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Tuesday, 28 February 2012
Page: 1074


Senator THISTLETHWAITE (New South Wales) (18:04): Australia's extradition laws are about making sure that justice is served at home as well as abroad. They are about ensuring that Australia is not a place for refuge for those accused of a crime in another country and not a place of solace for those hoping to escape another legal system. But Australia's extradition and mutual assistance in criminal matters laws must remain relevant to the times. Our laws must ensure that the government and policing communities are a step ahead of advances and new techniques in criminal activity. This Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011 seeks to streamline and modernise the process for extradition and, importantly, ensure that the legislative regime in Australia does keep pace with advances in criminal activity throughout the world. It ensures that Australian authorities can offer a comprehensive range of assistance to our international criminal justice partners, subject to appropriate safeguards.

Australia's current extradition and mutual assistance legislation was developed more than 20 years ago and since then Australia has evolved and the world has changed. New ways for criminals to organise and conduct illicit business have emerged. The evolution of the internet, powerful personal computers and mobile phones means that Australia must change its laws to ensure its protection and to ensure the protection of Australian citizens. This bill provides Australian law enforcement agencies with relevant tools to protect us all.

In 2006 a discussion paper was released for public consultation that proposed fundamental reforms to Australia's international crime cooperation laws and procedures, including in the areas of extradition and mutual assistance. This bill has evolved out of that review and drafts of the bill were released for public consultation in 2009 and again in January this year. Through this process, the Law Council of Australia welcomed several key changes to the legislation. These include: expansion of the existing grounds for refusing an extradition request to include discrimination on the basis of a person's sex or sexual orientation; expansion of the existing grounds for refusing a mutual assistance request to include discrimination on the basis of a person's sexual orientation; extension of the availability of bail in extradition proceedings; expansion of the circumstances in which a person may be prosecuted in Australia in lieu of extradition; inclusion of an express prohibition on providing mutual assistance where it may expose the person to torture; as well as improvements in how the risk of torture is considered in extradition determinations.

The bill also ensures the expansion of the death penalty grounds for refusal in mutual assistance requests to cover situations where a suspect has been arrested and detained but not charged. Importantly, there has been expansion of the grounds to refuse to cover mutual assistance requests which relate to all stages of the investigation, prosecution and sentencing of a person.

The Law Council is right to acknowledge these positive additions to our extradition and mutual assistance laws. These amendments will be made to the Mutual Assistance in Criminal Matters Act to increase the range of law enforcement tools available to assist foreign countries with their investigations and prosecutions, to strengthen the protections against providing assistance where there is a death penalty or torture concern in the requesting country and to streamline existing processes for providing certain forms of assistance.

Mutual assistance with international policing agencies allows Australia to help our overseas partners prevent crime in their backyards and ensures that criminal activity is not being conducted in Australia against other nations. International police-to-police interaction is necessary for many operational requirements of agencies engaged in cross-border operations, including: to locate, restrain, forfeit and share the proceeds of crime; the mutual taking of evidence and the production of documents and other articles; joint operations in relation to search and seizure; and arrangements for persons to give evidence or assist investigations.

Amendments to the Crimes Act, the Mutual Assistance in Criminal Matters Act, the Telecommunications Act and the Surveillance Devices Act seek to increase the range of law enforcement tools available to assist foreign countries with their investigations and prosecutions. The bill will also streamline the process of sharing covert communication materials obtained in Australian investigations and includes a range of safeguards to ensure that information is provided to foreign countries only in appropriate circumstances.

The bill makes important amendments to streamline extradition. Often the process for extradition can take a long time—in many cases, several months—even if the person has consented to extradition. It is currently a complicated four-step process where each step is subject to separate judicial review. This bill will allow a person who consents to be extradited to waive the process, subject to certain safeguards. In these cases, if a magistrate is satisfied that the person understands the consequences of waiving the extradition process and the minister is satisfied that the person will not be subject to torture or to the death penalty, the person may be surrendered to a foreign country. The bill also specifies that a magistrate and the minister must consider extradition objections earlier as part of this process.

The bill makes changes allowing any person to be prosecuted where Australia has refused extradition. This means that, if a person is accused of a crime but cannot be extradited, he or she will still face justice in Australia. This tough action ensures that criminals do not do the crime and then escape doing the time. Additionally, the current legislation requires that a person deemed eligible for surrender must be placed in prison. The bill makes amendments to allow for special circumstances to justify bail in the later stages of the extradition process.

Importantly, the bill increases protections where there are concerns that torture may take place in the country requesting extradition and creates additional protections where there is a person who may be punished on the basis of sex or sexual orientation. This addition complements the legislation's current general discretion provisions for the minister to refuse to extradite on the basis of gender inequality and related health and humanitarian considerations.

Australia's extradition and mutual assistance in criminal matters laws must ensure that justice is served not only here but abroad. The changes contained in this bill ensure that justice is served for those accused of criminal activities abroad. They ensure that in our ever-changing world criminals cannot escape the law no matter where they commit the crime. Australia's laws must remain relevant, they must maintain the ability to keep up with technology and they must be able to stay one step ahead of criminals who would use that technology against us all. This bill is designed to respond to and to produce rapid changes in our international community to provide an appropriate basis for international cooperation against crime. I commend the bill to the Senate.