BILLS DIGEST NO. 40, 2011–12, 9 September 2011

Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011

Margaret Harrison-Smith
Law and Bills Digest Section

Date introduced:  6 July 2011

House:  House of Representatives

Portfolio:  Justice

Commencement:  An explanation of the commencement table for various parts of this Act is set out in the Explanatory Memorandum.[1] The commencement of several parts of the Bill is contingent on the commencement of the Migration Amendment (Complementary Protection) Act 2011 and the Cybercrime Legislation Amendment Act 2011 which are also before the Parliament.[2]

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/bills/. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/

Purpose

The purpose of the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011 (the Bill) is threefold:

·      to amend the Extradition Act 1988 (Extradition Act)[3] and the Mutual Assistance in Criminal Matters Act 1987 (MA Act)[4]: to enable Federal Magistrates to perform functions under these Acts, and to clarify privacy and information disclosure provisions relating to extradition and mutual assistance processes

·      to amend the Extradition Act: to reduce delays in extradition processes; to extend the availability of bail in extradition proceedings; to allow a person to waive the extradition process; to extend the circumstances in which a person may be prosecuted in Australia as an alternative to extradition; to allow a person to consent to being surrendered for a wider range of offences; to amend the definition of ‘political offence’ to clarify that it does not extend to specified crimes such as terrorism; to require Australia to refuse to extradite a person who may be prejudiced after surrender by reason of his or her sex or sexual orientation, and

·      to amend the MA Act: to increase the range of law enforcement tools available to assist other countries with their investigations and prosecutions; to streamline current processes for providing certain forms of assistance to other countries; to strengthen protections against providing assistance where there are concerns about the death penalty or torture in the requesting country; to amend other grounds for refusing to provide mutual assistance to other countries; to streamline proceeds of crime action authorisation processes, and to allow registration and enforcement of foreign non-conviction based proceeds of crime orders from any country.[5]

Background

What is extradition?

Extradition is an important element in combating transnational crime such as drug trafficking and terrorism. It may be described as the formal surrender by one country, at the request of another country, of a person who has been accused or convicted of a crime within the jurisdiction of the requesting state.

Extradition is not an obligation under international law. Rather, it is a favour accorded by one country to another. Extradition obligations between countries therefore arise principally from reciprocal treaty arrangements between states.

The extradition treaties to which Australia is party are given effect by the Extradition Act.

Main stages in extradition process

The main stages in the extradition process under the Extradition Act are:

·      on the application of the requesting country, issue by a magistrate of a provisional arrest warrant for the arrest of the person sought (Extradition Act, section 12)

·      on receipt of a formal extradition request from the requesting country, issue by the responsible Minister of an authority to proceed (Extradition Act, section 16)

·      arrest and bringing before a magistrate as soon as practicable of the person subject to the warrant (Extradition Act, section 15)

·      remand in custody by the magistrate unless the magistrate considers there are special circumstances for remanding the person on bail (Extradition Act, subsection 15(6))

·      conduct by the magistrate of a hearing to determine if the person is eligible for surrender (Extradition Act, section 19), and

·      if the magistrate determines that the person is eligible for surrender[6], decision by the Minister, with regard to a range of factors (including if there is an extradition objection(section 6)), whether the surrender should proceed (Extradition Act, section 22).

Judicial review

Both the foreign country and the person whose extradition is sought may seek judicial review of the magistrate’s order by the Federal Court or a state or territory Supreme Court
(subsection 21(2) Extradition Act).[7] There is also a right of review from the decision of the Federal Court or a state or territory Supreme Court to the Full Court of the Federal Court.[8]

What is mutual assistance?

Mutual assistance is a formal government to government process instigated by a letter of request from one country to another seeking assistance in the investigation and prosecution of one or more criminal offences. Mutual assistance can also be used to locate, restrain, forfeit and share the proceeds of crime. 

The MA Act provides a non-exclusive legislative framework for the request for and provision of this assistance. Section 6 of the MA Act provides that ordinary police-to-police arrangements continue to apply.

Part II of the MA Act relates to assistance in relation to the taking of evidence and the production of documents or other articles. Part III of the MA Act provides for assistance in relation to search and seizure, and Part IV of the MA Act provides for arrangements for persons to give evidence or assist investigation. Part VI of the MA Act relates to assistance with respect to proceeds of crime and Part VIIA sets out the powers needed by Australian law enforcement agencies to respond to a mutual assistance request from another country.

Although a number of treaties exist between Australia and other countries about mutual assistance in criminal matters, the MA Act does not depend for its operation on the existence of a treaty with the relevant overseas country (MA Act, section 7).

Reviews of extradition and mutual assistance laws

A number of reviews have been conducted of the Extradition Act and the MA Act. They include the following.

Inquiry into extradition by Joint Standing Committee on Treaties (JSCOT)

In 1988, significant amendments were made to Australia’s extradition laws. One of the main changes was the introduction of a ‘no evidence’ model as the ‘default option’ for any new treaties entered into by Australia.

Previously, there had been a choice between this model and the ‘prima facie case’ model. As a result of the change to the ‘no evidence’ model, states requesting the extradition of a person accused of a crime are required to provide a statement of the conduct constituting the offence, but no longer need to produce supporting evidence, such as witness statements. [9]

In the report of its subsequent inquiry into the 1988 amendments, JSCOT recommended:

·      discontinuation of the ‘no evidence’ model and inquiry by the Australian Law Reform Commission (ALRC) into other possible evidentiary models[10], and

·      review by the ALRC of matters including the extent of the requested jurisdiction’s court in the consideration of extradition requests; the presumption against bail in the absence of special circumstances and whether the threshold for extraditable offences should be increased.[11]

The Government rejected the first recommendation on the basis that adoption of the ‘no evidence’ model had allowed Australia to enter into extradition treaties with a large number of European and Latin American civil law countries able only to enter into extradition treaties on the basis of that model.[12]

While also rejecting the second recommendation, the Government indicated that ‘some of the issues identified by the Committee should be investigated and considered further’.[13]

Government reviews of extradition and mutual assistance laws

In 2006, the Government announced comprehensive reviews of the Extradition Act and the MA Act.[14] The announcement of the reviews indicated that the starting point for the reviews would be the Government’s response to the 2001 JSCOT report.

The 2006 reviews were asked to consider:

·      the changes needed to the Extradition and the MA Acts to reflect the changing nature, scope and extent of transnational and domestic crime, including the types of offences that are captured and the range of circumstances where responses are time critical, and

·      increasing the efficiency, effectiveness and quality of current extradition and mutual assistance processes, including by:

–      streamlining the operation of the Acts

–      remedying any anomalies in the operation of the Acts

–      incorporating advancements in technology, such as video link technology, and

–      examining the interaction of existing legislation with extradition and mutual assistance processes.[15]

To promote public consultation on the reviews, the Attorney-General’s Department released two discussion papers in 2006, one relating to extradition, and the other relating to mutual assistance in criminal matters.[16] In July 2009[17] and again in January 2011[18], the Government released an exposure draft Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill for comment.

A number of changes suggested by stakeholders in response to the 2009 Bill were included in the 2011 exposure draft Bill. These included:

·      removing proposed amendments to enable courts to defer and consolidate judicial review of extradition decisions

·      removing the proposal to make ‘political offence’ a discretionary, rather than mandatory, ground of refusal in both the Extradition Act and the MA Act

·      narrowing proposed amendments to authorise the collection, use and disclosure of personal information under the Privacy Act 1988, and

·      amending the proposal to enable the Attorney-General to give an undertaking to a foreign country about the maximum sentence that may be imposed on a person if extradited to Australia to expressly require consultation with the relevant state or territory authorities before the undertaking is given.

As a result of the consultation process on the 2009 exposure draft Bill, a number of new provisions were inserted in the 2011 exposure draft Bill. These included provisions with respect to:

·      expanding the existing grounds for refusing an extradition or mutual assistance request to include discrimination on the basis of a person’s sexual orientation

·      streamlining the matters required to be considered by the Attorney-General when determining whether to issue a notice pursuant to section 16 of the Extradition Act stating that an extradition request has been received (a section 16 notice)—the Attorney-General would no longer be required to consider issues such as dual criminality or extradition objections before issuing a section 16 notice

·      providing for bail during the latter stages as well as the earlier stages of the extradition process, for example, where a person has consented to surrender and is waiting for a determination by the Attorney-General as to whether he or she should be surrendered

·      extending by five days the period in which the Attorney-General may determine whether to accept an extradition request, to enable a more thorough examination of requests

·      providing for telecommunications carriers and carriage service providers to be able to recover costs incurred when responding to requests for assistance from foreign law enforcement agencies, and

·      subject to safeguards, providing foreign law enforcement agencies with prospective telecommunications data.[19]

Not all these proposed amendments are included in the Bill. Some have been moved to the Cybercrime Legislation Amendment Bill 2011, which is also currently before the Parliament. A Bills Digest is available for that Bill.

