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EMA Bill Proposed Amendments - Removing the Discretion of the Attorney General to Provide Mutual Assistance in Circumstances where Death Penalty Could Apply

Speeches in Parliament
Penny Wright 28 Feb 2012

Senator WRIGHT (South Australia) (18:46):

by leave-I move Greens amendments (20) and (21) on sheet 7189 together:

(20)Schedule 3, item 11, page 46 (lines 16 to 27), omit subsection 8(1A), substitute: (1A) A request by a foreign country for assistance under this Act must be refused if it relates to the investigation, prosecution or punishment of a person for an offence in respect of which the death penalty may be imposed in the foreign country, unless the Attorney-General is of the opinion that the assistance requested should be granted because it is likely to show that the person is not guilty of the offence.
(21)Schedule 3, page 46 (after line 27), after item 11, insert:
11A Subsection 8(1B)
Repeal the subsection.

The effect of these amendments would be to remove the discretion of the Attorney-General to provide mutual assistance in circumstances where the death penalty could apply unless that assistance were to be exculpatory in nature. The bill as it stands purports to expand the mandatory death penalty ground for refusing a mutual assistance request to cover situations where a suspect has been arrested and detained on suspicion of having committed a death penalty offence but has not yet been charged.

The Australian Greens welcome the move to extend the death penalty ground for refusal to cover mutual assistance requests which relate to all stages of the investigation, prosecution and punishment of a person, although in our circulated amendment (20) we achieve this using slightly different wording to that adopted by the government in its proposed amendment. We do this to bring the wording used in the death penalty ground for refusal in line with the other mandatory grounds for refusal contained in the mutual assistance act.

The government's wording is not our key objection, however. Our key concern is that the death penalty ground for refusal is not really mandatory at all because the Attorney-General retains an unfettered discretion to provide assistance in cases where the death penalty might be imposed 'having regard to the special circumstances of the case'. This issue was highlighted with concern by the Senate Standing Committee for the Scrutiny of Bills. The retention of such a discretion is also unanimously and stridently opposed by the Law Council of Australia, the Australian Human Rights Commission, the Australian Lawyers Alliance and the Human Rights Law Centre. Opposition to the death penalty is a longstanding and fundamental policy position of the Australian Greens. As a nation, Australia has committed itself to opposing the death penalty by becoming a party to the second optional protocol on the ICCPR aiming at the abolition of the death penalty.

Reassurances in the explanatory memorandum about the circumstances in which the discretion will be used are not sufficient safeguards to justify the retention of this discretion. This is a recurring theme in the amendments I have moved today. We are talking about the potential denial of the most fundamental of human rights: the right to life. If the Australian government only proposes to provide such assistance where it may assist a defendant to meet the charges that he or she faces or where an appropriate undertaking has been received, then these circumstances should be legislated as express exceptions to the otherwise mandatory ground for refusal. This is what our amendment achieves. The Attorney-General will only be able to provide mutual assistance in death penalty cases if she or he is satisfied that the assistance will be likely to show that the person is not guilty of the offence. On this basis, I have moved amendments (20) and (21) on the sheet circulated by the Australian Greens and commend them to the chamber.

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