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Monday, 27 February 2012
Page: 889

Senator BRANDIS (Queensland—Deputy Leader of the Opposition in the Senate) (21:37): The opposition supports the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011. Because it is increasingly common for criminal activity to have a transnational component, the coalition believes it is essential that Australia provides and seeks international cooperation in ensuring that criminals are not able to evade justice simply by crossing borders. This requires a working extradition regime that includes appropriate safeguards.

Australia's extradition relationships with other countries ensure the effective administration of criminal justice here in this country. They also allow us to cooperate with other countries to fight crime and prevent Australia from becoming a safe haven for people who have been accused of serious crimes in other countries. Our national interest also requires that criminals cannot evade investigation, prosecution and asset confiscation simply because the evidence or proceeds of their crimes are in different countries. The coalition strongly believes this requires a responsive mutual assistance system to combat domestic and transnational crime with, again, appropriate safeguards built into the system.

It is important to recall that extradition does not arise as an obligation under international law. Rather, it is a favour accorded by one country to another. Extradition obligations between countries therefore arise principally from reciprocal treaty arrangements between states. The extradition treaties to which Australia is party are given effect by the Extradition Act. Mutual assistance is a different process directed towards a different outcome: it is directed towards the provision of formal government-to-government assistance in criminal investigations and prosecutions rather than the surrender of individuals between jurisdictions. Mutual assistance is also used to recover the proceeds of crime, which is integral to the fight against serious and organised crime.

Although a number of treaties exist between Australia and other countries for mutual assistance in criminal matters, the Mutual Assistance Act does not depend on the existence of a treaty with the relevant overseas country.

The current laws relating to extradition and mutual assistance in criminal matters were passed more than 20 years ago. A number of reviews of the legislation have been undertaken in the meantime, including a 2001 Joint Standing Committee on Treaties report, a government review in 2006, and more recently, discussion papers on both acts in 2009 and again in January 2011. As we all know, there have been significant changes in the nature and scale of global crime since that time, attributable to globalisation and changes in technology.

The Australian Federal Police have expressed concerns that the legislation, as it stands, has not kept pace with the advancements in technology—including the pervasiveness of technology—as it exists today. In a public hearing held by the House of Representatives Standing Committee on Social Policy and Legal Affairs the AFP expressed its concern about the fact that it is now possible to make telephone calls that do not go through Australian exchanges and it is possible to store data on devices and servers that are not in our jurisdiction. The AFP argued that this issue needs to be addressed in order to maintain the fight against organised crime and protect national security. The coalition strongly supports giving the AFP the tools it needs, subject to appropriate safeguards, to protect Australia's national security and wage war against transnational crime.

This bill amends the following features of the extradition and mutual assistance regimes. Firstly, it expands the existing grounds for refusing an extradition request, to include punishment or discrimination on the basis of a person's sex or sexual orientation. Secondly, similarly, it expands the existing grounds for refusing a mutual assistance request to include discrimination on the basis of a person's sexual orientation. Thirdly, it extends of the availability of bail in extradition proceedings, so that bail may be granted where a person has consented to extradition, and permits applications for bail in the later stages of the extradition process.

Fourthly, the bill widens the circumstances in which a person may be prosecuted in Australia in lieu of extradition. Currently, this only applies where extradition is refused on the basis that the person is an Australian citizen. Under the proposed amendments, a person may be prosecuted in Australia in any circumstances where Australia has refused extradition, and thus ensures that a refusal to extradite will not entail an escape from justice.

Fifthly, the bill incorporates an express prohibition on providing mutual assistance where the provision of that assistance may expose a person to torture, and provides guidance on assessing the risk of torture in extradition determinations, consistent with the UN convention. Sixthly, it expands the death-penalty grounds for refusal in mutual assistance requests to cover situations where a suspect has been arrested and detained but not formally charged. Finally, it expands the grounds for refusal to cover mutual assis­tance requests which relate to all stages of the investigation, prosecution and sentencing of a person. The coalition supports all of those amendments.

The Greens have circulated amendments to this bill, which the coalition does not support. I do, however, wish to make some remarks in relation to the proposed Greens amendments on the bail provisions. As a general principle, the coalition agrees that there should be a presumption in favour of bail in criminal proceedings. However, this presumption does not apply in extradition proceedings and is available only where special circumstances exist.

The status quo on the presumption against bail is appropriate in extradition matters because there are significant risks in granting bail to people suspected of serious criminal offences who have fled a jurisdiction in an attempt to evade justice. The Senate will be aware of the recent case of accused Serbian war criminal Dragan Vasiljkovic—also known as Daniel Snedden—who disappeared from the High Court in Canberra just one day before it ruled against him in an extradition request from Croatia. The result was a 43-day manhunt, involving a team of up to 40 police and a four-day covert surveillance operation by the Australian Federal Police, which eventually led to his arrest. The coalition agrees with the position of the Attorney-General's Department, which states that:

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 Australia's international obligations to secure the return of alleged offenders to face justice in the requesting country. The High Court in United Mexican States v Cabal had 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.

Evidence given to the Joint Standing Committee on Treaties during its inquiry indicated that the presumption against bail was included in the legislation on the basis that 'there was a very high risk of a person escaping, particularly since in many cases the person had fled the jurisdiction for Australia to evade justice'. Other countries, such as the United States, also uphold the presumption against bail, only allowing suspected criminals to be granted bail in special circumstances.

In summary, the coalition supports measures to ensure Australia is not seen as a safe haven for criminals and the profits of their crimes or indeed is not in fact a safe haven for criminals and the profits of their crimes. We also support measures that contribute to improving Australia's international crime cooperation legislation. For those reasons, the coalition supports the bill.