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War Crimes Amendment Bill 1999
Bills Digest No. 4 1999-2000
War Crimes Amendment Bill 1999
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sou rces should be consulted to determine the subsequent official status of the Bill.
War Crimes Amendment Bill 1999
To repeal section 22 of the War Crimes Act 1945 which provides that a person is not to be extradited under the Act unless there is a prima facie case against the accused. Consequently, people charged with war crimes will be subject to the usual extradition process contained in the Extradition Act 1988 which does not require a prima facie case to be shown prior to extradition.
The War Crimes Act 1945 (the Act) was amended in 1989 following the establishment in 1987 of a special investigation unit to examine possible World War II war criminals in Australia and, if possible, to prosecute suspects. The investigations faced a number of difficulties principally related to the time that had elapsed between the time the alleged crimes were committed and the time of the investigation and prosecution. The special investigation unit was disbanded in 1992 and no-one was convicted as a result of the investigations and following prosecutions. More recently, in May 1998 the Prime Minister announced that there was insufficient evidence to prosecute an alleged war criminal who had been deported by both the United States and Canada. Following this incident the Vice-President of the Executive Council of Australian Jewry is reported to have commented:
Now we have the benefit of 10 years to look at the legislation that was adopted, [the 1989 amendments] we can see that it failed. It not only failed to deal with that one situation, it failed to deal with the other cases.
What is left is a situation where the information, the allegations, the research is all out there and there’s still more that can be conceivably done if the government was willing to devote the resources. (1)
Turning to the amendment proposed by this Bill, s ection 22 of the Act provides that extradition under the Act is not to proceed unless there is a prima facie case against the individual involved. The general concept of a prima facie case is relatively common in common law jurisdictions such as Australia and, for example, is used when a lower court determines if a matter should be referred to a higher court for trial.
The history of section 22 is relatively obscure and the section has not been the subject of controversy. The Senate Standing Committee on Legal and Constitutional Affairs reviewed the War Crimes Amendment Bill 1987 which at the time of referral did not contain a provision similar to section 22. In relation to the need for a prima facie case, the Committee noted that the prosecution guidelines for war criminals provided that a prosecution would only be initiated if, amongst other matters, the evidence established a prima facie case and that the then DPP, Mr Temby, was of the view that a prosecution would not proceed unless there was a prima facie case against the individual. This applied to Australian prosecution of such individuals but not specifically to their extradition to the countries where the offences were committed.
The path from the need for a prima facie case being contained in Prosecution Guidelines to it also being considered necessary for extradition and so incorporated into the legislation as section 22, is obscure and appears to have been part of negotiations b etween the parties. The issue centred on 'cold war' issues and whether an extradited person could expect to receive 'justice' in a non-NATO country (ie. the Warsaw Pact countries and the then Yugoslavia). Debate on the War Crimes Amendment Bill 1987 in the Senate shows that the proposal to include the requirement contained in section 22 was agreed between the parties in the 'last few hours'.(2) There is no enlargement in the debate on the reasons for the agreement.
The same Bill, known as the War Crimes Amendment Bill 1998, was introduced in the Senate on 24 June 1998 but lapsed due to the dissolution of the House of Representatives for the October 1998 election. The reasons given in the second reading speeches for that Bill and the 1999 Bill are also identical (as are the speeches) and principally relate to the expected improved treatment of people extradited to countries previously considered to be behind the 'Iron Curtain' (see the second reading speech for either of the Bills).
The removal of section 22 from the Act will place such crimes in a similar position, regarding extradition, as other crimes in so far as the Extradition Act 1988 does not require a prima facie case to be shown so long as the other requirements of that Act have been complied with.
1. The Age , 9 May 1998.
2. Senate Hansard , 15 December 1988.
12 July 1999
Bills Digest Service
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