It’s unprecedented for Dutton to label a Chinese spy ship sailing outside Australia’s territory an ‘act of aggression’

The defence minister, Peter Dutton, has called the presence of a Chinese spy ship off the coast of Western Australia “an aggressive act” but his department was far more sober in its assessment and international law experts have poured cold water on the claim.

It is not the first time such Chinese vessels have been in Australia’s exclusive economic zone. So, given we are a week out from an election and the Coalition wants the narrative refocused through a “we live in uncertain times” lens, let’s put the politics aside and step through the facts.

The first thing to say is that the Australian Defence Force and border force are doing their jobs. They, rightly, are monitoring the approaches to Australia and detected a People’s Liberation Army-Navy (PLA-N) ship called Haiwangxing operating off the north-west shelf of Australia a week ago. So far, this ship has had five “interactions” with Australian P-8A Poseidon surveillance aircraft, three with Dash 8 aircraft and one with a patrol boat.

This Chinese intelligence collection vessel crossed Australia’s exclusive economic zone (not our territorial sea) on the morning of 6 May, a map released by Defence shows. The ship travelled south and passed Exmouth on 8 May before turning around on 10 May and heading north again.

Defence says the ship’s closest point of approach to Harold E Holt Communication Station was about 50 nautical miles (93km) on Wednesday morning. It has been heading north-east since then and was 250 nautical miles (463km) north-west of Broome on Friday morning. Defence speculates the ship could be off Darwin (don’t mention the war over the port’s 99-year lease) by Sunday if it continues its current route.

But what about the politics? In a press conference in Perth, Dutton on Friday said it was “very strange” and “unprecedented” that the ship had sailed so far south off the WA coast. He argued it was “hugging the coastline as it goes north and its intention will be to collect as much electronic intelligence as it can”.

Dutton said the ship had been “in close proximity to military and intelligence installations on the west coast of Australia”. (This welcome transparency of course comes from a government that brought us a blanket of secrecy about “on-water matters” when discussing asylum-seeker boats.)

Dutton said Australians “deserve to know what is taking place” and said the public understood “the reality of the Indo-Pacific at the moment, the acts of aggression from the Chinese leadership and from the Chinese government”.

When asked whether he would characterise this spy ship’s presence as an act of aggression, Dutton said: “I think it is an aggressive act – and I think particularly because it has come so far south.”

He pivoted to a partisan election campaign message when asked about recent criticism from the Labor WA premier, Mark McGowan.

Dutton implored any voters concerned about national security or “the situation in the Indo-Pacific” to take the “much safer bet” of Scott Morrison as prime minister and him as defence minister. He said the Australian government was right to speak up “where we see acts of aggression in our own region”.

Given we are in caretaker mode, an obvious question is: was the federal opposition fully briefed?

It is understood Labor was given a heads-up on the general nature of the announcement shortly before the press conference. Dutton and the shadow defence minister, Brendan O’Connor, then had a preliminary conversation about the warship after the press conference.

O’Connor later issued a statement saying Labor “shares concerns” about the vessel’s surveillance operations off Australia’s west coast and he had “sought a more comprehensive briefing”.

A second question is whether Dutton was correct to label the ship’s presence an aggressive act.

His department didn’t contradict him but, in a statement issued shortly after his press conference, it vowed to “continue to monitor” the situation and had a noticeably different tone about the ship’s presence off the WA coast.

“Australia respects the right of all states to exercise freedom of navigation and overflight in international waters and airspace, just as we expect others to respect our right to do the same,” the defence department said in a statement that would have been cleared by Dutton’s office. The message underlying this comment was: Australia has freedom of navigation in the South China Sea, too.

Morrison in November 2021 was asked about a Chinese naval vessel in Australia’s exclusive economic zone. There was no talk of “aggressive” acts then.

“They have every right to be there under international maritime law, just like we have every right to be in the South China Sea,” Morrison said at the time.

It was a similar response in July 2021 when a Chinese surveillance ship was heading towards Queensland in an apparent attempt to monitor a joint military exercise with the US.

“We don’t raise any issue about that,” Morrison said. “Of course we watch them. We’re aware of that. And they’re watching us.”

On Friday afternoon, possibly playing “good cop” to Dutton’s “bad cop”, Morrison didn’t specifically repeat the defence minister’s framing. The prime minister simply said that when taken “together with the many other coercive acts and the many statements that have been made attacking Australia’s national interests”, the ship’s presence was not “an act of bridge-building or friendship”.

Experts point out Australia’s territorial sea extends just 12 nautical miles (22km) from the coastline. In the exclusive economic zone, which stretches out to 200 nautical miles (370km), Australia has rights to regulate fishing. Countries have freedom of navigation and overflight in the EEZ – they just can’t start exploiting resources or fisheries.

Donald Rothwell, a professor of international law at the Australian National University, said that based on the information to hand, it appeared “that at all times the ship was within Australia’s exclusive economic zone and was acting lawfully under international law”.

Rothwell said the ship’s presence appeared to “represent a pattern whereby the PLA-N is seeking to test Australia’s resolve in respecting the freedom of navigation, which has in recent years also been contested by Australian actions and diplomatic statements vis-a-vis China and the South China Sea”.

“This is not an act of aggression and is in fact fairly standard activity for navies to collect intelligence and undertake surveillance within the exclusive economic zone of other countries,” he said.

“The US Navy does it regularly in the South China Sea including the Chinese exclusive economic zone. This is where the precise location of the ship is critical – within the exclusive economic zone these activities are permissible while within the 12 nautical mile territorial sea these activities would not be permissible and could very legitimately be treated much more seriously by Australia.

“That the Australian response by RAN and RAAF has been to undertake monitoring and surveillance of the Chinese ship certainly indicates this is not an act of aggression.”

Tim Stephens, a professor of international law at the University of Sydney, agrees that it’s “certainly not an act of aggression”. He said ships had no legal requirement to notify countries about passage through their EEZ, although that would be “a matter of courtesy to avoid misunderstanding”.

Stephens said the ship’s visit could certainly be described as provocative but “legally it would never be considered an act of aggression”. “I think it’s entirely rhetorical,” he said.

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