CHAPTER 6

FOREIGN JUDICIAL PROCEEDINGS AND CUSTODIAL LEGAL ISSUES

Introduction

6.1 In this Chapter the Committee examines issues relating to Australians subject to foreign judicial proceedings and a range of custodial and legal issues. Particular reference is made to the cases of Mr James Peng, Mr Robert Bowra and Dr John Flynn as well as to a number of other cases that were drawn to the attention of the Committee in written submissions.

Foreign Judicial Proceedings

Policy

6.2 DFAT submitted that:

Long-standing policy has been for the Government to try to ensure that Australians charged with offences against local law or are otherwise detained have access to appropriate legal defence and receive a fair trial under local law. [1]

And that:

Australian governments have not sought to impose some Australian standard on foreign courts or legal systems, nor have Australian governments sought to interfere in foreign legal processes. This policy has reflected a firm Australian view that foreign governments should not interfere in our domestic legal processes, nor seek to impose their legal or judicial systems on us in Australia. [2]

6.3 Assistance to Australians in this area is guided by the Consular Instructions, which are based on legislation, international practice, ministerial decision and precedent. DFAT acknowledged that complexities in a number of recent cases required greater flexibility than that which is provided for in the Consular Instructions but which, nevertheless, stayed within the limits of international law.

6.4 The resources that DFAT devotes to a case will be directly related to the seriousness of the charges brought against the defendant. In most cases, the person is facing criminal charges. 'Proceedings that could attract punishments defined by the International Human Rights Convention as "cruel and unusual", eg whipping, amputation or death, receive close attention'. [3]

6.5 As to Australian Government intervention in a proceeding, DFAT informed the Committee that:

The Department will seek to intervene in a proceeding where it is clear that an Australian citizen has been discriminated against by virtue of his/her nationality or receives under the process of law less benefit than would be available to a national of the country concerned. In practice, the Department has been prepared to take a less rigidly defined role where trials are unduly delayed, or where there appears to be a miscarriage of justice in process. The issue is whether natural justice is being served. [4]

Expectations of Australian nationals

6.6 DFAT submitted that while in many instances government assistance has gone beyond the strict interpretation of the Consular Instructions, 'the expectations of Australians involved in proceedings, or of their associates, far outweighed the power and authority of the government'. DFAT has observed that there often appears to be a lack of understanding of the Department's efforts on behalf of persons involved in foreign judicial proceedings. Further, that 'limits on the distribution of information imposed by the Privacy Act and the lack of detail about a case in the public domain can lead to such confusion and accusations of inaction'. [5]

6.7 DFAT noted that there is often an 'automatic, and possibly incorrect, assumption that any Australian imprisoned overseas is innocent'. As well, some assume that Australians involved in overseas proceedings will not be given a fair or just trial and that drawn out proceedings indicate 'the ill intent of a foreign government rather than the complexity of the case or the peculiarities of the particular legal system'. [6]

6.8 There are often calls for direct intervention by the Australian Government in proceedings in foreign jurisdictions. This is not possible, as there is a limit to the extent to which the Government can be directly involved in the legal processes of another sovereign state. It is also not possible for the Government to wave a 'magic wand' to have incarcerated Australians released from a foreign gaol.

6.9 DFAT concluded by stating that in foreign judicial proceedings there is a gap between expectations and reality. Although DFAT offers assistance to Australians involved in foreign judicial proceedings, there is a limit to that assistance. DFAT is limited by the extent to which a government can become involved in the judicial process of another sovereign state. Also, because of resource implications, they cannot provide some types of assistance which Australians feel should be provided by the Government.

Intervention by the Australian Government

6.10 DFAT stated that the Australian Government cannot intervene in foreign enforcement processes as international law and convention rule out such intervention. The Government will, however, seek to intervene where there is a question of discrimination or concerns about due process.

6.11 The extent to which the Government should intervene was raised in a number of submissions. Cases cited included one involving alleged violation of US Munitions Export Regulations [7] and commercial proceedings in the Philippines [8] and in Japan. [9] The cases of Mr Peng, Mr Bowra and Dr Flynn are discussed later, but specific details relating to Government intervention are relevant to this discussion. In a submission received from Mr Robert Bowra's business partner, Mr Phillip Nixon submitted that 'there is a tendency to allow the judicial processes to work without question, before DFAT will intervene. While this is clearly understood, it also presumes fair play and reason will prevail in those foreign countries - which of course does not necessarily occur'. [10]

6.12 In an answer to a question without notice concerning the case of Mr Robert Bowra, the then Minister for Foreign Affairs, Senator Evans, stated that:

it simply would not be productive or appropriate, or perceived as appropriate, for us to intervene in this [Mr Bowra's case] any more than we would think it an appropriate action for some other government to take when someone is properly before our courts and undergoing an appeal process on the basis of questions of law or contested matters of fact. It is different if something seems to have gone fundamentally wrong so far as process is concerned or there is some other reason - as, for example, in the Peng case in China ... to make one think that a government to government appeal would be appropriate. [11]

6.13 DFAT submitted that in a number of cases the Government has sought to intervene where there have been concerns about the conduct of a case. For example, in the case of Mr James Peng, the Government was concerned about due process, noting that Mr Peng was involuntarily moved to China without due process being observed by Chinese and Macau officials and then held in detention for 13 months without charges being made. Delays also occurred in reaching a decision on the case once it had been heard.

6.14 As a result of these concerns, many high-level representations were made, the nature, level and frequency being determined by concerns about due process, the opportunity for high-level contact and the existence of a possible death sentence. In an answer to a question on notice on 28 November 1995, the then Minister for Foreign Affairs stated that representations were made at very senior levels of the Chinese Government, including Foreign Minister Qian Qichen and Chinese President Jiang Zemin. [12]

6.15 A further matter raised by the Government was Mr Peng's access to legal counsel of his choice and adequate time to prepare his defence. Mr Peng's family engaged legal representatives but, according to Chinese law, Mr Peng was not permitted access to counsel until formal charges were laid - in his case some 13 months after detention. The Australian Consul in Guangzhou kept Mr Peng informed about the procedural status of the case. Following the laying of charges and setting of the trial date, representations were made to ensure that Mr Peng's lawyers had access to him. Urgent representations were made when Mr Peng's family complained that local officials had obstructed a meeting between Mr Peng and his lawyers. A meeting took place the following day.

6.16 Following Mr Peng's trial and guilty verdict, the Government continued to make representations seeking clemency and the immediate deportation of Mr Peng on humanitarian grounds. The latest representation was made by the Prime Minister, Mr Howard, during his visit to China in March 1997.

6.17 Representations were also made to the Government of the United Arab Emirates (UAE) in relation to the provision of bail for Mr Robert Bowra detained in the UAE following a boat accident. In October 1994 a judge ordered that Mr Bowra be released from gaol. However, this did not occur and the Australian Embassy submitted a formal government-to-government note to the UAE authorities seeking an explanation regarding Mr Bowra's continued detention. The matter was also raised by the Ambassador in November with the head of Consular Affairs at the UAE Ministry of Foreign Affairs. Senator Evans also wrote to the UAE Foreign Minister expressing concern over the case in general and the lack of response to the bail issue. [13]

6.18 While it is clear the Australian Government will seek to intervene in foreign judicial proceedings where questions of due process and discrimination are involved, in the case of Dr John Flynn the question of the distinction between a judicial proceeding and an administrative matter and the Government's ability to intervene was put to the Committee. Dr John Flynn submitted to the Committee that the Australian Government should have intervened with the Indian Government on his behalf in relation to the administrative detention order under which he was detained.

6.19 DFAT responded to this question in the following terms:

While the length of the detention [under the administrative order] was a matter of concern, such detention, under certain conditions, is constitutionally valid in India, and has been shown not be a breach of India's international obligations. As shown by the High court decision to quash the extended detention, there was also legal recourse against abuse of such detention. It is a difficult step for one government to challenge another government's legal processes and the legitimacy of their authorities' actions, particularly when the legal processes are relatively open and familiar, the government is democratically elected, due process is constitutionally required and before all local legal avenues have been exhausted. [14]

6.20 The Australian High Commission in New Delhi did respond to concerns about delays in the case: making representations during 1995 on this matter as well as representations that favourable consideration be given to any application for bail. [15] The Minister for Foreign Affairs, Senator Evans, also raised the case with the Indian Minister of State for External Affairs in May 1995.

6.21 In evidence before the Committee, Mr Eakin, Dr Flynn's Australian lawyer, referred to the limitations of the 'device' of diplomatic representations stating:

The perception that is in the mind of the Australian public is that if our service, our Minister, makes a representation that is an effective device. I interpret what I was told as being that, really, it is not an effective device. It has a very limited purpose. The purpose is for something to be on the record. [16]

6.22 The Committee does not concur with Mr Eakin's conclusion that representations are 'merely mechanical, matters of form'. It is no small thing for a government to make representations to another government in relation to legal proceedings in that other country. In the case of Dr Flynn these representations were at Ministerial level. As to whether representations are an effective device, the impact of any government-to-government communication must in large part rest on the receiving government's attitude to the matters raised. There may be a question as to the timeliness and frequency of representations.

6.23 In relation to the administrative detention, Mr Eakin submitted to the Committee that it was not the legal case that was the concern, that, in fact, 'we were quite content to participate in the system there'. [17] Rather the concern was with the administrative detention order. This order was served on Dr Flynn under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) in order to prevent Dr Flynn from committing further smuggling activities. Mr Eakin stated that the primary reason for the detention was that the Indian courts were about to give Dr Flynn bail. [18] In effect, Dr Flynn submitted, this was a decision to punish him indirectly and without a trial. [19] He maintained that that 'was certainly inhumane and unreasonable and very probably unlawful'. [20] Further, the detention was applied when there was no evidence that Dr Flynn might offend or re-offend against the smuggling law. [21]

6.24 Mr Eakin also put to the Committee that the Department failed to distinguish between a judicial proceeding and an administrative proceeding. Further, that while there is no suggestion that the Australian Government should interfere in the judicial process, the process of the administration of government is different and 'I think it is legitimate for a government to critique the conduct of an opposing government's administration'. [22] According to Mr Eakin, had the Australian Government recognised this difference, then it could have questioned the basis of the detention order. [23] Mr Eakin also noted that in September 1995, the High Commission did seek to intervene in the process with an application being drafted for the High Commission by Ms N Ramakrishnan, who was contracted by the High Commission to provide an independent legal opinion, to seek the exercise of the powers vested in the Central Government under the COFEPOSA. [24] Such an attempt at intervention, he suggested indicated a lack of logic in the Government's stated policy on non-interference in legal matters. [25]

6.25 Mr Eakin said that in relation to the customs case, there was no evidence to support the case, that in fact it is legal in India 'to own, trade and enjoy these coins'. [26] Mr Eakin and Dr Flynn stated that the Department and the High Commission should have known this and acted upon it.

6.26 DFAT responded to these two claims by stating that the distinction between the charges was understood in Canberra, but that:

It has been alleged that we had the incorrect view that we had no capacity to object to administrative detention. It remains our view that we should not have directly interfered at that point in the question of administrative detention. Clearly Mr Eakin and Dr Flynn do not accept that. But, in the context of the government's policy of non-interference in such matters, such matters being the legal processes, we believe that that was right then and probably remains right now. [27]

6.27 DFAT also submitted to the Committee that it is not within its role to weigh up evidence, in this case the value of the coins, and that even if it thought that:

... a person was actually being 'set up' and it was quite obvious to us, or we had real reason to think that a person was being 'set up', then I believe that we would act slightly differently. But the actions that we took would have to be taken in the context of non-interference in the local legal process. Merely because we decide that somebody looks to have been 'set up' does not mean that we can march into court and change the processes. The processes will go on regardless. [28]

6.28 The Committee considers that the attempt by Dr Flynn and Mr Eakin to draw a clear distinction between judicial and administrative proceedings was a little specious. The Committee does not consider that DFAT has any more right to intervene in an administrative proceeding, such as one under the COFEPOSA, than it does under a judicial proceeding. They are both parts of India's broad judicial system.

6.29 Mr Eakin also sought intervention by the Australian Government on other grounds. First, that Dr Flynn's detention was motivated by the fact he was not an Indian citizen as the impact of COFEPOSA is largely against foreigners. [29] DFAT responded:

In this case the court referred to the fact that Dr Flynn was a 'foreigner' in its decision not to grant bail. The question arises as to whether this constitutes discrimination on the grounds of nationality and if so, whether the Government should take up the issue. [30]

DFAT submitted that in the case of Dr Flynn, he was considered a 'non-Indian' and having no connection with India which would indicate that he might not remain in the country should bail be granted. As he was regarded as a 'non-Indian' rather than as an 'Australian', DFAT considered that 'he was not being discriminated against by virtue of his nationality in the strict sense'. [31] Hence, the Department declined to make representations on the grounds that Dr Flynn was subject to discrimination.

6.30 Mr Eakin also sought the intervention of the Australian Government on the grounds of Dr Flynn's health, and that he was not receiving adequate medical attention. [32] When Dr Flynn was arrested he was in poor health. His health problems were exacerbated by his imprisonment and by having problems in receiving appropriate medical attention and prescribed medications. During the period of his detention, Dr Flynn was hospitalised in the gaol infirmary and other New Delhi hospitals. During some of this time, he was in intensive care.

6.31 Dr Flynn provided details of the problems he experienced in gaining medical attention, including the disregard by gaol authorities and police to court orders made in relation to treatment. For example, Dr Flynn states that on 1 August 1994, the magistrate ordered gaol authorities to arrange treatment at Irwin Hospital. He was taken there but received no treatment. Two days later the magistrate again ordered that Dr Flynn be taken to Irwin Hospital for treatment. Two appointments were kept but the gaol did not take him to a third appointment. On 3 September a court order was made to take Dr Flynn to the All India Institute of Medical Sciences (AIIMS) 'following the failure of relevant authorities to ensure Dr Flynn's treatment at Willingdon Hospital'. [33] Dr Flynn also gave examples where gaol authorities, contrary to court orders, had failed to ensure that he arrived in time for appointments; did not take him to appointments; took him to the wrong hospital and delayed treatment as directed.

