The treaty has a 10-year history. Concluded in 2007, it was discussed again in 2014 when then prime minister Tony Abbott met with Chinese President Xi Jinping. In early 2016, the Joint Standing Committee on Treaties (JSCOT) began examining the treaty and held hearings during the year, issuing its final report in December 2016 and recommending ratification. The Extradition (People’s Republic of China) Regulations 2017 were tabled in March 2017 and debated at length in Australia’s Parliament. On the eve of the Senate debate, the resolution to ratify was withdrawn, when it became apparent the legislation lacked the necessary support.
The declared aim of the extradition treaty is to facilitate cooperation between Australian and Chinese law enforcement agencies. The treaty would supplement existing international crime cooperation mechanisms allowing for mutual assistance and the transfer of prisoners.
Nonetheless, ratifying the treaty poses a serious dilemma for Australia because of China’s legal and political system.
On the one hand, the stronger presence of Chinese activities on Australian shores makes it crucial to have a robust framework to regulate bilateral legal cooperation and to ensure that criminal offenders do not evade justice.
On the other hand, China is still a one-party system with legal and political structures radically different from those of Australia. While human rights protections are provided in the Chinese constitution, China is often denounced internationally for its abusive practices that breach the right to a fair trial. Indeed, both Chinese and Western observers often admit that the judiciary lacks independence and that torture is used as a tool to extract confessions from criminal suspects.
The Law Council of Australia in its 2016 submission to JSCOT laid out these concerns and opposed ratification in light of the weak fair trial protections guaranteed to those likely to be extradited to China. These same issues were addressed in the JSCOT final report. Its final recommendation to ratify the extradition treaty seems contradictory to the many concerns highlighted throughout the document.
For instance, a number of recommendations point out that the individual(s) involved in extradition procedures should be provided with a ‘fair trial’. But at the same time, the Committee acknowledges that ‘there remains doubt about an individual’s access to a fair trial under the justice system in China’.
Perhaps the contradictory nature of these caveats is most apparent in Recommendation 3.49. JSCOT recommends extradition decision-makers consider government and non-government reports regarding the Chinese criminal justice system’s compliance with human rights and the rule of law when making an extradition decision. Critically, the vast majority of the reports from governmental and non-governmental sources produced outside China to date all point to the murkiness, abusiveness and the highly politicised character of the country’s current judicial system.
In its March 2017 response to the JSCOT report, the Australian government gave the impression of being fairly confident about its ability to meet the Committee’s recommendations. It noted that when making an extradition decision, the Attorney-General or the Minister of Justice (the decision-maker) are provided with ‘discretion to refuse surrender in circumstances where there are legitimate human rights concerns such as whether an extradited individual would have access to a fair trial’.
But the lack of transparency in the Chinese justice system, the vagueness of its criminal laws and the politicised nature of China’s multiple wars on crime — including its most recent anti-corruption campaign — make observers wonder whether there are any grounds to facilitate and reach a fully-informed decision.
Treaty ratification poses questions for Australia as a state party to the International Covenant of Civil and Political Rights — the key international law instrument providing for the right to a fair trial. But non-ratification raises other concerns that span beyond the boundaries of a political quandary with a key trading partner.
If Australia decides to not ratify the extradition treaty then this creates a further dilemma where it must choose between the product of its best endeavours to establish a formalised and robust legal framework to return criminal suspects to face trial, or reject the whole concept on principle, leaving the door open to extra-legal practices. Tellingly, the director of Peking University’s anti-corruption study centre, Zhuang Deshui, warns that non-ratification would induce Chinese authorities to use ‘other options’, like pressuring family members, to bring fugitives back to China. And there is the question of cooperation by the Chinese authorities with Australia in seeking extradition in support of the application of Australian laws.
Elisa Nesossi is a Research Fellow at the Australian Centre on China in the World, The Australian National University.