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Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011

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2010 - 2011 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

(Circulated by authority of the Minister for Home Affairs,

the Honourable Brendan O’Connor MP)



EXTRADITION AND MUTUAL ASSISTANCE IN CRIMINAL MATTERS LEGISLATION AMENDMENT BILL 2011

 

OUTLINE

The amendments are minor and technical.  The purpose of the amendments is to:

·            ensure consistent use of terminology in the Bill

·            remove any uncertainty about whether the Federal Court could discharge the recognisances on which it grants bail once a surrender warrant is issued against a person

·            correct a mistaken reference to ‘extradition country’ where the intention was to refer to New Zealand, and

·            simplify the description of the conditions on which Australian authorities can request forensic procedures in a foreign country.  

FINANCIAL IMPACT STATEMENT

The amendments have no fi n ancial impact.



NOTES ON CLAUSES

Amendment (1)

1.              This amendment amends item 68 of Schedule 2 by replacing the reference to ‘the issue of’ a surrender warrant or a temporary surrender warrant in proposed paragraph 18(2)(b) of the Extradition Act 1988 with ‘surrender under’ a surrender warrant or a temporary surrender warrant.  Proposed paragraph 18(2)(b) would extend the availability of bail to persons who have consented to extradition.  The intention is for the person to be able to be granted bail pending surrender under a surrender warrant. 

2.              The current drafting of paragraph 18(2)(b), which allows a magistrate to order a person (who consents to extradition) to be committed to prison or released on bail to await ‘the issue of’ a surrender warrant or temporary surrender warrant, is incorrect as a person will not be surrendered until sometime after the surrender warrant is actually issued.  The amendment will ensure that bail is granted pending actual surrender under a surrender warrant or temporary surrender warrant, as intended, and ensure that proposed paragraph 18(2)(b) is consistent with the wording in other proposed provisions relating to the provision of bail pending surrender (such as item 70 of Schedule 2).    

Amendment (2)

3.              This amendment amends item 74 of Schedule 2 by replacing the reference to ‘the issue of’ a surrender warrant or a temporary surrender warrant in proposed subparagraph 21(2A)(b)(i) of the Extradition Act 1988   with ‘surrender under’ a surrender warrant or a temporary surrender warrant.  Proposed subparagraph 21(2A)(b)(i) will ensure that if the Federal Court quashes an order of a magistrate to release the person and makes a new order that the person be committed to prison, the Federal Court also has the option of releasing the person on bail pending a determination as to surrender under section 22.  The intention is for the person to be able to be granted bail pending surrender under a surrender warrant or release under an order under subsection 22(5). 

4.              The current drafting of subparagraph 21(2A)(b)(i), which allows the Federal Court to order a person to be committed to prison or released on bail to await ‘the issue of’ a surrender warrant or temporary surrender warrant, is incorrect as a person released on bail will not be surrendered until sometime after the surrender warrant is actually issued.  The amendment will ensure that bail is granted pending actual surrender under a surrender warrant or temporary surrender warrant, as intended, and ensure that proposed subparagraph 21(2A)(b)(i) is consistent with the wording in other proposed provisions relating to the provision of bail pending surrender (such as item 70 of Schedule 2).        

Amendment (3)

5.              This amendment amends item 82 of Schedule 2 by amending proposed paragraph 26(1)(ca) of the Extradition Act 1988 to ensure that if a surrender warrant or temporary surrender warrant is issued against a person who is released on bail, the surrender warrant or temporary surrender warrant authorises any police officer to take  the person before a magistrate or , if a court made the order releasing the person on bail, before that court, for the purposes of the discharge of the recognisances on which the bail was granted.

6.              Proposed paragraph 26(1)(ca) currently only provides that a magistrate could discharge any recognisances applying to a person released on bail (once a surrender warrant or temporary surrender warrant is issued against that person).  However, new subsection 21(2A) (inserted by item 74 in Schedule 2 of the Bill) will allow the Federal Court, if it quashes an order made by the magistrate to release the person, to order that the person be committed to prison or released on bail.  If a surrender warrant or temporary surrender warrant is then issued against the person while released on bail, there may be uncertainty as to whether a magistrate would be able to discharge the recognisances of the order made by the Federal Court.  This amendment will ensure that the person could be taken before the Federal Court to have any recognisances on which bail was granted discharged.

Amendment (4)

7.              This amendment amends item 128 of Schedule 2 by replacing the incorrect references to ‘extradition country’ in proposed subsection 38(1A) of the Extradition Act 1988 , with correct references to ‘New Zealand’.  Proposed subsection 38(1A) falls within Part III of the Extradition Act relating to extradition from Australia to New Zealand and the provision is only intended to apply to surrender to New Zealand.  ‘Extradition country’ is defined in section 5 not to include New Zealand.  This amendment will ensure that the mistaken references to ‘extradition country’ in proposed subsection 38(1A) are corrected .

Amendment (5)

8.              This amendment amends item 112 of Schedule 3 by amending proposed subsection 28A(1) in the Mutual Assistance in Criminal Matters Act 1987 , governing when Australia can request that a forensic procedure be conducted in a foreign country to assist with a proceeding in Australia.  The amendment is intended to remedy an unintended practical difficulty and inconsistency arising from the current drafting of proposed subsection 28A(1) .  The p roposed subsection currently provides that Australia would only be able to request a foreign country to carry out a forensic procedure on a person for the purpose of providing assistance to Australia if ‘there are reasonable grounds to believe that a person in a foreign country ‘is capable of’ giving assistance that may result in evidence relevant to the proceeding. 

9.              The requirement for Australia to be satisfied that a person in a foreign country ‘is capable of’ giving assistance is proposed to be removed as this would be a difficult standard for Australian authorities to meet.  This requirement is proposed to be amended so that assistance can be requested if there are reasonable grounds to believe that the carrying out of a forensic procedure on a person in the foreign country may result in evidence relevant to the proceeding’.  The revised wording would ensure that section 28A is consistent with other conditions in the Mutual Assistance in Criminal Matters Act 1987 , such as section 14, and the wording used in the Crimes Act 1914 (section 23WT).  

Amendment (6)

10.          This amendment amends item 112 of Schedule 3 by amending proposed subsection 28A(2) in the Mutual Assistance in Criminal Matters Act 1987 , governing when Australia can request that a forensic procedure be conducted in a foreign country to assist with an investigation in Australia.  The amendment is intended to remedy an unintended practical difficulty and inconsistency arising from the current drafting of proposed subsection 28A(2) .  The p roposed subsection currently provides that Australia would only be able to request a foreign country to carry out a forensic procedure on a person for the purpose of providing assistance to Australia if there are reasonable grounds to believe that a person in a foreign country ‘is capable of’ giving assistance that may result in evidence relevant to the proceeding. 

11.          The requirement for Australia to be satisfied that a person in a foreign country ‘is capable of’ giving assistance is proposed to be removed as this would be a difficult standard for Australian authorities to meet.  This requirement is proposed to be amended so that assistance can be requested if ‘there are reasonable grounds to believe that the carrying out of a forensic procedure on a person in the foreign country may result in evidence relevant to the proceeding’.  The revised wording would ensure that section 28A is consistent with other conditions in the Mutual Assistance in Criminal Matters Act 1987 , such as section 14, and the wording used in the Crimes Act 1914 (section 23WT).