Additional comments from Australian Labor Party senators

1.1Labor senators are grateful for the opportunity this inquiry has provided to closely examine the issue of wrongful detention of Australians overseas and the scourge of arbitrary detention for diplomatic leverage.

1.2We are also grateful to those who made submissions and gave evidence to this inquiry, which has broadened public understanding of the practice, the challenges faced by victims, families and governments, and the tools available to respond.

1.3As with all members of the Committee, we acknowledge how individuals wrongfully detained often face terrifying, isolating, and inhumane treatment at the hands of their captors and the frustration and hopelessness they must feel when not able to achieve a measure of fairness nor justice.

1.4Labor senators join the Committee in acknowledging the contributions of these individuals and family members in sharing their insights, which would have been distressing to relive.

1.5Labor senators also acknowledge the tremendous burden faced by the family and loved ones of those wrongfully detained and the difficulties they face during the often lengthy periods of incarceration, which this report importantly details.

1.6We recognise the significant diplomatic, legal and humanitarian challenges that all governments face when responding to instances of wrongful detention.

1.7We commend the work of the Department of Foreign Affairs and Trade (DFAT), as well as other Australian Government agencies, in responding to these cases, which has resulted in the return of a number of Australians detained in complex circumstances overseas, particularly in recent years. We recognise this work was highlighted in some submissions.

1.8We note DFAT’s willingness to refine its capabilities in recent years, including as a result of engagement with former detainees and other stakeholders.

1.9Labor senators acknowledge the high priority the Australian Government places on supporting Australians and their families in cases of wrongful or arbitrary detention and the clear focus they have on resolving the case and ensuring the detainee’s welfare.

1.10We also acknowledge, alongside other members of the Committee, the importance of international multilateral efforts to deter the unacceptable practice of arbitrary detention for diplomatic leverage and Australia’s participation in these efforts.

1.11We expect that there will be much from this inquiry that can be drawn from to further improve the Government’s capabilities to support Australians wrongfully detained overseas and their family and loved ones at home.

1.12While Labor senators appreciate many of the ideas and proposals put forward in the report, we do not accept the wholesale assessment that the ‘current system is not working’ and that, as a consequence, a structural overhaul is required. We would welcome further information as to the evidence for such a wholesale assessment and therefore have questions about the recommendations which flow from it.

1.13We note the Albanese Government has reviewed its approach to supporting Australians detained in complex circumstances overseas. The improvements made followed consultation with partners, stakeholders and former detainees to ensure the Government's methods are fit for purpose. In particular, we welcome the return home of Cheng Lei, Sean Turnell, Chau Van Kham, Ken Elliott, Julian Assange and others not publicly known.

1.14We are concerned that the report does not adequately account for the context in which the Australian Government operates, including the scale of the problem, the ability that current arrangements allow for the Government to flexibly deploy resources at its disposal, and the motivations of those responsible for detaining Australians, when comparing to systems and approaches in other countries which face distinct circumstances. For example, many recommendations seek to emulate arrangements that exist in the United States of America (US) despite the fact that the challenges the US faces are structurally different to those of Australia, particularly with respect to the nature and volume of cases it deals with.

1.15We are also concerned that the recommendations do not adequately account for the Government’s primary focus in these situations – the welfare of the Australian wrongfully detained overseas. If actioned, it is likely that some of the recommendations of the report may have unintended or negative consequences for those wrongfully detained and may also reduce the capacity of the Government to respond effectively.

1.16There is little recognition in the report of DFAT’s commitment to assisting Australians wrongfully detained overseas, the success of its approach in recent years, and the tools at its disposal which have been enhanced and deployed to good effect. Labor senators note the recognition in submissions of improvements in the Government’s approach in recent years, which are not reflected in the report.

1.17Labor senators further note that some of the report’s recommendations suggest changes which are already in place. In one case, the report recommends exploring privacy exemptions in certain instances, a policy option already exists.

1.18Other recommendations fail to clearly articulate their purpose. For example, one recommendation is for the Australian Government to legislate changes but it is not immediately clear what that legislation should seek to achieve or that many of the tools and powers already exist.

1.19Nonetheless, Labor senators acknowledge that there will always be more that can be done to improve the way those who are wrongfully detained, as well as their families and loved ones, are supported throughout their ordeal, and following its conclusion. We support DFAT’s continued engagement with former detainees to this end and look forward to future improvements and initiatives.

1.20Once again, Labor senators thank those who have contributed to the Committee’s inquiry.

Senator Raff Ciccone

Deputy Chair