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Repatriation of Citizens Bill 2007 [2008]
2004

2004-2005-2006-2007

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

Repatriation of Citizens Bill 2007

 

No.      , 2007

 

(Senator Allison and Senator Stott Despoja)

 

 

 

A Bill for an Act to provide for the repatriation of Australian citizens held in detention overseas, and for related purposes

   

   

   



Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Objects of Act..................................................................................... 1

4............ Right of a person to apply to the Attorney-General to request foreign government to release an Australian citizen 2

5............ Attorney-General must make request on behalf of a citizen detained overseas         3

6............ Circumstances where the Attorney-General must request foreign government for release of an Australian citizen  3

7............ Enforcement........................................................................................ 4

 



A Bill for an Act to provide for the repatriation of Australian citizens held in detention overseas, and for related purposes

The Parliament of Australia enacts:

 

1   Short title

                        This Act may be cited as the Repatriation of Citizens Act 2007 .

2   Commencement

                   This Act commences on the day after it receives the Royal Assent.

3   Objects of Act

                   The objects of this Act are to:

                     (a)  require the Australian Government promptly to request the government of a country in which an Australian citizen is being held in detention in circumstances where there is a risk of infringement of that citizen’s human rights under international human rights treaties and conventions to which Australia is a party to cause the swift release and surrender of that citizen to Australia; and

                     (b)  if the circumstances in paragraph (a) apply, provide for the repatriation to Australia of Australian citizens held in detention outside Australia.

4   Right of a person to apply to the Attorney-General to request foreign government to release an Australian citizen

             (1)  A person listed in this section, who is subject to the circumstances listed in subsection 6(1), has the right to apply to the Attorney-General to request a foreign government to release an Australian citizen:

                     (a)  a citizen being held in detention outside Australia; or

                     (b)  a relative of the citizen who is being held in detention; or

                     (c)  a consular or legal representative of the citizen who is being held in detention; or

                     (d)  an office holder of an organisation or association engaged in the protection of human rights or provision of international humanitarian support or aid.

             (2)  An application may be made by any form of communication, in writing, telephone (voice or text) or email from any location in or out of Australia.

             (3)  An application must be supported by evidence that:

                     (a)  the applicant is a person of a class listed in subsection (1); and

                     (b)  if the applicant is not the person in detention then proof that the person in detention is an Australian citizen;

which supporting evidence must be provided not later than one week after an application is first made in accordance with subsection (2).

             (4)  The Attorney-General may refuse to take action in accordance with this Act if the application is frivolous or vexatious.

             (5)  If the Attorney-General refuses to take action in accordance with subsection (4), the Attorney-General must provide a statement of reasons for the refusal in the annual report of the Attorney-General’s Department.

5   Attorney-General must make request on behalf of a citizen detained overseas

                   The Attorney-General must use all appropriate and available channels and opportunities to request the government of a country in which an Australian citizen is being held in detention in the circumstances described in subsection 6(1), to cause that citizen to be released and surrendered to Australia.

6   Circumstances where the Attorney-General must request foreign government for release of an Australian citizen

             (1)  If the Attorney-General receives a request from a person listed in subsection 4(1), the Attorney-General must, subject to subsections (2) and (3) but not later than 14 days after receipt of the request, request the government of the country in which an Australian citizen is being held for the release and surrender of that citizen if he or she decides after conducting an investigation of the matter in accordance with this section that there is a real risk that:

                     (a)  there is excessive delay in bringing the citizen to trial; or

                     (b)  the conditions of detention of the citizen are cruel or inhumane; or

                     (c)  the citizen faces corporal punishment or the death penalty; or

                     (d)  there has not been a fair pre trial process or a fair trial for the citizen according to international standards; or

                     (e)  there will be an infringement of that citizen’s human rights under any international human rights treaty or convention to which Australia is a party.

             (2)  After receiving an application under section 4, the Attorney-General must:

                     (a)  request a written factual report on the conditions of detention in the country involved from:

                              (i)  Australian diplomatic or consular staff in the country; or

                             (ii)  diplomatic staff of another country with responsibility for Australian consular interests in the country; or

                            (iii)  an organisation or association engaged in the protection of human rights or the delivery of international humanitarian support or aid; and

                     (b)  request written legal advice from:

                              (i)  the Attorney-General’s Department; and

                             (ii)  the Human Rights and Equal Opportunity Commission;

                            as to whether the report in paragraph (a) demonstrates a real risk of any of the circumstances outlined in subsection (1).

             (3)  If, after receiving a report under subsection (2), the Attorney-General decides that the circumstances do not warrant making a request in accordance with section 5, the Minister must provide a written statement of reasons for that decision to the applicant within seven days after making that decision.

             (4)  A statement of reasons made in accordance with subsection (3) together with the report mentioned in paragraph (2)(a) and the legal advice mentioned in paragraph (2)(b) must be tabled in each House of Parliament within 3 sitting days of being provided to the applicant.

7   Enforcement

             (1)  If:

                     (a)  an Australian citizen is being held in detention in a foreign country; and

                     (b)  the citizen is subject to one or more of the circumstances listed in subsection 6(1);

a court may, on the application of a person, grant a writ of mandamus requiring the Attorney-General to take action in accordance with section 5 of this Act.

             (2)  A person has standing to apply to a court for a writ in accordance with subsection (1) if the person is:

                     (a)  a citizen being held in detention outside Australia; or

                     (b)  a relative of the citizen who is being held in detention; or

                     (c)  a legal representative of the citizen who is being held in detention; or

                     (d)  an office holder of an organisation or association engaged in the protection of human rights or the provision of international humanitarian support or aid.