the charge whatsoever, how does the judge or magistrate know that they are being requested by the requesting country for the purposes in which it is alleged that they are sought and not some other nefarious means?

Ms Harmer : That comes down to what the functions of the magistrate are under the Extradition Act. The functions of the magistrate are not to determine guilt or innocence—

Mr WALLACE: No, I accept that.

Ms Harmer : they are not to adjudicate on the criminal charge that the other country wishes to bring.

Mr WALLACE: But, if there is an element of having to be satisfied of a prima-facie case, they would; correct? They would have to be satisfied that there is a prima-facie case against the accused person sufficient to satisfy that they should be sent to another country—in this case, China.

Ms Harmer : I may have misunderstood your question, but it sounds like you are asking a hypothetical if the framework specified that they had to be satisfied that there was a prima-facie case then would they also be required to satisfy there is a prima-facie case?

Mr WALLACE: No. At the moment there is a statement of evidence that is required; correct?

Ms Harmer : Yes, a statement of fact.

Mr WALLACE: A statement of fact, sorry. I appreciate you saying that this is in place for other treaties or for other countries—for the other 39 countries.

Ms Harmer : It is in place for 34 of our modern bilateral treaties.

Mr WALLACE: What is concerning me is that some countries do not observe the same rule of law that Australia does. Here we are in a situation where a judge or a judicial officer would be faced with making a decision on whether to extradite someone based on an alleged statement of fact without any evidence whatsoever to support those facts or those allegations. What is concerning me is that the Attorney-General's Department is quite happy with that arrangement.

Ms Harmer : I am not sure that I would put it in terms of a level of satisfaction. What I am describing is established extradition relationships and a statutory arrangement under the Extradition Act, which says that Australian extradition arrangements will operate on the basis of no evidence, which is encapsulated in Australian extradition legislation and encapsulated in 34 of our modern bilateral treaties. It is also included in the UN model standards for extradition. The absence of a prima facie case simply means that the requesting country is not required to prove each element of the offence for which they seek the prosecution or sentence of the person. It does, nevertheless, require the provision of sufficient information to assess that the person is legitimately wanted and to enable consideration of each of the mandatory and discretionary grounds of refusal.

Mr WALLACE: Does this apply to citizens of Australia?

Ms Harmer : The Extradition Act applies equally to citizens and noncitizens alike.

CHAIR: Is there any part of the current extradition treaty with China that is out of step with the model UN rules?

Ms Harmer : Each extradition treaty naturally, as a bilateral arrangement, varies in its terms. There are distinctions in both language and formulation of particular articles, but I would say that the China-Australia proposed treaty is broadly consistent with language that we have used in other Australian bilateral treaties, but there are, naturally, variations.

Mr WALLACE: You talked about the mandatory grounds for refusal, one of which was the inhumane treatment of the prisoner. Is that correct?

Ms Harmer : Yes.

Mr WALLACE: How do we know that they may be subject to inhumane treatment, and based on what standards—ours or theirs?

Ms Harmer : In considering a request, the minister would have regard to the extent to which there is a risk that the person may be subject to cruel, inhuman or humiliating treatment. In doing so, we would take advice from a variety of sources to assess that. That would include, for example, information from our Foreign Affairs representatives who might provide us with advice on the operation of systems within China. It would include information and reports from credible sources, including non-government organisations and independent reviews. It would also include the information that the subject of the request, or their representative, may put in arguing that particular ground of refusal and any evidence or material that they would wish to draw to the decision maker's attention in that regard.

Mr WALLACE: In reality, is it the judicial officer or is it the Attorney-General who is making a decision based on the mandatory grounds of refusal?

Ms Harmer : There are a number of decision points within the extradition process, and that is probably why we have provided that flowchart—there are a number of decision points at which the person who is subject to the request may seek to review particular decisions. There is a decision by the minister at the beginning of the process on whether or not to accept the request from the country, and that involves various considerations. There are then arrest and review stages, but, ultimately, the decision to surrender a person to the requesting country is made by the relevant minister. The minister for the portfolio is obviously the Attorney-General, but, under the division of responsibilities, it is typically the Minister for Justice who makes the decision.

Mr WALLACE: Not a judicial officer?

Ms Harmer : The judicial officer has a role in reviewing any decisions that are made in the judicial review, but, no, it is not: it is the minister. Extradition is an executive process; it is an administrative process rather than a criminal justice process.

Mr WALLACE: So it is totally different to what happens intra Australia.

Ms Harmer : I am not sure that I could draw direct comparisons. The process within Australia is naturally much less complex than that between nations, and I am not sure that I would be able to give accurate advice to the committee on that point.

Mr WALLACE: When considering the mandatory grounds for refusal and considering whether the prisoner would be subject to inhumane treatment, who would the minister receive advice from?

Ms Harmer : The Attorney-General's Department is Australia's central authority for extradition. We have a team that provides advice on international crime cooperation broadly, including extradition, mutual assistance and international transfer of prisoners. That team provides advice to the minister in making any determinations that he is required to make under the Extradition Act.

Mr WALLACE: How is that intelligence or that information gathered? Do we know that this particular prisoner is going to be incarcerated or held on remand in a particular facility? Does it get that specific? Do we know that that specific facility is adequate or up to the task by our standards, not the foreign countries?

Ms Harmer : It, absolutely, can get that detailed. We would take advice from a variety of sources. We would take advice from those people who have information on the particular position of treatment of prisoners in China, whether that be credible reports, previous decisions or advice from our Foreign Affairs counterparts. We take into account a range of information, including specific issues as to treatment.

One thing that I would add is that you mentioned the particular facility, for example. Extradition is decided on a case-by-case basis, and so the particular circumstances that a person will face will naturally vary according to the offence with which they are charged, the region in which they are charged et cetera. It is a case-by-case consideration. That will affect the nature of the advice that we receive, but it certainly can be very detailed.

Senator McALLISTER: You mentioned, I think, Ms Harmer, that information needs to be sufficient to enable consideration of the mandatory and discretionary grounds for refusal and that that is a built-in feature of the decision-making process. Is that the implication of your evidence?

Ms Harmer : The Extradition Act sets out a range of matters to which the decision-makers must turn their mind, and those vary depending on the stage at which you are up to in the extradition process. I could take the committee through it, but it could get complex, and we could get into quite a lot of detail quite quickly. But certainly at the acceptance-of-the-request stage there are a number of matters that the minister would consider, and at the surrender stage there are a number of additional matters that the minister must consider. But in terms of the no-evidence threshold that I have described, the treaty specifies the range of documents which must be provided, and the intent of that article is to achieve the provision of sufficient information to be able to assess those matters.

Senator McALLISTER: Looking broadly, the idea of extradition really is that we assert a comity between the Australian system of justice and a partner country. Is that a fair assessment of the fundamental idea of extradition?

Ms Harmer : The fundamental idea of extradition is to ensure that criminals are not able to evade the justice process by simply seeking to cross borders. There are fundamental differences between justice processes, and both the extradition system and the mutual assistance system are designed to ensure that justice is not defeated by the mere existence of borders.

Senator McALLISTER: Justice has a number of dimensions, obviously. One of the things we have been asked to consider by a number of submissions and witnesses is the ability of other justice systems to deliver a fair trial. There has been very direct evidence from a range of witnesses that that could not be secured in the case of this treaty. The assertion from our witnesses is that neither the mandatory nor the discretionary grounds for refusal include the option to refuse on the basis that the person in question may not receive a fair trial. Your evidence earlier was different to that. Can you explain to me what the legal basis is for your view that whether or not the individual would receive a fair trial is a ground for refusal.

Ms Harmer : The extradition treaty would operate in conjunction with the Extradition Act. The extradition treaty itself has a ground of refusal in respect of incompatibility with humanitarian consideration in view of the person's personal circumstances. In addition, the Extradition Act contains a general discretion to refuse extradition, in which the minister may have regard to any relevant circumstances. Collectively, those would operate together to permit the minister to consider trial arrangements, which would legitimately be a relevant consideration in determining whether or not to surrender a person and would permit the minister to have regard to the extent to which a fair trial is available in the circumstances of that particular person.