6.32 Dr Flynn told the Committee:

What happened was a consistent course of disobedience of court orders for my medical treatment. Those applications that the court make that order were in every case violently resisted, clearly in the presence from time to time of Australian diplomatic representatives ...

This is evidently a matter for diplomatic representation. Now why do the functionaries of the government oppose medical treatment for an Australian citizen? Why does the detainer, the man who is now on the run, put pressure on the Escort's hospital to procure a discharge? Why are there these allegations, which were never made by the Escort's hospital, that my condition was this that and the other? To leave out the legal issues altogether, there is something very strange about the attitude in relation to my non-medication or my wrongful medication or disobedience to court's specific orders that I be provided with specific drugs ...

Secondly, the orders of the courts were clear. The fact that they were opposed and subsequently evaded or disobeyed is surely a matter for representation. For instance, if I am pulled about publicly in chains, although that is unlawful, and although the court orders that it should not happen, surely that is a matter for representation. The chains were for the visits to the hospital ...

Those matters are something which, given the extreme length of this condition that I was held in, must have been able to be dealt with. It is impossible that they could not have been dealt with. Fancy the High Commission sending approximately nine letters of a mechanical repetitive nature to the All India Institute of Medical Sciences at the government hospital - the leading one in India, we are told - saying, 'Please send such and such records' and never referring to the fact that the previous letters have not been answered or that the records have not arrived.

When they did finally arrive and were given to me triumphantly, I said that they were incomplete. They had the list that I wrote out of what happened or should have happened, and nothing was done. The detainer prevailed upon the Escort's hospital to cancel or destroy the day-to-day heart beat record that was undertaken for some two weeks, which showed vast variations from day to day. That is because he wanted punishment, not detention, not mere prevention, which is the only scope of this legislation which, it is my contention, does not apply anyway. [34]

6.33 Dr Flynn wrote to the High Commission on various occasions concerning his medical treatment including the denial of effective medial treatment in gaol; the denial of medicines that the court had ordered that he be provided with; and the use of chains during transportation to medical appointments. [35] Dr Flynn also noted that consular officers were unable to visit him in hospital as the Ministry for External Affairs had only approved visits in gaol. Dr Flynn submitted that :

it was clear that the administrators were punishing me in an unusual way - in an inhumane way as well as an illegal one - because we have this curious opposition to medical treatment. We have this strange pressure on the hospital to get me put out. We have the extraordinary denials of consular visits by unauthorised policemen in the face of authority from the Indian ministry. [36]

6.34 The problem of adequate medical treatment was raised by Mr Eakin in a letter to the Department on 3 March 1995. In its reply, the Department stated that there were apparent grounds for Australian Government intervention in connection with Dr Flynn's medical treatment requirements. [37] DFAT submitted to the Committee that it did take up Dr Flynn's concerns regarding his health with local authorities on a number of occasions 'where we made representations to assist Dr Flynn achieve what he was trying to achieve, namely, better medical treatment'. Mr Hamilton concluded, 'I have no reason to doubt that we had some effect on that'. [38]

6.35 DFAT provided the Committee with a chronology of action it had taken in relation to Dr Flynn's case, including representations concerning his health. The following are some of the matters noted in that chronology:

• In September 1994, the High Commission met the Inspector-General of Prisons to discuss Dr Flynn's medical condition. DFAT submitted that the Inspector General of Prisons had contended that the results of the medical examinations which Dr Flynn had undergone during his detention did not warrant his hospitalisation.
• Dr Flynn complained that the results of medical tests had been withheld from him. The High Commission requested copies of these reports on 16 January 1995 and when they weren't forthcoming a Third Person Note (TPN) was sent on 30 January 1995. A further TPN was forwarded on 3 March and 10 July. [39]
• On 9 and 14 September 1995 the Department of Revenue made two formal requests to have Dr Flynn examined by a medical board at the All India Institute of Medical Sciences. The High Commission intervened on Dr Flynn's behalf (on the basis of doctors' reports that he was not well enough to be temporarily taken from Orthonova Hospital) and Dr Flynn did not undergo the medical examinations scheduled on those dates. [40]
• On 12 April 1995 the High Commission sent a TPN to the Ministry of External Affairs (MEA) expressing concerns about Dr Flynn's medical condition. This matter was also raised with the Secretary MEA and other officials during 1995. [41]

6.36 Mr Eakin, however, noted that:

If we look at the department's chronology, the first event following Dr Flynn's arrest on 21 June was on 23 June - a diplomatic note to the Ministry of External Affairs for permission to visit. Three months later, in September, there is correspondence and a meeting with the Director-General of Prisons concerning Dr Flynn's medical treatment and his medical conditions. This was at a time when the High Commission had the benefit of medical opinions and reports from Australian doctors.

In January 1995, the consul asked the Inspector-General of Prisons for a report concerning medical examinations which took place during the previous December-January. On 30 January, there was a diplomatic note to the Ministry of External Affairs, asking for copies of medical reports. In March 1995, a diplomatic note was sent to the Ministry of External Affairs, again asking for medical reports. I received advice from the department on 16 March that the government would continue to make appropriate representations to the Indian government. Up until March, which was nine months into Dr Flynn's imprisonment, there is no evidence of any substantial quiet discussion or political representation in the department's chronology. There is simply what seems to be a mechanical processing. [42]

6.37 The Committee also notes that there appeared to have been little action by the High Commission in response to inaction in carrying out court orders made concerning Dr Flynn's treatment. The Committee notes that in the DFAT chronology the first step taken was to write to the Inspector-General of Prisons on 16 September 1994 seeking an appointment to discuss Dr Flynn's medical condition. The meeting took place on 30 September. Following that, Third Person Notes were forwarded in relation to medical reports on 30 January, 3 March and 10 July 1995 and in relation to Dr Flynn's medical condition on 12 April, 10 July and 9 August 1995. This appears to have been a perfunctory response to Dr Flynn's problems in obtaining medical treatment in accordance with court orders.

6.38 In relation to the assistance provided to Dr Flynn concerning his health, Mr Eakin and Dr Flynn indicated that there was a general want of care and that the Department's own record shows that the representations which were made were 'merely mechanical; matters of form, designed to create an appearance of activity ... no ascertainable result ever followed'. [43]

6.39 The Committee believes that the High Commission should have addressed this matter in a more serious, timely and direct way with appropriate Indian authorities at a senior level. It was not until late April 1995 that a more concerted representational role was played by the High Commission in support of Dr Flynn's medical treatment and continuing detention.

6.40 A further matter of concern was the transportation of Dr Flynn in chains to medical facilities in New Delhi. DFAT responded that it was their understanding that the use of chains was not normal practice and was initiated by prison guards. Dr Flynn wrote to the High Commission on 20 September 1994 raising this matter. When, on 26 September, a magistrate granted permission for Dr Flynn to be taken to a private nursing home, he ordered that handcuffs should not be used. However, DFAT reported that its enquiries had indicated that Dr Flynn was chained again on two or three occasions while being taken from Tihar Gaol to AIIMS Hospital for medical examination during December 1994. Dr Flynn's lawyers filed a petition protesting this action and a court order was granted in March 1995 to prevent the use of chains in the future. DFAT concluded:

According to our records, neither Dr Flynn nor his advocates again raised with the High Commission the matter of the use of handcuffs prior to the issue of the second order in March 1995. Thus no representations relating to the use of handcuffs were made by the High Commission as the matter had been resolved by Dr Flynn's advocates through the judicial process. [44]

Assistance Provided by the Australian Government

Provision of legal advice

6.41 A common complaint received by the Committee was the inability of consular officers to offer legal advice and information about local judicial proceedings. This complaint was raised not only in relation to cases of persons detained and facing judicial proceedings in a foreign jurisdiction but also to commercial and civil proceedings.

6.42 For example, Mr Rob Bowra submitted to the Committee that he was 'unaware of any meeting between the lawyer representing me and DFAT whereby an understanding of the local law, its procedures and consequences was ever investigated or acknowledged'. [45]Dr Flynn and Mr Eakin also made a number of claims about the Australian High Commission in New Delhi in relation to the provision of legal advice and knowledge of local legal matters. For example that:

• the High Commission in New Delhi appeared to have inadequate knowledge of local laws, lacked training or ability to adequately represent any Australian who had become subject to them and required a legal adviser. Referring in particular to the coins found in the residence of Dr Flynn's Indian friend and included with the other coins Dr Flynn was carrying when detained, Mr Eakin said:

In India, any person may lawfully possess old coins. This is a fact that the Australian High Commission officers should have immediately brought to the attention of Indian officials. They failed to do so because of the High Commission's obvious dearth of knowledge of Indian law. [46]

• the fact that Dr Flynn's requests for assistance were passed on to DFAT in Canberra indicated a lack of knowledge of local affairs and cultural issues, insufficient training and inadequate knowledge of Australian requirements in locally recruited staff. [47]

6.44 Mr Eakin discussed the role or duty of consular officers in relation to judicial proceedings brought against Australian citizens in foreign jurisdictions arguing that the first step of such an officer would be to establish whether or not those proceedings have some basis. Mr Eakin argued that some independent assessment should be made and that no such assessment was made in Dr Flynn's case. Whilst maintaining that consular officers should not become involved in judicial proceedings, he submitted to the Committee that there are various matters which should be examined such as the need for a citizen to be gaoled and any apparent delays in the judicial process. [48]

6.45 DFAT submitted that under present arrangements the Department and its overseas posts do not have the resources to provide legal advice to Australian nationals nor do they necessarily have officers with legal training. As legal systems vary from country to country, even to provide advice on simple legal proceedings, country-specific legal knowledge is needed and although Australian missions overseas do retain lawyers, this is only for day-to-day legal business of the mission and not for providing expert legal opinions. [49]

6.46 However, in complicated cases, where there has been denial of natural justice or there may be problems with due process, the Department does have a role to play and posts will seek local expert opinions on matters relating to these cases. For example, DFAT cited a case where an Australian had been found guilty of firearm charges. As a result of concerns about the case, an independent legal firm was commissioned to assess the detail of the case and to ascertain whether or not the person had been given due process, whether they had been discriminated against in any way, also an opinion of the competency of the defence and the consistency of the outcome of that case against normal penal codes. [50]

6.47 In this case, the independent legal adviser gave an opinion that due process had been given but the defence was incompetent. DFAT sought funding from the Attorney-General's Department to meet the cost of an appeal lawyer to enable an appeal to be lodged. The application was rejected by the Attorney-General's Department as not meeting the criteria for such assistance. The matter was ultimately taken up on a pro bono basis by a local lawyer who won the case. [51]

6.48 In the case of Mr James Peng, as a result of concern that his detention was not in accordance with Chinese law, the Government sought independent opinions from legal experts in Hong Kong and New York regarding Mr Peng's rights during detention in China. The Consulate-General in Guangzhou also undertook research into Chinese legal procedures through discussions with various local public security, legal and judicial organs. [52]

6.49 In the case of Dr Flynn the High Commission in New Dehli sought independent legal advice on the chances of a successful outcome of an application for parole for Dr Flynn if this were to be made by the High Commission. [53] The Committee notes there are other cases where the Department has sought independent legal advice including the cases involving the rape of Australian tourists in Greece and Turkey

6.50 DFAT submitted that there were several matters, apart from the funding implications, to be addressed if the Government decided to extend legal services available at overseas posts. First, the Government would need to be conscious of its liability, both in law and in the public eye, for advice or guidance given on legal processes.

6.51 Second, the role of a government is to press for the quick resolution of a matter not to work for a particular outcome. 'For the Government to take on a quasi-defence role would require that it make a decision as to a person's guilt, unless it wished to defend all cases ... Any third party, including the Australian Government, has no sanctioned role in this process any more than Australia would allow other governments to interfere in our legal processes.' [54]

6.52 Third, should the Government make a judgement as to whom it will provide assistance, for example a witness required in a foreign jurisdiction as opposed to a person accused of a crime; or those in criminal cases as opposed to those conducting civil cases; or victims of crime seeking compensation.

6.53 The Committee believes these are cogent and persuasive arguments against Australian missions providing legal advice or assistance to Australian in civil or criminal proceedings overseas. Moreover, Australian missions have neither the expertise nor the financial resources to undertake such functions. Protracted proceedings in some countries could result in huge legal costs.

6.54 Where a mission believes that an Australian has not been given due process, has been or may be subject to cruel punishment in international human rights terms or has been subject to discrimination on nationality grounds, the Committee believes that the mission has a responsibility to assist that person.

6.55 The Committee recommends that, where necessary, the mission should continue the practice of obtaining legal opinion from local lawyers if it believes that an Australian has not been given due process, has been or may be subject to cruel punishment in international human rights terms or has been subject to discrimination on nationality grounds.

List of lawyers

6.56 Each Australian mission overseas maintains a list of lawyers, all of whom speak English. The list is given to any Australian who requires legal assistance in that country. It is the responsibility of that person, not of the mission or the Australian Government, to engage a lawyer and to meet the legal costs involved. A mission always provides the names of a number of lawyers from among which one can be selected; it never recommends any particular one. [55]

6.57 Dr Flynn criticised the list he received in New Delhi because it did not identify the particular court in which the named lawyers were eligible to practise. He told the Committee:

... under the Indian legal system there are tiers of advocates. The court structure is not dissimilar to our own in terms of hierarchy. They have the Court of the Metropolitan Magistrate, which is the equivalent of our local court. The vast majority of lawyers have authority to practise in that court. The next court up the rank is the Sessions Court, which is something between the Magistrates Court - our local court - and the District Court, but not quite to that standard. Those same advocates practise in that jurisdiction.

