Stuart Robert (Fadden, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

On behalf of the Joint Standing Committee on Treaties, I present the committee's report incorporating a dissenting report entitled Report 167: nuclear cooperation-Ukraine; extradition-China.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—Today, I rise to make a statement concerning the Joint Standing Committee on Treaties' report 167, which contains the committee's review of Australia's nuclear cooperation agreement with Ukraine; and the extradition treaty with China. The report was tabled out of session in December.

To maintain the supply of electricity to its citizens, the Ukrainian government uses nuclear power and must source nuclear materials from countries other than its traditional supplier, Russia, in the current circumstances.

However, prior to the export of any nuclear materials to another country, Australia has a policy of requiring a bilateral nuclear cooperation agreement that contains a standard set of provisions. These provisions are intended to prevent Australian nuclear material being used for nuclear weapons or other military uses.

This agreement incorporates these standard provisions as well as additional considerations and clauses designed to minimise any safety concerns. Notably, these additional measures provide for Australia to conduct a review of physical protection measures and place a limit on the number of locations where Australian materials may be used or stored.

Four main concerns were raised by the public during the committee's inquiry: limitations on the International Atomic Energy Agency, the risks posed by recent instability in Ukraine's border with Russia, general safety concerns regarding nuclear material and the ability to repatriate material if there were to be a breach of obligations.

The committee appreciates these concerns, as I think all Australians do, and believes that Australian nuclear material should never be placed in a situation where there is a risk that regulatory control of the material will be lost.

Consequently, the committee supports the agreement on the proviso and the recommendation that Australia has a suitable contingency plan for the removal of our nuclear material if the material is at risk of any loss of regulatory control.

Report 167 also deals with Australia's bilateral extradition treaty with China, and this the 40th extradition treaty that has been negotiated by Australia through numerous parliament and numerous governments of both persuasions.

Bilateral extradition treaties provide for the extradition of individuals who are charged with an offence and living in Australia so they can stand trial in the jurisdiction in which the purported crime was committed. The committee has consistently supported these treaties over its 20 years of life and the role they play in combating domestic and transnational crime.

As with previous extradition agreements there are a number of human rights safeguards built into this agreement that reflect the long history of transparency, access to representation and an aversion to harsh and unjust punishment in the Australian legal system.

For example, in relation to crimes punishable by the death penalty, an individual cannot be extradited from Australia unless Australia receives an explicit assurance that that individual will not be subjected to that punishment.

Further, Australia can refuse extradition of a suspect on the grounds that a fair trial may be prejudiced by a whole range of areas, including their race, gender, religion or political beliefs.

Despite these safeguards, which are extensive, not just in the extradition but in the body of extradition law itself, this agreement did attract some public concern about the human rights afforded to suspects in China; about a lack of transparency in the Chinese legal system; allegations of the ill-treatment and, indeed, some allegations torture of prisoners; and the continuing imposition of the death penalty.

The committee shared some of these concerns. Consequently, in the report we recommend that when making a decision to extradite an individual to China, the relevant minister take into account the current state of China's criminal justice system as well as the human rights risks to the individual concerned. Only the minister, in this case the justice minister, is able to make a sensible decision about these concerns at the time.

The committee also recommends that Australia obtain an undertaking from China prior to the surrender of a suspect in these areas.

Finally, I wish to make some remarks about extradition treaties in general. The committee acknowledges the work that has been done by the Attorney-General's Department to address previous recommendations by the committee over the preceding years concerning the welfare of persons extradited from Australia.

Nevertheless, the committee believes that a more systematic approach needs to be taken to ensure that individuals are not subject to any human rights violations. Accordingly, the committee makes two additional recommendations to the government to improve Australia's extradition arrangements across the board: firstly, that the department collect and, if possible, report details of an individual's status, including whether a trial had taken place, if the person had been found guilty or not, and what sentence had been imposed.

This minimum monitoring would ensure that extradited Australians are accounted for and provide an additional level of protection from execution, ill-treatment or torture or other forms of abuse.

Secondly, the committee recommends that to ensure the human rights and welfare of a foreign national to their country of citizenship, the Australian government should be informed of:

On behalf of the committee, I commend the report to the House.

Michael Danby (Melbourne Ports, Australian Labor Party, Shadow Parliamentary Secretary to the Leader of the Opposition) Share this | Link to this | Hansard source

by leave—As the deputy chair, I also wish to speak on this report, Report 167 of the treaties committee. This committee, competently chaired by the member for Fadden, examines, as he says, the nuclear cooperation with Ukraine and examines the long proposed extradition treaty with China.

Australia is fortunate to have the largest known reserves of uranium in the world, with almost one-third of the internationally known reserves. We have something other countries want. We only supply, at the moment, 10 per cent of global production.

Being blessed with a natural resource does not mean we should turn a blind eye to the consequences of selling it. Australia's government must never think, and does not think, that its responsibilities end with uranium leaving its borders.

Labor supports this nuclear cooperation treaty with the new democracy in Kiev. Ukraine is reliant on nuclear power, as the member for Fadden pointed out. Until recently, it was dependent on Russia to supply it with uranium to serve its energy needs. Now it is trying to free itself from Mr Putin's grip. Australia has the ability to support the energy needs of an independent fellow democracy, which, to its everlasting credit, now very sorely abused, forsook nuclear weapons at the time of re-establishing its sovereignty—it was a condition, actually, of its sovereignty.

