Exchange of notes amending the Agreement on Consular Relations between Australia and the People’s Republic of China and Agreement between the Government of Australia and the Government of the People’s Republic of China concerning the Continuation of the Consular Functions by Australia in the Macau Special Administrative Region of the People’s Republic of China
2.1
This chapter examines the proposed amendments to the Agreement on Consular Relations between Australia and the People’s Republic of China (the China Agreement) and the Agreement between the Government of Australia and the Government of the People’s Republic of China concerning the Continuation of the Consular Functions by Australia in the Macau Special Administrative Region of the People’s Republic of China (the Macau Agreement). The amendments were agreed to by an exchange of diplomatic notes dated 12 November 2015 and 9 May 2016, and tabled in the Parliament on 9 May 2017.
2.2
The purpose of the amendments is to bring the Macau Special Administrative Region (SAR) under the auspices of the China Agreement.
Background of the Australia-Macau relationship
2.3
According to the National Interest Analysis (NIA), Australia has a strong commercial presence in Macau, which includes the design, construction and fit out of casinos, as well as other commercial interests in the marinas and entertainment precinct of Macau.
2.4
Bilateral trade between Australia and the Macau SAR reached $88.2 million over the 2015-2016 financial year. Australian exports account for 82 per cent of two way merchandise trade.
2.5
Over 2 600 people of Macanese descent live in Australia, and approximately 1 000 Australians live in the Macau SAR.
2.6
Australia and Macau SAR have a number of bilateral agreements, including a Tax Information Exchange Agreement signed on 12 July 2011, and a Memorandum of Understanding on immigration cooperation signed on 19 November 2013.
Overview
2.7
The China Agreement was signed in September 1999, prior to the sovereignty of Macau being handed to the government of the People’s Republic of China. A shorter treaty was signed between the two parties to provide for Australia’s consulate functions in Macau in preparation for the resumption of Chinese governance in December 1999. The proposed treaty action is to bring the Macau SAR within the geographic scope of the China Agreement application.
2.8
According to the Department of Foreign Affairs and Trade (DFAT), the request to include the Macau SAR in the China Agreement came after procedural issues in relation to a number of arrest notifications in 2013 and 2014:
Our consulate general in Hong Kong at that time approached the relevant authorities in Macau to discuss how to improve that notification process. During those discussions, it was agreed that it would be desirable to amend the China agreement to include the Macau Special Administrative Region.
2.9
Consulate functions for the Macau SAR are managed through the Australian Consulate-General in Hong Kong.
Reasons for taking proposed treaty action
2.10
According to the NIA, the proposed treaty action will enable improved consular access to Australians in the Macau SAR. The amendment would provide better procedural clarity for managing consular cases in Macau. DFAT highlighted specific procedural changes resulting from the amendments:
For example, by aligning the two treaties, consular officials will be informed within three days if a national is arrested or committed to prison or custody pending trial in the Macau Special Administrative Region … a consular visit to that detainee must be permitted within two days. Those time lines are not currently mandated in the Macau agreement.
2.11
According to DFAT, the amendments are also consistent with the Department’s new Consular Strategy, announced by the Foreign Minister, the Hon Julie Bishop MP, on 25 July 2017:
That strategy is about making sure that we can provide the best services that we can … The strategy focuses principally on ensuring that the consular service adapts to changing travel trends, that we provide support from Australia for victims of serious crime committed overseas and also for managing the increasingly complex and numerous cases that have a mental health component.
The Agreement
Proposed changes
2.12
The NIA lists three proposed amendments to the two existing agreements. The first proposed amendment is to Article 18 of the China Agreement and relates to vessels of the sending state. The amendment provides that the application of this article extends only so far as it does not contravene air services agreements signed between Australia and the Macau SAR.
2.13
The second proposed amendment is to Article 21 of the China Agreement and brings the Macau SAR under the scope of the Agreement’s geographic application.
2.14
The third proposed amendment is to Article 2 of the Macau Agreement. The amendment provides that the Macau Agreement will remain in force, and obliges the government of the People’s Republic of China to accord necessary assistance and facilities to the Consulate General of Australia in Hong Kong in the exercise of its consular functions in the Macau SAR.
2.15
The Committee noted that the Macau-Australia agreement would remain in place despite the inclusion of Macau within the scope of the China agreement. DFAT highlighted that this was a request from the Chinese Administration:
The Chinese have asked us that the Macau agreement remain in place. We have no objection to that.
2.16
DFAT admitted that they were unaware of the reasons behind this request.
2.17
In response to the Committee’s query relating to the implications of having two overlapping agreements, DFAT responded:
There isn’t any particular benefit, but I’m not aware that there is a particular detriment either.
2.18
DFAT clarified that there will not be any difference in the way an Australian national is treated under either agreement:
Technically speaking, there is no difference in the standard of treatment expected to be provided to an Australian national detained in China or Macau under either agreement. The treatment provided to Australian nationals in China or Macau is primarily defined by the Vienna Convention on Consular Relations (VCCR), which is given effect by the two agreements.
Obligations
2.19
Under the amendments to Article 21 of the China Agreement, the following commitments under the China Agreement will apply to Macau SAR:
Article 2 requires the notification of appointments, arrivals and departures of consulate staff.
Article 3 obliges the parties to take appropriate measures to ensure the smooth performance of a consular post’s functions.
Article 4 facilitates the purchase or lease of a building or land as consular premises and the residence of consular staff.
Articles 5 to 9 provide the functions that can be undertaken by consular staff.
Article 10 requires parties to facilitate travel between the two states for people who may have claims to the nationality of both countries. However, Article 10(1) states that the article does not imply that the People’s Republic of China recognises dual nationality.
Article 11 obliges the parties to ensure the consular officers can communicate with their nationals.
Articles 12 and 13 provide the process or informing the other party of a death of a national and the process for handling their estate.
Article 14 entitles the parties to protect nationals who are minors and other vulnerable persons.
Articles 15 to 18 entitle consular officers to provide assistance to vessels and aircrafts of the sending state, and which are in the territorial waters or airspace of the receiving state, and oblige the receiving state to notify the consular post when they intend to take compulsory action or begin an investigation against a vessel or aircraft.
Article 19 allows consular posts to level fees and charges.
Entry into force
2.20
The amendments will come into force on the thirty-first day after both countries have informed the other that domestic processes have been completed. China informed Australia of the completion of its domestic processes on 16 June 2016.
Implementation
2.21
No changes to Australian legislation are required for the implementation of the treaty action.
Costs
2.22
No costs are anticipated for Australia.
Committee comment
2.23
The Committee commends DFAT in its efforts to improve Australia’s global consular services.
2.24
The Committee further notes the economic ties and people-to-people links between Australia and the Macau SAR.
2.25
The Committee supports the amendments to the China agreement and the Macau agreement and recommends that binding treaty action be taken.
2.26
The Committee supports the amendments to the Agreement on Consular Relations between Australia and the People’s Republic of China and the Agreement between the Government of Australia and the Government of the People’s Republic of China concerning the Continuation of the Consular Functions by Australia in the Macau Special Administrative Region of the People’s Republic of China and recommends that binding treaty action be taken.