Introduction
1.1
The Committee was made aware of the action proposed by the Australian government to suspend two treaties with Hong Kong, and noting the timeframes, agreed to a request from the Attorney-General to consider the matters urgently.
1.2
The Committee has prepared this short report to outline the process undertaken, and notes that it is likely that members of the Committee, as well as other parliamentarians, might wish to make further remarks on this subject following the tabling of its report, noting that actions proposed are of national importance and interest, and are likely to continue to attract attention.
1.3
The Committee called for submissions and held a public hearing at which views were unanimously supportive of the Government’s intentions to take action to effectively suspend two treaties with Hong Kong at this time. The Committee agrees with those views, supports the suspension of the treaties, and is pleased to have been able to seek views and consider the issues before these suspensions come into effect.
1.4
Submissions received, as well as a transcript of the public hearing held on 24 September, and other relevant documents, are available from the Committee’s webpage: www.aph.gov.au/jsct.
1.5
The two treaties being considered are briefly described below:
The Agreement for the Surrender of Accused and Convicted Persons between the Government of Australia and the Government of Hong Kong (the Extradition treaty); and
The Agreement between the Government of Australia and the Government of Hong Kong concerning Mutual Legal Assistance in Criminal Matters (the Mutual Legal Assistance (MLA) treaty).
Context of the Committee’s inquiry
1.6
The Committee’s resolution of appointment empowers it to inquire into and report on any treaty to which Australia has become a signatory, on the treaty being tabled in Parliament. The treaties, and matters arising from them, are evaluated to ensure that ratification is in the national interest, and that unintended or negative effects on Australia will not arise. The Committee is also empowered to inquire into and report on any question relating to a treaty or other international instrument referred to it by the Parliament or a Minister.
1.7
In a letter to the Committee, the Attorney-General advised that the Government had prepared National Interest Analyses which were tabled in Parliament on 3 September 2020. While describing proposed actions to be taken, they did not arise from within those treaties. Following a separate referral in accordance with the resolution of appointment, the Committee commenced considering the matters within the requested timeframe.
1.8
Essentially, each action will effectively use clauses within the Vienna Convention on the Law of Treaties (VLCT) to suspend operation of two treaties. Each National Interest Analysis (NIA) contains details of which clauses will be used, and why, to effect this change, and why the action is being taken at this time.
1.9
Key dates in these considerations are:
30 June 2020: Adoption by the People’s Republic of China (PRC) of the National Security Law (NSL) for Hong Kong;
9 July 2020: Australia provided advice (via diplomatic note) that the Extradition treaty will be suspended; and
28 July 2020: PRC gave notice that it will suspend the MLA treaty.
1.10
Neither treaty contains clauses to neatly suspend operations, so Australia proposes to formalise matters by way of VCLT articles:
Extradition treaty – by article 62, which describes ‘change of circumstances’;
MLA treaty – by article 57, which describes ‘mutual consent’.
1.11
The National Interest Analyses provide technical and operational detail of both of these actions, and provide rationales as to why the actions are proposed.
Recent consideration of matters relating to Hong Kong
1.12
The Committee concluded its report into the Australia-Hong Kong Free Trade Agreement in October 2019. While the Committee heard evidence about advantages of the FTA, including further developing the strong links between Hong Kong and Australia, concerns were also raised about aspects of political and civil disturbances. The Committee noted that while the timing of the agreement coincided with an uncertain political situation, ‘the advantages of the agreement have not been questioned’.
1.13
In announcing this inquiry, the Chair of the Committee stated that:
Clearly the political situation in Hong Kong has deteriorated markedly in recent months, with Hong Kong’s autonomous status under threat. The imposition by China of its National Security Law on Hong Kong has altered the legal landscape in Hong Kong and raised serious concerns about the independence of Hong Kong’s judiciary and the rule of law. In such circumstances, it is only prudent to take steps to protect the integrity of our extradition and mutual legal assistance frameworks.
1.14
The Deputy Chair noted that:
Following passage of the national security laws which eroded Hong Kong’s independent legal status, there were calls for the urgent review of Australia’s extradition treaty with Hong Kong. The Opposition welcomed the Government’s subsequent decision to suspend this treaty on substantive grounds. This inquiry is necessary given the need to ensure the functioning and integrity of Australia’s international law enforcement cooperation and our extradition frameworks.
1.15
The Committee sought comment on the current actions from several stakeholders who had contributed to the earlier inquiry into the Australia-Hong Kong Free Trade Agreement.
Conduct of this inquiry
1.16
As noted above, noting the tight timeframe, the Committee was very keen to ensure a mechanism for public comment on these matters. Submissions were invited and a public hearing was held. Details of these are listed in appendices to this report.
1.17
The Committee acknowledges the excellent evidence provided in written submissions, and the contributions from those who were able to attend the public hearing at short notice. The Committee is firmly of the view that the evidence shared in this process has provided a comprehensive yet concise overview of the key matters under consideration, and will continue to guide and inform views on these matters in coming weeks and months.
Conclusion
1.18
As noted above, the Committee agrees with many of the views communicated in written submissions and at the public hearing, including that action be taken to suspend the two treaties at this time. The Committee was pleased to have been given the opportunity to seek views and consider the issues before these suspensions come into effect.
1.19
The Committee notes and supports the Australian Government’s decision to suspend the Agreement for the Surrender of Accused and Convicted Persons between the Government of Australia and the Government of Hong Kong and the Agreement between the Government of Australia and the Government of Hong Kong concerning Mutual Legal Assistance in Criminal Matters, and recommends that binding treaty action proceed.
Mr Dave Sharma MP
Chair
2 October 2020