Brendan O'Connor (Gorton, Australian Labor Party, Minister for Home Affairs) Share this | Hansard source

I move:

That this bill be now read a second time.

Crime has significant social and economic costs that undermine our safety, security and prosperity. Our increasingly global world is presenting new opportunities for criminal groups to expand their illicit enterprises beyond traditional state borders, and escape justice. This means that a high level of international cooperation is crucial to effectively combat crime.

Australia's current extradition and mutual assistance legislation was developed over 20 years ago. There was no internet in 1988 and mobile phones were a new commodity. International travel has become much more common, and the international financial system more accessible. These developments have meant that our laws no longer meet the needs of Australia's international law enforcement activities as effectively as they used to.

A comprehensive review of Australia's international crime cooperation laws was therefore timely. In 2006, discussion papers were released for public consultation that proposed fundamental reforms to Australia's international crime cooperation laws and procedures, including in the areas of extradition and mutual assistance. The concept of this bill evolved out of that review and drafts of the bill were released for public consultation in 2009, and again in January this year. Over 40 submissions were received and the government has carefully considered the views raised in both consultation processes in developing the final version of this bill.

Essentially, the bill has two key objectives: to streamline and modernise the process for extradition, and to ensure Australian authorities can offer a compre­hensive range of assistance to our international criminal justice partners.

Streamlining extradition

Faster and simpler surrender procedures will ensure that accused persons avoid unnecessary delays and this will also assist Australia to fulfil its international obligation to secure the return of alleged offenders to face justice, promptly and efficiently.

Waiver of extradition

The process for extraditing a person can be cumbersome and take several months to finalise, even if a person has consented to their extradition. The bill will allow a person who consents to being extradited to waive the extradition process subject to certain safeguards. The bill will allow a person, once arrested, to immediately elect to remove himself or herself from the extradition process and be surrendered to the foreign country. As not all stages of the extradition process would be required to be completed, the extradition process will be significantly streamlined where a person elects to waive extradition. Although this will mean that not all stages of the extradition process will need to be completed, the safeguards built into the extradition regime will still apply. Firstly, a magistrate must be satisfied that the person understands the consequences of waiving extradition. Secondly, despite a person waiv­ing the right to be subject to the extradition process, the minister would not be able to surrender the person if the person would be in danger of torture or subject to the death penalty.

Streamlining the early stages of extradition

The bill will also streamline the early stages of the extradition process. Currently, dual criminality and 'extradition objections' are factors which must be considered by the relevant minister when deciding whether to accept an extradition request. Both of these factors are then also considered by the magistrate when deciding if the person is eligible for surrender, and extradition object­ions are again considered by the minister when deciding whether or not to order a person's extradition.

The bill will remove the requirement for the relevant minister to consider these factors at the initial stage of accepting the request. However, both factors will continue to be considered by a magistrate when conducting extradition proceedings, and extradition objections will continue to be considered by the minister when deciding whether to surrender a person.

Ensuring criminals do not escape justice

The bill will also ensure that persons who have committed crimes do not escape justice simply because the person is not able to be extradited.

Prosecution in lieu of extradition

Currently, a person can only be prosec­uted in Australia in lieu of extradition where extradition has been refused on the basis that the person is an Australian citizen. This bill will enable a person to be prosecuted in any circumstances where Australia has refused extradition. This will ensure that refusal to extradite does not mean that a person escapes justice.

Improving safeguards in extradition

The bill will improve safeguards for persons subject to the extradition process.

Extending the availability of bail

Currently, a person may be granted bail during the early stages of the extradition process. However, once a magistrate decides a person is eligible for surrender, he or she must be committed to prison. The bill will extend the availability of bail to persons who have consented to extradition or been determined eligible for surrender by a magistrate. This will ensure that where special circumstances justifying bail exist, the person will not be kept in prison at the later stages of the extradition process.

Strengthening torture protections

The bill will also strengthen protections where there are torture concerns in the requesting country, by ensuring the wording in the Extradition Act is consistent with the United Nations Convention against Torture. This will ensure that terminology used in our domestic regime mirrors our international obligations.

Discrimination on the basis of sex or sexual orientation

Further, the bill will include a new ground for refusing extradition where the person may be punished, or discriminated against, upon surrender on the basis of his or her sex or sexual orientation. These additional grou­nds complement the general discretion to refuse to extradite a person which allows the minister to take into account all relevant considerations and representations as to personal circumstances such as a person's gender identity, and related health and humanitarian considerations.

This will demonstrate Australia's firm position against this type of discrimination.

Mutual assistance amendments

The second key purpose of the bill is to make a range of amendments to improve the operation of Australia's mutual assistance regime.

Strengthening safeguards

The Mutual Assistance in Criminal Matters Act 1987 already contains grounds on which the relevant minister may or must refuse a mutual assistance request from a foreign country. The bill will make a range of amendments to strengthen and improve the operation of the grounds for refusal.