Senator McALLISTER: The Law Council put the view to this committee that Australia is prohibited under the International Covenant on Civil and Political Rights from returning someone to face a situation in which there might be a fundamental denial of fair trial rights. Is that your understanding of the implications of the ICCPR?

Ms Harmer : No, that is not my understanding of the implications of the ICCPR. The ICCPR imposes particular non-refoulement obligations in relation to certain fundamental rights. It does not create a non-refoulement obligation in respect of a fair trial. But I think the point that I would make there is that, in any event, the Extradition Act is such that it creates a general discretion for the minister to refuse to surrender a person if, in all of the circumstances, he considers it would not be appropriate to do so. That permits him to take into account a range of relevant considerations, and, in an extradition process in which a person has to be returned to face a trial, that would naturally include consideration of the structure and fairness of that trial.

Senator McALLISTER: Why do you say 'naturally'? It sounds as though it is at the discretion of the decision-maker.

Ms Harmer : The reason I say 'naturally' is that I am taking it from an administrative law and decision-making perspective, in which a decision-maker is permitted to take into account relevant considerations and may not take into account irrelevant considerations. In circumstances where a person is being returned to another country to face trial on a criminal charge, relevant considerations are what charge they are being returned on, what penalty they may face, what process they may face, and I think that permissibly allows the minister to take into account matters that are relevant to the criminal justice process.

Senator McALLISTER: If information was provided by any party in the decision-making process that questions the ability of the person to receive a fair trial, there would be no requirement for the minister to respond to that, or is it your suggestion that the administrative justice principles would require that to be considered by the minister?

Ms Harmer : The minister would receive representations from the person who is subject to the extradition request. The person is afforded, in accordance with procedural fairness obligations, with the opportunity to make any representations or submissions they may wish to on the request and on the question of whether they will be surrendered to the requesting country. Those would be considered by the minister in making any determination, and so, yes, those would be considered.

Senator McALLISTER: You referred earlier to that phrase about humanitarian considerations. In other treaties Australia has there are those similar words, but they also include the words 'unjust' or 'oppressive'. These words are not included in this treaty. Do you know why they have been excluded?

Ms Harmer : I would not say that it is a question of them being excluded so much as each bilateral treaty is unique. No Australian modern bilateral extradition treaty is identical to another. Bilateral treaties are, by their nature, negotiated as between the two parties, and there is a difference in the features of the language of them. What I would say is that the provisions in the proposed treaty between Australia and China contain a range of grounds of refusal that are intended to give effect to our international obligations. These are complemented by the Australian Extradition Act, which is absolutely consistent with our international obligations and permits relevant considerations to be taken into account.

Senator McALLISTER: Jumping back to the question I asked you earlier about whether or not the ICCPR has a non-refoulement obligation that goes to the question of a fair trial, the Law Council thinks that the government's position on this is out of line with other countries and systems of law. Do you accept that Australia is not in line with other countries in considering a fair trial to be a ground?

Ms Harmer : I think in considering that question I would have regard to the various Australian authorities and other authorities that I am aware of that accept that any difference between the particular standards at which human rights are fulfilled and protected in another state does not create particular obligations that—

Senator McALLISTER: I am sure that is legally true, but I suppose from a policy perspective I am interested to understand whether we are out of step with other countries in not considering that the ICCPR obliges us to prevent people from being returned to a country where they cannot face a fair trial.

Ms Harmer : No, I do not believe that is the case.

Senator McALLISTER: You do think that we are in line with other countries in the view we take. Thank you.

Mr DANBY: This is a question that Mr Robertson may want to elaborate on too, Ms Harmer. At the end of the Cold War, then Senator Vanstone was the Attorney-General—

CHAIR: We are going back a while, here!

Mr DANBY: We are, but this is relevant to this extradition treaty. She had a great deal of difficulty in accepting views that extradition requests from countries like Hungary should be taken. However, she eventually accepted them on the basis that Hungary had become a democratic country and had a system of justice, While it was not the same as Australia's, it was somewhere we could extradite people to because there was a system of justice there. The view before that was that we never extradited people to fascist or communist countries because it was implicit that they would not be treated fairly. I have heard your doctrine, Ms Harmer, of crossing borders being the new doctrine that we have to prevent people evading justice. When did we change, from the system of never extraditing people or having arrangements with countries that had these peculiar judicial systems, to the belief that our principal ethical attitude ought to be that we are determined not to allow people to evade justice by being in another jurisdiction?

Ms Harmer : If I may: I am not sure that it is a new concept to suggest that extradition is underpinned by the desire to ensure that criminals are not able to evade prosecution simply by crossing borders. It has underpinned the Extradition Act, which has been in place for almost 30 years. Indeed, extradition obligations are included in a number of multilateral treaties to which both Australia and China are parties and have been for many decades, and which enshrine the concept that there should be a degree of cooperation between countries to ensure those persons who are accused of offences are able to be prosecuted.

In terms of Australia's extradition relationships, the way I would characterise those relationships over the years is: broadly consistent. It has always been the case that Australia is not able to extradite to a country with which it does not have an extradition relationship. The question then becomes: with whom does it have an extradition relationship? And those relationships are underpinned by either multilateral or bilateral treaties, and the legal effect of the Extradition Act has not changed between the period which you described and now.

Mr DANBY: So you do not accept that, in the past, we would never have established extradition treaties with countries that had political systems that we regarded as oppressive?

Ms Harmer : I would say that it is a matter for the government of the day as to whom it chooses to engage in an extradition treaty with and what the appropriate arrangements are in respect of that country. I am not sure that I could characterise it in exactly the terms that you have used.

Mr DANBY: So there is a difference in historical judgement there. All right; let us get more specific with China. It does not appear to have an independent judiciary, and questions surround access to fair trial for individuals. The right to a fair trial is central to Australia's legal system. Are you satisfied that the safeguards in this agreement are enough to guarantee that an individual extradited from Australia to China will receive a fair trial? And, if that is the case, how does the Australian government propose to monitor whether an extradited individual receives a fair trial in China?

Ms Harmer : The first thing that I would say is that extradition relationships in no way require equivalence between justice systems, and, indeed, extradition relationships are required because there is not equivalence between justice systems. So there is no requirement that another country apply the same standards as Australia nor that it reach them.

You have inquired about the safeguards that we apply, and I think I outlined some of those in my opening statement. But ultimately the extradition treaty includes a range of mandatory grounds of refusal which require that we refuse extradition where particular circumstances arise, examples of those being: the death penalty, where there is an absence of an undertaking not to carry that out, or instances in which there is a belief that the person will be subject to torture. There are then a range of discretionary grounds of refusal which enable the decision-maker to turn their mind to other circumstances which may give rise to a particular prejudice and which should preclude extradition. And then of course I have mentioned previously the Extradition Act itself, which contains a general discretion and operates in conjunction with the proposed treaty.

The thing that I would say in relation to extradition is that, as I said at the outset, extradition cases are considered on a case-by-case basis. So what I can confidently tell the committee is that each matter is considered on its particular circumstances. Each extradition decision is individual, and neither the extradition treaty nor the Extradition Act in any way guarantee or automate extradition. Each particular matter will be considered on its circumstances, and the person is permitted to make representations—indeed, is invited to make representations—in respect of any matters they would wish to raise.

Mr DANBY: I had the feeling, from your answer to the previous question, that you did not accept my historical overview of the change in Australia's attitude to extradition to countries with different judicial systems or different justice systems. Are you saying now that Australia takes a value-free attitude towards a country like China, where, if they say they are not going to execute the person, we do not make any judgement about their whole judicial system before we contemplate making such an arrangement, such a treaty with them?

Ms Harmer : Not at all. Each extradition involves consideration of what a person may face in the event that they are extradited to that particular country.

