Chapter 3Defining and categorising wrongful detention
The absence of a robust policy framework
3.1The wrongful detention of Australian citizens overseas presents significant diplomatic, legal and humanitarian challenges, all of which require a robust, strategic and transparent policy response. Unfortunately, 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.
3.2In putting forward options to remedy this, there was strong consensus amongst inquiry participants that for any policy framework to be effective, one of the first points of call was to define the problem—that is, adopt a formal definition of wrongful detention—and create a standardised mechanism to identify instances of it.
3.3This chapter explores issues regarding the definition and identification of wrongful detention cases.
3.4It highlights that Australia does not have a definition of wrongful definition, nor does it have set criteria or a standardised process for categorising and declaring such cases. It illustrates that this has led to significant inconsistencies in the identification and management of cases by the Department of Foreign Affairs and Trade (DFAT), resulting in detrimental impacts on individuals wrongly detained and their families.
3.5The chapter then sets out the calls from submitters for Australia to develop a more cohesive policy framework that encompasses a formal definition of wrongful detention and a standardised method for assessing and identifying such cases. In doing so it explores issues relating to the need to utilise the expertise of the United Nations (UN) Working Group on Arbitrary Detention (WGAD), and the complexities surrounding terminology.
3.6It goes on to consider the work done by the United States (US) in adopting a formal definition of wrongful detention and developing a classification mechanism for determining which consular cases constitute wrongful detentions, and draws out lessons that Australia may wish to emulate.
3.7The chapter examines DFAT’s responses to evidence received during the inquiry and the calls for it to adopt a new approach to the management of wrongful detention cases.
3.8It also considers the importance of public awareness and the need for more targeted information in campaigns to educate Australians about the risks of travelling to countries with a track record in engaging in hostage diplomacy.
3.9Finally, the chapter concludes with the committee’s views and recommendations.
The importance of a definition and categorisation process
3.10Australia does not have a legal definition of wrongful or arbitrary detention. It also does not have a standardised process for categorising and declaring cases of wrongful detention.
3.11The committee received compelling evidence that the lack of a clear definition of wrongful detention and criteria for assessing cases severely restricted DFAT’s ability to properly identify and manage cases, as well as Australia’s ability to respond to and deter hostage diplomacy more broadly.
Falling through the cracks
3.12Submitters noted that the lack of definition and standardised criteria meant that wrongfully detained Australians were at risk of missing out on Australian Government assistance. They highlighted that inconsistencies in the way cases were categorised meant that legitimate cases were missed by DFAT and therefore not all detainees received equal advice and support from consular staff.
3.13For example, the Australian Wrongful and Arbitrary Detention Alliance (AWADA) argued that in the absence of a definition, and by extension the absence of consistent criteria to determine whether a case constituted wrongful detention, Australian citizens wrongfully detained were at a high risk of ‘falling through the cracks’ and not receiving the attention and resources necessary to free them.
3.14It emphasised:
Unfortunately, anecdotally at least, it appears that those cases whose advocates shout the loudest, and attract the most media coverage, tend to be prioritised over those less likely to arouse attention. This includes Australians of dual nationality who may have become naturalised citizens. Some wrongful detention cases fall entirely between the cracks, receiving limited if any assistance from Australian consular authorities.
3.15Human Rights Watch, an organisation that investigates human rights abuses globally, echoed this view. In evidence to the committee, Australian Director Ms Daniela Gavshon stated ‘at the moment, the problem with the lack of definition is that cases fall through the cracks, so it requires someone to notice it for it to actually be flagged and then be taken on’.
3.16Expressing a similar sentiment, Heretic Law, a firm that provides legal assistance relating to human rights issues, observed that without an agreed definition, not all wrongfully detained Australians would be identified or receive the same government assistance and treatment.
3.17Dr Kay Danes OAM, an Australian who was arbitrarily detained with her husband in Laos in 2000 and went on to become a human rights advocate after her release, pointed out that some individuals were forced to advocate for themselves publicly just to secure DFAT attention and assistance. She explained:
… there is no legal definition of ‘Australians wrongfully detained’ in the current policy framework. This lack of definition forces individuals and families to make their cases compelling to attract the level of government intervention needed to resolve their situations. Many Australians typically resort to seeking media coverage in their desperate attempts to be heard. This strategy may or may not work to their advantage.
3.18Other submitters also put forward this view.
3.19Mr Robert Pether, an Australian currently imprisoned in Iraq (whom WGAD considers to be arbitrarily detained), argued that the lack of criteria to determine whether a person has been wrongfully detained represented a missed opportunity to resolve cases in a more timely fashion:
The current management of wrongful detention cases by DFAT is significantly lacking. There appears to be an absence of any solid plan to address a case of wrongful detention. Similarly, the secrecy that DFAT operates under means that they are missing multiple opportunities to resolve these cases in a far more expeditious manner.
3.20AWADA advised the committee that it was aware that there had been a view within DFAT that wrongful detention cases, in the words of a former DFAT official, ‘emerge organically – you just know’. AWADA argued that while this may have been true in previous decades when the number of wrongful detentions was comparatively small and kidnappings and hostage-takings by non-state actors typically outnumbered hostage diplomacy and arbitrary detentions by state actors, this was no longer the case.
3.21It emphasised the dangers of relying on the subjective judgements of DFAT to determine whether a case constituted wrongful detention, stating:
Given that state wrongful detentions are usually more difficult to identify and categorise, due to state actors’ use of their judicial systems to apply a veneer of legitimacy to wrongful arrests, it no longer makes sense to rely on the ad hoc judgements of DFAT’s consular team in determining cases.
No clear picture
3.22The committee also heard that the lack of definition and categorisation criteria hampered DFAT’s ability to track the true number of Australians wrongfully detained overseas at any given time. As AWADA highlighted:
At any one time, an unknown number of Australians face imprisonment abroad, having been wrongfully detained by foreign governments or kidnapped by armed groups, terrorist organisations or other non-state actors.
Their number is unknown because there is no legal definition of wrongful detention in Australia. As such, it is very difficult for DFAT to determine which cases of Australians arrested abroad are prompted by misdemeanours or genuine suspicion of criminal activity, and which are motivated by other factors involving, for example, political activity, freedom of expression, journalistic or academic enquiry or even simply being in the wrong place at the wrong time.
