Australians in the Chinese Justice System

More Australians are imprisoned in China than any other foreign country. According to the Department of Foreign Affairs and Trade (DFAT), as of 2015 there were seventy Australians either serving sentences or awaiting trial in Chinese jails.

Some cases of Australians in the Chinese justice system have attracted significant media attention in recent years. Since 2009, Rio Tinto executive Stern Hu [link to topic page], travel entrepreneur Matthew Ng, technology educator Charlotte Chou and medical inventor Du Zuying have all been arrested and sentenced to lengthy jail terms for commercial crimes such as bribery, embezzlement and fraud involving China-based partners. (Du was released in July 2014 and Chou in December 2014).

There are also many more less well-known cases. Ex-PLA Air Force employee and naturalised Australian citizen James Sun was convicted of spying for Taiwan in 2007 and received a death sentence that was later commuted to life imprisonment. In March 2005, Henry Chin was handed a suspended death sentence for trafficking amphetamines. Carl Mather was freed from prison in May 2013 after spending six months in jail for assault during a confrontation with his wife’s business associates. Troy Bremer was released from prison in the same month after serving seven-and-a-half years of a ten-year sentence for personal loan fraud.

Most of the individuals listed (or their families) have protested their innocence and many claim to be victims of insider plots between well-connected business rivals and paid-off members of the local judiciary. Media reporting on their cases suggests serious concerns about the treatment of Australian citizens in the Chinese judicial system. There have been reports of regular and brutal beatings of prisoners by Chinese police or prison guards, confessions extracted under duress, health issues left untreated, lengthy detention without trial, delayed access to consular and legal assistance, one-sided trial proceedings, media and family barred from court proceedings due to ‘lack of space’, overcrowded cells, inadequate nutrition, constant surveillance, and supervision of consular visits in order to punish inmates who report their mistreatment. One Australian citizen (Troy Bremer) claimed that his treatment by prison officers was influenced by the current state of the Australia–China relationship.

However, one of the biggest media controversies has been that regarding families of Australian detainees who claim that DFAT had advised them against going public with their case. This has led to accusations that Australian officials are systematically discouraging media coverage of politically awkward legal cases, against the wishes of detainees’ families and lawyers, in order to avoid public pressure for diplomatic intervention that could interfere with bilateral affairs. While some families may not go public for fear of reprisals, Chinese legal experts claim media exposure can protect individuals against bad treatment. DFAT maintains that it provides balanced advice so families can make decisions, and that ‘megaphone diplomacy’ and interfering with the Chinese legal process is counterproductive. Yet, after families have gone public, the Australian Ambassador or senior Australian politicians personally raised the cases of Hu, Ng, Chou, Du and Mather with Chinese counterparts, outside of routine diplomatic channels. This may have improved the situation of these individuals compared to other Australians in the Chinese justice system, as all of them apart from Hu have secured early release from jail. For instance, then prime minister Julia Gillard raised many of these cases with Chinese leaders during her state visit in April 2013, and two weeks later Mather won an appeal to reduce his prison term and Chou had her sentence reduced — rare victories for defendants in China.

By 2013, the issue appeared to have attracted serious political attention. In March that year, Austrade launched a ‘Doing Business in China’ initiative outlining the risk of commercial disputes in China. DFAT released a briefing paper during Gillard’s April visit to China, stating that issues such as corruption and local protectionism in Chinese legal cases ‘where criminal charges arise as a result of business disputes’ were placing ‘considerable strain on the bilateral relationship’.

The majority of Australians in the Chinese legal system are of Chinese birth or descent. In May 2012, then foreign minister Bob Carr revealed that during discussions Chinese officials revealed that China does ‘not recognise dual nationality’. Carr confirmed the implication that Chinese-born Australians are still considered as being Chinese by local authorities, despite the fact they no longer Chinese citizenship. Australian consular officials have been quoted as saying that Chinese-Australians are thus more likely to fall afoul of the Chinese authorities.

Since 2014, several Australians have been arrested in China for serious drugs offences punishable by death, most for attempting to smuggle methamphetamines to Australia from Guangzhou. In April 2015, Bengali Sherrif received a suspended death sentence, while his accomplice Ibrahim Jalloh faces death but is yet to be tried. In May 2015, dual Australia-New Zealand national Peter Gardner went on trial over the largest methamphetamine seizure ever in Guangzhou, and faces possible capital punishment if found guilty. In June 2015, Anthony Bannister was given a suspended death sentence. The Australian government has reissued its travel advice for China to warn of the added risks associated with drugs in China.

In December 2014, Foreign Minister Julie Bishop personally lobbied her Chinese counterpart Wang Yi 王毅 and oversaw a ‘clandestine diplomatic rescue operation’ to release Australian Kalynda Davis from China following her wrongful arrest for drug trafficking when traveling with Gardner.

In 2011, Australia and China finalised a bilateral prisoner exchange treaty, whereby Australians imprisoned in China and Chinese imprisoned in Australia can be sent home to serve out their sentences if both governments consent. In November 2014, Matthew Ng became the first and so far only prisoner to be relocated under the deal, being transferred from a Chinese to an Australian prison.

Links

Arts, Culture and Creative Industries

Australia and the American ‘Pivot to Asia’

Australia and the Asian Infrastructure Investment Bank

Australia and Xi Jinping’s Corruption Crackdown