Mr DANBY: But the treaty itself does not make any judgement on the values that Australia sees in the judicial system in China.

Ms Harmer : The treaty itself puts in place particular safeguards in relation to a range of key issues, as well as preserving to Australia the ability to make decisions on a discretionary basis.

CHAIR: Ms Harmer, does that mean if I was Attorney-General—and, Lord, help us all—I could knock back, as per your flow diagram, a request for whatever reason, frankly, I deem fit.

Ms Harmer : Your decision-making would need to be consistent with general administrative law principles. So, in making that determination, it would need to take into account relevant considerations and it would need to not be legally unreasonable. But there is a general discretion, but that general discretion is, nevertheless, confined by broad principles of lawful decision-making.

CHAIR: So if I genuinely had a concern that someone may be harmed because of some anecdotal evidence that had been presented by a not-disinterested third party, would that be in line with generally considered lawful principles?

Ms Harmer : I think a decision-maker in those circumstances would want to turn their minds to the material that they have before them, the adequacy of that material, the issues that it took into account. They would need to weigh that with other material. I think you suggested that the material that the hypothetical decision-maker may have before them might be anecdotal. I would have to say that this is a case where in practice—the material that would be had regard to, we would make inquiries as to its reliability and endeavour to verify that through whatever sources may be available. The decision would need to be reasonable, but it is, as you say, a general discretion.

CHAIR: Would previous practice feed into that decision? If the previous practice of a country had been to deny lawful rights as we would consider them, would that give grounds?

Ms Harmer : The evident practices of a country in how its processes proceed would be a relevant consideration.

Mr WALLACE: Would be irrelevant?

Ms Harmer : Would be relevant. You could take into account previous decisions.

CHAIR: Deputy Chair, have you finished?

Mr DANBY: No. I have one question to the representatives of the foreign affairs department and a second one that will come back to Ms Harmer. We are currently a candidate for the Human Rights Council in the period 2018-20. We have to demonstrate a commitment to human rights and to protect human rights internationally. China's judicial proceedings lack transparency and its human rights record is questioned by a range of experts in the field. Given the concerns being raised regarding China's record regarding procedural fairness, rule of law and standards in criminal proceedings, could the ratification of this agreement damage Australia's reputation and ability to join the Human Rights Council?

Mr Robertson : We think that that might be considered speculation. So, perhaps, I do not need to answer that question.

Mr DANBY: Speculation that we are trying to join the Human Rights Council or speculation how the international community would regard Australia signing an extradition treaty with China?

CHAIR: You are asking Mr Robertson for an opinion. He is entitled to pass it to Ms Harmer as the senior member of the panel.

Senator McALLISTER: Ms Harmer, I wonder: have you provided briefings on that question to the government?

Ms Harmer : I could not say that the Attorney-General's Department has provided briefings on that question. I am not sure, though, that the representatives before you would be well placed to proffer an opinion on the extent to which engagement in a particular bilateral treaty would have an impact on a matter which, ultimately, will be put to a vote, I believe, in relation to the selection of a particular candidate. I am just not sure that that is something that I could usefully offer a view on.

Senator McALLISTER: It is a question of fact, though. Have you briefed the minister?

Ms Harmer : Have I briefed the minister? No, I have not. I am from the Attorney-General's Department. So this is not something on which I have briefed the minister.

Senator McALLISTER: DFAT?

Mr Robertson : The minister is well aware of, and supportive of, ratification of this treaty. And obviously—

CHAIR: Mr Robertson, that was not the question that you were asked. You were asked the question of whether you have briefed the minister on the particular issue that Senator McAllister asked?

Mr DANBY: Has the department—not in person.

CHAIR: Can you rephrase the question, Senator McAllister?

Senator McALLISTER: Yes. Has the department provided briefings to the minister about potential interactions between the treaty and our pursuit of a role on the Human Rights Council?

Mr Robertson : I don't think we have considered that as a likely factor impacting on other countries voting for us as a candidate.

Mr DANBY: The national interest assessment that we have seen says that extradition must be refused if there are 'substantial grounds for believing the person sought has been or will be subjected to torture or cruel, inhuman or humiliating treatment or punishment'. That is in paragraph 10. China's reputation suggests that ill-treatment including torture is widespread. What will be considered 'substantial grounds' by the Australian government in this regard, and how does the Australian government propose to monitor whether an extradited individual has been subjected to ill-treatment?

Ms Harmer : The assessment of whether there are substantial grounds to believe that a person may be subjected to torture will include an analysis of the individual's claims. If they have a reason to believe that they will be subjected to torture, there is typically a basis for that, and so we would assess any claims the individual might make. But we would obviously also have regard to Australia's international obligations and any representations or assurances that are made by the requesting country. So we would have regard to advice from the person that is subject to the request, the country and any additional information that we can obtain about the manner in which that person would be treated, having regard to their particular circumstances.

I think I have previously provided some advice on the question of monitoring. There are a range of mechanisms. Obviously Australia provides consular assistance to its citizens when they wish to receive it. It is a matter of consent as to whether they wish to receive that assistance. Naturally an individual may also raise concerns. An individual who is not from Australia would receive assistance from their own country, and of course a range of non-government organisations and other observers typically make observations about cases.

I should note that the Australian Attorney-General's Department publishes a range of information about the extent to which extradition requests are granted and indeed has published additional information in response to recommendations from this committee. So there is a range of information available to indicate that a person has been extradited and, through that, for the public to be aware that extraditions have occurred.

Mr DANBY: I want to drill down more on one specific area of this. What if there were a Uygur, a Tibetan, a Falun Gong practitioner or a Chinese expatriate who had substantial business interests in Australia who had no ability to prove to you that they were likely to be treated in a cruel, inhuman way under this treaty but the category of person that they constituted had widespread grounds for being concerned about their treatment if they were taken back there? Under the current treaty, unless we had specific evidence beforehand that they would be persecuted, we would send them back?

Ms Harmer : No, that is not the case. It is not the case that the person is required to prove that they would be the subject of torture but rather that there are substantial grounds for believing that the person may be subject to that torture. I think I referenced previously the person's particular circumstances. You have given a number of examples that might be relevant.

Mr DANBY: Categories.

Ms Harmer : If the person is from a particular ethnic group and believes that as a result of that ethnicity they may be likely to be subjected to torture or other ill-treatment, then that would be a representation that they would make. They would say, 'I have these affiliations with this particular group and this political belief, and as a result of those particular beliefs and my personal circumstances there are substantial grounds for believing I will be subjected to this treatment.'

CHAIR: Ms Harmer, in your answer then to the deputy chair you said there would need to be 'substantial grounds', whereas in the analogy I gave you before—in the hypothetical—you indicated that the Attorney-General would simply need to have 'legitimate concerns that were in line with general principles of law'. So is it 'concerns in line with principles of law', or is it 'substantial grounds'?

Ms Harmer : The treaty ground of refusal is that the requested party has substantial grounds for believing that the person has been or will be subjected to torture. The Hansard may remind me if it is not the case, but when I was answering your question earlier I was referring to the general discretion of the minister in decision making—

CHAIR: But that general discretion can be applied in all circumstances, can't it?

Ms Harmer : That is correct, but you have specific and mandatory grounds of refusal. To establish those, there must be substantial grounds for believing that the person is, for example, to be subjected to torture. But then there is a general discretion. That general discretion can take into account all relevant considerations. That is a general discretion that does not have a substantial grounds test.

CHAIR: And is it reasonable to suggest that general discretion is the ultimate catch-all for the minister?

Ms Harmer : It is a broad discretion.

CHAIR: We will take that as the ultimate catch-all.

Mr JOSH WILSON: How many of our existing extradition agreements are with countries that have the death penalty?

Ms Harmer : There are a number. If you will give me a moment, I can give you a list of those who still have the death penalty. Certainly the United States, Malaysia and Indonesia do, if I remember correctly, but there is a reasonable handful.

