03 May 2016
by Philip Wen
Operation Fox Hunt: Law council says extradition treaty with China is 'a joke'Australian Prime Minister Malcolm Turnbull, left, and Chinese President Xi Jinping shake hands before their meeting in Beijing in April.
Beijing: The national peak body representing the legal profession in Australia has urged the federal government not to ratify an extradition treaty with China, citing concerns the mainland's criminal justice system lacked procedural fairness and was "steadily marching in the wrong direction".
Addressing the parliament's Joint Standing Committee on Treaties in Canberra on Monday, the Law Council of Australia said there was no way to guarantee those extradited would be granted a fair trial, nor were there any effective measures to prevent torture or China going against diplomatic assurances and administering the death penalty.
"There's no consequence, what's Australia going to do?"
David Grace, QC, of the Victorian Bar told the committee.
"What's the reality? Is Australia going to haul China before the international court of justice? I mean, it's a joke, that's a reality of it."
Australia has an extradition treaty with China that was signed in 2007 but never ratified. The agreement, however, was tabled in March for the committee's consideration, a month before Malcolm Turnbull's first visit to China as prime minister.
China has recently stepped up international efforts to repatriate economic fugitives and corrupt officials who have fled overseas.
Australia, meanwhile, is hoping to secure greater assistance from China to stem the trade of illicit drugs, particularly crystal methamphetamine – also known as "ice" – flowing from southern China.
The council also expressed concern over the omission of 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'".
"Unless these concerns are addressed the Law Council opposes the ratification of this treaty," council president Stuart Clark said.
Melbourne grandmother Zhou Shiqin returned to China last month to clear her name.
The agreement with China, like other bilateral extradition treaties, has a "no evidence" threshold which essentially takes information presented by Chinese police seeking extradition at face value, without necessarily needing evidence to substantiate the claim.
Legal experts and human rights groups share concerns that any extradition agreement in force must inherently place faith in the integrity of China's party-controlled law enforcement and judicial systems – frequently criticised for pursuing the Communist Party's political agendas.
China last month relaunched its Fox Hunt and Skynet operations targeting suspected economic criminals and corrupt officials hiding overseas. Chinese authorities routinely cite Australia, along with the US and Canada, as the most popular havens for the fugitives.
Leanne Close, deputy secretary of the criminal justice group in the Attorney-General's Department, told the committee the treaty was "not an automatic process for extradition, rather a framework for decision-making".
The unratified treaty provides grounds for refusal for political offences and if there are fears of torture or inhumane punishment. In cases where the person sought may be sentenced to death, Australia can "undertake" that the death penalty not be imposed – or if imposed, that it not be carried out.
"Australia's longstanding experience with death penalty undertakings with extradition cases is that such undertakings have been honoured," Ms Close said.
Asked by the committee whether China could execute those extradited without Australia's knowledge, officials from the Attorney-General's Department said the government "would know about it".
"In the arena of international crime co-operation that would be an extremely serious event if it happened – and it would have consequences," said Catherine Hawkins of the department's International Crime Co-operation Division.
Mr Grace cited a pervasive crackdown on hundreds of mainland lawyers who have been detained, harassed or threatened for representing the interests of their clients as further evidence that China's legal environment was deteriorating.
He also pointed out that other countries like the US and Canada were not moving towards an extradition treaty despite China also pushing for the return of its wanted fugitives.
Australia can already consider extradition requests from China under the United Nations Convention against Corruption and the United Nations Convention against Transnational Organised Crime.
"Risks of torture, lack of due process and politicisation of the judiciary should make the Australian government think long and hard before embarking on an agreement which may serve to legitimise China's justice system," said Elaine Pearson, Australia director of Human Rights Watch.