By Max Bonnell and Ruimin Gao  King & Wood Mallesons’ Sydney office

bonnell_mThe Australian Government recently announced that it would not proceed with the ratification of the Treaty on Extradition between Australia and The People’s Republic of China (Australia-China Extradition Treaty) at the present time.

We take a closer look below at Australia’s extradition law and the key provisions in the Australia-China Extradition Treaty, which is now approaching its ten-year anniversary since it was first signed under the Howard Government.

Australian legal framework for extradition

The Extradition Act 1988 (Cth) governs all extradition requests made and received between Australia and an “extradition country”. These countries are declared by the regulations and include the 39 countries with which Australia currently has a bilateral extradition treaty, as well as non-treaty countries such as the Commonwealth countries.

Extradition proceedings for requests received by Australia involve three stages:

  • notification by the Attorney-General (section 16);
  • determination of eligibility for surrender by a magistrate or eligible Federal Circuit Court Judge (section 19); and
  • surrender determination by the Attorney-General (section 21).

At each stage of the extradition process, the individual who is the subject of an extradition request has the opportunity to challenge the executive decision and may also present relevant information to the decision-maker. The three-stage process can also be fast-tracked if the person who is the subject of the extradition request chooses to waive extradition.

The Australia-China Extradition Treaty

The Australia-China Extradition Treaty was signed by the two countries in Sydney on 6 September 2007.

In December 2016 the Joint Standing Committee on Treaties published its findings on the Australia-China Extradition Treaty, recommending that binding treaty action be taken. The committee also made several recommendations concerning the implementation of human rights safeguards provided for in the treaty. A dissenting report by the committee’s Labor MPs separately recommended that ratification be delayed until after an independent review of the Extradition Act.

A key issue considered by the committee was whether persons extradited from Australia would be afforded a fair trial in China. The protection that the Australia-China Extradition Treaty provides is a discretionary ground of refusal where extradition is considered incompatible with humanitarian considerations in view of the person’s age, health or other personal circumstances (Article 4(c)). Particular concerns have been raised on the basis that the treaty text does not include the words “unjust or oppressive” which are contained in 10 other bilateral extradition treaties signed by Australia. In this regard, the Australian Government has emphasised that there is a general discretion in the Extradition Act for the Attorney-General to refuse surrender on the basis of human rights concerns, including whether an extradited person would have access to a fair trial.

The Australia-China Extradition Treaty also includes mandatory grounds of refusal for political offences, military offences, or if there are substantial grounds to believe that prosecution or punishment of the person is sought on account of that person’s race, sex, language, religion, nationality, political opinion or personal status (Articles 3(a), 3(c) and 3(b)).

The possibility that extradited persons from Australia could be subjected to the death penalty in China has also been a critical concern, and a commonly cited reason against ratification of the Australia-China Extradition Treaty given Australia’s longstanding position in support of the abolition of the death penalty. In this context, the protections that would be afforded by Australian law against the death penalty are twofold.

First, the Australia-China Extradition Treaty contains an express protection which allows an extradition request to be refused if the offence for which extradition has been requested carries the death penalty and the requesting country does not provide an undertaking “that the death penalty will not be imposed or, if imposed, will not be carried out” (Article 3(f)). An undertaking of this nature is a deliberate and intentional government-to-government assurance that carries considerable weight and there are consequences for non-compliance. This type of undertaking has been described by the Commonwealth Attorney-General’s Department as underpinning the bilateral crime cooperation relationship, with any breach being considered “extraordinarily serious”.[1]

Second, section 22(c) of the Extradition Act also provides for a mandatory ground of refusal by the Attorney-General where the offence is punishable by a penalty of death and an undertaking by the requesting country has not been given.

It also bears noting that Australia currently also has extradition treaties with a number of other countries that retain the death penalty, namely Indonesia, India, Malaysia, the United Arab Emirates, the United States of America, Vietnam, Brazil, Chile, Israel and the Republic of Korea.

International crime cooperation between Australia and China

The Joint Standing Committee on Treaties has acknowledged the important role that extradition treaties play in combating domestic and transnational crime, stating that “Australia does not wish to become a safe haven for people who commit serious offences and it must be able to bring back individuals from foreign countries who have offended against Australian law.”[2]
Whilst the Australia-China Extradition Treaty is pending ratification, extraditions can still take place between the two countries on an ad hoc basis or pursuant to multilateral conventions to which both countries are signatories. However, a bilateral extradition treaty in force between Australia and China would provide a formal mechanism with the appropriate safeguards for dealing with extradition requests between Australia and China. As such, this is a topic that may be revisited again in future as migration, trade and investment flows continue to rapidly grow between the two countries.


[1]Joint Standing Committee on Treaties, Report 167 (December 2016), 3.22.
[2]Joint Standing Committee on Treaties, Report 167 (December 2016), 3.44.