JUSTICE ACTION submission 4/2006 

This is Justice Action’s response to the proposals outlined in the document: "A New Extradition System – A review of Australia’s extradition law and practice” 

by the Australian 

Attorney-General.www.ema.gov.au/extradition2006/extradition.html (Submissions due 7/4/06.) 

Justice Action was pleased to be part of the Consultation Meeting with Non-Government Organisations on 10/3/06 and commends the government for its effort to ensure that prisoners were included to some extent in the discussions. However we think direct prisoner representation via video link, or a notice distributed to Inmate Development Committees to send written submissions would have been very valuable. 

The policy objective for the review is “to ensure that criminals cannot evade justice simply by crossing borders”. We support thatobjective but believe that many of the proposals would remove traditional safeguards, and cause injustice. We raise alternative proposals to consider. The area of examination is one involving significant government political interests in which individual rights can be sacrificed. Cases such as Schapelle Corby, David Hicks, the Bali 9 and Dragan Vasiljkovic are right with us now and could be affected by there view. In each of those cases the behaviour of other governments towards our citizens, has been different than what Australia would do in the name of justice. 

It is important to remind ourselves of several principles.
  •  Australia has a responsibility as a sovereign state to maintain the security of those within its borders, to allow them to continue in their community of choice according to the cultural values they have chosen.
  •  People are innocent until proven guilty.
  • ·People should not be affected adversely unless they are proved to have committed an offence. 
  •  People living in Australia with their families, friends, jobs and as part of our community should not be removed away from that support to another country with possibly a different language, culture, justice, legal aid and set of standards of behaviour unless there is an extremely compelling reason, and no alternatives.
  • Where a resident is being pursued by another country, sometimes their family is held by the country and subject to discrimination. This can force “consent” to be given for extradition. We must protect our resident from that situation.
  •  When extradition is granted, Australia has no further control over their former resident. The person is held in prison in a foreign country with no legal support away from their
Community support.
No mechanism exists for feedback on the welfare of that person. No legal aid is offered, and the treatment of our citizens in Guantanamo Bay is a clear example of how powerless we become even with our closest allies. There is no right of access to the person by family, media or others, no openness to inspection. The position of the Red Cross in Abu Grahib shows what happens.

We propose that Australia responds to charges against its residents by taking full responsibility for those within its borders, using the communications technology that has been developed over the past decades. This is a positive response to the global changes, transnational crime, threat of terrorism and need for legal cooperation referred to by the Minister for Justice in his foreward to the Review. Prosecution in lieu, where we use the benefits of teleconferencing to receive evidence, hold trials and determine sentence; supports the policy objective of justice, without sacrificing our duty of protection or standards of justice. (issues 14 and 15) 

Extraterritorial powers currently exist to allow prosecution for some offences occurring outside our borders. This could easily be extended to include all offences for which we have provided. The trial and punishment happens in the resident’s community from which they are not removed. The resident does not have to apply to be returned under international transfer of prisoner agreements, and we can control the treatment of our residents to ensure they get the support they might need to develop as community members. Currently long periods – up to seven years – are spent in prison awaiting legal decisions on transfer, while the issues of guilt or innocence are not addressed. 

This is contrary to everyone’s interests, primarily the resident and family, as well as the frustrated requesting country. Bail requests should be decided on normal principles and carry no presumption of refusal. Aboriginal people are extradited from their country to another country for punishment. This may sound odd, but in reality is true. Their customary elders do not like it at all. WA prisoners are transported to the Perth (Noongar) region from cultural lands in the mid and north west, where they have family, cultural links with language and land, and where they should, according to them, be punished. They suffer, like others subject to extradition, additional punishment upon their return. If we fail to recognise that we are doing this to our very own Aboriginal people we will fail to recognise citizens’ rights any where. 

Trials in a neutral third country, such as occurs in The Hague with the International Criminal Court without political overtonesis preferable. The current arrangements for extradition could be improved but should not remove fundamental safeguards. There are many shortcuts now in place permitting residents to be removed. The special arrangement with New Zealand of “backing of arrest warrants” is merely a recognition of the closeness geographically and culturally of the countries, similarly to an interstate movement, but could not be justified to remove a resident from their support community to a place further away. 

The “no evidence” standard for extradition where no sworn affidavits need be supplied by the requesting country is an anomaly liable for abuse. Countries wishing to take our residents should fully disclose all evidence, including exculpatory, and be restricted to only the evidence which is produced in this country. No person shall be extradited to a country which has penalties higher than those which apply in Australia for the same offence, unless that other country agrees to restrict any penalty to that which applies in Australia. Legal Aid at all stages must be provided. 

Australian lawyers should be paid by the country seeking extradition. Family members wishing to provide support should be funded to do so, by the country seeking extradition. The resident must be returned. The obligation to ensure that our residents are not tortured requires active monitoring. This carries the need to communicate with each person extradited and to ensure they have free access to their Australian community and family. There should be a website maintained open to reports from all sources, and issues be followed up with full government intervention. 

Issue 2 – Australia should make understandings with all countries based upon our standards. 
Issue 4 - Dual criminality. Australia should only act on behaviour where our laws also say it is criminal. 
Issue 8 – Neither minors nor for military offences should extradition be granted. 
Issue 9 – Political offence exceptions should be retained. It is an important recognition of the different interests of government’s. 
Issue 11 – Discrimination should be defined according to our standards 
Issue 13 – Specialty is a fundamental principle of openness required by the requesting country. If something has been concealed or later uncovered that might have affected our decision, we must know about it and consider our position. Otherwise our extradition inquiry becomes a farce. 
Issue 14 – We support prosecution in lieu as an efficient and fair way to achieve the primary policy objective. 
Issue 15 – International transfer of prisoners should be tied to extradition agreements as one way to ensure the treatment of our residents. But they should be only at the request of the resident. 
Issue 16 – No backing of arrest warrants outside of the NZ agreement. This is a very particular situation with a neighbour.
Issue 17 – Judicial review mechanism should not be altered. The resident is held in prison if bail is not granted, has the carriage of proceedings and the policy objective of justice is not affected by the resident challenging the legitimacy of decisions. 
Issue 18 – Consent should be properly examined and no shortcuts be taken. Full information needs to be provided to the resident with legal aid to assist in any decisions, in the same way as the prosecution is advised and funded. 
Issue 19 – Time limits are not necessary to force the hand of the resident as the person is held without bail, and the policy objective is not affected. 
Issue 21, 23 24 and 28 – The current safeguards are necessary and should not be diluted. 

Justice Action 
April 6, 2006