Penny's Blog - Extradition and Mutual Assistance: Fighting Crime vs Protecting Rights

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Last week, I read with interest Adam Fletcher's recent post on the Castan Centre for Human Rights Law blog. His post outlined his concerns with the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, which passed the Senate on 28 February 2012. I welcome his contribution to debate on these extremely important issues which often do not get the attention they deserve.

The Australian Greens also held considerable concerns about certain aspects of the Bill. I moved five groups of amendments to the Bill to address our key areas of concern. As outlined in my speech on the day, while there is an imperative to act effectively and decisively against international crime, Australia must also ensure that our justice system at all times respects and safeguards the democratic freedoms and human rights of those it affects.

Undoubtedly, there are significant social and economic costs of crime and the landscape within which international crime occurs has changed considerably over the last 20 years. We have seen massive advances in technology, communications and travel, and criminal networks have adapted accordingly. Our law enforcement agencies must be adequately equipped to effectively combat crime in this new era. But, in responding effectively to crime, we must be vigilant that we do not unduly encroach upon hard-won and painstakingly developed fundamental legal principles or erode well-recognised universal human rights which are the hallmark of fair and civilised societies.

The considerable challenge is to strike the right balance.

According to the government, this Bill sought to streamline and modernise Australia's laws on extradition and mutual assistance while maintaining appropriate human rights safeguards. It was the first major reform in 20 years and had been in the pipeline since 2006. The Bill did introduce some important new safeguards to the existing extradition and mutual assistance regimes - particularly in relation to torture and discrimination on the basis of sexual orientation. However, concerns about many other aspects were expressed by the Law Council of Australia, the Australian Human Rights Commission, the Australian Lawyers Alliance and the Human Rights Law Centre. I carefully considered the views of these credible commentators and formed the judgment that the Bill did not go far enough to protect the rights of those who are the subject of a request for extradition, and those whose rights are impacted by a request for mutual assistance.

At this point I would like to acknowledge the Minister's efforts to address my misgivings, by amending the Explanatory Memorandum to the Bill. Unfortunately, despite genuine negotiation in good faith - and a number of agreed changes - these were not sufficient to deal with all the concerns I raised, necessitating the amendments.

The Greens moved amendments in relation to 5 areas, reflecting key concerns of legal commentators:

1. expanding the existing grounds for refusing an extradition or mutual assistance request to include ‘cruel, inhuman or degrading treatment or punishment';
2. expanding the existing grounds for refusing an extradition or mutual assistance request to include discrimination on the basis of gender identity;
3. removing the presumption against bail in the Act;
4. removing the discretion of the Attorney-General to provide mutual assistance in circumstances where the death penalty could apply;
5. maintaining double jeopardy as a mandatory ground of refusal for mutual assistance.

Disappointingly, these amendments did not gain the necessary support of the Senate and the Extradition and Mutual Assistance Bill was finally passed unamended.

The Greens will continue to monitor the application and ramifications of this legislation.

It is the hard but essential work of parliament to confront difficult issues such as how best to combat international crime without eroding the principles of the rule of law in Australia. This is a balancing exercise that the Australian Greens take seriously. As a nation, we must fulfil our international human rights obligations and ensure that our legislation protects and promotes the legal rights of our citizens and those of other countries.