Chapter 4Supporting detainees and their families
4.1As set out in Chapter 2 of this report, the Department of Foreign Affairs and Trade (DFAT) is the first point of call for Australians who have been detained overseas. It is also responsible for maintaining communication channels between detained citizens and their families.
4.2DFAT advised the committee that it places ‘a very high priority’ on supporting Australians and their families in cases of wrongful detention, with ‘a clear focus on resolving the case and ensuring the detainee’s welfare’.
4.3However, evidence to the inquiry, including evidence from current and former detainees and their families, indicated that there were significant shortcomings in DFAT’s current management of wrongful detention cases.
4.4In particular, submitters raised concerns with:
DFAT’s attitudes towards, communication with, and support for detainees and their families during detention; and
the lack of adequate, ongoing support provided by DFAT for detainees and their families upon a detainee’s release and return home to Australia.
4.5The committee heard that given these shortcomings, there was considerable scope for DFAT to overhaul its operational model and strengthen institutional capacity to provide better support to detainees and their families both during and after an experience of wrongful detention.
4.6This chapter deals with each of these concerns in turn and explores options to improve the government’s processes. In particular, it sets out calls from submitters for the establishment of a standalone office to deal with wrongful detentions and looks at the Office of the Special Presidential Envoy for Hostage Affairs (SPEHA) in the United States (US) as a potential model for Australia to learn from.
Communication with and support for families during a wrongful detention
4.7Submitters informed the committee that while individual DFAT officials often undertook commendable work, current departmental operational policies impeded case resolution and were not conducive to effective, compassionate communication with detainees and their families.
4.8Current and former detainees and their families raised three specific concerns with DFAT’s current processes, all of which are exacerbated by the high staff turnover characteristic of consular and diplomatic work:
(a)DFAT’s reluctance to partner constructively with families that wish to engage with the media as part of a public campaign;
(b)ad hoc levels of communication (at times impeded by unintended consequences of Australian privacy legislation); and
(c)a lack of specialised, appropriately trained, trauma-informed staff.
DFAT attitudes towards media engagement
4.9The Australian Wrongful and Arbitrary Detention Alliance (AWADA) advised that families should be seen as partners in the resolution of wrongful detention, rather than ‘clients’ or people who need to be managed. In particular, submitters raised this in regard to family interactions with DFAT on the issue of media engagement.
4.10Some submitters asserted that DFAT displayed a reluctance to consider a media or public advocacy campaign, or even engage on such matters with families. The committee heard that DFAT maintains, or at the very least is perceived to maintain, a ‘largely blanket policy’ of advising the families of wrongful detainees against speaking to the media.
4.11Professor Peter Greste, an Australian journalist wrongly detained in Egypt between December 2013 and February 2015, observed that DFAT’s default appeared to be to advise the families of detainees to remain quiet and keep out of the media to let diplomats resolve the case. He reflected on his own experience:
My family initially got the same advice as everyone else that DFAT typically gives, and that is: 'Please don't say anything. Let us deal with these negotiations quietly and without the noise from the media.'
4.12Mr Geoffrey Robertson KC, a barrister and human rights advocate with extensive international experience in seeking to free wrongly detained individuals, gave evidence to the committee in his private capacity. He argued that DFAT needed to stop reflexively discouraging detainees from going public to enlist media or NGO support. He stated:
In my experience actually, most individuals who are falsely imprisoned in foreign countries have their case better advanced by an international media campaign than by our nervous DFAT consular officials, who can't do anything often to free them. But DFAT's knee-jerk reaction in every case is: 'Be quiet, leave it to us, we are the experts.' But they're not. They put pressure on the parents of detainees not to talk to the media or to protest, and I think this behaviour is actually unconscionable. It may serve to protect DFAT from public criticism when it's unable to obtain the release of wrongly detained Australians, but sometimes such criticism is deserved.
4.13Mr Robertson went on to describe how DFAT’s ‘kneejerk’ aversion to public campaigns may limit the options available to secure a detainee’s release:
It's this idea of keeping quiet the visiting parents, who are often not familiar with international matters, who may be very humble people, and who are told: 'We're the experts. We know best. Your son or daughter must not complain about their treatment. We will get them out in time.' The time passes, and, of course, Australian diplomats have no power to get them out of places like Iran.
4.14Submitters recognised the complexities inherent in media engagement and that there could be no ‘one size fits all’ approach. However, even while acknowledging the risks, submitters emphasised that with appropriate care, media engagement could form part of the ‘toolkit’ to resolve a case and should be genuinely considered an option should that be the wishes of the detainee and their family. They pointed out that in some cases a public advocacy campaign through the media could be an effective strategy to aid in a detainee’s release, or at the very least ensure better treatment while detained.
4.15For example, Professor Greste stated that in his opinion, media coverage should be considered as a legitimate option to be used where appropriate:
I genuinely believe that media coverage is more helpful than it is a hindrance. I am not saying that robust media coverage must always be the strategy, but I think it must be considered more aggressively or forthrightly.
4.16He noted that his family felt that the media coverage was rarely, if ever, negative in his case, and that it added ‘energy’ to the discussions and debate. He also credited media coverage to helping him escape some of the worst excesses and abuses of the Egyptian prison system.
4.17Similarly, Dr Sean Turnell, an Australia academic who was wrongly detained in Myanmar, noted that in his case the publicity surrounding his detention was of great assistance:
Actually I think it protected me, funnily enough, against abuse. I think the idea that you're very much under the focus of the media from your home country and so on makes the hostage-taking authorities a little bit more reticent about mistreating you and that even extends to how you might appear on television and so on. I think in that very basic way it has an impact.
