Chapter 5Australia's broader foreign policy response
5.1As set out earlier in this report, the issue of arbitrary detention by states for diplomatic leverage – a practice referred to as ‘hostage diplomacy’ – is an increasingly prevalent global concern. Recent cases brought to the United Nations Working Group on Arbitrary Detention suggest that arbitrary detention for diplomatic leverage has been on an upward trajectory in the last five to ten years.
5.2As Dr Danielle Gilbert, a member of the Bipartisan Commission on Hostage Taking and Wrongful Detention at the United States Center for Strategic and International Studies, explained:
Hostage diplomacy occurs when a state deploys its criminal justice system to detain a foreigner and then uses the foreigner for leverage in the pursuit of foreign policy objectives. It is pernicious precisely because it uses the tools of state sovereignty and the pretence of domestic criminal justice to carry out a hostage taking, forcibly detaining and holding someone to get a target government to change their behaviour. Hostage diplomacy is on the rise as countries like China, Iran and Russia hold the citizens of Western democracies for leverage.
5.3The ability of regimes which undertake this practice to secure outcomes such as prisoner exchanges or other desired results, together with a lack of consequences for doing so, make hostage diplomacy an attractive and powerful strategic lever that is increasingly utilised by states which wilfully ignore international law and use nefarious means to achieve their foreign policy aims and inflame geopolitical tensions.
5.4Unfortunately, Australia’s lack of a robust framework to address wrongful detention leaves it vulnerable to being a target for these states, putting at risk the safety of individual Australian citizens and the national security of the country more broadly.
5.5Within this context, hostage diplomacy can be understood as a particularly egregious and dangerous form of foreign interference, through which foreign regimes may use the welfare of an Australian citizen in an attempt to constrain the Australian Government from taking actions that it would otherwise take. The evidence brought forward to this inquiry clearly indicates that there are regimes which use these tactics against Western democracies. Australia and like-minded partners must therefore have strong frameworks and foreign policy responses to mitigate and deter the practice.
5.6Australia does not have an overarching policy framework in place for identifying, responding to and deterring cases of wrongful detention. As explored in Chapters 3 and 4 of this report, this has a detrimental impact on several facets of Australia’s ability to manage and resolve cases and provide adequate support to impacted individuals and their families.
5.7Evidence to the inquiry also clearly illustrated that Australia requires a stronger and more cohesive foreign policy response to regimes that engage in wrongful detention to signal internationally that is unacceptable for Australian citizens to be used as bargaining chips for diplomatic leverage.
5.8Submitters raised a number of issues relating to Australia’s current foreign policy response, including:
the role of transparency as a deterrence factor, including the importance of calling out serial offenders such as Iran, Russia and China;
concerns with the government’s apparent reluctance to use existing mechanisms (such as diplomatic relations and sanctions) to impose consequences on regimes that wrongfully detain Australian citizens; and
the need to recognise hostage diplomacy as a form of foreign interference and respond appropriately.
5.9This chapter will provide a brief look at some of the principles that should underpin a broader foreign policy response, before examining each of the above matters in turn. It concludes with the committee’s views and recommendations.
Principles underpinning a broader policy response
5.10The committee heard that a coherent foreign policy approach is needed to recognise that wrongful detention is a complex, difficult issue from both a policy and diplomatic perspective—a balancing act requiring a government to protect citizens abroad while concurrently navigating at times high-stakes diplomatic tensions.
5.11The Australian Wrongful and Arbitrary Detention Alliance (AWADA) highlighted that wrongful detention typically took place in countries which lacked the rule of law and a free and impartial judiciary, many of which are authoritarian regimes, thus adding another layer of complexity to the foreign policy response required.
5.12Dr John Coyne and Mr Justin Bassi explained the importance of prioritising certain principles, such as the welfare of a detained citizen and the need to hold offending regimes to account, when considering a foreign policy approach to hostage diplomacy:
The principles must focus on protecting the welfare of the detained citizen as well as holding to account the authoritarian regime as priorities over the short-term maintenance of tensionless diplomatic relations – Australia and other democracies must actually convince those authoritarian regimes that we can live with and manage tension as a means to protect our citizens lives, our national way of life and international laws. This means doing everything possible to have the detained citizen released as soon as possible but also, where appropriate, using internationally agreed mechanisms to hold nations and those individuals to account.
5.13However, submitters noted that Australia displayed a reluctance to openly refer to cases of wrongful detention, which apart from causing distress to families, could be unhelpful from a foreign policy perspective. As Dr Coyne and Mr Bassi observed:
The government's reluctance to openly declare certain cases as wrongful or arbitrary, particularly in instances of hostage diplomacy, can be perceived as prioritising diplomatic relations over the rights and safety of detained citizens. This cautious stance may also undermine international efforts to combat such practices. Australia's muted response could signal a lack of resolve to other nations.
