This week, Foreign Affairs Minister Marise Payne called on the Chinese government to allow Australian consulate staff to attend Dr Hengjun’s trial and for him to have access to legal representation. Yesterday, they were barred entry to the court, with COVID-19 restrictions and national security given as the reasons behind the closed-door trial. 

Despite being detained since January 2019, Dr Hengjun didn’t have access to a lawyer until September 2020 and wasn’t charged with an offence until October 2020. More than two years after he was first arrested, Chinese authorities are still yet to reveal details of the allegations against him.

Over the course of his arrest and imprisonment, the Law Council has repeatedly voiced grave concerns for Dr Hengjun’s welfare and the lack of procedural fairness. In particular, concern has been raised over the delayed and restricted access to consular assistance and legal advice made available to him.

Law Council president, Dr Jacoba Brasch QC, said that “the right to independent legal assistance must be ensured from the moment of deprivation of liberty, and access to effective legal representation guaranteed to all persons at all stages of criminal proceedings.

“This is a fundamental precondition to realising the right to a fair trial.”

China’s criminal conviction rate is above 99 per cent – and if convicted, Dr Hengjun’s sentence could range anywhere from three years to life imprisonment.

Under the Vienna Convention on Consular Relations to which China is a party, as well as the bilateral consular agreement in force between Australia and China that incorporates these principles, Australian consular officials are entitled to communicate with Dr Henjun, receive information on the charges against him, and attend Dr Henjun’s trial and other legal proceedings.

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“We would expect that any caveats on these obligations – arising from the nature of the charges against Dr Yang – must give full effect to the purpose to ensure fairness, transparency, and humane treatment for which these rights were accorded,” Dr Brasch said.

“The seriousness of the charges against Dr Yang render the protracted deprivation of legal assistance even more egregious, falling well short of international fair trial standards.” 

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