Details of the submissions received in response to the 2011 exposure draft may be found on the Attorney-General’s Department website.  Because most of the amendments proposed in the 2011 exposure draft Bill have been retained in the Bill before the Parliament, these submissions are of continuing relevance. 

Views of major interest groups

Specific comments made by stakeholders in response to the 2011 exposure draft Bill and to the House of Representatives Standing Committee on Social Policy and Legal Affairs inquiry into the Bill (see below) are included at relevant points in the Key Provisions section of this Digest. 

Committee consideration

The Bill has been referred to the House of Representatives Standing Committee on Social Policy and Legal Affairs for inquiry and report.  Details of the inquiry are at http://www.aph.gov.au/house/committee/spla/Bill%20Extradition/index.htm

The Bill has also been considered by the Senate Standing Committee for the Scrutiny of Bills. The Committee’s report is at http://www.aph.gov.au/senate/committee/scrutiny/alerts/2011/d08.pdf Comments made by the Committee on the Bill are included in the Key Provisions section of this Digest.

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact on Government revenue.[20]

Main issues

The main issue raised by this Bill is whether it should have gone further than it proposes to go in protecting the rights of those the subject of a request for extradition or for mutual assistance.   For example, some stakeholders consider that extradition should be refused if there are substantial grounds for believing that if a person were surrendered, they would be in danger of being subjected to cruel, inhuman or degrading treatment or punishment.  There is also concern amongst some stakeholders at the continuation in Bill of the current presumption against the granting of bail in extradition proceedings.  Some stakeholders are concerned too, at the continuing discretion of the Attorney-General to agree to a mutual assistance request in circumstances where, if surrendered, a person could be subject to the death penalty. 

Further detail about these main issues in located in the Key provisions section of the Digest.

Key provisions

The Bill contains four schedules. 

Schedule 1 – General amendments relating to extradition and mutual assistance matters in criminal matters

Schedule 1 contains two Parts.

Part 1

Federal Magistrates

Items 1 and 2 make proposed amendments to section 5 of the Extradition Act by adding a proposed definition of Federal Magistrate and including Federal Magistrates in the definition of magistrate.

Items 3 and 4 make proposed amendments to sections 19 and 34 of the Extradition Act to remove references to state and territory Supreme Courts. As a result, the review of decisions under these provisions would be available only through the Federal Court.

Item 5 inserts new sections 45A and 45B into the Extradition Act. Proposed section 45A enables the Attorney-General to nominate a Federal Magistrate as a magistrate for the purposes of the Extradition Act, and enables the Federal Magistrate to consent to the nomination. Proposed section 45B clarifies that Federal Magistrates exercising powers or functions under the Extradition Act do so in a personal capacity.[21]

Item 10 inserts new sections 38ZC and 38ZD into the MA Act which mirror these provisions.[22]

Stakeholder comment

Professor Shearer considers the provision for Federal Magistrates to perform functions under both Acts ‘acceptable’.[23]

The Law Council of Australia (LCA)[24] submits that in view of the fact that Federal Court Magistrates are unlikely to have significant experience in criminal matters, particularly committal hearings:

...it is particularly important that [they] are provided with adequate levels of training and resources to ensure that they can respond to the additional workload which results from these proposed amendments.

Part 2

Information Sharing

Item 12 inserts new section 54A into the Extradition Act providing that for the purposes of the Privacy Act, the collection, use or disclosure of personal information about an individual is lawful where it is ‘reasonably necessary for the purposes of the extradition of one or more persons to or from Australia, including making, or considering whether to make, an extradition request’. 

Item 13 inserts new paragraphs 336E(2)(gb) and (gc) in the Migration Act 1958 to provide that a disclosure for the purposes of extraditing a person to or from Australia, or the providing or obtaining of international assistance in criminal matters by the Attorney-General (or an officer of his or her Department) is ‘permitted disclosure’ for the purposes of that Act.

Item 14 inserts new section 43D in the MA Act which provides that the collection, use or disclosure of personal information about an individual necessary to provide or obtain international assistance in criminal matters by the Attorney-General (or an officer of his or her Department) is authorised by law for the purposes of the Privacy Act.

The Explanatory Memorandum states that this encompasses international assistance which is authorised by the Attorney-General under the MA Act, as well as assistance that can be provided outside the scope of the MA Act, such as voluntary witness statements.[25]

The scope of the amendments relating to the use and disclosure of personal information was narrowed following submissions in response to the 2009 exposure draft Bill.[26]

Stakeholder comment

Professor Shearer considers the proposed amendments relating to privacy and information disclosure ‘acceptable’.[27]

Schedule 2 – Amendments to the Extradition Act

A detailed overview of the proposed amendments in the eight Parts to this Schedule is provided in the Explanatory Memorandum to the Bill.[28]

Many of the proposed amendments to the Extradition Act contained in this Schedule are consequential to other proposed key amendments.  The focus of this Digest is on proposed key amendments. Explanations of all the proposed amendments contained in this Schedule may be found in the Explanatory Memorandum to the Bill.[29]

Part 1 (Statutory Appeal of Extradition Decisions)

Division 1

Part 1 proposes to limit the jurisdiction to the review extradition decisions to the Federal Court of Australia (the Federal Court).[30]

Items 1, 5, 7 and 10 propose amendments to section 21 (Review of magistrate’s order); section 26 (Form and execution of surrender warrants and temporary surrender warrants); section 35 (Review of magistrate’s order); and paragraph 38(7)(c) of the Extradition Act so that reviews of decisions made, or actions taken, under these provisions can only be undertaken by the Federal Court and not by the Supreme Court of a state or territory.

Stakeholder comment

Professor Shearer considers the removal of state and territory jurisdiction:

... a sensible proposal designed to remove overlap and to avoid possible inconsistency in case law. [31]

Part 2 — Waiver of Extradition

Subject to safeguards, Part 2 will allow a person to waive the extradition process. Presently, a person may only consent to extradition when he or she is before a magistrate following the Minister’s notice.[32] The proposed amendments would allow a person, once arrested following an extradition request or a provisional arrest request, to immediately elect to remove him or herself from the extradition process and be surrendered to the foreign country.

Item 24 inserts proposed sections 15A (Waiver of extradition) and 15B (Attorney-General must make surrender determination) into the Extradition Act.

Proposed section 15A sets out the process for a person to elect to waive extradition under the Extradition Act.[33]

The Explanatory Memorandum explains that currently, someone who consents to extradition from Australia to a foreign country can spend up to six month in custody.[34]  The delay is said to be ‘largely due to the multiple stages in the current consent process’.[35]

Proposed section 15B sets out the process for the Attorney-General to decide if a person should be surrendered after having being notified by the magistrate of the person’s election to waive extradition.

Proposed new subsection 15B(2) requires the Attorney-General to make his or her decision ‘as soon as is reasonably practicable, having regard to all the circumstances’.

Proposed subsection 15B(3) provides that the Attorney-General may determine that the person be surrendered if he or she does not have ‘substantial grounds for believing’ that if the person were surrendered, that person would be at risk of being subject to the death penalty or to torture on return to the country which has requested their extradition.

Stakeholder comment

The Australian Human Rights Commission (AHRC) suggests that proposed subsection 15B(3)(a) should be expanded to cover cruel, inhuman or degrading treatment or punishment as well as torture.[36] The Australian Lawyers Alliance (ALA) also makes this suggestion.[37] The ALA also suggests that torture should be defined in the Extradition Act in accordance with Article 1(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[38] The Article provides as follows:

For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.[39]

Part 3 — Other Amendments

Division 1—Amendments relating to political offences

Item 33 proposes replacing existing paragraphs (a)-(d) of the definition of political offence in section 5 of the Extradition Act by excluding the following offences from the definition:

·      an offence involving an act of violence against a person’s life or liberty

·      an offence prescribed by regulations to be an extraditable offence in relation to the country or all countries, and

·      an offence prescribed by regulations not to be a political offence in relation to the country or all countries.

