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LCA opposes Australia-China extradition treaty

user iconLara Bullock 04 May 2016 NewLaw

The Law Council of Australia has questioned whether the proposed Australia-China Extradition Treaty is in Australia’s national interest due to China’s lack of procedural fairness.

Earlier this week the Law Council of Australia argued against the ratification of the Australia-China Extradition Treaty in a public hearing of the Joint Standing Committee on Treaties Inquiry into the proposed Treaty on Extradition Between Australia and the People’s Republic of China.

"The treaty omits a common safeguard in Australia's extradition treaties to ensure protection of an extradited person's right to a fair trial, namely the ability to refuse a request where extradition would be 'unjust or oppressive'," Law Council of Australia president Stuart Clark AM said.

"Unless these concerns are addressed, the Law Council opposes the ratification of this treaty."

Mr Clark said there are reports that China does not act in accordance with procedural fairness and the rule of law standards in criminal proceedings.

"Numerous expert bodies, including the UN Committee Against Torture and the US State Department, have recently expressed strong concerns about the ability of China to provide a right to a fair trial for those charged with criminal offences or prevent the torture of prisoners," Mr Clark said.

Mr Clark said this raises questions about whether the proposed treaty is indeed in Australia’s national interest.

"International extradition serves an important function in allowing states to cooperate, respect each other’s sovereignty, and ensure that criminals are not able to evade justice," Mr Clark said.

"However, there is an important national interest in ensuring that the administration of justice accords with fundamental rule of law principles and human rights obligations."

The Law Council’s concerns include limited protections for the right to a fair trial, limited evidentiary thresholds for determining an extradition request, presumption against bail and absence of limits for executive decision making.

Also, consequences for breaching an undertaking that the death penalty will not be imposed, insufficient protections for children, inadequate monitory systems and China not being party to the International Covenant on Civil and Political Rights.

The Law Council of Australia has made a written submission to the inquiry with a number of recommendations aimed at improving the safeguards in the proposed Australia-China Treaty and extradition regime.

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