Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the War Crimes Act 1945
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Introduced Senate 23 Jun 1999

War Crimes Amendment Bill 1999

1999

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

SENATE

WAR CRIMES AMENDMENT BILL 1999

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Justice and Customs

Senator the Honourable Amanda Vanstone)

ISBN: 0642 404380

General Outline This Bill repeals section 22 of the War Crimes Act 1945. The repeal is required to facilitate extradition proceedings with former Soviet Bloc countries, particularly the Baltic States.

Financial Impact The amendments will not impact on Government expenditure or revenue in any respect.

NOTES ON ITEMS Item 1 Short title The short title of the Act will be the War Crimes Amendment Act 1999.

Item 2 Commencement The Act will commence on Royal Assent.

Item 3 Schedules The War Crimes Act 1945 is amended in the manner specified in Schedule 1.

SCHEDULE 1 - AMENDMENT OF THE WAR CRIMES ACT 1945 Item 1 Section 22 The proposed repeal of section 22 removes a significant impediment to extradition of suspected war criminals.

The current provision in effect provides that where a person's extradition is sought for conduct covered by the War Crimes Act no surrender for extradition is possible unless there is a prima facie case. Thus, notwithstanding the requirement of a general extradition arrangement, if the offence for which extradition is sought is a `war crime' then the requesting state must, in addition to satisfying the usual requirements for extradition, provide a prima facie case.

The concept of a prima facie case in determining sufficiency of evidence is one to which most common law countries are accustomed. However, those countries which operate under a civil code system (e.g., Latvia, Estonia and Lithuania) do not use this test in criminal proceedings, and experience has shown that use of this standard in extradition arrangements with civil code countries is almost impossible in practice. The practical issue is that the laws of evidence in common law systems are such as to make it very difficult for a civil code jurisdiction to supply evidence in an admissible form. In essence, because of the fundamental differences between common law and civil code jurisdictions, particularly evidentiary requirements, the practical effect is that it is virtually impossible for a civil code jurisdiction to successfully seek the extradition of a suspected war criminal from Australia.

The repeal of section 22 will enable Australia to extradite suspected war criminals from Australia in accordance with whatever general extradition arrangements are in place with the requesting country.