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Tuesday, 4 December 1973
Page: 4256

Mr WENTWORTH (Mackellar) - In general, I think the Extradition (Foreign States) Bill should be supported. But there is one important feature of it which 1 would call into question and in relation to which perhaps the Government will accept an amendment. In introducing this Bill the Minister for Secondary Industry and the Minister for Supply (Mr Enderby) said:

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 Minister went on to specify those countries as being the Federal Republic of Germany, Italy, Israel, Austria, Sweden and the United States of America. Insofar as treaties with those countries are concerned there can be no question. Indeed with many of the provisions of this Bill there can be no question. But I do draw the attention of the House to the provisions of clause 9 of the Bill and ask that it be examined in some detail because I think there is good reason for my moving in the Committee stage of the debate that clause 9 of the Bill be rejected.

I will be asking the Government to accept an amendment to this clause for the reasons I will give. There is no point in suggesting that the Government could be forced to accept such an amendment because, as I understand it, the Bill already has been passed by the Senate. The Government has an unquestioned majority in this House. Therefore the Opposition cannot force the Government in any way to accept any such amendment. But I do appeal to the Government to have another look at clause 9 and to reconsider it. Perhaps second thoughts should be given to it.

I want to base my remarks purely on clause 9 of the Extradition (Foreign States) Bill and to point out what it seeks to do and what its effect will be on the existing legislation. Clause 9 seeks to omit sub-section (2) of section 13 of the principal Act and to put a new subsection in its place. The proposed sub-section is in many respects identical with the subsection which it seeks to replace. But there are 3 significant differences. The provision relates to the right of the Government to grant extradition in respect of a person where a foreign state requests that extradition. I do call this into question because I believe that the amending sub-section could be used in relation to what we know as political crimes and could be a weapon of terror to be held over a large number of people who have come to Australia as refugees from communist countries and who are very frightened of being sent back.

I want to examine the 3 vital differences between the existing provision and clause 9. I want the House to compare sub-section (2) of section 13 of the principal Act with proposed sub-section (2) of section 13 as contained in clause 9 of the Bill. The differences are as follows: Under the existing Act extradition is not to be granted unless certain provisions are complied with. Perhaps I had better read the relevant part of the Act. Sub-section (2) of section 13 states:

A person is not liable to be surrendered to a foreign state unless provision is made by a law of that state, or by a treaty in force between the Commonwealth and that state, by virtue of which the person will not, unless . . .

Clause 9, which is the provision which seeks to replace sub-section (2) of section 13, states:

A person is not liable to be surrendered to a foreign state unless provision is made by a law of that state, or by a treaty in force between Australia and that state, or that state has given an undertaking, by virtue of which the person will not . . .

The operative words are the insertion 'that state has given an undertaking'. In the existing Act that state either has to have this in its law or alternatively to have this in an extradition treaty. That is fair enough. Those words have been left in. But added to them are the sinister words 'or that state has given an undertaking'. Which of us WOUld rely on an undertaking given by a communist government and which of us would ask an Australian refugee from Russia, the Balkans or any other communist state to rely on an undertaking of a communist government? It is an outrage. I do not know why this clause has been included in the Bill. It is quite unnecessary. If a country wants to do so it can put such a provision in its treaty or make such provision in its law. That is provided for in the existing legislation. Surely it is good enough. Why do we want to change the existing Act? Perhaps this is something which has slipped through, perhaps nobody realised its implications, perhaps it is a sinister move; I do not know. This is something which, when its implications are known, will not be welcomed by a number of our citizens who have come from overseas. A large section of the migrant community will not like that provision. That is the first point. I have said that there are three.

I come now to the second point of vital change. The old Act says that an undertaking has to be given that certain things will not happen unless the person has been returned or has had the opportunity of returning to Australia. This Bill substitutes the words: 'Unless he has left, or had an opportunity of leaving that state' - that is the communist state to which he has been extradited. Under the old Act he had the protection of being sent back to Australia but under the Bill he will not have that protection at all. All that the communist state will have to do is to give an undertaking - not to send him back to Australia before trying him for a political offence but to send him to another state. A man could be extradited to Russia on some kind of trumped up extraditable crime and then he could be sent to Bulgaria and tried for a political crime in Bulgaria. That would be absolutely in accordance with the terms of this Bill. Surely the Government does not intend to do this. Surely the Government does not intend to open loopholes for communist states to abuse or hold in terrorem our new citizens who have come as refugees to Australia believing that they will be safe from the tentacles of communist extradition. Under this Bill it would be possible for somebody to be extradited to Russia on a trumped up extradition charge, and then be sent to Bulgaria for trial for a political crime in Bulgaria. There will not be any violation of the Australian law if this Bill were passed. Surely that would be a shame. Surely the Government does not intend to allow this kind of abuse to occur.

