Representations on behalf of Matt Joyce and Marcus Lee, detained in Dubai

Dubai carries not only business risks; as a foreigner you could find yourself detained or jailed solely on the word of an official or a vindictive local, and denied diplomatic protection from your own government

Australian businesses, not least Qantas Airways, are becoming ever more deeply involved in Middle Eastern jurisdictions, in particular Dubai in the United Arab Emirates. They do so with an ever increasing risk that they, their personnel or, in the case of Qantas, its passengers, may fall foul of the local authorities or a local trader and be subjected to a legal system that has little respect for due process or accepted international juridical standards. There are numerous cases documented on websites of foreigners being subjected to imprisonment without formal charges or from a trial on uncorroborated allegations, characterised by palpable procedural defects.

An additional peril arises from failure by their own government to perform its duty, both nationally and internationally, to protect its citizens when they fall victim to these arbitrary and not infrequently corrupt processes abroad.

A particularly unfortunate case is that of two Australian businessmen detained now for some four years on false charges, the falsity of which has been confirmed by the Victorian Supreme Court. But this has not moved the local authorities to correct a palpable wrong; nor has it moved the Australian Government to improve on its desultory efforts to obtain their release. The Government continues to assert the over-worked mantra that it cannot intervene in the legal processes of another country, which is quite false where those legal processes offend basic tenets of international law.

The facts of this case, together with an exchange of correspondence with the Department of Foreign Affairs & Trade - and a letter to Qantas pointing out the risks they might be incurring in relocating major operations to Dubai - are set out below.

The Matt Joyce and Marcus Lee Injustice in Dubai, and inexplicable neglect on the part of the Australian Government

Thrown into solitary confinement in a Dubai jail on false bribery charges in 2009; now living under house arrest, facing the prospect of a further jail sentence. His young family - wife and three under age children - fearing to return to Australia as this would be abandoning their Australian husband/father to an uncertain fate. And does their government care?

In spite of an Australian superior court adjudging there to be no foundation whatsoever on which the bribery allegations could be sustained, this Australian businessman and an Australian colleague are being used as fall-guys to cover for business failures by local powerful entrepreneurs in this Middle Eastern country - a country in which Qantas Airways now seeks to stake its future international operations.

If this can happen to honest foreign businessmen in Dubai what then if Qantas itself or any of its passengers get caught up in a legal system from which there is no escape. No escape, as much because their own government which has an obligation to protect its citizens abroad has failed or refuses to honour its obligations, both under Australian law and internationally.

The facts of the Matt Joyce/Marcus Lee case are well set out in a recent Weekend Australian Magazine article by Cameron Stewart: “Just Let Us Go Home”. Further information can be seen on the Joyce website: http://bringmatthome.com

The Joyces and others have received in response to their entreaties to DFAT bland, and frankly evasive, responses from the Consular section. Nothing from the Minister. Indeed the current and previous Minister has been written to about the matter but such letters are referred back to the Consular section with, in effect, an instruction to give the standard reply, which is on the lines that we are doing all we can for your son/daughter/husband/wife or whatever and, anyway, “we cannot intervene in the judicial processes of other countries.”

It doesn’t matter, it seems, that a judicial process may be corrupt, politically motivated or a downright infamy. We don’t intervene, notwithstanding that the government has a duty to do otherwise when its citizens are so confronted - see Oppenheim, the established international legal authority, quoted in the first letter below.

Overall the number of Australians caught up in these travesties is relatively small. But weighed against our supposed political and economic interests with these countries, our government chooses to betray and sacrifice the legal rights and claims of these citizens rather than protect them as is its duty.

Set out below are letters sent to DFAT by and on behalf of four Australians who find this neglect of duty on the part of our government too much to stomach. Included also is the response from DFAT on behalf of its Minister. Recent informal discussions with DFAT suggest that the Joyce family is not receiving the assistance asserted. Indeed it appears that the department has not addressed the human rights and international legal issues that rest on both Australian and the United Arab Emirates governments in this matter. Thus, a clear dereliction of duty is apparent on both sides.

The letters follow:

Senator, the Hon. Bob Carr

Minister for Foreign Affairs and Trade

Parliament House

CANBERRA ACT 2600

December 21, 2012

Dear Senator Carr,

Re:  Messrs. Mathew Joyce and Marcus Lee – Detained in Dubai

We write, as have others, to request the Australian Government’s urgent appeal to the UAE government to release two Australian citizens, Messrs. Mathew Joyce and Marcus Lee, from detention in Dubai.