Mr JOSH WILSON: I understand that by treaty arrangement we cannot and certainly do not interfere with or constrain judicial process in other countries, so we cannot require that someone not be proceeded against for a capital case, and in fact we cannot require that a death sentence not be applied; we simply require that it not be imposed—

Ms Harmer : That it not be carried out.

Mr JOSH WILSON: Has that ever been the case? Have any of those countries that apply the death sentence ever given a death sentence to someone that we have extradited and then not imposed it?

Ms Harmer : Not that I can recall. As you say, the reason for having that particular formulation is to avoid that interference with the judiciary. The judiciary may impose that sentence, but I am not aware of that having occurred.

Mr JOSH WILSON: There are international law experts, and I think some court decisions, that regard a death sentence itself—not the carrying out or the execution—as constituting cruel and unusual punishment and a violation against the international prohibition against torture. Are we confident, as a country that has ratified the Optional Protocol to the Convention against Torture, that allowing someone to go back to a jurisdiction where they might have the death sentence imposed but not carried out would not contravene that?

Ms Harmer : The Australian government has consistently and strongly expressed opposition to both the death penalty and its use across the world, and I think there is a current inquiry that looks into the extent to which Australia can improve its advocacy for the abolition of the death penalty in other countries. We, naturally, look to ensure that our domestic arrangements are absolutely consistent with our international obligations and our consistent opposition to the death penalty, and we are satisfied that our extradition arrangements are consistent with those international obligations.

Mr JOSH WILSON: Will part of the consideration that you just referred to that is happening at the moment include consideration of whether a strong form of advocacy would be to change our extradition act so that we no longer extradite to countries that practice the death penalty?

CHAIR: You are asking Ms Harmer for an opinion.

Mr JOSH WILSON: No, I am asking as a matter of fact whether that consideration that was just referred to is canvassing that topic.

CHAIR: You can ask that.

Ms Harmer : I would say that our consideration of our domestic legislation is aimed at ensuring that our arrangements are consistent with our international obligations. We are satisfied that they are, and that the extent of that obligation is to ensure that no person is extradited to a country and placed in a position where they may be subject to the death penalty.

Mr JOSH WILSON: Do any nations that have comparable legal systems and approaches to international human rights, like the United Kingdom, Canada and the United States, have extradition agreements with China of the kind that we are considering here?

Ms Harmer : The three countries that you have mentioned do not have bilateral extradition arrangements with China. There are, as I mentioned in my opening statement, a number of multilateral conventions to which Australia and China are both parties, and I imagine a number of the countries that you have mentioned are likewise party to those, so there is the possibility of extradition under multilateral conventions to which China and other countries are party.

Mr JOSH WILSON: But as far as a bilateral extradition arrangement, we would be jumping out of the pack, if you put us in a group with the United Kingdom, Canada, the United States, New Zealand and so on?

Ms Harmer : If you define that as the pack, they do not have bilateral arrangements. There are a number of other countries with similar law systems that do have bilateral extradition relationships. There are a number of European countries, I believe—I could give you the names of the European countries on notice—that have bilateral extradition relationships with China, but the three you mentioned do not at this time: France, and I think Spain were another.

Mr JOSH WILSON: France and Spain do?

Ms Harmer : Let me take that on notice and give you that list of countries, but France is certainly one.

Mr Robertson : Spain is another.

CHAIR: Yes, please take it on notice and please get it to the secretariat by Monday morning.

Mr JOSH WILSON: What assessment has been made of the way in which China discloses information about people subject to the death penalty? Going to the question of transparency and confidence—the things that we are being assured will not happen—what investigation is being made of the transparency and disclosure around the application of the death penalty or other kinds of cruel and unusual punishment within China?

Ms Harmer : I think what I would say there is that extradition, like other forms of international cooperation in criminal matters, fundamentally relies on collaboration and comity between countries. It relies on reciprocity in cooperation and the making of any undertakings or the terms of any agreement between countries. It is critically important to the continuation of those relationships that any assurances that are made are abided by to ensure the continuation of that collaboration.

Mr JOSH WILSON: But we know for instance that in the United States, in the last calendar year, a certain number of death sentences were passed and a certain number were imposed. How many death sentences were passed and imposed in China in the last calendar year?

Ms Harmer : In the extradition context we look at things from the beginning of the process and address any death penalty or human rights concerns at the beginning of the process rather than at the end of the process, where that is naturally less effective. The extradition process is premised upon considering at the outset any objections or concerns that may arise in that particular extradition and considering that case, and ensuring that any concerns in that context are addressed, rather than looking at the whole.

Mr JOSH WILSON: I appreciate that, but that is not the question I am asking. If somebody does not know it now, can you take on notice how many death sentences were passed by the Chinese judiciary last year, and how many were imposed.

Mr Robertson : I can comment on that. The fact is we do not know how many are executed in China. There are estimates made. The most recent reliable estimate we have is that in 2014 there were 2,400 people executed, which was more than for the rest of the world combined in that year.

Mr JOSH WILSON: That is a government number, or that is just an estimate?

Mr Robertson : No, that was taken from an NGO—Death Penalty Worldwide—which collects statistics based on reports and newspapers and through other sources.

Mr JOSH WILSON: On that basis, is that really a good basis and an indication of the sharing of information and transparency that we would like to have before we enter into the arrangement that is proposed?

CHAIR: You are asking for an opinion. Please rephrase it.

Mr JOSH WILSON: Do we have an extradition arrangement with any other nation that practises the death penalty where we are unable to have access to such basic information about the way their judicial system applies those kinds of sentences?

Ms Harmer : We have extradition relationships with a number of countries who continue to retain the death penalty and in each of those we have a mechanism to ensure that no person will be extradited if the death penalty is to be imposed unless there is an assurance that if the death penalty is imposed it will not be carried out. We adopt the same practice, which is to ensure that there is a safeguard that if there is the death penalty then that death penalty must be off the table before an extradition can occur. Once there is that assurance, that matter is clearly on the radar and it is very much in the other party's interest to ensure that undertaking is absolutely observed because it is critical to the functioning of international crime cooperation.

Mr JOSH WILSON: With respect, that is not the question I asked and, if it cannot be answered now, I would like it to be taken on notice: of any of the other nations with which we have an extradition agreement who practise the death penalty, are we unable to say how many sentences they passed in the last calendar year and how many were imposed in the last calendar year other than what has been described as the case with China? That is a factual question that I would like to be taken on notice.

CHAIR: Take it on notice, please, Ms Harmer, for Monday morning.

Mr CREWTHER: Thank you, Ms Harmer and your colleagues for your evidence here today. I previously worked on a committal hearing in relation to a murder case committed in Australia by a Chinese national against another Chinese national where the defendant had fled to China just after committing the murder and in which the lack of an extradition treaty with China made it difficult in terms of our ability to have that defendant face trial in Australia. Fortunately, in that case, China had laws to enable that person to be tried in China; however, at the same time, our mutual assistance laws, given in this case in China, meant he would have faced the death penalty under the laws which applied. Our mutual assistance laws meant that we could not provide any information in relation to the case until an undertaking occurred. So the time between the date of the murder and the date the undertaking was eventually given was about two years or so, which, I guess, from the family's point of view was quite hard; however, from another perspective, Australia was very thorough in not giving any information until that undertaking was very clear and proper.

Just relating to that, I am a bit concerned about the extent of the grounds of refusal and the thoroughness of the refusal. I know Mr Wilson and others have raised similar concerns in that regard, particularly in relation to article 3(f). Amnesty International note:

The organisation has grave reservations about the reliability and effectiveness of any such undertakings by the Chinese government. The undertaking should stipulate, unequivocally, 'the death penalty will not be imposed.'

The first question is—and this relates to what Mr Wilson said before about a person even facing a conviction to begin with and whether or not it is carried out—what is to stop that last part of article 3(f) being eliminated; and would that not be of benefit to this treaty to just have it say, as Amnesty International suggest, that the death penalty would not be imposed and just keep it simply at that?

