House of Representatives

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Justice the Honourable Brendan O'Connor MP)

General outline

This Bill will amend the Crimes Act 1914 , the Extradition Act 1988 , the Mutual Assistance in Criminal Matters Act 1987 , the Migration Act 1958 , the Proceeds of Crime Act 2002 , the Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979 .

Extradition and mutual assistance are key international crime cooperation tools. Extradition is the process by which one country sends a person to another country to face criminal charges or serve a sentence. The Extradition Act 1988 provides the legislative basis for extradition in Australia.

Mutual assistance is the formal Government to Government process countries use to assist one another in the investigation and prosecution of criminal offences. Mutual assistance can also be used to locate and recover the proceeds of crime. The Mutual Assistance in Criminal Matters Act 1987 provides the legislative basis for mutual assistance in Australia.

SCOPE OF THE REFORMS

Extradition and mutual assistance, as formal Government to Government processes, are complemented by less formal relationships between Australian law enforcement agencies and their international counterparts. The reforms in this Bill are focused on Government to Government assistance and, with some minor exceptions, do not affect forms of agency to agency assistance.

PURPOSE

The Bill comprises four schedules.

Schedule 1 contains general amendments which relate to both extradition and mutual assistance. The purpose of the amendments in this Schedule is to:

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enable Federal Magistrates to perform functions under the Extradition Act and the Mutual Assistance Act, and

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clarify privacy and information disclosure provisions relating to extradition and mutual assistance processes.

Schedule 2 contains amendments relating to extradition. The purpose of the amendments in this Schedule is to:

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reduce delays in extradition processes by streamlining the early stages of the extradition processextend the availability of bail in extradition proceedings

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allow a person to waive the extradition process, subject to certain safeguards

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extend the circumstances in which persons may be prosecuted in Australia as an alternative to extradition

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allow a person to consent to being surrendered for a wider range of offences

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modify the definition of 'political offence' to clarify this ground of refusal does not extend to specified crimes such as terrorism, and

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require Australia to refuse to extradite a person if he or she may be prejudiced by reason of his or her sex or sexual orientation following surrender.

Schedule 3 contains amendments relating to mutual assistance. The purpose of the amendments in this Schedule is to:

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increase the range of law enforcement tools available to assist other countries with their investigations and prosecutions, subject to appropriate safeguards

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streamline existing processes for providing certain forms of assistance to other countries

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strengthen protections against providing assistance where there are death penalty or torture concerns in the requesting country

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amend other grounds on which Australia can refuse to provide mutual assistance to other countries, and

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streamline the process for authorising proceeds of crime action, and allow registration and enforcement of foreign non-conviction based proceeds of crime orders from any country.

Schedule 4 contains technical contingent amendments. This is because the Bill contains amendments which are contingent upon the commencement of amendments in other Bills currently before Parliament.

Financial impact statement

The amendments in this Bill have no financial impact on Government revenue.