Chapter 1Introduction
1.1Australians can be wrongfully detained overseas for a variety of reasons. These can range from mistaken identity or entirely arbitrary arrests to genuine suspicion of having committed a crime, the involvement of corrupt interests, or politically motivated reasons.
1.2Wrongful detention typically takes place in countries which lack the rule of law and a free and impartial judiciary — features common in authoritarian regimes. Regardless of their underlying cause, each detention generally breaches international standards because of wrongful conduct by the detaining state in arresting, prosecuting, sentencing, or imprisoning the individual.
1.3Those who experience arbitrary or wrongful detention find themselves in a predicament subject to political circumstances beyond their control. Concerningly, the arbitrary detention of western citizens appears to be increasingly used by some foreign regimes for diplomatic and political leverage, a phenomenon described as ‘hostage diplomacy’.
1.4Hostage diplomacy is recognised by a vast number of international actors as an increasing threat to cordial state-to-state relations encompassing human rights, international law and international security dimensions, and which accordingly requires a strong multilateral response from like-minded countries.
1.5The wrongful detention of its citizens overseas presents significant diplomatic, legal and humanitarian challenges to Australia, all of which require a robust, strategic and transparent policy response.
1.6The Department of Foreign Affairs and Trade (DFAT) officials tasked with responding to the wrongful detention of Australian citizens have often done a commendable job in very difficult circumstances, and a number of wrongly detained individuals have been freed over the years as a result of their efforts.
1.7Unfortunately, Australia does not currently have a clear framework for responding to and deterring cases of wrongful detention, both at an individual case management level and at the broader foreign policy level.
1.8Indeed, Australia’s lack of a formal definition and standardised process to identify cases of ‘wrongful detention’ means that the actual number of Australians affected remains unknown.
1.9The absence of a robust framework to address wrongful detention leaves Australia vulnerable to being a target for states that wish to engage in hostage diplomacy, putting at risk the safety of individual Australian citizens and the national security of the country more broadly.
1.10Within this context, hostage diplomacy can be understood as a form of foreign interference which requires a strong stance from countries such as Australia and their like-minded partners to mitigate and deter the practice.
The human impact of wrongful detention
1.11Those who are unfortunate enough to experience wrongful detention, either as an individual detained or as a family member or friend whose loved one is detained, suffer greatly. This fact must be acknowledged first and foremost in any exploration of issues relating to wrongful or arbitrary detention.
1.12As witnesses to this inquiry have attested, to be wrongly detained is a terrifying, isolating and dehumanising experience. Individuals wrongly detained, often by authoritarian or corrupt regimes with no regard for international norms, suffer lengthy imprisonments frequently marked by inhumane treatment and human rights violations that deprive them not only of their liberty, but also their dignity. They are denied any semblance of justice, unable to access help, and cut off from their families and the rest of the world. They often face the hopeless prospect of indefinite detention and are totally reliant on the efforts of their government to secure their release. Through no fault of their own, some find themselves used as pawns and bargaining chips in geopolitical games, purely by virtue of their Australian citizenship.
1.13If they are lucky enough to be freed, beyond the initial relief of release they face the daunting prospect of returning home to rebuild their lives, often with little to no psychological or practical support. They must mourn the loss of the time stolen from them, and grapple with the life-long consequences of their ordeal. Most are irrevocably changed by their experiences.
1.14When an individual is wrongfully detained overseas, their families and friends also endure significant hardship. Without notice their lives are upended and they are plunged into a new and overwhelming world, characterised by meagre information and unpredictable factors outside their control. They must navigate confusing and opaque diplomatic and bureaucratic processes, often with little guidance, as they advocate tirelessly for their loved one’s release. All of this is compounded by very real and ongoing fears for the welfare and safety of their loved one.
1.15While many of the issues canvassed in this report relate to policy frameworks, legislative models and the operational processes of government, throughout the inquiry the committee has kept the devastating human impact of wrongful detention front of mind.
1.16It strongly encourages the Australian Government to similarly not lose sight of this human element when considering this report and the committee’s recommendations for reform.
Acknowledgement
1.17The committee thanks all those individuals and organisations who engaged with the inquiry. In particular, the committee would like to acknowledge the contributions of those individuals and their families with firsthand experience of wrongful detention. Rehashing the trauma and distress of such an experience cannot be easy and the committee is grateful to them for sharing their valuable insights and suggestions.
