There was no real reason for the Senate not to have passed the extradition treaty with China if Julie Bishop had put in the groundwork but she didn’t and it resulted in major embarrassment for the Turnbull government and a loss of face for the Chinese.
However, as one senior minister was keen to say “Julie Bishop is like a cockroach, she can survive any disaster.”
The extradition treaty with China was signed by the Howard government in 2007 but the Rudd, Gillard and Abbott governments ran dead on implementing it.
In 2008 the Chinese government entered into an agreement for the repatriation of Australian prisoners which they have honoured but they became more and more irritated by the failure of successive Australian governments to ratify the treaty.
President Xi raised the matter with Tony Abbott when he was Prime Minister and was allegedly told that Australia would ratify the treaty.
Foreign Minister Julie Bishop put forward a bill for ratification to the Joint Standing Committee for Treaties early last year.
Among the submissions was one from the Law Council of Australia calling on the Parliament not to ratify the treaty.
The Law Council argued that the treaty was at odds with the Extradition Act of 1988 and that it provided insufficient protections in relation to the following matters: protections for the right to a fair trial; evidentiary thresholds for determining an extradition request; presumption against bail; absence of time limits for executive decision-making; definition of ‘political offence’; consequences for breaching an undertaking that the death penalty will not be imposed; protections for children; and appropriate monitoring systems.
The Labor minority was persuaded by the Law Council submission and dissented from the majority decision to support ratification.
This should have been a warning to the Foreign Minister that she had work to do both at home and in China.
She should have been working to overcome the problems highlighted by the Law Council by ensuring that the treaty was consistent with the terms of the Extradition Act.
At the same time she should have been explaining to Beijing the challenges of getting legislation through the Australian Parliament.
Instead she waited till the last minute to say anything and, when she did, it was to deliver a lecture to recalcitrants in her own party who were unhappy with the ratification and contemplating crossing the floor.
This group included not only hard core conservatives like Eric Abetz but moderate libertarians like Tim Wilson. As a result the government was confronted by a revolt and had no chance of getting the legislation through the Senate.
The Prime Minister sensibly decided to pull the bill although even that was messy as he hung members of the front bench, including the Deputy Prime Minister, out to dry.
The problem could be fixed by the inclusion of a provision in extradition legislation stating that the treaty is to be read subject to the Extradition Act which has governed extradition matters between Australia and China since 2008.
This will disappoint the Chinese who see the treaty as a de facto recognition that the legal system in China is fair and consistent with the rule of law.
However the preservation of the legal status quo represents Australian legal values and should not be altered.
Subscribe to Inside Canberra