Late last year the Foreign Minister, the Hon. Julie Bishop MP, issued a public Invitation to comment to the Department of Foreign Affairs and Trade for the purposes of the development by her Department of a Consular Strategy for the period 2014-16.
To facilitate the process, an Issues Paper was posted on the Departmental website.
My colleagues Andrew Farran and Woodard and I lodged the submission which appears below. It and other submissions may be downloaded from here. The final date for lodgement of submission is 31 January 2014.
For an earlier post relevant to this matter, see Representations on behalf of Matthew Joyce and Marcus Lee.
Submission by Andrew Farran, Garry Woodard and Paul Barratt AO (see below) in response to the Foreign Minister's Invitation to Comment on Consular Strategy 2014-16.
This submission is not intended to cover comprehensively the many issues and aspects in this area of government responsibility and acknowledges that to an increasing degree Australians abroad should take proper precautions and look out for themselves. However we believe that there is a growing concern that Government can lose and has lost sight of a basic responsibility, and that is to uphold the duty imposed both on itself and other foreign governments, as a matter of international law derived from custom and treaties, to stand up with full rigour for its citizens abroad in cases of abject injustice involving prolonged detention and abuse of process.
Too often Governments either retreat from or ignore this duty because of what it may conceive as a transcending concern for 'the wider national interest', meaning or implying that individual interests are expendable. This should never be the case in a democracy such as ours.
While in general governments should defer to the due legal processes of the country where an
Australian citizen may be detained, this principle is not absolute, especially where there is evidence of a failure of natural justice or other factors that would taint that process.
We draw your attention to the following observation regarding relevant international law in such
“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 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.” (5th Edition of Oppenheim, International Law, (ed. Lauterpacht, 1937, at p. 283)).
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 other nations it is vital that there be confidence in our respective legal and consular processes.
We believe that the Australian community should be assured that its citizens when faced with these situations 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 legal responsibility and liability, a consequence which should have repercussions for its overall in ternational standing in a globalised world.
Andrew Farran is a former Australian diplomat, senior law academic (Monash University:
1972-86), and trade policy adviser. Diplomatic postings included Pakistan (1963-65), Indonesia (1969-70), and the UN General Assembly (1966 and 1969). Department of Defence (1970-71). Former vice-president of the Australian Institute of International Affairs, member of the Royal Institute of International Affairs and the International Institute for Strategic Studies, London. Company director (UK and Australia), and a regular contributor to print and on-line media.
Garry Woodard is an honorary Senior Fellow in the University of Melbourne and a former Australian Ambassador to Burma, China and Malaysia, member of the board of the Australia-Japan Council, former member of the Administrative Appeals Tribunal, former national president of the Australian Institute of International Affairs, and patron of the Australia-Burma Council.
Paul Barratt is a former Secretary of the Department of Defence, former Deputy Secretary of the Department of Foreign Affairs and Trade, and former Executive Director, Business Council of Australia