4.18Hostage International, a non-government organisation (NGO) which provides specialist assistance to those affected by kidnappings and arbitrary detention worldwide, noted that it had seen benefits in using media exposure to ensure better living conditions for detainees:
…one thing that families can do is to focus on the humanitarian conditions of the detainee and the treatment they're receiving: maybe they're in solitary confinement; maybe they're ill and haven't been seen by a doctor; maybe they're not getting proper food. These are things that can be highlighted in the media without too much risk, because that's not pointing a finger at any government. That's where governments can work well with families and, in a sense, use the media to try to improve the conditions of the detainee.
4.19Ms Natalia Kubesch, Legal Officer at REDRESS, responded to committee questioning on whether there was a risk that publicity about a wrongful detention could impede diplomatic efforts to resolve the case. She stated:
Whilst it is normally the excuse being used in a lot of cases, actually the public pressure that comes from making the cases public has been more effective as is having engagement on the case and making sure action is being taken. I appreciate the concern in theory, but in practice we've seen that the public announcement has been more effective in resolving cases.
4.20DFAT informed the committee that while some of its advocacy and action is public, often it assesses that confidentiality is best placed to support a client’s interests. DFAT further noted that while it offered advice on the potential benefits and risks associated with media engagement, ultimately it advised all consular clients that the decision to engage with media was one for them and their family.
4.21Ms Paula Ganly, First Assistant Secretary of the Consular and Crisis Management Division, explained:
We advise the family and the detainee that the decision on whether or not to engage with the media is one for them to make. However, there may be circumstances where we advise them of issues that we believe they will face if they do go to the media and the potential implications for work that we are doing to assist the detainee in country. We also, with a number of people, have put them in touch with our media area—our communications area—at the department, which has assisted them in producing a statement or something. Some people have gone out on their own.
4.22Hostage International observed that media engagement became more of a prominent theme when families of detainees felt their government was not doing enough to free their loved one. It explained that going to the media could make a family feel empowered and able to have some influence over the case resolution. It observed:
… if governments take a blanket approach to families and media engagements, declaring any media to be high-risk and best avoided, families will feel that their hands are being tied and that the government is placing its own reputation above the needs of the detainee and their family. Many families are under pressure by the detainee or friends and family members to go to the media, so they are caught between government warnings and their feeling of duty to their loved ones. Ultimately, many families end up going to the media without further discussion with their government, and the relationship then also suffers.
4.23Dr Kylie Moore-Gilbert, an Australian academic wrongly detained in Iran for over 800 days who is now director of AWADA, spoke to the committee about her personal experience. She advised there was a danger in consular officials telling families not to go public as an automatic response, partly because this risked alienating a family and pushing them to go to the media on their own in such a way that undermined any diplomatic efforts also occurring.
4.24Professor Greste stated that in his view, DFAT’s reluctance to engage with the media was ‘counterproductive’ and could lead to frustration on the part of families. He observed that a lot of the time families of detainees went to the media ‘out of frustration, out of a sense of a lack of movement or activity from DFAT, that may or may not justified’.
4.25Submitters argued that DFAT needed to change its attitude and advice regarding the media to be more flexible and responsive to the concerns of families.
4.26For example, AWADA pointed out that the fact the many families make the decision to ‘go public’, regardless of DFAT’s advice, indicated that professional guidance on media engagement is necessary. AWADA argued that a blanket objection to media coverage was no longer appropriate or even feasible given the ubiquity of the internet and social media in the current media landscape.
4.27AWADA suggested that DFAT’s media engagement team should instead make itself available to families to discuss their options for working in partnership to use the media as a tool for campaigning in a strategic and positive way that would not hamper behind-the-scenes diplomatic efforts. It further stated that, in cases where media engagement is inadvisable, DFAT staff should explain this to families in a clear and comprehensive fashion, noting that the decision could be revisited depending on developments in the detainee’s situation.
4.28Dr Moore-Gilbert further explained that DFAT needed a more nuanced approach to media campaigns to facilitate a more constructive relationship with a family:
It’s much better to keep the family in the tent, work constructively with media engagement, make sure everyone is on the same page, singing from the same song sheet and not putting out messaging that might undermine the government’s negotiating position with that foreign state. At the same time, we need to recognise that it could actually assist the government in negotiations depending on a case-by-case basis.
4.29Professor Greste also noted that speaking to the media was also a validating and empowering experience for families, which was itself important and should not be dismissed.
4.30He further noted that where there was a high risk that media engagement could be destructive to case resolution efforts, that should be addressed through careful coordination of messaging and communication with the families.
4.31Ms Lara Symons, Chief Executive of Hostage International, emphasised the mutual benefits of trust between consular officials and families, particularly when it came to navigating any media campaigns. She stressed that if a home government engaged openly and in good faith, a family was less likely to become frustrated and more amenable to advice to not go to the media if the circumstances became sensitive or risky.
4.32Hostage International argued that a better approach was for governments to speak openly with families about media engagement and provide them with tailored guidance. It stated that this approach would allow families to feel that their interactions with their government were based on trust and respect, meaning they would be less inclined to ‘go it alone’ and more receptive to disengaging from the media when necessary.
4.33Specifically, Hostage International suggested that DFAT acknowledge a family’s wish to engage with media as soon as possible and the matter should be discussed openly at every family meeting. It noted that DFAT should genuinely listen to a family’s aims around media engagement and initiate a good faith discussion about the pros and cons of engagement.
Ad hoc communication with DFAT
4.34Hostage International observed that dealing with consular and diplomatic processes could be confusing and overwhelming for families. It detailed:
For example, families may not understand which part of DFAT they are in contact with, what the role of the ambassador to the detaining country is, and whether DFAT has any input on the selection of lawyers or translators. The lack of understanding of foreign policy responses and management of cases can be deeply distressing and frustrating for families and detainees alike.
4.35Evidence received from families confirmed this.