The next tier up is the High Court, which would be the equivalent of our District Court. A more limited class of practitioner can practise in that jurisdiction. In fact, you have to be voted to appear in that jurisdiction by the Bar Association. On top of that, there is the Supreme court, which would be the equivalent of the Australian High Court. A very limited class of legal practitioner appears there - they are mostly the equivalent of senior counsel. The class of advocate on the list provided by the High Commission would be basically the magistrates in Sessions Court, who are lawyers, with a few who would have the authority to appear in the High Court. I conclude by saying that the lawyers who appear in the High Court will not appear in the Magistrates Court or Sessions Court. So there is a need to engage different horses for different courses. [56]

6.58 Mr Hamilton acknowledged that 'there may be some validity' in Dr Flynn's comment and that 'perhaps we should be giving slightly more guidance on the nature of the services that lawyers can provide'. [57] For most Australians, imprisonment overseas would be a traumatic event. Having to contact a number of lawyers to find one who can practise in the relevant jurisdiction would be most frustrating, which would only add to the prisoner's mental turmoil. In any event, it is commonsense for the list to identify the jurisdiction in which each lawyer named can practise. In addition, if any lawyer on the list is known to have a specialisation in any aspect of the law, that specialisation, and any other pertinent information, should be included, as is required by the Consular Instructions. In most places, it should not take much time and effort on the part of consular officers to ensure that the list is a useful tool for an Australian to obtain appropriate legal advice. It appears that the New Delhi list was not such a useful tool.

6.59 The question of the quality of the lawyers on the Australian mission's list was also raised in the inquiry. Mrs Seymour complained in her submission that the lawyer, whom she retained in Athens following the death of her son, did not meet the standards expected from a professional lawyer. The Consular Instructions provide for posts to 'make available a list of reputable lawyers in the area'. [58] The Instructions are mute on the method of compiling such a list. DFAT was also unable to tell the Committee on 5 December 1996 how the New Delhi list was compiled. Mr Hamilton told the Committee:

I am not sure what the criteria are in India. If there is a formal list issued by a local bar association and we are aware of it, then we would tend to use that list. But we also look for people who are English speaking, on the presumption that Australian citizens would prefer to deal with an English speaking lawyer. In some countries it is word of mouth and local reputation, as much as anything else. Since ... we have really no capacity to go and actually test their competence, it becomes a slightly hit and miss affair. If there are lists locally available as there are, I gather, in the United States, then we pass on those lists. [59]

6.60 The Committee acknowledges the difficulty in compiling a list of lawyers who are 'reputable' and would provide proper legal advice to Australians. Most Australians receiving a list of lawyers from an Australian post would expect the lawyers listed to be reputable, notwithstanding any disclaimer on the list that no responsibility is accepted 'for the competence or probity of the lawyers mentioned'. [60] The Committee believes that consular officers at a post have a responsibility to ensure that, as far as practicable, the lawyers listed are, in fact, reputable. Feedback from Australians who have used local lawyers, word-of-mouth advice from expatriates and from the local community, should go some way to keep lawyers, whose professionalism and probity are questionable, off the list. Conversely, local English-speaking lawyers with a sound professional reputation should be added to the list. In other words, the list of lawyers should be kept under review to ensure that, as far as practicable, the lawyers on the list meet acceptable standards. The Committee realises that in some countries, where the rule of law is not as developed as in Australia, the relevant Australian post, which may not even be resident in the country, may have problems in compiling a list of appropriate lawyers. In such circumstances, the consular officers in the post should do the best they can and advise recipients of the difficulties involved in obtaining legal representation.

6.61 The Committee recommends that Australian posts overseas take steps to ensure that, as far as practicable, the lawyers included on lists provided to Australians in need of legal advice are reputable. Where applicable, the jurisdictions in which each lawyer can practice should be shown.

Translation/interpreter services

6.62 The Australian Government does not usually provide translating or interpreting services for persons involved in foreign judicial proceedings. Australian posts do have personnel who can provide these services for general post business. DFAT pointed out that judicial proceedings in foreign countries often necessitate specialised interpreting and translating services that are usually not available within Australian posts.

6.63 While, DFAT submitted, 'in some cases an interpreter may be crucial to justice being served, if for example an interpreter provided by the host-country were not of a high enough standard to ensure the accurate transmission of information to allow a fair trial', [61] it is not the usual practice to ensure that adequate translation services are available. However, DFAT has, in special circumstances, provided both interpreter and translation services. For example, translations of documents pertaining to the death of Mr Adrian Pendergast were undertaken on behalf of the Embassy in Pretoria and translation of documents were undertaken in the case involving the rape of a woman in Greece.

6.64 The lack of provision of translation or interpreter services was a common complaint in submissions received by the Committee. [62] The services sought were required in a variety of situations from interpreting in courts to the translation of legal documents, autopsy reports and police reports. The Committee understands that to provide these services as a matter of course would require the commitment of significant resources.

6.65 However, in the case of Australian victims of crime and those facing serious charges in overseas jurisdictions, the Committee recommends that DFAT provide them with translator and interpreter services.

Australian witnesses required in foreign jurisdictions

6.66 The Attorney-General administers the Mutual Assistance in Criminal Matters Act 1987 (the Mutual Assistance Act). This Act provides for Australia's formal arrangements with foreign countries on the provision of assistance in relation to the investigation and prosecution of crime and the recovery of the proceeds of crime. Under these arrangements, a foreign country may request Australia to assist in arranging for a person within Australia to travel overseas to give evidence in criminal proceedings. The person in such a situation would be in a position comparable to that of a prosecution witness if the proceedings were taking place in Australia.

6.67 The Attorney-General's Department drew the Committee's attention to a concern arising from arrangements under the Mutual Assistance Act. Mr Christopher Meaney, Assistant Secretary, International Branch, pointed to two cases involving the victims of crime overseas and difficulties that arose because of differences in judicial systems. Both cases involved the rape of Australian women tourists.

6.68 The first involved a woman allegedly raped in Turkey in June 1992. The victim reported the alleged attack to the Australian consul and made a complaint to Turkish authorities. After the victim's return to Australia, Turkish authorities requested that evidence be taken in court from the young woman and her two travelling companions. This evidence was forwarded to Turkish authorities for use in the criminal proceedings. Although the woman was not required to attend court in Turkey to give evidence, Turkish authorities requested a 'petition of intervention' (a document required by the public prosecutor confirming that she was the complainant and she intended to pursue the complaint) be lodged by her.

6.69 The Attorney-General's Department organised the petition and forwarded it to the Turkish Court. Mr Meaney stated that 'the Australian Embassy in Ankara suggested that consideration be given to engaging local legal representation for the complainant before the court in Turkey. This of course, would not be the usual practice in Australia.' [63]

6.70 The engagement of local legal representation was suggested by both the public prosecutor and the Embassy's lawyer. While it was noted by the Embassy's lawyer that the trial of the accused would have proceeded whether or not a local lawyer had been engaged on behalf of the victim, it was indicated that such action 'may be of considerable assistance to ensure the matter proceeded to resolution'. [64] Turkish authorities did not indicate that financial assistance for this would be available from Turkey. Mr Meaney noted that this would have put the woman to considerable expense 'to have to engage a lawyer in a foreign country in effect to run collaterally your own private prosecution'. [65] The accused was eventually convicted on the documentary evidence and sentenced to five years imprisonment.

6.71 The second case involved the alleged abduction and rape of a woman in Greece in May 1991. The incident was reported to the Australian consul and a complaint made to Greek police. The victim returned to Australia and, after four postponements of the trial, Greek authorities requested that a summons be served on the woman requesting that she attend the Greek court proceedings against the person charged over the incident. She was also advised by Greek authorities that it would be useful for her to be legally represented in the proceedings.

6.72 The young woman concerned had been severely traumatised by the assault and did not have the financial means to return to Greece. Following negotiations involving Attorney-General's Department and DFAT, the Greek authorities agreed to provide an economy class air ticket and a basic living allowance. However, they declined to provide assistance to a companion to accompany the woman or any legal expenses that she may incur. DFAT also submitted that it and the Embassy in Greece provided advice to the woman's Australian solicitor on aspects of the case and Greek judicial procedures including details of the defendants; the charges laid; legal procedures; what would be expected of the victim as a witness; and the evidence the prosecution would use in a trial. The Embassy in Athens also obtained and had certified copies of the victim's statement to police and an unofficial translation (done by consular staff) was provided.

6.73 The woman decided, in the end, not to attend the court proceedings in Greece and instead statements from her and her travelling companion were submitted to the court. However, a Consul and translator from the Embassy attended the court hearing and reported the results to the woman and to DFAT in Canberra. A translator for the trial, besides the one provided by the Greek government, was arranged by the Embassy. [66]

6.74 The accused were convicted and sentenced to 5 years imprisonment each. They have now appealed and the Greek court has again requested the woman come to Greece to give evidence.

6.75 In its submission, DFAT noted a number of issues raised by this case:

• Legal costs of pursuing a case from Australia: although the victim of the crime, the woman incurred legal expenses pursuing the case. Further, as she had not engaged a local lawyer, the Embassy was asked to assist in obtaining documents and providing explanations about local laws and processes. DFAT submitted that the resources required to answer these queries were not readily available at the Embassy. DFAT questioned whether the post should engage at Australian Government expense a local lawyer to provide advice; whether, as legal aid in Australia does not provide assistance for overseas actions, financial assistance should be provided to engage an Australian lawyer; and whether the level of government assistance to a person involved in legal proceedings as the accused should differ from the level of assistance provided to those involved as a witness? [67]
• Translating and interpreting: because of the nature of the legal and medical documents in this case, Embassy and DFAT officers were not readily able to provide official translations. Further, in some cases an interpreter may be crucial to justice being served, if for example the interpreter provided by the foreign government cannot offer a translation at a high enough standard to ensure a fair trial. Funding is not currently provided for specialist translation services.
• Funds for the transportation and in-country costs of a citizen involved in a trial: not every country provides funds, or enough funds, to cover the costs of witnesses. In this case, the victim felt she was unable to attend the trial if she had to pay travel and accommodation expenses in advance. She was also unwilling to attend the trial without an escort of her choice.

6.76 The Attorney-General's Department submitted that the Special Circumstances (Overseas) Scheme provides limited financial assistance towards the legal costs and related expenses of a person involved in overseas proceedings, where there are special circumstances warranting such assistance. The Attorney-General may authorise financial assistance where:

• there are special circumstances which lead to the conclusion that there is a moral obligation on the Commonwealth to make a payment; or
• in the Attorney-General's opinion: the merits of the applicant's case for which the assistance is sought; the applicant's lack of means to pay costs; the lack of legal aid for the applicant in the country where the costs have been or are to be incurred; and the applicant's connection with Australia, constitute compassionate grounds for the Commonwealth's meeting some or all of the costs (each of these four considerations must be satisfied).

Typically, assistance is provided where the applicant's liberty is at issue and where the Commonwealth has a direct interest in the matter. The Attorney-General's Department reported that there were few applicants for the fund and only about 25 per cent were successful. Fifty per cent have been rejected and the remaining 25 per cent have not been pursued by the applicant. Those cases that have been successful have been criminal cases and the applicant may have faced the death penalty if found guilty. Most applications for commercial or personal injuries are not successful. [68]

6.77 Funding for the scheme is included in an appropriation to cover applications under 24 statutory and non-statutory schemes. The total appropriation is $1.28 million annually. The Attorney-General's Department provided a statement of expenditure for the Scheme.

Table 6.1: Special Circumstances (Overseas) Scheme, Expenditure 1992-93 to 1995-96

Financial Year	Expenditure
1992-93	$2,500
1993-94	$954
1994-95	$500
1995-96	nil

6.78 The Attorney-General's Department further submitted that:

the Department recognises that Australian victims of alleged offences overseas (and particularly offences against the person) have a legitimate interest in ensuring that the perpetrators of such offences are brought to justice. In some cases involving injury against the person, foreign jurisdictions have suggested that it would be in the interests of the Australian victims to be legally represented by a local lawyer for the purpose of the foreign proceedings.

Although the individual may have received consular assistance while in the foreign country such assistance normally concludes once the person has returned to Australia. There is, the Department submits, a legitimate role for the Australian Government to provide appropriate assistance to Australian citizens involved in judicial proceedings overseas in such circumstances. This would be an appropriate role for consular staff and might include helping the victim 'find their way' through the daunting process of a foreign system. (If no such assistance is provided it might be necessary to consider advising Australians not to become involved in foreign court processes.) [69]

6.79 In evidence, Mr Meaney put to the Committee that:

But it seems to us that in relation to getting justice it is different if you have transgressed the law; I think you have to take the law as you find it, in many ways, as one alternative. It is different in civil proceedings. I think it is totally different in relation to where you are the victim of criminal conduct, and I think particularly in this case, rape of a woman, there is every entitlement that an Australian citizen should be able to expect that they get justice at no more inconvenience to themselves, should I say, than they would be put to in this country, having regard to our criminal justice system.

It seemed to us that, having regard to these two cases, notwithstanding that at the end of the day perhaps justice was done, there was considerable trauma - particularly the second person that I quoted was very traumatised. She has, I understand, attempted to commit suicide three times because of this conduct. She was put through an unnecessary amount of trauma. You have to face the fact of the trial and the sort of evidence you are going to have to give, anyway. But having to be put through that sort of process and the possible funding issue that falls back on the individual, we think, is a matter that perhaps could be usefully focused on by this committee, with perhaps some opportunity to make some recommendations. [70]

6.80 DFAT, while noting the special circumstances of the victims of crime, raised a number of issues:

• whether or not the level of assistance provided by the Government to a citizen involved in a proceeding as an accused, differs from the assistance provided to those involved as a witness;
• whether assistance should be given for a civil case, for medical expenses, victim of crime compensation and expenses such as legal costs incurred in Australia by the citizen; and
• which Department(s) should provide funding for further assistance. [71]

6.81 The Committee recommends that in the case of the victims of crimes special consideration should be given to ensure that they have access to adequate legal representation, if required, in a foreign jurisdiction, that travelling and in country expenses be provided if these are not met by the foreign government and that funding for these services be provided under the Special Circumstances (Overseas) Scheme.

Prisoners

Policy

6.82 DFAT submitted that the Government and the Department take the view that:

there is a responsibility to all Australian citizens overseas, including those who have been found guilty of committing criminal offences and/or been imprisoned. Moreover, the level of consular assistance that the Department extends is not contingent on the nature, or alleged nature, of the crimes committed by a person. The Department's Consular Instructions do not distinguish between minor traffic offenders, drug offenders and murderers. [72]

6.83 The Consular Instructions state that the objectives of the activities relating to prisoners are to ensure that, so far as possible:

• prisoners are able to see an Australian consular officer and receive consular assistance on a regular basis;
• where a person is charged with offences against local law or otherwise punished, that person has access to appropriate legal defence and receives a fair trial under local law;
• that Australians imprisoned abroad are treated no less favourably than local citizens confined for similar offences; and
• that the basic needs of Australian prisoners are met and that the prisoners enjoy humanitarian standards of prison welfare.