Ms Harmer : The latter part of the paragraph is necessary to address a separation of powers. A requirement that extradition not occur unless the death penalty is not imposed would interfere with the independence of the judiciary. They would then not be able to impose a sentence they consider appropriate; however, the executive is in the position to control the execution of the sentence, and so the latter part of the paragraph provides an opportunity for there to be extradition of persons to face justice whilst ensuring that the death penalty is not applied and by specifying that extradition may occur, provided that, if the sentence is imposed and the court determines that the death penalty is to be applied, that the executive, who would provide the assurance, determines that it will not be carried out.

Mr CREWTHER: The other aspect that Amnesty International raise is that:

Undertakings must be applicable to all branches of power in the requesting state …

And:

If necessary, multiple, complementary statements must be provided by all relevant authorities.

In relation to that same article 3(f)—and I guess, indeed, the other grounds of refusal—is it currently sufficient in order that all branches and levels of government within China that could apply the death penalty would provide that undertaking? Do you think that would be assured if Australia was to enter this treaty?

Ms Harmer : An undertaking is by its nature a government-to-government assurance, so it is not a particular branch of government or subset of it; it is a government-to-government assurance, and by its nature is an obligation that is deliberate and intentional on the part of a national government.

Mr CREWTHER: I mean, for example, that all branches of power in the requesting state as outlined by Amnesty International.

Ms Harmer : That is correct. So I think that the nature of an undertaking, such as they are obtained in extradition practice, is to ensure that the undertaking has a particular quality of assurance on behalf of a government that a death penalty will not be carried out. That is the arrangement that has been adopted in respect of other bilateral treaties with countries with whom we have an extradition relationship, and what is required by the decision maker is to turn their mind to the adequacy of that assurance and the extent to which it gives confidence that it is an assurance that will be abided by and that it is an assurance by the national government, which then ensures that there is appropriate satisfaction that the death penalty will not be carried out.

Mr WALLACE: In relation to 3(a) on your flowchart, you said that the judiciary getting involved was an administrative decision of the Attorney-General.

Ms Harmer : A court may be involved in judicial review but the determinations for extradition are executive. It is a magistrate that issues an arrest warrant.

Mr WALLACE: Yes, but according to your flowchart, in urgent circumstances, assuming if a person was looking to flee the jurisdiction, a magistrate can issue an extradition arrest warrant in response to a provisional arrest request by the Attorney-General's Department. What considerations does a magistrate take into account when considering whether to issue an extradition arrest warrant?

Ms Harmer : A provisional arrest request, as you have said, arises where there may be reason to believe that the person may leave the jurisdiction prior to it being possible to present a full extradition request. In those circumstances the country is required to provide information about the offence that is alleged, the conduct that gives rise to that offence and evidence of a warrant of arrest or otherwise satisfaction that the person is to face a criminal proceeding in the country. That information will be required to be provided to the magistrate, who would then issue a domestic arrest warrant.

Mr WALLACE: So there is no assessment of a prima facie case or anything along those lines?

Ms Harmer : There is no assessment of a prima facie case in either provisional arrest or domestic arrest. Based on discussions we had before, the relevant test is a no-evidence standard, so there is no provision of sworn evidence at any point in the process. The information that is required at provisional arrest stage requires that the requesting country provide sufficient information to be satisfied that the person is wanted for a criminal justice process in the requesting country, provide evidence of the arrest instrument or document that is applicable in their system and provide evidence of the urgency and the basis on which it is necessary to act on the extradition prior to the making of a full extradition request before considering whether to issue a domestic arrest warrant.

I should say, just for the avoidance of any doubt, that provisional arrest in no other way goes around the extradition process—it is an early process where there are circumstances of urgency, and the extradition process then follows and continues to follow the steps set out in the flowchart and entails all of the full review mechanisms and decision making stages and considerations that I alluded to earlier. It simply ensures the ability for arrest before a person flees the jurisdiction if there is reason to believe that that will occur.

Mr WALLACE: Considering our doctrine of separation of powers, what concerns me is, in item 4 of your flowchart, the Attorney-General or the Minister for Justice has a discretion to issue a notice to a magistrate that the request has been received. A magistrate then issues an arrest warrant. So in item 4 the Attorney-General or the Minister for Justice has a discretion to issue a notice—the discretion lies with the Attorney-General or the Minister for Justice to issue a notice to a magistrate that the request has been received. A magistrate then issues an arrest warrant. In item 5, what relevant considerations are there for the magistrate to take into account whether to issue an arrest warrant or not?

Ms Harmer : If I may take it back a step to the Attorney or the minister issuing a notice—that is the stage that we refer to as effectively accepting the extradition request, which is actually a part of the considerations that we describe as frontloading of relevant considerations to determine whether an extradition request should proceed. It is at this stage that the Attorney or minister would review the extent to which the request is for an extradition offence—so that is for something which is punishable by an appropriate penalty, one for which dual criminality exists and that the country that is making the request is indeed an extradition country, so one with whom we have an extradition relationship under the regulations.

There are, indeed, requests that fail at this stage. This ensures that there is an executive consideration as to whether this is a request that Australia can even consider, and should consider. The decision-maker may have regard to the grounds of refusal in the treaty that may arise, and consider them. The magistrate is making a decision to issue an arrest warrant based on the satisfaction that the notice has been issued in accordance with the Extradition Act.

CHAIR: If I am the hypothetical Attorney-General, can I use my general concern power under the treaty at this stage?

Ms Harmer : The general discretion is in section 22, and relates to the surrender determination. A decision-maker, however, may take into account relevant considerations in making their decision, so I would not want to say that the Attorney could not take into account relevant considerations, as that certainly would be the case. The general discretion that I have referred to is a general discretion that, at the time that the surrender determination is being made—so that is at the final stage of the extradition process, which follows the acceptance of the extradition request and the issuance of that notice that we have been speaking about; the issue of an arrest warrant; the arrest and detention of the person; the evaluation of any representations or claims that person may have made and the resolution of any review that that person may have sought. Ultimately—in the event that any of those reviews is unsuccessful—that then proceeds to a surrender determination. It is at that surrender determination stage that the general discretion that we have referred to previously comes in.

Mr WALLACE: I am asking you to reassure me that it is not a rubber stamping between four and five in your flowchart. So the Attorney-General or the Minister for Justice, once they are satisfied—given that it is a discretionary matter—to issue a notice to a magistrate that the request has been received, then the magistrate does not have any—what I am concerned about is the Attorney-General saying, 'Right, Magistrate Bloggs—issue the arrest warrant.'

Ms Harmer : I have to say that, after many years of experience in extradition, nothing in the process could be described as a rubber stamp.

CHAIR: How many instances in the last X amount of time, depending upon your data, has the Attorney said no at step three or four?

Ms Harmer : I could not give you a number without going and doing some statistical analysis, but I am certainly aware of extradition requests that have not been accepted at that notice stage.

Mr WALLACE: Going back to the issue of a fair trial, it would be at least a relevant consideration for the Attorney or the Minister for Justice, when considering whether to extradite the prisoner, as to whether the person would get a fair trial. Correct?

Ms Harmer : I am not sure I heard all the elements of your question, but the extent to which the minister—

Mr WALLACE: Is it a relevant consideration for the Attorney-General or the Minister for Justice, when considering whether to extradite the prisoner, whether the prisoner will get a fair trial in China?

Ms Harmer : I am answering in a very general sense. There are, as I said, multiple stages in the extradition process in which the minister has discretion. As I have said earlier, in circumstances where you are looking at a process for the return of persons to face a trial, a relevant consideration would be the trial that that person is returning to face.

Mr WALLACE: So in circumstances where the Law Council of Australia and Amnesty International have both alleged that there is no independence of the judiciary in China, how can we be satisfied that the person will get a fair trial?

Ms Harmer : I would say that those are comments in relation to a whole. The way the extradition process works is it ensures that it considers the application of a judicial system in respect of a particular person. I think, as other members have alluded to in their questions, that there may be particular circumstances in relation to a person that means they may be more or less likely to be subject to particular prejudices. The extradition process ensures that there are mandatory grounds of refusal in respect of those things which are categorically covered in our international obligations and also provides discretionary grounds of refusal and a general discretion to ensure that all relevant considerations can be taken into account.

