The dangerous sonar pulsing by a Chinese naval vessel close to HMAS Toowoomba exercising (pictured) in international waters off Japan that injured some Navy divers this month tells us quite a bit about both Australia and China.
The incident happened seven days after Prime Minister Anthony Albanese ended his official visit to China during which relations were supposed to improve.
It highlights one of the difficulties for autocracies. The difficulty is not that dictators do not get their way whenever a new policy is decided upon, but the time lag between the change in policy and the ability to put it into effect.
This is because underlings do not do what the autocrat wants now, but what they think the autocrat wants now. For a long time, the official message was that Australia was a US lackey and should be treated badly by China and its military. Its imports into China were to be blocked for trumped-up reasons. Its naval ships and military aircraft were to be buzzed and harassed.
All of this, off course, is contrary to the rule of law. China is a member of the International Maritime Organisation which administers the Convention on the International Regulations for Preventing Collisions at Sea (COLREGs). The sonar incident was a breach of that treaty and those regulations.
In Australia, the COLREGs are part of domestic law. If anyone did that on an Australian ship in international waters or if anyone did it on any ship in Australian waters, they would be committing a criminal offence and would also be liable to pay civil damages to the injured parties.
In the impossibly unlikely event that an Australian naval officer went haywire and ordered sonar pulsing dangerously near divers, the sonar operator would be entitled to refuse. Following orders is not an excuse. Moreover, Australian authorities pursue criminal conduct by any of its military personnel.
The difference is that not following illegal orders gets you into trouble in China; whereas following them gets you into trouble in Australia.
But the sonar event would have discombobulated (but not embarrassed) Chinese Government because China is now desperate to join the Trans-Pacific Partnership. The trouble for China, however, is that a condition of joining the TPP is respect for the rule of law.
China’s respect for the law of the sea is minimal. Its ships fish in other nation’s economic zones; it claims vast tracts of the South China Sea after illegally creating islands from atolls; it harasses foreign ships in international waters; and it disregards rulings of the World Trade Organisation and the International Court.
The trouble is that international law requires nations to agree to submit to it before there can be any enforcement.
But the Chinese Government does not get embarrassed for the simple reason it controls the flow of information so there is nothing to be embarrassed about.
An Australian Government, on the other hand, fortunately has to contend with a free media. It might do its best to cover up for as long as possible its own malfeasance – robodebt, sports rorts, roads and carparks to nowhere etc – but usually the truth will out.
So, after a few days (in which to inform the relatives of the injured) Defence Minister Richard Marles had to issue a statement condemning the attack.
Hawks might say: “That will teach you for cuddling up to China.” The more nuanced would argue that Albanese has steered a sensible course – easing tension without being a China apologist and always maintaining that we have different systems without being unnecessarily insulting.
Too right, we have two systems. China is a dangerous, unpredictable autocracy, but one which we have to deal with in a way that permits trade and prevents war. On the other hand, Australia is a relatively predictable rule-of-law, separation-of-powers democracy.
And now to join up a couple of seemingly disparate events, but in the opposite way from that done by Opposition Leader Peter Dutton. Dutton linked China, refugees and Gaza in an attempt to portray Albanese and his government as “weak”.
But yelling at China in a way that jeopardises trade and pushes China into an ever more threatening stance on Taiwan is not being “strong”; it is being stupid.
Suggesting we should lock up the refugees that the High Court held were being illegally detained is not “tough”; it is spineless “law-and-order” opportunism directly contrary to the real meaning of the rule of law. The law applies to all, including those in Government.
The rule of law means a separation of powers. The legislature enacts laws which must apply equally to all; the executive administers those laws according to law and subject to the judicial power. The courts and judiciary ensure the law is applied according to law against people who transgress it or do not apply it.
Imprisonment of individuals is quintessentially a judicial power beyond the executive and legislative powers. Upholding the High Court’s decision not to permit the indefinite imprisonment of people who have convictions but have served their time is not weakness but strength. Using legislative power to impose bracelet visa requirements is a sensible within-power measure.
Upholding the impartial application of the rule of law is essential if we are not to fall into the abyss of populist, lawless autocracy. That is the true threat to our security, our prosperity and way of life.
And threat it is, as one of the world’s great democracies is finding out with Donald Trump heading for the nomination and the presidency saying, “We pledge to you that we will root out the communists, Marxists, fascists and the radical-left thugs that live like vermin within the confines of our country that lie and steal and cheat on elections.”
Remind you of anyone?
This article first appeared in The Canberra Times and other Australian media on 21 November 2023.