International Law and The Vienna Convention

6.84 Consular assistance provided to prisoners is limited by the principle in customary international law of non-interference in the internal affairs of other sovereign states. Under the Vienna Convention on Consular Relations, the rules of customary international law continue to govern matters unless a matter is expressly regulated by the Convention. As the Convention only regulates consular access and the right to be notified of the detention of nationals, Australia can assist prisoners to the extent allowed by local law and practice. Exceptions to this are cases where:

• a prisoner's basic human rights, as established by internationally accepted instruments, are not being respected;
• prisoners are being treated in a demonstrably worse fashion than local prisoners;
• where a death sentence has been passed; or
• where a prisoner is seriously ill and the Government is not satisfied that adequate medical treatment could be obtained through normal consular channels.

When these exceptions occur, consideration would be given to representations at higher levels of government.

6.85 Article 36 of the Convention covers access to detained persons. The Convention specifies consular officers' rights to visit, converse and correspond with and arrange legal representation for nationals who are in prison. Action will only be taken on behalf of a prisoner if the prisoner agrees.

6.86 The Convention also obliges the authorities of a State to inform the consular post without delay if they have detained one of its nationals, and the detained person requests it, and to forward any communication from a detained person to that person's consul. The authorities must inform the detainee of these rights. Further:

The rights of prisoners are ... reinforced by the Declaration on the human rights of persons who are not nationals of the country in which they live, which provides that 'any alien shall be free at any time to communicate with the consulate or diplomatic mission of the state of which he is a national'. [73]

6.87 The International Convention on Civil and Political Rights also makes specific provisions relating to persons arrested or detained with Articles 9, 10 and 14 covering the right to trial within a reasonable time; humanitarian treatment of detained persons; equality before courts and tribunals; rights to assistance of an interpreter; and double jeopardy.

Assistance to prisoners

6.88 DFAT submitted that approximately 1,000 Australians are arrested overseas each year and as at 30 June 1996 there were 184 Australians imprisoned overseas about which the Department had information. The greatest number of prisoners are held in New Zealand (28) followed by Thailand (23), US (20), Greece (16) and UK (12). Just under 40 per cent are imprisoned for drug-related offences and the length of custodial sentence varies from those sentenced to only a few months to those who have received death sentences subsequently commuted to life imprisonment.

6.89 DFAT noted that Australians appear to have an unrealistic or imperfect understanding of what the Australian Government can and should do on behalf of prisoners and that the law of the state they are visiting prevails. Conditions in overseas gaols vary greatly and, in some countries, conditions are harsh with prisoners being housed in crowded, sometimes dirty facilities with little or no privacy and with limited access to appropriate recreational or medical services. However, government intervention can only be accorded if rights under international law and conventions are infringed.

6.90 Mr Fisher, in response to concerns expressed by the family of a young man detained in South Africa, stated:

The question of the condition of gaol cells, and indeed gaols generally is, as you know, something that we frequently do get complaints about. I am afraid it is an unpleasant fact that the government does not build or maintain gaols for Australians overseas. If you are arrested overseas you are going to be held in the gaol of the country concerned. I really do not see too many ways around that. We often get complaints from people who are arrested ... wherever we have people arrested, that the gaols are not up to scratch. ... but the maintenance of a gaol or gaol cell is really outside the scope of the Australian government. [74]

6.91 Consular officials visit Australians in gaol once a month depending on an assessment of the prisoners' needs, resources of the post and distance of the gaol from the posts. Many posts operate commercial bank accounts to receive funds for prisoners from family and friends. However, as detailed below, there are restrictions imposed on post-operated bank accounts for prisoners.

6.92 Medical services are not provided by consular officers. Medicare does not cover hospital or medical expenses incurred overseas except where reciprocal health care agreements exist, namely New Zealand, Malta, Italy, Sweden and the UK. In most other countries health care, including medicine, must be paid for by the prisoner or their family or friends.

6.93 In many overseas countries, family and friends are expected to provide additional help to prisoners. For example, in Thailand the prison system provides only limited quantities of nutritionally poor food, no clothing, no bedding and no cooking utensils. Other items such as fans, light bulbs and reading material are not supplied. Paid employment within prison systems is not always available and in Thailand, for example, work opportunities available to foreign prisoners are restricted and the amount of money earned is small (approximately the equivalent of 50 cents per month or A$6 per year).

6.94 In these circumstances, families and friends of prisoners are often relied upon to supply additional financial support to prisoners overseas. DFAT submitted that financial support tends to range from A$100 to A$200 per month but payments are often irregular. In many cases this imposes an additional hardship on families, with aged parents trying to supplement prisoner funds from pensions or small incomes. DFAT noted that this 'point is well understood by the prisoners, many of whom are concerned by this additional burden they have imposed on their families or friends. The uncertainty or irregularity of payments from Australia is also troubling to them.' [75]In response to concerns about prisoner welfare, in 1994 the then Minister for Foreign Affairs, Senator Gareth Evans, agreed that Australian prisoners in foreign prison systems which did not provide a sufficient level of nutritional food and other essential items would be eligible for a fully repayable loan to enable them to purchase these items. The maximum amount of the loan is A$100 per month plus a maximum of A$150 per annum for medical expenses, paid quarterly into the prisoners account controlled by prison authorities or to an approved non-government organisation providing prisoner welfare services. Eligibility to loans are restricted to:

• prisoners who are Australian citizens;
• long-term prisoners or those who are expected to become long-term prisoners;
• prisoners in prison systems which the Department has decided does not provide adequate support for prisoners; perceived deprivations specific to particular prisoners does not constitute a case for financial support;
• prisoners with an assessed need for support; and
• prisoners who sign an undertaking to repay the amount lent by the Government.

Since the scheme was introduced in 1994, the Government has lent A$42,915.36. One prisoner has started to repay their loan. On the scheme, DFAT stated that:

for a small initial outlay by the Government, the scheme has quite clearly improved the physical wellbeing of the prisoners, with a consequent effect on their psychological well-being. Importantly, it has also relieved a financial burden on some of the prisoners' families in Australia. [76]

6.96 In addition, DFAT indicated to the Committee that consular officers offered assistance beyond that strictly required by the Consular Instructions. It cited the example of officers in Bangkok, who, often at their own expense, had worked to improve the conditions of Australians in gaol in Thailand. Officers have arranged access to an English speaking doctor and supplied reading material. The Embassy regularly inspects facilities and holds meetings with prison authorities at which informal representations are made on behalf of the prisoners. DFAT noted that officers had to rely on the co-operation and goodwill of Thai authorities.

6.97 Written submissions to the Committee also indicated that consular officers regularly provided additional assistance to Australian prisoners, with examples of Christmas meals and chocolate being provided by, and brought into prisons by, consular officers:

Our Embassy staff go far above and beyond the call of duty, like at Christmas when staff from many departments [of the Embassy] brought into the prisons and ate with us a wonderful meal which they had prepared in their own time and paid for out of their own pockets.

Not only do these types of things greatly improve morale, they cause a significant tangible difference to the way we are treated by the Thai guards. [77]

6.98 There were other matters raised in submissions as regards comfort and sustenance: for example, a prisoner in the Netherlands who had been extradited from Australia, cited delays and costs of mail as a concern. In his case, he required information and advice from Australian government agencies for the conduct of his case. He suggested that postal assistance from the Embassy would be useful.

6.99 A prisoner in New Delhi indicated to the Committee that the lack of cash in gaol was a very great frustration. He pointed out that British and other foreign nationals were able to keep money at their embassies and get it transferred to lawyers accounts or have money brought to the gaol. Where there are inadequate commercial banking facilities in the country where a UK national is detained, relatives in the UK can send money - postal orders, bankers drafts and building society cheques or cash to the Foreign and Commonwealth Office. The money is then transferred to the consulate nearest the prisoner and can then be passed to the prison in local currency.

6.100 This is not the case with Australian embassies where prisoners are generally encouraged to operate commercial bank accounts to receive funds from family and friends. Transfer of funds through posts is only used in the following limited circumstances:

• where commercial channels are unsatisfactory or where prisoners do not have access to them; or
• for new prisoners and prisoners serving sentences of up to six months; or
• for those who cannot manage their own finances. [78]

A fee is attached for transferring funds through posts.

6.101 The prisoner in New Delhi indicated that he had had problems with receiving funds because his lawyer, who handled his funds, would increase his fees to match the amount sent by family and friends, effectively leaving him nothing for his personal expenses.

Restrictions to assistance

6.102 DFAT submitted to the House of Representatives Committee on Legal and Constitutional Affairs in support of the International Transfer of Prisoners Bill 1996 that:

The increase in Australians facing arrest and imprisonment abroad has made it increasingly difficult to maintain the standard of consular service the Department deems appropriate. To continue to do so will result in conflicting priorities in the provision of consular services abroad, in some cases detracting from our capacity to respond to emergency situations.

And:

Considerable logistical constraints stand in the way of consular officers providing the speedy and effective servicing of Australian prisoners abroad required under the Consular Instructions. These include access problems where prisoners are incarcerated in remote areas or in countries where Australia does not have a resident mission and the cost of servicing prisoner needs in countries with high Australian prisoner populations, both financially and in terms of staff resources. [79]

6.103 DFAT estimated that the cost of providing consular services to those in Thai prisons is almost A$100,000 per year. DFAT illustrated the potential drain on resources of the imprisonment of Australians in remote areas by outlining the case of three Australians who were detained by Indonesian authorities in 1988 because of their diving activities in Indonesia. The trio were detained for 123 days and consular officers from the Embassy in Jakarta spent 71 days working on the case including 22 days on 11 trips to Tanjung Pinang. [80]

6.104 The problems associated with prisoners in remote locations was raised in DFAT's submission to this Committee. DFAT noted that in some cases prisoners are held in outlying areas making consular access difficult. In such cases, the Australian Embassy will seek the transfer of the prisoner to the capital city. This is not always an easy task and local authorities are under no obligation to comply with these requests. However, DFAT indicated that prisoners are usually transferred to capital city prisons.

6.105 DFAT also raised the problem of providing adequate assistance from small posts. In these circumstances, co-ordination of media responses and contact with families may be carried out from Canberra. This allows the small post to better utilise its resources. Assistance from other, larger posts in the region can supplement the small post's resources. In case of Mr James Peng, legal advice was provided from Hong Kong. That post also had substantial contact with family members. [81]

6.106 A more difficult problem is where Australian citizens are detained in countries where there is no resident Australian diplomatic representation but where a particular post has non-resident accreditation. DFAT noted that 'when requests for consular assistance are received from Australians in these countries, it is not always possible, or practical, to immediately arrange for a consular officer to be present'. [82]

6.107 The problems of distance were raised in the case of Mr Robert Bowra. Mr Bowra was imprisoned in Abu Dhabi with the nearest Australian post being one thousand kilometres away in Riyadh, Saudi Arabia. DFAT sought the co-operation of the British Embassy in providing assistance to Mr Bowra. The lack of contact with Australian officials and their subsequent lack of local knowledge was felt by Mr Bowra and his family and friends to have placed him at a disadvantage. Mr Bowra stated:

I did not see an Australian Government representative for weeks after my imprisonment. They chose to obviously rely on what may have been a slightly distorted view of the incident supplied by the British Embassy in Abu Dhabi. [83]

6.108 DFAT submitted that where there is no Australian mission close to the site of the case, 'it is often difficult to provide the optimum level of assistance, due to logistical difficulties like transport timetables, or the more difficult issue of varying political and legal systems within the post's area of responsibility'. [84] However, in response to Mr Bowra's comments, DFAT indicated that the consular officer from Riyadh saw Mr Bowra eight days after he was detained and regularly after that. Mr Bowra was also visited by British consular officers. [85]

6.109 The Committee notes that the expansion of the Honorary Consul system will assist in overcoming problems of Australians detained in countries where there is no Australian representation by providing local knowledge and contacts.

Pardons and Prisoner Transfer Agreements

Pardons

6.110 DFAT submitted that in several countries in which Australian citizens are imprisoned, for example Thailand and Indonesia, pardons are available to prisoners in certain circumstances. Since November 1991 the Australian Government has lent its support to pardon applications by Australian prisoners. Support has been conditional, given only where local law and practice allow and only where a prisoner has already served an overseas prison sentence equivalent to that which would have been served in Australia if convicted of a similar crime here. The Department had used the Institute of Criminology to assist in the calculation of comparable prison terms in Australia. However, as the Institute no longer is prepared to provide such a service, the Department is undertaking this calculation on precedents established by the Institute until a suitable alternative is found.

6.111 In 1993, the Government decided to make government-supported applications one year ahead of the date of the equivalent Australian sentence. It also decided to support or initiate requests for pardons for prisoners even if they had not served the equivalent Australian sentence in situations where special humanitarian considerations existed.

6.112 DFAT reported that four Australian prisoners had been granted pardons in Thailand since 1991. At the present time, there are six prisoners in Thailand who have lodged pardon applications, including one who has been in prison for 12 years and has applied twice for pardons. DFAT noted that in Thailand, Australian Government support for pardons 'undoubtedly had a positive effect' and that in some cases at least lack of government support was seen as a de facto statement of opposition to the applications, although reasons for failure or success of particular pardons are not given.

Prisoner Transfer Agreements (PTA)

6.113 Prisoner transfer agreements are used by countries to allow for the transfer of prisoners in foreign gaols to return to their country of nationality to complete their sentences. Of the multilateral schemes, the Council of Europe Convention on the Transfer of Sentenced Persons is the most significant scheme having 27 signatories while the Commonwealth scheme has six participating countries. Countries have also entered bilateral agreements to implement prisoner transfer arrangements, with the USA having entered 20 such agreements.

