CHAPTER 1
INTRODUCTION
Reference to Committee
1.1 On 24 August 1995, the Senate referred to the Senate Foreign Affairs,
Defence and Trade References Committee the matter of the appropriateness
and effectiveness of the Australian Government's provision of consular
assistance to Australians abroad and measures that could be taken by
the Government to improve the handling of consular matters. The Committee
was required to report on or before 30 November 1995. This was subsequently
extended to 30 June 1996. On 30 May 1996, the Senate adopted the report
of the Committee recommending that the inquiry be continued in the new
Parliament and report by the last sitting day in 1996. The reporting
date was further extended to 30 May 1997 and further to 18 June
1997.
1.2 On 31 August 1995 the Senate agreed to a resolution moved by Senator
Michael Baume that noted the establishment of the inquiry and drew to
the Committee's attention the case of Dr John Flynn who was, at that
time, in gaol in India.
Conduct of the Inquiry
Submissions
1.3 The inquiry was advertised in the national press on 2 September
1995 to seek written submissions. In addition, the Committee wrote to
a number of individuals and organisations with an interest in the inquiry
inviting them to make written submissions. In all, 45 submissions
were received. The Committee also received written comments on the evidence
provided by other witnesses and answers from Government agencies to
questions taken on notice. A list of submissions and other written material
received by the Committee and whose publication it authorised is listed
in Appendix 1.
Public hearings
1.4 The Committee focussed on the broad consular issues in the early
hearings on 9 and 16 September 1996, in order to gain a better understanding
of consular services provided by the Australian Government before dealing
with individual cases. The Committee then sought evidence from individuals
on the consular issues and problems arising from a number of the cases
specified in terms of reference, including the cases of Mr David Wilson
and Mr Ben Maresh, and other cases contained in written submissions.
The Committee then sought responses to this evidence from the Department
of Foreign Affairs and Trade.
1.5 Following the hearings with the Department Foreign Affairs and
Trade on the cases of Mr David Wilson and Mr Ben Maresh, the Committee
gave members of the Wilson family and Maresh family the opportunity
to present their responses to the Department's oral evidence and additional
information received from the Department. These hearings took place
in Melbourne on 11 March 1997.
1.6 The Committee also sought evidence on specific issues related to
consular assistance from Government agencies and other organisations
including the Australian Funeral Directors Association, the Australian
Federation of Travel Agents, Schizophrenia Australia Foundation (SANE
Australia) and the Insurance Council of Australia.
1.7 In all, the Committee held hearings on 13 days. A list of people
who gave oral evidence to the Committee is in Appendix 2.
Calling of witnesses
1.8 In correspondence and evidence before the Committee, the family
of Mr David Wilson appealed to the Committee to seek evidence from General
Chea Dara on his role as negotiator during the Cambodian hostage crisis.
At the Committee's first hearing with the Wilson family, the Chairman
indicated that the Committee had attempted, through various sources,
to have General Dara either come to Australia and appear before the
Committee or to give evidence in Paris where he was resident. On 11
March 1997 the Chairman further stated:
When this matter arose on the previous occasion, given some
of the difficulties involved in making the appropriate arrangements,
I was not in a position to comment further. But I can now advise you
that the committee made attempts to interview General Chea Dara in
Paris. Arrangements were made whereby a member of this committee,
who was to be in Paris at that time, would interview Mr Dara in front
of an appropriate witness and there would be a transcript taken and
translators would be available. All those arrangements were set in
train, but we were advised that General Dara did not wish to appear.
In those circumstances, we could not take the matter further.
It was most unfortunate. We were not advised of any reason as to why
he could not appear ... We were just advised that he was not willing
to appear. I do not think the committee could have done any more than
that. [1]
1.9 At the 11 March hearing, Mr Peter Wilson requested that Mr Alastair
Gaisford, who was present at the hearing, immediately be called to give
evidence. Mr Gaisford had been Second Secretary at the Australian Embassy,
Phnom Penh, during both the kidnapping of Ms Kellie Wilkinson
and the hostage crisis involving Mr David Wilson. The Chairman informed
Mr Wilson that the Committee was not prepared to interrupt the time devoted
to the Wilson family to present its evidence to hear from Mr Gaisford.
The Chairman pointed out that, as is the usual practice in Senate inquiries,
if Mr Gaisford wished to present evidence he could make an application
to the Committee and it would be considered. [2]
1.10 Following further consideration of the matter, the Committee invited
Mr Gaisford on 25 March 1997 to make a written submission. Initially,
Mr Gaisford queried the time frame of this request and raised the possibility
of giving oral evidence. After protracted procedural argument regarding
Mr Gaisford's status and legal protection if he appeared before
the Committee, the submission was eventually received on 30 April. Subsequently,
the Committee invited Mr Gaisford to appear at an in camera hearing
on Monday 12 May. Mr Gaisford refused to give evidence in camera
and continued to dispute the decision of the Committee. He provoked
the Wilson family to speak to the media which resulted in a number of
disturbing and inaccurate media reports and attacks on the bona fides
of the Committee. Finally, on behalf of the Committee, the Chairman
made a statement to the Senate to place the facts of the matter on the
public record. A copy of the statement is in Appendix 3. Mr Gaisford's
written submission and correspondence between the Committee and Mr Gaisford
were tabled with the statement.
