Is Australia Powerless to Help its Citizens Abroad?

01 Jul 2014

AIIA Fellows responding to the burning question of the week

Expert Panel-Fellows of the AIIA
Hilary Charlesworth FAIIA-Professor, ANU; Director of Centre for International Governance and Justice	Jocelyn Chey AM FAIIA-Visiting Professor, University of Sydney; former Consul-General in Hong Kong	James Cotton FAIIA-Emeritus Professor at the University of NSW	Rawdon Dalrymple AO FAIIA-Former Visiting Professor, University of Sydney; Chairman of ASEAN Focus Group Ltd	Graeme Dobell FAIIA-Journalist Fellow, Australian Strategic Policy Institute	Erika Feller FAIIA-Former UNHCR Assistant High Commissioner for Protection
Janet Hunt FAIIA-Former Head of the Australian Council for Overseas Aid	James Ingram AO FAIIA-Former Diplomat and Head of the UN World Food Program	John McCarthy AO FAIIA-Former Ambassador to Japan, Indonesia, the United States, Thailand, Mexico and Vietnam	Robert O’Neill FAIIA– Former Chichele Professor of the History of War, Oxford University	Garry Woodard FAIIA-Former Diplomat and Senior Fellow, University of Melbourne	Richard Woolcott FAIIA-Former Secretary of the Department of Foreign Affairs and Trade

Question: Is Australia Powerless to Help its Citizens Abroad?

John McCarthy AO FAIIA

No it is not. An enormous amount is done, in particular in situations of natural disaster, ill health overseas and loss of money and possessions, but there are constraints, particularly where an Australian is found to have broken the law of another country for example drug cases in Bali and Bangkok, as well as ransom cases.In some arrest and trial cases the situation is even more complex for example when there are: real doubts that law is being properly applied e.g. the Egypt cases; real doubts on basis of humanity e.g. all death penalty cases; some applications of sharia law, including the death penalty.In these sorts of cases any country can have difficulties in achieving a reasonable outcome for its citizens. For example a country such as Singapore with a sound, if excessively severe, system is hesitant to pardon a foreigner in cases where it would execute one of its own citizens. In some arrest cases, including recent cases in Egypt and Libya and North Korea, there are political factors at play.In ransom cases the government will work hard behind the scenes with local authorities and with the family of a kidnapped citizen, but is unable to facilitate ransom payments because such conduct would encourage further kidnappings.Citizens need to realize that other governments will not necessarily see things the way we do in Australia and that arguments and political methods appropriate to Australia will not necessarily cut ice elsewhere.In short, government efforts on behalf of Australian citizens will usually help and sometimes be decisive, but this will not always be the case and positive results may not come quickly .

Garry Woodard FAIIA

If we considered the government powerless, Andrew Farran, Paul Barratt and I would not have responded to the Foreign Minister’s Invitation to comment on the Consular Strategy 2014-16, and they would not have paid their way for consultations with DFAT they considered useful.Nevertheless no outsider is able to make a judgment about whether Australia’s ‘power’ (of moral persuasion) is diminishing and what part is played in that by the patent decline in governments’ regard for international treaties and the following convention:“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).

Graeme Dobell FAIIA

Peter Greste is living the foreign correspondent’s nightmare – in jail for doing nothing more than is job. His only ‘crime’ is working for a network hated by Egypt’s regime.The Australian government can be strong and unremitting in pushing Greste’s case because our interests and our values are completely aligned. No hint here of the rather grubby Suharto-era argument that Canberra could disavow the work of individual Australian correspondents to protect foreign policy interests with an important neighbour.As a nation of immigrants, Australians are also a nation of travellers. So consular cases are where highbrow multilateral debates about international standards and rights come right back to a suburb near you. One good argument for being a good international citizen is that it helps our citizens.Australia has bilateral and multilateral capabilities it can mobilise to argue for Peter Greste. Our interests and our values call for nothing less.

Rawdon Dalrymple AO FAIIA

The Australian government spends a huge amount of time and money helping Australian citizens who get into difficulties abroad. The extent to which government or its agencies (normally DFAT) can deliver effective help depends on various factors but principally two; the nature of the difficulty, and the nature of the foreign regime and society.In relatively simple cases such as a lost or stolen passport the Australian citizen needs to visit an Australian embassy or consulate (or where we are not directly represented the offices of the representing country) and satisfy the identification requirements etc. Most (in my now dated experience) requests for consular assistance are where a robbery or other mishap has befallen the Australian citizen and our consular officers are able to provide appropriate assistance after establishing bona fides etc.The cases which attract the most controversy and media attention are those where an Australian citizen is charged with a criminal offence or is prevented from leaving a foreign jurisdiction after being party to some dispute which engages influential interests in the country concerned.Family members or other closely interested parties here in Australia have often been very strident in some highly publicised cases where the media have repeated unrealistic demands for the government and its agencies to achieve a result which in the circumstances was simply not possible. Australia has good influence and leverage in some countries. In some others it has very little, especially where a case has been highly publicised and involves sensitive religious and political interests.Perhaps the most persistent claim of Australian government failure to provide effective protection of its citizens abroad is that of the 1975 killing by Indonesian army personnel of a small party of print and photo journalists based in Australia, who went to Balibo, East Timor, and camped in a deserted house just over the border from Indonesian West Timor. Their purpose was to await the arrival of invading Indonesian forces and to send reports and pictures of the imminent invasion back to Australia. They were discovered by an Indonesian group sent in prior to the main force of the invasion and all were killed. It is unclear at what point the Australian embassy or intelligence discovered what had happened, but word got out soon and there were strong demands that the Australian government seek a full explanation from the Indonesian government. If the journalists had been killed by Indonesian troops then the Australian government should demand an explanation etc. Those responsible have never been charged.Sometimes it has been suggested that the journalists should have been officially warned more forcefully not to go to Balibo but the main complaint kept alive by surviving family and others has concerned, what they assert was, the Australian government’s failure to condemn the Indonesian invasion and to forcefully demand a full investigation and bringing to account of those responsible for the murder of the journalists.

In fact the five were warned in Darwin by the representative there of the Department of Foreign Affairs when he became aware of their intentions. Again in East Timor on the way to Balibo they met a group of Australian media men on the way out from the border who warned them that the Indonesian invasion was imminent and that it was too dangerous to stay in its path. Shackleton and the others disregarded these warnings, painted the Australian flag on the wall of the house and awaited the arrival of the Indonesian invasion. The party that discovered them was presumably seeking to avoid detection and would not have wanted premature disclosure of the invasion plan and route.

The Australian government could not have reached the journalists in Balibo even if their location had been known. They had anyway been warned not to proceed with their plan but had persisted. For a considerable time after the event the Indonesians obfuscated and gave no account of their fate. There was not much the Australian government could do until it had clear evidence that could be used in a protest (and that precludes any evidence they may have had from secret sources).

For many years afterwards there were allegations of various sorts that the government had failed in its duty to protect Australian citizens and to demand that those who harm them be brought to justice. But there is also a responsibility on Australian citizens or others who claim Australian government protection (not all the members of the party were Australian citizens although based in Australia) to exercise reasonable prudence.

The current case of Mr Peter Greste may have occasioned this Burning Question. Without any direct knowledge of the matter two things seem to stand out; Mr Greste has been caught up in a politico/religious issue in which powerful interests in Egypt are at stake and where innocence of any criminal offence is not a protection, secondly unremitting efforts at all levels have been made by the Australian government but these have been unavailing.

Mostly the Australian government is able to help its citizens abroad but sometimes it is not (see paragraph one above).

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