All sides of Australian politics have sustained pressure on the United States to drop the charges against Julian Assange. While the Cheng Lei experience might provide an instructive lesson on how to negotiate with what is a political charge, this may have to wait until after the 2024 election. 

2023 was the year when the Australian political community united to argue for an end to the prosecution of Julian Assange. Assange has been detained in Belmarsh Prison, London, since 2019, awaiting the outcome of legal proceedings on his extradition to the United States to stand trial on charges of computer misuse and espionage. As legal options have started to run out, political pressure from Australia has increased. This includes diplomatic representations by the Albanese government and cross-party lobbying for Assange’s release by MPs.

Following the English High Court’s rejection in June this year of his appeal of the United Kingdom Home Secretary’s extradition order, Assange appealed to the same court, where a multi-judge bench will review the June decision. This is the final avenue of appeal in the United Kingdom. Assange’s lawyers applied to the European Court of Human Rights in 2022, but the application was declared inadmissible without published reasons on 13 December 2022. It is not clear whether a fresh application could be made after Assange exhausts his United Kingdom legal recourses.

An accused has little chance of overturning an extradition order in the courts. Although extradition decisions are subject to judicial supervision, and in many countries human rights considerations are part of the judicial role, in practice it is rare for courts to refuse extradition, even on human rights grounds. As was evident in the January 2021 judgment on the American request for Assange’s extradition, judges often defer to the courts of the requesting country to guarantee the accused a fair trial. Even where courts identify potential human rights violations or oppressive conditions, as Judge Baraister did in 2021, the country requesting extradition can overcome those findings by giving diplomatic assurances that it will ensure rights-compliant treatment. The United States provided assurances after the January 2021 judgment, and English courts accepted them.

As the possibility of protection by the courts has receded, Assange’s supporters have increased their focus on diplomatic avenues. The Morrison government often presented Assange as a standard consular protection case, avoiding the wider political issues. The Albanese government has directly advocated for Assange’s release. The fact that leader of the opposition, Peter Dutton, also declared support earlier this year strengthens the government’s position, demonstrating that it is a matter of national rather than party policy. In April, the new High Commissioner to the United Kingdom, former Foreign and Defence Minister Stephen Smith, visited Assange personally in Belmarsh, a moment that emphasised the high profile that the Albanese government gives the Assange case. The government has been consistent in its pressure, despite some public pushback from Secretary of State Anthony Blinken in July.

Assange’s brother, Gabriel Shipton, has, however, argued that the Australian government could do more to advocate for Assange, claiming that Australia’s success in obtaining the return of Cheng Lei from China compares unfavourably with the lack of American movement on Assange. The situations are not fully comparable. Although both are journalists charged abroad with espionage offences, Cheng Lei was released by the Chinese on the basis that she had served her sentence, taking into account pre-sentence detention. There is no equivalent route for the United States to end the Assange process – it would have to withdraw the charges, with the implicit admission of error unless it did so on humanitarian grounds, which it has to date rejected. Although the charges against Assange are arguably politically-driven, the Cheng Lei case was bracketed by some with “hostage diplomacy” cases where states use the detained individual as a bargaining chip. Her release was part of a general improvement in Australia-China relations.

The prosecution of Assange is, on the contrary, of inherent political value to the United States, and it seems that there is little if anything that Australia could offer the United States to change its position. As a result, the language used by the Australian government on Assange focuses on the length of the process and, by implication, the oppressiveness of it as found by the English court. In the case of Cheng Lei, the government emphasised her separation from her family. A similar argument would have less traction with the United States, which has already suggested that, if convicted, Assange could serve his sentence in Australia.

China’s political context is, of course, very different to the United States. As Donald Rothwell argued in August, Joe Biden is unlikely to end the Assange prosecution in 2024 in the heat of an election campaign.

A notable feature of the campaign to free Assange this year has been growing public advocacy by Australian politicians across the political spectrum. Some MPs have publicly argued for Assange’s release for many years, but in 2023 something approaching a consensus emerged. In April, 48 MPs signed a letter to American Attorney General Merrick Garland calling for Assange’s release, and in September 63 signed a letter to the American government, in which they pointed to the impact on Australian public opinion:

the prolonged pursuit of Mr Assange wears away at the substantial foundation of regard and respect that Australians have for the justice system of the United States of America.

The September letter supported a trip by a cross-party group of six MPs to Washington to lobby American lawmakers on Assange’s behalf. Although there was no direct outcome from the trip, on 16 November members of Congress, from both the Republican and Democrat parties, issued their own letter calling for Assange’s release, noting the potential for the case to undermine American-Australian relations. Earlier in the year, several MPs, including the co-chairs of the Bring Julian Assange Home Parliamentary Group, met in Canberra with the American Ambassador to Australia, Caroline Kennedy, to make the case for Assange. The Ambassador, unsurprisingly, used more encouraging language about a political resolution for Assange than Secretary Blinken did, while emphasising that the decision lies with the Department of Justice.

All sides of Australian politics, most recently in a speech by Nationals MP Barnaby Joyce in Parliament on 23 November, have sustained pressure on the United States to drop the charges against Julian Assange. There is as yet little to show for their efforts. While conversations were opened with the American Ambassador and Congressional members, representatives of the American government continue to assert their determination to prosecute. In the election year of 2024, there is little likelihood of political progress in the United States, and Assange’s advocates will once again turn their hopes to the English courts. In that context, Australia will have less leverage to pursue a positive outcome for Assange.

Holly Cullen is an Adjunct Professor of Law at the University of Western Australia Law School. 

This article is published under a Creative Commons License and may be republished with attribution.