22 February 2014

Project for the New American Century

It is with some wry amusement (or is it grim satisfaction?) that I am able to report that in the course of doing some further research/fact checking on the origins of the Iraq War, I sought to return to the website of the Project for the New American Century www.newamericancentury.org, only to be told “This Account Has Been Suspended”.

So the movement that promised a century of shock and awe in pursuance of “a Reaganite policy of military strength and moral clarity” directed to “America's unique role in preserving and extending an international order friendly to our security, our prosperity, and our principles” has, 13 years into that century, defaulted to a suspended website.

19 February 2014

Mick Palmer: Second letter to Daily Telegraph

In Mick Palmer to Editor, Daily Telegraph I published the full text of a letter submitted to the editor of The Daily Telegraph on 11 February 2014, in response to an article by Miranda Devine, published in the Telegraph on 8 February, and a link to the edited version of the letter published on 14 February.

Below is the text of a follow-up letter sent by Mr Palmer yesterday to Associate Editor Sarrah Le Marquand.


Dear Sarrah.

Thank you for your recent advice concerning my response to Miranda Devine’s opinion piece on 8 February 2014 on ending the drug culture and for running an edited version of my reply in last Friday’s edition of the Daily Telegraph.

I must admit, however, to being disappointed on two counts.

Firstly, that your newspaper would publish an edited version of a response on such an important topic without making any public acknowledgement that the published response had been edited.

Secondly, that the editing appeared to be aimed at weakening the impact of my response and minimising any criticism of Ms Devine.

In particularly, I draw your attention to the following excerpts from my original letter which were omitted from the published version:

The Howard government launched its “Tough on Drugs Strategy” in 1997. Yet behind the scenes the Howard government was the first Commonwealth Government to help fund the needle and syringe programmes run by the states and territories. The Howard government also allocated a lot of funding to help move drug offenders from the criminal justice system to drug treatment… In my opinion these were all excellent policies but they were all harm reduction rather than simply ‘Tough on Drugs’.


I was saddened by Ms Devine’s attack upon Dr Alex Wodak for his advocacy of drug law reform. Dr Wodak is well able to defend and speak for himself but, in my view, attacking the man rather than the ball is not only poor form but generally is a sign of fundamental weaknesses in the argument of the alleger.

Having regard to the fundamental importance, particularly in the current media environment, of transparency and integrity in reporting, I found these omissions surprising and regretful.

I respectfully request that you publish this letter to correct the record and more accurately reflect the intent and meaning of my initial response.

Yours sincerely

Mick Palmer


Mick Palmer to Editor, Daily Telegraph

Following is the text of a letter sent by fellow Australia21 director and former Australian Federal Police Commissioner Mick Palmer to the editor of the Daily Telegraph on 11 February 2014, in response to an article by Miranda Devine, published in the Telegraph on 8 February. An edited text of the letter was published by as a news item by the Telegraph on 14 February (see Fighting drugs a complex issue).


Letter to the Editor,
Daily Telegraph.
11 February 2014

As a 33 year career police officer. I am neither a promoter of illicit drug use nor an apologist for illicit drug users.

The fervent nature of Miranda Devine’s article (It’s high time to end drug culture, Daily Telegraph, 8 February 2014), however, prompted me into comment.

The issue of illicit drugs is difficult and complex but it really is high time we started discussing the question of illicit drugs unemotionally and realistically and that informed people began really trying to make a difference.

Ms Devine is right to say that Hollywood glamorises illicit drugs and shouldn’t, but, equally, wider society demonises and criminalises illicit drug users when the very vast majority of such users are simply victims.

 Hollywood glamorised tobacco smoking for decades. And still glamorises alcohol. Every death matters. But we have to remember that the number of deaths from legal drugs in Australia is 15-20 times the number of deaths from illegal drugs. Even among young Australians there are more deaths from alcohol than there are from illegal drugs. And most of the people who die from a tobacco-related illness in their sixties started smoking in their late teens or early twenties.

Without, in any way wishing to minimise the illicit drug use problem, my experience tells me that  Ms Devine is on  shaky ground when claiming that the rises and falls in drug use in Australia are due to cycles of tough and laissez faire governments.

Firstly, government drug policy behind the scenes is much more complicated than the slogans and political posturing might suggest. The Howard government launched its ‘Tough on Drugs Strategy’ in 1997. Yet behind the scenes the Howard government was the first Commonwealth government to help fund the needle and syringe programmes run by the states and territories. The Howard government also allocated a lot of funding to help move drug offenders from the criminal justice system to drug treatment. And Minister Downer in the Howard government made sure that Australia gave generously to Asian harm reduction programmes to slow the spread of HIV among people who inject drugs. In my opinion, these were all excellent policies but they were all harm reduction rather than simply ‘Tough on Drugs’.

