Mon, 11 Feb, 2019
What will your country do for you? Aussies in trouble overseas
The passport all Australians carry overseas is not just an entry or exit permit in and out of countries. It represents our nationality and our rights when abroad, as well as the rights and duties the government has towards its citizens overseas.
Breaking the law
Of course, Australian nationality is not a shield. Every Australian is still bound by the laws of the country she or he visits.
If the laws of that country are broken then the offender has to face the consequences of their actions under those laws.
If an Australian is arrested or detained, then the government will provide a range of services. These are set out in a handy information pack on the smartraveller.gov.au website.
Help when you need it
Consular assistance is available for all manner of incidents when Australians are travelling overseas.
For lost or stolen passports, victims of crime, or illness requiring medical assistance —consular assistance can be the bridge between an Australian and the foreign country.
Consular assistance can also provide information about the facilities available and relevant procedures in that country.
A right to consular assistance may not seem like strong protection, but it has been known to be the difference between life and death.
Take the case of Angel Francisco Breard, a Paraguayan national arrested in the United States for a capital offence and never informed of his right to contact his consulate.
Rather than plea bargain, Breard chose to confess on the stand because in Paraguay it helps to throw yourself on the mercy of the court.
In the United States, it ensured he was convicted and ultimately executed.
Paraguay challenged the United States’s violation of consular rights before the International Court of Justice.
Paraguay argued that if such assistance had been available then Paraguayan consular officials could have explained how the US criminal justice system operates.
An early guilty plea may have resulted in a life sentence rather than a death sentence.
A strain on resources
A difficulty to bear in mind for Australian travellers overseas is that increasing demands of Australian travellers have strained available government resources.
Australia does not maintain consulate offices in every country. When Australian, Jock Palfreeman was arrested on charges of murder with hooliganism in Bulgaria, it was reported that Australian officials had to travel from Greece to meet with him.
When former Australian Army soldier, Robert Langdon was being held in Afghanistan on murder charges, Australian officials asked for him to be moved to a different prison as the first one was in an area too dangerous for consular officials to visit.
If Australia does not maintain consular offices in a particular country, then it may be the case that such services will instead be provided by a Canadian embassy.
Will I be evacuated?
Assistance from the government becomes all the more important when Australians overseas find themselves caught in a natural disaster, or a war zone, or areas of civil unrest.
Australian consulates become a vital link between families at home and Australians caught up in these disasters or conflicts overseas.
In these extreme situations, the Australian government may provide assistance to evacuate its nationals.
Government evacuations are not necessarily a free ticket home, however. The United States has charged its nationals for flights specially arranged to take them out of war zones.
Under no obligation
A key point to remember here is that the Australian government is not required to provide any particular assistance to its nationals.
The assistance set forth under the Vienna Convention on Consular Relations is ultimately quite limited.
Australia may have a bilateral treaty elaborating on consular relations, but these are rights that fall to the government and that the government may choose to exercise or not exercise in any given situation.
This state-centric focus is entrenched in the right of diplomatic protection.
Under international law, diplomatic protection refers to the right of a state to take up the claim of one of its nationals and assert that right against another state.
So Australia could exercise a right of diplomatic protection on behalf of the ringleaders of the "Bali Nine", Andrew Chan and Myuran Sukumaran, who have exhausted their appeals against their death sentences in Indonesia.
Australia could take the view that Chan and Sukumaram’s right to life has been violated because of the imposition of the death penalty for drug-trafficking, an offence that is not serious enough to attract the death penalty.
Yet what steps Australia decides to take for its nationals is a decision for the government.
A government decision
The right of diplomatic protection rests with the state and not with the individual. An individual cannot compel his or her government to take up their claim against another state.
There is some precedent to suggest that a government must at least consider whether it will exercise the right of diplomatic protection.
This argument was made by lawyers for David Hicks during his detention in Guantanamo Bay. Of course, considering whether to act is not the same as acting.
Ultimately, what consular assistance is provided is a decision for the government.
Nationality carries rights, but they are not necessarily rights that can be enforced against your own government.
Australians overseas should make no mistake that they are the ones most responsible for their safety.