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The complexity surrounding Australia’s extradition policy

· Emily Clifford,Extradition,Policy,Analysis

Extradition remains a complex, often controversial process that is heavily reliant on cooperative and established international relationships between states. Countries who engage in extradition, that is the return of fugitives or criminals from the country they are obtained in to the country that requests their extradition and where the crime has been committed, are often bound by a treaty, but factors such as tense bilateral relations and human rights concerns can also affect extradition orders. To complicate matters, there are a number of countries, such as Brazil, Japan, Germany and the People’s Republic of China (‘PRC’), that forbid extradition of their own citizens (despite the existence of treaties) and instead prosecute and try citizens for crimes committed abroad within their own sovereign borders.

In Australia extradition requests are processed in accordance with the Extradition Act 1988 but this highly technical and complicated process is becoming less relevant in contemporary international relations which increasingly rely on (or are swayed by) diplomacy and favourable relations with other states. Further, extradition, particularly through treaty-based arrangements involves, in part, one country conceding some of their sovereignty to another country, which is not done lightly.

Extradition is a time-consuming and costly process for the countries involved and therefore is more commonly reserved for serious offences. Within Australia and the wider Commonwealth, a person will not be extradited to another jurisdiction if they might face the death penalty for their crime or if it is perceived that the extradite will not be afforded a fair trial or have their basic human rights upheld. These reasons were behind the controversial and widely published refusal of the Australian government, under the leadership of Malcolm Turnbull, to ratify an extradition treaty with the PRC.

While over the last few decades there have been a number of high-profile international extradition controversies, most notably, American whistleblower Edward Snowden, WikiLeaks founder Julian Assange and Colombian drug trafficker Pablo Escobar, instances of extradition remain relatively rare. Of recent notoriety in Australia, the sexual abuse scandal at a religious school in Melbourne highlights the political complexity and nuanced relations in the extradition process.

Malka Leifer, the former principal of Adass Israel School fled Australia in 2008 when allegations against her surfaced and has accumulated 74 counts of child sexual assault for her conduct between the years 2001-2008. She was taken into custody in Israel in 2014 when the Australian government filed extradition papers, containing details of the allegations against Leifer. The Jerusalem district psychologist then declared Leifer mentally unfit to stand trial and face an extradition hearing. There has been outrage over the Israeli Government’s decision to rule her mentally unfit to face count proceedings and deny extradition of the dual Israeli-Australian citizen despite 60 court hearings to date. While there continue to be developments in this ongoing extradition case, the persisting delay to extradite Leifer from Israel has been met with continued media condemnation. Her subsequent, perceived freedom in the state of Israel to lead a ‘normal life’ after being released to house arrest, seemingly without punishment or harsh remand has been widely criticised by her victims in Australia, the decision to refuse Leifer’s extradition has been described as a ‘massive betrayal of justice’ and has been responded to by both the Victorian and Federal government.

Despite the severity of the charges against Leifer, the Australian Federal Foreign Affairs Minister expressed the obligation to respect the independence of Israel’s laws and courts, despite this working against the interests of the victims in Australia. Prime Minister Scott Morrison, in a statement relating to the Leifer’s extradition, said that he had urged Israel’s Prime Minister, Benjamin Netanyahu, to prioritize the extradition of Leifer but reiterated that the Israel-Australian relationship was based on many things including ‘our shared commitment to justice, democracy and the rule of law’, a friendship of strategic, political importance that the Australian government are eager to preserve.

The case of Malka Leifer highlights community concerns and ambiguities in extradition processes as it is not only the complexity of the law but a foreign governments ability to seemingly provide ‘sanctuary’ to the accused that makes the process seem arbitrary. In most cases, extradition policy often relies more so on international cooperation between states rather than on the treaties and regulations that seemingly should bind them. Further, contemporary issues with extradition policy remains that the process appears intrinsically political and is influenced by nuanced relationships between states in which power dynamics and political ties play an important role.

Emily Clifford is a Policy Analyst at FPL Advisory.

FPL Advisory is a team of specialists resolving risks and creating opportunities with respect to government. We work with public sector and corporate clients to execute strategies for owning and managing change

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