6.114 At the present time, Australia is not a party to any multilateral or bilateral agreement for prisoner transfer. However, following pressure from the public, including academics, human rights organisations, prisoner support groups and prisoners, approaches from other countries (US, UK, Sweden and Thailand) and State and Territory Governments, the Standing Committee of Attorneys-General agreed in November 1994 that Australia should participate in the international transfer of prisoners. As the Commonwealth does not administer any prisons in Australia, incoming prisoners would have to be placed in State and Territory systems and prisoners being transferred out of Australia would be serving State or Territory offences. Thus, as well as Commonwealth legislation, complementary State and Territory legislation is required. All States and Territories, except the Northern Territory, have agreed to participate and work for the introduction of relevant legislation in State and Territory parliaments.

6.115 On 21 November 1996, the International Prisoner Transfer Bill 1996 was introduced in the House of Representatives and was then referred to the House of Representatives Committee on Legal and Constitutional Affairs. The Bill provides a framework for Australia to participate in prisoner transfer and for persons who have been convicted by certain international war crimes tribunals to be transferred to Australia to serve their sentences.

6.116 The Bill provides for the transfer scheme to apply to all offences without exception and includes persons who have been released on parole. There is a requirement that all transfers must be consensual, requiring the consent of the person to be transferred, the consent of Australian Government - Commonwealth and State-Territory where relevant - and the consent of the government of the other country. Certain prerequisites must also be satisfied:

• imprisonment must be under a final order, whereby neither the sentence of imprisonment nor the relevant conviction is subject to appeal;
• for transfer to Australia, the person must be an Australian citizen or is permitted to travel to, enter and remain in Australia indefinitely pursuant to the Migration Act 1958 and have community ties with a State or Territory;
• dual criminality, whereby the acts or omissions constituting the relevant offence would, if the acts or omissions had occurred in Australia or the other country as appropriate, have constituted an offence in that country; and
• at least six months of the sentence must remain to be served.

The Bill also sets out two methods for enforcement in Australia of a sentence of imprisonment imposed on a prisoner. The method adopted in relation to a prison will depend on the agreement with the country where the person is imprisoned.

6.117 The Commonwealth will bear the cost of negotiating participation in any appropriate multilateral schemes, bilateral treaties or other transfer arrangements, and the administration of receiving and making requests to other countries. The States and Territories will bear the costs of transfer from overseas and the cost of maintaining prisoners during the term of the sentence in Australia.

6.118 The Bill is yet to pass both Houses of the Commonwealth Parliament. Once it is passed complementary legislation will need to be enacted by the participating States and Territories and a number of administrative steps will need to be taken. Further, the Commonwealth will need to enter into transfer arrangements with other countries.

6.119 In the second reading speech to the Bill, the Attorney-General stated:

Due to cost-effectiveness and scope, it is intended that Australia seek to become party to and implement existing multilateral arrangements such as the Council of Europe Convention and the Commonwealth scheme, and that bilateral treaties be negotiated only with countries which are not parties to a multilateral arrangement to which Australia becomes party, and/or whose preference is for a bilateral treaty or arrangement. [86]

6.120 DFAT indicated that it hoped that legislation would be passed by Australian parliaments during 1997 and that the Department was already looking at draft bilateral agreements. [87] The Attorney-General's Department indicated that it was `trying to keep pressure on [the States and Territories] through meetings such as the Standing Committee of Attorneys-General to try to get the States to deliver in terms of the legislation that they need'. [88]

6.121 The Committee supports the introduction of the prisoner transfer scheme on humanitarian grounds: prisoners will be transferred out of sometimes harsh prison systems, where language problems, inadequate nutrition and health care, religious intolerance and absence of contact with support networks, including family make imprisonment more difficult. The use of the prisoner transfer scheme will also mean that prisoners do not have to rely on the pardon systems. There will be positive resource implications as the scheme will free resources within the Department of Foreign Affairs and Trade both in Canberra and in overseas posts. Evidence to the House of Representatives Committee suggested that there would be net savings for the States and Territories as the outflow for prisoners from Australia was expected to be greater than the inflow from overseas. [89]

6.122 In evidence to the House of Representatives Committee, DFAT noted that:

In broader terms, if Australia becomes a party to international prison transfer arrangements, this would remove a potential source of irritation in bilateral relations. Amongst other things, it would reduce the scope for criticism of the treatment of Australians in foreign gaols, criticism which can appear condescending to foreign governments and which can create international misunderstandings and ill will. [90]

6.123 The Committee recommends that the Attorney-General seek the co-operation of the States and Territories to implement the arrangements necessary for the introduction of the international prisoner transfer scheme.

Bail

6.124 The matter of the Government's standing surety to facilitate a bail application was raised by DFAT in relation to the case of Dr John Flynn. DFAT submitted there were two ways in which the Government could stand surety; first, by lending money to a citizen and secondly, by the Government putting forward a citizen's bail on the citizen's behalf.

6.125 DFAT indicated to the Committee that many Australians offered bail were not in a financial position to lodge bail. Release on bail not only allows unimpeded access to lawyers and assists in the preparation of a defence but also means that a person avoids incarceration in local prison systems which may not provide adequately for prisoners. Further, the demands on consular officers are diminished. Of course, a prisoner on bail would still have to support him or herself until a trial. However, DFAT submitted that although it was not something that it would wish to do routinely, there may be certain circumstances where it may be appropriate to provide a loan so that bail could be lodged. [91]

6.126 In discussion on the possibility of the Government forwarding bail on a person's behalf, DFAT stated that 'the Government would in effect be signalling support for a citizen's application'. With this, DFAT submitted, 'the Government risks lending its good name or support to a criminal act or a person whose integrity may be in doubt'. [92] Further, it could involve the Government in a difficult situation as the Government has limited ability to ensure that a person complies with the terms of the bail or does not abscond before trial. While the passport of a person who owed a debt to the Commonwealth could be cancelled under the Passports Act 1938 and the Government could undertake to do this as part of the bail conditions in order to prevent a person from leaving the country, DFAT submitted that a number of difficulties might arise. First, it may not prevent a person absconding as they could leave the country without a passport or leave before the debt was registered and the passport cancelled. Secondly, the refusal to grant a passport could be open to questions and challenged if the person claimed a passport was needed on medical or humanitarian grounds. Thirdly, it is unclear as to how long the Government could leave a person in a third country without travel documents, if after having cancelled or refused a passport, that person absconds. DFAT submitted that such a decision appeared to involve costs and problems which outweighed the benefits. [93]

Extradition

6.127 The Attorney-General administers the Extradition Act 1988 which gives legal force to Australia's extradition arrangements with foreign countries. Australia may request law enforcement authorities in foreign jurisdictions to arrest and detain fugitives who are wanted in Australia in relation to serious criminal offences against Australian law. Conversely, a foreign government may request the extradition of a person from Australia. The Attorney-General's Department carries out the casework required and liaises with law enforcement agencies in Australia, the Directors of Public Prosecutions and State and Federal police forces. Liaison with foreign authorities, necessary for the processing of extradition requests, is frequently conducted through diplomatic channels, which are the responsibility of the Department of Foreign Affairs and Trade.

6.128 Australia has extradition treaties with over 100 countries. These may be bilateral treaties, non-treaty arrangements (for example the London Extradition Scheme between Commonwealth countries) and treaties inherited prior to Australian independence from the United Kingdom. [94] Australia has a special arrangement with New Zealand whereby the Extradition Act requires the endorsement of New Zealand arrest warrants rather than the more involved extradition process. A number of multilateral conventions to which Australia is a party require parties to either prosecute or extradite persons found in their territory for convention offences. These offences include aircraft hijacking, drug, torture and genocide offences.

6.129 The Extradition Act sets out the matters which Australian courts have to consider before ruling on a person's eligibility for extradition. The Act also sets out the matters which the Attorney-General must consider in deciding whether a person is to be surrendered to another country. For example, Mr Christopher Meaney, told the Committee that the modern test for extradition is that the offence must be sufficiently serious to warrant extradition and, that it must be punishable by a minimum of 12 months imprisonment. There is also a test of double criminality, that is the action must be a criminal offence in both jurisdictions and punishable by 12 months imprisonment in both countries. Persons who may be sought for extradition are safeguarded from cruel or unusual punishment. Mr Meaney also informed the Committee that 'we cannot surrender a person to another country where the offence is punishable by death, in the absence of an undertaking from the other country that they will not pursue that penalty or carry it out if it was imposed. [95]

6.130 The Attorney-General's Department provided the following statistics on extradition.

Table 6.2: Extradition statistics, 1990-91 to 1995-96

1. Extradition requests made by Australia

Year	Cases carried forward	New requests made	Requests granted	Requests refused	Requests otherwise completed
1990-91	15	14	10	1	3
1991-92	15	15	11	nil	1
1992-93	14	16	10	nil	1
1993-94	19	15	8	5	3
1994-95	18	16	14	2	1
1995-96	18	7	9	nil	1

2. Extradition requests made to Australia

Year	Cases carried forward	New requests made	Requests granted	Requests refused	Requests otherwise completed
1990-91	18	19	16	nil	5
1991-92	16	14	7	3	3
1992-93	9	17	7	2	3
1993-94	14	9	2	1	3
1994-95	17	12	7	1	2
1995-96	20	11	11	2	3

Source: Attorney-General's Department, answers to questions on notice, 29 October 1996.

6.131 The Department of Foreign Affairs and Trade has a consular role in relation to the extradition of a person to Australia. Consular officers may be requested to provide assistance to a person in custody awaiting extradition. The Attorney-General's Department submitted that some consular officers perceive a conflict of interest in providing both the appropriate consular assistance to a fugitive as part of the consular responsibility to provide for the wellbeing of an incarcerated Australian national and processing the paperwork that relates to an extradition request. However, the Attorney-General's Department submitted that this is a very narrow view of conflict of interest and that:

In practice, these roles will rarely give rise to any potential conflict, given the nature of the assistance which is considered appropriate with respect to the duties of consular officers and, where required, the administrative separation of the consular assistance functions from the extradition liaison function.

From a more general perspective, the Department considers that when consular officials are dealing with Australian citizens who might be subject to legitimate law enforcement interest within Australia or overseas, the consular role must be tempered by recognition of the interests, and international obligations of, the Australian Government and broader community. [96]

6.132 In relation to the extradition of a person from Australia to a foreign jurisdiction, DFAT does not play a role until the person has been extradited and incarcerated in a foreign prison. The role for DFAT regarding the person extradited is then the same as for all other Australians detained overseas.

6.133 In a submission to the Committee, the mother of a person extradited from Australia to the Netherlands submitted that an Australian national being extradited should be informed of the consular assistance available to prisoners before they leave Australia. She noted that on arrival, her son was suffering from trauma and jet lag and declined consular assistance because he did not understand what a consul was. [97] Consular assistance in this case was provided after the prisoner's mother contacted the Department in Canberra.

The Case of Dr John Flynn

The case of Dr Flynn raises numerous aspects of the provision of consular services to Australians abroad. The Committee has outlined the case below, referring to those matters which it considers are particularly relevant to the scope of this inquiry. The Committee has not attempted an exhaustive description of every aspect of the case.

Background

6.135 In May 1994, Dr John Flynn arrived in New Delhi for a five week stay. On 21 June, Dr Flynn and three travelling companions were detained at New Delhi Airport with over 7,000 coins in their possession. It was submitted to the Committee that these coins included: silver and copper coins brought from Australia by Dr Flynn and declared at customs on arrival; gold, silver and copper coins brought from London and declared at customs at Bombay on an earlier trip in 1994; and gold, silver and copper coins bought during his May trip at an approximate cost of A$1,700. [98]

6.136 Customs officers detained Dr Flynn and one of his companions, Dr Flynn's ward, Sadasivan Mudallier, on suspicion of breaches of the Indian Customs Act for allegedly attempting to export illegally a large quantity of antique coins. [99] Alternatively, it is submitted that the arrest was based upon suspected breaches of the Antiquities and Art Treasures Act, which prohibits the export of old coins without a permit to do so. [100]

6.137 During the airport detention, Customs officers searched the home of one of Dr Flynn's friends, Mr S S Rastogi and found and seized 34,149 copper coins described as being 'of very poor quality and acquired on previous visits'. [101] An additional 319 silver coins were seized from the same residence. [102] The coins seized from Mr Rastogi's residence were added to those seized at the airport. It is submitted on behalf of Dr Flynn that those latter coins should not have been included in the matters brought against Dr Flynn because possession of old coins, in itself, is not an offence under Indian law.

