2nd January 2020

Committee Secretary Joint Standing Committee on Foreign Affairs, Defence and Trade PO Box 6021 Parliament House Canberra ACT 2600

Dear Secretary, Australian Magnitsky Act Parliament Inquiry Submission

Please see below my submission for the areas that I would like to address according to the terms of reference of this inquiry.

My submission covers three areas: limitations of the Australian Autonomous Sanction Act that I have concerns; why I think there are advantages to have an Australian version of the Global Magnitsky Act and what I think will make having the Australian Magnitsky Act works effective in addressing human rights issues.

Limitations of current Australian Autonomous Sanction Act (AASA)

My main concern is that AASA is based on compliance with existing UN sanctions and there are limitations that the Act can’t cover and address effectively:

Limitations:

 When a UN Security Council standing member is not embracing democracy and human rights, UN resolution cannot be passed when it is justified because of their veto powers.

 It is very hard to get all the standing members of the UN Security Council to achieve consensus in practice. As a result, only a few regimes are on the sanction list. In the case of China and Russia, although Russia is under Australia’s sanction list, China is not.

 AASA is imposed on countries, not applicable to lower level of governments that act under influence and instructions of a more authoritarian regime, such as the case in Hong Kong relating to police abuse of power, sexual violence against protesters and disproportional use of coercive powers against civilians and protesters who participated in the Anti-ELAB movement.

Undesirable consequences of the rigidity, restrictive sanction impositions and limitations of AASA

 Villain powers and regimes can abuse Australian resources, including funding and non-monetary resources to advance knowledge to reinforce autocracy for abuse of human rights and perverting justice. This is particularly the case in the Australian education and research sectors as revealed by numerous Australian documentaries including Four Corners, 60 minutes plus, Foreign Affairs, etc. exposing China’s malicious influences to dwarf Australia’s own freedom of academy, freedom of speech and freedom of press within the campuses through their so-called PRC students education market while exploiting and abusing Australian funding to gain skills, knowledge and resources to acquire know-how in high techs and other strategic areas of the so-called China made 2025 as part of global domination race.

 In the case of intrusion of human rights and other crimes committed by lower level of governmental abuse of powers against own citizens below national level of governments, they are outside the jurisdiction of the current AASA. Examples include police disproportionate use of coercive power to suppress voices of demand for democracy, human rights and autonomy; sexual abuse against arrested young people and police abuse of power against people in custody by non- state actors and governments and their officers, their direct supervisors and even more senior level of police commanders all the way up to the highest level of Police Commissioner. Where justice cannot be fully and fairly exerted within the societies of eroded governance, the international community can do very little in absence of a more powerful act like the USA Global Magnitsky Act.

 AASA cannot address shadow government over a government through excessive interferences from a higher level of government to a lower level of government, such as the case between China and Hong Kong.

According to latest de-classified documents from the UK National Achieve FCO 40/4174, UK government had concerned about China’s “patriotic” gangsters notion even before 1997. The then Chief Secretary of Hong Kong, Mr. David Hord wrote to the Foreign Ministry about his concern of what the then Minister of Public Security of China, TAO Sijiu recognition of the triad societies in HK as ‘patriotic’ if they could be of political usage by the China Communist Party (CCP) to achieve their agenda. The triad societies would see that they have CCP in their pockets. This in turn would greatly affect the public order in Hong Kong after 1997. TAO met representatives of one of the well known triad societies in HK, Sun Yee On, at Beijing. Triad societies are seen as united front targets and at times when needed, to do the dirty works for Beijing.

During the election campaign of the former Chief Executive of Hong Kong Leung Chun-Ying, he and his election core members were seen secretly meeting triad societies members at the well reported “little peach garden alliance meeting”.

During Leung’s tenure, triad society members were reported to attack HK citizens who participated in the Umbrella Movement in 2014.