Mr WALLACE: I understand that. Well, I sort of understand your answer. But fundamentally if one of the grounds upon which an application for extradition can be refused is on the basis of whether the person will get a fair trial—and there are allegations that China does not have an independent judiciary—how can we be satisfied? How can the Attorney-General or the Minister for Justice be satisfied that the person will get a fair trial?

Ms Harmer : I think what you may be asking is, 'How can the minister be satisfied in respect of a particular matter?' The minister will reach his or her satisfaction in respect of a particular matter based on the particular circumstances of that. If you take, however, the treaty as a whole, the reason we can have satisfaction is that there is a process within it to enable those matters to be adverted to. In particular, the treaty contains a discretionary ground of refusal for any extradition that would be incompatible with humanitarian considerations, having regard to particular circumstances. As I said previously, the minister retains a general discretion with respect of both the acceptance of the request and the ultimate surrender of the person. So it operates at two levels. There are the safeguards on the face of the treaty and the act to ensure that those matters are considered. Then, in respect of a particular person and their particular circumstances, any circumstances they may have that give rise to a particular concern can be drawn to the attention of the decision maker and, in accordance with the rules of procedural fairness, those will need to be considered.

Mr WALLACE: In our treaties with other countries in relation to extradition, is the decision on whether to grant extradition always left to a politician?

Ms Harmer : The surrender of a person is always determined by the minister. That is governed not by the treaty but by the Extradition Act. It is an executive determination under section 22 of the Extradition Act, having regard to particular mandatory and discretionary grounds of refusal which are included in the act. The treaty and the Extradition Act operate in conjunction with each other and complement each other. But the decision-making power is in the Extradition Act.

Mr WALLACE: Do you know how that compares with other countries?

Ms Harmer : It is typically an executive decision. The role of the courts is in the review of decision making. So the courts have a role. You may be familiar with reporting on court proceedings on a number of extradition cases. There have been a number of protracted extradition cases in which persons have sought a review of decisions in respect of their proposed surrender. The courts have a very strong and important role in reviewing the lawfulness of those decisions. The decision for extradition is one for the minister. The courts have a role in reviewing that and its lawfulness. There are a number of matters. There is extensive reporting in the court reporting of the High Court and the Federal Court on extradition decisions.

Mr WALLACE: If Australia was given certain undertakings by the Chinese government that a person will not be subject to the death penalty or, if they are subject to the death penalty, it will not be carried out, given that the Australian government is not able to determine with any degree of accuracy how many people have been sentenced to death as we are relying on a third-party NGO to provide us with figures, and I think Mr Robertson said it was 2,400, how could we as a government be assured that, apart from the fact that an undertaking from one government to another government is very important—I get that; you have said that several times—it will not in fact be carried out and hidden from us?

Ms Harmer : As you said, the undertaking is very important. The undertaking is critically important. It is a key feature and recognised principle of international cooperation that there be the exchange of undertakings at a government-to-government level. I do not think I can emphasise enough how significant the giving of an undertaking in an extradition matter is. It underpins the bilateral crime cooperation relationship. Any breach of an undertaking would be regarded in the most serious terms and would impact not only on the international crime cooperation relationship between countries but on the broader bilateral relationship. A breach would be extraordinarily serious.

In respect of the return of a person for whom there has been an undertaking, I should first of all reiterate the evidence I gave earlier, which is that the department has for a number of years reported on the extent to which it is aware of any breach of undertakings. There are none. We have reported on those undertakings and we have a section in our annual report which reflects on that. In relation to persons who are the subject of an undertaking, there are a range of mechanisms through which it would, I anticipate, very quickly come to attention in the event that there were any breach of an undertaking.

Mr WALLACE: Isn't that what Donald Rumsfeld would call a known unknown? If that information is withheld from you in a foreign gulag, for want of a better term, how is the Australian government going to find out if that sentence was imposed?

CHAIR: Let me rephrase it: what mechanisms does the government use to go about ensuring that things are not withheld from us? Otherwise the question asks for an opinion.

Mr WALLACE: Thank you.

Ms Harmer : As I think I said earlier, in respect of any Australian citizens who may be extradited to another country, with their agreement they are provided with a range of consular services and assistance, including visits, should they so wish. It is the practice of the Australian government—and I believe it was this committee that may have recommended it some time ago—that, where we extradite a foreign national, with the agreement of that person we notify their country of citizenship so they may extend consular services and provide assistance and monitoring. Finally, as I said before, we report publicly, not only on the number of extraditions from Australia but on the countries to which we extradite, and it is through that range of mechanisms that we would anticipate that it would reasonably quickly come to attention in the event that there were a breach.

I should also say that for the continuation of any bilateral crime cooperation relationship—and, indeed, broader bilateral relationships—it is fairly critical that there be an ability to rely on the assurances that have come. It would be quite extraordinary if a country were to breach an undertaking that it had made on a government-to-government basis.

Mr WALLACE: I accept the fact that—

CHAIR: Your idea of the last question and mine are somewhat different, Mr Wallace!

Mr WALLACE: With your indulgence, Chair. I accept the fact that we would as a government ensure that there were proper oversights in place for an Australian citizen. What would concern me—and I am open to hear from you otherwise—is that, apart from alerting a foreign national's government that we have extradited a person to China, isn't that relying upon that foreign national's government to pick up the cudgels and support that person as we would if it was an Australian citizen?

Ms Harmer : Indeed it is. The mechanism that we have is to ensure that, if that person wishes to receive assistance from their country of nationality, we facilitate that.

Mr WALLACE: What if they do not get that assistance from their own country because they do not have any diplomatic relations or because the government is so broke that it cannot afford to do that sort of thing or, in fact, they are at war with that country? We cannot control that.

Ms Harmer : No, and that is why undertakings have a particular status and importance in international crime cooperation relationships. We need to have confidence that those undertakings will be abided by. We are, because of the very nature of an undertaking, confident that China would abide by an undertaking it has given, and we are not aware of it having breached an undertaking that it has given in a like context.

Senator KITCHING: Are there any incidents where someone's nationality has been in dispute between the two treaty partners? For example, we might say that someone is an Australian national but, in fact, perhaps in China they still consider them a national there. I am interested, really, in economic crime or the pursuit perhaps by the Chinese government of people who have committed economic, or what we might term white-collar, crimes. Has there been any incidence of those disputes where perhaps China has not acknowledged someone we might consider an Australian national and has kept them in that country?

CHAIR: Widen the question to any country with whom we have extradition arrangements. The question holds, but are there any instances in any country where we have an extradition where the issue outlined by Senator Kitching stands?

Ms Harmer : I am just wondering how I can answer that in a helpful way. As I said before, the Australian Extradition Act applies regardless of nationality. The concept of nationality does come in where—

Senator KITCHING: I am really referring to article 5 where there is the right to refuse the extradition of nationals.

Ms Harmer : So that is helpful. That particular provision is included because there are a number of countries which may refuse to extradite their nationals. This provision is included in a significant number of bilateral treaties. It ensures that a country can continue to observe any national concerns it may have about extraditing its nationals but may only do so in circumstances where it then agrees to conduct what we call a prosecution in lieu. So that is that nationalities—

Senator KITCHING: Sorry, a prosecution in?

Ms Harmer : A prosecution in lieu. It is a prosecution in lieu of extradition. I think that may have been the matter that was referred to earlier. That is an example of where—I think in that instance extradition is not possible—if a country refuses to extradite on the grounds that a person is a national, the treaty requires that they can only do so in the event that it conducts a prosecution instead.

Mr DANBY: Can you say that again please? You faded out at the end.

CHAIR: The last part was that the country has a prosecution instead.

Ms Harmer : In lieu of. Exactly—yes.

