In a news item in The
Weekend Australian, 4 January 2014, inspired by the current DFAT review of
consular strategy 2014-2016, Brendan Nicholson reports that Australians caught
in emergencies oversees could be billed for the cost of government assistance,
following a review of the operations of the Department of Foreign Affairs’
consular services (see Julie
Bishop signals consular help fee for Australians in strife overseas).
Further down in the article Nicholson makes reference to a
submission made to the review by my colleagues Andrew Farran (former diplomat
and senior law academic), Garry Woodard (former Ambassador to China and
elsewhere) and me (see Submission
on Consular Strategy 2014-16). Nicholson had interviewed me by phone and
quotes a substantial part of our conversation:
"Our government seems too
readily to accept that, whatever the local rules are, we can't do
anything," Mr Barratt said.
"In those kinds of matters,
the Australian government tends to say we have got to respect the judicial
processes of the host country.
"That's true, but only
subject to certain conditions because most countries are signatories to
international conventions and they've agreed to conduct their judicial
processes according to certain standards.
"In fact there are
international agreements that say certain standards will be applied and we
ought to complain when those standards aren't applied. That is a way in to
apply consular support."
The main concern of those who
wrote the submission was people who got into serious legal trouble through no
fault of their own. "The government needs to use all the weapons at its
disposal to support them," he said.
"Consular assistance is
more than just making sure they're allowed to write a letter home from time to
time ... or paying a weekly visit and seeing if they're all right."
Julie Bishop’s response to this is:
Ms Bishop said the Joyce and Lee
situation was an example of where the Labor government did everything possible
to get the men out of Dubai.
"I can't think of anything
more they could have done," she said.
Alexander Downer’s response to it is:
Australia's longest-serving
foreign minister, Alexander Downer, said the expectation Australia could
intervene more directly in such cases was "silly".
"Is the Australian
government going to say 'We've decided we don't take your legal system
seriously and we demand that this Australian be released?'," he said.
"There is no special law for Australians."
The government should in fact
lower expectations.
"If somebody is arrested by
the police and taken into custody and is facing charges in a court, the
Australian government is extremely limited in what it can do, beyond making
sure that person has access to legal representation. People need to understand
that," he said.
"A mistake that even people
like me have made is sometimes to raise expectations that the Australian
government can do more than it can do. I think the Australian government should
be honest with the public about what it can do."
He had been asked by the
families to try to have the men held in Dubai freed and he believed work he did
with contacts there helped ensure one of them was released on bail.
Both of these responses fail to grasp the essential legal
point my colleagues and I were making both in our submission and in our Representations
on behalf of Matthew Joyce and Marcus Lee:
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 cases:
“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 international standing in a globalised world.
Thus, far from saying we do not take the relevant country’s
legal system seriously, we are saying we do take it seriously, so seriously we
would like the country concerned to apply it in accordance with the legal
standards to which it has committed yourself under international law. We
nowhere suggest that there is a “special law for Australians”, nor do we
anywhere suggest that the Government demand that people be released. All we are
suggesting is that the Australian Government should use all the resources at
its disposal to insist that the application of local law to Australian citizens
take place in accordance with “a minimum standard of civilisation” – something I
think it would be difficult to assert was the standard applied to Matthew Joyce
and Marcus Lee.
If neither our current nor our longest serving Foreign
Minister (nor indeed former Foreign Minister Bob Carr) are able to grasp this essential point, I think Australians going
about their lawful occasions overseas have grounds to be pessimistic about the
level of support they will receive from their Government should they find
themselves the subject of legal processes in a foreign jurisdiction.
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