Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of the Standing Committee on Social Policy and Legal Affairs, I present the committee's report entitled Advisory report on the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, together with the minutes of proceedings and evidence received by the committee.

Ordered that the report be made a parliamentary paper.

by leave—before I go into my response to the report, I would like to note that this report has brought people from all around Australia to the parliament. I see up in the viewing gallery Paul Kennard, Kylie Hutton and their children Ben, Tom and Sophie, who have come down from Brisbane especially to hear this response.

The Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011 was referred to the House of Representatives Standing Committee on Social Policy and Legal Affairs for inquiry and advisory report. The bill proposed a number of significant reforms which are designed to streamline and modernise Australia's laws on extradition and mutual assistance processes. Policy and processes in this area must balance the interests of criminal investigations with the great need to safeguard human rights. It is a complex balance, and the committee is pleased to have contributed to scrutiny on this bill and to make a number of recommendations to the House. These recommendations have the unanimous support of the committee.

Prior to this committee's inquiry the bill went through a rigorous process of public consultation during its development. Exposure drafts of the bill were released in both 2009 and January 2011, and subsequently a number of amendments were made. Firstly, the committee welcomes the reforms in the bill to extend the availability of bail to allow individuals to apply for bail during the latter stages of the extradition process. However, there is a statutory presumption against bail which restricts judicial discretion and places the evidentiary burden on applicants to prove that there are special circumstances to justify bail. As a matter of principle the committee queries the necessity of this presumption against bail. The committee's view is that it is rightly the role of the judiciary to determine the merits or risks of bail in any given situation and so recommends that consideration be given to removing this statutory presumption against bail in extradition cases. This change could be made without impacting on Australia's treaty obligations.

A further area of concern relates to transparency. Increasingly there is a reliance on undertakings from foreign countries to facilitate the extradition or mutual assistance process. These include undertakings regarding the storage of personal information and undertakings that a person wanted for an offence that carries the death penalty will not have the death penalty imposed upon them or, if it is imposed, will not have the sentence carried out on them. The breach of an undertaking has serious consequences not only for the individuals involved but also for the bilateral relationship between Australia and the country concerned. Therefore, we recommend that all breaches of an undertaking be reported on in the annual report of the Attorney-General's Department. The committee further recommends that any significant breach of an undertaking should be immediately reported to the parliament.

The committee agrees that reforms to our extradition and mutual assistance processes are required to recognise further grounds for refusal of assistance, to clarify what constitutes political offences, to expedite processes and to ensure there is appropriate scope for the Attorney-General to exercise discretion in any decision. The bill as proposed achieves an effective balance between streamlining processes and maintaining safeguards. However, given the gravity of the issues involved, the committee recommends that any reforms to extradition and mutual assistance processes be reviewed within three years to ensure that the balance is operating effectively.

The issues that the committee has raised are designed to enhance the reforms proposed in the bill. The committee recommends the government give consideration to these additional issues and that the House pass the bill without amendment.

In closing, I thank all of the members of the Social Policy and Legal Affairs Committee, particularly the deputy chair, for their thorough approach to this inquiry, and thank all contributors to the inquiry and the wonderful secretariat under Dr Anna Dacre's leadership—especially Mei-Lin Wang, who provided specialist advice on the bill and who is here in the chamber today.

Sharman Stone (Murray, Liberal Party) Share this | Link to this | Hansard source

by leave—as acting deputy chair of the committee in the absence of the member for Pearce, Judi Moylan, I want to stress that the Extradition and Mutual Assistance in Criminal Matters Legislative Amendment Bill 2011 is a bipartisan-supported advisory report.

While we are told that the aim of the bill is to streamline and to modernise Australia's extradition and mutual assistance law, in fact it deals with some very significant issues. It is not just streamlining; we believe it is a very significant movement forward to ensure that Australia has special measures to ensure that in extradition we uphold the rights of individuals to be treated properly before our law and also that their human rights are observed in other jurisdictions.

Particularly in relation to extradition, the bill aims to extend the circumstances in which a person may be prosecuted in Australia as an alternative to extradition. We want to allow the person to consent to extradition in relation to a wider range of offences and to modify the definition of political offence to clarify that the political offence exception to extradition does not extend to specified crimes such as terrorism.

The bill also requires that extradition must be refused if a person may be prejudiced by reason of his or her sex or sexual orientation following surrender. As we know, not all countries share the same beliefs as we do in Australia, where a person should not and may not be discriminated against on the basis of their gender, their religion, their ethnicity or their age. It is essential that we cover all of the circumstances where a person may be discriminated against if extradited.

The stated purpose of other measures is to streamline the extradition process, and potentially to reduce the amount of time a person is required to spend in extradition custody while maintaining appropriate safeguards. This is very important, of course. We also want to strengthen safeguards in relation to the provision of assistance where there are death penalty or torture concerns in a particular case.

This bill aims to amend the various grounds on which Australia can refuse a request for assistance from another country. I have already referred to the case where a person may be prejudiced at their trial, or where the purpose of the investigation or prosecution is to persecute a person on the basis of his or her sexual orientation. The bill also aims to streamline the process used to authorise a proceeds of crime action to allow Australian courts to register and enforce foreign non-conviction-based proceeds of crime orders from any country.

These are important changes and we believe they will better safeguard the rights of individuals and also help Australia to be a better global citizen. We were conscious when we looked at this bill not to make it more difficult than it already is for our law enforcement officers to do the work that they are often called to do in collaboration and cooperation with other governments. After speaking with the Australian Federal Police, for example, we are quite satisfied that they are comfortable with these amendments.

This is a very important bill. As our chair has said, we do recommend that consideration be given to amending the current provisions of the Extradition Act, which allow bail to be granted only in special circumstances. We believe a magistrate should be able to use his or her full discretion when it comes to considering bail.

We also believe that, since these are significant changes to the current law, we should include removing several grounds for refusing assistance in mutual assistance cases, such as the current double jeopardy ground. Given the seriousness of the issues involved in extradition and mutual assistance, the committee recommends that the government undertake to review the operation of the amendments three years after they come into force if the amendments are passed by this parliament. We think that is very important to do. The review will ensure that the amendments are operating as intended and that there are adequate safeguards in place to protect human rights.

Again let me stress that there was bipartisan supported approval of this bill, and we certainly commend it to the House.