Giving effect to international obligations
Approaches to treaties in comparable jurisdictions
3.61The United Kingdom, Australia, and Canada have also faced the problem of bilateral treaties keeping pace with developments in extradition practice and legislation, particularly in relation to surviving imperial treaties. The three countries have adopted different approaches to resolving this issue.
The United Kingdom
3.62Up until 2003, the United Kingdom continued to operate an extradition regime that relied heavily on treaties. Its 1989 Extradition Act operated in much the same way, in this regard, as the Extradition Acts 1870 to 1935 (Imp) had done and as New Zealand’s Extradition Act 1999 currently does. The United Kingdom’s Extradition Act 2003, however, marked a radical change from this position.
3.63The 2003 Act does not contain any provisions explaining the relationship between the Act and the United Kingdom’s existing bilateral extradition treaties. The existence of a treaty is, however, relevant to the designation process under the Act. In brief, a country may be designated under Category 1 or Category 2. Any non-designated country must enter into a “special extradition arrangement” with the United Kingdom to enable extradition to take place. The factors to be considered in the designation process are not specified in the Act. Nonetheless, the relevant designation orders make it plain that Category 1 countries are those that are part of the European Union and have signed the relevant extradition agreements. Category 2 countries are all other countries with whom the United Kingdom has an extradition relationship, namely Commonwealth countries (which are subject to the London Scheme) and bilateral treaty partners.
3.64The Act deals comprehensively with the extradition process for each category. Accordingly, in the United Kingdom, bilateral extradition treaties now only appear to be relevant to the designation of a country under the Act. The means of processing an extradition request within the United Kingdom is entirely statutory.
3.65Australia has taken the opposite approach to the United Kingdom and has, since 1985, made a concerted effort to negotiate new bilateral extradition treaties and arrangements, which form the backbone of its current legislation.
3.66In the early 1980s, a high-profile Australian extradition case sparked extensive debate over whether the requirement to provide sufficient evidence to justify committal for trial in support of an extradition case was proving unjustifiably onerous for certain countries to meet. This debate led to the introduction of a “no evidence” alternative to this requirement, under which no evidence needed to be provided to support an extradition request. The “no evidence” model significantly reduces the burden on the requesting country and has been particularly welcome for countries with civil law justice systems, which are unfamiliar with the usual evidence requirements in common law justice systems like our own. The “no evidence” model was then introduced in the Extradition Act 1988 (Cth) as the default position for any new treaties entered into by Australia. Due in large part to this default position, Australia has been able to negotiate 58 bilateral extradition treaties or arrangements since 1988, particularly with civil law countries.
3.67Another feature of the 1988 Act is that Australia can only process an extradition request if it has a treaty or similar arrangement in place with the foreign country in question. It is therefore not possible for Australia to process a request on a one-off basis.
3.68The paramount status of the treaties in Australia is cemented by section 11 of the 1988 Act, which explains the relationship between the treaties and the Act. It states that the Act must be applied to a treaty country “subject to such limitations, conditions, exceptions or qualifications as necessary to give effect to” the treaty. Therefore, in Australia, bilateral extradition treaties take precedence over the Act in the event of an inconsistency. The Act contains no specific exceptions to this rule.
3.69Canada has opted for a middle ground between the Australian and United Kingdom models for giving effect to bilateral extradition treaties. This is reflected in its Extradition Act 1999, which allows for treaties to override only expressly identified provisions in the Act.
3.70Like in Australia, high-profile extradition cases in the 1980s led Canada to re-examine its extradition practice. A policy decision was made to modernise old extradition treaties and to negotiate new ones. Canada’s Extradition Act 1877 contained a blanket rule that, in the event of any inconsistency, an extradition treaty would take precedence over the Act. This enabled Canada to enter into bilateral treaty arrangements that differed significantly from the Act.
3.71The 1999 Act significantly changed this approach by removing the blanket rule. Instead, the Act expressly identifies the legislative provisions that a treaty may amend or override. These provisions include the definition of “extradition crime”, the rules regarding the admissibility of evidence, and some but not all of the grounds for refusing surrender.
3.72Under the Canadian Act, the exact nature of the relationship between the treaty and the specified provisions depends on the wording of the relevant provision. For example, sometimes the treaty will override the Act, sometimes it will create an additional obligation, and sometimes it will provide an alternative. Interestingly, the Act has not retained the emphasis on “inconsistency” that was found in its predecessor. The decision to move away from assessing the consistency between treaties and the Act was presumably designed to avoid complex litigation about interpretation.