China’s Rio Tinto arrest timely reminder

03 March 2012 By Lawyers Weekly

Stern Hu's arrest in China has once again shown the precarious position of Australians incarcerated overseas, but also gives pause to reflect on Australia's international human rights record and…

Stern Hu's arrest in China has once again shown the precarious position of Australians incarcerated overseas, but also gives pause to reflect on Australia's international human rights record and treatment of individuals detained within our own borders, writes Steven Freeland

As we watch with concern as events unfold in China regarding the detention of Rio Tinto executive Stern Hu, several important points are emerging. Amid the distractions of the political wrangling between the Rudd Government and Opposition as to exactly how Australia should react, we should not forget that there is a simple but important issue at stake. As this situation has evolved, the Chinese authorities have made some extremely serious allegations against Mr Hu, and if these are ultimately accepted by a Chinese court, he is likely to face severe consequences.

In this context, it is, therefore, vital that the Australian Government do everything in its power - both from a legal and diplomatic viewpoint - to ensure that Mr Hu is accorded all of his legal rights under both Chinese and international law, and that any trial that were to ultimately take place is fair and just.


Apart from this, and without in any way wishing to pre-empt the investigations that are under way and the processes that may follow, it presents a clear reminder that all Australians - with the exception of diplomats accorded immunity in certain circumstances - are subject to the laws of the country in which they find themselves.

There is no legally valid argument that would allow an Australian accused of violating local laws to assert that he or she should be returned to Australia, or not be prosecuted under local laws, simply because those laws or processes are different from the position in Australia.

This also extends to the range of sentences that may be applicable if an Australian is found guilty of an offence in violation of the laws of another country. Once more, this is dependent on the local law of the country concerned.

Sadly, this extends even to the ultimate punishment, which, hopefully, will not be relevant in this case. While most of us would find the notion of the death penalty abhorrent, it is a sad but true reality that about 60 countries of the world still do have this sanction on their statute books.

Of course, if an Australian were sentenced to death, or to an unduly long prison sentence, the Australian Government could and should make very strong diplomatic representations to try to have this sentence altered by the relevant government.

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However, unless there has been a fundamental breach of the convicted person's human rights under international law, this is largely a diplomatic rather than a legal issue. Tragically, this may not be sufficient to save the lives of Australians, as we saw all too clearly in the Van Nguyen case in Singapore in 2005 and which is still at the heart of concerns regarding several of the "Bali Nine" in Indonesia.

Unfortunately, there are an increasing number of Australians who are facing criminal prosecution before the courts of other countries. Perhaps it is worthwhile reflecting on the need for a more visible public campaign to further educate us about the risks associated with any criminal conduct overseas.

It is undoubtedly the case that the Australian Government is restricted in the ways that it can assist those Australians facing charges overseas.

The point has been made on a number of occasions that Canberra is unable to intervene in the domestic legal processes in another country and seek to impose our standards in any situations involving Australians. We all recall the trial of Schapelle Corby, where we witnessed the confusion on Ms Corby's face as she was confronted with a legal process - in an unfamiliar language - that was in every sense "foreign". Yet, because it is different, it does not necessarily mean that all aspects of an unfamiliar process are unfair.

Even if we perceive it as such, there is very limited scope for Australia to try to alter this process in order to make it more "familiar".

Having said this, there are various things that the Government is legally entitled to do. One of these is to provide whatever consular assistance and support that it can to the accused person.

It was disturbing to hear reports last week that the Chinese authorities had thwarted earlier efforts of Australian officials to gain access to Mr Hu. While the reasons for this were not clear, what is certain is that this is unacceptable and that every effort must be made to promptly provide any Australian in the custody of foreign Governments with all avenues for consular support.

Sadly, the former government fell far short of its obligations in this regard when David Hicks was incarcerated at Guantanamo Bay.

The Hu episode also reminds us of the many Australians who are already serving prison sentences in overseas gaols and brings into further focus the advantages of bilateral treaty arrangements between Australia and the countries of the region - and perhaps elsewhere as well - which would allow for the nationals of one country to serve out any prison sentence in their home country.

This form of mutual co-operation is common in Europe and has also been recently implemented between Australia and Thailand. This process should continue and broaden, so that Australians in the prisons of other countries, including China, would have the possibility of being returned to much more familiar surroundings close to their family and support network. From a "rehabilitation" viewpoint of justice, this is also a much preferred arrangement.

The plight of Mr Hu has captured the imagination of many Australians. We must learn from this to ensure that every possible legal effort is made and all appropriate diplomatic steps are taken to support Australians facing criminal charges overseas. At the same time, we must also be aware that those people detained in (and by) Australia, are facing circumstances that may be just as bewildering and frightening to them. They are entitled to the same fundamental rights and protections as Australians ought to receive when travelling abroad.

In seeking to intervene on behalf of our own citizens who are imprisoned without charge in a foreign land, we would do well to consider whether Australia is itself complying with international human rights law in its treatment of asylum seekers.

Steven Freeland is associate professor of International Law, University of Western Sydney and a visiting professional at the International Criminal Court, The Hague.

China’s Rio Tinto arrest timely reminder
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