What should the Australian Government do about China detaining Australians for national security reasons?
There are currently two Australians detained in China on national security grounds: Yang Hengjun and Cheng Lei. Both of them were arrested for national security reasons by Chinese authorities. How did bilateral friction play into their detention? What message was Beijing trying to send? While the answers to these questions remain somewhat unclear and debated, we asked three observers of Australia-China relations for their thoughts on how the Australian Government should approach such cases.
Melissa Conley Tyler, Asia Institute, University of Melbourne
The Australian government should keep advocating strongly on behalf of detained Australians even though in reality there is little it can do.
Consular cases are among the most challenging for diplomats. This is because there is a mismatch between public expectation and demand and the very limited tools available at the disposal of consular officials. The Department of Foreign Affairs and Trade’s consular charter states clearly that it cannot intervene in another country’s court proceedings or legal matters, and it tries to manage expectations by stating: “We do what we can to ensure Australians arrested or detained overseas are treated fairly under the laws of the country where they were arrested.”
Occasionally there will be a case like Kylie Moore-Gilbert, where Australia’s diplomats pull off a miracle. With China, however, this is less likely because Australia doesn’t have much to offer in the way of a bargaining chip.
China has been accused of using detention of foreign citizens as a political weapon. For example, Canada’s 2018 arrest of Huawei executive Meng Wanzhou appears to have led directly to the arrest of two Canadians in China who were recently put on trial.
The Australian government has warned Australians that if they travel to China they may face arbitrary detention under China’s national security laws. Indeed, Australians in China can be detained and tried by a judicial system that lacks independence and has a staggeringly high conviction rate of 99 per cent.
But that doesn’t mean Australia’s diplomats should stop trying. Particularly where detainees are Chinese-Australian, it is vital that Australia demonstrates that it will be equally strident in demanding fair treatment and trial for all its citizens.
Detained Australian writer Yang Hengjun has said that one taunt in his interrogations was that Australia wouldn’t care about him because he is of Chinese background. Australia has shown this not to be true, through repeated public statements and requests, including from Australia’s Minister for Foreign Affairs and the Prime Minister.
Even if all Australia can do is protest, it should continue to do so. It shows that Australia does not abandon its citizens – and may give China pause the next time.
Han Yang, Former PRC diplomat now residing in Sydney
We don’t know the details of the charges against the two Australians detained in China yet, but it is probably a safe bet that just like the crippling tariffs against Australian wines and barley, China is leveraging the detention as punishment for Australia’s various perceived diplomatic “transgressions”.
With China’s extremely broad national security laws and prevalent self-dealing and corruption in government and business, foreigners can be technically breaking Chinese laws everyday without knowing, and become pawns in China’s escalating strategic chess game with the West.
In the short term, there is not much Australia can do to help the detainees. The power imbalance between the two countries means it is futile for Australia to engage in trade sanctions against China as retaliation. And Australia’s constitutional democracy and independent judicial system won’t allow Canberra to arbitrarily detain Chinese nationals as tit-for-tat counter measures.
But over the long term, perhaps a more strategic approach to maintain our relationship with China could be effective.
First, avoid gratuitous confrontation and megaphone diplomacy with Beijing. Yes, we should always stand up for democratic values and human rights. But as a middle power Australia doesn’t have the political and economic clout to lead the global fight against tyranny and dictatorship. This is not appeasement, but simply an acknowledgement of the reality of dealing with Australia’s largest trading partner. After all, no business can prosper by constantly insulting its best customers.
Second, keep the “China threat” in perspective. China is no Nazi Germany or Soviet Union bent on world domination. The legitimacy of the Chinese Communist regime lies in continued economic growth for the country’s populace. Unlike the Soviets, China’s economy is intricately linked to the global supply chain, consumer demand and financial system. A peaceful coexistence with the West is in China’s strategic interest.
Third, build alliances and seek safety in numbers. Countries such as Canada and Australia whose citizens got caught up in China’s power game should join together and lobby the US and the European Union to form a “united front” in countering China’s hostage diplomacy and economic coercion. The new Biden administration’s public statement that Australia will not be left alone in the field is a welcoming sign in this regard.
Elena Collinson, Australia-China Relations Institute, UTS
Authoritarian governments have long resorted to national security as a legitimising gloss spread thick over restrictions of freedom of expression and association.
There is an emerging trend in which Chinese authorities take increasingly liberal recourse to Article 111 of the country’s criminal code (supplying state secrets) to target foreign citizens. The article seems to be intentionally ill-defined in order to allow for broad application, including to cases that may aid the achievement of political goals.
The Australian government is alive to the fact that it needs to allow for some flexibility in how it responds. It is critical to strike a balance between public statements and back-channelling, bearing in mind that public denunciation may at times hinder work towards the release of detainees despite acting as a salve for the domestic conscience.
But this is not to say that Australia must cleave to ‘quiet diplomacy’ at all costs. With Beijing reluctant to furnish Canberra with any information about charges pertaining to Australian citizens Yang Hengjun and Cheng Lei, and with all proceedings conducted under a shroud and limited or no access to legal representation, it seems that in these matters, quiet diplomacy has run its course.
Working towards consolidating more international support, as well as furnishing the broader public with more information about the risks that travel to China presents may be useful. Australia recently delivered a joint statement with 34 countries against arbitrary detention at the UN Human Rights Council; joined 57 countries in endorsing Canada’s ‘Declaration against arbitrary detention in state-to-state relations’; and showed support to the Canadian detainees, Michael Spavor and Michael Kovrig.
The Australian government could make more frequent its mentions of its detained citizens in major speeches by senior ministers. Canada, for example, has been particularly active in this regard. Surely when relations are where they are – rock bottom – there is little to lose if the Australian government were to insist on pressing the cases of its citizens in its public-facing rhetoric. More information could also be added to Australia’s current Smarttraveller China travel advisory highlighting more clearly the ramifications of China’s national security laws for prospective Australian travellers.