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Monday, 17 September 1973
Page: 1057


Mr ENDERBY (Australian Capital Territory) (Minister for the Capital Territory and Minister for the Northern Territory) - I move:

That the Bill be now read a second time.

This is one of 2 Bills which originated in the Senate. The purpose of the Extradition (Foreign States) Bill before the House is to give effect in Australian law to a number of new extradition treaties negotiated with foreign countries during the term of office of the former Government.

The purpose of the Extradition (Commonwealth Countries) Bill, also before the House, is to keep the Act in line with the amendments that are being proposed in the other Bill to the Extradition (Foreign States) Act so far as is compatible with the provisions of the London Scheme of 1966 relating to extradition between Commonwealth countries. Some of the amendments had been proposed as ancillary matters in the London Scheme.

The Extradition (Foreign States) Act 1966- 1972, which this Bill proposes to amend, continued in force for the time being the old extradition arrangements with foreign countries that apply to Australia by virtue of treaties entered into by the United Kingdom and of the old Imperial Acts known as the Extradition Acts, 1870 to 1935. The Extradition (Foreign States) Act opened the way, however, for Australia to introduce its own extradition treaty system. Following the entry into force of the Extradition (Foreign States) Act, the previous Government, as I have indicated, negotiated a number of treaties with foreign countries. The countries are the Federal Republic of Germany, Italy, Israel, Austria, Sweden and the United States of America.

The Australian Labor Party Government has examined the treaties and is happy to accept them and to make, in the present Bill, legislative provision for carrying the treaties into effect. Earlier this year 2 of the treaties - with Sweden and Austria - were signed. These were tabled in the Parliament in May. I do not say anything new, so far as the present Government is concerned, when I add that the Government agrees entirely with the view that Australia, as an independent nation, should stand on its own feet both in this matter of extradition and in other matters. Regrettably it was not until 1966 that the first steps were taken whereby Australia could begin to shed itself of the old extradition system. The Government will consider as quickly as possible whether Australia should negotiate in its own right extradition treaties with other countries in addition to those that I have just mentioned to the House. Honourable members will know that, in fields other than extradition, the Australian Government is likewise moving to ensure that the system of law that applies in this country is a system consistent with Australia's status as a sovereign nation.

It is appropriate that I should comment briefly on the need for extradition arrange ments with other countries, especially in the times in which we live today. The growth of criminal offences and the ease of communication between countries have resulted in a growing interdependence of the members of the international community. The sophistication of crime and of criminals continues to increase, especially in the area of what has come to be known as white collar crime. The conduct of fraudulent enterprises often extending beyond national boundaries, the carrying out of sophisticated robberies, often involving large sums of money, the forging of bank notes and schemes of extortion not only provide the criminal with lucrative returns for his illegal enterprise but also provide him with the means of escape from the place where his crime is committed. The increasing speed and facilities for air travel, including relaxation of visas and other formalities, means that escape from one country to another can be completed in a matter of hours. After an original escape to one country with which extradition arrangements exist, a criminal can, once put on the alert, make a similarly quick escape to a further country with which extradition arrangements may not exist. Law enforcement authorities must nowadays act more quickly in extradition matters than used to be necessary. Civil aviation is especially vulnerable to criminal activity. The commission of crimes on board aircraft, the hijacking of aircraft and the infliction of damage to aircraft have all become the subject of international agreements. These reflect the need for concerted international action against criminals who themselves operate on that basis. Effective action against these criminals is necessary to ensure their punishment and to deter others.

In this regard the present Bills contain provisions to give effect to the extradition clauses in Article 8 of the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. The provisions will complete the legislative changes necessary to Australian law following upon the enactment of the Crimes (Protection of Aircraft) Act 1973, to enable that Convention to come into full force and effect in Australia. The provisions are very similar to those embodied in the amending extradition legislation of 1972 that gave effect to the extradition provisions of The Hague Convention for the Suppression of Unlawful Seizure of Aircraft that are identical to those of the Montreal Convention,

We need to reduce the number of places where criminals can find sanctuary. Our efforts to do this have simply not kept pace with the increase in crime, and the increased opportunities for criminals to move from one country to another. We must see extradition arrangements as having the purpose not just of assisting individual countries in the administration of their own criminal laws, but of catering for interests of the law abiding public who are substantially the same the world over. Regrettably it is a fact of life that law enforcement authorities are losing ground in their struggle to protect those interests. There is no panacea for 'this. An increasingly positive approach to extradition is one means - and an important means - 'that we have at our disposal to tackle the problem. The treaties that have recently been negotiated by Australia and the proposed legislation to which I am mow speaking provide a step forward in the right direction. It is intended that further steps should be taken to conclude treaty arrangements with additional countries, whereever possible, at the first opportunity.

