Don’t get caught in the middle when great powers collide

Beijing: It is the hypothetical question that hangs like a cloud over Australians in China in these uncertain times of US-Sino trade wars, as middle powers get caught in the middle.

Huawei chief financial officer Meng Wanzhou arrives at a parole office in Canada.Credit:AP

What if Huawei executive heiress Meng Wanzhou had been transiting through an Australian airport, instead of Canada, when the United States issued her arrest warrant?

Former solicitor-general of Australia, Gavan Griffith, says the Canadian situation could happen in Australia.

Griffith, a Queens Counsel who works from London on international disputes, and was Australia's solicitor-general for 14 years, says if the United States made a proper extradition request, "Australia would be required to detain".

But Meng could then seek to have the extradition stopped if she could prove it was politically based.

Huawei is one of China’s most successful companies that operates globally but it is under increasing scrutiny.Credit:AP

US President Donald Trump tweeted in December that he might intervene to free Meng if he could get a better trade deal with China, prompting the Trudeau Government to warn the US not to "politicise the extradition process".

Both Canada and Australia's extradition treaties provide grounds to reject an extradition if it is sought for political reasons.

"The political exception could be contested and decided in Australian courts. Meanwhile, the person is subject to detention without bail," said Griffith of the Australian hypothetical.

In Canada, Meng is on bail, living in a luxury home, in a case that could take years to resolve.



In the fallout of Meng's arrest by Canadian police, there has been a bitter collapse in relations between China and Canada, with two Canadian men detained in China as apparent retaliation, and last week the Canadian ambassador to China John McCallum was sacked.

Chen Hong, director of the Australian Studies Centre at East China Normal University in Shanghai, separately pondered the Australian airport hypothetical in an article for the Australian Institute of International Affairs journal.

He said Canada and Australia are both members of the Five Eyes intelligence network, and it was "very likely" Australian police would have arrested Meng, which would "have been disastrous to the already rickety bilateral relations".

After the US extradition order for Meng was formally lodged on Monday with the Canadian justice department, China accused the Trudeau Government of being the "cat's paw" of Washington.

Beijing also attacked Washington for having "deep political intentions" in seeking to strangle Chinese technology companies.

This Chinese government line could also prove useful for Meng's defence. One of Meng's legal team in Canada, Gary Botting,  told media that Canada can refuse an extradition if it "seems to be a political agenda of a grander nature".

Another reason to reject extradition in both the Canadian and Australian treaties is the absence of "double criminality" – the crime a suspect is accused of must be also be a crime in the country from which they are being extradited.

Botting said: "The alleged breach of US sanctions against Iran are not breaches of Canadian law".

Like Canada, an extradition from Australia would ultimately be decided by the justice minister.

In 2007, Australia set a worldwide precedent by becoming the first country to approve the extradition of someone to the United States for intellectual property crime.

Hew Griffiths, an unemployed Briton who lived in coastal NSW, spent years in jail unsuccessfully appealing his extradition to the US to face a Grand Jury for software piracy, after illegally downloading film and music.

Then justice minister Chris Ellison approved the extradition after Washington complained that US companies had lost $60 million in revenue because of the illegal downloads.

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