3.23The committee was told that in a meeting in March 2024 with senior DFAT consular staff, AWADA members were advised that the current wrongful detention caseload was considered to be zero at that time.
3.24AWADA expressed concern with how this figure was determined and asserted that zero did not represent an accurate picture of a number of wrongful detentions it was aware of. It stated:
Given the lack of any mechanism for categorising cases it is unclear how this figure was arrived at. As a result of this statement, AWADA is concerned that some publicly-reported cases of Australians detained abroad, and some which have not been made public, are not being treated as wrongful detentions. These cases include Dr Yang Hengjun (China), Robert Pether (Iraq), Gordon Ng (Hong Kong- China) and the aforementioned Australian citizen/s currently in prison in Iran.
3.25DFAT informed the committee at a public hearing that there were no cases that it would currently give the label of ‘arbitrary detention’.
3.26When asked whether DFAT collected data on the number of cases of ‘arbitrary detention’ of Australian citizens overseas, Ms Paula Ganly, First Assistant Secretary for the Consular and Crisis Management division at DFAT responded:
As I indicated before, we have in the past—under the previous government—only used the term 'arbitrary detention' in relation to two of our cases. The Complex Case Unit maintains information on cases that we would deem complex for the purposes of it's not clear-cut but we haven't yet given them a clear definition as we work through … They keep details of the number of complex cases that we are managing or have managed.
3.27Additionally, in response to questioning from the committee DFAT advised that it was not aware of any cases in the past of Australian citizens being arrested and wrongly detained specifically for diplomatic leverage.
DFAT’s current categorisation process – ‘complex cases’
3.28As set out in Chapter 2, DFAT is the first point of call for Australians who have been detained overseas. Cases of wrongful detention are considered within a broad consular category of ‘complex cases’, which can encompass scenarios from orphaned children trapped overseas, to citizens requiring evacuation from warzones, to high profile Australians convicted of criminal offences abroad.
3.29DFAT noted it had ‘probably around 800 cases a year’ where Australian citizens were arrested overseas for small misdemeanours but released ‘very quickly’. In contrast, there were ‘probably about 200 a year that end up being imprisoned for slightly longer—so not a quick turnaround’.
3.30The committee asked DFAT to explain its definition of a ‘complex case’ in the context of an Australian detained overseas. Ms Ganly responded:
A complex case is essentially one where it is not apparent that there has been clear due process, where it has been raised with us by family members or others that they have concerns about the case and where the case has run for a considerable period of time. They are ones that essentially require a lot more attention from our consular group than can be given by the case manager who would normally look after the case. The case manager will still be involved in elements of it, but they will not be doing all the briefings. They're ones that we would be briefing up to the foreign minister and ones where we would potentially be recommending that the foreign minister engage through a letter to their counterpart or needs to draw it to their attention because it is taking much longer to resolve.
3.31DFAT provided the committee with an overview of how it approaches the categorisation of a ‘complex case’ involving detention:
DFAT carefully assesses whether and when to use the term ‘arbitrary detention’ in relation to an Australian detained overseas. Each case is judged on its individual circumstances including the charges, the nature of the legal process, detention conditions, the detainee’s own wishes, the country in which they are detained and relevant international law.
3.32The committee asked DFAT if there were any particular countries that triggered a ‘red flag’ and automatic escalation to the ‘complex case’ level when an Australian was detained there — for example, if that country had a track record of engaging in hostage diplomacy. Ms Ganly responded that DFAT did take that factor into consideration:
I would say that any of them arising in countries where we have concerns or have identified those countries within our Smartraveller travel advice as well—countries for wrongful detention or arbitrary detention or even for harsh imposition of laws—we would look at very closely and immediately. The desks are often onto it very quickly as well. Our heads of mission in those countries would also draw it very quickly to the attention of the desk. So, yes, but it doesn't mean that they are the only ones on which we are focused.
3.33DFAT assured the committee that it applied the same ‘lens’ over all consular cases involving detention. Ms Ganly elaborated:
I would say that we apply the same lens over our assessment of all cases when people are detained, including having our posts and our consular officers, if they have concerns about the process and how it is being conducted, draw that to our attention so that we can have a look at the matter more closely.
3.34When queried by the committee whether that ‘lens’ was publicly available, DFAT confirmed it was not. However, Ms Ganly reiterated that all cases were assessed on their merits, using the same policies:
No [the lens is not public]; it's probably not a clear definition that's out there, but I would say that we look at each case on its merits, on the detention. I have heard people saying that multiple people go through consular, but we do use the same policies to assess cases and to look at them and then we discuss them across the department.
3.35The committee did not receive written copies of DFAT’s policies, nor any further or specific detail as to what they contain, during the course of the inquiry.
Calls for change
3.36A large number of submitters recommended, as a matter of priority and as the key starting point for a more cohesive framework, that Australia adopt a public definition and create a clear, standardised method for assessing and categorising cases of wrongful detention. The committee was told these were concrete measures that the Australian Government could implement to improve its ability to identify, resolve and deter cases of wrongful detention.
3.37Submitters informed the committee that having a clear and transparent framework would have two core benefits. Namely:
It would expedite case handling and improve support for detainees and their families by ensuring all cases were identified and appropriately managed with equal priority.
It would act as a form of deterrence by sending a strong signal internationally that Australia did not agree with hostage diplomacy and had a range of articulated strategies to deal with offenders.
3.38AWADA recommended that Australia adopt a definition of wrongful detention (or other preferred term) and establish a set of criteria for determining which consular cases constituted wrongful detention.
3.39A number of other submitters endorsed AWADA’s recommendation. For example, Professor Greste, an Australian journalist wrongly detained in Egypt from 2013 to 2015, made the argument for a set of more coherent and consistent strategies:
The way our government handles these cases is inevitably going to have broader implications for Australia's relations with those states, along with any others who are directly or indirectly involved. As my submission and others have made clear, we do recognise that every case is unique. I'm certainly not recommending a one-size-fits-all approach, but I and, as we've just been hearing, some of my colleagues who've been through similar experiences will attest, we all believe that a set of more coherent, coordinated and consistent strategies could help resolve those cases far faster and support the detainees and their families far more effectively than at present.
