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Clearing the waters on consular assistance

Australians in trouble overseas should be entitled to consular assistance enshrined in law to avoid inconsistencies.

What does Colin Russell, the recently returned Australian Greenpeace activist, share in common with David Hicks, Mamdouh Habib and Julian Assange? In recent years all these Australians have been critical of Australian government consular assistance and support.

In the case of Hicks and Habib it was the Howard government's apparent indifference to their detention at Guantanamo Bay, while Assange was critical of the Gillard government's response to Sweden's extradition request and his belief the US was seeking his extradition for his WikiLeaks activities.

Now Russell has criticised the Abbott government after his Greenpeace ship, Arctic Sunrise, and its 30 crew were arrested by Russian authorities in September following protests over oil exploration in Russian Arctic waters.

Russell claimed the Abbott government's efforts were ''a little bit too little too late'', implying he did not receive the level of consular support that he expected while his case was dealt with by the Russian courts system. While Russell's case was ultimately resolved following a presidential amnesty issued by Vladimir Putin, Australian Foreign Minister Julie Bishop has hit back at Russell's claims by detailing the extent of Australian consular support that was provided, including personal interventions by Bishop.

This is not the first recent occasion when an Australian foreign minister has expressed irritation over criticism of Australia's consular support for Australians abroad. Bob Carr was also outspoken in defending his record, however Julie Bishop has now for the first time flagged that in some instances Australians detained overseas could be billed for the cost of government assistance.

Given Greenpeace's determination to continue its Russian Arctic protests in the future the Foreign Minister has suggested the Abbott government may consider cost recovery if there was a ''deliberate strategy designed to provoke a response and potentially to risk breaking the laws of another country''.


These comments come in the wake of a Department of Foreign Affairs and Trade review Bishop launched in December into Australia's consular strategy. The review flags for consideration a number of key questions, including the level of public expectations for consular services, and whether those expectations and services are mismatched. Submissions, which are due by the end of January, invite comment, for example, on whether consideration should be given to reducing the frequency of prison visits or attendance at trials and other court processes.

There can be no denying that some consular cases can be exceptionally difficult to resolve. In addition to the legal issues, they can also revolve around the state of the bilateral political relationship between Australia and the other country. What then is the position for Australians when they become embroiled in a foreign legal system?

When Australians travel, live or work overseas, they are indisputably subject to the laws of the country they are visiting. Nevertheless, when the application of those local laws violates international law, especially international human rights law, the Australian government has a considerable ability to intervene irrespective of arguments about the need to respect foreign legal systems.

In some instances, consular access and support may be all that is required. In others a more interventionist approach is justified. Bob Carr's active diplomacy in 2012 in securing the release of the Australian International Criminal Court official held in Libya, Melinda Taylor, illustrates just how proactive Australia can become in resolving these cases.

The official level of support Australians can expect overseas is found in the Consular Services Charter. The charter indicates the government's capacity to offer consular assistance is influenced by local laws and customs, and international rules governing consular work, and it lists services that can and cannot be provided.

Nevertheless, while the charter is an important statement as to how the government will respond to an Australian in need of assistance, it avoids any legal undertaking to provide assistance. The Australian position can be contrasted with the United States where the State Department asserts that it and ''our embassies and consulates abroad have no greater responsibility than the protection of US citizens overseas''.

Both past and current consular cases involving Australians detained overseas, and the gulf that sometimes exists between perception on the part of citizens and the reality of the Australian government's capacity to assist, suggest there is a need for a rethink as to how Australia approaches these matters and the Abbott government's consular services review is a welcome development.

At a minimum the right of consular assistance needs to be enshrined in Australian law so that governments have a standard that they are required to meet in providing assistance to Australians overseas, and in the most egregious cases can be held accountable. A Consular Services Act should be enacted. This would build upon the current Consular Services Charter and not only make clear the capacity of the Australian government to represent Australians overseas, but also the legal entitlement of citizens to that representation.

This new act would assist in clarifying the extent of the legitimate expectations citizens have to assistance and representation, and would also go some way to resolving what appear on their face to be inconsistencies in the way in which the Australian government deals with some consular cases.

Donald R. Rothwell is professor of international law at the ANU college of law at the Australian National University.


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