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Tuesday, 26 March 1985
Page: 918


Mr LIONEL BOWEN (Attorney-General)(5.03) —in reply-I thank all members for their contribution to this debate. It has been wide-ranging and has raised a number of matters which everybody would like me to answer. I do not know whether I can answer all of them to the satisfaction of honourable members. I commence with the remarks of the last speaker, the honourable member for Mitchell (Mr Cadman). I appreciate his remarks. They were very apt. He wanted particularly to know why the provisions dealing with genocide and the assassination of a head of state were being removed from the legislation. Those provisions are being changed only in the sense of their not being political offences. They are still offences in the sense that they are murder. There is no difficulty about that matter. They are not deemed to be political offences in that sense.

The honourable member raised a matter relating to Trimbole, and I suppose we tend to get political about this matter. Let me make the point that Trimbole left Australia in 1981. Some of the offences, particularly the Wilson murders, were committed in 1980. They, of course, occurred in Victoria. The honourable member should not get too blinkered in thinking that all problems relate to New South Wales. He must also understand that Commonwealth warrants were issued too for offences under Commonwealth law. Really, the issue is that the man had good legal advice about where we did not have treaties. I applaud what the honourable member said. It is important to keep up a monitoring arrangement. In the case of Ireland, for example, a treaty was concluded in 1977 and lost. That must astound honourable members.


Mr N. A. Brown —And lost?


Mr LIONEL BOWEN —Lost in the sense that nobody bothered to bring it out of the drawer. It was concluded but not brought into action. I am not making any complaints, but honourable members know who was in government from 1977 until we took over. I have to tell the House these things, although not in any vitriolic sense, because the same thing could happen to me. However, let me make it clear that in the Trimbole case the Attorney-General's Department worked very hard and assiduously and, in fact, brought into operation treaty arrangements which allowed our warrants to be valid. The difficulty in that case is a legal one, which I think will be decided this evening, as a matter of interest. Whether Mr Trimbole will be present to hear the verdict is another matter. The problem was that because he was arrested for an offence that was not able to be proven under Irish law-it did not relate to our warrants but to an Irish offence-there was deemed to be the taint of illegality. There was a rather unusual decision that that taint of illegality prevented our warrants coming into operation. The point the honourable member made was valid in that we live in a world in which modern transport makes countries very close. People travel across the world very rapidly. Criminals, particularly those dealing in narcotics, use all the available conveyances to get in and out of countries very quickly indeed. This week we had the benefit of concluding a treaty with Finland, which is interesting. I imagine that people would be thinking that 30 or 40 years ago nobody was interested in looking at that problem, but it is very much alive today.

The contributions made by my colleagues and also by those opposite have been very valuable in making the public aware that this is an ongoing operation. What we are about in this legislation is making amendments to two existing pieces of legislation virtually to update them. This will allow us to negotiate more effective treaties than those we now have. As a Commonwealth country we inherited what are called the Commonwealth country treaties-35 in number. They are a little outmoded because they relate to what are called specific offences and not necessarily to what we would be looking at in a more modern situation-offences punishable by a sentence of 12 months imprisonment or more, which avoids the list. In other words, one has a difficulty if one is trying to talk about what is on the list. If an Australian offence is not on the list of the other country we are in jeopardy. We have overcome that problem.

Let me now deal with the matters raised by the honourable member for Menzies (Mr N. A. Brown), who led the debate for the Opposition. One matter was a query about voluntary return. I am advised that it is availed of by a number of fugitives each year, so it is of practical benefit. He then raised a couple of other matters related to the report of the Stewart Royal Commission of Inquiry into Drug Trafficking. One related to the recommendation that trials be held in the absence of the accused who is unable to be found or is imprisoned overseas. I am advised that the Government rejected that recommendation in an announcement in the Senate in December 1983. It did so for the reason that it was deemed to be contrary to our standard of proof and our standard of law that a person could be tried in his absence. The proposition that people could be tried in their absence was also deemed to be a breach of the International Covenant on Civil and Political Rights. So we have a difficulty in proceeding with a trial when a person is imprisoned overseas. A statement was made in the Senate to that effect by the previous Attorney-General.

A point was raised about the recommendation that the Attorney-General's Department monitor all extraditions. That is being done; I am assured that that is the position. The honourable member also asked about defining an extraditable crime by reference to a penalty of 12 months or more imprisonment. He asked why a lesser penalty should not warrant extradition. I remind the honourable gentleman that at present under the provisions of section 19 of the Extradition (Commonwealth Countries) Act and under a section of the Extradition (Foreign States) Act an extraditable offence is defined as being an offence that carries a penalty of 12 months or more imprisonment because it is thought that any lesser penalty would relate to a much lesser offence that would not warrant extradition.

As to the point about bringing back people from overseas, we are anxious to do that through the modern concept of mutual assistance treaties, particularly in criminal matters, so that we can bring people back to Australia to give evidence to assist justice in this country. So it is a matter that is very much to the fore. In the mutual assistance area it would require other countries to give us assistance, particularly in respect of financial records and other matters. Switzerland is a case in point. It might be appropriate to mention that I understand the United States of America is about to conclude, if it has not already, a mutual assistance treaty with Switzerland. In that context there would be opportunities to bring people back here on the basis of getting evidence and records.