3.40Ms Leigh Toomey, a former WGAD member and chairperson who gave evidence in her private capacity, stated that for Australia to respond quickly to cases of wrongful detention, it would be helpful to develop specific criteria to assess each case. She noted this was pertinent as assessing a case could be difficult, given that states that seek to exercise leverage often did not, at least initially, articulate any specific demands and will often claim that a national or permanent resident of another state is being detained because they committed a criminal or national security offence. She provided the committee with a number of examples of criteria, including those used by WGAD and the US, and pointed out the United Kingdom (UK) House of Commons Foreign Affairs Committee had inquired into a similar matter and made recommendations for the development of a set of criteria.’
3.41Professor Carla Ferstman, a Professor at the University of Essex School of Law and Human Rights Centre and former director of REDRESS, suggested any categorisation process should include accessible criteria that would be applied in a timely manner:
A categorisation process which identifies a set of open-ended, accessible criteria which can be considered within their context, will aid with transparency to families and the public, and with the speed of decision-making.
3.42She recommended the adoption of a ‘transparent but open-ended categorisation system’ which would help determine which cases required enhanced or urgent diplomatic action, but cautioned that it should not be overly narrow so as to inadvertently exclude ‘deserving cases’.
The importance of categorisation
3.43The committee heard that even if a government was reluctant to publicly declare a case as wrongful (for example, to protect diplomatic negotiations or trade interests), this was not a valid excuse to avoid making an internal categorisation.
3.44For example, Hostage International observed that publicly declaring a case wrongful and internally categorising it as wrongful were not the same. It explained that an aversion to publicly declaring a wrongful detention case did not mean that the case could not be categorised as such:
Categorising a detention as wrongful is different from declaring it publicly as such. Categorisation is an internal matter whereas a declaration is usually public. A government’s categorisation of the case must precede any declaration, but categorisation does not necessarily mean that a public declaration should then follow. Governments may decide it is not in their interests and/or the interests of resolution of the detention for them to declare that they have categorised a case as a wrongful detention. This is a matter of tactics as well as competing priorities. For example, the home government may wish to allow the detaining state to save face internationally in order to enable the release. Alternatively, they may not wish to make a declaration which will impact on their bilateral economic relations with the detaining state.
3.45It went on to conclude:
Whatever the position, any reluctance to publicly declare a detention as wrongful should not impede the categorisation of the case which is necessary before the government can properly start to implement its approach. This categorisation often appears to take too long and valuable time is lost in the process, with significant consequences for the detainee and their loved one.
3.46AWADA made the point that a set of criteria used to assess and categorise cases was imperative as it would allow the Australian Government to understand the extent of the problem, in turn allowing the more efficient allocation of resources. It recommended that DFAT be required to collect data on the wrongful detention of Australian citizens and disclose de-identified statistics to the Prime Minister and Minister for Foreign Affairs on a regular basis.
3.47Additionally, AWADA observed that an area of particular concern which might be remedied by the adoption of a clear definition and categorisation mechanism was the ‘relative grey area occupied by cases of Australians arrested in authoritarian or highly corrupt countries for financial-related crimes’.
3.48It explained:
Because Australians accused of, for example, fraud, bribery or other financial crimes related to their own business dealings or those of the companies they represent, do not immediately appear to be victims of politically-motivated or arbitrary detention they are typically not characterised as wrongfully detained by DFAT Consular. This is inherently problematic, particularly in countries which do not maintain the rule of law and in which the justice system is routinely used as a tool to pressure or gain unfair advantage over business rivals, seize a competitor’s assets etc.
3.49AWADA suggested that having standardised criteria against which such ‘grey zone’ cases could be assessed would greatly assist the Australian Government in properly identifying cases and providing appropriate support. It detailed:
An assessment of the charges and any available evidence might enable the Australian Government to make the determination that the citizen in question is likely innocent, and therefore wrongfully detained. Such a process exists in the US, which has in the past designated American citizens unjustly charged with both financial and drugs offences as wrongfully detained and has undertaken efforts to secure their release. In Australia, there appears to be an assumption that cases involving financial charges do not warrant diplomatic intervention beyond seeking assurances that the individual receives humane treatment in detention and that their trial is free and fair (which is impossible to guarantee in many attesting states).
A form of deterrence
3.50Professor Greste reiterated that a clear policy framework would have a deterrent effect:
I think a clear policy framework, a clear envoy, as has been discussed, are all really important parts of not just strategies for dealing with detentions as and when they come up, but as a very clear message to foreign states that might be contemplating detaining an Australian that we have a robust strategy in mind.
3.51Dr Rana Dadpour, Director of Australian United Solidarity for Iran (AUSIRAN), submitted the absence of a robust policy framework could encourage known offenders such as the Islamic Republic of Iran (IRI) to continue to engage in hostage diplomacy. In relation to the IRI, she explained:
I do think that, as long as there are no clear measures explaining exactly how and based on what values Australia is going to react to this kind of behaviour, the IRI regime and the IRGC [Islamic Revolutionary Guard Corp] will keep using this [hostage diplomacy]. They will realise that there are no consequences, or at least there are no specific frameworks to measure any consequence for those actions. They will think that they can get away with it, in some senses, and that will not deter future hostage taking by this regime. Not only will it not deter it but I think it will also encourage it. They will think that the Australian Government cannot or will not act in a strong, assertive manner against this type of behaviour, and therefore assumptions made by them will lead to more hostages being taken—Australian citizens and dual nationals as well.
3.52Dr John Coyne and Mr Justin Bassi submitted that a consistent approach to the application of the term ‘arbitrary detention’ was crucial to keeping states that engaged in hostage diplomacy accountable. They explained:
While understandably highly complex when dealing with diplomatic relations, a consistent approach to the Australian government's application of the term 'arbitrary' in detention cases is best for individual Australian citizens, the national interest and international rule enforcement. Unfortunately, cases have often been marked by significant inconsistencies, which not only adds to our own public’s confusion but can let authoritarian regimes off the hook and demonstrate that they can successfully get away with using the malign practice.
