Submission to the AUKUS Public Inquiry – Australia’s diplomatic relations

Submission to the AUKUS Public Inquiry – Australia’s diplomatic relations – John Leslie Lander

The strategic rationale for AUKUS is founded on the patently false premise that China presents a kinetic threat to Australia.

I am making this submission of the basis of long-term professional involvement in
diplomatic relations with China…….China is likely to become an enemy only if Australia insists on making it one.

In 1971-72 I was actively engaged in the process of establishing diplomatic
relations with the Peoples Republic of China and dismantling diplomatic relations
with the Republic of China. I was Deputy Ambassador to China 1974-76 and
subsequently Head of the China Section of DFAT on three separate occasions over
the course of thirty years. In that capacity, I was personally responsible for
negotiating the arrangements for the establishment of Consular Relations with
China. After retirement from DFAT, I have been a frequent visitor to China,
especially since 2001.

Dubious Rationale of AUKUS

The strategic rationale for AUKUS is founded on the patently false premise that
China presents a kinetic threat to Australia. Across the millennia of its history,
China has not invaded any other country, and certainly not since WW2, although it
was itself invaded by Imperial Japan, whose attempt to invade Australia was, to a
significant extent, thwarted by Australia’s ally – China. At no time in the past 80
years has China ever evinced the slightest inclination to attack Australia, let alone
expressed a policy of hostility towards Australia. It has consistently expressed a
policy of encouraging mutually beneficial relations, even during the brief period of
so-called “economic coercion”, where China was quite clearly reacting to the overt
hostility expressed by the Morrison government.

China is only likely to become an enemy if Australia insists on making it one. The
current Australian attitude of antipathy includes frequent actions of antagonism
towards China, (e.g. military incursions into China’s sovereign territory of the
province of Taiwan, which Australia is legally bound to observe as One China).
These stem especially from AUKUS and other aspects of US militarisation of
Australia, and push inexorably towards war.

The economic growth of China, where it now equals the US in terms of Purchasing
Power Parity, and China’s concomitant growth in military strength, to counter the
threat from the US military bases and naval forces ranged against it, have often
been cited as indicators of the potential threat from China.

Part of the rationale for AUKUS is the requirement to protect Australia’s sea lanes
from possible interdiction by China, ignoring the fact that China has an existential interest in keeping those same sea lanes open, because it is the largest trading
partner of the vast majority of the world. The only country poised to blockade
them is the US. Australia’s prosperity depends on trade, a full third of which is with
China and most of it carried on Chinese ships. To argue that AUKUS is necessary
for war against China in order to keep open Australia’s trade with China is
paradoxical and schizophrenic.

The US antagonism towards China is based on the US desire for global supremacy,
which is evidently being undermined by China’s growing ability to provide an
alternative source of finance and economic development to the Global Majority,
who lie outside the small group of Western countries. The US has made no secret
of its intention to embroil China in a debilitating war conducted by the US proxy
network of Japan, South Korea, Taiwan, the Philippines and Australia, in order to
derail China’s economic growth and impede its ability to cooperate with the
countries of the Global Majority.

Far from seeking to undermine a genuine rules based international order, China
has constantly reiterated its policy of promoting reform and strengthening of the
United Nations system to make it more effective and fairer to all member States. AUKUS forms a
key part of Australia’s increasingly futile attempt to uphold the US version of the
international rules based order, designed by and for the benefit of the US and its
Western allies. This is an order whose rules are frequently flouted by the US and
Australia, whenever they might hamper the pursuit of US geopolitical ambitions.

China’s policy towards Australia has consistently been one of amity. Even if
nefarious intentions are attributed to China, going to war against it is
counter-productive, in terms of preserving Australia’s security. Countless
simulations by the Rand corporation of a US/China war have without exception
demonstrated that the US would lose. Australia, even if part of the network of
proxies, would have even less chance of emerging intact from war against China.