Referral of the inquiry
1.18On 25 June 2024, the Senate referred an inquiry into the wrongful detention of Australian citizens overseas to the Senate Foreign Affairs, Defence and Trade References Committee (the committee) for inquiry and report by 28 November 2024.
1.19The inquiry’s terms of reference are as follows:
The Australian Government’s responses to the wrongful detention of Australian citizens overseas, with particular reference to:
(a)how Australia can improve its policy framework to deter the practice of arbitrary detention for diplomatic leverage (‘hostage diplomacy’) and increase transparency and public awareness of the regimes which engage in the practice;
(b)Australia’s foreign policy responses to regimes that wrongfully detain Australian citizens;
(c)Australia’s current processes for categorising and declaring cases of wrongful detention;
(d)the management of cases of wrongful detention by the Department of Foreign Affairs and Trade;
(e)communications with and support for families of Australians being wrongfully detained overseas;
(f)communications with and support for Australians who have been released from wrongful detention; and
(g)any other related matters.
Conduct of the inquiry
1.20Details of the inquiry were made available on the committee’s website. The committee also contacted a number of organisations and individuals inviting written submissions by 30 August 2024.
1.21The committee published 44 submissions, as listed at Appendix 1.
1.22The committee held three public hearings in Canberra on 26 September 2024, 18 October 2024 and 28 October 2024. A list of witnesses who gave evidence is available at Appendix 2.
Structure of this report
1.23This report contains five chapters:
This chapter contains information about the referral and conduct of the inquiry, including a note on terminology.
Chapter 2 provides background information on the international framework for understanding wrongful detention, the role of DFAT, and international comparisons with like-minded countries.
Chapter 3 explores issues relating to the definition and identification of wrongful detention, including the problems arising from Australia’s lack of a cohesive policy framework. It also considers the categorisation model used in the United States (US) and contains a brief discussion of the importance of public awareness.
Chapter 4 canvasses the inadequacies of DFAT’s current management of wrongful detention cases. It examines the standalone office model established in the US and outlines suggestions to improve the support for wrongly detained individuals and their families both during and after an experience of detention.
Chapter 5 sets out matters relating to Australia’s broader foreign policy response to wrongful detention, including the need for deterrence and punishment strategies (such as sanctions) to hold offending regimes to account.
Terminology used in this report
1.24As will be canvassed later in this report, Australia currently has no formal or recognised definition of arbitrary detention, wrongful detention, nor the phenomenon of arbitrary detention for diplomatic leverage.
1.25Throughout the inquiry, the terminology used to discuss the issues at hand varied. For example, ‘wrongful detention’, ‘arbitrary detention’, ‘illegal detention’, ‘unlawful detention’, ‘state hostage taking’ and ‘hostage diplomacy’ were all used by different submitters, at times interchangeably.
1.26The committee is aware that these terms can have specific, nuanced meanings depending on the context. For example, ‘arbitrary detention’ is the term used in international human rights law, and the United Nations Working Group on Arbitrary Detention refers to an arrest and detention that is contrary to international human rights law as ‘arbitrary’ as this is the term used in Article 9 of the International Covenant on Civil and Political Rights. Alternatively, the policy response in the US refers to cases of ‘wrongful detention’.
1.27The committee is also mindful that outside of the specific international legal definition, ‘arbitrary detention’ is often used colloquially by the community to refer to any detention that may be wrongful, unjust, unreasonable, illegal, politically-motivated or arbitrary in the sense of it being random or summary, and which therefore may warrant diplomatic intervention.
1.28The committee acknowledges the complexities that surround the terminology, and further context and discussion on definitions can be found in Chapters 2 and 3.
1.29For the purposes of this inquiry, and noting the terminology used in the terms of reference, the committee has chosen to refer to the practice of arbitrarily detaining an individual for diplomatic leverage as ‘hostage diplomacy’.
1.30It has chosen to use ‘wrongful detention’ as an umbrella term that encompasses not only instances of hostage diplomacy, but also any detention overseas by a state or non-state actor which breaches international standards and could be deemed arbitrary, unjust, illegal or politically-motivated, and therefore may warrant diplomatic intervention.
1.31While a substantial amount of the evidence received to the inquiry focused on hostage diplomacy, the committee is aware that not all instances of wrongful detention involve attempts by foreign states to seek a concession from Australia. Although this report may focus to a degree on hostage diplomacy, for the avoidance of doubt, the committee considers all forms of wrongful or arbitrary detention to be unacceptable. They should be condemned as such and addressed as a matter of urgency.