6.138 It was submitted by Mr Tim Eakin, Dr Flynn's solicitor, that whilst detained by Customs officers, Dr Flynn signed a statement under duress and that evidence of that duress is contained in letters forwarded by Dr Flynn to the Assistant Chief Metropolitan Magistrate dated 27 June 1994 and 18 July 1994. Dr Flynn asserts that he signed a dictated statement after being offered false assurances and whilst unlawfully detained and surrounded by officers. [103] These allegations were subsequently denied by the Customs Office. [104]

6.139 Dr Flynn and his companion were arrested and brought before a magistrate at the New Delhi Court. Mr Eakin submitted that the proceedings were in the local vernacular language and that neither Dr Flynn nor his companion were able to understand what was happening. Afterwards, they were informed by a Customs officer that bail had been refused and they were being sent to the Tihar Gaol. Further, Dr Flynn was not informed of the nature of the charges, only that there would be a further court appearance in nine days time. [105]

6.140 After the appearance before the magistrate, two officers from the Australian High Commission in New Delhi spoke to Dr Flynn. According to Mr Eakin, they handed Dr Flynn an 'arrest letter' and a list of lawyers and advised him that 'they could do no more for him'. Dr Flynn informed them that he was ill. The officers were present whilst the Custom's officers seized Dr Flynn's medicines. [106]

6.141 Mr Eakin contends that there were various aspects of Dr Flynn's case about which the Australian High Commission could have made representations on Dr Flynn's behalf. One such aspect was the inclusion of the coins seized from Mr Rastogi's residence in the matters alleged against Dr Flynn. A second was the status of the coins as 'antiquities'. Under the Antiquities and Art Treasures Act, an official decision must be sought from the Director General of the Archaeological Survey of India that a particular item is in fact an antiquity. According to information provided to Mr Eakin, that official decision or declaration was never sought or issued. [107] A third aspect concerns the alleged value of the coins. The Indian authorities valued the coins at $A900,000 compared to the valuation of a 'renowned coin expert' of $A74,000 in February 1995. [108] Fourth, is the manner of the valuation itself. Mr Eakin has highlighted alleged deficiencies in the way the Indian authorities obtained their valuation. [109]

6.142 During the period July to September 1994, Dr Flynn's health deteriorated and he required medical attention. Mr Eakin alleged that although Dr Flynn was taken to hospital on two or three occasions he did not receive any treatment and that doctors had failed to supply prescribed medicine. [110] In summary:

During the first six months after his arrest in June 1994, Dr Flynn consistently put it to the prison authorities, to the Court and to the Australian High Commission that he was ill; and that he had not received appropriate medication and treatment for his conditions. Little benefit resulted. The High Commission had not sought an independent medical examination of his conditions. This is evident; yet they have Dr Flynn's letters and the letters of three of his medical advisers in Australia. [111]

6.143 On 20 August 1994, Customs filed a written complaint in the Court of the Additional Chief Metropolitan Magistrate. On 7 September 1994, Dr Flynn was served in gaol with a provisional administrative detention order under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) [112] on the ground that he was likely to get released on bail and then commit further smuggling activities. Dr Flynn's lawyers stated that it was Indian Government policy that detention is contemplated when the value of the subject matter exceeds about $A120,000 and allege that the overvaluation of the coins by the Indian authorities was induced for the purpose of ensuring his continued detention. [113]In fact, Dr Flynn served approximately 16 months in total in detention, most of it, administrative detention. As of 20 November 1995, the Department of Foreign Affairs and Trade reported that Dr Flynn had served nearly half the maximum sentence he could receive if convicted of the alleged offence, and that the charges alleged against him under the Customs Act had still not been framed despite elements of his case having been heard on more than 30 occasions. [114]On 4 October 1994, Dr Flynn was served with a declaration under section 9(1) of COFEPOSA to the effect that his detention was necessary in order to prevent him from smuggling goods in the future. The order was made by a bureaucrat in the Finance Ministry. It enabled a two year detention order to be made against Dr Flynn instead of the normal one year which applies under section 8(1) of the same Act. [115] On 7 October, as required by law, a COFEPOSA Advisory Board hearing took place. On 20 October Dr Flynn lodged a High Court appeal challenging the constitutional validity of his detention and the validity of extending his detention order to 2 years under s 9(1) of the Act.On 28 October 1994 Dr Flynn appeared before a Central Advisory Board on a hearing of the declaration matter under section 9(1) of COFEPOSA. Mr Eakin described the circumstances of that hearing, at which no legal representation was allowed, Dr Flynn's presentation of his own case was restricted and the evidence against him kept secret. He was forbidden to hear or cross examine witnesses against him. The Board confirmed the original detention order on 8 December 1994 and a two year detention order was made. [116]On 30 December 1994, Mr Eakin wrote to Senator Evans requesting the Government make representations against the administrative detention order. [117]On 13 January 1995, as a result of a court order, Dr Flynn was admitted to a special cardiac hospital under guard and in chains.On 3 February, Mr Eakin received a facsimile communication advising that the Government is generally unable to intervene in the judicial processes of another country unless it can be established that an Australian citizen has received less benefit under local law than a national of that country or was discriminated against on the basis of nationality. [118] Similar advice regarding the role of the Australian High Commission was forwarded to Dr Flynn in a letter from the High Commission dated 2 March 1995. [119]On 3 March 1995, Mr Eakin sought Commonwealth assistance on seven grounds:

• that administrative detention without trial is unfair, more so in Dr Flynn's case because it had removed pressure on prosecution authorities to bring his case to trial;
• that the substantive criteria stipulated in COFEPOSA was not applied in Dr Flynn's case in that there was no evidence that Dr Flynn might offend/re-offend against the smuggling law;
• that the procedures before the Central Advisory Board were grossly unfair in that Dr Flynn was denied legal representation and was unable to hear evidence against him or to cross-examine witnesses;
• that Dr Flynn was in poor health and was not receiving adequate medical attention;
• that Dr Flynn's detention was motivated by the fact he was not an Indian citizen; the impact of COFEPOSA is largely against foreigners;
• that the significance and value of the seized coins were grossly overstated;
• that while COFEPOSA is strictly defined by law to be preventative and not punitive detention, in Dr Flynn's case it had evolved as punitive. [120]

In addition, Mr Eakin foreshadowed an attempt to have the detention order revoked under section 11 of COFEPOSA and requested that the representation be delivered by a senior officer of the High Commission and for further representation should it be unsuccessful.

6.151 DFAT informed Mr Eakin that the only apparent grounds for Australian Government intervention were Dr Flynn's medical treatment requirements and that there did not appear to be any evidence of discrimination under local law which would justify the Government's intervention. Further, DFAT responded to the request for specific assistance to have the detention order revoked, advising that it was a matter for Dr Flynn's legal counsel. [121]

6.152 On 21 March 1995, Mr Eakin requested that the Government make representations expressing concerns about Dr Flynn's health and requesting that an alternative to preventive detention be considered. In response, the High Commission made senior level representations to the Ministry of External Affairs and Office of the Cabinet. The High Commissioner also raised the question of bail and the provision for temporary release under section 12 of COFEPOSA. [122]

6.153 According to DFAT, the High Commission facilitated a meeting between Mr Eakin and the Acting Chairman of the Central Board of Excise and Customs to enable Dr Flynn's section 11 application for revocation of the detention order to be made. [123]

6.154 Dr Flynn's legal representatives filed a petition for parole with the Ministry of Finance on humanitarian grounds under section 12 of COFEPOSA. In July, the COFEPOSA Board rejected the section 12 parole application. DFAT submitted that Mr Eakin advised them that the section 11 COFEPOSA application had not been determined and requested again that the Australian Government take action against the administrative detention order. On 11 August 1995, the Department's legal office approached Mr Eakin for a meeting with the High Commissioner to discuss how the Government might further Dr Flynn's case. [124]

6.155 The 'Free John Flynn Committee' wrote to the Chair of the Joint Standing Committee on Foreign Affairs, Defence and Trade and their letter and subsequent media releases highlighted the facts about Dr Flynn's detention and his poor medical condition.

6.156 The Senate resolved on 31 August 1995 that the Government should take urgent action to secure his release pending the outcome of his case. On 1 September 1995, the High Commission sought independent legal opinion as to the possible success of an application for parole under section 12 of COFEPOSA. The opinion obtained suggested a different course of action was appropriate but the High Commissioner was requested not to proceed with this course until judgment was delivered in relation to Dr Flynn's High Court appeal against the extension of the detention order to two years (lodged on 20 October 1994). [125]

6.157 On 19 September 1995, the extended detention order was quashed by the High Court of New Delhi, ruling that it was invalid on the ground that Dr Flynn had not been informed of his 'right to represent to the empowered authority who passed the order of declaration'. [126] The Court's ruling was confined to that extended detention order. The Court did not make any findings in relation to the validity of the administrative detention order per se.

6.158 Dr Flynn, however, remained in hospital pending his application in relation to the proceedings under India's Customs Act and a proposed bail application which he was then able to make. Following submissions made to the Caucus Foreign Affairs, Trade and Defence Committee, the Committee undertook to make certain representations on Dr Flynn's behalf. Further, a meeting was held in which DFAT briefed Mr Eakin on the assistance which would be provided by the High Commission following the High Court decision. [127]

6.159 On 26 September, Dr Flynn was refused bail by the Delhi Sessions Court, the prosecution successfully arguing that Dr Flynn had no ties in India to give the Court confidence that he would reappear. The Judge was, according to DFAT, further persuaded by the 'very huge' value of the coins in question and that Dr Flynn was receiving adequate medical attention in a hospital of his own choice. [128]

6.160 On 29 September, a new bail application was made and Dr Flynn asked whether the High Commission would stand surety for him. He was advised that the policy of governments not standing surety was standard international practice and that the Government was not in a position to guarantee to the Court that he would abide by bail conditions. On 19 October, the prosecution tendered at the High Court bail hearing that it would not oppose bail provided that the High Commission would undertake that Dr Flynn would be produced when required. DFAT called in the Indian High Commissioner to say that the Government was not in a position to make such a guarantee, but put forward other possibilities.

6.161 At this point (late October 1995) Indian authorities had not charged Dr Flynn under the Customs Act, although there had been more than three dozen Customs Act-related court appearances. The bail application was heard simultaneously with an application by the defence seeking the quashing of all proceedings against Dr Flynn on the ground that the prosecution had never had any evidence, the prosecution only having filed for a certification of the antiquity of the coins a few weeks previously. On 19 October 1995, the Court admitted that latter application. [129]

6.162 In early March 1996, the High Court of India cleared Dr Flynn of all charges. The court ordered the return of his passport. Dr Flynn, however, required an exit visa to leave India. Following intervention by the Minister for Foreign Affairs, the Hon Alexander Downer, MP, Dr Flynn had his visa 'regularised'. Dr Flynn returned to Australia on 15 March 1996. Appearing before the Committee on 13 March 1997, Mr Eakin advised that the Supreme Court of India had finalised its judgment in respect of the appeal lodged against that part of the judgment of the High Court which did not address the primary detention, finding in favour of Dr Flynn. Also, after the High Court quashed the customs proceedings, the Indian authorities sought leave to appeal but the Supreme Court refused leave. In the words of Mr Eakin, 'the principal proceedings are effectively ended and there has been a complete vindication of Dr Flynn'. [130]

Consular assistance

6.163 Apart from the matters already dealt with in the general sections of this Chapter, there are a number of other matters raised by Dr Flynn's legal representative in relation to the consular assistance provided to Dr Flynn. These concern the general assistance provided to Dr Flynn. Mr Eakin submitted that DFAT and the High Commission failed in their duty towards an Australian citizen abroad:

... that Australian Government representatives in New Delhi and Canberra cared little about the fate of one of their own countrymen and failed to diligently attend to their duty of ensuring Indian Government officials treated Dr Flynn humanely and fairly. [131]

Also that officers of the High Commission:

• directed Dr Flynn not to write to the High Commission saying 'we are doing all we can for you';
• failed to respond or acknowledge Dr Flynn's letters;
• were not adequately briefed or were denied access to his letters or other correspondence by superiors (demonstrated by an officer asking Dr Flynn who his lawyers were more than 400 days after his arrest). [132]

6.164 Further matters included:

• that locally recruited staff may have caused or contributed to the ineffectiveness and obstruction of the execution of consular functions; [133]
• that the High Commission did not act on Dr Flynn's mistreatment [134] and denial of medical assistance, and responded to his request for assistance after being discharged, allegedly in an unstable condition from intensive care, with the statement 'You have the jail infirmary'; [135]
• that the High Commission acquiesced to assurances that Dr Flynn was in good health; [136]
• that the High Commission ignored letters from Dr Flynn pleading for the Commission to send an Australian officer to visit him to discuss his declining health; [137] and
• the High Commission failed to come to the hospital to witness Dr Flynn's will when requested.

Mr Eakin also described the process of the provision of consular services as a 'mechanical' one, and submitted that although there were things done that are on the record, there had been 'a real failure to direct an officer's mind to the issues involved'. [138]

6.165 DFAT did not dispute that Dr Flynn had justifiable complaints against the Indian authorities, including their disregard for court orders. It appears that Dr Flynn was subjected to discrimination and even persecution by those authorities. Accordingly, this came within the ambit of consular support provided by the High Commission.

Dr Flynn's correspondence

6.166 Dr Flynn raised two matters in relation to his correspondence with the High Commission. First, that a number of his letters were unanswered or even in some cases not acknowledged. Secondly, that if the High Commission and Department had attended to his correspondence, and what was contained in it, they would have realised that there was no evidence in the case against Dr Flynn.

6.167 The lack of acknowledgment of letters and delays in receipt of replies was raised by other submitters to the inquiry. Although the Committee does not agree with Dr Flynn's view that this displays 'an arrogance which is intolerable in a public servant', [139] it nevertheless believes that correspondence should at least have been acknowledged. Some correspondence received by posts may require consideration of complicated issues and the formulation of a reply may lead to delays. An acknowledgment will at least reassure the correspondent that the matter is receiving attention.

6.168 DFAT submitted that acknowledgments and replies to Dr Flynn's correspondence were not forthcoming because 'we had nothing to say about most of these letters'. [140] The Committee understands that many of Dr Flynn's letters contained detailed discussions on legal points concerning his case. If the Department did not intend to respond to such matters, it should have at least extended him the courtesy of a reply informing him of the reasons for this approach. The Committee does not consider it unreasonable that the Department did not respond to all the detailed legal points raised by Dr Flynn. Some of these were matters to which it would have been more appropriate for Dr Flynn's lawyers to respond. [141] However, none of Dr Flynn's letters should have been ignored.

6.169 Dr Flynn did not just address points of law in his letters to Australian authorities - he also addressed matters relating to his health, medical treatment, the disregard shown by prison authorities for court orders and other matters which were clearly consular in nature. The Committee believes that the lack of attention to some of this correspondence was not in accord with the high professional standards expected of the High Commission and DFAT.

Lack of attention to Dr Flynn

6.170 DFAT's submission includes a summary and chronology of Dr Flynn's case. The Committee received a more detailed and annotated chronology from Dr Flynn and Mr Eakin. DFAT detailed the efforts it took on Dr Flynn's behalf, including the contacts the High Commission had with Dr Flynn. The first consular visit occurred on 23 June 1994. Consular officers visited Dr Flynn in gaol and in hospital and attended court hearings. They also had numerous and 'often very long' telephone conversations with Dr Flynn and his legal representatives. [142]

6.171 On September 1995, the Minister for Foreign Affairs told the Senate that Government assistance had been given to Dr Flynn. On May 30 1995, the Minister raised the case with the Indian Minister of State for External Affairs. The Minister for Trade, Senator the Hon. Bob McMullan, also raised the case while he was visiting India and former Senator Loosley spoke to the Minister of State for External Affairs in September 1995. Senator Evans again raised the matter in October 1995 with the Indian Minister for External Affairs. [143]

6.172 The High Commission had made 'a dozen or more' representations to Indian authorities concerning Dr Flynn's medical condition and the conditions of his detention. The High Commission also made representations to the Indian government in connection with the legal case against Dr Flynn under the detention order and in the context of offences under the Customs Act. The High Commission also made written representations to the Minister for Finance in support of Dr Flynn's bail application. [144]

6.173 The High Commission also assisted with the transfer of funds from Mr Eakin to Dr Flynn's Indian legal representatives and facilitated a meeting between Mr Eakin and the Acting Chairman of the Central Board of Excise and Customs (this eventually was attended by his Indian legal representatives).