We raise the matter ourselves not because of any direct personal interest. We do so out of a concern that no Australian citizen should be left languishing in this manner, especially as the issues in this case were tested in the Victorian Supreme Court earlier this year and held to be without foundation.

We appreciate the general principle that governments should defer to the legal processes of the country where a citizen is detained. But this principle is not absolute, especially where there are indications of a failure of natural justice or other factors that would taint a legal process.

Exceptions are well known and date back at least to early last century, and before, as stated in the 5^th Edition of Oppenheim, International Law, (ed. Lauterpacht, 1937, at p. 283):

“It is a well established principle that a State cannot invoke its municipal legislation as a reason for avoiding its international obligations. For essentially the same reason a State, when charged with a breach of its international obligations with regard to the treatment of aliens, cannot validly plead that according to its Municipal Law and practice (emphasis added) the act complained of does not involve discrimination against aliens as compared to nationals. This applies in particular to the question of the treatment of the person of aliens. It has been repeatedly laid down that there exists in this matter a minimum standard of civilisation, and that a State which fails to measure up to that standard incurs international liability”.

                                                                               

International law in this respect has not retreated since that statement though too commonly it is honoured more in the breach than in its observance. Given the increasing level of trade and investment between Australia and the UAE, most evidently recently in the field of aviation, it is vital that there be confidence in our respective legal processes.

We believe that the Australian community should be assured that its citizens when faced with situations of this nature will be assisted with the full diplomatic resources of their government, and if that fails the defaulting State should be made to incur full international liability, a consequence which should have repercussions for its international standing.

Yours faithfully,

ANDREW FARRAN

Formerly: Diplomatic officer, Department of External Affairs;

Senior Lecturer in Public Law, Monash University

Andrew Farran <afarran@bigpond.net.au>

PERA WELLS

Vice-President, Australian Council for Human Rights Education

Pera Wells peraplace@gmail.com

GARRY WOODARD

Senior Fellow, School of Social and Political Sciences, University of Melbourne; former President, Australian Institute of International Affairs

Garry Woodard g.woodard@unimelb.edu.au

PAUL BARRATT AO

Former Secretary, Department of Defence

Former Deputy Secretary, Department of Foreign Affairs and Trade

Paul Barratt <paulbarratt@ceoadvising.com>

Reply from DFAT dated 14th January, 2013  -  See below:

Response to DFAT dated 17th January, 2013:

Ms Claire McComish

Acting Assistant Secretary

Consular Operations Branch

Department of Foreign Affairs and Trade

R G Casey Building

John McEwen Cres

BARTON ACT 0221

January 17, 2013

Dear Claire McComish,

Re:  Messrs. Mathew Joyce and Marcus Lee – Detained in Dubai

I refer to your letter of 14th January, 2013 in response to our letter to the Minister of 21st December, 2012 - signed by myself, Ms Pera Wells, Mr Garry Woodard, and Mr Paul Barratt AO in the above matter.

I thank you for the reply which on its face might have been reassuring. However I have since been in contact with the Joyce family and the situation affecting their son is not exactly as you would have it. Have you solid reasons for believing otherwise?

The disappointing aspect of your letter lies in the final sentence which completely overlooks and ignores the important matter of international law raised in our letter. I invite you to address the quoted paragraph from Oppenheim which, notwithstanding numerous treaties and conventions touching on this matter since, still expresses the essential point of law in this area.

Notwithstanding, what we are asking is that Government intervene politically with the government of a supposedly friendly country, to ask them to require their authorities to conduct themselves in manner consistent with their obligations to us.

We the signatories, all of whom have served Australian governments in various capacities in the past, would therefore hope that this Government would do better on behalf of an unnecessarily distressed Australian citizen abroad.

Yours sincerely,

Andrew Farran

[ No reply as yet ]

Letter to Chairman, Qantas Airways Ltd, dated 21st January, 2013

Mr Leigh Clifford, AO

Chairman,

Qantas Airways Ltd.,

10 Bourke Road,

MASCOT NSW 2020                                                                                        

January 21, 2013

Dear Sir,

Re: Locating Airline Operations in the United Arab Emirates

I write as a QFF member and concerned traveller in relation the company’s decision to locate major airline operations in the UAE. I and others believe that in doing so the company could be putting at risk not only its own future but the safety and well being of its Australian ground staff and passengers (in transit and on stop-overs). In saying this I am not adverting to any issue of terrorism, but to the arbitrary and politically influenced legal system existing in that country. Because of this no Australian business person, ground staff or transiting passenger can be assured that they won’t be caught up in a legal process from which there might be no secure exit.

