In Submission on Consular Strategy 2014-16 I provided the text of a submission which my colleagues Andrew Farran, Garry Woodard and I lodged with the Department of Foreign Affairs and Trade in relation to the current Review of Consular Strategy 2014-16.
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.
In his Submission to the review, Ben Saul, Professor of International Law at the University of New South Wales disposes effectively of the first argument ( see Consular Strategy: Submission by Professor Ben Saul). He notes:
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 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,
(Name and address provided, but withheld from publication at the request of the individual
lodging the submission.)