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CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
War Crimes Amendment Bill
1999
Date Introduced: 23 June 1999
House: Senate
Portfolio: Attorney-General
Commencement: Royal Assent
To repeal section
22 of the War Crimes Act 1945 which provides that a person
is not to be extradited under the Act unless there is a prima facie
case against the accused. Consequently, people charged with war
crimes will be subject to the usual extradition process contained
in the Extradition Act 1988 which does not require a prima
facie case to be shown prior to extradition.
The War Crimes Act 1945 (the Act) was
amended in 1989 following the establishment in 1987 of a special
investigation unit to examine possible World War II war criminals
in Australia and, if possible, to prosecute suspects. The
investigations faced a number of difficulties principally related
to the time that had elapsed between the time the alleged crimes
were committed and the time of the investigation and prosecution.
The special investigation unit was disbanded in 1992 and no-one was
convicted as a result of the investigations and following
prosecutions. More recently, in May 1998 the Prime Minister
announced that there was insufficient evidence to prosecute an
alleged war criminal who had been deported by both the United
States and Canada. Following this incident the Vice-President of
the Executive Council of Australian Jewry is reported to have
commented:
Now we have the benefit of 10 years to look at
the legislation that was adopted, [the 1989 amendments] we can see
that it failed. It not only failed to deal with that one situation,
it failed to deal with the other cases.
What is left is a situation where the
information, the allegations, the research is all out there and
there's still more that can be conceivably done if the government
was willing to devote the resources. (1)
Turning to the amendment proposed by this Bill,
section 22 of the Act provides that extradition under the Act is
not to proceed unless there is a prima facie case against the
individual involved. The general concept of a prima facie case is
relatively common in common law jurisdictions such as Australia
and, for example, is used when a lower court determines if a matter
should be referred to a higher court for trial.
The history of section 22 is relatively obscure
and the section has not been the subject of controversy. The Senate
Standing Committee on Legal and Constitutional Affairs reviewed the
War Crimes Amendment Bill 1987 which at the time of referral did
not contain a provision similar to section 22. In relation to the
need for a prima facie case, the Committee noted that the
prosecution guidelines for war criminals provided that a
prosecution would only be initiated if, amongst other matters, the
evidence established a prima facie case and that the then DPP, Mr
Temby, was of the view that a prosecution would not proceed unless
there was a prima facie case against the individual. This applied
to Australian prosecution of such individuals but not specifically
to their extradition to the countries where the offences were
committed.
The path from the need for a prima facie case
being contained in Prosecution Guidelines to it also being
considered necessary for extradition and so incorporated into the
legislation as section 22, is obscure and appears to have been part
of negotiations between the parties. The issue centred on 'cold
war' issues and whether an extradited person could expect to
receive 'justice' in a non-NATO country (ie. the Warsaw Pact
countries and the then Yugoslavia). Debate on the War Crimes
Amendment Bill 1987 in the Senate shows that the proposal to
include the requirement contained in section 22 was agreed between
the parties in the 'last few hours'.(2) There is no enlargement in
the debate on the reasons for the agreement.
The same Bill, known as the War Crimes Amendment
Bill 1998, was introduced in the Senate on 24 June 1998 but lapsed
due to the dissolution of the House of Representatives for the
October 1998 election. The reasons given in the second reading
speeches for that Bill and the 1999 Bill are also identical (as are
the speeches) and principally relate to the expected improved
treatment of people extradited to countries previously considered
to be behind the 'Iron Curtain' (see the second reading speech for
either of the Bills).
The removal of section 22 from the Act will
place such crimes in a similar position, regarding extradition, as
other crimes in so far as the Extradition Act 1988 does
not require a prima facie case to be shown so long as the other
requirements of that Act have been complied with.
Item 1 of Schedule 1 will repeal section 22 of the Act.
-
- The Age, 9 May 1998.
- Senate Hansard, 15 December 1988.
Chris Field
12 July 1999
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 1999
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