Nor can they be assured that notwithstanding agreements and understandings between governments, and rights and responsibilities existing under international law, that their home government would intervene effectively to protect their interests through proper and transparent due process in accordance with its national and international obligations.

Such failure has been shown in numerous instances affecting foreign travellers and business people in Dubai. Many are victims of trivial prosecutions, and jailed, on little or no credible evidence. Many languish in jail even without prosecution. Many of the charges reflect contempt for Western mores and Western standards, let alone show any respect for minimum international legal standards. It is not a safe place in terms of protection under the law as we know it. 

I will illustrate this by addressing one particular case involving two Australian businessmen who have been exposed to false charges and used a fall-guys in a dispute not of their making but involving influential local interests, resulting in periods of solitary confinement and detention over four years with little possibility even now of early release. Throughout this period their families have been fobbed off by the Australian Department of Foreign Affairs and Trade with assurances that everything possible was being done for them (which is far from the case), concluding with the assertion that “the Australian Government cannot intervene in the judicial processes of other countries” - an assertion that is groundless given the rights and duties of nations to act otherwise in the face of arbitrary, corrupt or fraudulent judicial process.

The Government’s failure to raise such a matter seriously at the political level, when faced with palpable injustice, is further reason not to be assured that Qantas, its ground staff and passengers would not be adversely affected in similar situations in future.

In order that you, your Board, and its advisers are not lacking any detail in this matter I am enclosing the following:

(i)   copy of recent feature article on their case in The Weekend Australian Magazine.

(ii)   letter to the Minister for Foreign Affairs, dated 21st December 2012 and signed by Paul Barratt AO, former Secretary, Department of Defence and former Deputy Secretary, Department of Foreign Affairs and Trade; Garry Woodard, Senior Fellow, School of Social and Political Sciences, University of Melbourne, former Ambassador to China, and former President, Australian Institute of International Affairs; Pera Wells, Vice-President, Australian Council for Human Rights Education and former  diplomatic officer of the Department of Foreign Affairs and Trade; and myself, a former diplomatic officer of Department of External Affairs and Senior Lecturer in Public Law, Monash University.

(iii)  the Department of Foreign Affairs and Trade’s reply, dated 14th January, 2013;

(iv)  further letter sent to DFAT, dated 17th January, 2013 to which a response is awaited (but informal soundings suggest that nothing will change).

This is an issue that has deep legal and political aspects that Qantas would be familiar with. However in this case there is much further that would need to be addressed to ensure a secure situation before Qantas, its Australian ground staff, and its innumerable passengers are subjected to the legal and judicial vicissitudes that may await them in the United Arab Emirates. Indeed, the more passengers Qantas carries to and from Dubai, the greater the chances, indeed the certainty, that a significant number (possibly the airline itself), will fall victim to the arbitrary and problematic legal system of that place.

I invite your response. The matter, even for your company, would seem somewhat urgent.

Yours sincerely,

ANDREW FARRAN

Update: reply from Chairman of Qantas, 11 February 2013

Dear Mr Farran

Thank you for your letter of 21 January 2013.

From 31 March 2013 Qantas will commence flying to London via Dubai and subject to regulatory approval will begin our partnership with Emirates, the world’s largest international airline.

In undertaking this partnership, our assessment is that Dubai is overwhelmingly safe and stable. Emirates has operated in Australia since 1996 and in 2011/12 carried over 2.3 million passengers on its Australian flights. Dubai Airport handled more than 50 million passengers for the first time last year.

The vast majority of these visits to Dubai were without incident.

While it is one of the more liberal regions in the Middle East, passengers should familiarise themselves with local laws and customs as they do when visiting other destinations like Singapore or Hong Kong and should seek up to date travel advice from the Department of Foreign Affairs.

In relation to the two gentlemen detained in Dubai, as a public company who is not involved, I can’t take any specific action to assist in the resolution of the matter. However I am advised that the federal government has made representations on their behalf.

Yours sincerely

Leigh Clifford