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Footnotes

Chapter 1 Introduction

[1] House of Representatives Hansard, 6 July 2011, p. 7716.

[2] House of Representatives Hansard, 7 July 2011, p. 8059.

[3] Under the current legislation, a person cannot be extradited if: the offence is a political offence; extradition is sought for a political purpose; there is discrimination on the basis of a person’s race, religion, nationality or political opinions; the offence is a military offence; the person has already been acquitted, pardoned, or punished for the offence; there is a risk the person will be subjected to torture; and, the offence carries the death penalty and the requesting country has not provided an acceptable undertaking. See Extradition Act 1988, ss. 16, 19, 22. The Attorney‑General also retains a general discretion to refuse an extradition request.

[4] Second Reading Speech, Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011 (The Hon Brendan O’Connor MP, Minister for Justice), House of Representatives Hansard, 6 July 2011, p. 7717.

[5] Current grounds for refusing a request for assistance are set out in s. 8 of the Mutual Assistance in Criminal Matters Act 1987 and include situations where: the request relates to the prosecution or punishment of a person for a political offence; there is discrimination on the basis of a person’s race, sex, religion, nationality or political opinions, the offence is a military offence; granting the request would prejudice Australia’s national interest; the person has already been acquitted, pardoned or punished for the offence; a person may be subjected to the death penalty; the conduct constituting the offence would not have constituted an offence in Australia; the request relates to conduct for which the person could not be prosecuted in Australia because of lapse of time or any other reason; the assistance could prejudice the safety of any person in or outside Australia, the assistance would excessively burden the Commonwealth or a State or Territory.

[6] Joint Standing Committee on Treaties (JSCOT), August 2001, Report 40: Extradition – a review of Australia’s law and policy.

[7] JSCOT, June 2008, Report 91: Treaties tabled on 12 March 2008.

Chapter 2 Proposed Amendments to the Extradition Act 1988

[1] Attorney-General’s Department, Attorney-General’s Department Annual Report 09-10, appendix 12, p. 345-347.

[2] Extradition Act 1988, s. 40.

[3] Explanatory Memorandum to the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, p. 18.

[4] Law Council of Australia (LCA), Submission 2, p. 8.

[5] LCA, Submission 2, p. 9.

[6] LCA, Submission 2, p. 9.

[7] Extradition Act 1988, section 5 paragraph (b) of the definition of political offence.

[8] Extradition Act 1988, 16(2)(a)(i).

[9] Extradition Act 1988, 16(2)(a)(ii).

[10] Extradition Act 1988, 16(2)(b).

[11] LCA, Submission 2, pp. 9-12.

[12] LCA, Submission 2, p. 10.

[13] Commonwealth Director of Public Prosecutions, Prosecution Policy of the Commonwealth: Guidelines for the making of decisions in the prosecution process, <http://www.cdpp.gov.au/Publications/ProsecutionPolicy/ProsecutionPolicy.pdf>, accessed 7 September 2011.

[14] See for example, Human Rights Law Resource Centre, 7 March 2011, Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, submission to the Attorney-General’s Department.

[15] Human Rights Law Resource Centre (HLRC), Submission 6, p. 11.

[16] LCA, Submission 2, p. 7.

[17] United Mexican States v Cabal (2001) 209 CLR 169; 183 ALR 645.

[18] Attorney-General’s Department, Submission 7, p. 2.

[19] See for example, Part 2 of the Bail Act 1978 (NSW); R v Light [1954] VLR 152 at 157; JSCOT, Report 40: Extradition – a review of Australia’s law and policy, p. 62.

[20] Explanatory Memorandum to the Extradition Bill 1987; JSCOT, Report 40: Extradition – a review of Australia’s law and policy, p. 62.

[21] See for example, Extradition Act 2003 (United Kingdom) s. 198; Extradition Act 1999 (Canada), s. 18; Extradition Act 1999 (New Zealand), ss. 23, 26.

[22] Emeritus Professor Ivan Shearer, Submission 1, pp. 1-2.

[23] HLRC, Submission 6, pp. 9-10.

[24] LCA, Submission 2, p. 14.

[25] LCA Submission No. 2, pp. 16-17; Australian Human Rights Commission (AHRC), Submission 4, pp. 4-5; Australian Lawyers Alliance (ALA), Submission 5, p. 6; HLRC, Submission 6, pp. 5-6.

[26] LCA, Submission, pp. 16-17; HRLC, Submission 6, p. 7.

[27] LCA, Submission 2, pp. 16-17.

[28] LCA, Submission 2, p. 14

[29] Attorney-General’s Department, Submission 7, pp. 3-5.

[30] AHRC, Submission 4, pp. 4-6; ALA, Submission 5, pp. 7-10; HRLC, Submission 6, pp. 4-5.

[31] LCA, Submission 2, pp. 15-16.

[32] Extradition Act 1988, 8(3)(c).

[33] Attorney-General’s Department, Submission 7, pp. 5-6.

Chapter 3 Proposed amendments to the Mutual Assistance Act 1987

[1] Attorney-General’s Department, Attorney-General’s Department Annual Report 09-10, appendix 12, pp. 348-350.

[2] Mutual Assistance in Criminal Matters Act 1987, ss. 8(1), 8(1A).

[3] Mutual Assistance in Criminal Matters Act 1987, s. 8(1B).

[4] LCA, Submission 2, p. 17.

[5] Mutual Assistance in Criminal Matters Act 1987, s. 13A(2).

[6] LCA, Submission 2, p. 23; AHRC, Submission 4, p. 7; ALA, Submission 5, pp. 12-13; HRLC, Submission 6, p. 13.

[7] LCA, Submission 2, p. 23; HRLC, Submission 6, p. 3.

[8] LCA, Submission 2, p. 23.

[9] LCA, Submission 2, p. 23; HRLC, Submission 6, p. 15.

[10] Explanatory Memorandum to the Mutual Assistance in Criminal Matters Legislation Amendment Bill 1996, p. 15.

[11] ALA, Submission 5, p. 15.

[12] ALA, Submission 5, p. 16-18.

[13] Attorney-General’s Department, Submission 7, pp. 5-6.