The Explanatory Memorandum explains that the proposed amendments would streamline the definition of political offence, make the definition consistent with the United Nations Model Extradition Treaty[40] and ensure that the extradition regime can keep pace with Australia’s international extradition treaty obligations without the need for frequent amendments to the Extradition Act.[41]

The Explanatory Memorandum states that the proposed regulations will:

...expressly exclude from the definition of political offence other conduct which, if the conduct occurred in Australia, would constitute a terrorism, genocide or war crimes offence or a crime against humanity.[42]

Additionally, the Explanatory Memorandum states that the proposed regulations would:

... make clear that an offence constituted by the murder, kidnapping or other attack on a head of state, or his or her family, is not considered a political offence for the purposes of Australia’s extradition law.[43]

Stakeholder/Scrutiny of Bills Committee comment

The proposed amendments are supported by the ALA[44], and by Professor Shearer, who says, however, that while:

[t]his is generally to be welcomed, and is in line with international developments to disregard political motives where the act charged consists of indiscriminate violence, or the threat thereof, such as to constitute terrorism...I can foresee a problem for magistrates and courts on appeal in applying this provision when the Act prohibits their testing the evidence on which a foreign request is based. Whether the acts alleged are terrorist in nature or not cannot be decided merely by applying the dual criminality test; it requires a detailed examination of the facts and circumstances of the case. The Act is presently highly restrictive in this regard.[45]

Both the LCA and the Senate Standing Committee on the Scrutiny of Bills express concern at the proposed use of regulations.  The LCA submits that:

... if the additional exceptions to the definition...are to be relegated to the regulations, then the Extradition Act should provide more precise guidance on what type of offences may be carved out of the definition.[46]

The Senate Standing Committee on the Scrutiny of Bills notes its preference for the inclusion of important matters in primary legislation rather than in regulations.[47] 

The Committee seeks further advice from the Minister as to how often it is necessary to amend the Extradition Act to ensure that the regime meets Australia’s international obligations.[48] 

Division 2—Extradition objection on the grounds of sex or sexual orientation

Item 37 proposes to add the words ‘sex’ and ‘sexual orientation’ to paragraphs 7 (b) and (c) of the Extradition Act. 

The effect of the proposed amendments would be to prevent a person from being extradited where extradition is sought by a requesting country for the purpose of punishing a person on account of his or her sex or sexual orientation, or where a person may be prejudiced on surrender on the basis of his or her sex or sexual orientation.[49]

Stakeholder comment

The Human Rights Law Resource Centre (HRLRC)[50], the ALA[51] and the AHRC[52] are among those stakeholders who support this proposed amendment.

The HRLRC notes that the proposed amendment is consistent with the requirements of Article 26 of the International Covenant on Civil and Political Rights (ICCPR).[53]

Article 26 of the ICCPR provides as follows:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.[54]

The HRLRC suggests that the extradition objections in section 7 of the Extradition Act should also cover human rights violations, ‘particularly [those] relating to: the death penalty; torture, cruel or inhuman treatment or punishment; conditions of detention that violate a person’s humanity and inherent dignity; or denial of fundamental fair trial rights’.[55]

The HRLRC suggests further that, consistent with Article 26 of the ICCPR, ‘a request for assistance should be mandatorily refused where the provision of assistance may result in a person being prosecuted, charged, convicted or otherwise prejudiced as a result of their language, ethnic or social origin, or other status’. [56]

Division 3—Notice of receipt of extradition request

The proposed amendments to section 16 under Division 3 by items 41 and 42 to provide that, in determining whether to exercise his or her discretion to give a notice accepting an extradition request, the Attorney-General is only required to consider whether a person is an ‘extraditable person’[57] in relation to the extradition country.[58] ‘Extradition person’ is defined in section 6 of the Extradition Act as follows:

Where:

(a)              either:

(i)              a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or

(ii)              a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and:

(A)              there is an intention to impose a sentence on the person as a consequence of the conviction; or

(B)              the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served;

(b)              the offence or any of the offences is an extradition offence in relation to the country; and

(c)              the person is believed to be outside the country;

the person is, for the purposes of this Act, an extraditable person in relation to the country.

Until the issue of this notice by the Attorney-General, the person’s eligibility for surrender cannot be considered by a magistrate. The Explanatory Memorandum indicates that the purpose of the proposed amendments is to streamline the early stages of the extradition process and to facilitate consideration of eligibility for surrender by a magistrate more quickly—and possibly to reduce the overall time that a person spends in custody.[59]

Stakeholder comment

While acknowledging the advantages of a streamlined approval process, the LCA has concerns with the removal of the requirement for the Attorney-General to consider dual criminality and extradition objections before issuing a section 16 notice, suggesting that the proposed amendments might have tipped the balance too far.[60]

The LCA considers that if the Attorney-General is not required by the Extradition Act to consider dual criminality or possible extradition objections, then he or she will not be provided with briefing on these issues and the decision to issue a notice will become a formality.[61] The LCA also submits with respect to dual criminality that:

Additionally, requesting states should be required to supply a discrete document that clearly sets out the conduct constituting the offence; that is, the conduct relevant to the elements of the offence that has been charged.[62]

Division 4—Consent to accessory extradition

Item 44 proposes to insert new section 19A into the Extradition Act, which requires a magistrate in proceedings under section 18 (Consent to surrender) or subsection 19(1) (Determination of eligibility for surrender) to ask the person whether he or she consents to accessory extradition if the magistrate is satisfied that there is no extradition objection in relation to any of the additional extradition offences.[63]

Further safeguards are provided in proposed subsection 19A(3), including that the magistrate must be satisfied that the person is legally represented, or if not so satisfied, that the person be given a reasonable opportunity to be legally represented.[64] 

Item 45 proposes to replace the definition of qualifying extradition offence in subsection 22(1) of the Extradition Act (Surrender determination by Attorney-General), so that the definition would also cover an extradition offence in relation to which the person has consented in accordance with proposed section 19A (see above).

Division 5—Extradition to Australia from other countries

Item 46 proposes to insert new section 44A into the Extradition Act so as to enable the Attorney‑General to give a legally enforceable undertaking to a requested country with respect to the maximum sentence that could be imposed on a person whose extradition is being sought to Australia if that person is found to have committed a particular offence punishable by Australian law.[65]

The Explanatory Memorandum explains that the proposed amendment is necessary because ‘[s]ome countries are prohibited under their laws from surrendering a person to other countries unless an undertaking is provided about the maximum sentence that may be imposed on the person’.[66]

Division 6—Prosecution instead of extradition

The purpose of the proposed amendment to section 45 of the Extradition Act in Division 6 is to expand the circumstances in which a person could be prosecuted in Australia for an extradition offence instead of being extradited to another country.[67] In particular, the proposed amendments would allow the Attorney-General to consent to the prosecution of persons in Australia regardless of their nationality. Currently, the section only applies to Australian citizens.

The Explanatory Memorandum explains, for example, that the proposed amendments would enable Australia to prosecute a person in Australia in circumstances where there are concerns that the person would be subjected to torture in the requesting country.[68]

The Explanatory Memorandum states that the proposed amendments would:

...assist in preventing Australia from becoming an attractive safe haven for fugitives from countries whose criminal justice systems might give rise to grounds for refusal under the Extradition Act.  For example, where there are concerns about torture or the death penalty.[69]

A detailed description of how the proposed amendments would operate is provided in the Explanatory Memorandum.[70]

Stakeholder comment

The HRLRC agrees with these proposed amendments as they would ‘reduce the likelihood of extraditing a person when extradition would amount to significant and unnecessary interference with their family life or other human rights violations’.[71]

While not opposing the proposed amendments, Professor Shearer comments as follows:

The existing section 45 has been in force for 23 years. I have not heard of a single case where there has been a prosecution in Australia of a person whose extradition has been refused. The reason is not hard to find. Prosecutions require first-hand evidence. Moreover, that evidence must satisfy Australian standards of proof, and lead to an overall demonstration of proof of guilt beyond reasonable doubt. Where the relevant facts all lie in a foreign country, where the investigating authorities are unfamiliar with what is required by an Australian court, and where the chief witnesses would have to be flown to Australia, it is little wonder that a prosecution faces all but insuperable obstacles. It has always seemed to me that section 45, even as elaborated in the present Bill, was designed as window dressing or as a sop to foreign countries whose requests for extradition have been turned down. It is not a serious proposition. However, I would not object to its going forward in the present Bill, since it is harmless, and may serve that useful diplomatic purpose.[72]

Division 7—Technical amendments relating to notices

The Explanatory Memorandum explains that Division 7 contains proposed amendments making various minor and technical changes to provisions of the Extradition Act in relation to the giving of notices by the Attorney-General.[73]

Division 8—Amendments relating to remand and bail

The proposed amendments in this Division would extend the availability of bail in the extradition process. Currently, the Extradition Act permits a person to be remanded on bail during the early stages of the extradition process if special circumstances exist. Once a magistrate determines that the person is eligible for extradition, they must be committed to prison.

The Division also includes proposed amendments that would extend, by five days, the time which the Attorney-General has to consider a notice under section 16 of the Extradition Act stating that an extradition request has been received. 

Item 70 proposes to replace paragraph 19(9)(a) so as to extend the availability of bail to persons who have been determined eligible for surrender.  However as currently under the Extradition Act, a magistrate must not release a person on bail unless there are special circumstances justifying such release (item 72—proposed subsection 19(9A)).

Item 74 amends section 21 of the Extradition Act by inserting new subsections 21(2A), (2B) and (2C) which provide that where the Federal Court of Australia quashes an order made by a magistrate that a person is ineligible for surrender, the Court must order the release of a person on bail. Again, the magistrate must not release a person on bail unless there are special circumstances justifying such release.