The situation of CCP backed up violence attacks against innocent people was first reported at 21st July 2019 mass assaults against civilians at Yuen Long rail station by people wearing white tee- shirts. Police refused to answer emergency calls. They did not turn up until 39 minutes after the attacks broke out. Local area commander made up unconvincing excuse for the police absence as ‘they did not have time to read the time on their watches.’ At the same time, police officers were photographed by media having cosy talks with the white tee men before the attacks broke out. Former legislator Junius Ho was photographed by media having friendly hand-shaking with the white shirt men before the mass attacks occurred at Yuen Long MTR station. So far, neither Mr. Ho nor any police officer was investigated, disciplined or prosecuted. Not even any of the involved police officer at Yuen Long police station or the broader police commanding unit in the New Territory is suspended from duties.

Same incident repeated on 31st August 2019 Prince Edward station. A group of middle age men used hammers to attack passengers on the train but when the anti-riot force arrived at the site, they did nothing about these people while taking the opportunities to join the party to beat anybody inside the train cabins and at the platforms with police batons. Pepper water spray was applied without any discernment. Lot of people were arrested while injured civilians were significantly delayed to receive medical rescue because the police prevented fire fighters and other paramedics to perform any treatment.

Even up to day, the public believed that some people might have perished on that night.

Similar events of gang attacks against people who tried to put posters at numerous districts in HK became regular recurring news headlines but in none of the case, HK government, police and anybody has accepted any responsibility. On the other hand, outrageous pro-establishment celebrities including former legislator Junius Ho and people like him, who are well known to be closely related to the PRC Liaison Office in Hong Kong regularly inflame the notion that ‘rebellious children’ should be beaten up. They picked up the Chief Executive Carrie Lam’s notion that as a mother, she beats her children if they do not listen to her. Appraisal voices from Beijing were heard to back up these kinds of violence through ‘patriotic’ people, including gang members.

Amnesty International published a report detailing 14 instances of excessive use of force by the Hong Kong Police and found that “the use of force by police in the largely peaceful protest that took place on 12 June violated international human rights law and standards.

A report of the 2019 Hong Kong protests written by Patrick Purbrick (note 1), a former senior HK Royal Police force member who served in the Special Branch engaged in counter-terrorism intelligence pointed out the predicament of Hong Kong is that the current Public Security Order Ordinance was left behind by the British colonial period that was largely outdated with more recent legislations in democratic countries in defining riots and illegal assembly. The paramilitary structure of HK police was designed to protect Hong Kong from social unrests stirred up by the leftist extremism spread from China back in the 1960s Cultural Revolution era. The high handed approach taken by the then government to curb the spread of chaos and well planned street violence and bomb attacks that could be tracked back to influences of masterminds from China had gained full support of the majority of Hong Kong citizens.

While Hong Kong citizens do not change about their ultimate fear, resentful and worries of China’s malicious interferences and spill over of their radical leftist ideology to Hong Kong over the decades, ironically the same , the paramilitary structural mode within Hong Kong police that once used to protect Hong Kong are being turned around to be abused by China to suppress citizens’ demands of legitimate promises of democracy, universal suffrage, human rights and autonomy as laid down in the Basic Law. Ironically, the same high-handed approach that had been used to curb against radical communism being spread to Hong Kong has been taken by Beijing to suppress and deprive Hong Kong citizens’ legitimate rights for protest, assembly, having freedom of speech, freedom of press, freedom of education and even basic rights to wear mouth masks on the streets.

Voices to support and even pushing on more harsh approach have been heard on and off from the most senior level of PRC government, echoed by their agents within the pro-Beijing and pro- establishment in Hong Kong. Not only the stipulated promised autonomy in HK is vanishing rapidly, basic human rights as listed above, just a few examples only, are under threats.

The paramilitary set up of HK police by UK to enable them as the former sovereignty of Hong Kong to secure freedom and prosperity against the encroachment of autocracy in Asia and even serving as a well buffer up for East Asia geo-politically has now become the Achilles’ knees. It is a painful agony of predicament for Hong Kong.

Washing Post reported (note 2) that HK police does not need to face any consequence of inappropriate use of power. A review of more than 100 pages of police guidelines and training manuals obtained by the Washington Post details these protocols surrounding use of force. The guidelines, however, are often ignored by police, who have misused chemical agents and used excessive force against protesters not resisting, according to experts in policing who examined dozens of incidents in consultation with Post journalists and in comparison with the police protocols.

