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EMA Bill Proposed Amendments - Removing Presumption Against Bail

Speeches in Parliament
Penny Wright 28 Feb 2012

Senator WRIGHT (South Australia) (18:32):

By leave-I move amendments (6) through to (15) on sheet 7189 together:

(6) Schedule 2, page 30 (before line 22), before item 63 in Division 8, insert:
62A Subsection 15(2)
Omit ", subject to subsection (6),".
62B Subsection 15(5)
Omit ", subject to subsection (6),".
62C Subsection 15(6)
Repeal the subsection.
(7) Schedule 2, item 67, page 32 (line 4), omit ", subject to subsection (3),".
(8) Schedule 2, item 68, page 32 (line 10), omit "(subject to subsection (3))".
(9) Schedule 2, item 69, page 32 (lines 17 and 18), omit subsection 18(3).
(10)Schedule 2, item 70, page 32 (lines 27 and 28), omit "(subject to subsection (9A))".
(11)Schedule 2, item 72, page 33 (lines 6 to 8), omit subsection 19(9A).
(12)Schedule 2, item 74, page 33 (lines 21 and 22), omit "(subject to subsection (2B))".
(13)Schedule 2, item 74, page 33 (lines 27 to 29), omit subsection 21(2B).
(14)Schedule 2, item 84, page 35 (lines 28 and 29), omit ", subject to subsection (3),".
(15)Schedule 2, item 84, page 36 (lines 1 and 2), omit subsection 49C(3).

The effect of these amendments will be to remove the presumption against bail in the Extradition Act. The bill, as it stands, does extend the availability of bail to the later stages of the extradition process. Currently, once a person is found eligible for surrender by a magistrate, they must be remanded in custody to wait for a final surrender determination by the Attorney-General. The bill, if passed in its current form, will instead allow a person to be remanded on bail in 'special circumstances'. This reflects the existing presumption against bail in the earlier stages of extradition proceedings. Even in these early stages, bail is only granted if special circumstances justifying a grant of bail can be shown.

Whilst the Australian Greens welcome the possibility of bail being granted in the latter stages of extradition proceedings, we do not support the continuation of a statutory presumption against bail. Our amendments would remove the presumption against bail in all extradition proceedings and by doing so restore the common-law presumption in favour of bail. The department attempts to justify the persistence of the presumption against bail by referring to the serious flight risk posed by persons in extradition matters, and I note that this was raised by Senator Brandis in his speech in the second reading debate as well. In response, the House Standing Committee on Social Policy and Legal Affairs said in its report:
... the Explanatory Memorandum to the Bill and the evidence provided by the Attorney-General‘s Department fail to provide adequate justification on this point.

The House committee report also went on to say:
The Committee is concerned that this statutory presumption against bail unnecessarily restricts the judge in the exercise of his or her judicial discretion to determine whether a person should be remanded in custody or on bail, having regard to the individual circumstances of the case and the interests of justice.

The Committee considers that the Extradition Act could continue to operate effectively if there was no statutory presumption in favour of or against bail. It should rightly be the role of the judiciary to determine the merits and risks of bail in each and every case.

The Law Council of Australia and the Human Rights Law Centre have also expressed serious reservations about these provisions. The Law Council pointed to the unnecessarily harsh effect of these laws, given the extensive period of time-sometimes years-it can take to complete the extradition process. The Human Rights Law Centre submitted that the current position in relation to bail is manifestly incompatible with the prohibition against arbitrary detention in article 9 of the ICCPR, which requires that any detention be reasonable, necessary, proportionate and subject to judicial review.

I note that there is no statutory presumption against bail in the extradition legislation of Canada, New Zealand or the United Kingdom. As I said in my introductory comments, the significant social and economic costs of crime do not warrant undue encroachment on fundamental legal principles or universal human rights. The presumption against bail in the current Extradition Act, repeated in this bill, is an unnecessary blunt legislative tool which, in my view, reflects a lack of faith in Australia's judicial system on the part of the Australian government. It should be left to the judiciary to determine whether remand in custody is appropriate, necessary and proportionate in light of the seriousness of the charge, the risk of flight and the likely length of time to be spent in custody including time already spent. On this basis I commend the amendments to the chamber.

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