Item 84 proposes to insert new section 49B into the Extradition Act so that any decision under the Act by a court or a magistrate to remand or release a person on bail may be made on such terms and conditions as the court or magistrate thinks fit.

Similar extensions of the availability of bail are provided for under items 76 and 77.

Item 84 also proposes to insert new section 49C into the Extradition Act. Proposed new section 49C would extend the availability of bail in circumstances where a person seeks judicial review of the Attorney-General’s decision to surrender a person under subsections 22(2) or 15B(2).[74]

Stakeholder comment

Professor Shearer supports the extension of the availability of bail:

This is especially to be welcomed since the present legislation is unduly harsh in this respect, giving virtually no scope for the exercise of judicial discretion. The UK legislation, by contrast, allows normal bail procedures to apply...[75]

While also supportive of the proposed amendments[76], the LCA seeks the removal of the Extradition Act’s presumption against the granting of bail.[77]  The HRLCRC[78] and the NSW Council for Civil Liberties have similar views on this issue.[79]

Dr Joshua Wilson considers the continuing requirement for an applicant to show ‘special circumstances’ as to why bail should be granted will invite a continuation of the ‘current confusion surrounding that phrase’.[80]

An explanation

In response to such concerns, the Explanatory Memorandum explains that:

Creating a presumption against bail for persons sought for extradition is appropriate given the serious flight risk posed in extradition matters and Australia’s international obligations to secure the return of alleged offenders to face justice in the requesting country. The High Court in United Mexican States v Cabal has previously observed that to grant bail where a risk of flight exists would jeopardise Australia’s relationship with the country seeking extradition and jeopardise our standing in the international community. New section 49B, which will be inserted by item 84, will provide that any decision under the Extradition Act of a court or a magistrate to remand or release a person on bail may be made on such terms and conditions as the court or magistrate thinks fit.

The presumption against bail unless there are special circumstances and new section 49B will assist Australia to meet its international obligations to secure the return of alleged offenders to face justice in the requesting country.[81]

Division 9—Other minor technical amendments

The Explanatory Memorandum explains that Division 9 contains proposed amendments of a minor technical nature, for example, to simplify language or to rectify technical drafting issues.[82]

The proposed amendments in this Division are comprehensively described in the Explanatory Memorandum to the Bill.[83] In particular however, the following proposed amendments are noted.

Item 102 proposes to insert new section 21A (Admission of evidence et cetera, on review or appeal) into the Extradition Act to clarify that if a review court considers that evidence was wrongly excluded in the extradition proceedings, the court may receive the wrongly excluded evidence, as well as further evidence or submissions directly relating to the excluded evidence. 

Proposed subsection 21A(4) clarifies that the person cannot adduce, and the court cannot receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the person’s surrender is sought. 

The Explanatory Memorandum states that this is to maintain the ‘no evidence’ standard in extradition proceedings currently applying under section 19 (Determination of eligibility for surrender) and that this standard is consistent with the standard of information required for extradition requests to Australia in the United Nations Model Treaty on Extradition.[84]

Item 104 proposes to replace paragraph 22(3)(b) (Surrender determination by Attorney-General) in the Extradition Act to align the wording of the proposed provision with Australia’s non-refoulement (non-return) obligations under Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).[85]

The Explanatory Memorandum states that:

The revised wording will provide that the Attorney-General may only make a surrender determination if he or she does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to torture. In determining whether there are substantial grounds for believing a person would be in danger of being subjected to torture, the Attorney-General will take into account relevant considerations, including any consistent patterns of gross, flagrant or mass violations of humans rights consistent with Article 3(2) of the UNCAT.[86]

Stakeholder comment

The alignment of the wording of proposed paragraph 22(3)(c) to that of the UNCAT is supported by human rights organisations including the HRLRC[87], Australians for Extradition Justice[88] and the AHRC.[89]

The AHRC suggests that proposed paragraph 22(3)(b) (and also proposed section 15B(3)):

... be expanded to provide that the Attorney-General must not make a surrender determination where there are substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to torture or cruel, inhuman or degrading treatment or punishment.[90]

This would be consistent with Article 7 of the International Covenant on Civil and Political Rights which provides that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’.[91]

The AHRC also suggests that the residual power of the Attorney-General in proposed paragraph 22(3)(c) to surrender a person for an offence which is punishable by the death penalty, be removed.[92]

A similar view is expressed by the HRLRC.[93]  Specifically, the HRLRC notes that:

Under international human rights law, it is inadequate that diplomatic assurances act as a safeguard against the death penalty where there are substantial grounds for believing that a person would be in danger of being subjected to the death penalty upon extradition.[94]

The LCA suggests that ‘only formal undertakings which are provided by an official appropriately authorised to offer a guarantee that the death penalty will not be imposed’ should be regarded as sufficient to bring a request within the exception provided by subsection 22(3).[95]

Schedule 3 – Amendments relating to providing mutual assistance in criminal matters

Part 1 – Grounds of refusal

MA Act

Items 1, 2, 4, 7, and 12 propose amendments to section 8 of the MA Act (Refusal of assistance), and specifically, to:

·      paragraphs 8(1)(a) and (b) which relate to prosecution or punishment for a political offence, or where there are substantial grounds for prosecuting or punishing a person on this basis

·      paragraph 8(1)(c) which relates to the situation where there are substantial grounds for believing that the request was made for the purpose of prosecuting or punishing a person on the basis of the person’s race, sex, religion, nationality or political opinions

·      paragraph 8(1)(d) which relates to the prosecution or punishment of a person in respect of an act or omission that if it had occurred in Australia, would have constituted an offence under the military law of Australia but not also under the ordinary criminal law of Australia, and

·      paragraph 8(2)(a) relates to a request with respect to the prosecution or punishment of a person for an act or omission that, if it had occurred in Australia, would not have constituted an offence against Australian law.

The proposed amendments extend the application of these paragraphs to the investigatory stages as well as the prosecution and punishment stages.  This proposed amendment is supported by the AHRC.[96]

Items 1 and 2 make proposed amendments to paragraphs 8(1)(a) and (b) which require the Attorney-General to refuse a mutual assistance request where the request relates to prosecution or punishment for a political offence, or where there are substantial grounds for prosecuting or punishing a person on this basis.

Item 3 inserts proposed new paragraph 8(1)(ba) into the MA Act so as to extend the application of the grounds of refusal for a political offence to requests for assistance relating to a foreign order in relation to a political offence.

Item 5 proposes to amend paragraph 8(1)(c) so that the Attorney-General must refuse a request for assistance, not only where there are substantial grounds for believing that the request was made for the purpose of prosecuting or punishing a person on the basis of the person’s race, sex, religion, nationality or political opinions, but also with respect to sexual orientation.

Stakeholder comment

The ALA supports the proposed amendment.[97] The AHRC is also supportive, but suggests a further extension of the grounds of refusal to cover other grounds prohibited under Article 26 of the ICCPR.[98]

Similarly, the LCA supports the proposed amendment, but submits that a more comprehensive amendment would be preferable, to include ‘gender, ethnicity, colour and language’.[99] A similar point is made by the HRLRC.[100]

Item 6 proposes to amend paragraph 8(1)(ca) so as to require the Attorney-General to refuse a mutual assistance request from a foreign country where there are substantial grounds for believing that, if the request was granted, the person would be in danger of being subjected to torture. The wording of the proposed amendment is consistent with the proposed amendment to the Extradition Act by Item 104 of Part 3 of Schedule 2.

Stakeholder comment

This proposed amendment is supported by the AHRC, although it considers that the protection should be extended to cover Australia’s international human rights obligations, specifically, those under article 7 of the ICCPR, which provides that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’.[101] The ALA makes a similar suggestion.[102]

Item 8 proposes to insert new paragraph 8(1)(da) to clarify that a request must be refused if the request relates to a foreign order in relation to an offence, and an act or omission with respect to which assistance is sought would have constituted an offence under Australian military law, but not under the ordinary criminal law of Australia if the act or omission occurred in Australia.

Item 11 proposes to replace subsection 8(1A) so that the mandatory ground of refusal for offences with respect which the death penalty may be imposed in the requesting country also applies where a person has been arrested or detained on suspicion of committing such an offence. Formal charges do not have to have been laid.