I have mentioned 2 things, and now for the third. At present, according to the existing Act a person cannot be extradited unless the undertaking has been given 'that he has the opportunity of returning to Australia, that he will not be detained or tried in that foreign state for any offence that is alleged to have been committed, or was committed, before his surrender other than the offence to which the requisition for his surrender relates or any other offence of which he could be convicted upon proof of the facts on which that requisition was based'. The new Bill is more or less the same but it adds the sinister clause:

.   . any other extradition crime in respect of which the Attorney-General consents to his being so detained or tried, as the case may be.

The man has gone abroad. He is out of the jurisdiction of the Australian courts. The power of the Australian courts to restrain the Attorney-General from deportation - that is a very real power, as the Government knows - has been lost because he is outside Australia. Now the Attorney-General can consent to his being tried for any other extradition crime - something which was never before the court in Australia when the mechanics of his extradition were being discussed.

I will be told that an extradition crime is a pretty serious crime; and so, in theory, it is. But if honourable members look at the First Schedule to the Bill, which relates to extradition crimes, they will see that they include, for example, No. 8 which is 'Assaulting a police officer'. A mere scuffle in the streets at a demonstration or the allegation of a scuffle in the streets at a demonstration - assaulting the police. This is the kind of charge that is either dismissed by a magistrate or perhaps attracts a very small fine in Australia. But that is an extradition crime. It is No. 8 in the First Schedule. We would not consider this a serious crime and yet it is the kind of crime for which the Attorney-General can now consent to a man being tried and convicted, really on political grounds, by some communist court. There are other crimes which we would perhaps consider of a tendentious or not a serious nature. Number 27 is 'an offence against the law relating to companies'. It could be a quite technical offence. It might not mean anything. But it is still an extraditable crime. There are offences against the laws of companies which are punished in our courts - some by only a small fine, if at all. It is true that some of them are serious, but there are also trivial and technical offences, yet they are extraditable crimes under the First Schedule to the Bill.

I put it to honourable members that the Attorney-General should not be placed in the position whereby pressure can be brought to bear upon him by a foreign country, nor should he be put in the position whereby he himself can abuse his office. Either of these would be undesirable. The Attorney-General of this country should not be put in a position whereby a foreign country, having got its hands on somebody for extradition under some kind of pretence, can obtain the AttorneyGeneral's consent. Imagine the kind of pressure that could be brought to bear. I know that in respect of communist countries we have a lickspittle government at present. We have seen the present Attorney-General (Senator Murphy) terrorising a number of immigrants to Australia by threatening them with deportation for actions which probably were not crimes at all and telling the communist country that he would see that they were deported. He did not deport them because public opinion stopped him from doing so. But he went on public record and threatened them with deportation. Smooging up to the communist country, he said: 'We will see that they are deported'. Are we to put this kind of power into the hands of any Attorney-General, let alone the present Attorney-General?

Should we not take another look at clause 9 of the Bill? Clause 9 is quite unnecessary. All it does is to amend sub-section (2) of section 13 of the existing Act. Sub-section (2) is quite good enough. It is not subject to these abuses. It is workable, and it should remain. Why does the Government want to put loopholes in this section? Why should it be doing so when there is this obvious possibility of abuse?

I have mentioned 3 things. Each one of them is bad, but when put together they are very bad indeed. The 3 things are these: Firstly, as well as the arrangements which may be made by a treaty or by the law of the country, we add this terrible phrase - let me read it exactly from the Bill in front of us - or that state has given an undertaking, by virtue of which that person will not' etc. To the treaty and to the law one adds the power to satisfy this simply by giving an undertaking. It is not good enough to do this and I dare say that our Australian citizens who have come from overseas will agree with me that this is not good enough and that this kind of loophole should not be open.

The second thing is much worse: Under the present law an extraditing country must give an understanding that if extradited persons are not convicted they will be returned to Australia. But under the Bill before the House all it has to do is to give an undertaking that they will be sent to another state - and we know what is the relationship between a Communist country and one of its satellites. Certainly Russia can send them to Bulgaria and so satisfy the letter of the new Bill, which I hope will not be passed. A man sent to Bulgaria could be tried and convicted for a political offence - and wc know the kind of political offences which arc capital or near capital offences under the laws of Communist countries. Among those offences, of course, is the offence of escaping, the offence of illegal emigration. While the shame of the Berlin Wall exists and while we conveniently ignore that shame-

Mr Enderby - I raise a point of order, Mr Deputy Speaker. Is there no standing order that protects this House from the irrelevancies and the paranoid utterances of the honourable member?

MrDEPUTY SPEAKER (Mr Scholes)Order! I would have thought that the honourable gentleman was speaking fairly closely to the contents of the Bill. It is an extradition Bill.

Mr WENTWORTH - I will-

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