Former Australian High Court Judge Patrick Keane was heckled by protesters outside the venue for a lecture on “Christian inspiration and constitutional insights” at the New South Wales (NSW) Supreme Court on Oct. 22.
The protesters objected to Keane’s acceptance last year of a seat on Hong Kong’s Court of Final Appeal, arguing that the presence of foreign judges lends legitimacy to an institution fatally compromised by Beijing’s influence.
Former NSW Chief Justice James Spigelman stepped down from the Court in 2020, citing his concerns “related to the content of the national security laws.”
Around that time, several senior officials in Hong Kong—including then Chief Executive Carrie Lam—had expressed the opinion that the special administrative region of the People’s Republic of China had no enshrined separation of powers.
An Australian judge has been among those presiding over the Court since 1997. It is the final avenue of appeal in Hong Kong.
When Keane took up the appointment in 2023, he said he believed foreign judges should not “vacate the field” and that “One has to be very careful about declining to do good work because one has an apprehension that one might be asked to do bad work.”
He said the Court had been “successful ... in its role in upholding the rule of law.”
But protesters outside Keane’s speech held banners and a neon sign highlighting the case of 76-year-old Jimmy Lai, a UK citizen who has been behind bars since December 2020 for his part in the 2019 pro-democracy protests.
They were there to “show Australia’s support for Jimmy Lai and other Hong Kong prisoners of conscience,” organiser and lawyer Mark Tarrant explained.
“Hong Kong has become a pariah territory ruled by fear, not by the rule of law.”
Lai is currently being held at a maximum security prison, where he is serving a five-year and nine-month sentence for fraud, and has pleaded not guilty to two charges of conspiring to collude with foreign forces under the national security law—punishable by life imprisonment—and one count of conspiring to publish seditious materials.
He founded the now-defunct pro-democracy newspaper Apple Daily.
In September, international lawyers made an urgent appeal to the U.N. Special Rapporteur on Torture, Alice Edwards, alleging that Lai had been denied access to specialised medical care for diabetes.
The Hong Kong government strongly rejected the legal team’s claims, calling them “unreasonable smears.”
“Any accusation concerning [Jimmy Lai] not receiving appropriate treatment in prisons, including not having access to optimal medical services, cannot be further from the truth and is only spreading rumours to create trouble,” it claimed.
Tarrant pointed out that Keane had sworn his judicial oath of office before the current Chief Executive, John Lee, who has been sanctioned by the United States for his role in implementing what Washington calls a “draconian” national security law when he was Hong Kong’s security secretary.
At the time of the sanctions in 2020, the U.S. Treasury Department said Lee had been involved in the “coercing, arresting, detaining, or imprisoning” of people who had protested against that law.
“The presence of four Australian Judges at the Hong Kong Court of Final Appeal legitimises the oppression in the territory,” Tarrant claimed.
Court ‘Profoundly Compromised’: Judge
The last British judge on the Court of Final Appeal, Jonathan Sumption, recently resigned—along with his colleague Lawrence Collins—and said the rule of law in the city had become “profoundly compromised,” that Hong Kong was “becoming a totalitarian state,” and that local judges were working under an “impossible political environment created by China.“I remained on the [Court] in the hope that the presence of overseas judges would help sustain the rule of law. I fear that this is no longer realistic,” he wrote.
But Keane responded by claiming, “One shouldn’t condemn the system for failing to make the right call before the system has been allowed to work.”
He said he could understand that people who have suffered an adverse decision in court “can feel adverse to the system.”
“Around the world, there are countries who strike the balance in different ways. In Hong Kong, the balance is struck in a particular way,” he added.
Critics have pointed out that Beijing called on Hong Kong’s judiciary to be “patriotic” to the Chinese Communist Party and directly criticised decisions in political cases.
“Do you think it amounts to political pressure when news media in Australia criticise judges who give sentences they deem to be too short?” Keane asked.
There are now half as many overseas judges on the Court of Final Appeal as there were before the national security crackdown began. Just seven judges now remain from an initial complement of 14, and four of those—James Allsop, Bill Gummow, Robert French, and Keane—are Australian.
