05 February 2014

Consular Strategy: Submission by Professor Ben Saul

A number of previous posts have gone to the question of what Australian citizens in difficulty overseas might be entitled to expect from the Australian Government by way of consular support. These posts are:

The last two are submissions I have made with colleagues to the Review of Consular Strategy currently being undertaken by the Department of Foreign Affairs and Trade.

Ben Saul, Professor of International Law at The University of Sydney, together with Researcher Alexander Horne, has made a very important submission on this matter, referring to the legitimate expectations doctrine under administrative law and raising the question of whether there should be a legal right to consular assistance.

This submission is of such importance that I present the text in full below. A PDF of the original submission may be downloaded from the DFAT website.

Submission by Ben Saul and Alexander Horne

Consular Strategy Team
Consular, Public Diplomacy and Parliamentary Affairs Division
Department of Foreign Affairs and Trade
By email: consularstrategy@dfat.gov.au

29 January 2014

Dear Consular Strategy Team

Issues Paper: Development of a new Consular Strategy 2014-16

Thank you for the opportunity to make a submission on your Issues Paper. Our submission is confined to some key legal and policy aspects of consular assistance.

Under-funding of DFAT

We acknowledge that there are enormous demands for consular services which place considerable strain on DFAT’s resources, operations, and diplomatic relationships, and divert DFAT from giving attention to other important foreign policy matters. Some Australians have radically unrealistic expectations of consular assistance, often driven by a lack of awareness of what is possible and not possible.

At the same time, we note that a substantial part of the pressure on DFAT is caused by the dramatic under-funding of DFAT by successive Australian governments. DFAT is asked to do too much with too little. DFAT does not receive levels of funding commensurate with the size of the Australian economy, the levels of Australian foreign investment and business activity overseas, the ambition of Australia’s foreign policy agenda, and the large numbers of Australians living and travelling overseas. Considerable pressure would be alleviated by restoring adequate funding to DFAT to enable it to properly assist Australians in need overseas.

Legal uncertainty and public expectations

The Issues Paper notes that ‘[t]here is no right to consular services, nor is there any legislative requirement for the Government to provide those services’. It also notes that there is a lack of public awareness about the limits of consular assistance and often unrealistic public expectations about what can be provided.

A key question, however, is whether there should be a legal right to consular assistance, and what should be the content of such right. The question is closely related to the issue of public expectations, and whether the government should be more responsive to those expectations or seek to dampen them.

Presently, there is a lack of legal clarity on this issue. It is true that, under international law, the state enjoys a right whether to choose to exercise diplomatic protection in respect of a national at risk abroad; and further that the affected individual has no right as a matter of international law to compel their state of nationality to act on their behalf.

Yet, the international law position is not dispositive of the domestic legal situation. A state remains free to recognise a domestic legal right of citizens at risk abroad to demand protection from their state of nationality in defined circumstances. The question is entirely one of national law, limited only by what type and extent of diplomatic protection is permissible under international law (for instance, so as not to infringe upon the sovereign rights of the foreign state; or in cases of dual nationality).

While the Issues Paper asserts that there is no right to consular assistance, it should be emphasised that the issue is now somewhat unsettled under Australian law. This issue was raised but not determined in the Federal Court in Hicks v Ruddock [2007] FCA 299. Mr Hicks argued that the Australian Government had a duty to consider whether and how to exercise diplomatic protection in relation to his detention and trial at Guantanamo Bay by the United States. It was further argued that the Government was required not to consider irrelevant considerations in exercising its discretion whether to protect him. The Government responded that its discretion was a wide, unfettered one at the highest executive level and as such its exercise was not subject to constraints.

The application for summary judgment in favour of the Australian Government was rejected by Tamberlin J. He concluded that it had not demonstrated that Mr Hicks’ claim had no reasonable prospect of success. In the course of that judgment, Tamberlin J discussed the English case of Abbasi v Secretary of State [2002] EWCA Civ 1598, noting that it lent some support to Mr Hicks’ claim.

