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

I rise to continue speaking on the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011. We agree with legal and human rights organisations that the bill should go further in protecting the rights of those who are the subject of request for extradition or those whose rights are impacted by a request for mutual assistance. Accordingly, although I will not be moving amendments today in relation to all of the concerns raised by those organisations, I consider that some amendments are particularly important in order to achieve the right balance between international cooperation for effective law enforcement and fundamental protections of human rights.

The Greens have distilled those concerns into five key areas, and they are: firstly, expanding the existing grounds for refusing an extradition or mutual assistance request to include 'cruel, inhuman or degrading treatment or punishment'; secondly, expanding the existing grounds for refusing an extradition or mutual assistance request to include discrimination on the basis of gender identity; thirdly, removing the presumption against bail in the Extradition Act; fourthly, removing the discretion of the Attorney-General to provide mutual assistance in circumstances where the death penalty could apply; and, finally, maintaining double jeopardy as a mandatory ground of refusal for mutual assistance.

I would like to thank Minister Clare and his office for their efforts in recent weeks to address our concerns via amendments to the explanatory memorandum. However, unfortunately, despite good faith negotiations and a number of agreed changes, the amendments made to the explanatory memorandum do not adequately address our concerns to the point where it would be unnecessary for me to move the amendments I will be moving today. Thank you.

Matt Thistlethwaite (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Australia's extradition laws are about making sure that justice is served at home as well as abroad. They are about ensuring that Australia is not a place for refuge for those accused of a crime in another country and not a place of solace for those hoping to escape another legal system. But Australia's extradition and mutual assistance in criminal matters laws must remain relevant to the times. Our laws must ensure that the government and policing communities are a step ahead of advances and new techniques in criminal activity. This Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011 seeks to streamline and modernise the process for extradition and, importantly, ensure that the legislative regime in Australia does keep pace with advances in criminal activity throughout the world. It ensures that Australian authorities can offer a comprehensive range of assistance to our international criminal justice partners, subject to appropriate safeguards.

Australia's current extradition and mutual assistance legislation was developed more than 20 years ago and since then Australia has evolved and the world has changed. New ways for criminals to organise and conduct illicit business have emerged. The evolution of the internet, powerful personal computers and mobile phones means that Australia must change its laws to ensure its protection and to ensure the protection of Australian citizens. This bill provides Australian law enforcement agencies with relevant tools to protect us all.

In 2006 a discussion paper was 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. This bill has evolved out of that review and drafts of the bill were released for public consultation in 2009 and again in January this year. Through this process, the Law Council of Australia welcomed several key changes to the legislation. These include: expansion of the existing grounds for refusing an extradition request to include discrimination on the basis of a person's sex or sexual orientation; expansion of the existing grounds for refusing a mutual assistance request to include discrimination on the basis of a person's sexual orientation; extension of the availability of bail in extradition proceedings; expansion of the circumstances in which a person may be prosecuted in Australia in lieu of extradition; inclusion of an express prohibition on providing mutual assistance where it may expose the person to torture; as well as improvements in how the risk of torture is considered in extradition determinations.

The bill also ensures the expansion of the death penalty grounds for refusal in mutual assistance requests to cover situations where a suspect has been arrested and detained but not charged. Importantly, there has been expansion of the grounds to refuse to cover mutual assistance requests which relate to all stages of the investigation, prosecution and sentencing of a person.

The Law Council is right to acknowledge these positive additions to our extradition and mutual assistance laws. These amendments will be made to the Mutual Assistance in Criminal Matters Act to increase the range of law enforcement tools available to assist foreign countries with their investigations and prosecutions, to strengthen the protections against providing assistance where there is a death penalty or torture concern in the requesting country and to streamline existing processes for providing certain forms of assistance.

Mutual assistance with international policing agencies allows Australia to help our overseas partners prevent crime in their backyards and ensures that criminal activity is not being conducted in Australia against other nations. International police-to-police interaction is necessary for many operational requirements of agencies engaged in cross-border operations, including: to locate, restrain, forfeit and share the proceeds of crime; the mutual taking of evidence and the production of documents and other articles; joint operations in relation to search and seizure; and arrangements for persons to give evidence or assist investigations.

Amendments to the Crimes Act, the Mutual Assistance in Criminal Matters Act, the Telecommunications Act and the Surveillance Devices Act seek to increase the range of law enforcement tools available to assist foreign countries with their investigations and prosecutions. The bill will also streamline the process of sharing covert communication materials obtained in Australian investigations and includes a range of safeguards to ensure that information is provided to foreign countries only in appropriate circumstances.

