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
Note:
(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.