4.36As a guiding principle, Hostage International recommended that regardless of a government’s approach to case resolution, the processes should be clearly and compassionately communicated to those most affected by a case of wrongful detention.
4.37The committee heard that a common frustration amongst detainees and their families was DFAT citing ‘privacy considerations’ as a barrier to providing information to families with information about their loved one’s situation.
4.38According to AWADA, DFAT is legally unable to disclose information to families without first having the detainee sign a privacy waiver form — a condition that can prove insurmountable when DFAT is unable to access the person in the first place, due to their having been disappeared, held incommunicado, or having consular access denied by the detaining authorities.
4.39AWADA noted that this issue was particularly pertinent for dual nationals arrested in their country of second nationality, as the detaining state will often prevent all access by Australian representatives on the grounds of not recognising their Australian citizenship.
4.40For example, Ms Lamisse Hamouda, whose father Mr Hazem Hamouda was wrongfully imprisoned in Egypt in 2018 for over a year, explained how DFAT was initially unable to share information about her father’s welfare because they first required his signature, despite not being able to access him:
One of the big things early on was the barrier of the Privacy Act. I understood why I couldn't get information because of the Privacy Act. But then, at the same time, the [Australian] consulate couldn't access Dad. He had already disappeared, and we found out he was in prison because he smuggled out a letter. I was like: 'If I can't access him and you can't access him, how do I get past this Privacy Act for us to be able to more clearly communicate?'.
4.41AWADA noted that Canada has developed a solution for this issue by inserting a clause into its relevant privacy legislation exempting consular cases. It further noted that the US may be considering amending similar privacy-related policies to enable the detainee to give verbal consent to waiving their right to privacy, so that families can be kept informed. AWADA encouraged Australia to follow these examples and explore creative solutions to the issue.
Lack of consistent, specialised, trauma-informed staff
4.42As set out earlier in this chapter, evidence before the committee set out concerns from detainees and their families about the high staff turnover within DFAT and the detrimental impact this had on communications and relationships with families. More specifically, the committee heard that DFAT staff were not specialists or trained in trauma-informed communication.
4.43As AWADA noted in their submission:
The vast majority of consular staff are good people with good intentions, who want to do the very best for the ‘consular clients’ (i.e. families) they are tasked with liaising with. However, most are not trained in trauma-informed communication strategies and some are lacking in the kinds of interpersonal skills necessary for performing the difficult task of maintaining a positive and collaborative relationship with families during a very challenging period for all involved.
4.44AWADA informed the committee that anecdotally, the former detainees and families that it had dealt with indicated that the predictor of success for the relationship between DFAT and a family was largely the personalities of the officials involved. It explained:
It is the luck of the draw as to whether a case worker for example, is able to develop a positive and compassionate relationship with detainee families, or might instead end up alienating, frustrating or antagonising them. This is of course a two-way street- some detainee family members are understandably distressed and can be difficult to deal with.
4.45Additionally, AWADA stated that a number of family members from current and past cases had complained to it about the array of different consular staff members they were forced to retell their stories to again and again, and their frustration of starting from scratch each time as there appeared to be little knowledge transfer when personnel were replaced. It noted that one family member had informed them they had had twelve case workers in four years.
4.46Hostage International confirmed that DFAT’s interactions with families had been negatively impacted by a high frequency of change in personnel, which was very destabilising for families.
4.47It informed the committee that it had seen examples of both good and poor communication with families from DFAT, and that the outcome was influenced by the personalities chosen to be the point of contact, the culture set by the unit’s head, and the overall policies in place for family liaison. It noted that where the point of contact had shown empathy, accessibility, responsiveness and proactive behaviour, the communication with families had been positive and productive.
4.48Ms Hamouda had first-hand experience dealing with DFAT when her father was wrongly detained in Egypt. She posited to the committee that DFAT’s method of communication was not only ineffective, but also damaging to detained individuals and their families attempting to navigate the extreme challenges of wrongful detention.
4.49Ms Hamouda advocated for an overhaul of DFAT’s handling of wrongful detention cases to provide more comprehensive support for families. She stated:
Families and individuals cannot continue to be expected to navigate it all, from law to media, international relations to advocacy, policy to prison and their own personal lives.
4.50DFAT advised that staff are provided with ‘regular training’ in trauma counselling and dealing with people who are in difficult situations. However, AWADA pointed out that the high staff turnover within DFAT’s consular services diluted the efficacy of training provided. It posed the rhetorical question:
Is there much point training career diplomats in family engagement when several months later they may be posted overseas to an entirely different role, and another staff member is rotated into their position?
4.51In light of the challenges inherent in the crucial role of communicating with families, AWADA strongly suggested that Australia would be best placed to adopt the US model of professionalising family liaison. It asserted that case workers specially trained for wrongful detention cases should be appointed on a permanent basis to a family liaison role.
4.52A number of other submitters agreed with AWADA’s recommendation or endorsed this approach.
4.53Hostage International also suggested that more continuity with DFAT contacts, as well as a more permanent senior official (like the US and Canada) would be beneficial for families. In light of the influence that personality and skill set played in the development of constructive family relationships, Hostage International also urged that care should be taken to ensure that DFAT staff with the right skill set (e.g. good listening skills and empathy) were chosen for such roles and well-supported by their managers.
4.54Ms Hamouda stressed the importance of DFAT providing trauma-informed communication to support detainees and their families throughout the process of case resolution, given the levels of distress that families experienced. She outlined:
The experience of sustained distress compromises so much, from language and memory centres in the brain to an ongoing struggle to emotionally regulate, process complex information and engage in rational decision-making. As such, DFAT must be conscientious in enacting clear policy and communication. Staff must be trained in trauma informed practices and communication strategies.
