Chapter 3
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)100 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)101 and bilateral treaty partners.102

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.103
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.104 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.105 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.106
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.107 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.108 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 1999,109 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.110 This enabled Canada to enter into bilateral treaty arrangements that differed significantly from the Act.111
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.112 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,113 sometimes it will create an additional obligation,114 and sometimes it will provide an alternative.115 Interestingly, the Act has not retained the emphasis on “inconsistency” that was found in its predecessor.116 The decision to move away from assessing the consistency between treaties and the Act was presumably designed to avoid complex litigation about interpretation.

100Extradition Act 1870 (Imp) 33 & 34 Vict c 52.
101London Scheme for Extradition within the Commonwealth (incorporating the amendments agreed in Kingstown in November 2002), formerly known as Commonwealth Scheme on the Rendition of Fugitive Offenders, adopted in 1966.
102See the explanatory notes accompanying the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (UK) and the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (UK).
103See EP Aughterson Extradition: Australian law and procedure (Law Book Co, Sydney, 1995) at 12 and 25; Joint Standing Committee on Treaties Extradition – A review of Australia’s law and policy (Report 40, August 2001); and Australian Attorney-General’s Department A new extradition system – a review of Australia’s extradition law and practice (2006).
104Joint Standing Committee on Treaties, above n 103, at [2.21].
105Legal systems across the world fall broadly into two categories: “common law” and “civil law”. In simple terms, common law countries have followed the Anglo-Saxon justice model, which places emphasis on the judge’s role in evolving and interpreting the law. In contrast, civil law systems evolved from Roman law and emphasise instead the comprehensive codification of the law. Civil law systems are more widespread than common law systems. See S Cuthbertson “Mutual Assistance in Criminal Matters: The Challenges of the Common Law Tradition” [2012]
JCCL 69.
106Twenty-seven bilateral extradition treaties and 31 non-treaty extradition arrangements: see Australian Attorney-General’s Department “International crime cooperation arrangements” <>.
107The Act only applies to countries that are declared to be “extradition countries” by regulations; Extradition Act 1988 (Cth), s 2, definition of “extradition country”. The regulations, in turn, must give effect to an extradition treaty or some other reciprocal extradition arrangement; Extradition Act 1988 (Cth), s 11.
108Extradition Act 1988 (Cth), s 11. This adopts the formula from the Extradition Acts 1870 to 1935 (Imp) 33 & 34 Vict c 52.
109Extradition Act SC 1999 c 18.
110Extradition Act RSC 1985 cE-23, s 3.
111William H Corbett “The 125 Year History of Canada’s Extradition Statutes and Treaties” (2005) 28 CLB 497 at 526.
112The provisions that a treaty may override under the Canadian Extradition Act SC 1999 c 18 are: s 3(1) (the definition of “extradition crime”); s 14(1)(b) (the timeframe for receiving an extradition request following the execution of a provisional arrest warrant); s 29(5) (treating a person convicted in absentia as an accused person for the purposes of the extradition committal hearing); s 32(1)(b) (the admissibility of documents); s 33(4) (additional authentication for a record of the case); ss 46 and 47 (some, but not all, of the mandatory and discretionary grounds for refusal); s 66(3) (the requirement for a specific assurance in relation to temporary surrender); and s 80 (the rule of speciality as applied when a person is surrendered to Canada).
113Extradition Act SC 1999 c 18, s 3(1) (the definition of “extradition crime” in a treaty prevails).
114Extradition Act SC 1999 c 18, s 33(4) (a treaty may contain additional authentication requirements for the record of the case).
115Extradition Act SC 1999 c 18, s 32(1)(b) (a treaty may provide for an alternative way of defining admissible evidence).
116That term is used only once in the 1999 Act in relation to the prevalence of grounds for refusal in multilateral treaties over the grounds in the Act: Extradition Act SC 1999 c 18, ss 10(2) and 45(2).