Senator McALLISTER: If I could ask a follow-up, because it goes to the same set of issues about citizenship. I am thinking now about a circumstance where an Australian citizen is extradited properly under the treaty and we then seek to provide consular assistance to that person. Do DFAT have any concerns about their ability to access dual citizens?

CHAIR: If you could just hold for a second. Is that a division?

Unidentified speaker: Yes.

CHAIR: Before we go, I am going to move that we move this inquiry into a subcommittee requiring no more than two people of any party. Can I have someone to move that?

Mr CREWTHER: I will move that.

Mr WALLACE: I second the motion.

CHAIR: Senator McAllister, you have the chair.

Senator McALLISTER: Thank you.

CHAIR: We will be back. Please do not go anywhere. If Senator McAllister runs out of questions, she will simply suspend the committee until I return, which means everyone stays.

ACTING CHAIR ( Senator McAllister ): Thanks very much. There have been reported issues with China refusing to recognising dual citizenship. There was quite some publicity about Gui Minhai, who had dual Swedish and Chinese citizenship who, we understand, was taken into custody in China. Is DFAT concerned about your ability to access Australian-Chinese citizens?

Mr Robertson : We have a consular agreement with China which regulates how decisions are made on the treatment of dual nationals. I will defer to my colleague, but my understanding is that it is not directly relevant to this because extradition would be for a person whose status would have been decided in Australia before they were extradited to China. There would be mutual agreement between Australia and China before the extradition took place. But in terms of our consular agreement and the problems you refer to, it does happen. The decision is made on what travel document they use when they enter China. So, if they are dual nationals and they enter on a Chinese travel document, which can include a Hong Kong-China return document, then China will consider them to be Chinese nationals, but if they enter China on an Australian passport then they are considered to be Australians.

ACTING CHAIR: On a separate question, you will appreciate that the evidence we received went both to the specifics of the treaty and also to how it might operate in the broader context of the act. One of the things that I think the Law Council was concerned about was the presumption against bail in the process. Could you provide an explanation of the policy rationale for why that presumption exists?

Ms Harmer : The presumption against bail recognises that in the extradition context there is a heightened risk of flight. Indeed, without a presumption against bail, there is a risk that the very purpose of extradition would be defeated by the absence of the person to be able to be surrendered. The legislation recognises that, because extradition is about returning a person to face a criminal justice process, where they are already outside the country in which that process is to take place, there is a heightened risk of the person not being available. Accordingly, it commences with a presumption against bail. However, it then makes bail available in the event that there are special circumstances.

ACTING CHAIR: In practical terms, in the extradition processes you have observed—and I do not expect you to have hard data on this—how frequently are special circumstances able to be established—what proportion?

Ms Harmer : I do not know if I could give you a proportion, but certainly a number of persons, and not an insignificant number of persons, have made arguments for and had a grant of bail while the extradition process was resolved.

ACTING CHAIR: In a related question, the comment from the Law Council is that there ought to be time limits on executive decision-making or an administrative decision-making within the process. Has that been the subject of analysis or discussion in recent times in the department?

Ms Harmer : We have naturally turned our minds to the issues that have been raised by the various submitters to this committee. I think the question of particular time limits does raise a number of challenges, not least of which is that not all elements of the process are within the control of the particular authority. The timing that is required to complete an extradition process is impacted by a number of factors, including the time that is taken by the person to make representations in their own interests, and we would not want to reduce the time that is available for that. If a person elects to take more time, while they are the subject of a process in Australia, to make the representations, then the current process allows them to do that.

ACTING CHAIR: Are there any remedies for a person who feels that the process is being unduly delayed?

Ms Harmer : Yes. There are a number of judicial review writs that can be sought in the event that a decision has not been made.

ACTING CHAIR: I am pleased that you have turned your mind to the questions raised in the submissions, because I really do want to go through some of them. There is also a concern that there are not adequate provisions made for children in these processes. Can you talk me through how the department sees the obligations to children under 16 and any special protections that might be in place in the act or in the treaty to deal with those questions?

Ms Harmer : In considering any requests that may be made in respect of a person who is a minor or young person, we would naturally have regard to all of the person's circumstances. The treaty requires turning your mind to any particular circumstances a person may face, and includes explicitly the person's age. That could obviously be youth or indeed old age. In addition, obviously Australia is a party to the international instruments, including the Convention on the Rights of the Child, and we would have regard to our international obligations there as relevant considerations in determining whether in all the circumstances it was appropriate to consider the request and whether in all circumstances surrender was appropriate.

ACTING CHAIR: On that question, the Law Council has made a recommendation that the list of extradition objections should be expanded to include a prohibition on the extradition of a child under 16 years of age. What would be the arguments against such a prohibition?

Ms Harmer : I am not sure that it would be appropriate for me to give you arguments against a proposition, but I guess what I would say is that the existing arrangements permit the age of the person to be taken into account as a relevant consideration. They permit the process that the person would be subject to to be a consideration. For example, a decision-maker could turn their mind to the extent to which the person might face a childrens court rather than an adults courts. Both the treaty and the Extradition Act, as they stand, enable a decision-maker to take into account relevant considerations, including age and the way in which a process will apply to a person of a particular age.

ACTING CHAIR: Are you satisfied that, read together, the act and the treaty mean that we would be in compliance with the Convention on the Rights of the Child?

Ms Harmer : I am satisfied that the treaty and the act, read together, enable a decision-maker to take into account Australia's international obligations and ensure that they make decisions that are consistent with Australia's international obligations.

ACTING CHAIR: I want to come back to the question around the humanitarian considerations and the discretionary refusal on those grounds. With the way that it is phrased, it lists a number of things around personal circumstances, including age. From a legal perspective, does the listing of the specific criteria that you can consider exclude consideration of other matters associated with people's personal circumstances?

Ms Harmer : If I could take you to the particular article you are referring to: you are referring to—

ACTING CHAIR: It is article 4(c).

Ms Harmer : In view of that person's age, health or other personal circumstances, 'personal circumstances' is quite a broad expression and would permit consideration of, effectively, circumstances. It is characteristic of the fact that the extradition process is ultimately about the individual and the circumstances that they face and permits the individual to draw to attention any other personal circumstances that they think would make extradition incompatible with humanitarian considerations.

ACTING CHAIR: It is just that the term 'personal circumstances' does not seem to extend to the trial environment that they would face in the requesting country.

Ms Harmer : I think it is not so much the personal circumstances but the trial environment. It is the humanitarian considerations. In terms of the fair trial issue that we have been speaking about, it is the operation of 4(c) in conjunction with the general discretion in the Extradition Act. So 4(c) would enable the consideration of any issues that are affected by age health or other personal circumstances, but, in the event that the concern was given rise to by something other than those issues, then the general discretion would operate to permit anything that was related to the operation of the criminal justice process to be raised.

ACTING CHAIR: I am sorry to come to this again, but it seems a rather roundabout way to get to this protective function with a fair trial. As I said earlier, the Law Council said that the inclusion of the term 'unjust or oppressive' in this same clause, as has occurred in other treaties, would have been a more straightforward way to get to the position that you see we have arrived at anyway. Can DFAT provide any background on why 'unjust or oppressive' has been omitted here but is included in treaties with Emirates and a number of other countries?

Mr Robertson : It is an A-GD matter.

ACTING CHAIR: It is in A-GD.

Ms Harmer : The Attorney-General's Department typically conducts the negotiations of these treaties. As I think I said before, a bilateral treaty is by its nature bilateral and unique to the agreement that is reached as between those two countries. Some of the treaties that have been reached have included different terminology and others adopt a very similar approach to this. No two treaties are unique. There are often simpler and more complex ways of achieving the same outcome. A combination of the Extradition Act and the specific discretionary grounds of refusal in this instance enable the consideration of the international obligations that you have referred to. In other instances, it is done in different ways. I am not sure that I could give you a single reason but there are multiple approaches to achieving the same effect, and this is the approach that has been arrived at in this particular agreement.

