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

by leave—I move Greens amendments (1), (2), (3), (16) and (18) together:

(1) Schedule 2, item 24, page 16 (after line 33), after paragraph 15B(3)(a), insert:

  (aa) the Attorney-General does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to cruel, inhuman or degrading treatment or punishment; and

(2) Schedule 2, item 29, page 18 (after line 6), after paragraph 25(2)(ba), insert:

  (bb) the Attorney-General does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to cruel, inhuman or degrading treatment or punishment; and

(3) Schedule 2, item 30, page 18 (after line 16), after paragraph 25(3)(a), insert:

  (aa) the Attorney-General does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to cruel, inhuman or degrading treatment or punishment; and

(16) Schedule 2, page 39 (after line 28), after item 104, insert:

  104A

After paragraph 22(3)(b)

  Insert: (ba) the Attorney-General does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to cruel, inhuman or degrading treatment or punishment; and

(18) Schedule 3, item 6, page 45 (after line 24), after paragraph 8(1)(ca), insert:

  (cb) there are substantial grounds for believing that, if the request was granted, the person would be in danger of being subjected to cruel, inhuman or degrading treatment or punishment; or

The effect of these amendments would be to expand the existing grounds for refusing an extradition or mutual assistance request to include cruel, inhuman or degrading treatment or punishment. The bill as it stands does extend existing safeguards relating to torture. In the case of extradition, the existing anti-torture provisions are being brought into line with Australia's non-refoulement obligations under the convention against torture and, in the case of mutual assistance, there will now be for the first time an express prohibition on providing such assistance where, as a result, a person may be subjected to torture. These amendments are welcomed by the Australian Greens.

Let us consider, though, that the full name of the convention against torture is in fact the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Similarly, article 7 of the International Covenant on Civil and Political Rights provides:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Australia has been a party to both of these treaties for over 20 years. In fact, Australia has been a party to the ICCPR for over 30 years. In submissions made to the House Standing Committee on Social Policy and Legal Affairs in relation to this bill, the Law Council of Australia, the Australian Human Rights Commission, the Australian Lawyers Alliance and the Human Rights Law Centre were in unanimous agreement that, in order for Australia to fully discharge its international human rights obligations, cruel, inhuman or degrading treatment or punishment should be added as a mandatory ground of refusal to both the Extradition Act and the Mutual Assistance in Criminal Matters Act.

The minister's office has assured us that concerns about such treatment can be addressed through the Attorney-General's general discretion to refuse extradition or assistance. However, as highlighted by the House committee report, if this ground of refusal is not legislated for, there is no statutory obligation on the Attorney-General to turn her mind to these matters. There will be no guarantee that the prospect of such treatment would receive active consideration in any particular extradition or mutual assistance case. The minister's office has also indicated that, in the government's opinion, the scope of the phrase 'cruel, inhuman or degrading treatment or punishment' is unclear under current international jurisprudence and would therefore introduce an unacceptable level of uncertainty into Australia's extradition and mutual assistance regimes. The Australian Greens do not accept that incorporating 'cruel, inhuman or degrading treatment or punishment' into the bill would present an impossible legal quagmire. Australia is obliged to give good-faith effect to the treaties it signs. I note that giving legal effect to the term was not proved an insurmountable obstacle to the great number of countries who have incorporated a prohibition on such treatment into their national or regional bills of rights. The New Zealand Bill of Rights Act includes such a prohibition, as does the European Convention on Human Rights. Further, the Australian government itself has legislatively used and defined the term as recently as last year in the Migration Amendment (Complementary Protection) Act 2011, the provisions of which are now incorporated into the Migration Act 1958. The purpose of this 2011 piece of migration legislation was to better meet Australia's human rights obligations with respect to non-refoulement under international law. Under the Migration Act, the phrase 'cruel, inhuman or degrading treatment' is already incorporated into the aggravated offence of people-smuggling. Identification tests must not be carried out in a 'cruel, inhuman or degrading' manner.