3.53Ms Toomey set out six key matters that the Australian Government may wish to take into account when creating a policy framework, noting that the cumulative aim of these was to deter arbitrary detention for diplomatic leverage. For example, she noted that it was important for the framework to:
Clearly state what type of conduct amounted to arbitrary detention for diplomatic leverage, and that cases involving the exercise of leverage should be able to be distinguished from other situations or arbitrary detention that did not involve a political or diplomatic motive.
Clarify that it is not only Australian citizens with sole Australian nationality who are at risk, and recognise that Australian dual nationals and permanent residents are also vulnerable.
Prioritise the provision of strong consular support for detainees and their families, given that WGAD has determined that effective access to consular officials is an essential means of securing a fair and minimise the detainee’s exposure to solitary confinement or other forms of torture or ill-treatment.
3.54Ms Toomey further noted that the framework should clarify what specific actions and results would be regarded as sufficient to deter the practice of arbitrary detention for diplomatic leverage, such as:
providing effective consular assistance, including facilitating access by detainees to other services (legal representation, interpretation);
introducing policy or legislative changes;
cooperating with like-minded international partners;
securing a finding by an international body, such as WGAD, that the detention is arbitrary and undertaken for diplomatic leverage.
3.55Additionally, she detailed that the framework should reference what type of results could be used to measure success in deterring hostage diplomacy. She explained:
The policy framework should indicate what results would be regarded as a success in deterring this practice, such as fewer cases involving Australian citizens, dual nationals and individuals with permanent residency; faster assessment and resolution of cases; or effective resolution of cases through the release of the detainee and provision of reparations by the detaining state.
Calls to proactively utilise the expertise of the United Nations Working Group on Arbitrary Detention
3.56Inquiry participants drew the committee’s attention to the valuable work done by WGAD on in providing internationally-recognised determinations on whether a detention is arbitrary. Submitters noted that WGAD processes and determinations could be useful to guide Australia as it worked to develop its own definition and criteria. Some argued that in the absence of a national framework, or in cases where a case was disputed, Australia should also make use of WGAD expertise.
3.57As set out in Chapter 2 of this report, WGAD has a mandate from the UN Human Rights Council to investigate cases of deprivation of liberty imposed arbitrarily or inconsistently with the international standards set forth in the Universal Declaration of Human Rights, or the international legal instruments accepted by the states concerned. It receives submissions from detainees, their legal representatives, civil society organisations and governments on cases of alleged arbitrary detention worldwide. Using specific criteria and a set process, WGAD eventually issues a determination setting out its opinion on whether a detention is arbitrary. A WGAD determination is often used by a detainee and their supporters to advocate for their release, or by human rights advocates to draw attention to non-compliance by states with their international human rights obligations.
3.58Professor Greste suggested that a WGAD opinion could be used as a stop-gap measure until Australia had developed a formal definition of wrongful detention. He explained:
A clear method for assessing and categorising cases of detention to identify those which meet the definition of “wrongful” should be a matter of priority. In the absence of our own method, the UN Working Group on Arbitrary Detention could become a starting point. It would be a mistake to cede categorisation of cases to the WGAD alone, but it has a systematic method for assessing them and could form the basis of our own.
3.59Ms Toomey, former WGAD chairperson, strongly encouraged the Australian Government to make use of WGAD opinions and materials as valuable resources. She observed:
The WGAD’s independent determination that a person is arbitrarily detained can be used by petitioners, governments, civil society, national human rights institutions and others to support advocacy that the person should be released, as well as to generate awareness of particular issues such as the exercise of leverage in state-to-state relations.
3.60On this matter, Ms Toomey drew the committee’s attention to a 2023 inquiry by the UK House of Commons Foreign Committee into hostage diplomacy. The report contained the recommendation that, when WGAD had determined that the detention of a UK citizen is arbitrary, the Foreign, Commonwealth and Development Office should assume that the case will not be judged in the detaining state in accordance with international standards and respond accordingly. Additionally, the report also recommended that the UK Government should as a matter of practice promote public acceptance of the WGAD opinion.
Concerns with DFAT’s attitude towards WGAD
3.61AWADA argued Australia should make more use of WGAD as an expert body, advising that nation states are able to apply for opinions on cases in the same way that lawyers or NGOs acting for a wrongly detained individual do. It explained:
Australia should consider using the WGAD as a tool to highlight the plight of wrongfully imprisoned citizens and as a neutral body which can be applied to adjudicate complex cases which may be less clear-cut examples of wrongful detention….
3.62However, AWADA also raised significant concerns that DFAT was actively ignoring WGAD determinations on cases of wrongfully detained Australian citizens. It stated:
AWADA is concerned that opinions issued by the WGAD are being ignored by DFAT in its current ad hoc decision-making around which Australians are and are not wrongfully detained.
3.63In particular, it highlighted the case of Australian citizen Mr Pether, who has been imprisoned in Iraq since 2021. It detailed:
Mr Pether was found to be arbitrarily detained by the WGAD in 2022 however his family have been told by DFAT representatives that the government does not recognise this judgement. Greater transparency is clearly needed on this issue, as the discrepancy between the WGAD opinion and that of DFAT, for which no explanation has been provided, is a source of distress for Mr Pether and his family.
3.64Human Rights Watch held a similar view to AWADA regarding DFAT’s acknowledgment of WGAD opinions. It emphasised that DFAT should consider where WGAD has made a determination on whether a person was arbitrarily detained and that this determination should then inform DFAT’s classification of a case. It further contended that where DFAT’s determination of a case differed from that of WGAD, an explanation should be given as to why.
3.65Ms Toomey noted that the Australian Government may wish to apply similar principles when there is a WGAD opinion that an Australian national, dual national or permanent resident has been arbitrarily detained for leverage.
Terminology considerations and the need to align internationally
3.66In arguing for the need for the Australian Government to adopt a formal definition, a number of submissions to the committee considered the complexities present in determining terminology and definitions. In doing so, submitters emphasised the need for consistency and alignment with existing international norms to facilitate effective multilateral responses.
3.67For example, Ms Toomey highlighted the work of the WGAD in providing determinations. However, she made clear there still remained a need for Australia to develop its own criteria for assessing whether the detention of a citizen was detention for a legitimate purpose.