Responses to Adverse Comments
1.11 In a number of submissions to the Committee, individual cases
were discussed in detail, often reflecting in one way or another on
the work of government agencies and individual officers in them. In
some instances, comments were made which, in the opinion of the Committee,
could be regarded as reflecting adversely on the person or persons mentioned.
The Committee, in accordance with the Senate privileges resolutions
of 25 February 1988, provided those persons with the opportunity to
respond to those adverse comments. Where possible, these responses were
made public by the Committee at the same time as the submissions containing
the adverse comments. The list of responses to adverse comments is contained
in Appendix 1.
Access to information
1.12 In June 1995, Mr Tim Wilson, brother of Mr David Wilson, requested
under the Freedom of Information Act, all material held by the Department
of Foreign Affairs and Trade. Of 961 documents examined, the Department
released 441 in full, 254 were released in part and 187 documents were
totally exempt from disclosure. Mr Tim Wilson urged the Committee to
examine all documents in relation to his brother's case. The Committee
sought access to the exempted documents but access was refused by the
Minister for Foreign Affairs, the Hon Alexander Downer, MP. The reasons
for his decision are explained in Chapter 4.
Consideration of Individual Cases
1.13 The Committee's terms of reference specifically named five difficult
and complex cases to be considered by the Committee. The Committee received
submissions relating to four of these cases. The Committee also received
details of other individual cases in both submissions and oral evidence.
1.14 In evaluating the evidence received on individual cases, the Committee
was mindful that the terms of reference directed the Committee to assess
the appropriateness and effectiveness of the provision of consular assistance
including the problems in dealing with difficult and complex cases.
As part of that evaluation, the Committee reviewed the facts of the
case, as far as they were available to the Committee, in order to assess
the appropriateness and effectiveness of the consular assistance provided
to the person requiring that assistance or his or her family. It was
not the role of the Committee to review inquiries conducted by police,
State Coroners or other official investigating bodies to determine whether
there was any validity in criticisms of some of them in evidence given
the Committee. While the Committee did make use of reports of such inquiries,
that use was restricted to gaining a better understanding of the circumstances
of individual cases to facilitate judging the merits of consular assistance.
1.15 Inevitably, in an inquiry of this nature, government organisations,
officers and Ministers are sometimes subject to criticism for their
handling of particular cases. At the end of the last hearing with officers
of DFAT, Mr Robert Hamilton, Assistant Secretary, Consular Branch, commented:
Some of the criticisms that are made of us have been that we
were inconsistent or illogical. I think those are valid forms of criticism
that can be made. Maybe we were and maybe we were not. Some of the
other criticisms though go to our motivations. I find those a little
more discomforting. I think that the people from the department who
have appeared have always tried to tell the truth and we have not
been ill-motivated in what we have said to the committee.
I would like to get on the record a comment that questioning
the motivations of individuals involved, both in consular cases and
in appearances before this committee, seems to me to be an unfortunate
thing. I would reject, on behalf of all those people whose intentions
have been questioned, the assertions that somehow they were working
with some other objective in mind other than attempting to facilitate
the actions of the committee. [3]
1.16 The Chairman responded at the time to Mr Hamilton's remarks:
Naturally in an inquiry of this nature, given the serious and
indeed tragic circumstances that have occurred in a number of cases,
it is always probably going to be the case that allegations and accusations
would be made, going both to performance and also to motivation.
We have endeavoured at all times to try and balance the right
of the witnesses making their complaints or allegations to have their
opportunity to put their views, as well as give an opportunity for those
against whom criticisms or allegations are made to respond. It is unfortunate
that there is no easy way through all that, other than to hear both
sides of the story. [4]
1.17 After due consideration of the evidence, the Committee agrees
that departmental officers were not ill-motivated in the evidence they
gave to the Committee.
Acknowledgments
1.18 The Committee wishes to express its appreciation to the people
who contributed to the inquiry, including those who made written submissions,
appeared before the Committee in public hearings or provided other information.
In particular, the Committee wishes to thank Mr Peter Wilson and Mr
Tim Wilson; Dr John Flynn and Mr Timothy Eakin; and Mr Robert Maresh,
Mrs Denise Maresh and Mr Sam Maresh, for their detailed submissions
and other information and for appearing twice at hearings.
1.19 The Committee appreciates the particular contribution of the Department
of Foreign Affairs and Trade in providing detailed submissions, responses
to other evidence and answers to many questions on notice. The Committee
also expresses its thanks to the Department for giving the Committee
the opportunity to hear the evidence of Mr Tony Kevin and Ms Stephanie
Shwabsky. Both officers made a special visit to Canberra from Phnom
Penh, where they are posted, to give evidence on the David Wilson case.
Footnotes
[1] Committee Hansard, p. 581.
[2] Committee Hansard, p. 565.
[3] Committee Hansard, p. 682.
[4] Committee Hansard, p. 682.