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Lawrence, Stephen --- "Human rights: recent changes to extradition law threaten fundamental human rights" [2004] AltLawJl 21; (2004) 29(2) Alternative Law Journal 93

Recent changes to extradition law threaten fundamental human rights .

STEPHEN LAWRENCE[*] argues that the government has eschewed moral responsibility for the fate of its citizens abroad once they are accused of infamous crimes.

The announcement in November that regulations have been passed to allow the extradition to Lebanon of alleged terrorist Bilal Khazal was yet another disturbing sign that Australia is adopting an open extradition policy, regardless of the nature of the regime that seeks surrender of a person located here.

The Government's appalling record in arguing the cause of Guantanamo Bay prisoners David Hicks and Mamdouh Habib has justifiably received much criticism, but recent, less high profile, changes to Australian extradition law leave no doubt that the Howard Government eschews moral responsibility for the fate of its citizens abroad once they are accused of infamous crimes.

Bilal Khazal, from Lakemba in Sydney, is on trial in a Lebanese military court over charges that he financed a terrorist cell responsible for several bombings in Lebanon. The 'Khazal' amendment to Australian extradition law followed the 'Betteridge' amendment in 2003, passed to facilitate the extradition of convicted paedophile Clinton Betteridge to Cambodia, and the 'Shamayleh' amendment in 2002, passed to facilitate the extradition of banker Majd Shamayleh, accused of fraud, to Jordan. Betteridge has been convicted in absentia for molesting young girls while Shamayleh is Jordan's Christopher Skase, accused of white-collar fraud on a massive scale.

Anyone who recalls the years of the so-called 'Skase chase' knows the intense media interest and political pressure that extradition matters can generate. White­ collar criminals, paedophiles and terrorists are among the most despised of criminals and generally attract little public support or sympathy. When the presence of Khazal, Betteridge and Shamayleh, and the nature of their alleged crimes, became known, the Howard Government unsurprisingly came under political and diplomatic pressure to facilitate their extradition.

Under this pressure the Government acted quickly to empower itself to arrest the men and order their surrender to Jordan, Cambodia and Lebanon. Australia does not have an extradition treaty with any of the three countries and the Commonwealth unilaterally granted itself power to extradite to the countries by quickly and quietly passing regulations that applied the arrest and surrender powers in the Extradition Act 1988(Cth) to the three countries.

Lebanon, Jordan and Cambodia have judicial systems that, to put it politely, afford few of the protections to accused persons that the Australian system does. The State Department of the United States publishes country reports, which are generally regarded as providing accurate and important information about a particular country's respect for human rights (available online at <> ). All three countries receive damning treatment in their respective country reports, all being accused of torturing detainees and not ensuring fair trials of criminal suspects. These reports are not happy reading for anyone who believes that Australia carries moral responsibility for the fate of those it surrenders to a foreign power.

In applying the extradition law to these three countries the Government cast aside two long-standing Australian practices in extradition matters.

First, the formality of passing regulations that apply the Extradition Act 1988 to a particular country has traditionally only occurred after a painstaking process of treaty negotiation has occurred. The treaty-based nature of extradition reflects that. at a fundamental level, extradition involves one country conceding part of its sovereignty to another, something that few countries do lightly. These treaty negotiations traditionally determine the conditions under which Australia will extradite and the protections that a person must be afforded on surrender. Allowing extradition in the absence of a treaty leaves surrendered people without the protections contained in treaties. The process of treaty negotiation also allows a considered process to occur of ascertaining a country's suitability. The domestic treaty ratification process undertaken by the high profile joint Standing Committee on Treaties also applies to the ratification of extradition treaties and therefore normally enables public scrutiny of the choice of the extradition treaty partner.

It is for these important reasons that of the 66 non­ Commonwealth countries to whom Australia can extradite, treaties have been negotiated with all but ten (Denmark. Iceland, Japan, Latvia, Estonia. Fiji, the Marshall Islands, Jordan, Cambodia and now Lebanon).

Second, Australia has traditionally been careful in its choice of extradition partners. Of the 130 countries to which Australian can extradite, 64 are members of the Commonwealth, the majority of the rest are liberal democracies within which Australian can generally be confident that human rights and due process will be respected.

It would appear that the countries that do not fall into either category have been chosen as extradition partners for one of two reasons. Either the country is so close to Australia, and so large, that law enforcement imperatives appear to have overwhelmed human rights considerations (Indonesia falls into this category), or Australia has inherited an extradition treaty with the country from the United Kingdom and has little choice in the matter (Iraq and Albania both fall into this category). 'Inherited treaties' are a colonial legacy from the era when the Home Office in London determined Australia's international relations and, while most are rarely used, it would be unusual indeed for Australia to formally withdraw from such a treaty.

Jordan, Lebanon and Cambodia are illiberal authoritarian states which fit into neither category. The application of the Extradition Act 1988 to these countries was a knee­ jerk reaction to political pressure generated by one-off cases concerning fugitives accused of deeply unpopular crimes. The question needs to be asked: does the nature of the offences the three men are accused of outweigh the responsibility that Australia will accept in surrendering the men to their fate at the hands of regimes that cannot, on their records, be trusted to ensure humane detention and a fair trial?

The Prime Minister would do well to remember the words of Thomas Jefferson, the third American president

The evil of protecting malefactors of every dye is sensibly felt here as in other nations, but until a reformation of the criminal codes of most nations, to deliver fugitives to them would be to become their accomplice.

[*] STEPHEN LAWRENCE is a criminal lawyer in Canberra and formerly worked as an extradition lawyer in the Commonwealth Attorney-General's Department

The views expressed are his own.

© 2004 Stephen Lawrence

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