The bill makes important amendments to streamline extradition. Often the process for extradition can take a long time—in many cases, several months—even if the person has consented to extradition. It is currently a complicated four-step process where each step is subject to separate judicial review. This bill will allow a person who consents to be extradited to waive the process, subject to certain safeguards. In these cases, if a magistrate is satisfied that the person understands the consequences of waiving the extradition process and the minister is satisfied that the person will not be subject to torture or to the death penalty, the person may be surrendered to a foreign country. The bill also specifies that a magistrate and the minister must consider extradition objections earlier as part of this process.

The bill makes changes allowing any person to be prosecuted where Australia has refused extradition. This means that, if a person is accused of a crime but cannot be extradited, he or she will still face justice in Australia. This tough action ensures that criminals do not do the crime and then escape doing the time. Additionally, the current legislation requires that a person deemed eligible for surrender must be placed in prison. The bill makes amendments to allow for special circumstances to justify bail in the later stages of the extradition process.

Importantly, the bill increases protections where there are concerns that torture may take place in the country requesting extradition and creates additional protections where there is a person who may be punished on the basis of sex or sexual orientation. This addition complements the legislation's current general discretion provisions for the minister to refuse to extradite on the basis of gender inequality and related health and humanitarian considerations.

Australia's extradition and mutual assistance in criminal matters laws must ensure that justice is served not only here but abroad. The changes contained in this bill ensure that justice is served for those accused of criminal activities abroad. They ensure that in our ever-changing world criminals cannot escape the law no matter where they commit the crime. Australia's laws must remain relevant, they must maintain the ability to keep up with technology and they must be able to stay one step ahead of criminals who would use that technology against us all. This bill is designed to respond to and to produce rapid changes in our international community to provide an appropriate basis for international cooperation against crime. I commend the bill to the Senate.

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

I thank senators for their contributions to this debate on the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011. When a person commits an offence in one country and then flees to another, it is vital that countries cooperate to ensure that person is brought to justice. People who commit serious crimes should not be able to evade prosecution by crossing international borders. Similarly, where evidence related to an offence is located in one country and the alleged offender is located in another, it is in the common interest to ensure that this evidence can be accessed and transferred for the purposes of investigation and prosecution. When Australia's current extradition and mutual assistance legislation was drafted over 20 years ago, it would have been difficult to foresee and plan for the massive changes in communications, technology and travel that have revolutionised the way we live and conduct business. This bill before the Senate today is an important update to these legislative schemes. The amendments to the mutual assistance legislation will extend the range of assistance Australian authorities can offer to their international counterparts. This will include allowing domestic law enforcement agencies to carry out forensic procedures and undertake surveillance for the purposes of assisting foreign law enforcement authorities in their investigations and prosecutions. But it is important to emphasise that, while the range of assistance that can be provided to foreign countries will be expanded, the new powers will be subject to the same rigorous safeguards that would apply to a domestic investigation. This will ensure that the privacy and human rights of individuals are appropriately protected. In addition, the existing protections set out in the Mutual Assistance in Criminal Matters Act, including grounds of refusal, will apply to the new powers. Further amendments will also be made to strengthen legislative safeguards relating to situations where there are concerns about the death penalty, torture or discrimination.

The bill will also make important reforms to Australia's extradition legislation. It will expedite the extradition process by removing duplications in decision making, by reducing the time it takes to progress an extension request and by potentially reducing the amount of time a person is required to spend in extradition custody. The amendments will extend the availability of bail and will introduce important safeguards to ensure that a person cannot be extradited in situations which would discriminate against them on the basis of their sex or sexual orientation. Steps will also be taken to ensure Australia does not become a safe haven for criminals by allowing Australian authorities to prosecute a person in Australia when it is not possible or appropriate to extradite them.

The bill has been the subject of extensive public consultation, with exposure drafts released for comment in 2009 and again in 2011. The bill has also been subject to extensive parliamentary scrutiny after it was referred for inquiry by the House of Representatives Standing Committee on Social Policy and Legal Affairs. I note that the committee has made a number of recommendations to the government on the bill, and the majority of these have been accepted. I am satisfied that the measures in this bill have been thoroughly considered and the bill strikes the correct balance between ensuring Australian authorities have the powers they need to effectively cooperate in bringing international criminals to justice and protecting the rights of the accused. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.