George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The opposition supports the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011. Because it is increasingly common for criminal activity to have a transnational component, the coalition believes it is essential that Australia provides and seeks international cooperation in ensuring that criminals are not able to evade justice simply by crossing borders. This requires a working extradition regime that includes appropriate safeguards.

Australia's extradition relationships with other countries ensure the effective administration of criminal justice here in this country. They also allow us to cooperate with other countries to fight crime and prevent Australia from becoming a safe haven for people who have been accused of serious crimes in other countries. Our national interest also requires that criminals cannot evade investigation, prosecution and asset confiscation simply because the evidence or proceeds of their crimes are in different countries. The coalition strongly believes this requires a responsive mutual assistance system to combat domestic and transnational crime with, again, appropriate safeguards built into the system.

It is important to recall that extradition does not arise as an obligation under international law. Rather, it is a favour accorded by one country to another. Extradition obligations between countries therefore arise principally from reciprocal treaty arrangements between states. The extradition treaties to which Australia is party are given effect by the Extradition Act. Mutual assistance is a different process directed towards a different outcome: it is directed towards the provision of formal government-to-government assistance in criminal investigations and prosecutions rather than the surrender of individuals between jurisdictions. Mutual assistance is also used to recover the proceeds of crime, which is integral to the fight against serious and organised crime.

Although a number of treaties exist between Australia and other countries for mutual assistance in criminal matters, the Mutual Assistance Act does not depend on the existence of a treaty with the relevant overseas country.

The current laws relating to extradition and mutual assistance in criminal matters were passed more than 20 years ago. A number of reviews of the legislation have been undertaken in the meantime, including a 2001 Joint Standing Committee on Treaties report, a government review in 2006, and more recently, discussion papers on both acts in 2009 and again in January 2011. As we all know, there have been significant changes in the nature and scale of global crime since that time, attributable to globalisation and changes in technology.

The Australian Federal Police have expressed concerns that the legislation, as it stands, has not kept pace with the advancements in technology—including the pervasiveness of technology—as it exists today. In a public hearing held by the House of Representatives Standing Committee on Social Policy and Legal Affairs the AFP expressed its concern about the fact that it is now possible to make telephone calls that do not go through Australian exchanges and it is possible to store data on devices and servers that are not in our jurisdiction. The AFP argued that this issue needs to be addressed in order to maintain the fight against organised crime and protect national security. The coalition strongly supports giving the AFP the tools it needs, subject to appropriate safeguards, to protect Australia's national security and wage war against transnational crime.

This bill amends the following features of the extradition and mutual assistance regimes. Firstly, it expands the existing grounds for refusing an extradition request, to include punishment or discrimination on the basis of a person's sex or sexual orientation. Secondly, similarly, it expands the existing grounds for refusing a mutual assistance request to include discrimination on the basis of a person's sexual orientation. Thirdly, it extends of the availability of bail in extradition proceedings, so that bail may be granted where a person has consented to extradition, and permits applications for bail in the later stages of the extradition process.

Fourthly, the bill widens the circumstances in which a person may be prosecuted in Australia in lieu of extradition. Currently, this only applies where extradition is refused on the basis that the person is an Australian citizen. Under the proposed amendments, a person may be prosecuted in Australia in any circumstances where Australia has refused extradition, and thus ensures that a refusal to extradite will not entail an escape from justice.

Fifthly, the bill incorporates an express prohibition on providing mutual assistance where the provision of that assistance may expose a person to torture, and provides guidance on assessing the risk of torture in extradition determinations, consistent with the UN convention. Sixthly, it expands the death-penalty grounds for refusal in mutual assistance requests to cover situations where a suspect has been arrested and detained but not formally charged. Finally, it expands the grounds for refusal to cover mutual assis­tance requests which relate to all stages of the investigation, prosecution and sentencing of a person. The coalition supports all of those amendments.

The Greens have circulated amendments to this bill, which the coalition does not support. I do, however, wish to make some remarks in relation to the proposed Greens amendments on the bail provisions. As a general principle, the coalition agrees that there should be a presumption in favour of bail in criminal proceedings. However, this presumption does not apply in extradition proceedings and is available only where special circumstances exist.