Firstly, the bill will expand the operation of these grounds of refusal to make clear that they apply at the investigation stage as well as at the prosecution stage, and also to proceeds of crime related requests.

Secondly, the bill will expand the discrim­ination ground of refusal to include discrimination on the basis of sexual orientation.

Thirdly, the bill will extend the death penalty ground of refusal to circumstances in which a person has been arrested or detained on suspicion of committing a death penalty offence. This will ensure the mandatory ground of refusal for death penalty offences applies regardless of whether formal charges have been laid.

Finally, the bill will insert an express mandatory ground for refusal where there are substantial grounds to believe the provision of the assistance would result in a person being subjected to torture.

These changes complement the general discretion to refuse to provide assistance which allows the minister to take into account all relevant considerations.

As these grounds for refusal apply to any request for assistance from a foreign country, these amendments will ensure Australia is only providing assistance in appropriate circumstances.

Increasing the range of law enforcement tools available to assist other countries

Amendments will be made to the Crimes Act 1914, the mutual assistanceact, the Telecommunications (Interception and Acc­ess) Act 1979 and the Surveillance Devices Act 2004 to increase the range of law enforcement tools available to assist foreign countries with their investigations and prosecutions.

Lawfully accessed material

Currently, telecommunications intercep­tion product and covertly accessed stored communications material, obtained origin­ally in an Australian investigation, can only be provided to a foreign country through costly and time consuming proceedings.

The bill will streamline this process and include a range of safeguards to ensure information is only provided to foreign countries in appropriate circumstances.

Firstly, the minister's approval will be required before any telecommunications interception product or covertly accessed stored communications material is able to be provided to a foreign country. The safe­guards under the mutual assistance act would apply in assessing whether to provide that material.

Secondly, covertly accessed stored comm­unications material and telecommunications interception product will only be provided to a foreign country in circumstances where the relevant foreign offence carries a penalty mirroring our domestic offence.

Finally, as part of the government's commitment to openness and transparency, the Minister for Justice will be required to report annually on the provision of this type of information to foreign countries.

Surveillance devices

The bill will also enable surveillance device warrants to be obtained for foreign law enforcement purposes. Currently, this power is limited to the investigation of domestic offences.

Once again, there are a range of safeguards in place to ensure these powers are only used where appropriate.

Firstly, ministerial approval will be required before a surveillance device warrant is able to be sought for foreign purposes. In deciding whether or not to give that approval, the minister would consider the mandatory and discretionary grounds of refusal contained in the mutual assistance act.

Secondly, a warrant will only be able to be obtained if the relevant foreign offence meets the threshold for when a surveillance device warrant is able to be issued for domestic offences.

Finally, agencies will be required to report on the use of surveillance devices for foreign law enforcement purposes.

Forensic procedures

Forensic procedures (for example, obtaining fingerprints and DNA samples) can provide compelling evidence which may confirm or exclude a person as a suspect in the commission of an offence. These procedures are used in criminal investig­ations throughout Australia.

The bill will enable the forensic procedures provisions in the Crimes Act to be used for the purpose of assisting with foreign law enforcement.

The bill will enable forensic procedures to be carried out on suspects and volunteers, including children and incapable persons in certain circumstances, for foreign purposes. These procedures would be carried out in the same circumstances and in the same manner as for the investigation of domestic offences.

The amendments also put in place a range of safeguards. Importantly, a person will first be asked if they consent to the procedure being carried out. If they do not consent, approval from the minister and an order of a magistrate will be necessary before the procedure can be carried out. A magistrate will only be able to authorise the carrying out of a forensic procedure after taking into account a range of circumstances, including whether the carrying out of the forensic procedure is justified in all the circum­stances.

Further, despite any order by the magistrate for the carrying out of a forensic procedure, in circumstances where a child or an incapable person objects to, or resists the carrying out of the procedure, it will not be able to be carried out.

Proceeds of Crime

This bill will also make a range of amendments to part VI of the mutual assistance act to improve the operation of the proceeds of crime provisions in relation to non-conviction based proceeds of crime orders. Obtaining a criminal conviction can be a lengthy process so these types of orders, which can be made regardless of whether a person has been convicted of an offence, are effective tools for preventing dispersal of assets.

Currently, Australia can only register such orders from certain countries listed in regulations. The bill will enable Australia to register a non-conviction based proceeds of crime order made in any country or seek a temporary non-conviction based restraining order on behalf of any country.

The bill will also streamline the process by which the relevant minister can authorise the use of the proceeds of crime investigative tools in the mutual assistance act. This will ensure Australia is able to respond efficiently and effectively to requests for assistance from other countries.

Conclusion

The measures in this bill will modernise Australia's international crime cooperation laws, facilitate cooperation with international partners and reduce delays in current processes. The changes will also ensure that accused persons are afforded fair treatment by strengthening legislative protections and safeguarding human rights.

These updated laws will ensure Australian law enforcement agencies are able to work effectively and efficiently with their international counterparts to combat crime across the world.

I commend the bill to the House.

Debate adjourned.

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