The Abbasi case represents the position in English law and we submit that its approach should be adopted in Australia as well. The English Court of Appeal acknowledged that international law has not yet recognised that a state is under a duty to intervene by diplomatic or other means to protect a citizen who is suffering or threatened with injury in a foreign state. The Court held, however, that the Secretary of State’s refusal to render assistance to a British subject whose fundamental human rights were being violated as a result of the conduct of a foreign state was judicially reviewable.

The doctrine of ‘legitimate expectation’ in administrative law (1) created an entitlement to have one’s case considered in the light of settled policy or practice for the exercise of administrative discretion. The Government’s acceptance of a ‘protective’ role in ensuring the rights of citizens abroad, as evidenced by Government policy and practice in the area of consular assistance, was sufficient in Abbasi to ground a legitimate expectation. The court in Abbasi concluded that the content of Mr Abbasi’s legitimate expectation was that the government “consider” the exercise of the discretion and that in this consideration all relevant factors would be included in the balancing necessary to the exercise of the discretion.

It is an open question whether the same expectation arises in Australia and the issue was not decided in the Hicks case. The Australian Government has often asserted that there is no right of consular assistance. However, by its policy and practice the Australian Government has consistently exercised such assistance or considered its exercise.

Other considerations weigh favour of a legal right of Australians to have the Australian Government consider exercising consular assistance. First, Australian citizenship is a reciprocal relationship: Australians owe allegiance to Australia, but the Australian Government equally ought to be seen as owing duties to Australians, enforceable as of right. Otherwise citizenship is deprived of its core substantive content; the executive of the day could arbitrarily withhold or withdraw the rights of citizens.

In our view, at a minimum, it would be appropriate for the Parliament to legislate to entrench the procedural right of a citizen or permanent resident at risk overseas to compel the Government to consider whether to exercise diplomatic protection. Legislative intervention could go even further by recognising a substantive right of diplomatic protection in certain defined situations involving serious violations of the internationally protected human rights of a citizen or permanent resident.

Both options above would duly recognise the public expectation that, by being Australian citizens or residents, they should be protected by their government (and even in cases of dual nationality where the Australian’s other state of nationality threatens them). The latter option, providing a strong, substantive right, additionally recognises that Australian governments should not be entitled to ‘trade off’ an Australian’s right to secure their government’s protection from foreign human rights violations in favour of other Australian governmental interests, such as economic or political interests.

In this regard, in our view Australian law and foreign policy ought to give appropriate attention to the risk of the fundamental rights of Australians being violated overseas, including violations of international human rights law, international humanitarian law, and international criminal law. This category of risk can be set apart from other grounds triggering consular assistance, on the basis that they typically often involve particularly serious harms to the person (such as torture or cruel inhuman or degrading treatment, unlawful or arbitrary detention, or an unfair trial), in circumstances where the foreign state itself is the source of harm, or has failed to prevent such harms by private actors. In addition, there is universal international legal condemnation of such violations, giving Australian governments a very secure legal basis upon which to act.

In the two cases discussed above, the harm threatened to the citizen was a grave violation of their fundamental human rights. In Abbasi, the policies of the UK Government recognised that the nature and extent of the injustice was a factor relevant in considering whether intervention was appropriate. As the Court pointed out, until some judgment had been formed as to the gravity of the miscarriage, the appropriate balancing act could not be carried out. Mr Abbasi had been in detention for 8 months at the time of the decision. Mr Hicks had been in detention for over 5 years when Hicks v Ruddock was decided and he allegedly faced the prospect of an unfair military trial.

Australian consular assistance policy and practice is already well familiar with identifying and acting in relation to violations of international human rights law. DFAT’s Australian Consular Operations Handbook refers, for instance, to human rights standards (such as the ICCPR and UDHR) concerning detention (Chapter 6), the rights of children (Chapter 11), and various women’s rights (Chapter 4).

Please be in touch if we can be of any further assistance.

Yours sincerely

Ben Saul
Professor of International Law

Alexander Horne
Researcher, Sydney Centre for International Law

(1) The English Court referred to the Australian High Court decision of Minister for Immigration v Teoh [1995] 183 CLR 273 in reaching its conclusion on the ‘legitimate expectations’ doctrine generally.  

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