4.55Hostage International noted that it had recently observed that DFAT was starting to move towards a culture of being more accessible, willing to share information, offer support with practical issues created by the detention, and arrange more frequent meetings with senior ministers or other key players in government.
4.56As a more general observation, Hostage International noted that governments found some topics more difficult to discuss with families and internal policies could also restrict what was able to be shared. This lack of information often led to families feeling frustrated by a perceived lack of action, and questioning the government’s ability or desire to find a resolution. Hostage International suggested that sharing information about processes, foreign policy complexities and geopolitics should always be possible, and this would help families to retain confidence that a government was acting to resolve the case.
Special Presidential Envoy for Hostage Affairs – the importance for a standalone office to support families
4.57To address the concerns outlined above, inquiry participants recommended the Australian Government implement a more cohesive approach that would create a centralised office with responsibility for all aspects of case management, including family communication and support. Submitters drew the committee’s attention specifically to the Office of the Special Presidential Envoy for Hostage Affairs (SPEHA) in the United States as a potential model to emulate.
4.58SPEHA leads and partners with a coalition of government and private sector organisations to secure the freedom of US national hostages and wrongful detainees held abroad. It has three key functions:
(1)Securing the release of US nationals wrongfully detained or held hostage abroad and helping them reintegrate upon return.
(2)Supporting families of wrongful detainees by providing case-specific information and access to US government resources.
(3)Leading and coordinating interagency multilateral and private sector strategy and efforts to deter and prevent hostage diplomacy.
4.59Special Presidential Envoy Roger Carstens leads the SPEHA office and holds the rank of Ambassador. The SPEHA office also includes:
a Deputy Special Presidential Envoy;
a Chief of Staff who serves as senior advisor to SPEHA and as policy planner for the office, examining issues to include strategic goals and objectives and alignment of policy priorities and resources;
a Regional Affairs Team, which leads the negotiations for individual cases in close coordination with the White House National Security Council and other agencies;
a Deterrence Team focused on strengthening collective action to deter and prevent unjust detentions, including through engagement with multilateral bodies and the private sector; and
an External Affairs Team, which handles family and detainee support, congressional affairs, and media and external engagement.
4.60Ambassador Carstens characterised the work of SPEHA for the committee at a public hearing, emphasising the whole-of-government approach at the core of its work:
To be effective, my office depends upon rapid, agile and coordinated actions to ensure all elements of national power are drawn upon for the recovery of US nationals who have been determined to be wrongfully detained abroad. The office collaborates with the Federal Bureau of Investigation, the departments of defense, state, justice and the treasury as well as the intelligence community. My office may directly negotiate for the release of a detained American or plan a recovery mission or work on sanctions against entities that engage in this practice, but we never do this alone. We bring a whole-of-government effort to this work that brings together all elements of national power.
4.61As detailed out in Chapter 3 of this report, SPEHA works very closely with the Bureau of Consular Affairs and others in the Department of State, including lawyers and department personnel, to review potential cases of wrongful detention and eventually make a recommendation to the Secretary of State as to whether a person has been wrongfully detained.
4.62Ambassador Carstens emphasised that working with families was a big part of SPEHA’s role. He provided the committee with an overview of how SPEHA initially engaged with families once their case was taken on:
At a certain point we explain why our office was created—essentially out of the failure of our government to do this job from 2012 to 2014—and then we start to turn it more into what we're going to do and how we're going to work with them, partner with them, to (1) take the burden of doing the work to free their loved one off their shoulders and put it on mine, and (2) find strategies to get their loved one home. As part of that, we try to give them a lot of information. We usually set up a call schedule for once a week but if a family member wants to talk to us every day, we'll do that. If they want to have us only talk to them when we have an update on the case, we'll do that. Usually it's a once-a-week update by phone or in person with the family in question. We tell them we have two members of the Office of the Director of National Intelligence who work part-time in my office whose main mission is to declassify information on their loved one's case so that we can brief them. We don't hide information or, if we're not making any progress, put the hand of the US government up and say, 'It's all secret; I can't tell you', because families smell that; they know when you're lying to them or whether you're not being fulsome in your explanation of the case. We want to go to the opposite side of the house and we want to embrace them, cry with them, give them information and be fully transparent to the extent that we can, and if we ever get to the point where we can't because the negotiation is so sensitive or the information cannot be declassified we simply tell them that.
4.63Ambassador Carstens also highlighted that SPEHA provided families with psychological, medical and practical support even while their loved ones were in detention. He explained:
That's important because, for the families, it's not even PTSD [Post Traumatic Stress Disorder]. It's not in the past; it's present emotional turmoil, and even financial turmoil, that's going on in their lives. So we try to provide them with that medical care that's paid for by the US government. We also provide them with a letter from my office saying that their loved one's been wrongfully detained. That can be used with creditors such as American Express, Visa, Citibank et cetera. It can also be used to keep their apartments from being emptied out by a landlord. So the letter's often been helpful in saving people from losing their houses and having their credit ratings attacked in any worse way than they've already been attacked. Also, we've worked with the IRS [Internal Revenue Service] and other government institutions so that the IRS not only doesn't go about penalising someone for not paying their taxes, because they're being held in a prison in Russia, but also doesn't fine them for not paying those taxes as well.
Calls for a standalone office
4.64AWADA argued that adopting the US SPEHA approach of a standalone office headed by one senior and long-serving individual, coupled with dedicated, appropriately trained case workers not subject to the churn of diplomatic postings would bring much needed ‘continuity, compassion and depth of expertise’ to the current system.
4.65As set out in Chapter 3, AWADA highlighted that Australia does not have an overarching policy framework in place for managing wrongful detention, nor a specific strategy for identifying, responding to and deterring cases of hostage diplomacy. AWADA also pointed out to the committee that Australia’s consular response to wrongful detention of citizens is not managed by a standalone office, unlike some of its like-minded partners. Instead, wrongful detentions are considered to fall within the broad DFAT category of ‘complex consular cases’.