Senator KITCHING: Would it be because the negotiators with China asked that it not be in there?

Ms Harmer : I couldn't say, I am sorry, in relation to this treaty.

ACTING CHAIR: Is that because you do not know, Ms Harmer?

Ms Harmer : I was not a negotiator for this particular treaty. As you may have noticed from the time at which it was signed, it was negotiated some time ago. I am not sure, but there are typically a series of treaties notes. A bilateral treaty is by its nature bilateral and so involves some degree of negotiation, changes of language to accommodate different ways of expressing things and achieving the same outcomes. I could not say whether there was a particular reason why it was omitted in this instance. What I would say is that the Australian government aims to negotiate treaties which enable it to both achieve extradition outcomes and act in a manner that is consistent with its international obligations. So this treaty enables a decision-maker, in conjunction with the Extradition Act, to make a decision that gives effect to our obligations.

ACTING CHAIR: I should clarify that my concern was not that you personally did not know but simply to check whether it was because of a lack of knowledge or because you felt you could not or ought not to tell me.

Ms Harmer : I simply do not know, and I do not know that there would be a record that would reflect that. The text that is before the committee is the text that has been agreed between the countries, and I think going behind that would be somewhat difficult. I do not personally know, nor do I believe that information is available.

ACTING CHAIR: If that were something that the department could confirm with us—I appreciate that between now and Monday is a very short period of time—I think that would be useful for the committee. This question about a fair trial has, I think, exercised the minds of more than one committee member, so I think getting as much clarity as we can about that would be helpful.

Ms Harmer : I would be happy to look into that. I have to say that I anticipate that my answer will be that I am not able to say why those particular words were not used. I do not believe that is the kind of record that would be kept in that regard.

ACTING CHAIR: My final question really just goes to whether you know what the conviction rate is in criminal trials in the PRC.

Mr Robertson : We have a reasonable idea. As I think you might have some idea of, it is very high. It is over 90 per cent, as I understand. It is over 99 per cent.

Senator KITCHING: Just going back to the dual nationality, if someone went into China I can imagine a case where it would make absolute common sense that, if you held two passports, you might use the passport of the country which you were entering. But, if I were doing that once a year for a couple of weeks but otherwise I lived in the other country, would that not be a circumstance that would be taken into account, or perhaps should be taken into account, given that in fact I may be resident in the other country for the majority of the time? I am thinking almost of the test for the controlling mind of a corporate entity, which is applied in the corporations law. If effectively I am resident, really, in one country far more than I am in the other, is that able to be taken as perhaps another circumstance that might indicate my nationality even though I am holding dual passports? Does that question make sense?

Mr Robertson : Basically our consular agreement is very clear. It is all about what travel document you use when you enter the country. So I do not think that would be taken into account.

Senator KITCHING: Did you say that that would also include Hong Kong.

Mr Robertson : Yes. Hong Kong is a separate territory and has a separate status as an economy within the World Trade Organization, but it is part of the People's Republic of China. So, even though there are separate Hong Kong passports, they do not use those passports for entering China; they have a type of travel document for going between Hong Kong and mainland China, and they are considered to be Chinese citizens.

Senator KITCHING: The reason I ask is that the Law Council's submission says that it is a separate law jurisdiction for the purposes of extradition and criminal law. So how does that then—

Mr Robertson : It is an unusual arrangement which was negotiated between Britain and China and which is referred to as 'one country, two systems'. So they have two very separate legal systems. Hong Kong retains a common-law British based legal system, and China has a very different legal system.

Senator KITCHING: Thank you.

ACTING CHAIR: I do not have any further questions, so can I suggest that we suspend briefly. I hope that my House of Representatives colleagues will be back. We might just suspend. I imagine it will be quite brief, and then we will reconvene when Mr Robert returns.

Proceedings suspended from 16:59 to 17:01

CHAIR: Are there any final questions?

Mr CREWTHER: I did have one, but it may have already been answered while I was away.

CHAIR: Senator McAllister?

Senator McALLISTER: It was, but we are just going to establish whether or not we answered. I did ask Ms Harmer about the Law Council's alternative approach for the treatment of children.

Mr CREWTHER: The recommendations under paragraph 116, where they recommend that the objections should be expanded to include a prohibition on the extradition of a child under 16 years of age and such a provision would ensure Australia's compliance with the Convention on the Rights of the Child—

CHAIR: Is that their general recommendation for the extradition law or this treaty?

Senator McALLISTER: No, it was for the treaty initially.

Mr CREWTHER: I am not sure if that was answered before, but what is your view on that?

Ms Harmer : I think it was, but I am happy to re-encapsulate the answer I gave to Senator McAllister earlier—

Mr CREWTHER: What is your view on their recommendation?

Ms Harmer : The short version is that the Extradition Act does not apply any specific limits around age, but there are two particular issues that I will draw your attention to. One is the extent to which the treaty itself includes a discretionary ground of refusal which has regard to the extent to which the extradition will be incompatible, having regard to particular matters, including the age of the person to be extradited. More generally, I draw your attention to the fact that both Australia and China are parties to the Convention on the Rights of the Child. A decision-maker on an extradition request in Australia would have regard to any international obligations Australia had, including those under the Convention on the Rights of the Child, and ensure that the decision that is made is consistent with those obligations.

CHAIR: Ms Harmer, can you think of any instance where Australia has extradited someone to a jurisdiction which does not have what open courts, has a conviction rate of 99.9 recurring per cent and does not have a fair judicial system? Is there any instance you can think of, historically, where such an extradition has been granted?

Ms Harmer : I would say that our extradition relationships are with a wide variety of countries with a wide variety of systems. For that particular accumulation of examples that you have given, I would have to go through all the relationships we have. There are a variety of different systems—criminal justice systems, histories, conviction rates. For that particular combination I could not say, but they are each varied and different.

CHAIR: Thinking of the most different to ours and the most totalitarian or extreme, can you think if there has been any extradition to such a jurisdiction?

Ms Harmer : I would be reluctant to identify a particular country. What I would say is that we have relationships with countries which, as I said before, have the death penalty. We have relationships with countries which have very different criminal justice and corrections systems to our own. International crime cooperation is not premised on having equivalency of justice systems. It is instead premised upon being able to make an assessment as to the appropriateness in all the circumstances of having cooperation, with a view to ensuring justice can be served, notwithstanding the impediment of borders.

CHAIR: What does the government believe the benefit is to Australia by having this treaty ratified? What do we get out of this?

Ms Harmer : The treaty ultimately creates a basis on which extradition can occur on a more consistent basis. It is already the case that Australia has multilateral agreements, to which both Australia and China are parties, under which there are extradition obligations and extradition could occur. There are, however, a number of offences that are not covered by those treaties, so types of conduct, and typically the type of conduct that may be covered under state offences—such as murder, offences against the person, robbery et cetera—are not covered. That creates an impediment to the ability of persons to face justice across our respective systems, and potentially results in the fact that a person may not be brought to trial for very serious allegations. That is ultimately what an extradition treaty seeks to do, which is to enable the consideration of whether that should occur. It does not guarantee it or automate it, but it enables that consideration to be had.

Mr WALLACE: Given it was signed in 2007—is that correct?

CHAIR: Yes.

Ms Harmer : It was signed in September 2007.

Mr WALLACE: and given that it has been in limbo for the last nine years, who or what department, if any, is driving that this be ratified now?

CHAIR: I will answer that question: it is a referral from the foreign minister to the chair of the committee in writing. As there are no further questions, there are some statutory obligations I need to remind you of. Ms Harmer, you have been asked to provide additional information. I have requested it to be with the secretariat by Monday morning. That will be by 9 am on Monday, so if you could have it to us by then. You will be sent a copy of the transcript of your evidence and will have an opportunity to request corrections to transcription errors. Any request to have an extension on 9 am on Monday will be denied, so please have it by then. Thank you for your time, thank you for allowing the deferment and thank you for allowing Senator McAllister to take the chair.

Committee adjourned at 17:07