David Hicks, Stern Hu, Scott Rush, Jock Palfreeman and the Legal Parameters of Australia's Protection of Its Citizens Abroad

By Klein, Natalie | Melbourne University Law Review, April 2011 | Go to article overview

David Hicks, Stern Hu, Scott Rush, Jock Palfreeman and the Legal Parameters of Australia's Protection of Its Citizens Abroad


Klein, Natalie, Melbourne University Law Review


[The arrest and detention of Australians overseas continues to make headline news. What Australia is able and willing to do to assist one of its nationals imprisoned abroad is a complex issue steeped in legal questions and political considerations. Legal avenues for assisting Australians imprisoned abroad are explored in this article through an examination of the relatively high profile cases of David Hicks, Stern Hu, Scott Rush and Jock Palfreeman. In navigating the legal framework, three broad themes emerge: the bond of nationality, the protection of human rights, and the importance of reciprocity. It is argued here that, from both a legal and political perspective, greatest emphasis should be placed on reciprocity in order to best understand the decisions the Commonwealth government may make and the options available to the individuals concerned.]

CONTENTS

I   Introduction
II  Testing the Parameters
    A David Hicks
    B Stern Hu
    C Scott Rush
    D Jock Palfreeman
III Three Broad Themes
    A Nationality
    B Human Rights
    C Reciprocity
IV  Conclusion

I INTRODUCTION

When Australians travel overseas, they are increasingly likely to seek the aid of their government. (1) The reasons for doing so range from lost passports and minor theft, to being caught in the midst of an armed conflict or a major natural disaster. One situation that often receives media attention is the arrest or detention of Australian nationals abroad. (2) The media scrutiny might arise because the crime is not one recognised in Australia, (3) or because the penalty is viewed in Australia as disproportionate to the offence committed. (4) This latter aspect has particularly featured in relation to Australians who have been sentenced to death for drug trafficking offences. (5) The public pressure on the Australian government to 'do something' to assist these Australians has become significant in relation to some individuals who are detained, arrested, convicted and sentenced in foreign criminal justice systems. (6)

This article explores the international law avenues open to Australia to protect its nationals when they are imprisoned abroad. Critical in this regard is Australia's right of diplomatic protection, which is the right of a state to take up the claim of one of its nationals and assert his or her rights against another state. (7) The content of this right has shifted slightly in recent years, (8) and additional rights and duties inhere to the state by virtue of different treaties that may be available to provide further protection to Australians overseas. These treaties include consular agreements, mutual legal assistance treaties and prisoner transfer agreements. The plights of four particular Australian prisoners are examined in this article as a means of demonstrating the parameters of government action in the realm of international law. Governmental rights and duties, as well as the rights of the individuals concerned, will be addressed. The critique provided seeks to highlight the gaps and inadequacies in relation to matters of law, as well as to demonstrate the pervasive influence of political concerns when issues of protecting Australian prisoners abroad arise.

In analysing the international law avenues available and government decisionmaking in relation to these avenues, three distinct themes emerge: the bond of nationality, concerns for human rights or humanitarian considerations, and the importance of reciprocity. The bond of nationality is clearly fundamental in this area, as the government's right to take up the claim of an individual is most commonly predicated on the link of nationality. (9) There has been an increasing appreciation that legal principles need to account for multiple nationalities, (10) or situations where ties of residence are greater than ties of nationality. (11) Yet there have also been instances where states have sought to rely on ambiguities of nationality as a means of denying any need to offer legal protection. …

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