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Wednesday, 17 April 1985
Page: 1129


Senator COONEY(12.25) —The Extradition (Foreign States) Amendment Bill 1985 and the Extradition (Commonwealth Countries) Amendment Bill 1985 are directed to the necessity for this country to have arrangements with other countries for people accused of serious crimes to be returned to this country in cases where the crime has been committed in this country and they have fled overseas. The legislation specifically deals with the return of fugitives accused of having committed serious crimes in overseas countries to the country in which the crimes have been committed. It is based on the concept of reciprocity between the countries concerned.

There are two propositions which in a certain sense are at war with each other. The first proposition is that those who commit serious criminal offences should be punished and those accused of serious criminal offences should be returned to countries so they they can be properly dealt with. It is in the interests of everybody that crime and the detection of crime should be dealt with. On the other hand, there is always the question of people's rights and the liberties to which we are all entitled. It is a serious matter for a person who is accused of a crime overseas to be arrested in Australia, to be incarcerated here and then to be sent overseas to be dealt with by a jurisdiction over which this country has little control. Although some controls are provided for in both pieces of legislation, one would have to say that there is fairly minimal control over what happens overseas. A balancing act, if I may use that expression, must be performed in any extradition proceedings and in any arrangements made for extradition proceedings. These Bills attempt to do that.

The Extradition (Commonwealth Countries) Amendment Bill 1985 arose out of a meeting of Commonwealth Law Ministers in Sri Lanka in 1983. Those Ministers agreed on amendments to the London scheme which had been accepted by Commonwealth countries in the 1960s. The Extradition (Foreign States) Amendment Bill contains provisions similar to those operating among Commonwealth countries. The arrangements can be made either by regulation or by treaty. It is my view that, in all of those cases in which it can be done, the arrangements between foreign countries, other than those which are within the Commonwealth of nations, ought to be done by treaty. In any event, the provisions are contained in these Bills.

The first amendment contained in the Extradition (Foreign States) Amendment Bill 1985 should enable Australia to conclude extradition arrangements with countries which do not require the requesting country to furnish evidence of guilt; rather, they require information as to the allegations against the fugitive. This is a matter which is of particular significance to countries which have civil law systems which are different in their approach from those which Australia, with its committal proceedings, adopts. The second amendment will permit the conclusion of arrangements which permit extradition to be granted for any offence which carries a penalty of 12 months imprisonment or more without specifically describing the offence. This latter amendment will avoid difficulties which have been experienced in the past in cases in which the same offence is described differently in the law of the two countries concerned; in other words, where the description of a particular crime is different but the facts that make up the crime are the same in both countries. This amendment will overcome that problem. It should be mentioned in this context that in the agreements that Australia reaches under the Extradition (Foreign States) Amendment Bill in particular, regard is had by Australia to the proposition that the state to which the person is extradited should not carry out any death penalty that might be provided for certain crimes. That is one aspect which I commend most earnestly.

Senator Durack queried whether the Attorney-General should be the final arbiter on whether a particular crime is political. He mentioned the difficulties that he had and the fact that those difficulties had been resolved. I agree with what has fallen from the lips of Senator Durack.

Another aspect of these Bills which ought to be commended is the provision for the voluntary return of fugitives. A person who wants or agrees to go back to his country without full extradition proceedings being gone through can now do so. This, of course, cuts down the delay which might otherwise occur when a person has to wait an unconscionable time in prison for proceedings to be gone through. If he wants to avoid those proceedings by agreeing voluntarily to return to his country of origin he is now able to do so.

Another commendable aspect of these Bills is that extradition can now be obtained in respect of people who are accused of committing serious fiscal offences. That is a new trend in this area and shows the serious approach that is being taken around the world towards the people who are accused, and who may ultimately be proved guilty, of fiscal offences. There has been some talk about the way in which these proceedings should be undertaken and the question of the right of appeal. One measure which has been preserved-I commend it-is the writ of habeas corpus, that is, a person who has been committed to prison on the basis that he has been accused of a crime in another country can apply for habeas corpus. This gives an overriding discretion to the courts to oversee that the proper matters are attended to under the provisions in these Bills. I commend the Bills to the Senate.

Debate (on motion by Senator Ryan) adjourned.

Sitting suspended from 12.33 to 2 p.m.