4.66Accordingly, AWADA recommended the establishment of a standalone role specifically responsible for managing all elements of Australia’s response of wrongful detention, including family support. Specifically, it recommended:
Establish a standalone role for a senior official responsible for wrongful detention. This role should be held by an individual of senior rank who is not subject to diplomatic rotation. The position should be empowered to negotiate a detainee’s release and should report directly to the Foreign and Prime Ministers. This individual should act as Australia’s representative in all multilateral fora and diplomatic consultations on this issue.
4.67It argued that the creation of this standalone role would:
assist in the identification and resolution of individual cases;
facilitate a more cohesive Australian foreign policy response to wrongful detention more broadly;
allow Australia to engage more effectively in multilateral efforts with like-minded partners to deter and combat hostage diplomacy on the international stage.
4.68A number of other submitters supported AWADA’s recommendation, or made a similar recommendation to establish a standalone role and office.
4.69AWADA argued that a standalone role and accompanying office would simplify and speed up case resolution by empowering the official responsible to takes steps to negotiate with the arresting party, particularly during the initial ‘window of opportunity’ before a detention is formalised via the arresting country’s court system. It detailed:
Investing responsibility for case resolution in one senior official who is not beholden to consular bureaucracy once an individual is designated wrongfully detained, as in the US, would allow for both creative negotiation strategies and more expeditious case resolution. It would also ensure that ‘the buck stops’ on one person’s desk…
4.70AWADA noted that one key learning from international allies such as the US and Canada was that the official responsible should be both senior in rank and appointed to the position for a significant period of time. It explained that seniority was necessary to empower the official to make ‘swift, independent and creative decisions’ with immediate access to decision-makers, including the Prime Minister, Minister for Foreign Affairs and heads of Australia’s intelligence agencies. It noted that requiring sign-off from a variety of stakeholders within the DFAT consular hierarchy would limit the ability of the official to act expeditiously and creatively. AWADA also argued it was of crucial importance that the position not be beholden to the high staff turnover characteristic of the diplomatic service. While recognising that the regular rotation of staff between diplomatic postings and areas was an understandable and useful feature of DFAT’s operations, it emphasised that the regular churn of personnel involved in wrongful detention cases was repeatedly cited as a key challenge by family members, both in Australia and in similar countries such as the UK and Canada.
4.71AWADA further argued the lack of one individual or office within the Australian Government specifically responsible for wrongful detention had likely ‘hamstrung’ Australia’s participation in multilateral efforts to combat arbitrary detention. It pointed out that DFAT had sent a different official to represent Australia at each multilateral meeting or event organised by Canada since 2021, given that these have been held in various countries and fora.
4.72AWADA pointed out that the US had recognised this need for seniority and long tenure by granting the Special Envoy the rank of ambassador and having the role report directly to the Secretary of State.
4.73Canada has also established a standalone model. In November 2023, Canada established a Senior Official for Hostage Affairs (SOHA) whose purpose is to lead concerted consular efforts and enhance Canada’s capacity to respond to cases of hostage taking by both state and non-state actors. SOHA responds to a range of complex hostage situations abroad and is supported by existing consular, advocacy and critical incident response tools and resources.
4.74AWADA argued that if decision-making around freeing wrongful detainees was beholden to sign-off by a variety of stakeholders within the consular hierarchy, in addition to the highest level of political leadership, the chances that the person appointed to this role would be able to act expeditiously and embrace creative solutions are slim.
4.75Hostage International expressed support for a senior official and standalone office and nominated SPEHA as a good example of this senior official role. Additionally, it set out suggestions for how to best create the position:
Appointing a senior official with responsibility and authority to lead on these cases would signal to families that the Australian government is taking the matter seriously and dedicating expert resources to the case. It's important that this official has longevity in the role; a team of experts behind them; direct access to the most senior levels of government; and, importantly, regular and direct contact with the family, which can be alongside the family liaison members of their team. They also need to have the right personality, with an ability to build rapport and show empathy.
4.76Hostage International highlighted the critical role that a home government played for families with a loved one in wrongful detention:
During the period of detention, the family and detainee feel powerless. The one entity they need to rely on and want to trust is their home government, but many feel terribly let down; this disappointment lingers for years afterwards.
4.77To that end, it emphasised that the appointment of a senior official supported by a knowledgeable team that is accountable to families would help to improve the suffering experienced by a detainee’s family.
DFAT’s views on a standalone office
4.78As set out in Chapter 3, DFAT informed the committee that while it recognised other approaches, including legislated criteria and permanent envoys, it had assessed that its ‘flexible approach’ provided the broadest range of options to secure positive outcomes.
4.79DFAT also stated that given Australia does not often encounter cases of hostage diplomacy, the caseload it dealt with did not warrant the establishment of a permanent office similar to SPEHA.
4.80DFAT stated that, in its view, Australia did not need a codified response mechanism like the US model to deal with wrongful detention. Ms Ganly emphasised that DFAT’s current operational model provided sufficient flexibility, as well as sufficient coverage under international law.
4.81Dr Moore-Gilbert rejected the notion that a change in operational model, such as to a standalone office, would decrease flexibility. She argued:
Flexibility is too often cover for incoherence and subjectivity. Instituting a senior expert role not subject to diplomatic rotation, which is crucial in my view, to manage cases does not reduce flexibility. They could be provided with a full suite of flexible tools to tackle this phenomenon to be used in accordance with their own discretion and expertise, which is already what's happening in the Complex Cases Committee in DFAT.
