Should Australia Extradite People Facing the Death Penalty?

The death penalty is condemned by many countries, including Australia, where the last execution took place in 1967.

But what happens when a treaty signed by Australia means that we could receive requests for the extradition of people who may face the death penalty?

This situation has recently arisen in connection with a Malaysian murder case.

Sirul Azhar Umar is a Malaysian man convicted in his absence of a murder in that country.

Umar is now reportedly living in Australia.

As rumours and suspicions of his presence hardened into facts, the political implications for future tension became clear.

The man is a former police commando who was convicted of murdering his model girlfriend.

It was alleged that she had found out incriminating evidence against him, and planned to use that information to extort money from him.

The 28-year-old Mongolian interpreter and model was shot twice in a jungle near Kuala Lumpur.

Her body was then blown up with explosives.

The victim, Altantuya Shaariibuu, was reportedly pregnant at the time.

After the appeal was overturned in Malaysia’s highest court, and the death penalty handed down, reports began to surface that Sirul Azhar was living in Australia.

Azhar did not show up to his court hearing and was sentenced in his absence to death by hanging.

Azhar is reported to have arrived in Australia on a tourist visa and was living in Queensland with his teenage son.

He was recently arrested by Australian police and is now being held at Villawood detention centre.

What is the law on extradition?

Australia has extradition treaties with many countries.

If one of these countries requests that a person be extradited, the Attorney General or justice minister will decide whether or not to send them back.

Australia has an extradition treaty with Malaysia, which means it is under obligation to consider requests for extradition.

However, this does not mean that Australia is under an obligation to send them back; merely that a request will be considered.

There are several situations where Australia will ordinarily refuse to extradite a person.

One example is where a person is sought for punishment due to their race, gender, sexual orientation, nationality or political views, or if they are likely to face discrimination on the basis of any of those factors.

Australia will also ordinarily refuse to extradite people whose alleged ‘crimes’ would not be classed as such under Australian law.

Clearly murder is against the law in Australia, but Australia opposes the death penalty.

It is not yet clear if Malaysia has made a formal request for extradition, but even if it does, Australia is not supposed to send suspects to countries where they are likely to face the death penalty.

In fact, under section 15B(3)(b) of the Extradition Act, the Attorney General can only extradite someone if they are satisfied that they will not face any ‘real risk’ of being exposed to the death penalty.

Australians have recently reaffirmed opposition to the death penalty – with Tony Abbott repeating his aversion to it and asking Indonesia to reconsider the fate of Australians Myuran Sukumaran and Andrew Chen, members of the Bali nine.

Sukumaran now faces imminent death by firing squad.

But Malaysia’s Home Minister Junaidi Jaafar has said that Malaysia may be considering bringing legal action against Australia if Sirul Azhar is not extradited.

This is not the first time that a refusal to extradite has caused political tensions for Australia.

In the US, Australian laws were blamed for Alabama’s inability to seek the death penalty for a man allegedly responsible for his wife’s death.

When Tina Watson died in 2003, and her husband faced murder charges in Alabamba, yet Australia refused to extradite him.

In order to ultimately secure extradition, the US authorities agreed to reduce the maximum penalty to life imprisonment without parole.

In the meantime, it is likely that as long as Sirul Azhar faces the real prospect of execution, he will not be extradited.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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