6.174 Mr Eakin also had meetings with the Minister, ministerial advisers and departmental officers and with the High Commissioner in 1995 during a visit to Australia. [145]

6.175 DFAT reported that the High Commission experienced difficulties because Dr Flynn had engaged a number of legal representatives at various times and 'it has not always been clear which one was the principal point of contact for discussions and reporting on his case'. In the event, the High Commission 'maintained active contact with a number of Dr Flynn's legal representatives. Most contact with these representatives had been initiated by the High Commission'. [146] Senator Evans strongly defended the Government's handling of the case in the Senate and the media. [147]

6.176 Although the tempo of Government representations on behalf of Dr Flynn increased significantly from about mid 1995, the Committee considers that not enough was done before then to support Dr Flynn. The Committee believes that many justifiable complaints lodged by Dr Flynn against the Indian authorities, listed above, were not addressed by the High Commission or DFAT with the degree of seriousness which they deserved, particularly in view of Dr Flynn's age and medical condition.

The Case of Mr Rob Bowra

Background

6.177 On 5 August 1994, Mr Robert Bowra was in Abu Dhabi demonstrating a 10 metre pursuit boat when it was involved in a collision with a second boat. Colonel Ahabani on the second boat was killed and the colonel's son, Mr Khalid, was injured.

6.178 Mr Bowra was detained at the airport trying to leave the United Arab Emirates (UAE) soon after the incident. Mr Bowra alleged that he was told to leave the country on the first available flight by the British Ambassador. He was charged with causing the death of the colonel and causing injury to the son. Lawyers for the colonel's family attempted to have Mr Bowra charged with murder.

6.179 The British consul informed the Australian Embassy in Riyadh that Mr Bowra had been detained and that a British consular officer had visited him on 8 August. An officer from Riyadh visited Mr Bowra on 14 August. The officer also called on the UAE prosecutor who advised that it would be in Mr Bowra's interest if he paid compensation in accordance with Shariah Law to the court before the trial. A visit was also paid to Colonel Ahabani's family. [148]

6.180 A bail order was made on 27 September 1994. This was appealed by the prosecution but dismissed on 29 September, opening the way for Mr Bowra's release on bail. However, the bail order required the ratification by the Presidential Court (the Diwan) before Mr Bowra could be released from custody.

6.181 On 25 October 1994, a hearing was held and further charges were filed against Mr Bowra. A consular official attended the hearing. The judge ordered that Mr Bowra be released from gaol. As a result of the delay in ratification of the bail order, the Embassy also submitted a formal government-to-government note to the UAE authorities seeking an explanation regarding Mr Bowra's continued detention.

6.182 On 2 November, the Australian Ambassador visited Abu Dhabi and raised the delay in Mr Bowra's release with the head of Consular Affairs at the UAE Ministry of Foreign Affairs. Ten days later, the consul followed this up and attended the final hearing on 13 November. Mr Bowra was sentenced to 12 months gaol after being found guilty of manslaughter, causing injury and not aiding the injured. He was also ordered to pay $55 000 in compensation. The trial was conducted in Arabic.

6.183 On 15 November, the Minister for Foreign Affairs, Senator Evans, stated that the Government was examining whether Mr Bowra had been treated in accordance with UAE law concerning the bail order. Senator Evans wrote to the UAE Foreign Minister expressing concern over the case in general and the lack of response to the bail issue.

6.184 An appeal was lodged by Mr Bowra, to be heard in January 1995. Before the appeal hearing, the Ambassador made a series of calls on senior UAE officials in Abu Dhabi and wrote to the Presidential Court. A Third Person Note was also lodged with the UAE Ministry for Foreign Affairs requesting a response to Senator Evans's letter.

6.185 On 5 February 1995, the Appeal Court reduced Mr Bowra's sentence from 12 to 6 months. As he had already been held in prison for 6 months by this time, he was eligible for immediate release. The decision was referred to the Presidential Court for ratification and issue of a Release Authority.

6.186 Mr Bowra was not released from prison until 3 March 1995. Several representations were made by the Australian Government following the appeal and Mr Bowra's continued detention in gaol including further letters from the Ambassador to the Presidential Court and a Third Party Note (TPN).

6.187 Mr Bowra sought to regain his passport and the assistance of the Consul in seeking the recovery of his boat. This matter was also raised by the Ambassador with the Director of the Presidential Court and UAE officials. On 1 April Mr Bowra was informed that the boat had been permanently confiscated. He requested Government assistance to pursue its return through legal channels.

6.188 In April 1995, a civil court ruled that Mr Bowra should be allowed to travel to Australia and that his passport be returned subject to the lodgement of $55 000. However, the colonel's family appealed this decision and started proceedings for a civil compensation claim, believed to be nearly $2 million. On 12 June the Appeal Court found in Mr Bowra's favour by upholding the decision to return his passport, still subject to the lodgement of a surety. Mr Bowra received his passport on 8 July and returned to Australia the next day.

6.189 Mr Bowra is still seeking the return of, or compensation for, the boat involved in the accident, which was confiscated by royal decree and is allegedly being used by Abu Dhabi police for daily water police patrolling duties. There is still a civil case pending but the court has set a limit for the damages to be paid by Mr Bowra if the case goes against him and this amount has been lodged with the court treasury.

Consular assistance

6.190 Mr Bowra and his business partner both voiced concerns about the effectiveness of the representations made on Mr Bowra's behalf. It was claimed that that there was inadequate ambassadorial representation in Abu Dhabi and a tendency to allow the local judicial process to work without question before DFAT would intervene. They also stated that they were unaware of any genuine efforts to challenge the outcome or processes in the case and that the Australian Government was too soft, appearing to be almost endorsing the actions of UAE authorities.Mr Bowra and Mr Nixon made the following recommendations:

• that the Government establish senior ambassadorial presence in as many trading destinations as possible or practical if the Government is serious about increasing exports;
• that a fund to assist with extraordinary costs (ie legal and compensation payments) incurred by Australian business people who find themselves in hardship offshore, for reasons beyond their control;
• that the Export Finance Insurance Corporation's insurance should include cover for risks arising from accidents etc;
• DFAT should have the capacity and willingness to work with business to overcome difficult situations in export markets.

6.192 The case of Mr Robert Bowra highlights the difficulties faced by the Department in assisting persons detained and in dealing with judicial proceedings that take place in a location where there is no Australian representation. The Committee believes that the Department acted expeditiously in offering assistance to Mr Bowra in difficult circumstances. That there was a British Government representative to call on for assistance alleviated some resource problems faced by the Embassy in Riyadh.

6.193 The matters raised concerning the adequacy of representations and intervention in foreign judicial proceedings are raised in the general sections of this Chapter.

The Case of Mr James Peng

Background

6.194 Mr James Peng arrived in Australia as a business migrant in April 1989 and acquired citizenship on 5 December 1991. Mr Peng was travelling on his Australian passport at the time of his arrest in Macau on 14 October 1993.In 1987, Mr James Peng had bought, through his Hong Kong company Panco, a group of four state-run, loss-making textile factories in southern China. These formed the basis of a joint venture called Champaign Industrial Co Ltd. It was the first foreign joint venture on the Shenzhen Stock Exchange. Mr Peng turned the loss-making companies around and Mrs Lina Shen-Peng, Mr. Peng's wife, alleges that the success of the company created enemies who wanted Mr Peng to share his success with them. [149] In 1992, an investigation was launched by Chinese authorities into alleged financial mismanagement of Champaign. Mrs Shen-Peng alleges that this was a direct result of Mr Peng's refusal to pay bribes. The Shenzhen Court ruled that the process by which control of Champaign Ltd had passed into the hands of Mr Peng's Hong Kong registered company was invalid. The ruling was appealed and overturned by the Guangdong Higher People's Court.Mr Peng also formed a business partnership with Ms Ding Peng, the niece of Deng Xiaoping. She moved to Hong Kong and befriended Mr Peng and his family and commenced employment at Mr Peng's Hong Kong company, Panco. However, according to Mrs Peng, the friendship lasted only a very short time and, in 1993, Ms Ding and another business partner tried to take control of the company. [150] It is alleged that Ms Ding tried to sell Champaign without Mr Peng's knowledge. Mr Peng secured an injunction (still in force) preventing the sale of the company. He also launched an action in Shenzhen seeking the return of shares in his company. [151] Two directors of Panco have also charged Ms Ding and another director of Panco with embezzling $17.2 million. [152]On the evening of 13-14 October 1993, Mr Peng was detained in Macau by the Macau police and taken into southern China without formal extradition proceedings. He was arrested and placed in detention in the Shenzhen Detention Centre, Guangdong Province. The Shenzhen Procurate carried out the investigation of the case and sought a number of extensions of time to continue its investigation. In early August 1994, the Procurate submitted its conclusions to the Shenzhen Intermediate People's Court. On 14 September the Court returned the case to the Procurate for additional investigation and substantiation, with the Procurate returning it again to the Court on 14 October 1994.On 1 November 1994, Mr Peng was formally charged with corruption. The charges arose from the alleged embezzlement of HK$1.15 million (AUS$190,000) under Article 155 of China's Criminal Law and Article 1 of the Supplementary Regulations concerning the handling of Corruption and Bribery, and misappropriation of public funds of RMB290,000 yuan (AUS$48,000) under Article 3 of the National People's Congress (NPC) Standing Committee Regulations. The trial commenced on 16 November 1994 and the Court rose after seven hours of hearings reserving its decision. Officials from the Australian Embassy in Beijing and Consulate-General in Guangzhou attended as observers.On 19 December 1994 the Court handed the case back to the Procurate for supplementary investigation. From December until August 1995, the case moved between the Court and the Procurate with the court requiring the Procurate to provide further evidence.On 19 September 1995, the Guangdong Foreign Affairs Office advised the Consulate-General in Guangzhou that the Court would announce a verdict in Mr Peng's case on 28 September 1995. After dropping the corruption charges, the Court found Mr Peng guilty on two charges. For unauthorised seizure of company funds under Articles 10, 11 and 13 of the NPC Standing Committee Regulations concerning punishment of crimes in violation of China's Company Law he was sentenced to 15 years imprisonment with a supplementary sentence of deportation. For embezzlement he was sentenced to 3 years imprisonment. Sixteen of the total of 18 years would be enforced imprisonment. The Court also ordered the confiscation of RMB290,000. During sentencing, the prosecution apparently did not present any new evidence from that originally tendered in December 1994. It has also been noted that the amendment of the company law that Mr Peng was convicted under was not enacted until February 1995, 16 months after he was detained.Mr Peng has maintained that he is innocent of the charges and claims that a key prosecution witness lied and that a document purporting to contain his signature was a forgery. Observers have also noted that:

• Mr Peng was abducted from Macau without an extradition order;
• there was a long delay in bringing the matter to trial: according to Article 92 of the Chinese Code of Criminal Procedure, a suspect can be held for two months for initial questioning followed by an extension of one month after which charges should be laid, Mr Peng was held for 13 months before he was brought to trial;
• Mr Peng was charged with crimes allegedly committed in 1989 and 1992 but was convicted under a law passed in 1995;
• Mr Peng was convicted on evidence which the judge had previously rejected as being insufficient: the judge sent the matter back to the Procurate six times for further investigation and did not mention new evidence when handing down his verdict; [153]
• Mr Peng was not given access to any evidence or other materials connected with the charges at any time during his two years detention; [154]
• the charges were politically motivated, Mr Peng having fallen out with powerful officials in Shenzhen and Deng Peng;
• the success of the appeal was doubtful as the judicial system is highly politicised and central government had allowed 'the manipulation of legal institutions in Shenzhen by local political leaders for the vindication of their own personal self interest. Keeping powerful figures in southern China on side far outweighed the interests of one very minor businessman.' [155]

6.203 On 28 September 1995, the Senate passed a resolution which requested the Government of China to grant the immediate repatriation of Mr Peng to Australia on compassionate grounds.

6.204 On 9 October 1995, Mr Peng's lawyers lodged an appeal against the 18 year sentence. On 28 November, the Guangdong Higher People's Court brought down its decision on Mr Peng's appeal. It decided to uphold the Intermediate People's Court's sentence of 28 September.

6.205 In an answer to a question without notice, Senator Evans expressed the government's disappointment and indicated that the government would repeat its appeal for clemency. [156] The next day, Senator Evans indicated that the government would seek Mr Peng's immediate deportation.

6.206 In April 1996, the new Minister for Foreign Affairs, Mr Downer, wrote to the Chinese Foreign Minister asking him to ensure the release of Mr Peng and his return to Australia. The Ambassador also made numerous representations to Chinese ministers and officials at Mr Downer's request.

Consular assistance

6.207 The Consulate-General in Guangzhou has maintained regular contact with Mr Peng. Mr Peng has been allowed monthly visits from Australian Consulate-General officials with 22 consular visits (to November 1995) to him in Shenzhen. Consular officials have also raised with local officials concerns about Mr Peng's health, family and legal access and conditions of detention. The Australian Government has also sought independent legal counsel about aspects of the case. [157]

6.208 Throughout Mr Peng's detention the Government, as its primary concern, has endeavoured to ensure that due process under Chinese law has been observed and that Mr Peng has not been denied rights to which he was entitled under that law.

6.209 DFAT has supplied the Committee with details of the representations made on Mr Peng's behalf. On 28 November 1995, Senator Evans informed the Senate that more than 100 separate actions were taken to promote a resolution of which well over 30 were representations at very senior levels of the Chinese Government. [158] These included representations to the President, Vice-Premier, Chairman of the National People's Congress, President of the Supreme People's Court, Minister of Foreign Affairs and other Ministers, and with the NPC Law Committee. At local level, representations have been made to Guangdong Province Vice-Governors and President of Guangdong Provincial People's Congress. [159]

6.210 The representations included expressions of the Government's concerns that Mr Peng not be denied any rights to which he is entitled under Chinese law and about aspects of Mr Peng's treatment in detention. These concerns include Mr Peng's access to legal advice, family visits and adequate medical treatment.

