Mr TONY SMITH(4.00 p.m.) —One of the objectives of the International Transfer of Prisoners Bill is the facilitation of the transfer of prisoners between Australia and certain designated countries with which Australia has entered into agreements for the transfer of prisoners so that they may serve their sentences of imprisonment in their country of nationality or in countries with which they have community ties. The bill also facilitates the transport of prisoners to Australia from countries in which prisoners are serving sentences of imprisonment imposed by certain war crimes tribunals.

The criminal law is a very peculiar creature. Unless it touches you, you know that it exists but you rarely understand its workings. But once you get caught up in its vortex, as many of my clients for whom I acted over a number of years have been, there is an inevitable drawing further into that vortex. The tube, if you like, into which all defendants are taken on their journey through the criminal justice system has a number of sharp points along the way, and frequently the journey is punctuated by ups and downs. It is rarely, if ever, an occasion of much pleasure to be in that system.

Indeed, I am reminded of one of the greatest writers of the 19th century, Charles Dickens, in his book The Old Curiosity Shop, when he was talking about a rather amusing situation that used to occur outside the solicitor Sampson Brass's chambers. Sampson Brass used to have a tenant who was rather eccentric and who used to summon diverse people to come and perform Punch and Judy shows outside the chambers. As Dickens so beautifully put it, Brass could ill afford to lose so profitable a tenant so he deemed it prudent to pocket the affront along with the cash that the tenant provided. But he used other ways of trying to disperse the throng below which disrupted his business, such as the pouring down of foul waters from above, or bribing the drivers of coaches to come tearing around the corner and break up the assembled throng. Dickens so beautifully put it when he said:

You may well ask why he, being the legal gentleman, would not have indicted the party or parties responsible for the nuisance . . .

But he then proceeded with the warning, saying:

As doctors seldom take their own medicines and divines rarely practice what they preach, so lawyers are shy of meddling with the law on their own account knowing it to be an edged tool of uncertain application, very expensive in the working and known for its properties for close shaving if for not always shaving the right person.

So therein lies a very salutary lesson in the whole of the criminal justice system—as well as the civil system, I might say, which also has its attendant perils. Many times one sees people who are not guilty of crimes—indeed, there is barely a shred of evidence against them—but they are drawn into the system. And once the system starts, and once the engine is cranked, it rarely stops until the process is completed.

Despite the numerous submissions that can go out between charge and committal and between committal and trial, rarely, if ever, in my experience, is one of those submissions successful. So that preamble in essence is a warning to all those who think the system can work, that we have checks and balances, and that there is a way of making a protest about a wrongful conviction or sentence, or an inappropriate piece of evidence that has been adduced, and so forth. Believe you me, once the situation starts, and particularly once a person is convicted, the road becomes even rougher in trying to set aside an inappropriate conviction.

I say all that not with a view to casting any aspersion upon the integrity of the legislation but with a view to giving a warning to all those who think that it is a nice piece of legislation. I am not saying it is not a nice piece of legislation, but I am giving a warning to those who feel that there is nothing wrong with it and that it has great objects. Yes, it does have great objects.

As a member of the House of Representatives Legal and Constitutional Affairs Committee I participated in some hearings on this legislation. I did not get to the Parklea Correctional Centre at Blacktown in Sydney, but I understand the honourable member for Barton (Mr McClelland) was there and he may make some observations about that. I understand some evidence was taken at that venue from persons who have been personally affected with respect to a prisoner who has been sentenced in another country and is enduring a sentence of imprisonment there.

I do not think anybody on the committee argues with the proposition that the punishment must fit the crime and that people who commit criminal offences ought to be punished, if they have committed the offences and if the process leading to their conviction is untainted. Despite perhaps being almost myopic, some might say, in my views about this, my concern remains about the chances of unsafe convictions and miscarriages of justice which are always present. They are not common, but they are always present—and that is a concern I have in relation to the legislation.

Lawyers, certainly in Queensland, do remember the terrible case of Kelvin Condren, an Aboriginal chap who was convicted of murder in Mount Isa some years ago, and another prisoner confessed in the Northern Territory to that particular crime. One would think, in our jurisprudence, that that would result in an immediate release or, at the very least, an immediate and speedy hearing, a review of the case by the court of appeal, and swift action by the Attorney-General. In fact, there were two hearings over a period of something like seven years before Kelvin Condren was finally released and paid a substantial amount of compensation. It took seven years for that process to be corrected in our jurisprudence.

