Former chief secretary of the Hong Kong Civil Service, Dame Anson Chan.  Photo: Steven Siewert
The folly of an Australian-China extradition treaty
  • Wed, 01/04/2017 - 18:19

JANUARY 4 2017 - 8:19PM

Dame Anson Chan was the chief secretary of the Hong Kong Civil Service under both British and Chinese authorities. She remains an experienced and knowledgeable observer of mainland politics. Late last year she visited Australia and politely warned our politicians of the risks in entering treaties with China. Her advice carries contemporary merit.

The Commonwealth government wishes to ratify an extradition treaty with China that was signed by both major political parties in 2007. Justice Minister Michael Keenan is an enthusiastic supporter of this apparently commendable goal. Most observers would agree that criminals should not evade justice by passing unchallenged through inadequately regulated borders. Yet the Turnbull government's ambition should be viewed with considerable scepticism.

Co-operation in extradition relies upon adherence to a class of substantive and procedural norms and principles. These reflect compliance with the rule of law and observance of human rights. That is not the case here. In March this year the Law Council of Australia submitted a paper on this treaty to Parliament's joint standing committee on treaties. The Law Council document was competently researched and cautiously argued. It also contained a succinct summary of the treaty's extensive shortcomings.

Those deficiencies include aspects of the right to a fair trial, evidentiary thresholds in determining extradition requests, a presumption against bail, absence of time limits applied to executive government decisions, the definition of a political offence, consequences for breach of an undertaking not to apply the death penalty, protections for children and compliance monitoring arrangements. The authors also pointed out that this treaty contains weaker human rights protections than is the case in other extradition treaties to which Australia is a party. Regardless, Chinese adherence to even these diminished responsibilities remains at best doubtful.

The reason for this is simple: the Chinese state is governed by an illiberal dictatorship, and all dictatorships tend to evince the same unsavoury attributes. The apparatchiks of the Communist Party of China are entirely conventional in that sense, as they view our liberties with public antipathy punctuated by occasional condescension.

In Canberra that unpalatable truth was grasped and promptly discarded without the slightest hint of naivete. This is because the Turnbull government has decided to replace good faith with deception. Mr Keenan, Attorney-General George Brandis and their colleagues simply pretend that the communists will abruptly cease their despotic behaviour and embrace international human rights norms. Regrettably, there is nothing new in this cynicism. History is littered with relatively liberal states, the governments of which unwisely sought to ingratiate themselves with powerful tyrannies. This latest failure of our political class has aroused scant indignation among the Australian populace – which is one measure of the growing and quietly spectacular success of Chinese diplomacy.

A primary reason for Australia's supine compliance lies in trade. In 2014, total (two-way) trade with our most important market was valued at $152,468 billion. It was easier to take the moral high ground when negotiating with 20th century totalitarians because most of them were impoverished. Today, Australian politicians will cheerfully make indecent compromises that enhance the flow of profits from more affluent successors.

One should reflect carefully on that enthusiasm. Leading scholar Frank Dikotter concluded that in the 20th century Mao Zedong's homicidal reign destroyed the lives of around 33 million of his own people. Current paramount leader Xi Jinping apparently views Mao favourably. The same party today suppresses freedoms of expression, assembly, association and religion. It has imprisoned its own Nobel peace prize laureate Liu Xiaobo. It harasses, threatens and jails lawyers while the judiciary exists as a plaything of the party. And it notoriously tortures and executes thousands each year while describing universal human rights norms as "foreign infiltration".

Equally sinister, Australian businessmen such as Matthew Ng have been unjustly imprisoned in China through the influence of corrupt party members while Chinese agents have harassed Australian citizens within Australia in campaigns of organised intimidation. In short, various forms of intolerance and brutality remain an indissoluble plank of Communist Party governance.

National interests dictate that our government deals with states of almost every stripe. It remains equally important that those interests should not be confused with those of our ideological opponents. With that clarity in mind our politicians would do well to act on Dame Anson's prudent advice.

Dr Malcolm Hugh Patterson teaches international law on a sessional basis at the Macquarie University Law School in