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Wednesday, 4 May 1994
Page: 161


Senator SPINDLER (11.07 a.m.) —I move:

3.Clause 18, page 9, after subclause (1) insert the following subclause:

"(1A) A surrender warrant is not to be issued within the time the person:

    (a)may apply to the Federal Court for review of the determination; or

    (b)may appeal to the Full Court of the Federal Court against an order of the Court; or

    (c)may apply for special leave to appeal to the High Court against an order of the Full Court.".

This amendment, which relates to appeal rights, is designed to give a person a right of appeal against a determination by the Attorney-General. At present, there is no right of appeal from the Attorney-General's decision under clause 16. The application of the AD(JR) Act will be removed by an amendment to the act and this will be effected by the International War Crimes (Consequential Amendments) Bill.

  In framing these amendments the Democrats have been conscious of the need to ensure that the appeal rights are exercised expeditiously so that the surrender process is not unduly drawn out. The last thing we want to do is to delay these procedures which are, as I said, welcomed and supported by the Democrats. We believe that an executive decision of this type, which affects the legal rights of people, puts them at risk in our legal system and hands them over to another tribunal, must be subject to scrutiny by a court. We believe that the appeal should be able to be brought before an Australian court, but that the right must be exercised within seven days.

  With that same consideration of timing in mind, the amendments have been framed to ensure that the application to the Federal Court for a review of the Attorney-General's determination will involve a full hearing on all the available factual material. Subsequent appeals to the Federal Court and the High Court would be only on errors of law. I submit that will ensure that the appeals are dealt with expeditiously.

  I should add that the model for these amendments is section 21 of the Extradition Act. I believe that that act sets a minimum benchmark standard so far as review rights are concerned on extradition and surrender questions. I believe it is important that this bill conform with those minimum standards.

  I am advised that the government is unlikely to support this amendment, and I find that disappointing. There is nothing in the scheme that I have proposed that derogates from the mandatory terms of the United Nations resolution. Certainly, the Democrats' scheme guarantees the basic procedural safeguards and speed that are normally present in our criminal and administrative law.