Chapter 4 Committee Comment
The Committee considers this Bill to be an important contribution to improving
Australia’s international crime cooperation legislation. The Committee also
recognises that safeguards in extradition and mutual assistance processes are
vital to ensure the protection of individual rights.
It is the conclusion of the Committee that the Bill achieves an
appropriate balance in streamlining processes and maintaining appropriate
safeguards in terms of grounds for refusal and the discretionary powers of the
The Committee also recognises the extensive consultation processes which
has taken prior in the development of the principles underpinning the Bill and
the circulation of the exposure draft of the Bill. In 2009 around 26
submissions were received by the Attorney-General’s Department in public
consultation on an initial exposure draft of the Bill. Extensive amendments
were made following that consultation process. Earlier this year when a second
exposure draft of the Bill was released, around 30 submissions were received.
Once again, a number of amendments were made to address concerns raised.
Following the referral of the Bill to this Committee, a total of six
submissions were received. While noting some remaining concerns with certain
aspects of the Bill, the submissions also remarked on the many positives changes
which had been implemented during the development of the Bill.
The Committee considers that the referral of this Bill to the Committee
as part of the final stages of parliamentary scrutiny is appropriate and
The process of the Committee inquiry has affirmed the rigour of previous
consultations and has allowed further interrogation of the appropriate balance
achieved between streamlined cooperative processes and human rights protection.
The Committee recommends that the Extradition and Mutual
Assistance in Criminal Matters Legislation Amendment Bill 2011 be passed by
the House of Representatives.
The Committee fully supports the Bill, although as a matter of principle
it queries the necessity of the presumption against bail in relation to
extradition processes. The Committee is concerned that this statutory
presumption against bail unnecessarily restricts the judge in the exercise of
his or her judicial discretion to determine whether a person should be remanded
in custody or on bail, having regard to the individual circumstances of the
case and the interests of justice.
The Committee considers that the Extradition Act could continue to
operate effectively if there was no statutory presumption in favour of or
against bail. It should rightly be the role of the judiciary to determine the
merits and risks of bail in each and every case.
The Committee does not anticipate that a change in the proposed
statutory presumption in relation to bail would lead to a significant change in
the outcome of bail hearings in extradition cases. Indeed, in most extradition
cases it would be expected that a person would be remanded in custody due to
the inherent risks of a known fugitive further attempting to flee the country
to evade justice.
However it is the conclusion of the Committee that an assessment of the
risk of a person absconding should be a matter for a magistrate to consider
having regard to all the circumstances in the case. Consequently, the Committee
recommends that the Government gives consideration to removing the presumption
against bail which operates in the Extradition Act by allowing individuals to
be granted bail only in ‘special circumstances’.
The Committee recommends that the Australian Government give
consideration to removing the presumption against bail which operates in the Extradition
Act 1988 by allowing individuals to be granted bail only in special
While fully supporting the amendments proposed in the Bill, the
Committee notes the gravity of extradition and mutual assistance matters and
the need for transparency and monitoring of processes in this area.
In the report the Committee has noted the increased importance of
undertakings received from other countries for facilitating extradition and
mutual assistance processes. It is the recommendation of the Committee that,
similar to the requirement for the reporting of breaches of substantive
obligations under bilateral extradition agreements, there should be a
requirement for the Attorney-General’s Department to provide an annual report of
any breaches of undertakings by a foreign country in relation to both
extradition and mutual assistance processes.
Further, should a serious breach of an undertaking occur, the Committee
recommends that the Minister for Justice or the Attorney-General be required to
immediately report this breach to the Parliament.
The Committee recommends that the Attorney-General’s
Department be required to provide in its annual report a record of any
substantive breach of an undertaking given by a foreign country in relation
to extradition or mutual assistance processes.
The Committee also recommends that, should a serious breach
of an undertaking occur, the Minister for Justice or the Attorney-General be
required to immediately report this breach to the Parliament.
In addition, the Committee notes the concerns of some submitters
regarding the operation of the safeguards and the scope for the
Attorney-General to exercise his or her discretion. The capacity of the
Attorney-General to consider all factors in exercising his or her discretion is
directly related to the quality and integrity of the information provided. It
is essential that all relevant issues are investigated and duly considered to
enable the Attorney-General to appropriately exercise his or her general discretion
to grant or refuse a request for extradition or mutual assistance.
Given the gravity of the issues at stake, the Committee recommends that
a future review of the implemented changes should be undertaken. The Committee
considers that such a review should be limited to the operation of the
amendments contained in this Bill, with a focus on the appropriateness and
scope of the safeguards introduced.
The Committee recommends that such a review is completed within three
years from when the Bill is enacted.
The Committee recommends that, within three years of its
enactment, the Attorney-General’s Department conduct a review of the
operations of the amendments contained in the Extradition and Mutual
Assistance in Criminal Matters Legislation Amendment Bill 2011.
Mr Graham Perrett MP
12 September 2011