Post-release support
4.82DFAT acknowledged that it could be very challenging for wrongful detainees to reintegrate back into life in Australia upon release. It summarised the support it provided to its ‘clients’ as follows:
Upon return, DFAT connects the client directly with Services Australia, which can link them with established domestic service providers. Services available include medical, skin and dental checks, funded sessions with clinical psychologists, debriefs with the department and referrals to relevant support services for assistance with the difficult transition period.
4.83However, former detainees and their families informed the committee that the support received from DFAT was either inadequate or non-existent. In particular, submitters raised:
the need for ongoing, specialised psychological support and other assistance to re-enter Australian life for all former detainees, with an onus on DFAT to successfully transfer its duty of care in that regard;
the need to offer debriefings with DFAT and intelligence agencies to all returned detainees and their families;
the need for DFAT assistance to address the long-term consequences of criminal records on international travel.
Psychological support and duty of care
4.84The committee heard that wrongful detainees often experience enormous physical, mental and emotional strain throughout their period of imprisonment, the effects of which continue to greatly impact them even after their release. As Professor Greste summarised:
Once released, they carry those burdens in a society that has virtually no understanding of what they have been through and therefore no capacity for empathising with their experience. That makes detainees often isolated and traumatised.
4.85For example, Hostage International highlighted the ‘huge suffering’ that families and detainees experience as a result of wrongful detention, with psychological, financial and practical repercussions that are significant and long-term.
4.86The committee received evidence that the level of support provided by DFAT to detainees upon their release was inadequate and often inconsistent in provision, with some individuals receiving no support at all.
4.87For example, Dr Kylie Moore-Gilbert, released in 2020, received no psychological counselling and only received medical checks two weeks after release on her insistence. She reflected:
My experience was that I was deposited into Australia and basically told, 'You're free now. Go on your way. Go find your own GP.'
4.88AWADA commended DFAT for recognising that improvements were necessary and taking steps to integrate the provision of basic medical checks and psychological counselling sessions into the repatriation process. For example, Dr Sean Turnell (released in 2022) and Ms Lei Cheng (released in 2023) were offered four sessions with a DFAT psychologist upon their return to Australia, and had basic check-ups with a general practitioner.
4.89However, AWADA emphasised that more work was still needed in the space to provide adequate care and support.
4.90Additionally, AWADA highlighted that given that DFAT did not have a definition of wrongful detention, some repatriated Australians were offered no support at all upon their return to Australia, having not been recognised by DFAT as having been wrongfully detained. It provided the following example:
AWADA member Luke Cook, for example, was exonerated in Thailand’s Supreme Court and cleared of all charges in 2021, having spent several years on death row in the country in prison conditions that amounted to torture. In spite of Luke’s being found innocent, and therefore having been wrongfully detained, no support services were offered to him upon his return to Australia. On top of this, Luke faced being thousands of dollars in debt to the Australian government for his repatriation flights home, before the NGO Capital Punishment Justice Project stepped in to foot the bill on his behalf. This is but one example of many.
4.91AWADA argued that when a former hostage or wrongful detainee is repatriated, the Australian Government has a duty of care to ensure that the individual receives the medical and psychological support necessary to adapt and reintegrate back into society. It noted that discharging this duty was not without structural challenges, given that there was no formal mechanism for transferring this duty of care from DFAT to the relevant state or territory health system once a repatriated detainee landed in Australia.
4.92AWADA acknowledged that while the provision of four counselling sessions with a DFAT-employed psychologist was welcome, DFAT was quite rightly not in the business of providing medical and psychological care. As a result, AWADA argued there was a need for a mechanism for transferring the duty of care to more appropriate providers (e.g. state or territory health systems or trauma-informed NGOs that provide support services for survivors of torture and other human rights abuses) so that no former detainee fell through the cracks and missed out on medical and psychological support.
4.93In relation to this transfer of duty of care, Dr Moore-Gilbert emphasised to the committee that while it was not DFAT’s role to provide psychological support, there was a role for it to play in referring former detainees to the appropriate services:
There have been former Australian detainees who have been physically tortured in prison and have injuries as a result of their physical mistreatment. Such people should never be told to just go off on their own and figure it out for themselves. There's a real duty of care there when you bring someone home to ensure they have that specialist mental health and medical treatment available. There's a linkage and a connectivity issue there. It would be relatively easy to solve if agreements were drawn up with some of these specialised torture charities, for example, to provide that care, and DFAT would refer people to those.
Debriefings
4.94The committee was informed that DFAT did not appear to offer former detainees a post-release debriefing as a matter of course. AWADA stated that according to testimony it had received from former detainees and their families, debriefings were offered on an ad hoc basis, if at all. For example, Dr Moore-Gilbert and Dr Turnell were not offered the opportunity to debrief about their experiences in prison following their repatriations in 2020 and 2022 respectively. Ms Cheng, repatriated in 2023 was offered a debrief, but other returned detainees reported receiving neither a DFAT debrief nor any meetings with Australian intelligence agencies, and efforts to proactively reach out to these were rebuffed.
4.95AWADA noted that this contradicted a DFAT response to a 2011 Senate inquiry into the kidnapping of Australian citizens overseas, where DFAT claimed that post-repatriation debriefs were part of its standard practice.
4.96AWADA emphasised that debriefings were important for two key reasons. Firstly, debriefings could be a valuable source of information for DFAT’s internal case management processes, and secondly, they played an important role in the former detainee’s recovery. In regard to the latter, AWADA explained:
….most detainees are generally unaware of what was happening back in Australia during their detention. DFAT’s willingness to answer their questions and help build a picture of why they were detained and what was done to bring them home can give the former detainee crucial context to understand what happened to them, and therefore move on from it.