6.211 Following the verdict of 28 September 1995, the Government representations sought to persuade the Chinese Government to exercise clemency on compassionate grounds in the handling of Mr Peng's appeal and to urge that Mr Peng be repatriated to Australia at the earliest possible date. The appeal for clemency was made on the grounds of Mr Peng's already lengthy detention of nearly 2 years, the state of his health and limited access to medical attention during detention, and the length of the sentence and its affect on his young family.

6.212 Senator Evans raised the case with the Chinese Foreign Minister Quian Qichen in New York on 28 September 1995 and Senator McMullan spoke to the Chinese Ambassador and Chinese Communist Party Political Bureau Member, Wen Jiabao, in Canberra. On 5 October, Senator Cook reinforced the Government's appeal to Vice-Premier Zou Jiahua in Beijing. Senator Evans raised the matter with Minister Qian at the APEC meeting on 16 November with the Prime Minister speaking to Chinese President Jiang Jemin on 18 November. Since then, representations have continued to be made, with the Prime Minister raising Mr Peng's continued imprisonment with Chinese Premier Li Peng during his visit to China in March 1997.

6.213 In evidence before the Committee Mr Peng's wife, Mrs Lina Shen-Peng, noted that the US Government negotiated successfully for the release of Mr Harry Wu and the British Government had been able to negotiate the release of Mr Xi Yank. [160]In an interview in November 1995, the Minister for Foreign Affairs drew a distinction between the case of Mr Wu and that of Mr Peng. He stated:

Harry Wu rang me shortly after his release, to thank me for the representations that I, among others, had made to assist his cause. The point about that of course, is that it was quintessentially a political exercise from start to finish. He was charged with what was essentially a political crime and he was dealt with politically as a result of the pressure that was put on internationally. The trouble about the James Peng case is that it has been set up as an ordinary commercial crime and there is that much more difficulty in terms of being able to characterise it as something justifying some special consideration. But we will continue to be very assiduous in the representations we make because we are unhappy about a great many aspects of the way the justice system operated in this case. [161]

6.214 DFAT has also raised some issues arising specifically from the Peng case: [162]

• Recognition of citizenship: immediately on Mr Peng's arrest on 14 October, the Government pressed the Chinese authorities to observe consular norms in accordance with the principles laid down in the Vienna Convention on Consular Relations. The Chinese Government did not accept that Mr Peng was an Australian citizen as it held that Mr Peng had not taken the necessary steps to renounce his Chinese citizenship and refused consular access or recognition of a legitimate Australian Government role in the case. Repeated efforts were made to ensure consular access and the provision by the Australian Government of irrefutable evidence of China's acknowledgment of cancellation of Mr Peng's Chinese citizenship led to recognition of Mr Peng's Australian citizenship.
• Detention without charge: repeated representations were made in an effort to ensure that Mr Peng's detention be strictly in accordance with Chinese law. The Embassy and Consulate-General sought clarification of the basis of the extensions of the detention period and the Government sought independent opinions from legal experts in Hong Kong and New York regarding Mr Peng's rights during detention in China. The Consulate-General also undertook research into Chinese legal procedures through discussions with various local public security, legal and judicial organs. The Chinese authorities assured the Government that all the extension had been properly approved although it did not provide any written evidence.
• Bail: the Government made representations on the question of bail or a less restrictive form of detention. The Chinese authorities maintained that these would not be considered owing to the seriousness of Mr Peng's case.
• Conditions of detention: DFAT has stated 'the Government has fully discharged all consular responsibilities in Mr Peng's case, in line with our responsibility that Australians in detection overseas be treated no less favourably than local citizens confined for similar offences and that their basic needs are met and that they enjoy humanitarian standards of prisoner welfare'. [163] Representations were made to address concerns raised by Mr Peng, including family visits, access to medical and dental treatment and receipt of mail and other items from his family.
• Removal from Macau: on 14 October 1993, following concerns expressed by Mr Peng's business colleagues about his removal from Macau, the Consulate-General sought urgent advice from Macau authorities on the events surrounding Mr Peng's removal to China. The initial response was that Mr Peng willingly crossed into China. Following repeated representations the Macau authorities opened a judicial inquiry into the case in January 1994. The inquiry concluded that Mr Peng had signed a document written in Portuguese, a language he does not understand, 'confirming his desire to voluntarily travel to the PRC'. A copy of this was provided but Macau authorities were reluctant to provide a copy of the report of the judicial inquiry. Given the disparity between the report's finding and Mr Peng's account of events, the Government has continued to make representations in Portugal and Macau to seek access to the full report and has stated that 'it cannot be business as usual with Australia [and Macau] while Mr Peng's case hangs over the relationship'. [164] Senator Evans, the Ambassador and DFAT officials have also raised with the Chinese Government concerns over Mr Peng's removal from Macau.

6.215 DFAT concluded that Mr Peng's case has been difficult and complex and the Government assistance has gone beyond basic consular welfare issues and 'Government efforts have exceed that of any other consular case involving detention of an Australian citizen overseas'. [165]During her hearing with the Committee on 13 March 1997, Mrs Shen-Peng requested further Government representations to the Chinese Government for the early deportation of her husband. The Committee wrote to the Prime Minister before his visit to China in March 1997 to pass on this request to him.

Footnotes

[1] DFAT submission, p. 34.

[2] Committee Hansard, p. 388.

[3] DFAT submission, p. 34.

[4] DFAT submission, p. 34.

[5] DFAT submission, p. 51.

[6] DFAT submission, p. 51.

[7] Mr C Devellerez submission, p. 3.

[8] Mr & Mrs Cowcher submission, p. 2.

[9] Mr H Rojas, submission, p. 1.

[10] Mr P Nixon submission, p. 3.

[11] Senate, Hansard, 7 December 1994, p. 4089.

[12] Senate, Hansard, 28 November 1995, p. 4042.

[13] DFAT submission, Annex 17, pp 1-3.

[14] DFAT submission, p. 36.

[15] DFAT submission, Annex 16, pp 10, 12, 16, 17, 18.

[16] Committee Hansard, p. 249.

[17] Committee Hansard, p. 623.

[18] Committee Hansard, p. 236.

[19] Committee Hansard, p. 627.

[20] Committee Hansard, p. 624.

[21] Mr T Eakin submission, Annexure A, p. 7.

[22] Committee Hansard, p. 250.

[23] Committee Hansard, p. 261.

[24] DFAT submission, Annex 15, p. 3.

[25] Committee Hansard, p. 623.

[26] Committee Hansard, pp 624-25.

[27] Committee Hansard, p. 410.

[28] Committee Hansard, p. 414.

[29] Mr T Eakin submission, Annexure A, p. 7.

[30] DFAT submission, p. 37.

[31] DFAT submission, p. 37-38.

[32] Mr T Eakin submission, Annexure A, p. 7.

[33] Mr T Eakin, Chronology of Events, Vol 2, p. 16.

[34] Committee Hansard, p. 253-4.

[35] Committee Hansard, pp 629-30.

[36] Committee Hansard, p. 631.

[37] DFAT submission, Annex 15, p. 2.

[38] Committee Hansard, p. 423.

[39] DFAT submission, Annex 16, pp 6-8.

[40] DFAT submission, Annex 15, p. 5.

[41] DFAT submission, Annex 16, p. 9.

[42] Committee Hansard, p. 622.

[43] Mr T Eakin letter, 3 April 1997.

[44] DFAT answers to questions on notice, 23 December 1995.

[45] Mr R Bowra submission, p. 2.

[46] Mr T Eakin submission, pp 2 and 4

[47] Mr T Eakin submission, p. 2

[48] Committee Hansard, p. 240.

[49] Committee Hansard, p. 421.

[50] Committee Hansard, p. 414.

[51] Committee Hansard, p. 415.

[52] DFAT submission, Annex 19, p. 3.

[53] DFAT submission, Annex 15, p. 3.

[54] DFAT submission, p. 36.

[55] Committee Hansard, p. 31.

[56] Committee Hansard, pp. 243-44.

[57] Committee Hansard, p. 411.

[58] DFAT, Australian Consular Instructions, Part 1, p. 246, para. 29.1.2.

[59] Committee Hansard, p. 412.

[60] DFAT, Australian Consular Instructions, Part 1, p. 246, para. 29.1.2.

[61] DFAT submission, p. 44.

[62] See for example, Mr Grayden, Mrs M Seymour, Mrs Dewes.

[63] Committee Hansard, p. 79.

[64] Committee Hansard, p. 80.

[65] Committee Hansard, p. 80.

[66] DFAT submission, p. 43.

[67] DFAT submission, pp 43-4.

[68] Committee Hansard, pp 81-2.

[69] Attorney-General's Department submission, p. 2.

[70] Committee Hansard, pp 80-1.

[71] DFAT submission, p. 52.

[72] DFAT submission, p. 54.

[73] DFAT, Australian Consular Instructions, p. 125.

[74] Committee Hansard, p. 678.

[75] DFAT submission, p. 59.

[76] DFAT submission, p. 59.

[77] Mr M Garnett submission, p. 1.

[78] Australian Consular Instructions, op cit, p. 131.

[79] House Representatives Standing Committee on Legal and Constitutional Affairs, Submissions, p. S49.

[80] DFAT submission, p. 57.

[81] DFAT submission, p. 42.

[82] DFAT submission p. 57.

[83] Mr R Bowra, submission, p. 1.

[84] DFAT submission, p. 39.

[85] Committee Hansard, p. 673.

[86] House of Representatives Hansard, 21 November 1996, p. 7173.

[87] Committee Hansard, p. 40.

[88] Committee Hansard, p. 76.

[89] House of Representatives Standing Committee on Legal and Constitutional Affairs, Advisory Report on the International Transfer of Prisoners Bill 1996, pp 6, 44.

[90] House of Representatives Standing Committee on Legal and Constitutional Affairs, Committee Hansard, p. 76.

[91] DFAT answers to questions on notice, 19 May 1997.

[92] DFAT submission, p. 37.

[93] DFAT submission, p. 37.

[94] Committee Hansard, p. 67.

[95] Committee Hansard, pp 69-70.

[96] Attorney-General's Department submission, p.2.

[97] Mrs N Sheridan submission, p. 2.

[98] Mr T Eakin, submission, Annexure A, p. 3.

[99] DFAT submission, p. 35.

[100] Mr T Eakin, submission, p. 4.

[101] Mr T Eakin, submission, Annexure A, p. 3.

[102] Mr T Eakin, submission, p. 4.

[103] Mr T Eakin, submission, p. 5

[104] Mr T Eakin, submission, Annexure A, p. 4.

[105] Mr T Eakin, submission, p. 5.

[106] Mr T Eakin, submission, p. 6.

[107] Mr T Eakin, submission, p. 6.

[108] Mr T Eakin, submission, p. 6.

[109] Mr T Eakin, submission, Annexure A, p. 4.

[110] Mr T Eakin, submission, Annexure A, p. 5.

[111] Mr T Eakin, submission, p. 8.

[112] The judicial review of the COFEPOSA Act is limited to the legality of an administrative detention under the Act, not its merits.

[113] Mr T Eakin, submission, Annexure A, p. 5.

[114] DFAT submission, p. 35.

[115] Mr T Eakin submission, Annexure A, p. 6.

[116] Mr T Eakin submission, Annexure A, See also DFAT Annex 15, p. 1.

[117] DFAT submission, Annex 15, p. 1.

[118] Mr T Eakin submission, Annexure A, p.7.

[119] Mr T Eakin submission, Annexure Chronology of Events, Vol.1.

[120] Mr T Eakin submission, Annexure A, p. 7.

[121] DFAT submission, Annex 15, p. 2.

[122] DFAT submission, Annex 15, p. 2.

[123] DFAT submission, Annex 15, p. 2.

[124] DFAT submission, Annex 15, p. 2.

[125] DFAT submission, Annex 15, p. 3.

[126] DFAT submission, Annex 15, p. 3.

[127] DFAT submission, Annex 15, p. 4.

[128] DFAT submission, Annex 15, p. 4.

[129] DFAT submission, Annex 15, p. 4.

[130] Committee Hansard, p. 621.

[131] Mr T Eakin submission, p. 2.

[132] Mr T Eakin submission, p. 3.

[133] Mr T Eakin submission, pp 8-9.

[134] See further discussion at Committee Hansard, p. 253.

[135] Mr T Eakin submission, p. 7.

[136] Mr T Eakin submission, Annexure A, p. 6.

[137] Mr T Eakin submission, pp 7-8.

[138] Committee Hansard, p. 236.

[139] Committee Hansard, p. 628.

[140] Committee Hansard, p. 422.

[141] DFAT answer to question on notice, 19 May 1997.

[142] DFAT submission, pp 35-6. See also the chronology at Annexures 15 and 16.

[143] DFAT submission, Annex 15, p. 6.

[144] DFAT submission, Annex 15, pp 5-6.

[145] DFAT submission, Annex 15, p. 4.

[146] DFAT submission, Annex 15, p. 5.

[147] DFAT submission, Annex 15, p. 5.

[148] DFAT submission, Annex 18, p .1.

[149] Committee Hansard, p. 638.

[150] Time, 9 October 1995.

[151] Australian, 14 October 1995.

[152] The Sunday Herald, 14 May 1995.

[153] The Age, 16 October 1995

[154] SMH, 11 October 1996

[155] The Age, 16 October 1995

[156] Senate, Hansard, 28 November 1995

[157] DFAT submission, p. 40

[158] Senate, Hansard, 28 November 1995, p. 4042

[159] DFAT submission, Annex 19.

[160] Committee Hansard, p. 646.

[161] Department of the Parliamentary Library, Transcript of Interview, Senator G Evans, 29 November 1995.

[162] DFAT submission, Annex 19.

[163] DFAT submission, Annex 19.

[164] DFAT submission, Annex 19.

[165] DFAT submission, Annex 19, p. 7.