As of 14 February 2012, when the Migration Amendment (Complementary Protection) Act 2011 came into force, the Australian government was obliged to consider whether a non-citizen they are seeking to deport will be subject to cruel, inhuman or degrading treatment or punishment in the receiving country when deciding whether or not to grant that person a protection visa. These new migration laws seem to me to be directly relevant to Australia's non-refoulement obligations as embodied in the Extradition Act. And they also directly contradict the government's argument that the scope of the phrase 'cruel, inhuman or degrading treatment or punishment' is too uncertain to be given legal effect.

My last point on this group of amendments is this: in May 2009 the United Nations Human Rights Committee recommended that Australia should take urgent and adequate measures to ensure that nobody is returned to a country where there are substantial grounds to believe they are at risk of being arbitrarily deprived of their life, being tortured or being subjected to other cruel, inhuman or degrading treatment or punishment. This applies equally to those who are the subject of an extradition request and those who have sought but been denied refugee status in this country. I commend the amendments to the chamber.

Joe Ludwig (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

It has been clearly conveyed to the Greens but, just to put it beyond doubt, the government does not support incorporating 'cruel, inhumane or degrading treatment or punishment' as a mandatory ground for refusing extradition or mutual assistance. You have summarised the position of the Commonwealth.

'Cruel, inhumane or degrading treatment or punishment' is not defined in the Convention Against Torture. The scope of the phrase is unclear under current international jurisprudence. Concerns about dealing with the substance of the matter and concerns about cruel, inhumane or degrading treatment or punishment can be addressed through the minister's general discretion to refuse extradition or mutual assistance. The government has undertaken to table an addendum to the explanatory memorandum to the bill, which will make it clear that it is at the minister's general discretion to refuse extradition or assistance permits regarding any relevant consideration, including the treatment of a person following surrender. Further, serious forms of cruel, inhumane or degrading treatment or punishment are likely to be addressed through the statutory requirements for the minister to consider torture as a mandatory ground of refusal.

The Commonwealth remains of the view that the inclusion of a specific statutory requirement to also consider 'cruel, inhumane or degrading treatment' is likely in this legislation to result in substantial legislative uncertainty. I heard the arguments you put, but the government remains of its view. We seem to be poles apart on that. I accept that you will not move; however, we will not accept your amendment.

Question negatived.

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

by leave—I move Australian Greens amendments (4), (5) and (17) on sheet 7189 together:

(4)   Schedule 2, heading to Division 2, page 19 (line 25), omit "and sexual orientation", substitute ", sexual orientation and gender identity".

(5)   Schedule 2, item 37, page 19 (line 28), after "orientation,", insert "gender identity,".

(17)      Schedule 3, item 5, page 45 (line 19), after "orientation,", insert "gender identity,".

The effect of these amendments will be to expand the existing grounds for refusing an extradition or mutual assistance request to include discrimination on the basis of gender identity. The bill, as it stands, does include new grounds for refusing extradition if, upon surrender, the person may be discriminated against on the basis of his or her sex or sexual orientation. It also adds discrimination on the basis of sexual orientation as an additional ground for refusing a mutual assistance request.

The Australian Greens have welcomed these amendments. However, the bill, in its current form, does not extend these protections to discrimination on the basis of gender identity. It is no secret that during the 2010 election campaign the Australian Labor Party made a commitment to introduce new protections from discrimination on the basis of gender identity into Commonwealth antidiscrimination laws. The government has since confirmed to us that it is firmly opposed to discrimination against a person on the basis of their gender identity and proposes to introduce gender identity discrimination protections as part of its broader antidiscrimination harmonisation and consolidation project.

