North Carolina Journal of International Law

Volume 43

Report: Australia Moves to Ratify Extradition Treaty with China

By: Demi Davis

In 2007, Australia and China signed the Treaty on Extradition between Australia and The People’s Republic of China (“Treaty”). The purpose of the Treaty was to “make more effective the cooperation of the two countries in the suppression of crime….”  Over the years, corrupt officials in China have reportedly fled to Australia after committing crimes such as fraud and embezzlement.  For example, Gao Yan, a former public official of China, allegedly fled for Australia in 2002 due to allegations that “he and his son, Gao Xinyuan, reaped millions from a rigged bidding process for building an electricity transmission.”[1]  Yan is one of several public officials considered to be hiding in Australia amongst charges of bribery and embezzlement.[2]

China officially solidified its search for corrupt officials through the implementation of Operation Fox Hunt.[1] The lack of an enforceable Extradition Treaty between the two countries has made Australia one of the top destinations for corrupt Chinese officials.[2] Operation Fox Hunt is China’s effort to “go after suspects who left China seeking refuge abroad, often taking large sums of money with them, as part of a campaign led by President Xi Jinping to Stamp out pervasive corruption.”[3] In 2015, ninety-one people had been repatriated to China over the course of the year.[4] Of those repatriated, the offenses collectively total over 100 million dollars of misused money.[5] Operation Fox Hunt is not only a campaign to end corruption, it is also an opportunity for alleged criminals to voluntarily submit themselves to government officials under the promise of lighter sentences.[6]

Although the Treaty was signed by both countries in 2007, the Treaty is not enforceable in Australia since the country has yet to pass legislation enforcing the Treaty provisions,[7] even though the text of the Treaty specifically obligates both countries to extradite any person found of an extraditable offense in either country.[8] For example, murder is consider an extraditable offense because it is “punishable under the laws of both [countries]…by imprisonment for a period of one year or more, or by a more severe penalty.”[9] Although there is a general obligation to extradite under the Treaty, this obligation is not absolute since the Treaty also provides instances in which a country must refuse to extradite a person. These exceptions include when the offense is political, military, or due to the person’s race, sex, language, religion, nationality, political opinion, or personal status.[10] For other offenses, countries have discretion as to whether or not to extradite persons at the other country’s request. A major point of discretion exists when a country “considers that the extradition would be incompatible with humanitarian considerations in view of [a] person’s age, health, or personal circumstances.”[11]

As Australia considers finally implementing the Treaty, a major concern lies in the non-discretionary reasons to refuse extradition.[12] Article 3 of the Treaty provides that no person can be extradited if the alleged offense may be punishable by death.[13] Furthermore, if a country has substantial reason to believe that a person will be subject to torture or other cruel treatment, the person cannot be extradited.[14] These provisions explain Australia’s reluctance to enforce the Treaty. The Law Council of Australia argued against the Treaty since “China does not act in accordance with procedural fairness and the rule of law standards in criminal proceedings.”[15]

Many of the violations of fairness in criminal proceedings take place within the Shuanggui system.[16] The Shuanggui system is the Chinese disciplinary system that operates outside of the formal criminal justice system of China.[17] Under this system, suspected criminals can be summoned and essentially disappear without notice to friends and family.[18] Shuanggui detainees have reported that “they were subjected to torture and other ill-treatment including beatings, prolonged sleep deprivation, and being forced to stand or maintain uncomfortable positions for hours or even days.”[19] Judges have also reportedly dismissed claims of torture and coerced confessions.[20]

Due to these reports of cruel behavior in China, some Australian officials are unpersuaded by the need to ratify the Treaty with China. The Australian Parliament’s Joint Standing Committee on Treaties delayed ratifying the Treaty due to the “lack of independence, transparency in the Chinese government [as well as] its chequered human rights record.”[21] Australian officials are also concerned because the country would still be obligated to comply with international human rights regardless of its Treaty with China.[22] If Australia were to extradite a person to China under the assumption that such person would not be tortured or killed and that person was in fact tortured or killed, Australia would be held accountable under several treaties such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).[23] CAT specifically prohibits any state party from extraditing a person to another country where there are substantial grounds to believe that the person would be in danger of being tortured.[24] Considering the substantial evidence of China’s use of torture, Australian concern over the potential Treaty is not without merit.

