Rio Tinto, state secrets, smoke and mirrors

Stealing state secrets is a convenient charge usually reserved for journalists, activists, and whistleblowers in China.

While Stern Hu may be an Australian citizen with immediate family in Australia and potentially free from "pressure" within China, the same does not apply to his three colleagues who have also become pawns: they have with extended family in China and consequently are open to pressure.

What is a state secret?

The State Secrets Law and related Implementing Regulations provide a list of categories that include what only may be state secrets.

The lists are catchalls, deliberately broad and vague and encompass virtually all-conceivable information.

The law specifically proclaims that information is not classified a state secret unless it is determined to be a state secret in accordance with legally defined procedures or knowledge of it is restricted to a defined scope of personnel for a defined length of time.

It is not just content that categorises information as secrets; it is how the Ministry of State Security and the Chinese Communist Party perceives possible use of that information.

A state secret is anything the Chinese government wants it to be.

It is any matter "relating to the security and interests of the nation" as perceived by the Ministry of State Security and the CCP. The emphasis being on what Beijing construes as "interests of the nation".

It is not restricted to information categorised or stamped secret.

A state secret also applies to information that may question the credibility of the CCP leadership and policies, or undermine confidence in the CCP and/or individual officials.

Even though information may not be marked "secret", the Supreme People's Court is clear: "Any person who knows, or should know that any information, even though it is not marked secret, relates to the security and interests of the nation." Disclosure will make them criminally liable for passing on that information to a foreigner. Tourist photo and video images are also included.

For the foreign journalist it is a minefield. The State Secrets Law clearly requires that information be restricted in order to be a state secret. The same law however places the burden for determining whether or not, information is a state secret, squarely upon those intending to write about, talk about, or publish it.