The status quo on the presumption against bail is appropriate in extradition matters because there are significant risks in granting bail to people suspected of serious criminal offences who have fled a jurisdiction in an attempt to evade justice. The Senate will be aware of the recent case of accused Serbian war criminal Dragan Vasiljkovic—also known as Daniel Snedden—who disappeared from the High Court in Canberra just one day before it ruled against him in an extradition request from Croatia. The result was a 43-day manhunt, involving a team of up to 40 police and a four-day covert surveillance operation by the Australian Federal Police, which eventually led to his arrest. The coalition agrees with the position of the Attorney-General's Department, which states that:

The current presumption against bail for persons sought for extradition is appropriate given the serious flight risk posed by the person in extradition matters, and Australia's international obligations to secure the return of alleged offenders to face justice in the requesting country. The High Court in United Mexican States v Cabal had previously observed that to grant bail where a risk of flight exists would jeopardise Australia's relationship with the country seeking extradition and jeopardise our standing in the international community.

Evidence given to the Joint Standing Committee on Treaties during its inquiry indicated that the presumption against bail was included in the legislation on the basis that 'there was a very high risk of a person escaping, particularly since in many cases the person had fled the jurisdiction for Australia to evade justice'. Other countries, such as the United States, also uphold the presumption against bail, only allowing suspected criminals to be granted bail in special circumstances.

In summary, the coalition supports measures to ensure Australia is not seen as a safe haven for criminals and the profits of their crimes or indeed is not in fact a safe haven for criminals and the profits of their crimes. We also support measures that contribute to improving Australia's international crime cooperation legislation. For those reasons, the coalition supports the bill.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I rise to speak on the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011. The bill proposes a number of significant reforms to streamline and modernise Australia's laws on extradition and mutual assistance. It is the first major reform to these laws in over 20 years. There is no doubt that in this time the landscape within which international crime occurs has changed considerably. Over the last 20 years we have seen massive advances in technology, communications and travel, and criminal networks have adapted accordingly.

Our law enforcement agencies must be adequately equipped to effectively combat crime in this new era. Certainly the Australian Greens do not dispute that law reform in this area is warranted. However, I wish to place on the record some considerable concerns that I, as legal affairs spokesperson for the Australian Greens, have about certain aspects of the bill and to explain why we feel it is necessary to move the five groups of amendments that we will be moving when the debate resumes. Despite the imperative to act effectively and decisively against international crime, Australia must also ensure that our justice system at all times respects and safeguards the democratic freedoms and human rights of those it affects.

There are significant social and economic costs of crime, but we must be vigilant that in responding we do not unduly encroach on hard won and painstakingly developed fundamental legal principles or erode well-recognised universal human rights, which are the hallmark of fair and civilised societies. As everyone here would agree, we need to strike the right balance. The issue exercising my mind has been whether indeed the right balance has been struck in this bill. It is the hard but essential work of this parliament to confront difficult issues such as how best to combat international crime without eroding the principles of the rule of law in Australia. In the laws that it makes, this parliament must fully discharge our international human rights obligations both at home and abroad. In so doing we help to protect our own citizens against arbitrary and unfair action and extend that approach to citizens in the rest of the world.

I recognise that this bill seeks to streamline and modernise Australia's laws on extradition and mutual assistance while maintaining appropriate human rights safeguards. I recognise that in a number of cases the bill introduces important new safeguards to the existing extradition and mutual assistance regimes. But on close consideration the Australian Greens cannot sit back and say that the right balance has been struck. In saying that I do wish to acknowledge the extensive consultation undertaken by the government with respect to this bill. I also recognise that significant changes were made to the bill as a result of that consultation process. However, through the consultation process, dating back to 2006 when discussion papers canvassing these reforms were first released, serious reservations have been expressed by a number of Australia's peak legal and human rights bodies about a range of matters associated with this bill, some of which have not been addressed by the government. These bodies include the Law Council of Australia, the Australian Human Rights Commission, the Australian Lawyers Alliance and the Human Rights Law Centre.