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Wednesday, 22 August 2012
Page: 6057


Senator LUDLAM (Western Australia) (11:55): by leave—I move Greens amendments (5) to (8) on sheet 7143 together:

(5) Schedule 2, item 41, page 32 (after line 13), after paragraph 180A(5)(a), insert:

(ab) if the disclosure is in relation to a prosecution or punishment of a person charged with, or convicted of, an offence in respect of which the death penalty may be imposed in a foreign country—the foreign country has given an assurance that the death penalty will not be imposed in relation to that person for that offence; and

(6) Schedule 2, item 41, page 32 (after line 14), at the end of section 180A, add:

(6) In considering whether the disclosure is appropriate in all the circumstances for the purposes of paragraph (5)(b), the authorised officer must have regard to the grounds for refusing a request for assistance covered by section 8 of the Mutual Assistance in Criminal Matters Act 1987.

(7) Schedule 2, item 41, page 34 (after line 22), after paragraph 180C(2)(a), insert:

(ab) if the disclosure is in relation to a prosecution or punishment of a person charged with, or convicted of, an offence in respect of which the death penalty may be imposed in a foreign country—the foreign country has given an assurance that the death penalty will not be imposed in relation to that person for that offence; and

(8) Schedule 2, item 41, page 34 (after line 23), at the end of section 180C, add:

(3) In considering whether the disclosure is appropriate in all the circumstances for the purposes of paragraph (2)(b), the authorised officer must have regard to the grounds for refusing a request for assistance covered by section 8 of the Mutual Assistance in Criminal Matters Act 1987.

This set of amendments goes to the authorisation for access to telecommunications in relation to crimes or accusations that would attract the death penalty. As I indicated last night in the second reading speech, there is cross-party consensus in Australia that reflects a broad community view that a state does not execute its own citizens. It does not kill its own citizens no matter how terrible the crime.

But of course this bill is about data sharing with regimes that do still allow themselves to murder their own citizens so we need to look very, very carefully, in my view, at how we would potentially transfer data—and this is not abstract, because this does occur—to a regime where capital punishment may in fact exist for the crime under discussion. A reasonable number of submitters and non-government, civil society organisations submitted to the cybersafety committee that this bill actually does explicitly authorise Australia to potentially contribute to data collection activities that would send someone to death, and we need to be very, very careful.

The committee generated a recommendation on this, recommendation 6, which said the following:

That the disclosure of telecommunications data to a foreign country in the context of police to police assistance at the investigative stage and in relation to criminal conduct that, if prosecuted, may attract the death penalty, must:

(a) only take place in exceptional circumstances and with the consent of the Attorney-General and the Minister for Home Affairs and Justice; and

(b) each Minister must ensure that such consent is recorded in a register for that purpose.

I do not believe, and the Greens do not believe, that that recommendation went far enough to uphold Australia's opposition to the death penalty. The disclosure of telecommunications data to a foreign country in relation to an offence that carries the death penalty should be refused in the absence of a written assurance by the foreign country that the death penalty will not be imposed or carried out in this instance.

The range of offences, some of them very serious crimes—crimes of terrorism, organised crime, mass murder—varies from country to country obviously. Some of our neighbours in the Asia-Pacific region routinely murder people for drug offences that would be met in Australia with penalties of detention for various lengths of time. However we need to respect and pay very close attention to the fact that this bill will take telecommunications data to be used as evidence well beyond Australian criminal jurisdiction into places where capital punishment is levied.

As it stands, recommendation 6 leaves the door open for Australian law enforcement agencies directly or inadvertently to support an overseas prosecution which would lead to an execution, and I believe this is totally unacceptable. So what these amendments do in effect is require that, yes, our door is open to assist other jurisdictions in prosecuting crimes that would attract the most severe penalty that a state can levy against one of its own, but not if capital punishment is to be applied. We are seeking written confirmation that Australian assistance will of course be levied but only if the death penalty will not be called for in that instance.

We are not seeking to stand in the way of legitimate prosecutions, but it would give me grave concern to know that Australian law enforcement or intelligence agencies were contributing to a prosecution that saw someone put to death. So I strongly commend the amendments to the chamber.

The TEMPORARY CHAIRMAN ( Senator Sinodinos ): Senator Brandis.