Secondly, it is important that we focus on the harms from drugs rather than on estimates of drug use. For most parents and most members of the community, deaths, disease and crime are even more important than the number of people estimated to be using drugs. Although there is a close connection between the consumption of legal drugs by individuals or communities and the risk of harm, the connection between the consumption of illegal drugs by individuals or communities and the risk of harm is not as clear.

Let’s just think about our use of cars in Australia and deaths from road crashes. Compared to 30 or 40 years ago, these days more Australians own cars, we travel longer distances each year in our cars and there are many more of us. Yet road crash deaths are a small fraction of deaths in the 1970s thanks to things like seat belts, safer vehicles and random breath tests. Harm reduction initiatives which have made a real difference.

I have spent decades of my life in law enforcement and was  the Commissioner of the Australian Federal Police for a period of 7 years, including during then PM Howard’s   Tough on Drugs period. As part of my responsibilities I was accountable for working closely with the Department of Prime Minister and Cabinet in oversighting and implementing many aspects of the policy.

As I have said publicly before, Australian police are now better trained, generally better equipped and resourced and more operationally effective that at any time in our history. But, on any objective assessment policing of the illicit drug market has had only marginal impact on the profitability of the drug trade or the availability of illicit drugs.

I am not alone in this view. Many serving and retired senior police have the same opinion. The Global Commission on Drug Policy, which includes former UN Secretary General Kofi Anan, former US Secretary of State George Shultz, former Chairman of the US Federal Reserve, Paul Volker, the former Presidents of Brazil, Colombia, Mexico and Switzerland, and Sir Richard Branson of Virgin Airlines, accept that the War on Drugs has been an expensive and complete failure. My personal experience convinces me that these assessments are correct and that we must seek another path.

In this regard I was saddened by Ms Devine’s attack upon Dr Alex Wodak for his advocacy of drug law reform.  Dr Wodak is well able to defend and speak for himself but, in my view, attacking the man rather than the ball is not only poor form but generally is a sign of fundamental weaknesses in the arguments of the alleger. 

Where does this leave us?  I agree with the commentators who argue that the health, social and economic costs of alcohol consumption in Australia are too high. Like most Australians I have been angered and sickened by the continuing spate of alcohol related violence and cowardly and unprovoked conduct that has underpinned much of it.  I am ashamed and angry that so many Aboriginal Australians still die far too young from the effects of alcohol and tobacco and from glue and petrol sniffing.  These are critically serious problems and there is much that is wrong and much more that needs to be done.

But I also believe we must to do better with illicit drugs in Australia.  This will require a calm, sensible and respectful discussion based on real evidence and a focus on reducing the harms from illicit drugs. Reducing the consumption of drugs is one way of reducing the harm from drugs but the HIV epidemic showed us that being smart about drugs is much more effective than simply being tough.    

Mick Palmer
Former Commissioner of Australian Federal Police.


10 February 2014

¡No pasarán!

I was very much taken by the following letter published in the letters column of today’s edition of The Age:

Making a mockery of the courageous

Our PM's use of the phrase ''you shall not pass'' to define his policy of turning people seeking refuge back to sea - surely a crime against humanity - is also a travesty against historical rhetoric. Mr Abbott may think the phrase comes from The Lord of the Rings, but more famously it was a challenge thrown down by the Spanish leftist Dolores Ibarruri, ''La Pasionaria'', in July 1936, as Franco's forces besieged Madrid: ''No pasaran!'' (''They shall not pass!''). To use this noble charge as rhetoric in our inhumane and illegal border ''war'' makes a mockery of the desperate courage of those who seek refuge.

Marguerita Stephens, Clifton Hill

05 February 2014

Consular Strategy: Submission by Professor Ben Saul

A number of previous posts have gone to the question of what Australian citizens in difficulty overseas might be entitled to expect from the Australian Government by way of consular support. These posts are:

The last two are submissions I have made with colleagues to the Review of Consular Strategy currently being undertaken by the Department of Foreign Affairs and Trade.

Ben Saul, Professor of International Law at The University of Sydney, together with Researcher Alexander Horne, has made a very important submission on this matter, referring to the legitimate expectations doctrine under administrative law and raising the question of whether there should be a legal right to consular assistance.

This submission is of such importance that I present the text in full below. A PDF of the original submission may be downloaded from the DFAT website.

Submission by Ben Saul and Alexander Horne

Consular Strategy Team
Consular, Public Diplomacy and Parliamentary Affairs Division
Department of Foreign Affairs and Trade
By email: consularstrategy@dfat.gov.au

29 January 2014

Dear Consular Strategy Team

Issues Paper: Development of a new Consular Strategy 2014-16

Thank you for the opportunity to make a submission on your Issues Paper. Our submission is confined to some key legal and policy aspects of consular assistance.

Under-funding of DFAT

We acknowledge that there are enormous demands for consular services which place considerable strain on DFAT’s resources, operations, and diplomatic relationships, and divert DFAT from giving attention to other important foreign policy matters. Some Australians have radically unrealistic expectations of consular assistance, often driven by a lack of awareness of what is possible and not possible.

