Former High Court chief justice Robert French has defended Australian judges on Hong Kong’s highest court who are facing pressure to reconsider their position because of China’s erosion of the rule of law.

Four Australians, including Justice French, still hold part-time commissions on the territory’s Court of Final Appeal despite a string of resignations by foreign judges and Hong Kong’s offer of rewards for the arrest of Australians.

Justice French, who has been part of the Hong Kong court since 2017, recently had his commission extended and pointed to the court’s beneficial work in defending judicial independence.
“As previously stated, I support the judges of the Court of Final Appeal in their commitment to maintaining judicial independence,” he told The Australian.

However, his remarks are at odds with the assessment of Melbourne-based lawyer Kevin Yam who has been targeted under China’s national security law that purports to have extraterritorial reach.

He said any beneficial effect of having Australian judges on the territory’s highest court was being neutralised by the growing authoritarianism of the territory’s government.

“What these judges need to remember is that they are not just lending their personal reputations; they are lending Australia’s reputation to the Hong Kong system,” Mr Yam said.

“What good can they do when the rest of the legal system [in Hong Kong] is becoming increasingly rotten?” he said.

Hong Kong police have put a bounty of $HK1m ($191,800) each on Mr Yam and seven other democracy activists, including Adelaide-based Ted Hui, a former Hong Kong politician.

While announcing the bounties on July 3, Hong Kong’s police chief superintendent Steven Li said the territory’s police “won’t stop chasing them”.

Four retired judges of the High Court currently serve as nonresident judges of the Court of Final Appeal: Justices French, Murray Gleeson, William Gummow and Patrick Keane.

In January, after Justice Keane joined the court, a spokesman for the Department of Foreign Affairs and Trade said retired Australian judges serving on Hong Kong courts did so in their private capacity.

Mr Yam said he had been surprised by Justice French’s decision in May to accept a three-year extension to his appointment.

He said that in 2008, before Justice French was elevated from the Federal Court to the High Court, he wrote an article for The Australian explaining why a coup in Fiji meant he would not accept reappointment as a part-time judge of that country’s Supreme Court.

“His point in that article was essentially that if you were already appointed, then you served out your term but you did not accept reappointment and did not accept a new appointment,” Mr Yam said.

However Justice French told The Australian the situation in Hong Kong was very different to the situation in Fiji.

“The Australian judges were prepared to serve out their commissions conferred by the pre-coup Quarase government,” he said.

“They were not prepared to accept new purported commissions from an unconstitutional military government established by Banimarama.”

The decision of the four Australians to remain on the Hong Kong court is at odds with the position of James Spigelman, a former Chief Justice of NSW, who resigned from that court on September 2, 2020, after the introduction of the national security law.

One day before his resignation, Carrie Lam, who was then Hong Kong’s chief executive, had said: “There is no separation of powers in Hong Kong … Our executive, legislative and judicial arms of government aren’t separate as they would be … in a constitutional political system.”

In March last year, after two serving British judges resigned from the court, the three Australians who were then on the court issued a statement saying they intended to remain on the bench because of its commitment to judicial independence.

“We do not intend to resign and we support the judges of the Court of Final Appeal in their commitment to judicial independence,” said Justices French, Gleeson and Gummow.

Retired Canadian Chief Justice Beverley McLachlin, also said at the time that she intended to remain on the court.

She told Canada’s Globe and Mail newspaper: “The court is operating as an independent, judicial branch of government – perhaps the last surviving strong institution of democracy.”

My Yam’s concern about the continued tenure of the Australian judges comes as Australian Lawyers for Human Rights said Chinese laws were not consistent with the rule of law.

“Australian judges can make significant (private) contributions to the legal system of Hong Kong but ALHR is concerned that the People’s Republic of China does not make laws consistent with, and does not govern under, the rule of law,” said Nicholas Stewart, vice-president of ALHR.

“ALHR encourages all legal practitioners working in Hong Kong, or seeking to work in Hong Kong, to consider how their work and lives might be impacted by China’s authoritarian regime and laws.

“Laws such as the National Security Law erase citizens’ human rights,” Mr Stewart said.

However one of those close to the Hong Kong court said it was unlikely that nonresident foreign judges would be asked to rule on cases involving the national security law.

Unlike the four retired Australian judges, the British judges who left the court last year, Lord Robert Reed and Lord Patrick Hodge, were both serving judges in Britain.

Liz Truss, who was Britain’s foreign secretary at the time of the resignations, said it was no longer tenable for serving British judges to remain on the Court of Final Appeal as it would risk “legitimising oppression”.

“We have seen a systemic erosion of liberty and democracy in Hong Kong. Since the National Security Law was imposed, authorities have cracked down on free speech, the free press and free association,” Ms Truss said.

“The situation has reached a tipping point where it is no longer tenable for British judges to sit on Hong Kong’s leading court, and would risk legitimising oppression,” she said.

Mr Yam said those who believed the presence of foreign judges still had a beneficial effect needed to consider how the authorities in Hong Kong had taken steps to reduce the impact of court rulings in favour of dissidents.

In Hong Kong, Mr Yam worked as a financial services lawyer and is now a nonresident senior fellow at Georgetown University’s Centre for Asian Law in the US.

He said Hong Kong authorities were using the extraterritorial reach of the National Security Law to target him over his activities since returning from Hong Kong last year.

He had spoken to foreign minister Penny Wong and had given testimony to a United States Congressional commission on China.