- Australia may soon be able to extradite individuals to China if China undertakes that the death penalty will not be imposed or, if imposed, will not be carried out.
- Australian law does not require that an undertaking not to impose the death penalty be legally enforceable, either domestically or internationally.
- International jurisprudence suggests that the weight to be given to a diplomatic assurance depends on the circumstances, including the human rights situation within a country.
- In these circumstances Australia could be internationally responsible should a human rights violation occur.
The Treaty on Extradition between Australia and the People’s Republic of China (‘the Australia-China extradition treaty’) was concluded in Sydney on 6 September 2007. It has recently been referred for consideration to the Joint Standing Committee on Treaties (‘JSCOT’). JSCOT inquires into and reports on matters arising from treaties including proposed treaty action by Australia.
Article 3(f) of the Australia-China extradition treaty provides that extradition shall be refused, if in accordance with the law of the requesting party, the person sought may be sentenced to death for the offence for which extradition is requested, unless the requesting party undertakes that the death penalty will not be imposed or, if imposed, will not be carried out.
This approach mirrors that found under Australian legislation addressing international extradition, but Australia is also a party to the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty  ATS 19 (the Second Optional Protocol). How does Australia propose to reconcile potentially competing obligations?
This article considers the position of undertakings not to impose the death penalty under Australian law as well as recent international jurisprudence which questions the value of diplomatic assurances provided by States.
Extradition from Australia to States where the death penalty is imposed
The Extradition Act 1988 (Cth) (‘the Act’) relevantly provides that:
- the Attorney-General may only determine that a person be surrendered to an extradition country if satisfied that there is no real risk that the death penalty will be carried out on the person in relation to any offence (s 15B(3)(b));
- an eligible person is only to be surrendered in relation to a qualifying extradition offence which is punishable by the death penalty if, by virtue of an undertaking given by the extradition country to Australia:
(i) the person will not be tried for the offence;
(ii) if the person is tried, the death penalty will not be imposed; or
(iii) if the death penalty is imposed, it will not be carried out (s 22(3)(c));
- these three criteria apply to temporary surrender warrants (s 25(2)(b)); and
- in certain circumstances, the Attorney-General may only issue a temporary surrender warrant if satisfied that there is no real risk that the death penalty will be carried out on a person in relation to any offence (s 25(3)(b)).
Section 22(3)(c) was considered in McCrea v Minister for Justice and Customs  FCAFC 180 (‘McCrea’). The appellant contended that an assurance offered by Singapore was not an ‘undertaking’ of the required character. The Federal Court concluded that the very concept of an ‘undertaking’ involved an obligation that was deliberate and serious but not necessarily legally enforceable (at ). Undertakings in the context of reciprocal international obligations between States were not ordinarily (if at all) enforceable either domestically or internationally.
More particularly, the Act contained no enforcement mechanism. Exercising the prerogative of mercy or executive clemency could also lawfully result in a penalty imposed or required by law (including the death penalty) not be carried out (at ). The legislative language and scheme of other provisions moreover pointed to a distinction between an undertaking as something that was not of its nature necessarily legally enforceable and obligations that were (at ). In many extradition countries, treaty provisions did not give rise to domestically enforceable rights.
However, the seriousness of the topic suggested that more than compliance with a verbal formula was intended. Thus s 22(3)(c) would not be satisfied by merely giving an undertaking that followed its language or was made by a person having appropriate authority. An evident objective was to provide a safeguard against the death penalty being carried out on a person extradited from Australia. There was much to be said for the view that a decision-maker ‘consider whether the undertaking is one that, in the context of the system of law and government of the country seeking surrender, has the character of an undertaking by virtue of which the penalty of death would not be carried out’ (at ).
In 2009 the United Nations (UN) Human Rights Committee (‘the Committee’) noted with concern the residual power of the Commonwealth Attorney-General, in ill-defined circumstances, to allow the extradition of a person to a State where he or she may face the death penalty in violation of Australia’s obligation under the Second Optional Protocol (Human Rights Committee, Consideration of Reports submitted by States Parties under Article 40 of the Covenant, Concluding Observations on Australia, UN Doc CCPR/C/AUS/CO/5 (2009), at ). The Committee recommended that Australia take the necessary legislative and other steps to ensure that no person is extradited to a State where he or she may face the death penalty.
In 2011 Australia undertook to examine the recommendation to implement this observation of the Committee by adopting the necessary legislation to ensure that no one is extradited to a State where they would be in danger of the death penalty (Human Rights Council, Report of the Working Group on the Universal Periodic Review for Australia, UN Doc A/HRC/17/10 (2011), at [86.34]).