The Explanatory Memorandum states that:

This recognises that under some legal systems, a suspect may be formally charged with an offence later in the criminal justice process than in Australia. As a consequence, the suspect may be arrested or detained for a longer period of time before being formally charged.[103]

As presently the proposed new subsection 8(1A) would permit the Attorney-General to refuse a request ‘in respect of which the death penalty may be imposed in the foreign country, unless the Attorney‑General is of the opinion, having regard to the special circumstances of the case, that the assistance requested should be granted’. [Emphasis added]

The Explanatory Memorandum states that:

As is the case with respect of existing subsection 8(1A), the ‘special circumstances of the case’ warranting assistance may include, but are not limited to, circumstances where the assistance is exculpatory in nature or where the requesting country has provided an undertaking that the death penalty will not be imposed, or if it is imposed, will not be carried out.[104]

Stakeholder/Scrutiny  of Bills Committee comment

While supporting the proposed extension of this provision, the Senate Standing Committee on the Scrutiny of Bills expresses concern that the provision would still permit assistance to be provided in circumstances where the death penalty could apply.[105]

The AHRC supports the extension of the application of the grounds of refusal to the investigative stage as well as the prosecution or punishment stage. [106] The ALA also supports this proposed change.[107]

However, like the Senate Committee, the AHRC is concerned at the discretionary power of the Attorney-General to provide assistance in circumstances where the death penalty could apply.[108] The HRLRC shares this concern.[109]

Regardless of how the discretion is used in practice, the LCA submits that the Attorney-General ‘should not have an unfettered discretion to accede to a mutual assistance request in a death penalty case’.[110] The LCA also notes that ‘special circumstances’ is not defined in the MA Act.[111]

The LCA also considers that:

The provision of agency to agency assistance should also be restricted to cases where the assistance provided will assist a suspect/defendant to meet the charges or allegations he or she faces; or where a formal undertaking has been provided that the death penalty will not be imposed or carried out.[112]

The LCA notes in this regard that one relevant policy document, the AFP Practical Guide on International Police-to-Police Assistance in Potential Death Penalty Situations, released in December 2009, is not sufficient, although an improvement on an earlier guide.[113] The ALA expresses similar concerns.[114]

Item 14 proposes to replace paragraph 8(2)(c) to make double jeopardy a discretionary ground for refusing mutual assistance. The Explanatory Memorandum says that this is ‘to enable the provision of assistance in appropriate cases such as where there is fresh evidence that was not available at the original trial, or where there are other circumstances accepted in Australia as being exceptions to the double jeopardy principle’.[115]

Proposed paragraph 8(2)(c) also makes double jeopardy a ground for refusal where a person has been acquitted, pardoned or punished for the offence in Australia, the foreign country, or another country, and extends the application of the paragraph to the investigation and the punishment stages.

Stakeholder comment

The LCA is strongly opposed to making double jeopardy a discretionary ground for refusing a request for mutual assistance, but supports the application of proposed paragraph 8(2)(c) to acquittals, pardons or punishment in a third country, and to the investigation stages.[116]

The LCA submits that if refusal of a mutual assistance on the basis of double jeopardy were to become discretionary it:

·      may encourage, or fail to punish, poor investigative or prosecutorial work

·      would introduce intolerable uncertainty for defendants and undermine the concept of the finality of proceedings, and

·      would place an unfair cost burden on accused person forced to fund a second trial.[117]

The HRLRC also disagrees with this proposed amendment, noting that:

...double jeopardy is a fundamental human right and a paramount feature of our criminal justice system.[118]

The ALA is similarly opposed to the proposed amendment.[119]

Part 2 – Video Link Evidence

Part 2 makes proposed amendments to section 12 of the MA Act to enable Australia to request and receive requests from a foreign country to arrange for evidence to be taken by video link technology.

Part 3 — Telecommunications and Surveillance Devices

MA Act

Part 3 reflects a number of modifications since the 2011 exposure draft.

Division 1 - Provision of certain lawfully obtained material

Section 13A of the MA relates to a procedure for providing, directly to a foreign country, material that was lawfully obtained by, and is lawfully in the possession of, a domestic enforcement agency following an authorisation from the Attorney-General. The material does not have to be put before a magistrate before it can be provided to a foreign country.

The Explanatory Memorandum explains that:

Currently, information that is obtained by lawful telecommunications interception (lawfully intercepted information) and covertly accessed stored communications (such as email records) (lawfully accessed information) obtained in an Australian investigation can only be provided to a foreign country through take evidence or production order proceedings before a magistrate pursuant to section 13 of the MA Act.[120]

Proposed amendments by Division 1 would extend the application of section 13A to lawfully intercepted and lawfully accessed information, including information in the application for the warrant, the person or telecommunications service to which the warrant relates and persons specified in the warrant as using the telecommunications service.

Item 39 proposes to amend section 13A of the MA Act to enable the Attorney-General to authorise the provision of certain specified material to a requesting country, provided the required offence threshold is met.

Under proposed subsection 13A(2), the Attorney-General can authorise the provision of ‘lawfully accessed information’ provided it related to a serious offence against the laws of the requesting country that was punishable by a maximum penalty of three or more years imprisonment, life imprisonment or death, or a maximum fine of an amount equivalent to at least 900 penalty units.[121]

Stakeholder comment

The LCA considers that the proposed subsection 13A(2) should be amended so that the threshold for the acceptance of a request for the investigation of an offence is whether the penalty would apply if the offence were committed in Australia.[122]

A similar point has been made by the Office of the Australian Information Commissioner (OAIC):

...before Australia discloses personal information to a foreign country, an assessment [should] be made of whether a foreign offence firstly has an equivalent offence under Australian law, and secondly whether the equivalent offence would be considered a ‘serious offence’ because the maximum penalty available for that offence meets a particular penalty threshold’.[123]

Telecommunications (Interception and Access) Act 1979

Division 2 – Requests for use of surveillance devices

Division 2 makes proposed amendments to the MA Act and the Surveillance Devices Act 2004 (SD Act) so that Australia is able to make and receive requests relating to the use of surveillance devices.  Currently, such devices can only be used in the investigation and prosecution of a domestic offence punishable by imprisonment for at least three years.[124]

MA Act

Item 50 proposes to insert new Part IIIC into the MA Act, containing sections 15E and 15F—provisions about assistance in relation to the use of surveillance devices. 

Proposed section 15E relates to requests by Australia for surveillance devices and would enable Australia to request an appropriate authority in a foreign country to authorise the use of a surveillance device in accordance with the law in that country to obtain relevant information and to send that information to Australia.  Use of the device must be reasonably necessary to obtain information relevant to:

·      the commission of an Australian offence punishable by at least three years imprisonment, or

·      the identity or location of the offender(s).

Proposed section 15F relates to requests by foreign countries for surveillance devices and would enable the Attorney-General to authorise an eligible law enforcement officer to apply for a surveillance device warrant under section 14 of the SD Act if the Attorney-General is satisfied that: 

·      commencement in the foreign country of an investigation, or an investigative proceeding, relating to a criminal matter involving an offence against the law of the foreign country

·      the offence is punishable by a maximum penalty of three or more years imprisonment; life imprisonment; or death

·      the Attorney-General receives a request from the foreign country to arrange for the use of a surveillance device, and

·      the requesting country has given appropriate undertakings, such as those in relation to the use and destruction of information obtained as a result of the surveillance device.[125]

The Explanatory Memorandum explains that although the proposed amendment would permit assistance to be given in relation to offences involving the death penalty, section 8 of the MA Act requires that, where a mutual assistance request relates to an offence involving the death penalty, the request must be refused unless ‘special circumstances’ exist.[126]

Stakeholder comment

As noted elsewhere in this Digest, the ‘special circumstances’ exception has been a matter of concern for some stakeholders.

The LCA also has the following concerns with the threshold tests for obtaining a warrant to assist in the investigation of a foreign offence:

·      as penalties under foreign laws can be quite different to those for equivalent offences under Australian law, the Attorney-General should be satisfied that the offence under investigation would attract the requisite penalty if committed in Australia, and

·      foreign agencies should be required to provide sufficient information to allow the merits of their requests to be properly tested. This is said by the LCA to be a requirement for domestic investigations under the SD Act.[127]

While supporting the undertakings required under proposed section 15F with respect to the use and destruction of information, the LCA ‘queries how such undertakings can be monitored or enforced’.[128]

SD Act

Items 51–53 set out new definitions of investigative proceeding, mutual assistance application and mutual assistance authorisation relevant to amendments proposed in Division 2.

Item 54 inserts new subsection 14(3A) into the SD Act, to enable a law enforcement officer to apply for the issue of a surveillance device warrant if authorised to do so by the Attorney-General under proposed section 15F of the MA Act (see above).

Item 55 proposes to amend subsection 14(4) of the SD Act, so that an application under proposed subsection 14(3A) could be made to an eligible judge or a member of the Administrative Appeals Tribunal (AAT).[129]

Explanations for other consequential amendments made by items 56 to 58 are set out in the Explanatory Memorandum.[130]

Item 59 inserts new paragraph 16(2)(ea) into the SD Act, so that in determining whether a surveillance device should be issued, the eligible Judge or nominated AAT member must have regard to, among other matters, the likely evidentiary or intelligence value of any evidence or information sought to be obtained, to the extent that it is possible to determine this from the information obtained from the relevant foreign country.

Item 64 proposes to replace paragraph 45(4)(f) in the SD Act, so as to include, as an exception to the general prohibition on the use, recording, communication or publication of protected information or its admission in evidence, communication of information for the purposes of providing the information to a foreign country where:

·      the provision of information has been authorised under proposed subsection 13A(1) of the MA Act, or

·      the information was obtained under, or relates to, a surveillance device warrant issued in relation to a mutual assistance authorisation.

