The Incorporation of Human Rights Standards into Australian Extradition Law

Abstract

This paper in Part I explores the extent to which the Extradition Act 1988 (Cth) incorporates international human rights standards such as the fair trial standards under the International Covenant on Civil and Political Rights 1966 (ICCPR). It argues that that modification of the Act to accommodate conditions in bilateral treaties between Australia and other countries authorising the Attorney General to refuse to surrender a requested person where it would be 'unjust, oppressive or incompatible with humanitarian standards' imports into extradition decisions the fair trial standards in Article 14 of the ICCPR. Further, satisfaction of those fair trial standards arguably amount to a relevant consideration in determining the issue. Part II by way of qualification questions the capacity of Australian courts to effectively exercise judicial review in respect of an extradition decision even if the foreign trial is likely to be inconsistent with Australian and international standards of fairness. The article concludes that due to limitations on and practical difficulties with the reviewability of the decision to surrender, regard for 'fair trial' standards may be rendered irrelevant due to a lack of any statutory or constitutional requirement for the Attorney to explain and justify a surrender decision. In the absence of any obligation to reveal the basis of the decision a person who faces extradition to a country that is unlikely to afford a fair trial will find it practically impossible to advance any objection founded on that possibility.