At the same time, we note that a substantial part of the pressure on DFAT is caused by the dramatic under-funding of DFAT by successive Australian governments. DFAT is asked to do too much with too little. DFAT does not receive levels of funding commensurate with the size of the Australian economy, the levels of Australian foreign investment and business activity overseas, the ambition of Australia’s foreign policy agenda, and the large numbers of Australians living and travelling overseas. Considerable pressure would be alleviated by restoring adequate funding to DFAT to enable it to properly assist Australians in need overseas.

Legal uncertainty and public expectations

The Issues Paper notes that ‘[t]here is no right to consular services, nor is there any legislative requirement for the Government to provide those services’. It also notes that there is a lack of public awareness about the limits of consular assistance and often unrealistic public expectations about what can be provided.

A key question, however, is whether there should be a legal right to consular assistance, and what should be the content of such right. The question is closely related to the issue of public expectations, and whether the government should be more responsive to those expectations or seek to dampen them.

Presently, there is a lack of legal clarity on this issue. It is true that, under international law, the state enjoys a right whether to choose to exercise diplomatic protection in respect of a national at risk abroad; and further that the affected individual has no right as a matter of international law to compel their state of nationality to act on their behalf.

Yet, the international law position is not dispositive of the domestic legal situation. A state remains free to recognise a domestic legal right of citizens at risk abroad to demand protection from their state of nationality in defined circumstances. The question is entirely one of national law, limited only by what type and extent of diplomatic protection is permissible under international law (for instance, so as not to infringe upon the sovereign rights of the foreign state; or in cases of dual nationality).

While the Issues Paper asserts that there is no right to consular assistance, it should be emphasised that the issue is now somewhat unsettled under Australian law. This issue was raised but not determined in the Federal Court in Hicks v Ruddock [2007] FCA 299. Mr Hicks argued that the Australian Government had a duty to consider whether and how to exercise diplomatic protection in relation to his detention and trial at Guantanamo Bay by the United States. It was further argued that the Government was required not to consider irrelevant considerations in exercising its discretion whether to protect him. The Government responded that its discretion was a wide, unfettered one at the highest executive level and as such its exercise was not subject to constraints.

The application for summary judgment in favour of the Australian Government was rejected by Tamberlin J. He concluded that it had not demonstrated that Mr Hicks’ claim had no reasonable prospect of success. In the course of that judgment, Tamberlin J discussed the English case of Abbasi v Secretary of State [2002] EWCA Civ 1598, noting that it lent some support to Mr Hicks’ claim.

The Abbasi case represents the position in English law and we submit that its approach should be adopted in Australia as well. The English Court of Appeal acknowledged that international law has not yet recognised that a state is under a duty to intervene by diplomatic or other means to protect a citizen who is suffering or threatened with injury in a foreign state. The Court held, however, that the Secretary of State’s refusal to render assistance to a British subject whose fundamental human rights were being violated as a result of the conduct of a foreign state was judicially reviewable.

The doctrine of ‘legitimate expectation’ in administrative law (1) created an entitlement to have one’s case considered in the light of settled policy or practice for the exercise of administrative discretion. The Government’s acceptance of a ‘protective’ role in ensuring the rights of citizens abroad, as evidenced by Government policy and practice in the area of consular assistance, was sufficient in Abbasi to ground a legitimate expectation. The court in Abbasi concluded that the content of Mr Abbasi’s legitimate expectation was that the government “consider” the exercise of the discretion and that in this consideration all relevant factors would be included in the balancing necessary to the exercise of the discretion.

It is an open question whether the same expectation arises in Australia and the issue was not decided in the Hicks case. 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.

Other considerations 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.

In the two cases discussed above, the harm threatened to the citizen was a grave violation of their fundamental human rights. In Abbasi, the policies of the UK Government recognised that the nature and extent of the injustice was a factor relevant in considering whether intervention was appropriate. As the Court pointed out, until some judgment had been formed as to the gravity of the miscarriage, the appropriate balancing act could not be carried out. Mr Abbasi had been in detention for 8 months at the time of the decision. Mr Hicks had been in detention for over 5 years when Hicks v Ruddock was decided and he allegedly faced the prospect of an unfair military trial.

Australian consular assistance policy and practice is already well familiar with identifying and acting in relation to violations of international human rights law. DFAT’s Australian Consular Operations Handbook refers, for instance, to human rights standards (such as the ICCPR and UDHR) concerning detention (Chapter 6), the rights of children (Chapter 11), and various women’s rights (Chapter 4).

Please be in touch if we can be of any further assistance.

Yours sincerely

Ben Saul
Professor of International Law

Alexander Horne
Researcher, Sydney Centre for International Law

(1) The English Court referred to the Australian High Court decision of Minister for Immigration v Teoh [1995] 183 CLR 273 in reaching its conclusion on the ‘legitimate expectations’ doctrine generally.