Again, Minister Clare's office has assured us that concerns about discrimination on the basis of gender identity can be addressed through the Attorney-General's general discretion to refuse extradition or assistance. But this provides no guarantee that the Attorney-General will turn her—or his in the future—mind to these matters in any particular case or, indeed, that any future Attorney-General would be minded to consider these matters. Minister Clare's office has also indicated that the consolidation project may include consequential amendments to other laws such as the extradition and mutual assistance acts. I emphasise the use of the word 'may' in that sentence; it is not a guarantee. The Australian Greens firmly support the strengthening of Australia's equality laws in order to bring about a fairer, healthier and more inclusive society, and it has long been a policy position of the Australian Greens that freedom of sexuality and gender identity are fundamental human rights. On this basis, I commend the amendments to the chamber.

Joe Ludwig (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Again, it would be no surprise to find that the arguments that you have put have summarised the government's position quite aptly. We do not agree with the amendments for the reasons that you have highlighted. It is best in this instance. There is no definition within federal antidiscrimination law of 'gender identity'. Including that term would pre-empt the government dealing with new protections from discrimination on the basis of sexual orientation and gender identity, which will be implemented as part of the Attorney-General's Department consolidation of federal antidiscrimination law project.

The Attorney-General is the process of seeking views from the community on a definition of 'gender identity' and I would not want the government to be in a position of pre-empting that process. It is a sensible way of dealing with it. Post that, it can be dealt with as consequential amendments to legislation where the issue is settled through and after consultation. It is in the government's view more appropriate to introduce gender identity discrimination protections as part of that consolidation project, which may include, as I have indicated, consequential amendments to other laws and not only the extradition and mutual assistance acts, rather than, in this instance, introducing a term undefined in a piecemeal way in this legislation.

Can I say though that the government stand firmly on the side of opposing discrimination against a person on the basis of their gender identity. The second reading speech on the bill notes that discrimination against a person on the basis of their gender identity would be a ground for refusing extradition under the minister's general discretion. On that basis, the inclusion of the explicit ground for refusing extradition or assistance in circumstances where there is discrimination against a person because of their sex or sexual orientation will complement the minister's existing general discretion to refuse extradition. For those reasons, we do not support your amendments.

Question negatived.

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

By leave—I move amendments (6) through to (15) on sheet 7189 together:

(6)   Schedule 2, page 30 (before line 22), before item 63 in Division 8, insert:

62A Subsection 15(2)

Omit ", subject to subsection (6),".

62B Subsection 15(5)

Omit ", subject to subsection (6),".

62C Subsection 15(6)

Repeal the subsection.

(7)   Schedule 2, item 67, page 32 (line 4), omit ", subject to subsection (3),".

(8)   Schedule 2, item 68, page 32 (line 10), omit "(subject to subsection (3))".

(9)   Schedule 2, item 69, page 32 (lines 17 and 18), omit subsection 18(3).

(10)   Schedule 2, item 70, page 32 (lines 27 and 28), omit "(subject to subsection (9A))".

(11)   Schedule 2, item 72, page 33 (lines 6 to 8), omit subsection 19(9A).

(12)   Schedule 2, item 74, page 33 (lines 21 and 22), omit "(subject to subsection (2B))".

(13)   Schedule 2, item 74, page 33 (lines 27 to 29), omit subsection 21(2B).

(14)   Schedule 2, item 84, page 35 (lines 28 and 29), omit ", subject to subsection (3),".

(15)   Schedule 2, item 84, page 36 (lines 1 and 2), omit subsection 49C(3).

The effect of these amendments will be to remove the presumption against bail in the Extradition Act. The bill, as it stands, does extend the availability of bail to the later stages of the extradition process. Currently, once a person is found eligible for surrender by a magistrate, they must be remanded in custody to wait for a final surrender determination by the Attorney-General. The bill, if passed in its current form, will instead allow a person to be remanded on bail in 'special circumstances'. This reflects the existing presumption against bail in the earlier stages of extradition proceedings. Even in these early stages, bail is only granted if special circumstances justifying a grant of bail can be shown.

