research / ACRI Opinion

By Elena Collinson

Note: This article appeared in The China Story, a blog by the Australian Centre on China in the World at the Australian National University, on April 28 2021.

Authoritarian governments have long used national security as a legitimising gloss to paint over their restrictions of freedom of expression and freedom of association. In the People’s Republic of China (PRC), this was initially rooted in the crime of ‘counterrevolution’. Such crime has modernised into ‘endangering national security’.

Article 111 of the country’s criminal code deals with ‘whoever steals, spies into, buys or unlawfully supplies State secrets or intelligence for an organ, organization or individual outside the territory of China’. PRC authorities are now interpreting this in a far-reaching manner to target foreign citizens. The Article is sweeping, almost a carte blanche for unscrupulous application, including for achieving political goals.

The Australian government appears to be aware that it needs to allow for some flexibility in how it responds to individual cases of detention of Australian citizens on national security grounds by foreign governments, eschewing a ‘one-size-fits-all’ approach. Take, for example, the difference in approaches to the cases of Kylie Moore-Gilbert, detained in Iran in September 2018, and Sean Turnell, detained in Myanmar in February 2021. In the former case, Foreign Minister Marise Payne issued a public statement almost two years following detention. In the latter case, a statement was issued a few days after.

Striking a balance between public statements and back channelling is critical, bearing in mind that public denunciation may at times hinder the release of detainees, despite acting as a salve for the domestic conscience.

Former Australian foreign minister Gareth Evans noted in 2019, ‘Quiet diplomacy is always worth trying first up’, but there also needs to be a recognition of when ‘it has clearly run its course’.

It seems that in the cases of Yang Hengjun and Cheng Lei, quiet diplomacy has indeed run its course.

Beijing has been reluctant to give Canberra any information on charges pertaining to the two detained Australian citizens. Foreign Minister Payne told ABC Radio on February 9 that with respect to Cheng Lei, Australia was ‘not privy to [the] evidence’ supporting the charge. She had said in an earlier press conference that Australia was ‘seeking further advice in relation to the charges’.

With respect to Yang Hengjun, the Foreign Minister issued a statement on October 14 last year, asserting that: ‘We have seen no evidence to support [the charge of espionage], noting that ‘our officials…have made repeated requests to the Chinese authorities for an explanation of the charges’. All proceedings have been conducted under a shroud, with limited or no access to legal representation. In addition, there are reports of inhumane treatment.

Australia can exert little bilateral leverage over the PRC on this issue. Closed door negotiations between Canberra and Beijing have been stymied by the suspension of the Australia-China human rights dialogue in 2019, PRC ministers continuing to stonewall Australian ministers, and the PRC’s list of ‘14 grievances’ tying Australia’s hands in terms of compromises it might have otherwise offered — while the list might offer guideposts on how bilateral relations might be smoothed, an Australian compromise will be touted as a ‘win’ by the PRC. Indeed, Prime Minister Scott Morrison has ruled out any concessions, stating, ‘[O]ur democracy is not up for trade and our sovereignty is not up for trade’. As such, the Australian government has tried to balance continuing back channelling with increased public efforts. These public efforts include consolidating more international support, as well as better informing the public about the risks of travelling to the PRC.

On consolidating international support, Australia recently delivered a joint statement with 34 countries against arbitrary detention at the UN Human Rights Council. It also joined 57 countries in endorsing Canada’s ‘Declaration against arbitrary detention in state-to-state relations’, and sent diplomatic representatives to show support for Canadian detainees Michael Spavor and Michael Kovrig during their closed door trials.

On informing the public, in July last year, the Department of Foreign Affairs and Trade updated its Smarttraveller website’s PRC travel advisory, highlighting the fact that ‘China has strict laws on national security…You could break the law without intending to’ and that ‘Authorities have detained foreigners because they’re ‘endangering national security’. Australians may be at risk of arbitrary detention.’

These efforts are a start. They indicate the escalating concern — in Australia and globally — about the PRC’s national security legislation and how it is wielded by Beijing. But more can, and ought to be, done.

The Australian government could mention more frequently 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 — at an all time low — there is little to be lost and more to be gained if the Australian government were to more firmly, clearly and insistently press the cases of their citizens in public. 

Yet the Prime Minister, in a response to a question about Yang Hengjun, told a press conference in October 2020 that, ‘It never assists…in these circumstances for me to offer any real extensive commentary on these issues’. And while the Foreign Minister’s office has issued five statements on Yang Hengjun over a period of more than two years, only one speech by any senior Australian minister has made direct reference to his plight. A more proactive public stance might be useful.

At the least, since the Smarttraveller website is characterised as a ‘strong source and resource for Australians overseas’ by the Foreign Minister, more information should be added to its warning regarding arbitrary detention. This would highlight more clearly the ramifications of the PRC’s national security laws for prospective Australian travellers.

In seeking a balance on how to respond to cases of detained Australian citizens in the PRC, it is becoming clearer that a muted response is not yielding any results. It should be acknowledged that adopting a louder stance in these circumstances is an untraversed, and therefore potentially risky, path for Australia and its detained citizens. But it is an alternative that merits exploration.

Elena Collinson is a senior researcher at the Australia-China Relations Institute, University of Technology Sydney.