The recently negotiated treaties contain provisions that are new to Australia when compared to the old inherited extradition treaties. The proposed legislation has taken account of these new provisions to enable Australia to give effect to the new treaties. The main provisions in these treaties to which I refer are: Extradition is provided for in respect of extradition offences committed extra territorially; an offence against the law relating to genocide, referred to in the Genocide Convention Act 1949, as well as the taking of the life of a Head of State or a member of his or her family are not to be considered as crimes of a political character; a very important change has been made to the speciality rule so that an extradited person may be dealt with by the requesting country or be surrendered to a third state for offences other than those upon which the extradition was based where consent is given by the executive authority of the requested country; delivery at the time of surrender of any article that may be material evidence in proving an offence to which the requisition for the surrender of the fugitive relates; the custody of a fugitive who is in transit from one state to a third state; in the case of the United States of America, provision is made for the extradition for federal offences where there is an additional element in the extradi tion offence of such matters as the use of interstate facilities or use of mails or transporting across the borders of states.

Many of the matters to which I have adverted are also included in the Extradition (Commonwealth Countries) Bill so that the extradition legislation relating to foreign States and Commonwealth countries will be kept in line. The provisions in the Extradition (Commonwealth Countries) Bill also include matters that were proposed under the ancillary provisions of the London scheme. These provisions relate to the transit of a fugitive offender and the delivery of property found in his possession at the time of his arrest, which may be material to proof of the offence with which he is charged. One of the main provisions that I have just referred to relates to the speciality rule. This is the rule that requires that in general an offender who is returned to a country can be prosecuted by the requesting state or transferred to a third state only for the offence for which he was returned. The Act presently contains an important modification to the rule to allow a person to be dealt with for another extraditable offence that is provable upon the same facts as were involved for the original offence.

It is proposed in this Bill to provide a consent modification in order to effect a significant change to the old form of the speciality rule. The purpose of the consent modification is to enable the executive authority of a requested country to agree to a requesting country dealing with an extradited person for another extraditable offence other than that for which he was surrendered. The basic rationale of the speciality rule is to safeguard the liberty of the person and protect his human rights, especially where a person is only accused of an offence. The problem has been to achieve a balance between that principle of human rights on the one hand and efficient law enforcement on the other. In its modern form, incorporating the consent provision as first included in the 1957 European Convention on Extradition, this balance is achieved.

The consent modification has been included in recent treaties made between foreign states and in the draft treaties recently negotiated by Australia, lt gives flexibility to and removes the inhibiting effect of the otherwise strict speciality rule and at the same time safeguards the human rights of the accused person. The consent modification was included in the London scheme of 1966. It is already included in the Extradition (Commonwealth Countries) Act. At the Commonwealth Law Ministers Conference in London in January this year the Attorney-General (Senator Murphy) stated that an appropriate ground upon which consent might be given under the speciality rule would be that further offences in respect of which consent was granted were part of a series of crimes similar to those for which extradition was originally sought. He expressed concern that there should not be an unduly restrictive approach to the discretionary power of consent and that what was required was a proper review of the whole course of an offender's conduct so that a request for extradition on additional charges could be considered in its proper perspective.

An important change is proposed in the Bills. It is a change to the provisions of the Principal Acts of 1966 relating to restrictions upon surrender of a fugitive where he could be prejudiced on account of race, religion, nationality or political opinions. Whereas the existing provisions of the principal Acts provide that the restriction upon surrender in such circumstances shall depend upon the Attorney-General having substantial grounds for believing that the fugitive could be prejudiced, the amendment proposes to change that subjective test into an objective one of where 'there are' substantial grounds for believing that the fugitive could be prejudiced. The purpose is to enable the courts to more easily review the actions of the executive in any case where such circumstances arise. It will provide in this regard a greater safeguard for the individual.

As I stated earlier in this speech the Government has approved the new treaties and the formal procedures for their signing have already been taken in respect of Sweden and Austria and are being taken in regard to the other countries concerned. The Extradition (Foreign States) Bill that I present to honourable members will make necessary legislative provision for carrying the treaties into effect.

The Extradition {Commonwealth Countries) Bill will give effect to certain ancillary matters in the London scheme. It, as does the other Bill, also takes account of the international conventions concerning genocide, hijacking of and damage to aircraft, prostitution, narcotic drugs and psychotropic sub stances and keeps the extradition legislation relating to Commonwealth countries in line with that relating to foreign states. I commend the Bill to the House.

Debate (on motion toy Mr Street) adjourned.







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