Whilst the Australian Greens welcome the possibility of bail being granted in the latter stages of extradition proceedings, we do not support the continuation of a statutory presumption against bail. Our amendments would remove the presumption against bail in all extradition proceedings and by doing so restore the common-law presumption in favour of bail. The department attempts to justify the persistence of the presumption against bail by referring to the serious flight risk posed by persons in extradition matters, and I note that this was raised by Senator Brandis in his speech in the second reading debate as well. In response, the House Standing Committee on Social Policy and Legal Affairs said in its report:

… the Explanatory Memorandum to the Bill and the evidence provided by the Attorney-General’s Department fail to provide adequate justification on this point.

The House committee report also went on to say:

The Committee is concerned that this statutory presumption against bail unnecessarily restricts the judge in the exercise of his or her judicial discretion to determine whether a person should be remanded in custody or on bail, having regard to the individual circumstances of the case and the interests of justice.

The Committee considers that the Extradition Act could continue to operate effectively if there was no statutory presumption in favour of or against bail. It should rightly be the role of the judiciary to determine the merits and risks of bail in each and every case.

The Law Council of Australia and the Human Rights Law Centre have also expressed serious reservations about these provisions. The Law Council pointed to the unnecessarily harsh effect of these laws, given the extensive period of time—sometimes years—it can take to complete the extradition process. The Human Rights Law Centre submitted that the current position in relation to bail is manifestly incompatible with the prohibition against arbitrary detention in article 9 of the ICCPR, which requires that any detention be reasonable, necessary, proportionate and subject to judicial review.

I note that there is no statutory presumption against bail in the extradition legislation of Canada, New Zealand or the United Kingdom. As I said in my introductory comments, the significant social and economic costs of crime do not warrant undue encroachment on fundamental legal principles or universal human rights. The presumption against bail in the current Extradition Act, repeated in this bill, is an unnecessary blunt legislative tool which, in my view, reflects a lack of faith in Australia's judicial system on the part of the Australian government. It should be left to the judiciary to determine whether remand in custody is appropriate, necessary and proportionate in light of the seriousness of the charge, the risk of flight and the likely length of time to be spent in custody including time already spent. On this basis I commend the amendments to the chamber.

Joe Ludwig (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Again, it would come as no surprise that the government does not support the Greens amendments in this regard. It does not support removing the current presumption against bail. The current presumption against bail for persons sought for extradition is appropriate. I think that in some part the issue around flight risk may or may not have been underestimated by the Greens in their argument for withdrawing that. But, if you look at the House report, I think that it is quite clear there at 2.59, where it says:

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—

I will add an emphasis here—

Australia’s international obligations to secure the return of alleged offenders to face justice in the requesting country.

So there is that extra requirement about our international standing. I think the emphasis should not be lost. It continues:

The High Court in United Mexican States v Cabal has 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.

For those reasons, the view of the Commonwealth is to continue to maintain the amendment as provided for in the legislation. If a person who has been remanded on bail disappears in the middle of extradition proceedings, it can, as I think I have emphasised, do more than just jeopardise Australia's ability to extradite the person; it would impede Australia's treaty obligations to return that person to the requesting country, and ultimately it could also lead to a state of impunity where a person can disappear and continue to evade law enforcement authorities.

Bail, of course, can be granted in special circumstances—for cases such as poor health—and in those instances it would seem appropriate to leave that to the discretion of the magistrates or the courts more broadly. The courts, in my view, have shown their willingness to grant bail when these circumstances arise. For these reasons, the government considers that the current presumption that bail should be granted only in special circumstances is appropriate and should be maintained.

Question negatived.

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

by leave—I move Greens amendments (19) and (22) on sheet 7189 together:

(19)   Schedule 3, item 10, page 46 (lines 12 and 13), omit the item, substitute:

10 Paragraph 8(1)(f)

Repeal the paragraph, substitute:   (f)   the request relates to the investigation, prosecution or punishment of a person for an offence in a case where:      (i)   the person has been acquitted or pardoned by a competent tribunal or authority in the foreign country, or in Australia or another country; or      (ii)   the person has undergone the punishment provided by the law of the foreign country, or of Australia or another country;

     in respect of that offence or of another offence constituted by the same act or omission as that offence.