In fact, if Australia did ratify the Treaty, it would be the first state party from the Five Eyes intelligence alliance to ratify such a Treaty with China.[25] Five Eyes is a global intelligence alliance between the United States National Security Agency, the United Kingdom’s Government Communications Headquarters, Canada’s Communications Security Establishment Canada, New Zealand’s Government Communications Security Bureau, and the Australian Signals Directorate.[26] Members of the Five Eyes collect intelligence information in their respective parts of the globe and share it with each other by default.[27] As expected, the alliance was not formally recognized until fifty years following its inception due to the nature of the operation.[28] Overall, the alliance serves as an agreement to share foreign information with other members and to not spy on other members.[29]

Australia’s membership in Five Eyes may conflict with the duties it would incur under a treaty with China. If Australia learns that a person wanted by Chinese officials is indeed residing in Australia, would Australia be obligated to report that information to the Five Eyes? Reporting such information could impair China’s ability to repatriate that individual to its country if a Five Eye member has human rights concerns or a particular stake in the person’s extradition. The Treaty provides that it will not affect “any right enjoyed and any obligation undertaken by the [countries] under any multilateral conventions.”[30] The text is unclear if obligations under supposedly “secret” alliances like the Five Eyes can be considered as a multilateral conventions.

Despite human rights concerns among public officials and public protests, Australia is poised to ratify the Treaty with China.[31] The Australian parliamentary committee ultimately concluded that Australia “does not wish to become a safe haven for people who commit serious offenses.”[32] In the interim, China has repatriated 158 criminals using one of the forty extradition treaties to which it is a party.[33]

Although Australia appears to be moving forward with the Treaty, its parliamentary committee is requiring certain conditions of China. First, the committee has recommended that the Australian government ensure that China will conduct “fair and open trial(s) to people surrendered to China.”[34] Furthermore, it is also recommended that the federal government develop a mechanism to actually monitor the well-being of extradited persons.[35] It is unclear if such an undertaking is even attainable by Australia.

[1] See Angus Grigg and Lisa Murray, Chinese ‘agents’ hunt top fugitive Gao Yan in Australia, Australian Financial Review (Mar. 20, 2015, 10:45 PM), [].

[2] Id.

[3] See Ben Blanchard, China’s ‘fox hunt’ of corrupt fugitives is a long term mission, Business Insider (Jun. 10, 2015, 1:23 AM), [].

[4] See Alvin Ybanez, ‘Foxhunt’ Leads to 91 Suspects Repatriated to China in the Past Year, Yibada (Nov. 27, 2015, 6:49 AM), [].

[5] Id.

[6] See Mike Blanchfield, Operation Foxhunt looms over Li’s visit, Press Reader (Sept. 22, 2016), [].

[7] See Jamie Smyth, Australia poised to sign extradition treaty with China, Financial Times (Dec. 22, 2016), [].

[8] Treaty on Extradition between Australia and The People’s Republic of China art. 2, Sep. 6, 2007, [2007] A.T.N.I.F 26.

[9] Id.

[10] Id. at art. 4.

[11] Id.

[12] Id.

[13] Id. at art. 3.

[14] Id.

[15] Law Council argues against Australia-China Extradition treaty due to concerns over trial fairness, The Law Society of Western Australia, [].

[16] See “Special Measures”: Detention and Torture in the Chinese Communist Party’s Shuanggui System, Human Rights Watch (Dec. 6, 2016), [].

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] See Philip Wen, Ratification of extradition treaty with China delayed as ‘real doubts’ emerge, The Sydney Morning Herald (Nov. 22, 2016), [].

[22] Id.

[23] Ratification of International Human Rights Treaties-Australia, University of Minnesota Human Rights Library, [];

[24] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 3, University of Minnesota Human Rights Library, [] (demonstrating how the language carefully says that the person need only be in danger of being tortured. Given the evidence of China’s torture history, it appears that substantial grounds exist to prevent the extradition of anyone to the region).

[25] See Angus Grigg and Lisa Murray, Chinese ‘agents’ hunt top fugitive Gao Yan in Australia, Australian Financial Review (Mar. 20, 2015, 10:45 PM), [].

[26] See The Five Eyes, Privacy International [].

[27] Id.

[28] Id.

[29] See David Farrar, Do we Benefit from Five Eyes?, National Business Review (Apr. 21, 2015), [].

[30] Treaty on Extradition between Australia and The People’s Republic of China art. 21, Sep. 6, 2007, [2007] A.T.N.I.F 26.

[31] Australia to ratify extradition treaty with China, CCTV (Dec. 25, 2016, 4:17 PM), [].

[32] Id.

[33] See Martin Millete, China Bids Against Corruption by Repatriating 158 Suspects on Duty-related Crimes, Yibada (Jan. 6, 2017, 8:54 PM),  [].

[34]  See Committee backs Chinese extradition treaty, Special Broadcasting Service (Dec. 16, 2016, 4:22 PM), [].

[35] Id.

[1] See Rick Wallace and Peter Cai, China seeks our help chasing its corrupt cadres, The Australian (Oct. 20, 2014), [].

[2] See Li Quian, Australia helps catch China’s most wanted, Shanghai Daily (Oct. 22, 2014), [].

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