Daryl Melham (Banks, Australian Labor Party) Share this | Hansard source

As you know, Madam Deputy Speaker, the appropriations debate allows wide-ranging discussions, because it relates to budget bills. Tonight I want to utilise that convention of a wide-ranging debate, and I rely on the appropriations in relation to the Attorney-General’s portfolio for the matters which I propose to raise.

For the first time in 18 years, I rise to criticise my state colleagues in the New South Wales government, in particular the Attorney-General’s department, for what I have said publicly is a mean-spirited and counterproductive response in relation to the transfer of a prisoner from Hong Kong under the International Transfer of Prisoners Act 1997. Rachel Diaz, who is in custody in Hong Kong, and her parents are constituents of mine. Rachel was convicted in relation to drug matters and is currently serving a sentence in a Hong Kong jail. Her date of birth is 28 December 1987. She is a classic example of a person who comes within the provisions of the International Transfer of Prisoners Act for repatriation back to Australia and to a New South Wales prison to serve the remainder of her sentence.

The matter has received some publicity and there is some information on a particular website on the internet. An article about the case appeared in the Australian on Monday, 19 May 2008. I wrote to the New South Wales Attorney-General in relation to this case on Monday, 21 April 2008. As of today’s date, Monday, 2 June 2008, I have not received a reply. My submissions to the New South Wales Attorney-General were strongly in favour of the New South Wales government exercising its discretion and agreeing to the repatriation of Ms Diaz back to Australia to serve the remainder of her sentence. The basis upon which the New South Wales government is prevaricating is that they are seeking $10,043 in costs for sending two people to Hong Kong to bring her back. That is the condition of their consent. The article quotes a spokeswoman for the New South Wales Attorney-General, saying:

‘These matters are considered on a case-by-case basis, but generally the state Government does not think it is reasonable for NSW taxpayers to have to pay to transport Australians who have been convicted of crimes overseas back to prisons in NSW.’

I put it to the New South Wales Attorney-General that there were three grounds for the waiver of this payment. One was the cooperation that Rachel Ann Diaz gave the authorities. I have to say this: she gave cooperation way beyond what was required.

There were two statements from a particular police officer attached to my submission. The first was from Detective Senior Constable John Bamford, as he then was, dated 27 July 2006, and on 26 October 2007 he made a statement when he was a detective sergeant. What he pointed out was that Diaz provided a frank and accurate account of her involvement in the attempted importation of heroin into Australia. Diaz also spoke of the role played by the accused persons, Kim and Zhang, in the offence. Diaz listened to a number of intercepted telephone calls involving her and she identified the voices of other persons involved in the offence. Diaz was also able to provide an insight into the exact context of those calls. She was fearful of possible reprisals, should she speak to the police or give evidence, but she chose to do so regardless. She was brought back to Australia to give that evidence.

We are told in the statement that, on 27 June 2006, Kim and Zhang changed their pleas to guilty. ‘In my opinion, the evidence of Diaz was a contributing factor to this change of plea’—that is what the detective said. What he is in effect saying, if one reads between the lines, is that it was the credible evidence given by Ms Diaz that led to Kim and Zhang pleading guilty. Why do I raise this? For this reason, Madam Deputy Speaker Vale: as you well know, given your background, if you run a drug trial in New South Wales with two accused, it can be a very expensive exercise. I estimate that this young woman saved the state of New South Wales more than $1 million by providing credible evidence which led to a plea of guilty instead of a fully-fledged trial, and the New South Wales state government repays her by trying to extract just over $10,000 for her return to Australia. She is a woman without means and her family is without means. Her family is $60,000 in debt as a result of assistance they gave her during her legal process in Hong Kong, particularly with her mother spending time over there. The medical evidence in relation to her shows that she was sexually assaulted as a 12-year-old and that that has had a profound effect on her behaviour. So she is a vulnerable individual. Within the last two weeks, someone in an adjoining cell committed suicide, so Ms Diaz has had to be transferred within the system because of the impact of that incident on her.

In relation to the hardship of the family and their inability to pay, the New South Wales government is relying on this family either borrowing money—the father has offered to make payments over time and that has been rejected—or someone coughing up the $10,000 to bring her back here. I will come to that in a short moment. Having read the International Transfer of Prisoners Act, I am a little bit angry in relation to the cost recovery, considering my interpretation of how the New South Wales government could get cost recovery, as against trying to impose this further burden on the Diaz family. The whole input behind this act is not cost recovery. No other state or territory in the Commonwealth requires cost recovery or consideration of it—only the New South Wales government. Ms Diaz’s mother, as a result of these trials and tribulations, and other trials and tribulations, has real problems in relation to her medical condition, to do with depression amongst other things. If I am wrong about the International Transfer of Prisoners Act on this, then I will put my hand up and say I am wrong, but I do not think I am. Having been a former Legal Aid solicitor and a public defender in New South Wales, I do know how to read an act of parliament and interpret it.

Section 27(4) of the International Transfer of Prisoners Act says:

Each minister concerned is to advise the Attorney-General in writing as to whether the Minister consents to the transfer on the terms proposed as soon as possible after receiving the notification.

The cost recovery section is section 51 of the act and is headed ‘Recovery of costs and expenses of transfers’. Section 51(1) says:

The terms agreed under this Act for transfer of a prisoner or Tribunal prisoner may, if the Attorney-General considers it appropriate, include terms relating to the recovery of the costs and expenses reasonably incurred in transferring the prisoner or Tribunal prisoner.

It sounds reasonable, which is what New South Wales says they are relying on, I believe. It is section 51(2) that is the clincher:

If any costs or expenses in respect of money recovered in accordance with such terms were incurred by a State or Territory, the Commonwealth is to reimburse the State or Territory concerned.

That is section 51(2). I will read it again:

If any costs or expenses in respect of money recovered in accordance with such terms were incurred by a State or Territory, the Commonwealth is to reimburse the State or Territory concerned.

What I am suggesting is that, if New South Wales are mean enough to want to get their $10,000, they should go to the Commonwealth and get the recovery from the Commonwealth—because it is a federal prisoner, in relation to the definitional section, that is coming back to Australia—and not go the family. That is something that I discovered just in preparation for saying something here in parliament this evening. I am appalled that, if I am right, it means that Ms Diaz has continued to be incarcerated on a false fact in terms of cost recovery—that New South Wales could have got it off the Commonwealth instead of putting the weights on her family.

One of the things I also said in my letter was that this goes to her rehabilitation in relation to the balance of sentence—the ability of the family to continue to visit her and help her before she comes out of prison in New South Wales when she is repatriated.

I call on the New South Wales government and the New South Wales Attorney-General to reconsider their position. I think it is unacceptable and poor public policy to put pressure on the family to come up with this money—or, if not the family, some anonymous donor. If they want their money, come to the Commonwealth. If not, cease and desist because, in the particular circumstances of this case, the cooperation of this prisoner has resulted in the New South Wales government saving over a million dollars in not having to go through a trial for the ringleaders of this event.

Madam Deputy Speaker, I thank you and the parliament and those present in the chamber for your indulgence in allowing me to give what is a wide-ranging speech during the appropriations debate. It is the first time I have done it in this form against my colleagues. The New South Wales Attorney-General is a good and decent man. It is just that in this matter I believe he has a blind spot and I strongly disagree with him.

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