Australia requires nuclear cooperation before it sells uranium to another country. This deal with Ukraine is no different in that regard. This means that the nuclear materials cannot be used for weapons or other military purposes. Crucially, therefore, this agreement strengthens our position as a reliable supplier of energy resources while meeting our international obligations.

We cannot turn a blind eye—as the Leader of One Nation and, incredibly, the member for Dawson suggested—to the ongoing insurgency from pro-Russian separatists in that area who are taking blood and treasure from Russia to continue to threaten the stability of that entire region. Australia, they should remember, lost 38 of our own residents when Malaysia Airlines Flight MH17 was blown out of the sky on 17 July 2014.

Labor supports this treaty. However, the report does not ignore the pro-Russian insurgency. We recommend an assessment of risks. We recommend a comprehensive contingency plan for the removal of nuclear materials where necessary. The committee's report supports the ratification of the treaty with Ukraine, subject to the Australian government making that assessment and maintaining a suitable contingency plan for the removal of that uranium.

Now let me turn to the Chinese extradition treaty. These treaties require a balance between stopping domestic and international crime on the one hand and protecting human rights on the other. Labor views this treaty as failing to achieve that balance. Our concerns about the fairness of the Chinese judicial system and people's right to a fair trial are not sufficiently answered by this report.

When Australia surrenders an individual to another country, we are placing great faith in the adequacy of that country's judicial system. At the present time, I think it is naive to place such faith in the Chinese criminal justice system. And, where Australia's faith is misplaced, that has consequences for the person and for Australia itself.

For the person being extradited it can mean not receiving a fair trial. It can mean being subjected to forms of cruel punishment such as torture. It can be a matter of life and death. This treaty, indeed, fails to adequately protect these basic human rights, in our view.

For Australia itself, it is worth remembering that Australia's duties to a person do not stop when they leave our shores. In Labor's view, Australia has a moral obligation to protect the human rights of extradited persons. It has a duty to the people who are being extradited. It has a duty to ensure that people receive a fair trial where they are. It has a duty to ensure that people are not subjected to torture. And it has a duty to ensure that people are not subjected to capital punishment.

The government has made no secret that it is keen to ratify this treaty, which has been lying on the books for almost 10 years since the dying days of the Howard government. In a diplomatic understatement in the report it says:

There is a body of evidence suggesting that China's criminal justice system 'does not act in accordance with procedural fairness and rule of law standards in criminal proceedings'.

Although things are getting better in China, in all areas—and we praise that country for its great progress—last year the acquittal rate in Chinese courts dropped by 34 per cent. As the political editor of the Herald Sun, James Campbell, noted: China's criminal conviction rate fell from 99.92 in 2015. He notes the numbers are astonishing. That year China's courts found 1,232,000 people guilty and acquitted just 1,039. If our government is to take seriously the issues of criminal fairness in the Chinese judicial system, those numbers would have ended any talk about sending people to be extradited to China. The only thing worse, he argues, than an agreement to hand over intelligence to a country with a 99.92 conviction rate is a secret agreement to hand over intelligence to a country with a 99.92 conviction rate.

This government must ensure the rights of people being extradited. What we must not have is this government allowing the country we propose to extradite to to provide a wish list of prisoners it would like to round up. For it to work, China must be willing to provide proof of the crimes of the people who are proposed to be extradited. This treaty does not require the provision of evidence to an Australian court in support of an extradition request. Put simply, evidence presented by the Chinese authorities, according to the report, would be taken at face value. The government must ensure that people receive a fair trial. Protection of this basic human right is missing from the treaty.

The government also has a duty to ensure people are not subjected to torture, as I said. They do not have such extradition treaties in the United States, Great Britain, New Zealand and Canada, all of whom have refused to enter into extradition treaties with China, for that reason.

China has refused to ratify the International Covenant on Civil and Political Rights, one of the cornerstones of international human rights law. Australia may have entered extradition treaties with others who have failed to ratify this; however, this treaty with China lacks the important safeguards which are otherwise present. In particular, this treaty with China omits a common safeguard, which is the ability to refuse an extradition request where it would be unjust or oppressive. The Attorney-General's Department has been unable to provide an explanation as to why this is, the result being that Australia's whole ability to refuse an extradition request on the basis that the person may be denied a fair trial is placed in doubt.

In conclusion, Deputy Speaker Mitchell, concerns about the human rights of extradited persons are nothing new with these sorts of treaties. This is no criticism, especially of China; however, in my view, such concerns take on new importance in an extradition treaty with that country—particularly when Beijing is pursuing what it calls an 'international fox hunt' against business people who may be dual citizens. We in this House must not shy away from our responsibility that Australia's extradition system remains consistent with our legal, moral and ethical obligations without prejudice to China.

It is probably a good idea that all extradition treaties be re-examined in this light. The threat of extradition being used on dual citizens who visit China for business or personal reasons may be of great concern to people who have perceived political views or advocacies on human rights that differ from the Beijing government's. I commend the Ukrainian part of the report, but I signal that Labor oppose the Chinese extradition aspects not only because of concerns about China but also because of our consistent concerns about the ethics of human rights in that country.

Stuart Robert (Fadden, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

I move:

That the House take note of the report.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

In accordance with standing order 39, the debate is adjourned. The resumption of the debate will be made an order of the day for the next day of sitting.