Items 65, 66 and 67 propose to insert new paragraphs 50(1)(aa), (ea) and (ia) respectively into the SD Act, which would require the annual report provided by the chief officer of a law enforcement agency to the Minister in each financial year to include, among other types of information, the following:

·      the number of mutual assistance applications made by or on behalf of, and the number of warrants issued as a result of applications to, law enforcement officers of the agency during that year

·      the number of mutual assistance applications made by, or on behalf of, law enforcement officers of the agency that were refused during that year, and the reasons for refusal, and

·      the Commonwealth, state or territory offence (if any) which corresponds to the relevant foreign offence in respect of which a mutual assistance application was made by, or on behalf of, law enforcement officers of that agency during the year.

Part 4 —Carrying out forensic procedures at the request of a foreign country, et cetera

Australia cannot presently conduct a compulsory forensic procedure (e.g. DNA testing, obtaining fingerprints) on a suspect in relation to a foreign serious offence in response to a request from a foreign country.[131]

Although such procedures can presently be carried out on a volunteer who provides informed consent, in response to a request from a foreign county, the Explanatory Memorandum states that the relevant provisions of the Crimes Act 1914 (Crimes Act) are ‘not as clear as they could be’.[132]

Amendments are proposed to the MA Act and the Crimes Act to change this.

Crimes Act

Item 76 proposes to insert new subsection 23WA(9) into the Crimes Act, relating to requests made by a foreign country or foreign law enforcement agency for forensic procedures to be carried out. Where such requests are made, the provisions of Part ID of the Crimes Act relating to forensic procedures, would apply as if a reference to an indictable offence were a reference to a foreign serious offence.[133]

Items 77– 84 propose various amendments to provisions in Division 3 of Part ID of the Crimes Act, which relate to forensic procedures on a suspect by consent.

For example, item 78 proposes to replace subsection 23WI(2) in the Crimes Act. Section 23WI deals with matters that a constable must consider before requesting consent to a forensic procedure.

Proposed subsection 23WI(2) provides that in determining whether a request is justified in all the circumstances, the constable must:

·      if a foreign law enforcement agency requested the procedure—the constable must balance the public interest in Australia, of providing and receiving international assistance in criminal matters against the public interest in upholding the physical integrity of the suspect, and

·      in any other case—balance the public interest in obtaining evidence confirming or disproving that the suspect committed the relevant offence against the public interest in upholding the physical integrity of the suspect.

Item 79 proposes to insert new subsection 23WIJ(1) into the Crimes Act. Section 23WJ provides for matters that the suspect must be informed about before giving consent to a forensic procedure.

Proposed paragraph 23WJ(1)(ib) sets out further information that will need to be provided if the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency.

Proposed paragraph 23WI(2)(a) requires a constable to balance the public interest in Australia providing and receiving international assistance in criminal matters, against the public interest in upholding the physical integrity of the suspect.

Scrutiny of Bills Committee Comment

The Senate Standing Committee on the Scrutiny of Bills notes that:

Given the fundamental importance of reciprocity in international cooperation in criminal matters, it is important that this is taken into account by the magistrate in determining whether the carrying out of the forensic procedure is justified in all the circumstances.[134]

Further, ‘[g]iven the significance of obtaining forensic material without consent, and noting the importance accorded to reciprocity’ the Committee seeks:

...the Minister's advice as to whether consideration could be given to limiting the provision of assistance to countries from whom Australia could receive similar assistance.[135]

In addition, item 82 proposes to insert new subsection 23WJ(6) into the Crimes Act, which outlines the consequences where a suspect who is being asked to undergo a forensic procedure in response to a request from a foreign law enforcement authority refuses to consent to the procedure.

Further details of this and related amendments are set out in the Explanatory Memorandum.[136]

Item 85 proposes to insert new subsection 23WM(2A) into the Crimes Act. Section 23WM provides that non-intimate forensic procedures on a suspect may only be carried out by order of a senior constable.

Proposed subsection 23WM(2A) provides that a non-intimate forensic procedure on a suspect may not be carried out on a suspect who has not consented if the procedure has been requested by a foreign country or a foreign law enforcement agency.  This will ensure that procedures carried out without consent must be as the result of a formal request by the foreign country, and approval by the Attorney-General.[137]

Items 86–91 propose amendments to Division 5 of Part 1D of the Crimes Act, relating to the carrying out of forensic procedures on a suspect by order of a magistrate.

A detailed summary of the proposed amendments by these items to sections 23WR (circumstances in which magistrate may order forensic procedure), 23WS (final order for carrying out of forensic procedure), 23WT (matters to be considered by magistrate before ordering forensic procedure) and 23WU (application for order) may be found in the Explanatory Memorandum.[138]

Items 93– 98 propose amendments to Division 6B of Part 1D. Part 6B relates to carrying out forensic procedures on certain people such as volunteers.

A detailed summary of the proposed amendments by these items to sections 23XWR (informed consent of volunteer or parent or guardian of volunteer), 23XWS (recording of giving of information and consent), 23XWU (circumstances in which magistrate may order the carrying out of forensic procedure on a child or incapable person) and 23XWV (retention of forensic material by order of a magistrate after volunteer, parent or guardian of child or incapable person withdraws consent) may be found in the Explanatory Memorandum.[139]

Item 103 proposes to insert new Division 9A into Part 1D of the Crimes Act, which contains provisions relating to carrying out forensic procedures at the request of a foreign country or foreign law enforcement agency. The proposed amendments would relate to matters including:

·      providing the foreign country with forensic evidence resulting from a forensic procedure carried out on a person at the request of that foreign country, and

·      providing a foreign law enforcement agency with forensic evidence resulting from a forensic procedure carried out on a person at the request of that foreign law enforcement agency.

Proposed subdivision A — requests by foreign countries

The proposed processes involved in providing forensic evidence to the foreign country and foreign law enforcement agency are outlined in the Explanatory Memorandum.[140]

MA Act

Item 112 proposes to insert new Part IVA (Forensic Procedures) into the MA Act, which contains proposed amendments to the MA Act corresponding to those proposed to Part ID of the Crimes Act. The aim of these amendments is to facilitate the execution of a formal request from a foreign country for forensic evidence. 

Proposed section 28A relates to requests by Australia for assistance from foreign countries in the conduct of forensic procedures.

Proposed subsections 28A(1) and (2) set out the circumstances in which Australia would be able to request such assistance and the type of assistance that may be requested. Where a proceeding relating to a criminal matter has commenced in Australia and 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, Australia may request the foreign country to authorise the carrying out of a forensic procedure on that person to assist with the criminal proceeding. In addition, if an investigation relating to a criminal matter has commenced in Australia and a person in a foreign country is capable of giving assistance in relation to that investigation, Australia may request the foreign country to authorise the carrying out of a forensic procedure on that person to assist with the criminal investigation.

Proposed section 28B relates to requests by foreign countries for assistance from Australia in the conduct of forensic procedures.

Proposed subsection 28B(1) enables the Attorney-General to authorise a constable to apply to a magistrate for an order for the carrying out of a forensic procedure on a person following a request from a foreign country in certain circumstances. Further background to this proposed provision may be found in the Explanatory Memorandum.[141]

Proposed subsection 28B(2) sets out the factors of which the Attorney-General must be satisfied authorising a constable under proposed subsection 28(1). These include:

·      a foreign country has requested that a forensic procedure be carried out on a person

·      the foreign country has started investigating whether that person (who must not be a child or an incapable person) has committed a foreign serious offence against its laws or started proceedings against that person for a foreign serious offence

·      the person is or is believed to be in Australia

·      the foreign country has given appropriate undertakings, such as undertakings in relation to the retention, use and destruction of the forensic material or information obtained from analysing that forensic material, and

·      the person has been given an opportunity to consent to the forensic procedure and has not consented to it.[142]

Stakeholder comment

The OIAC supports the requirement in proposed subsection 28B(2) that the Attorney-General seek an undertaking from a foreign country before disclosing information overseas.[143]

However, the LCA queries how such undertakings can be monitored or enforced, and has suggested that ‘in the absence of any mechanism to enforce or even review compliance, the protection provided ... may be illusory’.[144] The LCA also queries ‘who in the receiving country might be regarded as sufficiently authorised to agree to such conditions and then to oversee their observance’.[145]

Part 5 – Proceeds of Crime

The Explanatory Memorandum states that the Proceeds of Crime Act 2002 (POC Act) is an important mutual assistance tool.[146]

The Bill proposes a range of amendments to Part VI of the MA Act, which sets out its proceeds of crime provisions, to improve the operation of those provisions.