4.97AWADA recommended that DFAT offer debriefings to all returned wrongful detainees and their families as part of standard operating procedures. Several other submitters echoed this recommendation. For example, Dr Turnell noted that full and formal debriefings for all repatriated detainees would be very beneficial.
4.98Professor Greste also urged the Australian Government to be more transparent with former detainees about the process that occurred to achieve their freedom. He noted that in his experience, he found DFAT and ministerial staff to be extraordinarily diligent and professional and that it would therefore be beneficial for former detainees and their families to gain a greater understanding of what went on behind the scenes to secure their release to help process the experience.
Long-term consequences of criminal records
4.99Submitters advised of the difficulties with international travel that wrongfully convicted Australian citizens must face, even after they have been released. For example, Professor Greste pointed out that former detainees must declare that criminal record on official documents (such as visa applications) even when the Australian Government does not recognise the validity of the prosecution or conviction, and that this often resulted in visas being denied. He advised that this could have a ‘crippling and unnecessary’ impact, particularly on those who travel for business, have relatives overseas, or need to travel at short notice.
4.100DFAT noted that in addition to the difficulties getting visas, there was also the possibility that foreign governments may seek to reinstate charges against former detainees, carrying the potential threat of extradition or further periods of detention.
4.101Some submitters called for the Australian Government to consider some kind of official letter that could be used to help explain their situation. For example, Professor Greste informed the committee that in 2023, on the fringes of the United Nations General Assembly, the Canadian Government hosted a meeting where they discussed the possibility of some kind of official note that former detainees could carry to assist their travel. The note would acknowledge the existence of a criminal record, explain the context and urge countries to ignore it for the purpose of travel.
4.102He noted that such a note or letter could be enormously helpful to former detainees in a practical sense, and that furthermore it would send a message to offending states that Australia and other like-minded countries did not recognise the validity of the prosecutions. He explained:
Symbolically, again, I think it is really important for the Australian government to underline that we aren’t going to play these games, that we’re not going to continue to acknowledge the consequences of these kinds of convictions. Symbolically, it also carries weight and significance.
4.103DFAT acknowledged the travel-related challenges that former detainees faced and informed the committee that discussions with like-minded partners had indicated it was a shared emerging issue with ‘value in co-operating to mitigate this common problem’. It advised that it had assisted former detainees by providing briefings on potential risks and mitigation strategies on planned travel, and had in the past provided notes on a case-by-case basis. However, due to the limitations of a note, DFAT expressed a preference to liaise directly with like-minded foreign governments to proactively manage the issues:
Rather than give a letter, we have, to assist outreach, gone through our ambassadors in the countries to which these people have been travelling to get the assurance firsthand. We would not have confidence that a letter, necessarily, picked up by an official at the airport would hold the weight that we would want. Therefore we go at a higher level if asked to do so. Also, it is that difficult situation where every country has its relationships and laws, so we have to manage it on an individual country and case basis.
The need for a structured reintegration program
4.104To address the concerns issues outlined above, AWADA recommended a formal reintegration program for repatriated hostages and wrongful detainees, potentially incorporating the existing skills and expertise of the Australian Defence Force and torture victim NGOs. It noted that the US already operated such a program that took place on a military base. It detailed that the program:
…offers detainees the ability to reunite with family in private and away from media attention, easing them back into society over a number of days during which the detainee receives comprehensive medical and psychological checks. In accessing this program, American civilians are able to take advantage of the considerable expertise and experience of the US Army.
4.105A number of submitters endorsed AWADA’s recommendation or made similar suggestions. For example, Hostage International advocated for DFAT to facilitate more comprehensive post-release care for detainees and their families and draw on the expertise and services of organisations like itself. As Ms Symons detailed:
… crucially, where post-release care is concerned, a better understanding by DFAT of the needs of former detainees and what NGOs in Australia can offer is required. DFAT's submission mentions referring released detainees to Services Australia but makes no mention of Hostage International, for example, whose services are tailored to the trauma and practical issues specifically faced by hostages and detainees. The fact that DFAT have offered four trauma sessions to more recently released detainees may sound like an improvement, but delivering something half developed in four sessions is by no means enough. They may end up doing more harm than good. Trauma therapy and the broader rehabilitation program need to be consistent and continuous. Ideally, it should be signposted to those better able to deliver it.
4.106Hostage International provides support internationally, including in Australia, to former detainees and their families, with trained caseworkers and a network of service providers, including psychologists and lawyers.
4.107In evidence to the committee, DFAT recognised that its provision of post-release support was an 'evolving process’ with room for improvement, and that it had been learning from the experiences of former detainees. Ms Ganly stated:
Previously we brought them [detainees] back and maybe spoke to them, and they moved straight into the domestic situation. I acknowledge that Dr Moore-Gilbert returned at a very difficult time, right in the middle of COVID, and that she has made it clear that her experience with the department was less than ideal. We then moved on to try and give, through DFAT, initially when people come back, four sessions with a psychologist that our departmental psychologist helps identify as being appropriate for the situation the returnee has faced. After that, the detainees move into the domestic services that are provided through their GPs and other systems within Australia. I would say, especially in listening to Dr Turnell and Cheng Lei regarding this, we have not been as clear as we should have been about the domestic services available. That is something that, from this process, we have already activated so that we can make sure anyone coming back knows what's available through Services Australia, medical teams and all the rest.
4.108DFAT also informed the committee that it had had discussions with counterparts in the US, Canada and the United Kingdon about the type of post-release support provided to their citizens to see if there were any applicable lessons for the Australian context.
4.109Ultimately, DFAT acknowledged that there was perhaps a need for a more structured support process:
For us it's not necessarily a one size fits all, but we can certainly help people, and we have.…We have provided assistance on an ad hoc basis as people reach out to us. But maybe we need a more formalised process—and that's what we're looking at to see what would work and what we could do that would be easy to achieve—and others that we would have to consider on a case-by-case basis.
