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EMA Bill Proposed Amendments - Maintaining Double Jeopardy as a Mandatory Ground of Refusal for Mutual Assistance

Speeches in Parliament
Penny Wright 28 Feb 2012

Senator WRIGHT (South Australia) (18:39):

by leave-I move Greens amendments (19) and (22) on sheet 7189 together:

(19) Schedule 3, item 10, page 46 (lines 12 and 13), omit the item, substitute:
10 Paragraph 8(1)(f)
Repeal the paragraph, substitute: (f) the request relates to the investigation, prosecution or punishment of a person for an offence in a case where: (i) the person has been acquitted or pardoned by a competent tribunal or authority in the foreign country, or in Australia or another country; or (ii) the person has undergone the punishment provided by the law of the foreign country, or of Australia or another country;
in respect of that offence or of another offence constituted by the same act or omission as that offence.
(22) Schedule 3, item 14, page 47 (lines 1 to 19), omit the item, substitute:
14 Paragraph 8(2)(b)
Repeal the paragraph, substitute: (b) both of the following subparagraphs are satisfied: (i) the request relates to a foreign order in relation to an offence; (ii) an act or omission constituting the offence, had the act or omission occurred in Australia, would not have constituted an offence against Australian law at the time at which the request was received; or

The effect of these amendments will be to maintain double jeopardy as a mandatory ground of refusal for mutual assistance. When speaking on this bill in the House, Brendan O'Connor, who was at that time the Minister for Home Affairs and Minister for Justice, said that under this bill there will be no devolution of the protections and safeguards afforded under the existing extradition and mutual assistance regimes. With respect to double jeopardy, that is not the case. Under existing mutual assistance laws, double jeopardy is a mandatory ground for refusal. The bill proposes to lessen this protection and replace it with a discretionary ground for refusal. The explanatory memorandum states that this will:

... enable the provision of assistance in appropriate exceptional 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.

This change was highlighted as a potential item of concern by the Senate Standing Committee for the Scrutiny of Bills. It is also opposed by the Law Council of Australia, the Australian Lawyers Alliance and the Human Rights Law Centre.

Back in 2007, COAG agreed on a national double jeopardy law reform model, but actually 'agreed' is probably too strong a word, because both Victoria and the ACT reserved their position. Not all jurisdictions have gone on to implement these reforms, so I cannot accept the argument that the minister should have the discretion to provide assistance in circumstances accepted in Australia as being an exception to the double jeopardy principle. There is no such unanimous position. In those jurisdictions where reforms have been progressed, Greens MPs have been vocal in their concern that these double jeopardy reforms are simply another manifestation of the 'tough on crime' race to the bottom which is unfortunately seen so often in the states and territories.

In any event, the COAG reforms contain a large number of safeguards which the Australian government does not propose to incorporate into the Mutual Assistance in Criminal Matters Act. Take, for example, the South Australian double jeopardy reform laws enacted back in 2008. This act, the Criminal Law Consolidation (Double Jeopardy) Amendment Act, runs to 12 pages, the vast majority of which is dedicated to introducing legislative safeguards which strictly circumscribe the circumstances in which the double jeopardy principle can be departed from. Contrast that with the government's proposed reforms in this bill, which are limited to just one provision granting the minister a wide discretion to abandon the double jeopardy principle but with no in-built legislative safeguards to temper that discretion.

Reassurances in the explanatory memorandum that the discretion will be used only in exceptional circumstances are not enough. Strong and explicit legislative safeguards are absolutely essential if the centuries-old rule of law relating to double jeopardy is to be watered down. The rule against double jeopardy is a longstanding principle of fair trial rights specifically designed to protect individuals from potential state oppression and harassment. Unless there are some limits to the criminal justice process, it can be used as an instrument of tyranny by the executive. The principle that a verdict of acquittal is final is one of the most important safeguards circumscribing the prosecution process.

The Australian Greens do not accept that a case has been successfully made for the dilution of the double jeopardy protections in our mutual assistance regime. The Australian Greens do, however, support the proposal to amend the double jeopardy ground for refusal such that a request for assistance can be refused whether the person has previously been acquitted, pardoned or punished in respect of the offence or conduct not only in the requesting country but also in Australia or a third country. We also support the proposal to extend the operation of the double jeopardy ground for refusal to the investigation and punishment stages of a case. For this reason, our amendments do not just maintain the status quo; rather, they insert an amended mandatory ground for refusal which addresses my last two mentioned areas of reform. On this basis I move amendments (19) and (22) circulated by the Australian Greens and I commend them to the chamber.

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