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George Washington University Law School

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Sunday, March 21, 2010

Why is Australia stonewalling on the Stern Hu case?

I remain baffled by the attitude of the Australian government in the Stern Hu case. Not only has it failed to press for its right to attend all of the trial proceedings, but it has parroted the Chinese government’s line about the legal basis for exclusion and, again taking a leaf from the Chinese government’s book, refused to explain (a) just what laws and regulations it believes allow exclusion, or (b) just who requested it. As I said in an earlier post, I realize these things are complicated, that it's all too easy to kibitz from outside, and that there may be things going on behind the scenes that I don't know about. Still, it does look awfully odd on the surface, and something needs to be explained. If there are any Australian parliament members reading this, could you ask Kevin Rudd about this at question time?

A March 18th press release from the Department of Foreign Affairs and Trade said, “At the request of one of the parties and in accordance with Chinese law and procedure, the Court has decided that the sessions dealing with the infringement of commercial secrets should be closed.”  It added, “Australian officials have asked for this to be reconsidered.”  The next day, another press release said, “The trial is taking place in accordance with Chinese legal processes. Chinese law provides for closed hearings in such cases and the court has decided accordingly.”

In e-mail correspondence with John Garnaut, correspondent for the Sydney Morning Herald, I expressed puzzlement over the following points and hoped he could seek clarification from DFAT:
1. Which party requested that the trial be closed?

2. DFAT seems to be expressing its own opinion that closing the trial is indeed in accordance with Chinese law and procedure. Is this correct? Which laws and procedures is DFAT referring to?
DFAT responded that the request came from “one of the commercial parties on the Chinese side,” but continued to maintain blandly that it was all “in accordance with Chinese law and procedure,” declining to respond to Garnaut’s request to identify which law and procedure it had in mind.

Garnaut asked for more clarification: because this is a criminal prosecution, there would not appear to be any “commercial parties on the Chinese side.” He also repeated his request that DFAT identify which Chinese laws and procedures it believed justified closing the trial. DFAT refused to go any further, offering only this utterly non-responsive response: “The Court decided that the sessions dealing with the infringement of commercial secrets should be closed.”

I just cannot figure out why the Australian government should line up so closely with the Chinese government not only on the substance of the legal analysis, but also in its refusal to explain how it arrived at its conclusions. One expects this only of a government that has something to hide. Has there been some secret deal whereby the Australians promised not to challenge their exclusion in exchange for some trial result? I’m not sure this sets a very good precedent. In exchange for accepting a disadvantageous (and implausible) interpretation of its rights under the agreement on consular relations, what is Australia getting and what did China give up? And if there’s no deal, why is Australia stonewalling and not making a fuss?

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