Date: June 06 2012
The possible extradition of Julian Assange from the United Kingdom for charges of sexual misconduct in Sweden has presented an array of complex legal questions. Assange may also have to contemplate an indictment in the United States for legal violations associated with the release of government documents on the WikiLeaks website. The question posed by one of Assange's lawyers has been what Australia should do to help one of its citizens.
When an Australian national is arrested or detained overseas, a series of international law rights and duties immediately arise for both Australia and that national. Assange was entitled to be advised of his right to contact the Australian consulate and he has rights of due process as a matter of human rights law. Whether he has any special rights just because he is an Australian is not a straightforward matter, however.
The Australian government is entitled to provide Assange with consular assistance and the Prime Minister has promised that Australia will continue to do so. These consular rights are enshrined in the Vienna Convention on Consular Relations and are widely recognised in the international community.
The consular services offered by Australia to its nationals arrested or jailed overseas are set out in a government brochure and include visiting the person while in detention, assisting with family contact, providing advice on legal arrangements (though not affording legal advice) and monitoring court proceedings.
Australia will also support an application for a pardon if local law and practice allow. These steps are generally non-controversial in international practice.
Australia cannot, however, simply seek the release of Assange just because he is an Australian national. Every state respects the right of other states to prosecute crimes within their own territory.
At this point, the bigger question is what else Australia might be able to do, or should do, as a legal matter for Assange. Politically, Australia can seek assurances from another country as to what treatment might be accorded to one of its nationals. Australia did so for David Hicks. But these are political, not legal, commitments.
Under international law, Australia has the right to take up the claim of one of its nationals where the national's rights have been violated under international law and assert those rights against another country. This is the right of diplomatic protection in international law parlance. As an initial matter, there is a question as to whether Assange's rights have been violated under international law. The restrictions on his bank accounts and interference with the WikiLeaks sites may not fall into this category.
Most commonly, a failure of due process would warrant the exercise of diplomatic protection. Generally, a country will respect the sovereignty of another country and its judicial processes, and there would not be grounds to interfere prematurely in this regard. For Assange, Australia's right of diplomatic protection may only arise after he has pursued his claims through to the European Court of Human Rights.
Even if there has been an international law violation against an Australian national, the right of diplomatic protection belongs to the government, and not the individual. It is a discretionary matter as to whether the government will exercise the right or not.
Of course Assange's case is not the first one to place the media spotlight on what the government is willing to do to protect Australians arrested or detained abroad. The Bali Boy, the Bali Nine, Schappelle Corby and David Hicks have all had experience of the political forces that influence the exercise of the right of diplomatic protection.
After five years in detention in Guantanamo Bay, David Hicks challenged the government's lack of action in securing his release. His lawyers argued that there was at least a duty to consider exercising the right of diplomatic protection. Fortunately for Hicks, he was released before this case reached its conclusion. It is not clear in any event that requiring a government to think about exercising its right would necessarily assist an individual any further.
In the tug-of-war that may ensue over Assange's prosecution, his Australian nationality is only one factor among many that will be taken into consideration.
Traditionally, it is the country where a crime is committed that will usually have precedence in prosecution. Rather than blank assertions as to the illegality of Assange's conduct, Australia should be looking carefully at its own legislation to determine if there truly is a crime that he has committed here.
It is then that Australia would have a stronger case to claim that he should be brought home.
Natalie Klein is professor and dean of Macquarie Law School, Macquarie University.
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