Learnings from the US – post-release support
4.110The committee heard that there was value in Australia looking to the US post-release support program as a model to draw lessons from.
4.111Ambassador Carstens informed the committee that SPEHA provides a program of support to returned detainees and their families for five years after repatriation, paid for by the US Government. He explained:
If someone comes home from Russia on 1 August, we’re still going to spend five years giving them medical treatment, emotional support treatment and psychological treatment out of the US Government, while we're still working with their loved ones to reclaim their life and reintegrate into their family and society as well.
4.112He noted that SPEHA was continuously looking to improve the post-release program it provided to former detainees and their families, based on feedback from those receiving the support. As an example, he outlined that SPEHA had recently begun ensuring that former detainees and their families were not paying out of pocket to see a psychologist, and that instead appointments were covered by the US Government.
4.113 Ambassador Carstens advised that SPEHA was still exploring the best solution to the long-term travel consequences of a criminal record, and that it currently worked with former detainees to resolve issues as they arose. He mentioned that in looking to solve the travel challenges, the US was engaging with Interpol, the International Criminal Police Organisation:
We've worked with Interpol to come up with a list of people who might actually, I would say, hit when someone goes to a foreign country. It's our way of shorting the system to say, 'Look, we have about 70 or 80 people, and, if they hit, give us a call, because there's a story behind it and we'd like to give them the benefit of the doubt.' They've been very kind in working with us. We've still test-driving that. We've had a case where someone wants to travel to a country that seems like it could be a dangerous place for that person to travel, but business interests make them want to go, and we're trying to work with that person. You can almost never give someone a 'get out of jail free' card, but you can work with them in ways to ensure that we've gone above and beyond the call of duty to guarantee their safety when they go to a foreign country.
4.114When asked by the committee what solutions SPEHA implements to assist former detainees with explaining their wrongful criminal records when reintegrating into daily life (for example, when finding employment), Ambassador Carstens stated that the formal letter SPEHA provides went a long way to ensuring that a criminal record did not have adverse impacts. He explained:
When you go to get a job and someone asks, ‘Have you ever been arrested?” you have to answer yes, but, if you have a letter with my signature on the bottom, saying that you were declared by the US Secretary of State to be wrongfully detained, the letter has proven to be pretty powerful.
Committee view and recommendations
4.115The committee acknowledges the great distress endured by Australian citizens wrongly detained overseas and their families.
4.116It recognises that although individual officials may do commendable work, at a structural level, DFAT’s internal processes are not conducive to ensuring compassionate communication with detainees and their families.
4.117The committee is also mindful that despite the recommendations of a 2011 Senate inquiry into Australia’s response to kidnapping and hostage-takings, little appears to have changed in terms of how DFAT handles family engagement and support.
4.118In light of the evidence received to the inquiry, the committee sees merit in the establishment of standalone special envoy, similar to the SPEHA, that would have responsibility for handling all aspects of wrongful detention cases, including support for detainees and their families both during and after detention.
4.119Given the circumstances that generally surround a case of wrongful detention, the committee considers it wholly impractical that DFAT is unable to provide families with information on their loved one without first having the detainee sign a privacy waiver form. The committee is of the view that this situation needs to be remedied to ensure that families can ascertain the whereabouts, status and welfare of their loved one as promptly as possible.
4.120The committee is also disappointed to hear that former wrongfully detained individuals and their families have not received adequate post-release support from DFAT.
4.121Despite DFAT claiming it provides support, it is clear to the committee that either this is not happening consistently, or at the very least not operating with the effectiveness that DFAT believes. There appears to be a disconnect between what DFAT says it provides and what the former detainee and their family actually receive and experience. The committee is mindful that this could be in part due to the lack of a framework for defining and categorising cases of wrongful detention, a matter discussed extensively earlier in this report.
4.122The committee is heartened that DFAT appears to acknowledge that there is room for improvement in its post-release support offerings. It strongly suggests that the Australian Government liaise with counterparts in Canada and the US to learn from their formal reintegration programs. The committee also suggests that government officials engage in good faith with AWADA and Hostage International to leverage their organisational expertise and first-hand experience in the space.
4.123The committee recommends that the Australian Government should establish an inter-agency, specialist team led by a Special Envoy for Wrongfully Detained Australians to lead the management of all cases of wrongful or arbitrary detention of Australians.
4.124The committee recommends that the newly created Office of the Special Envoy should be resourced with the expertise (and ability to call on external expertise as required) to improve the Australian Government’s ability to provide:
Specialised and dedicated case management of each case of wrongful detention, including dedicated family liaison contacts.
Increased support for the families of Australians wrongfully detained during the period of detention.
Coordination with victims, families and their legal representatives in regard to legal assistance.
A greater level of ongoing support for victims of wrongful detention post-release, including medical support and counselling, and assistance navigating legal and administrative issues created by a wrongful conviction.
Ensure there is a proper process for reintegrating and debriefing an Australian released from wrongful detention and providing ongoing advice as required.
4.125The committee recommends that Australians who have been deemed to be wrongfully detained overseas should be supported by the government with a clear acknowledgement that the person’s detention was a wrongful detention, for example, by providing a government issued explanatory letter.
4.126 The committee recommends the Australian Government explore options for exempting consular cases from relevant privacy legislation, in order that the Department of Foreign Affairs and Trade is able to legally disclose information to a detainee’s family in a prompt manner, even in circumstances when a detainee is unable to physically sign a privacy waiver form.
4.127The committee recommends that the Department of Foreign Affairs and Trade employ specially trained case workers and family liaison officers to engage with detainees and their families. These personnel should be trained in trauma-informed practice and communication and not be subject to diplomatic rotation.