I make the point, as I have already told the honourable member for North Sydney (Mr Spender), that I accept his proposed amendments. I note that they relate to a clear recognition that in matters of political offences there might be a suggestion that another offence might be used which could be a subterfuge for a political offence. I am reminded that in February of this year a paper was circulated in the United Kingdom which covers this matter.


Mr Spender —Yes, that is the extradition one.


Mr LIONEL BOWEN —Yes, and it makes the point, as the honourable member has said, that this is an appropriate way to talk about the offences of a political character. Apparently it has been in the British extradition Act since 1870. The paper makes the point that the Act does not define the expression 'political character' and judicial interpretation has demonstrated the difficulty of devising a satisfactory definition. Nevertheless, I will accept it. The courts have, however, recognised the need to preserve the freedom to grant political asylum in appropriate cases. I thank the honourable gentleman for his contribution. I think it will be a worthwhile addition as in no way does it detract from the fact that I would also have a discretion. Irrespective of that, if a decision went the wrong way, from the point of view of judging the political issue, in other words if the court rejected it, I could still have a chance to look at it.

I think the main thrust of the debate was whether we were just grandstanding, if Opposition members want to put it that way, or whether we were making effective progress. I think we are making effective progress. I have some notes here which clearly indicate what I think honourable members opposite are all about. An extradition hearing is not a trial of guilt or innocence, it is simply a procedure to enable a person to be returned to the appropriate jurisdiction for charges against him or her to be determined. The difficulty we are having is that civil law countries have different legal systems and they have had considerable difficulty in furnishing evidence in the form or of the standard that we have always insisted upon. There are now amendments that will facilitate the conclusion of treaties which we otherwise could not have entered into because of that situation.

Requests for extradition will still have to supply a full statement of the facts alleged against a fugitive. Under already existing treaties that statement must be in the form of prima facie evidence as for a committal hearing. So all present safeguards are being retained in negotiating treaties. Regard will be had to the justice system in the country concerned. I think it was the honourable member for Fisher (Mr Slipper) who raised the issue of African countries. We must acknowledge that there is a lack of treaties with a number of African countries. We would be very anxious to achieve success there and we are going to work at that. The idea of having the no-list amendment gives greater flexibility and it will again facilitate treaty negotiations in that time does not have to be spent on agreeing to a form of words to cover an offence which although penalising the same conduct is described in a different way.

A proceeding for the taking of evidence for an extradition request is not a trial, as we have said, but it is generally understood that fugitives should not be able formally to appear at such proceedings. The amendment we have moved makes this clear, and it is in accordance with the decision of the Federal Court of Australia in Trimbole v. Dugan, as the former Attorney-General decided on 2 November 1984. If fugitives have a right of appearance it could be possible they could delay the proceedings for a sufficient time to ensure that Australia would not be able to comply with its obligations to make a formal request, supported by evidence, to another country within the time limits imposed by that country.

On the question of fugitives not giving evidence, I inform honourable members that an extradition hearing is initiated by a request from another country, but the matter is handled by the Australian authorities. If the fugitive wishes to controvert the material alleged against him the appropriate place for that to be done is in the country where the trial is to take place. It is generally understood that fugitives should not be able to challenge the merits of a case presented in the extradition hearing.

On the question of bail, the two Acts provide that the magistrate may grant bail. There was a decision in Queensland where it was held that the Supreme Court may not grant bail. The case was called Re: Groves. This amendment simply confirms that judgment. In no way does it take away a fugitive's right to review a decision of a magistrate by way of habeas corpus. At present a fugitive may make application for habeas corpus in a State Supreme Court and at the same time apply to the Federal Court for judicial review of the magistrate's decision. The same issues would be involved in each application. The amendment simply prevents duplicity of remedy as the use of that duplicity can be a delaying tactic.

Having restated those matters I finish by mentioning what progress has been made in the extradition task force. I am reminded that the task force was established as recently as the 15th of last month. It comprises officers of the Attorney-General's department and the Department of Foreign Affairs. In that short space of time this task force has settled a draft model treaty which will be the basis of negotiations with foreign states for modern extradition treaties. A number of approaches have been made to European countries opening the way for discussion in relation to modern bilateral treaties. A proposal has already been put to and is being considered by officials of the Federal Republic of Germany and which, if accepted, will facilitate extradition between Australia and that country, pending the coming into force of a treaty between the two countries. Draft regulations have been prepared for the approval of the Governor-General extending the application of the Extradition (Commonwealth Countries) Act to 14 Commonwealth countries not presently declared under that Act. Discussions have taken place with the Republic of South Africa on the basis of extradition. There has been a thorough investigation into the status of Australia's extradition arrangements with former colonies of the metropolitan powers of France, Spain, Portugal, Belgium and the Netherlands, which may have succeeded to extradition treaties entered into by the relevant metropolitan powers and Great Britain. Australia may have effective extradition arrangements with such of the former colonies which recognise double succession in relation to extradition treaties.

Work has been completed on Bills which substantially amend the two Acts. The possibility of a number of countries applying the Extradition (Foreign States) Act to those countries to enable extradition to take place on the basis of reciprocity has been investigated. Discussions are also taking place with the United States and Britain in relation to extradition generally. I mention that only to show that a lot of work has been done because it is urgent and it should have been done long ago. The delay and the faults have been recognised. I commend my Department and its officials for their enthusiasm and assistance in this regard and I thank honourable members for their contribution.

Question resolved in the affirmative.

Bill read a second time.