Item 116 proposes to amend subsection 34(2) of the MA Act. Section 34 provides for requests for enforcement of foreign orders. “Foreign order’ means a foreign forfeiture order, pecuniary penalty orders or restraining order (see section 3 of the MA Act).

Proposed subsection 34(2) would apply to requests by any foreign country for enforcement of foreign forfeiture and pecuniary penalty orders, not necessarily a foreign country specified in regulations.

The Explanatory Memorandum explains that:

This amendment is appropriate given the more widespread use of non-conviction based proceeds of crime orders around the world. This will enable Australian authorities to act quickly to register these types of orders at the request of any country rather than being limited to countries specified in regulations. Having to list countries in the regulations can be a time consuming process and as such can cause unnecessary delay which may allow offenders to disperse assets.[147]

A similar amendment is proposed in relation to requests from foreign countries relating to foreign restraining orders in item 118.

Part 5 also contains a range of other proposed amendments of a consequential, streamlining and/or procedural nature. 

Schedule 4 – Contingent technical amendments

Items 1–4 of Schedule 4 contain proposed amendments, which are contingent on the commencement of amendments in the Migration Amendment (Complementary Protection) Bill 2011 and Cybercrime Legislation Amendment Bill 2011.  As mentioned, these Bills are also currently before the Parliament.

Concluding comments

The Bill contains proposed amendments directed at streamlining the extradition and mutual assistance processes to the benefit of all parties, and offering broader protections to people who are subject to extradition or mutual assistance requests. 

As some stakeholders have pointed out, the Bill could have gone further in several respects in its protection of persons subject to such requests. For instance, it could have removed the current presumption against the granting of bail in extradition proceedings, and it could have broadened the grounds on which extradition must be refused to cover the situation where a person who has been surrendered would be in danger of being subjected to cruel, inhuman or degrading treatment or punishment.  The Bill could also have removed or curtailed the continuing discretion of the Attorney-General to agree to a mutual assistance request in circumstances where, on surrender, a person could be subject to the death penalty. 

However, the Bill does make a number of significant advances in this regard.   For instance, in relation to the extradition process, it seeks to extend the availability of bail; to extend the circumstances in which a person may be prosecuted in Australia as an alternative to extradition; and to require Australia to refuse to extradite a person who may be punished, or discriminated against upon surrender, on the basis of his or her sex or sexual orientation.

Parliament may wish to consider whether a future review of the operation of the two regimes at some time in the future would be useful.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2795.

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ISSN 1328-8091

[1].               Explanatory Memorandum, Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, pp. 4-6.

[2].               For further information see the Explanatory Memorandum, ibid., p. 79.

[3].               Comlaw website, viewed 26 July 2011, http://www.comlaw.gov.au/Details/C2004C00353

[4].               Ibid., viewed 26 July 2011, http://www.comlaw.gov.au/Details/C2011C00132

[5].               Explanatory Memorandum, op. cit., pp. 1-2.

[6].               This includes the existence of a qualifying extradition offence (Extradition Act, section 6), and the absence of an extradition objection (Extradition Act, section 7).

[7].               This right to review is narrower than that provided for by the Administrative Decisions (Judicial Review) Act 1977.

[8].               Decisions under the Extradition Act are currently excluded from review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), see Schedule 1(r) ADJR Act, viewed 16 August 2011, http://www.comlaw.gov.au/Details/C2011C00315

[9].               For further information see Joint Standing Committee on Treaties, Extradition – a review of Australia’s law and policy, Report 40, 2001, p. 11, [2.21], viewed 18 July 2011, http://www.aph.gov.au/house/committee/jsct/reports/report40/report40.pdf

[10].               Including, but not confined to, the ‘record of the case’ model used by Canada, and the ‘probable cause’ model used by the United States.

[11].               Joint Standing Committee on Treaties, Extradition – a review of Australia’s law and policy, op. cit., pp. xv, xvi, viewed 18 July 2011, http://www.aph.gov.au/house/committee/jsct/reports/report40/report40.pdf

[12].               Government response to the Joint Standing Committee on Treaties, Inquiry into Australia’s extradition law and policy, May 2004, viewed 18 July 2011.

[13].               Ibid.

[14].               Australian Government, Extradition and mutual assistance review – terms of reference, 10 July 2006, viewed 18 July 2006, http://www.ag.gov.au/www/agd/agd.nsf/Page/Extraditionandmutualassistance_Extraditionandmutualassistancereview_Extraditionandmutualassistancereview-termsofreference

[15].               Australian Government, Extradition and mutual assistance review - terms of reference, viewed 22 August 2011, http://www.ag.gov.au/www/agd/agd.nsf/Page/Extraditionandmutualassistance_Extraditionandmutualassistancereview_Extraditionandmutualassistancereview-termsofreference

[16].               Attorney-General’s Department, A new extradition system: a review of Australia’s extradition law and practice, December 2005, viewed 18 July 2011, http://www.ag.gov.au/www/agd/agd.nsf/Page/Extraditionandmutualassistance_Extraditiondiscussionpaper; Attorney-General’s Department, A better mutual assistance system: a review of Australia’s mutual assistance law and practice, 2006, viewed 18 July 2011, http://www.ag.gov.au/www/agd/agd.nsf/Page/Extraditionandmutualassistance_Mutualassistance_Mutualassistancereviewpaper

[17].               Australian Government, Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2009 – exposure draft, viewed 18 July 2011, http://www.ag.gov.au/www/agd/agd.nsf/Page/Extraditionandmutualassistance_Extraditionandmutualassistancereview_Proposedextraditionandmutualassistancereforms2009#submissions. Ten submissions were received in response to the exposure draft.

[18].               Australian Government, Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011 – exposure draft, viewed 18 July 2011 http://www.ag.gov.au/www/agd/agd.nsf/Page/Extradition_and_mutual_assistanceExtradition_and_mutual_assistance_review. Twelve submissions were received in response to the Exposure Draft.

[19].               Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act Bill 2011, Explanatory Document, p. 2, viewed 22 August 2011, http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(8AB0BDE05570AAD0EF9C283AA8F533E3)~Explanatory+Document+-+Extradition+and+Mutual+Assistance+in+Criminal+Matters+Legislation+Amendment+Bill+2011.pdf/$file/Explanatory+Document+-+Extradition+and+Mutual+Assistance+in+Criminal+Matters+Legislation+Amendment+Bill+2011.pdf

[20].               Ibid., p. 2.

[21].               See Explanatory Memorandum, op. cit., p. 7.

[22].               Ibid., p. 9.

[23].               Emeritus Professor Ivan Shearer AM, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, p. 1, viewed 16 August 2011, http://www.aph.gov.au/house/committee/spla/Bill%20Extradition/subs/sub001.pdf 

[24].               Law Council of Australia, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, op. cit., p. 14, viewed 22 August 2011, http://www.aph.gov.au/house/committee/spla/Bill%20Extradition/subs/sub002.pdf

[25].               Ibid., p. 10.

[26].               Australian Government, Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2009 – exposure draft explanatory document, viewed 15 August 2011, http://www.ag.gov.au/www/agd/agd.nsf/Page/Extraditionandmutualassistance_Extraditionandmutualassistancereview_Proposedextraditionandmutualassistancereforms2009

[27].               Emeritus Professor Ivan Shearer AM, op. cit., p. 1, viewed 16 August 2011, http://www.aph.gov.au/house/committee/spla/Bill%20Extradition/subs/sub001.pdf 

[28].               Ibid., p. 11.

[29].               Explanatory Memorandum, op. cit., pp. 11-59.

[30].               Explanatory Memorandum, op. cit., p. 12.

[31].               Professor Shearer, op. cit., p. 1.

[32].               See further, Explanatory Memorandum, op. cit., p. 11 at [2.2].

[33].               Ibid., p. 18.

[34].               Ibid., p. 17.

[35].               Ibid.

[36].               Australian Human Rights Commission, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, p. 6, viewed 22 August 2011, http://www.aph.gov.au/house/committee/spla/Bill%20Extradition/subs/sub004.pdf

[37].               Australian Lawyers Alliance, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, p. 21, viewed 16 August 2011, http://www.aph.gov.au/house/committee/spla/Bill%20Extradition/subs/sub005.pdf

[38].               United Nations Human Rights Commission website, viewed 22 August 2011, http://www2.ohchr.org/english/law/cat.htm .

[39].               Ibid.

[40].               United Nations, Office of Drugs and Crime website, viewed 15 August 2011, http://www.unodc.org/pdf/model_treaty_extradition.pdf.  A footnote to the definition Article 3(a) of the Model Convention, relating to political offences, states that ‘[c]ountries may wish to exclude certain conduct, for example, acts of violence, such as serious offences involving an act of violence against the life, physical integrity or liberty of person, from the concept of political offence’: see footnote 8, p. 131.

[41].               Explanatory Memorandum, op. cit., p. 23.

[42].               Explanatory Memorandum, op. cit., p. 11.

[43].               Ibid.