5.14Australia is not alone among democratic nations in taking an opaque, at times seemingly muddled, foreign policy approach. Evidence suggested that the response from many of the world’s democratic governments to wrongful detention by authoritarian regimes is ‘often muted’.
5.15Ms Sarah Teich, a Canadian international human rights lawyer explained:
Negotiations may happen, but the public is not privy to it; families are not receiving consistent support; and existing pressure levers like targeted sanctions are seldom utilized. For instance, as part of a review of existing targeted sanctions regimes across the U.S., Canada, the U.K., and the E.U., and their use to combat wrongful detentions of journalists, U.K. Barrister Amal Clooney noted that there is an “apparent reticence among some policy-makers to use sanctions in response to cases of arbitrary detention or against judicial officers for such detention or unfair trials”.
5.16When asked why this might be, Ms Teich posited that it could be related to governments being overly cautious in responding to individual cases to avoid further harm to the detainee:
My suspicion is that, once you're dealing with a specific case—and, at least in Canada, this tends to be responded to on a case-by-case basis—it becomes highly sensitive to do anything at all that you worry may negatively impact the situation of a hostage or someone wrongly detained abroad.
5.17She noted that that was why an overarching foreign policy approach was important to guide government actions, as opposed to continually responding on an ad hoc, case-by-case basis. She stated:
This is where I think it's important—and I'm glad that this committee is doing this—to take a step back and look at, overall, what kind of law and policy we need in general, not in a particular case.
5.18Dr Gilbert noted that deterrence was a form of coercion, and advised that in designing policy responses to hostage diplomacy, there were two desired outcomes:
coercing perpetrators to stop taking hostages; and
preventing other countries from getting into the hostage-taking business.
5.19She stated:
The overwhelming body of scholarly evidence suggests that the latter will be easier to accomplish than the former. Accordingly, it will be much easier to design policies to deter other countries from taking Australian citizens hostage than it would be to convince known perpetrators, such as Iran, to stop the practice.
Importance of cohesive approach
5.20Submitters informed the committee that foreign policy had an important role to play in deterring wrongful detentions and hostage diplomacy specifically. They raised concerns that Australia’s foreign policy response was currently inadequate and piecemeal.
5.21For example, Australians Detained Abroad stated that its main concern was that:
Australia’s foreign policy responses are opaque, ad hoc, and potentially based on prevailing public concerns or interest instead of established principles.
5.22AWADA commented that it did not appear that successive governments had devoted resources to developing standalone policies designed to prevent and deter wrongful detention and hostage diplomacy.
Role of multilateralism
5.23Submitters also emphasised the importance of international cooperation with like-minded partners to bolster multilateral responses and deterrence efforts.
5.24Professor Peter Greste, an Australian journalist wrongly detained in Egypt between December 2013 and February 2015, argued that Australia needed to use its foreign policy to work multilaterally to deter and respond to hostage diplomacy in a broader sense. He commented:
Anybody arbitrarily and unjustly detained is only ever going to be released under one of two circumstances. Either the offending state achieves their aims when Australia bends to their will, or the cost of continuing to hold a detainee becomes higher than their value as a hostage. I believe there's great value in working with like-minded states to defray and limit the impact of arbitrary detentions.
5.25AWADA submitted that Australia needed to craft broader foreign policy approaches to deter wrongful detention that included both unilateral and multilateral measures.
Transparency as deterrence – the need to call out offenders
5.26Submitters highlighted to the committee the role of transparency as a deterrence factor, including the importance of calling out serial offenders such as the Islamic Republic of Iran and the People’s Republic of China.
5.27AWADA expressed frustration at Australia’s apparent desire to protect diplomatic relations at the expense of calling out offending regimes:
In spite of the fact that the hostage-taking of innocent Australians by governments seeking leverage over Australia amounts to a direct assault on our bilateral relationship, the Australian government has been reluctant to allow such cases to impact broader diplomatic relations.
5.28The committee pondered the question of whether publicly calling out a regime which uses hostage diplomacy was a measure that Western democracies could take to prevent the practice to start with.
5.29REDRESS recommended that the Australian Government recognise arbitrary detention for diplomatic leverage as state hostage taking and call it out in ‘the strongest possible terms’ when it occurs. It explained:
The importance of recognition cannot be overstated. It sends a clear message that such practices are unacceptable and that diplomatic formalities will be not placed above upholding the human rights of state nationals. It also serves to repudiate false accusations against the victims and ensures that hostage cases are dealt with appropriately.
5.30Related to the topic of publicly calling out regimes, DFAT expressed a reluctance to even use a term such as ‘wrongful detention’ when navigating the release of a detained Australian, in order to avoid upsetting particular countries. As the following exchange demonstrated, DFAT did not even wish to name countries during evidence to the committee.
