In inviting members of the
public to comment the Foreign Minister has stated (see here) that one of
the major issues of the review is how to direct consular resources to
individuals in the greatest need. In relation to that
issue, Andrew Farran and I lodged a supplementary
submission on an aspect of
consular support practice which seems to warrant particular attention, namely
the support to be provided to Australian women
fighting custody battles in foreign jurisdictions, often involving domestic
violence and/or child abuse, sometimes involving abductions.
Very significant consular resources are rightly devoted to the
support of people like Schapelle Corby and the Bali Nine who find themselves
charged with and/or convicted of criminal offences in overseas jurisdictions.
In relation to women who appear to be victims rather than perpetrators, however
– for example women fighting for custody of their children in a foreign
jurisdiction in the context of family breakdown, often in a context of domestic
violence – the Government seems content to rely on the propositions that there
is no right to consular assistance, and that it cannot intervene in the
judicial processes of another jurisdiction.
In the case of custody battles, the Government will also
rely on “we can’t get involved in family law matters”, even if the matter on
which assistance is sought is not a family law matter per se, but important
rights such as access to procedural fairness.
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.
In that connection he says that the doctrine of ‘legitimate
expectation’ in administrative law creates an entitlement to have one’s case
considered in the light of settled policy or practice for the exercise of
administrative discretion.
He and his
co-author Alexander Horne go on to present considerations which 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.
My joint submission with Andrew Farran and Garry Woodard,
Submission
on Consular Strategy 2014-16 addressed the basic responsibility of the Australian Government 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. Professor Saul’s submission supports that point
when it says that Australian Governments have a very secure legal basis on which
to act “in
circumstances where the foreign state itself is the source of harm, or has
failed to prevent such harms by private actors”.
In order to bring these issues to life, I reproduce below
the text of a submission to the review made by a woman whom I shall call
Merinda. I have discussed her case directly with her and reviewed a number of
documents she provided to me to fill out the picture. In my view she had and has
a compelling case for consular assistance. On what I understand of her case:
(1) The foreign state in which she resided (Canada)
both was a source of harm itself (at provincial level) and failed to prevent
grave harm by private actors
(2) By writing a letter to the provincial Justice
Department the Australian Consulate acknowledged in principle the eligibility
of her case for consular assistance, but it failed to follow through when its
representations were ignored.
Submission begins
Submission in response to the Foreign
Minister’s Invitation to Comment on Consular
Strategy for 2014-16
Please accept my
Submission regarding Consular Assistance which addresses the specific issue of
Australian women and children who have experienced or are experiencing domestic
violence, systemic and judicial abuse, or legal discrimination overseas, and
who have or might have been denied proper Consular care and support in their
distressful and harmful situations.
Currently, the
Australian government quite rightly provides prompt consular assistance to Australian
citizens who have been accused of, incarcerated for or convicted of criminal
offences overseas. At the same time, the government espouses the common view
that it and its representatives overseas cannot “intervene” in internal matters
regardless of the circumstances. This leaves Australian women and children who
have experienced and are experiencing domestic violence, and are attempting to
resolve the situation, having to do so on their resources even in the face of
systemic and judicial abuse or legal discrimination, in such jurisdictions. The
fact that this may be occurring in a modern, Western state and not an alien
state in the wider sense does not change the nature of the issue.
This policy clearly
affects women more than men. It fails Australian women and children at such a
very dangerous and vulnerable time. In that regard, I note the comment in your
discussion paper about enabling “service levels to be tailored to the most
vulnerable clients”. Women with dependent children who find themselves in a
situation where they are forced to leave home for the safety of themselves and
their children, and find themselves not only homeless and far from the support
of family and friends, are all the more vulnerable if he legal processes
involved denies them natural justice or is in other respects tainted or corrupt.
Relevant research
and data make clear that leaving or having left an abusive relationship can be the
most dangerous and lethal time for women and their children. Withholding or not
providing effective consular support for such Australian women and children
overseas simply compounds their troubles.
For information
about my experience and that of my children (all Australian citizens by
descent), please see: “Situation Synopsis” on my Facebook page Domestic Violence Despair and also my blog:
www.dv-despair.blogspot.com.au.
These tell of an abuse of court process whereby my former spouse, the father of
my children, and certain court officials, connived to bring about a miscarriage
of justice. Initially the Australian Consul in Ottawa, Canada, wrote to the
provincial Justice Department conveying my concerns and requesting that they be
given appropriate attention, thus acknowledging that my case was in principle
one deserving of consular assistance. When that “appropriate attention” failed
to materialise I could obtain no further support.
I question why I
was denied appropriate assistance in these circumstances, the nature or truth
of which was never questioned.
Australia is a
signatory to United Nations Conventions such as the Convention on the Rights of
the Child, the Convention on the Elimination of Discrimination Against Women,
the Declaration on the Elimination of Violence Against Women, and the
Convention on Legal and Political Rights. How does refusing to provide any
meaningful assistance and support for innocent and vulnerable Australian women
and children who have and are experiencing domestic violence and systemic and
judicial abuse overseas, conform to these international obligations?
Australia has
appointed a Global Ambassador for Women and Girls whose primary objective is to
intervene and advocate regarding domestic violence against women in other
countries, but yet, or so it appears to me, it continues to maintain that it
cannot “intervene” for Australian women and children on grounds of domestic
jurisdiction, even when the upholding of international legal commitments is at
stake.
Last year the
Australian government sent delegates to the United Nations Convention on the Status
of Women. The priority theme was violence against women and children but still
the Australian government refuses to provide support or assistance for us and other
Australian women and their children who have experienced similar traumas and
injustices.
Given the publicity
and media attention given to assistance provided to Australian citizens charged
with or convicted of crimes overseas why does DFAT and the Australian
government not inform women that if they are the victims of domestic violence
and injustice overseas, they cannot expect anything like the same level of
consular support as is afforded to common criminals?
The Australian
government recognises the increased challenges, dangers and barriers experienced
by Australian women in relationships overseas. It makes no sense, indeed it is irresponsible,
to ignore or understate their plight where violence and judicial abuse may be involved.
Information about my
plight can be found as noted on my blog www.dv-despair.blogspot.com.au
in a post titled Milgaard Inquiry. I
should mention here that because of these long-running circumstances one of my
children attempted suicide, and last year I was involuntarily hospitalised as a
suicide risk. This is by no means unusual. While I was going through my problems
I met another Australian woman in the same Canadian province who with her four children
was in a similar situation to me.
Finally, I would
draw your attention to the gap between the reality where the government recognises
the challenges, traumas, barriers and difficulties experienced by women who as immigrants
in Australia experience domestic violence here (from their also immigrant
spouse or Australian spouse) and finances special services particularly
directed to their needs, but does not provide a corresponding level of support
through the consular system for expatriate women facing similar difficulties overseas.
Should you have any
questions or require further information regarding my submission I am available
to answer your questions and/or provide further information as well as copies
of supporting documentation, correspondence and research, including letters
from professionals – a doctor, a social worker from a domestic violence support
program, a counsellor and a preschool teacher – written directly to the
overseas provincial Justice Department where we were residing, about their
concerns for our circumstances and the court proceedings which so adversely
affected our lives.
Thank you for
receiving my Submission,
Sincerely,
(Name and address
provided, but withheld from publication at the request of the individual
lodging the
submission.)
Submission ends
