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 5th 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
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