A Hong Kong police spokesman said no officer has been suspended from duty in connection with “any incident relating to the protests,” a step taken when an officer is being investigated for serious wrongdoing. No officer has been charged or prosecuted over protest-related actions. A culture of impunity now pervades the force, according to a current and a former officer, emboldening riot police to disregard their training or lie when asked in official reports to justify excessive force. Concerns over a lack of police accountability underpin the sentiments fuelling the unrest — growing fears that Hong Kong’s rule of law is being eroded as Beijing tightens its grip over the territory. Many in the city’s pro-democracy camp view the Hong Kong police as a means for China’s Communist Party to suppress unrest without resorting to direct intervention that could provoke an international response.

The absence of effective check and balances against police abuse of power is caused by the lack of independence of the Independent Police Complains Commission (IPCC) that is made up of a majority of pro-establishment people who are rubber stamping chops of the police force and the absence of statutory power of IPCC to indict police officers, especially very senior level of police leadership. The most noticeable agony can be seen from the recent announcement of resignation of a panel of overseas experts who were hired by the HK government to review the IPCC. The experts mentioned that there are irreconcilable differences and they are very limited given the narrow scope of inquiry they are commissioned.

 China is increasingly using its super power economic and political sabotage as display of sharp power to pressure businesses, including foreign and global businesses in Hong Kong and different countries, including Australia, to bend to CCP’s will. China is using de facto economic sanctions in the name of ‘China markets’ to force individuals and businesses to silent, bend to say or not to say, act or not to act in certain manners that fit China’s interests globally.

Australia is not immune from CCP’s aggression even back on our own soil. The self-censorship imposed by Professor Clive Hamilton’s book about China was not the only case. Australia’s schools and universities are not willing to offend CCP under their constant threats and intimidation of ‘boycotts’.

CCP is well aware of manipulating the consumption power to impose de facto sanctions on anyone, any entity and any country. The problem is the world is too slow and ineffective to combat this kind of indirect sanctions from Beijing.

If China is not hesitate to use the so-called ‘big China markets’ or ‘big consumption power’ as de facto sanction tools against other countries, including Australia, it will be extremely unfair and unreasonable and not in the interests of Australia that there is no comparative law to counteract China. Bear in mind the fact that Australia is not a super power; it is not practically that Australia can impose vis-à-vis trade or economic sanctions directly. But what else can we do? At least the existence of our own Magnitsky Act can give another tool in the box. This is exactly what makes other countries, such as the Baltic countries, Canada and other European countries that are also facing similar threats from aggressive super power have in place.

 According to a published submission made by the Queensland Law Society to the Sanctions and Transnational Crime Section Department of Foreign Affairs and Trade on 18th October 2011 (note 3), they pointed out that clause 12 requires the sanction person or entity must an Australian citizen or an Australian body corporate or an Australian ship or aircraft to transport sanctioned goods and supplies. I concur with this point because in reality many people engaged in violations of sanctions, whether in Australia or overseas, are not necessarily Australian citizens nor an Australian body corporate nor using Australian ship or aircrafts. Australia is not a popular place of registration of ships compare to some other jurisdictions. Australian citizens do not include non- naturalised citizens if they are not born in Australia. Those who have rights of Australia permanent residency may not be included. The combined consequences are that the net of the existing ASAS is not being thrown in the right areas of the sea where most fishes can be caught.

 In the same submission, the Queensland Law Society also pointed out that the current definition of immediate family is too narrow. I agree with this because AASA does not embrace children born out of wed-locks and other relatives who are not immediate family or people closely associated with or controlled by the sanctioned person. According to previous exposed cases, reported cases and indicted cases involving China’s illegal activities in both China and other countries, it is not uncommon that crime was conducted through CCP cadres’ mistresses or secret lovers and their children born out of the wed-locks disguised in names that cover up the traces of the parents. It is also not uncommon to find relatives or other closely related and trusted people serving as agents of the sanctioned people.

 There had been news and other concerns raised in the past regarding whether Australia’s real estate and property development sectors are targets of mega scale of money and properties changing hands. Similar phenomenon is observed in other Western cities where Chinese investments in the property markets are popular. Under Beijing’s tightening up of capital control and corruption purge within CCP, red aristocrats and their vested interests who are likely targets of CCP’s investigations are desperate to seek places to keep money and assets. These illicit transactions are often relating to possible abuse of human rights in China or exhorted money from other crimes. For example, income from illegal organs harvesting, crimes covered up and colluded by various government departments in China, forcing prisoners and politically persecuted minority ethnic races as slave workers, etc.

