Consular services: Downer and Bishop miss the point

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.