(22)   Schedule 3, item 14, page 47 (lines 1 to 19), omit the item, substitute:

14 Paragraph 8(2)(b)

Repeal the paragraph, substitute:   (b)   both of the following subparagraphs are satisfied:      (i)   the request relates to a foreign order in relation to an offence;      (ii)   an act or omission constituting the offence, had the act or omission occurred in Australia, would not have constituted an offence against Australian law at the time at which the request was received; or

The effect of these amendments will be to maintain double jeopardy as a mandatory ground of refusal for mutual assistance. When speaking on this bill in the House, Brendan O'Connor, who was at that time the Minister for Home Affairs and Minister for Justice, said that under this bill there will be no devolution of the protections and safeguards afforded under the existing extradition and mutual assistance regimes. With respect to double jeopardy, that is not the case. Under existing mutual assistance laws, double jeopardy is a mandatory ground for refusal. The bill proposes to lessen this protection and replace it with a discretionary ground for refusal. The explanatory memorandum states that this will:

… enable the provision of assistance in appropriate exceptional cases such as where there is fresh evidence that was not available at the original trial, or where there are other circumstances accepted in Australia as being exceptions to the double jeopardy principle.

This change was highlighted as a potential item of concern by the Senate Standing Committee for the Scrutiny of Bills. It is also opposed by the Law Council of Australia, the Australian Lawyers Alliance and the Human Rights Law Centre.

Back in 2007, COAG agreed on a national double jeopardy law reform model, but actually 'agreed' is probably too strong a word, because both Victoria and the ACT reserved their position. Not all jurisdictions have gone on to implement these reforms, so I cannot accept the argument that the minister should have the discretion to provide assistance in circumstances accepted in Australia as being an exception to the double jeopardy principle. There is no such unanimous position. In those jurisdictions where reforms have been progressed, Greens MPs have been vocal in their concern that these double jeopardy reforms are simply another manifestation of the 'tough on crime' race to the bottom which is unfortunately seen so often in the states and territories.

In any event, the COAG reforms contain a large number of safeguards which the Australian government does not propose to incorporate into the Mutual Assistance in Criminal Matters Act. Take, for example, the South Australian double jeopardy reform laws enacted back in 2008. This act, the Criminal Law Consolidation (Double Jeopardy) Amendment Act, runs to 12 pages, the vast majority of which is dedicated to introducing legislative safeguards which strictly circumscribe the circumstances in which the double jeopardy principle can be departed from. Contrast that with the government's proposed reforms in this bill, which are limited to just one provision granting the minister a wide discretion to abandon the double jeopardy principle but with no in-built legislative safeguards to temper that discretion.

Reassurances in the explanatory memorandum that the discretion will be used only in exceptional circumstances are not enough. Strong and explicit legislative safeguards are absolutely essential if the centuries-old rule of law relating to double jeopardy is to be watered down. The rule against double jeopardy is a longstanding principle of fair trial rights specifically designed to protect individuals from potential state oppression and harassment. Unless there are some limits to the criminal justice process, it can be used as an instrument of tyranny by the executive. The principle that a verdict of acquittal is final is one of the most important safeguards circumscribing the prosecution process.

The Australian Greens do not accept that a case has been successfully made for the dilution of the double jeopardy protections in our mutual assistance regime. The Australian Greens do, however, support the proposal to amend the double jeopardy ground for refusal such that a request for assistance can be refused whether the person has previously been acquitted, pardoned or punished in respect of the offence or conduct not only in the requesting country but also in Australia or a third country. We also support the proposal to extend the operation of the double jeopardy ground for refusal to the investigation and punishment stages of a case. For this reason, our amendments do not just maintain the status quo; rather, they insert an amended mandatory ground for refusal which addresses my last two mentioned areas of reform. On this basis I move amendments (19) and (22) circulated by the Australian Greens and I commend them to the chamber.