[44].               Australian Lawyers Alliance, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, p. 21, viewed 22 August 2011, http://www.aph.gov.au/house/committee/spla/Bill%20Extradition/subs/sub005.pdf

[45].               Emeritus Professor Ivan Shearer, op. cit.

[46].               Law Council of Australia, Submission to House of Representatives Committee, op. cit., p. 13.

[47].               Senate Standing Committee on the Scrutiny of Bills, Alert Digest, No. 8/11, p. 15.

[48].               Ibid.

[49].               For further background to this amendment see the Explanatory Memorandum, op. cit., p. 24.

[50].               Human Rights Law Resource Centre Ltd, Submission in response to Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, 7 March 2011, p. 5.

[51].               Australian Lawyers Alliance, op. cit., p. 21.

[52].               Australian Human Rights Commission, Submission to House of Representatives Committee, op. cit., p. 7.

[53].               International Covenant on Civil and Political Rights, ATS [1980] No. 23, viewed 15 August 2011, http://www.austlii.edu.au/au/other/dfat/treaties/1980/23.html

[54].               Ibid.

[55].               Human Rights Law Resource Centre Ltd, op. cit., p. 4. See also the HRLRC submission to the Submission to the House of Representatives Social Policy and Legal Affairs, Inquiry into Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, 12 August 2011, p. 4, viewed 22 August 2011, http://www.aph.gov.au/house/committee/spla/Bill%20Extradition/subs/sub006.pdf 

[56].               Ibid.

[57].               Defined in section 6 of the Extradition Act.

[58].               Explanatory Memorandum, op. cit., p. 25 at [2.83].

[59].               Ibid., p. 25.

[60].               Law Council of Australia, Submission in response to Exposure Draft Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, March 2011, p. 4.

[61].               Law Council of Australia, Submission to the House of Representatives Committee, op. cit., p. 10.

[62].               Ibid.

[63]               Section 7 of the Extradition Act sets out what constitutes an extradition objection. 

[64]               Details of additional safeguards are provided in the Explanatory Memorandum, op. cit., pp. 27 and 28.

[65].               See also Explanatory Memorandum, op. cit., p. 29.

[66].               Ibid.

[67].               Ibid., p. 30.

[68].               Explanatory Memorandum, op. cit., p. 30.

[69].               Ibid., p. 34.

[70].               Ibid., pp. 30–34.

[71].               Human Rights Law Resource Centre Ltd, Submission on 2011 exposure draft, op. cit., p. 10.

[72].               Professor Shearer, op. cit., [1.2].

[73].               Explanatory Memorandum, op. cit., p. 34. Details of the proposed amendments are at pp. 34–37.

[74].               Explanatory Memorandum, op. cit., pp. 45 and 46.

[75].               Professor Shearer, op. cit., p. 2 at [10].

[76].               Law Council of Australia, Submission on 2011 exposure draft, op. cit., p. 5.

[77].               Ibid.

[78].               Human Rights Law Resource Centre Ltd, Submission on 2011 exposure draft, op. cit., p. 14

[79].               NSW Council for Civil Liberties, Submission in response to exposure draft - Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, March 2011, p. 2.

[80].               Dr J D Wilson SC, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, viewed 16 August 2011, http://www.aph.gov.au/house/committee/spla/Bill%20Extradition/subs/sub003.pdf

[81].               Explanatory Memorandum, op. cit., p. 41.

[82].               Ibid., p. 47.

[83].               Ibid., pp. 47-59.

[84].               Ibid., p. 52.

[85].               Available at Australian Treaty Series website, viewed 8 August 2011, http://www.austlii.edu.au/au/other/dfat/treaties/1989/21.html

[86].               Explanatory Memorandum, op. cit., p. 52 at [2.243].

[87].               Human Rights Law Resource Centre Ltd, Submission on 2011 exposure draft, op. cit., p. 5.

[88].               Australians for Extradition Justice, Submission in response to exposure draft - Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, 15 March 2011, p. 5.

[89].               Australian Human Rights Commission, Submission to House of Representatives Committee, op. cit., p. 4.

[90].               Ibid.

[91].               International Covenant on Civil and Political Rights, op. cit., http://www.austlii.edu.au/au/other/dfat/treaties/1980/23.html, viewed 21 August 2011.

[92].               Ibid., p. 3.

[93].               Human Rights Law Resources Centre Ltd, Submission to House of Representatives Committee, op. cit., p. 5.

[94].               Human Rights Law Centre Ltd, Submission to House of Representatives Committee, op. cit., p. 6.

[95].               Law Council of Australia, Submission on 2011 exposure draft, op. cit., p. 7.

[96].               Australian Human Rights Commission, Submission on 2011 exposure draft, op. cit., p. 7.

[97].               Australian Lawyers Alliance, Submission to the House of Representatives Committee, op. cit., p. 12.

[98].               Ibid., p. 9.

[99].               Law Council of Australia, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, op. cit., p. 14.

[100].               Human Rights Law Centre Ltd, Submission to House of Representatives Committee, op. cit., p. 15.

[101].               Ibid., p. 7.

[102].               Australian Lawyers Alliance, Submission to House of Representatives Committee, op. cit., p. 13.

[103].               Explanatory Memorandum, op. cit., p. 65.

[104].               Ibid.

[105].               Senate Standing Committee on the Scrutiny of Bills, op. cit., p. 17.

[106].               Australian Human Rights Commission, Submission to House of Representative Committee, op. cit., p. 7.

[107].               Australian Lawyers Alliance, Submission to House of Representative Committee, op. cit., p. 14.

[108].               Ibid., p. 8.

[109].               Human Rights Law Centre Ltd, Submission to House of Representatives Committee, op. cit., p. 14.

[110].               Law Council of Australia, Submission to the House of Representatives Committee, op. cit., p. 20. 

[111].               Ibid.

[112].               Ibid., p. 20.

[113].               Ibid., p. 21. For further on the Guide see: http://www.ag.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2009_FourthQuarter_18December2009-InternationalLawEnforcementCooperation, viewed 22 August 2011, on Attorney-General’s website.

[114].               Australian Lawyers Alliance, Submission to House of Representative Committee, op. cit., p. 17.

[115].               Explanatory Memorandum, op. cit., p. 68.

[116].               Law Council of Australia, Submission to House of Representatives Committee, op. cit., pp. 17, 18.

[117].               Law Council of Australia, Submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs, Inquiry into the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, op. cit., p. 180.

[118].               Human Rights Law Centre Ltd, Submission to House of Representatives Committee, op. cit., p. 14.

[119].               Australian Lawyers Alliance, Submission to House of Representatives Committee, op. cit., p. 17.

[120].               Explanatory Memorandum, op. cit., p. 80.

[121].               Under section 4AA of the Crimes Act 1914, one penalty unit equates to $A110

[122].               Ibid., p. 11.

[123].               Office of the Australian Information Commissioner, Submission in response to exposure draft - Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, March 2011, p. 3.

[124].               Ibid., p. 92.

[125].               For the definition of ‘law enforcement officer’, see paragraphs (a) and (c) of the definition of law enforcement officer in subsection 6(1) of the SD Act.  See also Explanatory Memorandum, op. cit., p. 93 at [3.214].

[126].               Explanatory Memorandum, op. cit., p. 91 at [3.213].

[127].               Law Council of Australia, Submission to House of Representatives Committee, op. cit., p. 25.

[128].               Ibid.

[129].               For the meaning of ‘eligible judge’, see section 12 of the SD Act.

[130].               Explanatory Memorandum, op. cit., pp. 97, 98.

[131].               Ibid., p. 103 at [3.281].

[132].               Ibid.

[133].               ‘Foreign serious offence’ would have the same meaning as the term has in section 3 of the MA Act—‘a serious offence against a law of a foreign country’: see item 72 in Part 4 of Schedule 3 of the Bill.

[134].               Senate Standing Committee for the Scrutiny of Bills, Alert Digest, No. 8/11, p. 19.             

[135].               Ibid.

[136].               Explanatory Memorandum, op. cit., pp. 108, 109 at [3.322]–[3.342].

[137].               Ibid., p. 110 at [3.344].

[138].               Ibid., pp. 111–113 at [3.348]–[3.367].

[139].               Ibid., pp. 114–118 at [3.348]–[3.401].

[140].               Ibid., p. 120 at [3.423]–[3.429]; pp. 121 and 122 at [3.434]–[3.443].

[141].               Ibid., pp. 127, 128 at [3.477]–[3.480].

[142].               See ibid., p. 128 at [3.482].

[143].               Office of the Australian Information Commissioner, Submission on 2011 exposure draft, op. cit., p. 4.

[144].               Law Council of Australia, Submission on 2011 exposure draft, op. cit., p. 13.  See also LCA submission on this point to the House of Representatives Committee, op. cit., p. 27.

[145].               Ibid.

[146].               Explanatory Memorandum, op. cit., p. 131 at [3.492].

[147].               Ibid., p. 132.