3.68Ms Toomey put forward the merits of using the term ‘arbitrary detention’, given that the terms ‘wrongful’, ’illegal’ and ‘unlawful’ were already encompassed within the definition of 'arbitrary' under international human rights law which was employed by WGAD. However, she emphasised that in terms of an Australian framework, the priority should be for consistent terminology, as this would generate a shared whole-of-government understanding. She explained:
Ultimately, though, whatever terminology the committee chooses to adopt, it would be preferable to have one term used across government departments and diplomatic posts to avoid confusion and to ensure that a consistent approach is taken in identifying and reacting to leverage cases.
3.69Ms Sarah Teich, a Canadian international human rights lawyer who assisted in the drafting of a bill to combat hostage diplomacy currently before the Canadian Parliament, provided the committee with an overview of the different terms in use internationally. She observed that the wide variety and interchangeable nature of some did ‘muddy the waters’ of the issue to an extent. She recommended that Australia carefully consider which terminology to use and then define the chosen terms ‘clearly and in a manner that is consistent with existing international instruments’.
3.70Dr Danielle Gilbert, Assistant Professor of Political Science at Northwestern University and member of the Bipartisan Commission on Hostage Taking and Wrongful Detention at the US Center for Strategic and International Studies, provided evidence to the committee. She emphasised that consistency in terminology between states, grounded within the processes of international law, was desirable given that a common understanding would be beneficial for international cooperation. She explained:
I think agreeing on terminology, whether that is 'arbitrary detention' or 'hostage-taking' in state-to-state relations can be useful for the purpose of coordinating on the mechanisms of international deterrence. To appeal to international law about these violations, to establish agreed upon norms and to get other countries onboard with this processes, I think clarity in the definition is the most important. When I look at wrongful detention in the case of the United States's choice of that terminology, some of the cases probably would qualify as hostage-takings. Someone is held for the purpose of coercing the US government. But many of those cases might be an arbitrary detention but not a hostage-taking. So perhaps that umbrella category [of ‘wrongful detention’] is useful so that cases can fall into one or another, but I think that that ambiguity undermines the ability of allies to coordinate.
3.71AWADA was not prescriptive about terminology in its calls for a formal definition and criteria, recommending simply the adoption of ‘a definition of wrongful detention (or other preferred term)’.
3.72Mr Geoffery Robertson KC, a barrister and human rights advocate, gave evidence to the committee in his private capacity. He provided his thoughts on terminology, including the phrasing of the inquiry terms of reference and the overlap between types of detention:
These submissions are sought initially on the iniquitous practice of “arbitrary detention for diplomatic leverage”, but thereafter more broadly about “wrongful detention”. There is obviously an overlap - some victims are arrested for the very purpose of holding them as hostages, but others may be arrested legitimately and only later, opportunistically used for a prisoner swap. Diplomatic leverage is just one reason for wrongful detention: others include detention after unfair trials or disproportionate sentencing.
3.73He opined that he did not think the term ‘arbitrary detention’ was useful, given the legal meaning of ‘arbitrary’ was ‘quite different’ to its colloquial meaning which connotes ‘random’, ‘illogical’ or ‘unreasonable’ detention. He commented:
International law on human rights, should be couched in language that is easily comprehensible both to victims and to violators. I prefer to relate these submissions to detentions that breach international standards because of wrongful conduct by authorities of the detaining state in arresting, trying, or sentencing of Australian citizens.
Learnings from the US – the Levinson Act as an alternative model
3.74 A number of submitters drew the committee’s attention to the framework in operation in the US, suggesting that it would be a reasonable starting point for Australia to assess what should be contained in its own policy framework.
3.75For example, AWADA strongly urged the Australian Government to follow the lead of the US in adopting a formal definition and developing a classification mechanism for determining which consular cases do and do not constitute wrongful detentions. It suggested that this would ideally be codified within legislation, akin to the US.
3.76Additionally, the Global Liberty Alliance stated:
Drawing from the U.S. experience, it is evident that a clear statutory framework is essential. Australia’s lack of a clear definition for wrongful detention complicates case management, similar to the challenges the U.S. faced before the Levinson Act.
3.77Mr Michael Kovrig, a former Canadian diplomat who was wrongly detained in the People’s Republic of China (PRC) in 2018 for over 1000 days, suggested that the US legislative model offered an ‘excellent blueprint’ for other states to consider.
3.78REDRESS, a UK-based non-government organisation (NGO) that pursues legal claims on behalf of torture survivors globally which has represented wrongful detainees, stated that in its experience, the US model of dealing with wrongful detention was the most advanced internationally:
It's not perfect, but it's the most advanced, and if you're looking into a model that's capable of streamlining processes, acting effectively and bringing together different government departments, that's the most advanced version so far.
3.79Dr Gilbert, who consulted on the drafting of the codified US framework, submitted that the legislation was ‘transformative’ for the hostage recovery enterprise in the US. She noted that while the categorisation process was not perfect, it was still a step forward.
3.80As set out in Chapter 2, since 2015 the US has had a comprehensive framework to address the problem of US citizens being taken hostage and wrongfully detained overseas. The cornerstones of this framework are the Office of the Special Presidential Envoy for Hostage Affairs (SPEHA), the Hostage Recovery Fusion Cell, and the Hostage Response Group, as well as the Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act (the Levinson Act).
3.81Passed in 2020, the Levinson Act legislated much of the framework that was initially set out in Executive Order 13698 and Presidential Policy Directive 30 in 2015. It directs the Secretary of State to review cases of US nationals detained abroad to determine if their detentions are wrongful based on ‘the totality of the circumstances’ and guided by discretionary criteria provided in the Act. The Levinson Act also requires an annual report to Congress and authorises the President to impose sanctions on those who direct or support hostage taking and wrongful detentions.