Joe Ludwig (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The government does not support retaining the mandatory double jeopardy ground for refusing assistance. The bill will make the double jeopardy ground for refusal a discretionary rather than a mandatory ground for refusal as there may be exceptional circumstances where it is appropriate to provide assistance, notwithstanding double jeopardy concerns. For example, this includes where there is fresh and compelling evidence that was not available at the original trial, such as new DNA evidence or evidence obtained through technological developments or where there are other circumstances accepted in Australia as being exceptions to the double jeopardy principle. It may also be appropriate to provide assistance if there are doubts about legitimacy of the original trial and there is a fresh trial in a third country.

In recent years most Australian jurisdictions—I think it has been acknowledged—have also amended their criminal law to provide for exceptions to the double jeopardy rule in exceptional circumstances; for example, as Senator Wright outlined, where fresh and compelling new evidence emerges. This amendment does not gavel with the rule as such; it provides a discretion to the minister. This amendment will ensure that Australia is able to provide assistance in these exceptional cases and reflects the evolving jurisprudence on double jeopardy.

Question agreed to.

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

by leave—I move Greens amendments (20) and (21) on sheet 7189 together:

(20)   Schedule 3, item 11, page 46 (lines 16 to 27), omit subsection 8(1A), substitute:(1A)   A request by a foreign country for assistance under this Act must be refused if it relates to the investigation, prosecution or punishment of a person for an offence in respect of which the death penalty may be imposed in the foreign country, unless the Attorney-General is of the opinion that the assistance requested should be granted because it is likely to show that the person is not guilty of the offence.

(21)   Schedule 3, page 46 (after line 27), after item 11, insert:

11A Subsection 8(1B)

Repeal the subsection.

The effect of these amendments would be to remove the discretion of the Attorney-General to provide mutual assistance in circumstances where the death penalty could apply unless that assistance were to be exculpatory in nature. The bill as it stands purports to expand the mandatory death penalty ground for refusing a mutual assistance request to cover situations where a suspect has been arrested and detained on suspicion of having committed a death penalty offence but has not yet been charged.

The Australian Greens welcome the move to extend the death penalty ground for refusal to cover mutual assistance requests which relate to all stages of the investigation, prosecution and punishment of a person, although in our circulated amendment (20) we achieve this using slightly different wording to that adopted by the government in its proposed amendment. We do this to bring the wording used in the death penalty ground for refusal in line with the other mandatory grounds for refusal contained in the mutual assistance act.

The government's wording is not our key objection, however. Our key concern is that the death penalty ground for refusal is not really mandatory at all because the Attorney-General retains an unfettered discretion to provide assistance in cases where the death penalty might be imposed 'having regard to the special circumstances of the case'. This issue was highlighted with concern by the Senate Standing Committee for the Scrutiny of Bills. The retention of such a discretion is also unanimously and stridently opposed by the Law Council of Australia, the Australian Human Rights Commission, the Australian Lawyers Alliance and the Human Rights Law Centre. Opposition to the death penalty is a longstanding and fundamental policy position of the Australian Greens. As a nation, Australia has committed itself to opposing the death penalty by becoming a party to the second optional protocol on the ICCPR aiming at the abolition of the death penalty.

Reassurances in the explanatory memorandum about the circumstances in which the discretion will be used are not sufficient safeguards to justify the retention of this discretion. This is a recurring theme in the amendments I have moved today. We are talking about the potential denial of the most fundamental of human rights: the right to life. If the Australian government only proposes to provide such assistance where it may assist a defendant to meet the charges that he or she faces or where an appropriate undertaking has been received, then these circumstances should be legislated as express exceptions to the otherwise mandatory ground for refusal. This is what our amendment achieves. The Attorney-General will only be able to provide mutual assistance in death penalty cases if she or he is satisfied that the assistance will be likely to show that the person is not guilty of the offence. On this basis, I have moved amendments (20) and (21) on the sheet circulated by the Australian Greens and commend them to the chamber.

Progress reported.