John Madigan (Victoria, Independent) Share this | Link to this | Hansard source

I rise tonight to speak of the hijacking—and I use that word deliberately—of Australian citizens by selected foreign governments. I am talking about Australia's extradition laws and the extraordinary powers they give foreign states over our people. These laws currently have a huge impact on the lives of many Australian citizens. They will continue to impact on our lives as further extradition treaties are ratified.

For many Australians what I have to say will likely come as a surprise—even as a shock. Every one of us is beholden to our extradition laws, and any one of us can be deported at the behest of a foreign country without trial or any presumption of innocence.

We know, for example, that our government is close to finalising an extradition treaty with China. While recognising the progress made by the Chinese in recent decades in dragging hundreds of millions of their citizens out of poverty, along with the importance of the trade relationship with China to our economy, we cannot ignore the fact that China remains a totalitarian one-party state where human rights abuses are an acceptable part of the political process. China is a country that continues to impose the death penalty, while refusing to disclose how many people it puts to death. China is a country where criminal trials are initiated at the whim of the ruling party, held in secret, and where the conviction rate hovers around 100 per cent.

This complete absence of the rule of law and due process is fundamentally inconsistent with Australia's core values. Many Australians will therefore be shocked to learn that the Turnbull government is considering entering a treaty with China that would allow the extradition of Australian citizens to face the Chinese judicial system. They would be even more shocked to learn that, under Australia's current legislation, the Extradition Act 1988, there is a 'no evidence' rule, meaning that a country that is seeking extradition of a person from Australia need not produce evidence of the alleged charges—that is, there is no requirement that an Australian court consider the merit of the allegations forming the basis of the extradition request, even where it relates to an Australian citizen. This essentially removes the power invested in Australian courts and transfers it to the hands of the country that makes the request.

In 2001, the Joint Standing Committee on Treaties undertook a review of Australia's law and policy relating to extradition laws under the Extradition Act. Specifically, the committee scrutinised the balance between the need to bring criminals to justice and ensuring that citizens of this country are provided the necessary protection from false accusations. A report was commissioned by that committee in August 2001, setting out their recommendations on the current legislation. The committee noted their concerns regarding the no evidence model, the lack of protection for Australians who are accused of crimes and subject to an extradition request and the lack of power of the Australian courts to scrutinise evidence. A response to the committee's inquiry was tabled by the Australian government on 17 May 2004.

The government stated it did not accept the recommendation for an inquiry into the no evidence model. It did, however, accept that some of the issues raised by the committee warranted investigation. It undertook to review the Extradition Act and Australia's extradition practice. A discussion paper was released by the Attorney-General in 2006 and the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill was passed by both houses in 2012. However, the no evidence rule was upheld to keep our extradition laws consistent with the United Nations Model Treaty on Extradition, which Australia is a party to. However, a number of other countries that are party to the same treaty have chosen not to enact a no evidence rule in their domestic law. For example, the United States has adopted a 'probable cause' test, meaning that any extradition request must include 'such information as would provide a reasonable basis to believe that the person sought committed the offence for which extradition is requested'. The person subject to the extradition request is entitled to give evidence in this process.

A recent example of the impact that our current laws are having on the lives of our citizens is the case of Mr Krunoslav Bonic. Mr Bonic is a Croatian-born Australian citizen, who resides in the ACT with his wife and three young children. He was arrested in September 2014 pursuant to a warrant under an extradition request from Bosnia for allegedly engaging in war crimes during the Bosnian War in the 1990s. Correspondence sent to the Australian government on behalf of Mr Bonic detailed the torture he faced during almost 12 months as a prisoner of war. Despite this, the Australian government continued to facilitate the extradition request to the foreign state where Mr Bonic had suffered.

Mr Bonic was held in custody in the ACT for about four months over the 2014 Christmas period, during which time his legal team conducted investigations in Bosnia and presented their findings to the Bosnian prosecutors. The extradition request was withdrawn on the basis of a lack of evidence, and Australian authorities released Mr Bonic. The lack of evidence and weakness of the case against Mr Bonic was apparent from an examination of the information forwarded by the Ministry of Justice in Bosnia. When this was pointed out to the Bosnian ministry, the extradition request was promptly withdrawn. Moreover, Mr Bonic had entered Australia as a refugee, following his capture and torture by a warring faction. Simple enquiries would have revealed this. Australia took no steps that ordinary Australians would expect their country to take before jailing, by administrative order, a fellow citizen.

I am also conscious that Justice Michael Kirby, although in dissent, has described the power given to the executive to order detention as unconstitutional. Mr Bonic lost four months of his life that he cannot regain. He now suffers both mentally, having been held in custody for four months, and financially, having to fund international investigations in Bosnia and the domestic extradition proceedings. Mr Bonic has sold his house and various other assets to fund his legal battle with the Australian government. He now has to start again financially, with three young children all in school.

If Australia further reviewed its extradition laws and adopted a similar model to the United States of America, Mr Bonic would not have faced a lengthy term of imprisonment and exiled from his young family; nor would he have faced anxiety over his possible return to the foreign state where he previously suffered. I call upon the government to acknowledge Mr Bonic's current claim for defective administration to allow Mr Bonic to be reimbursed for money that he should not have had to spend. Mr Bonic and his young family should not have to suffer at the hands of Australia's defective extradition legislation.

Safeguards must be put in place immediately to protect our citizens who are wrongfully subject to extradition requests. If we ultimately ratify a treaty with China, who will protect our citizens when they arrive in China and how will the Australian government ensure that the death penalty is not imposed upon them? An undertaking from the Chinese government that our citizens will not face a firing squad or possibly lethal injections is completely inadequate given what we know about the Chinese legal system. I therefore call upon Attorney-General Brandis to further review the Extradition Act and Australia's extradition practice before Australia ratifies any more treaties that put our Australian citizens at risk. On a matter of such public importance, this review should be a public review. If other nations can successfully conduct their extradition processes whilst maintaining the human rights of their citizens, why can't Australia? Finally, I call on the government to amend their laws in favour of preventing the unfair detention of their own citizens.