 AASA cannot address China using trades and investments in Australia as political sabotage and threatening tool to force Australia to act or not act, voice out or not voice out in certain matters that China sees as favouring or hinting her own interests.

 AASA cannot prevent China may turn their economic investment assets or projects in Australia as potential military usages that may threaten the national security interests of Australia, in particularly if such investments are hold through non-state and non-government third parties. Cases like the $1 ‘lease’ of the Western Australia Merredin Airport and the 99 years “lease” of Port Darwin are not invalid worrying concerns. China seems trying to exploit the autonomous of state governments to take over Australia on piecemeal basis like Mao Ze Dong took over the Mainland from the outskirt provinces as a start back in 1930s to 1940s, as pointed out by Professor Clive Hamilton, who in turn is a victim of China inflicted self-censorship in Australia.

In the case of HK, the situation is even more precarious because China can abuse the recently ratified Free Trade Agreement with Hong Kong and the latter’s special relationship with the US and the West as windows to by-pass UN and US sanctions and restrictions in acquiring dual usage technologies and other restricted and prohibited technologies and know-how and then pass back to China.

Advantages of having an Australian version of Global Magnitsky Act

Therefore, a more powerful Act, such as the Australian chapter of the Global Magnitsky Act is needed to address the above issues. As International lawyer Geoffrey Robertson argues, “Magnitsky laws are national laws that allow a government to apply targeted sanctions on any individual involved in human rights violations, from senior officials to low-level officers, from judges to policemen and even non- government actors such as CEOs and contractors. They take the form of asset freezes for funds held in banks and other financial institutions, as well as bans on visas for entering the country.” In addition to making these violators international pariahs and preventing them from enjoying their ill-gotten gains and status in the West, the threat of Magnitsky sanctions can be a significant deterrent to those who may be contemplating conduct that is corrupt or in violation of international human rights norms. (Australian Quarterly Oct-Dec 2018).

In my view, the main advantage of having the Australian Magnitsky Act is it targets individuals rather than the needs to target the whole regime or the whole city. This can avoid the UN obstruction by strong villain powers and to put many innocent citizens who are not part of the perpetuators of abuse of human rights and by-passing UN sanction being unnecessarily and unfair harm in the process of punishment. What really makes Australian Magnitsky Act works effectively?

 Countries refuse or reluctant to face China’s aggressions seriously and effectively because of lack of political will as politicians put trade and economics far in disproportionate priority over aggressive malicious foreign influences at home while doing very little against the authoritarian and autocratic governments to suppress and persecute their own citizens overseas. History teaches us that unless a foreign bully is combated and curbed by suitable measures and policies, the bully will continue and become more aggressive over time.  For those countries that are constantly facing potential aggressive influences and advancements from autocratic adversaries, such as the Baltic countries, US and Canada, they see the values of having their own correspondent versions of the Magnitsky Act in place. Australia should adopt the international practices to strengthen the global alliance.  Trades should not be built on political cowardice for scarifying our core values of honouring democracy and human rights. Sustainable prosperity should be built upon Australia’ deviant determination to defend a benign free world of democracy, freedom and virtuous capitalism not being manipulated, misused and abused by hostile authoritarian powers.  History also teaches us that it was courage, determination and persistence for the pursuance of democracy, freedom, autonomy and human rights that laid down a firm foundation for thriving of economy.  Australia does not only need an Australian version of the Global Magnitsky Act, our government is better to act upon the Act jointly with allies who share same core values of democracy and honouring of human rights.

Note 1: Asian Affairs (2019) Vol 50 issue 4 https://www.tandfonline.com/doi/full/10.1080/03068374.2019.1672397

Note 2: Hong Kong leaked police manual https://www.washingtonpost.com/graphics/2019/world/hong-kong-protests-excessive-force/

Note 3: 18 October 2011 Sanctions and Transnational Crime section https://www.qls.com.au › 2428 autonomous sanctions regulations 2011

Yours sincerely