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Common(wealth) Knowledge #91: Australia pressures US to drop Assange's charges

1 week before Assange’s extradition trial, the House of Reps voted to free him and return him home.

Last week, the House of Representatives voted 86-42 in favour of a motion by independent MP Andrew Wilkie to condemn the prosecution of Julian Assange and urge the United States of America and the United Kingdom to return him home.

Support for the WikiLeaks founder, charged with national security offences in the US over leaking secure military documents relating to the wars in Afghanistan and Iraq, had been growing in Parliament. However, a two-thirds majority of MPs who voted either way is unprecedented.

Assange’s final appeal on the decision to extradite him from the UK to the US will be heard by the High Court of Justice on 20 and 21 February. If he succeeds, he will be allowed to return home.

If he reaches the US, the Australian government hopes that he will be allowed to return by a plea deal or some other agreement, and it is clear that the government now has majority support on this issue.

Although Assange is the most significant extradition case in many years in Australia, this tradition dates back to Federation.

The Australian Constitution grants the Commonwealth government legislative power over ‘external affairs.’ However, long-time readers of this series may recall that the UK more or less controlled Australian foreign affairs policies.

Rather, the primary consideration for this power was extradition treaties, which made up the bulk of international law agreements at the time. Of course, this power has since expanded alongside the scope of international law.

Today, the Extradition Act 1988 (Cth) governs Australia’s extradition law. This includes a treaty with the United States, and this can include a non-binding condition that the death penalty isn’t used.

If Assange is not extradited to the US, he will be free to return to Australia. Although Australia has an extradition with the treaty, it will not come into play, as the Commonwealth government has made clear.

While international law prevents Australia from getting involved in the legal proceedings in the UK extradition trial, as that is a binding bilateral treaty between the UK and US, it can exert some political pressure to drop the case or reduce his sentence. As an ally of both countries, it has greater political pressure than most other countries.

However, while Assange has dominated extradition discussions for at least the last decade, he is by no means the first person to receive this level of attention.

Between 2005 and 2012, Hungarian World War 2 conscript Charles Zentai fought against being deported home after being charged with a war crime over allegations that he killed a Jew in Bulgaria in November 1944, when that Jew was not wearing the Star of David badge.

Eventually, in Minister for Home Affairs v Zentai (2012), the High Court ruled that he could not be ‘surrendered’ to Hungary under the Extradition Act, because, regardless of whether or not the allegations were true, the Hungarian war crimes legislation was passed in 1945, after the war.

As the Hungarian legislation didn’t apply to past offences, as it was not retrospective, he hadn’t committed an offence for which he could be extradited home for a trial. This also meant that it was beyond the power of the executive branch of government to deport him.

Although the circumstances of these two cases are nothing alike, they both demonstrate that extradition is a legal process, and only once the legal proceedings are finished can the policymakers get involved.

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