In 2015 Australia indicated that the Commonwealth Attorney-General must refuse to extradite a person where the offence is punishable by the death penalty, unless an undertaking is provided that the death penalty will not be imposed, or if imposed, is not carried out. Where a person elects to waive extradition, the Attorney-General must be satisfied that on return to the requesting country there is no real risk that the death penalty will be carried out on the person in relation to any offence (Human Rights Council, National Report of Australia submitted in accordance with paragraph 5 of the annex to Human Rights Council Resolution 16/21, Working Group on the Universal Periodic Review, UN Doc A/HRC/WG.6/23/AUS/1 (2015), at ).
The questionable value of diplomatic assurances under international law
The human rights of an individual removed from Australia can be violated if there is a real risk that the death penalty will be applied. Australia will seek to rely on the fact that an undertaking has been given from China not to execute a person, but that may not relieve Australia of its international human rights obligations.
The Special Rapporteur on extrajudicial, summary or arbitrary execution has noted that, where the death penalty is imposed contrary to international standards, collaboration or assistance can amount to complicity and lead to indirect legal or other responsibility on the part of the assisting party (Report, UN Doc A/65/275 (2012) at ).
In Kwok v Australia, the Committee concluded that an individual’s enforced return to China, without adequate assurances, would constitute violations by Australia, as a State party which had abolished the death penalty, of an individual’s rights under articles 6 and 7 of the International Covenant on Civil and Political Rights  ATS 23 (‘ICCPR’) which relate to their rights to life and freedom from torture (UN Doc CCPR/C/97/D/1442/2005 (2009) at [9.7]).
The Committee in Mohammed Alzery v Sweden (UN Doc CCPR/C/88/D/1416/2005 (2006)), considered that the existence of diplomatic assurances, their content and the existence and implementation of enforcement mechanisms, were factual elements relevant to determining whether a real risk of harm in fact existed (at [11.3]). The general human rights situation in a State is also considered. Sweden was held to have violated article 7 of the ICCPR because it had not demonstrated that the diplomatic assurances it received were in fact sufficient to eliminate a risk of ill-treatment to the required level. Furthermore, Swedish consular officials failed to conform to international good practice because visits were delayed, private access was not insisted upon and medical expertise not provided after allegations of ill-treatment were raised (at [11.5]).
Similarly, the UN Committee against Torture has concluded that Sweden breached its human rights obligations because the procurement of diplomatic assurances provided no mechanism for their enforcement and were insufficient to protect against a manifest risk (Agiza v Sweden, UN Doc CAT/C/34/D/233/2003 (2005), [13.4]).
The value of diplomatic assurances has also been challenged by the European Court of Human Rights (‘ECHR’). In Chahal v United Kingdom  ECHR 54, the ECHR was not persuaded that assurances from the Indian government would provide Mr Chahal with an adequate guarantee of safety (at ). The ECHR did not doubt India’s good faith but, despite its efforts, human rights violations committed by its security forces were a recalcitrant and enduring problem.
In Saadi v Italy  ECHR 179, Tunisia had not provided diplomatic assurances that Mr Saadi would not be ill-treated. Even if it had, the ECHR believed that circumstance would not have absolved it from examining whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against a risk of prohibited treatment. The ECHR concluded that ‘[t]he weight to be given to assurances from the receiving State depends, in each case, on the circumstances obtaining at the material time’ (at ). Furthermore, neither domestic laws nor accession to human rights treaties were in themselves sufficient to protect against a risk of ill-treatment (at ).
Diplomatic assurances given by States are relatively common in international practice. An undertaking is envisaged under the Australia-China extradition treaty as a means of safeguarding individuals from the imposition of the death penalty. This treaty has been signed but not yet ratified by Australia, and is currently subject to consideration by JSCOT. The Joint Standing Committee on Foreign Affairs, Defence and Trade has also been asked to inquire into and report on Australia’s advocacy for the abolition of the death penalty. Whether these two committees espouse a coherent position for Australia remains to be seen.
Whether a diplomatic assurance given by a requesting State is adequate is a question left to the executive by municipal law (Barton v Commonwealth (1974) 131 CLR 477, 503 (at ) per Mason J). Australian law does not require that an undertaking provided by China not to impose the death penalty be legally enforceable either domestically or internationally. That proposition has since been considered and applied, eg, in Rivera v Minister for Justice and Customs  FCA 1784 and  FCAFC 123; see also  HCATrans 623.
Practitioners should assess whether an undertaking has been given, its terms, whether it will be honoured, any enforcement mechanisms, the extent of Australian consular assistance or monitoring, the prevailing human rights situation in China and whether there is a risk that the death penalty will be imposed. Australia’s international legal responsibility can be engaged notwithstanding an undertaking from China, and Australia can conceivably be held to account for a human rights violation before an international human rights committee.