A fortiori, when it comes to convictions in relation to another country; while I appreciate strongly the force of the legislation and how, for it to work, it must give due recognition to convictions that have been recorded in the other country and that there is the reciprocal situation, I do have concerns about the operation of the act in so far as tainted convictions are concerned in another country—or, for that matter, in this country. But I am focusing particularly on the situation where a prisoner is convicted in another country. The pressure on him to acknowledge his guilt in order for the operation of this legislation to come into full flow, as it were, is obvious on the face of it. He obviously would prefer to spend his time in Wacol Correctional Centre or Parklea than in the `Bangkok Hilton'.

The fact is that if we have had miscarriages of justice in our jurisdiction there may be more examples of such miscarriages in a foreign jurisdiction. I do not necessarily say that there is, but I do say that we have the best criminal justice system in the world in Australia. I believe it far outstrips the English and the US systems, but there are still miscarriages of justice that do occur.

We have to be very careful to see that this legislation will work properly and, in particular, that we do not in certain circumstances deny justice to a prisoner who has come here and who then finds himself in a situation where the conviction in the other country has been found to be tainted by fraud or bias by a tribunal in that country. Perhaps a piece of evidence which was absolutely critical has been wrongly admitted, or perhaps a confession has been made allegedly by him to another person and that other person then renounces it, having taken the benefit of a remission in his sentence in that other country. Obviously, the inducement to bear false witness about the defendant's confession would have been very strong in those circumstances.

We have to be very careful that we do not exclude the possibility of that imprisoned person being able to make an application to the Attorney and perhaps the Attorney then being able to encourage the attorney or the corresponding legal figure of the other country to take action in respect of the original conviction. That is my concern.

I understand that other members of the committee did not have that concern, and I respect their views—it may be that I have taken an overly cautious approach. I do not believe, with the experience that I have, that I have missed anything in that process. I hope I have not, but I do have concern that we may have a situation where a key witness has renounced testimony, or there has been some taint in the conviction and no action is taken.

One thing that is common to both our justice system and to other justice systems is that it hates to be wrong. It hates to admit that it has made a mistake. It hates to concede that there may have been an error in the process. Examples of mistakes are legion in the United Kingdom.

One of the worst cases of all was the Hanratty case. James Hanratty was the last person to be hung in England. He was committed for trial in October of a particular year and by April of the next year he had gone to the gallows. Afterwards, as a result of reading a very fine book by Paul Foot, a journalist who did a comprehensive analysis of that case, you could not possibly conclude that Hanratty was guilty of the offence. At the very least you would be left with a reasonable doubt about it, yet it was too late for Hanratty. The whole process was tainted by a system that was desperately trying to protect itself from any suggestion that it had made a mistake.

We can go on to more recent times with the Birmingham Six and cases like that where the system has been corrupted but where nobody will do anything about it, year in, year out, and at the end of the day some poor devil has to languish in prison for a long time.

I sound that note of warning in relation to this legislation. I think there should be a discretion that is very carefully exercised in relation to matters of that nature. If there is a situation where someone has been found to have been wrongly convicted in the other country, where maybe someone else has confessed to the crime, or where there has been a taint in the procedure, then there must be swift procedures available if the other country fails to act to correct that situation.

That situation, I am told, is perhaps protected by the wording of the legislation in clause 15. I am not totally satisfied with that. However, as a matter of prudence, it has to be very carefully scrutinised and very carefully looked at before we can say that this legislation is totally free from any concern.

I support the legislation. I think that, in general terms, it is good legislation. I do have, of course, some doubts. I know that they were expressed by the honourable member for Swan (Mr Randall) in relation to the fact that, as far as costs are concerned, it looks as if we may well be bearing most of the costs because of the natural tendency for prisoners to want to stay here rather than go home and for prisoners who are overseas to want to come back here rather than stay over there. So it would seem, on its face, an arguable situation. But I will not steal my honourable friend's thunder in relation to that. I think he could do it better than I could anyway.

But, overall, I do support the human rights aspect of this particular procedure. But I warn the Main Committee that there are situations that can arise that are never foreseen and can never be foreseen. When they happen, unfortunately everybody wants to disappear and not look at the real problems. So, generally speaking, with those reservations, I support the bill.