3.82One of the core functions of the Levinson Act is to set out 11 discretionary criteria to assess if a citizen has been unlawfully or wrongfully detained. The criteria are as follows:
(a) Review. —The Secretary of State shall review the cases of United States nationals detained abroad to determine if there is credible information that they are being detained unlawfully or wrongfully, based on criteria which may include whether —
(1)United States officials receive or possess credible information indicating innocence of the detained individual;
(2)the individual is being detained solely or substantially because he or she is a United States national;
(3)the individual is being detained solely or substantially to influence United States Government policy or to secure economic or political concessions from the United States Government;
(4)the detention appears to be because the individual sought to obtain, exercise, defend, or promote freedom of the press, freedom of religion, or the right to peacefully assemble;
(5)the individual is being detained in violation of the laws of the detaining country;
(6)independent nongovernmental organizations or journalists have raised legitimate questions about the innocence of the detained individual;
(7)the United States mission in the country where the individual is being detained has received credible reports that the detention is a pretext for an illegitimate purpose;
(8)the individual is detained in a country where the Department of State has determined in its annual human rights reports that the judicial system is not independent or impartial, is susceptible to corruption, or is incapable of rendering just verdicts;
(9)the individual is being detained in inhumane conditions;
(10)due process of law has been sufficiently impaired so as to render the detention arbitrary; and
(11)United States diplomatic engagement is likely necessary to secure the release of the detained individual.
3.83The Levinson Act also specifies that upon a determination of wrongful detention by the Secretary of State, the Secretary shall transfer responsibility for the case from the Bureau of Consular Affairs of the Department of State to SPEHA. This transfer occurs regardless of whether the detention is by a foreign government or non-governmental actor.
3.84The committee heard from the current SPEHA, Ambassador Roger Carstens, who provided further explanation on the categorisation process set out in the Levinson Act as followed by his office:
The Levinson Act gave us 11 discretionary criteria that may be considered in addressing whether a detention is possibly wrongful or not. My office works very close[ly] with the Bureau of Consular Affairs and many others in the Department of State, including our lawyers and department personnel, to review these cases and eventually make a recommendation to the Secretary of State. The factors might include whether an individual has been detained solely because he or she is a US national, whether there are credible reports that detention is being used for a legitimate purpose, and sometimes I can even say that person may not be necessarily pure as the driven snow; the case may actually have something where the person might have done something wrong, but we get a strong sense that they're being used as leverage against the United States. When that starts to happen, the case, in a way, starts moving a little closer towards the wrongful detention side of the house.
But the bottom line is that the [S]ecretary [of State] makes the final determination based on the totality of the circumstances and grounded in the facts of the case.
3.85Ambassador Carstens continued:
Maybe the simplest way to put it is: when someone is detained overseas, a consular officer is most likely tracking that case, and they'll look for those indicators of wrongfulness. If it seems wrong, they fire off a cable up to main state in Washington DC. We start reviewing the facts there. We start to really try to see if these facts might lead themselves towards a detention determination. But, to make it as simple as possible, we take the Levinson [A]ct criteria and lay it over the facts of the case to make that determination of whether it's wrongful or not. Again, it's discretionary, and the secretary of state makes that final determination.
3.86The committee heard that the time the categorisation process took varied depending on the individual circumstances and how difficult it was to gather the required information, but that in the past there had been cases that were categorised in as little as 11 days.
3.87In relation to the terminology complexity (as touched upon earlier in this chapter), Dr Gilbert noted that in the Levinson Act there were two central sources of ambiguity regarding the wrongful detention designation.
3.88The first related to the use of the terminology ‘wrongful detention’, which was ‘closely related to but not fully consistent with’ two existing violations of international law: arbitrary detention and hostage taking. She explained:
While arbitrary detention is the deprivation of liberty without legitimate reason or legal process, hostage-taking is detention in order to compel a third party as an explicit or implicit condition for the release of the hostage. While Levinson Act criterion 3 points explicitly to hostage-taking, many of the other criteria would be better understood as constituting arbitrary detention.
3.89In light of this, Dr Gilbert suggested that as countries combat hostage diplomacy, governments should adopt a consistent terminology and definitions of these violations. She noted that ‘sharing concepts should only help allies in coordination, deterrence and legal recourse in appeals to international law’.
3.90Dr Gilbert submitted that the second source of ambiguity in the Levinson Act was the designation process itself. She observed that there was no deadline by which the Department of State must make a determination, at no point must it publicly disclose which of the 11 criteria had been met, and there were no criteria publicly marked as being necessary or sufficient to obtain the designation.
3.91Dr Gilbert remarked that she was ambivalent about this second ambiguity. She noted that the US Government may find such flexibility strategically or politically useful in handling cases, even though families and advocates often ‘yearn for clear benchmarks’.
DFAT’s response to calls for change
3.92Compared to other submitters, DFAT was an outlier in its evidence to the committee, given that it expressed a view that Australia did not need a formal definition or criteria to identify and manage cases of wrongful detention. It repeatedly emphasised its preference for a ‘flexible approach’ to cases involving Australians detained overseas. It stated:
DFAT adopts a tailored approach to each case to best support the welfare and interests of the client and their family. These are the primary considerations when considering what advocacy and support the government can provide to achieve a positive resolution of the case. This flexible approach has resulted in DFAT securing the release of several high-profile Australian detainees, as well as other less publicly known, in recent years.
3.93It reiterated that it did not see a need for Australia to change its current approach:
While we recognise other models, including legislated criteria or permanent envoys, have been applied, DFAT assesses that our flexible approach provides the Department with the broadest range of options to secure positive outcomes.
3.94The US model was discussed with DFAT officials during their appearance at a public hearing. When asked specifically whether a codified response mechanism similar to the Levinson Act could be useful in the Australian context, DFAT stated that it did not think it was needed. Ms Ganly commented:
Again, I think that we have sufficient flexibility, including sanctions, although we don't use them as our first point of call. That's probably the point of last resort. We will use other methods first in that regard. I think we have sufficient coverage under international law, the various international acts that we work to, to provide the coverage that we need. I don't feel that we need the act or law. Looking at the Levinson Act and the Canadian bill that's going forward, many of the things covered have already been covered within the Australian framework.
3.95Dr Kylie Moore-Gilbert, an Australian academic wrongly detained in Iran for over 800 days and current director of AWADA, disputed DFAT’s claims on the efficacy of its ‘flexible approach’ She explained:
This ad hoc approach is characterised by DFAT in a positive light as flexibility or an a la carte approach. However, what is clear is that not having a definition of a wrongful detention case and not having a distinct process to distinguish such cases has meant that many innocent Aussies have fallen between the cracks and have not enjoyed the resources that I did to bring them home.