Any pragmatic assessment of the respective military capabilities of Australia and
China would demonstrate that China is immensely more powerful than Australia,
which will never be able to match it. Given the time-frame in which the US insists
the war against China is to occur, Australia would have already been devastated
long before the delivery of the putative benefits of AUKUS.

The only guarantee of security for a small nation like Australia is the nurturing of
mutually beneficial relations with China and the countries in Australia’s region, all
of whom have engaged in economic development projects with China and none of
whom share Australia’s antipathy towards China. AUKUS makes Australia’s
neighbours very nervous about its intentions and isolates it from the region which espouses constructive relations with China.

Legal/Constitutional Dubiety of AUKUS

The system of governance in Australia, under the Constitution, requires the
Executive to work through the Parliament, not independently of it. International
Treaties – and Agreements having the force of treaty – require ratification by
Parliament in order to have effect in Australian domestic law. The legal question is
not whether the Agreement exists as an international instrument. The real
question is whether the Australian government has valid domestic legal authority
for the specific acts required to give effect to it inside Australia.

The executive power of the Commonwealth under Section 61 of the Constitution,
does not extend to granting any foreign nation operational control of Australian
defence or intelligence facilities, or territory, or to committing Commonwealth
expenditure in connection with such arrangements, without statutory authority
conferred by the Parliament.

The government may argue that the executive has inherent power to spend
without a specific Act of Parliament, since Parliament had appropriated funding in
the budget. The High Court, in Williams v. Commonwealth (2012)248 CLR 156,
disagreed unanimously with this view. Appropriation alone does not authorise the
executive to spend on whatever it likes. For significant executive acts with real
domestic legal consequences, there must be a lawful source of authority.

That principle applies directly to AUKUS, which is adjunct to the even more
egregious Force Posture Agreement with the US, which also runs counter to the
principle established by the High Court. Committing billions in expenditure;
granting operational control of Australian facilities to a foreign military force (e.g.
Stirling Naval Base); authorising construction works; permitting prepositioning of
foreign materiel within Australian territory: all of these are acts with significant
domestic legal consequences. For each, the Commonwealth must identify a valid
legal source of authority.

The central and unanswered problem is that no one has identified that statute. The
Defence Act 1903 does not expressly authorise the grant of operational control to
a foreign military force. Neither does any other Commonwealth law. This is a real
gap in the law which the Commonwealth would have to answer if challenged in the
High Court.

Three Constitutional Questions

The constitutional case focuses on three questions that must each be answered.

First: does the executive have authority to commit Australian bases and resources
in domestic law? Signing an international agreement does not automatically
produce domestic legal consequences. The operational control, the prepositioning
rights, and the expenditure obligations all require a domestic legal foundation. No
treaty can shortcut that requirement.

Second: can the defence power fill the gap? The Commonwealth may argue that
section 51(vi) of the Constitution supports the arrangements. That argument must
be taken seriously. But while the defence power is a legislative power, which
empowers Parliament to make laws about defence, it does not automatically
authorise ministers to act without legislative backing. If specific infrastructure
works, access arrangements, and expenditure decisions are to rest on the defence
power, there must still be a valid legal pathway, a statute or regulation that
properly authorises each particular act.

Third: if neither executive power nor the defence power supplies the necessary
authority, are the implementation measures vulnerable? Under Williams v.
Commonwealth, yes. Executive spending and domestic legal commitments cannot
rest on appropriation and ministerial preference alone.

A successful High Court challenge by a Parliament unwilling to authorise in public
what has been done without its knowledge, would affirm the principle of
responsible government, by ensuring that agreements of strategic and
constitutional significance are subject to prior Parliamentary approval and public
scrutiny. It would be a major reassertion of an independent Australian foreign
policy. It would no longer mortgage Australian treasure, Australian territory and
Australian lives to American strategic preferences without the Australian people
ever having been asked.

The constitutional challenge to AUKUS is not anti-American. It is pro-Australian. It
is a demand that decisions of this magnitude be made by the Parliament of
Australia, in public, with accountability to the people who would bear the
consequences.