3.96Dr Moore-Gilbert responded to DFAT’s assertion that a more codified regime would undermine the ‘flexibility’ that DFAT believes is a worthy element of its current approach. She was firm in her view that DFAT’s current approach was ineffective and in need of structural change, with the notion of flexibility too often used as cover for ‘incoherence and subjectivity’. She detailed:
Right now, our system isn't working. For every successful case that's been brought home, there are others who languish in prison—and I've named some of them earlier. Even those of us who are brought home could have been brought home earlier with a more expeditious response from the get-go following the wrongful arrest. Flexibility is too often cover for incoherence and subjectivity.
Public awareness
3.97Evidence to the committee indicated that one of the benefits of adopting a definition and criteria for identifying wrongful detention was that it would facilitate the collection of data that could in turn be used to increase public awareness of the problem. Submitters pointed out that DFAT could improve public awareness by better warning Australians about the risks of wrongful detention when travelling to certain countries, and that it could do so by publishing more specific, targeted Smartraveller advice.
3.98As noted in Chapter 2, DFAT administers the Smartraveller website which provides travel warnings for countries around the world. Countries are designated at one the following travel advice levels based on a risk assessment:
exercise normal safety precautions;
exercise a high degree of caution;
reconsider your need to travel; or
do not travel.
3.99Australians are advised to visit the Smartraveller website prior to travelling to ensure they are informed of the potential risks and dangers associated with travel to that country. Each country has a dedicated webpage with a country synopsis, which where relevant may include a statement on whether there is a risk of a country arbitrarily detaining foreign citizens.
3.100DFAT advised that it seeks to increase public awareness of countries that engage in the practice of arbitrary detention through Smartraveller advice, and that a number of those countries are listed as ‘do not travel’ destinations. It explained:
The travel advice for Afghanistan, China, the DPRK [Democratic People’s Republic of North Korea], Iran, Mali, Myanmar and Russia all contain clear warnings regarding the risk of arbitrary detention. The travel advice for Belarus, Macau and Hong Kong highlight the risks around the arbitrary or harsh enforcement of local laws.
3.101 In 2023, the DFAT created employment-specific advice for journalists and academics to highlight the risk of arbitrary detention amongst other risks associated with travel and these professions.
3.102The committee queried DFAT as to whether there were any countries in which Australia recognised hostage diplomacy as a serious travel risk for Australians. Ms Ganly responded that there were not. She explained:
We do not for Australians. We haven't identified them as that. But we are well aware that arbitrary detention can quickly move from being arbitrary detention to arbitrary detention for other purposes.
3.103Ms Toomey highlighted that recent cases brought to the WGAD suggested that arbitrary detention for diplomatic leverage had been on an upward trajectory in the last five to ten years. She observed that this represented an ongoing and significant risk for Australians who travel, study and work abroad. In light of this, she suggested that the Australian Government may wish to reflect this high level of risk in travel advisories, including specific warning about the risk of arbitrary detention in terms that are easily understood by different audiences.
3.104A submission from Dr John Coyne and Mr Justin Bassi emphasised the importance of public awareness campaigns to educate Australians about the risks of travelling to countries with a history of arbitrary detention. However, they commented that such campaigns often did not fully convey the unpredictability and risks of interacting with opaque legal systems, leaving Australians vulnerable despite their best efforts to stay informed.
3.105Mr Jason Poblete, President and Counsel for the Global Liberty Alliance stressed that the current DFAT travel warnings needed to be more direct in order to properly convey to travellers the seriousness of the risk. He stated:
We have travel warnings, but maybe they're not clear enough. That's a good example of a clear rule. If a country is stressing to a traveller, 'Do not travel here,' clearly explain what that means. Do not necessarily just say, 'Don't go there,' but provide people context for that.
3.106Mr Pether recommended that consideration be given to adjusting the Smartraveller website to indicate countries that have engaged in wrongful detention, particularly if those detentions related to business activities. He observed that the current website appeared to be largely aimed at infrequent travellers (e.g. tourists), rather than regular expatriate and business travellers. He contended that the latter group of travellers were more likely to take serious notice of warnings that specifically referenced unlawful detention linked to business activities. To remedy this, Mr Pether suggested that the Smartraveller website be updated to provide specific examples of when a state had wrongfully detained foreign nationals, as well as a risk matrix to provide additional context and information for Australians to base their travel decisions upon.
3.107Mr Mohammed Munshi, an Australian who was imprisoned for 10 years in Mongolia and is still subject to a travel ban preventing him from returning home, also emphasised the importance of properly warning business travellers. He suggested DFAT should provide advice on which countries were safe to engage with for business, in a similar vein to its travel advice. He contended that DFAT should list instances of hostage diplomacy to warn Australians about working and investing in those countries.
3.108Safeguard Defenders, a human rights NGO specialising in China-related issues, recommended that DFAT include more specific information to the Smartraveller advice on the PRC to warn Australian citizens of the risk of hostage diplomacy:
To their credit, the recently updated Australian government Smartraveller advice for China lists many of the risks associated with travel to the PRC [People’s Republic of China]. However, we highly recommend adding or highlighting information on the risks I just described, including the risk of hostage diplomacy, especially as the PRC seeks to attract foreign visitors through its visa waiver program. However, protecting citizens from the risks associated with travel to China doesn't or shouldn't end at travel advice risks. We recommend both an increased level of transparency and measures of accountability.
3.109When questioned by the committee as to whether the Smartraveler website could be more upfront about the risks of hostage diplomacy in the PRC, Ms Laura Harth, Campaign Director for Safeguard Defenders, suggested that the advice could be more direct. She stated:
I do think there are issues that could be highlighted more. Compared to other countries, DFAT's advice is quite strong. However, I believe there are many issues that are not highlighted enough. The fact that there is not enough transparency in reporting what's happening to Australian citizens, as I mentioned, for example, through an annual report, may lead people to underestimate the risks.
Committee view and recommendations
3.110The committee acknowledges that many staff within DFAT have done commendable work in managing cases of wrongful detention and securing the release of Australian citizens.
3.111However, the committee holds concerns that Australia’s approach to dealing with cases of wrongful detention is inconsistent and inadequate. While recognising that government officials require some degree of flexibility to be able to negotiate the return of an Australian citizen, it is clear that there is a concerning lack of consistency and fairness in determining whether someone has been wrongfully detained, and therefore what level of consular support they receive.
3.112Given the current system is not working, the committee is of the opinion that a structural overhaul is needed.
3.113The committee has considered DFAT’s assertion that the current approach is flexible and provides ‘the broadest range of options to secure positive outcomes’. However, based on the evidence received throughout the inquiry, the committee is minded to agree with the view put forward by former wrongfully detained individual Dr Moore-Gilbert that this flexibility is too often a ‘cover for incoherence and subjectivity’.
3.114To this end, the committee considers it imperative that Australia implement a standardised, transparent policy framework to deal with cases of wrongful detention going forward.
3.115The committee is also of the view that a robust framework would in itself act as a deterrence factor against Australian citizens being wrongly detained in the first instance. It considers that a clear and transparent framework would send a strong message to those states that choose to engage in hostage diplomacy and that Australia will not stand for that behaviour. It would signal that Australia does not condone its citizens being used as bargaining chips and has an articulated strategy to respond accordingly.
3.116Internationally, the committee is cognisant that hostile regimes have successfully used the wrongful detention of foreign nationals to achieve prisoner swaps and gain diplomatic leverage over other countries. For example, in 2022 Russia used the detained US national Brittney Griner in a prisoner swap to force the release of notorious Russian arms dealer Victor Bout from a US prison. In another well-known instance of hostage diplomacy, China wrongly detained Canadian citizens Michael Kovrig and Michael Spavor in direct retaliation for Canada’s arrest of Chinese citizen Meng Wanzhou in the fulfillment of a US extradition request. The men were subject to human rights abuses and imprisoned for over 1000 days, and were ultimately released in 2021 on the same day that the US Department of Justice dropped the extradition request. Throughout the wrongful detention, China made it clear its demand for the release of its citizen in exchange for the freedom of the Canadian citizens.
3.117 The committee is concerned that given the success of hostage diplomacy tactics such as these, offending regimes are likely to continue to attempt such practices in the future. Australia needs to be alert to this danger and create a policy framework which minimises the risk of the Australian Government being leveraged in this way.
3.118The committee believes that establishing a policy framework, which involves a clear, public definition and criteria for determining wrongful detention, as well as a standalone office to coordinate responses, would ensure that no wrongfully detained Australian slips between the cracks and misses out on support.
3.119While acknowledging that the Levinson Act is not perfect and may continue to evolve over time, the committee considers that the US approach has merit and provides a suitable starting point for establishing an Australian framework.
3.120The committee is of the view that a policy framework must involve four core elements:
(a)A clear definition of what constitutes wrongful detention
(b)An established set of criteria for determining which consular cases constitute wrongful detention
(c)A standalone office, headed by a senior official, responsible for all elements of Australia’s response to wrongful detention.
(d)A clear focus on deterring foreign governments from wrongfully detaining Australians.
3.121In regard to the first element, the committee highlights the need for the definition adopted by Australia to align with definitions and understandings of like-minded partners, in order to facilitate multilateral action to combat hostage diplomacy.
3.122A detailed consideration of the third and fourth elements, along with the accompanying recommendations, can be found in the following chapters.
Public awareness
3.123The committee is cognisant of the importance of public awareness as a preventative measure to minimise the risk of Australian travellers being wrongfully detained.
3.124Invariably, foreign regimes do not wish to be identified within the international community as having wrongfully detained or taken as hostage for diplomatic leverage a foreign citizen. There are countless examples of regimes which have done so going to significant effort to concoct publicly justifiable excuses for wrongful detentions of foreign citizens. This demonstrates the potential for categorisation and public attribution of a wrongful detention to serve as a powerful deterrent towards wrongfully detaining an Australian citizen.
3.125The committee is of the view that the Australian Government must be more upfront in making the public aware of hostage diplomacy and warning them about the countries that have a track record of this behaviour. The committee considers that having a formal definition and criteria for identifying cases would greatly assist in this mission.
3.126While it commends DFAT on its Smartraveller website, the committee thinks that the travel warnings should include more specific, direct advice on the risk of wrongful detention and instances of hostage diplomacy in certain countries. In particular, the committee suggests that DFAT make sure the warnings are communicated in a way that is readily understood by all types of travellers and convey the gravity of the risk.
3.127On this matter, the committee observes that while there is an obligation on the Australian Government to ensure citizens are fully aware of the regimes which undertake this practice, there is also an obligation on travellers to these countries to take into account the risks. This is because it is not always within the power of the government to secure the release of Australians and there may be circumstances where a foreign regime makes a demand which cannot be agreed to.
3.128The committee recommends that the Australian Government should adopt a clear, publicly available definition of wrongful detention and implement a framework which ensures cases of Australians being wrongfully detained overseas are identified, categorised and reported as being cases of wrongful detention.
3.129The definition adopted by the Australian Government should allow for the identification and classification of a wrongful detention case as a case of hostage diplomacy (arbitrary detention for diplomatic leverage).
3.130The definition should also be in alignment with definitions used by key partners, to allow for multilateral action when a citizen from Australia or our partners is wrongfully detained.
3.131The committee recommends that the Australian Government should legislate to ensure that agencies have powers, tools and accountabilities to respond to and deter wrongful detention of Australians, including providing greater transparency and reporting on cases of wrongful detention.
3.132The committee recommends that the Australian Government’s framework acknowledge the unfortunate reality that some foreign regimes engage in the practice of hostage diplomacy because it has proven to be a successful tactic for securing prisoner swaps or obtaining leverage over the national government. Acknowledgement of this reality is a critical part of designing a framework which reduces the risk of the Australian Government being leveraged in this way, therefore reducing the risk of Australians being wrongfully detained for this purpose.
3.133The committee recommends that the Australian Government collect data on the wrongful detention of Australian citizens, which should be regularly reported to the National Security Committee of Cabinet and the Minister for Foreign Affairs, and publicly disclosed in a deidentified manner.
3.134The committee recommends that the Australian Government should take steps to increase public awareness in the Australian community about the practice of foreign governments wrongfully detaining citizens for a variety of reasons, including establishing leverage over that citizen’s national government.
3.135The committee recommends that the Australian Government should increase the visibility of warnings to Australian travellers intending to visit countries where regimes are known to engage in wrongful detention.