CHAIR: What are the countries that you're aware of where, if Australia were to use a term like 'wrongful detention' in relation to one of our citizens that had been detained overseas, it would have a—I think you used the expression 'negative impact'?
Ms Ganly: It could impact on our ability to get the access that we are seeking in order to advocate for the detainee.
CHAIR: What countries are they?
Ms Ganly: I'm concerned that if I start naming some countries they will already be concerned about me using that term.
Iran
5.31AWADA pointed out that Iran was one of the more prolific state practitioners of wrongful detention and hostage diplomacy, including through targeting Australians. It detailed:
Four Australian citizens are known to have been wrongfully imprisoned in Iran between 2018-2020, and at least one additional Australian remains behind bars in Iran at the time of writing. The Australian government was compelled to offer a prisoner exchange for three of them, and assisted the fourth to depart Iran under emergency circumstances.
5.32AWADA stated that given Iran’s extensive record of targeting the citizens of a variety of democracies (including America, Canada, the United Kingdom, Japan, New Zealand and European Union states), the scope for multilateral foreign policy responses was considerable.
5.33Australian United Solidarity for Iran (AUSIRAN) also drew the committee’s attention to the pattern of behaviour in Iran’s foreign policy, traceable to the 1979 Islamic Revolution and subsequent United States (US) Embassy hostage crisis, where the detention of foreign nationals became a tool for the regime to ‘assert its sovereignty and challenge Western influence’. It outlined that over the years this tactic had evolved, with the regime increasingly targeting dual nationals, journalists, and academics under the pretext of countering espionage and foreign interference.
China
5.34AWADA informed the committee that China was also a known perpetrator of hostage diplomacy, flagging that China’s practice of wrongfully detaining Australians should be viewed as part of a broader practice of coercive diplomacy. It observed that China’s use of wrongful detention was distinct from the more transactional practice of countries like Iran, in that China rarely made specific demands of Australia in dealmaking to secure the person’s release.
5.35Safeguard Defenders provided context on the judicial and law enforcement issues in China that made it a high-risk offender for instances of wrongful detention and hostage diplomacy. Ms Laura Harth, Campaign Director, outlined:
I'd like to start by stressing the difficulty in assessing the wrongfulness of any detention in China, as its security and judicial apparatus are completely subservient to the Chinese Communist Party. Under Xi Jinping in particular there is no sector in society that is not deemed a national security interest, including the economy. Furthermore, the CCP does not shy away from detaining individuals and fabricating charges as a means of gaining leverage over other countries, companies and even individuals. This vastly expands the risk for foreign citizens travelling to or working in the PRC.
This legal uncertainty stands in stark contrast to the certainty that any detainee or prisoner in the PRC will be subject to torture or other inhuman and degrading treatment, will stand no chance of having a fair and impartial trial, will see their counsel rights violated and will be at risk of enforced disappearance and the notorious residential surveillance at a designated location.
Russia
5.36Submitters advised that Russia was also another known practitioner of wrongful detention and hostage diplomacy.
5.37For example, Dr Kylie Moore-Gilbert from AWADA emphasised that it was well-known that Russia used diplomatic hostages as means to secure demands. She stated:
There's actually a relatively small number of countries that take diplomatic hostages. We all know who they are. When someone is taken in one of those countries, red lights should be flashing immediately before Australia is even across the details of the case. If it's a repeat perpetrator state such as Russia, Venezuela, China, North Korea or Iran—obviously—that should be a red flag from the very beginning.
5.38Mr Geoffrey Robertson KC drew the committee’s attention to the case of US national Brittney Griner who was detained in Russia in 2022 and eventually used to demand a prisoner swap which forced the US to release an imprisoned Russian arms dealer. He explained:
There is the famous case, of course, of Brittney Griner, the basketball star, who was arrested quite properly by the Russians for sneaking in cannabis oil. She was then given a horrendously lengthy sentence, at which point you think that someone in the Kremlin envisaged a different fate of Ms Griner than the law provided. Then, of course, it turns out that she's offered up as a popular substitute for Viktor Bout, who killed thousands by his arms deal and is a far more dangerous person to the world and to the United States. But it was the popular support for the basketball star that enabled her to be seen as a hostage who could be swapped for Bout and that is an example of the difficulty. I mean, there was no way America could protest when Griner was first arrested because she was properly arrested. She only became a subject of hostage diplomacy once she had been heavily sentenced some months later.
Australia’s sanctions framework
5.39Sanctions are legal measures designed to achieve specific objectives by restricting a target’s interactions with Australia. Sanctions are typically imposed in response to actions which threaten global security or to abuses of human rights, and do not involve the use of armed force. They span prohibition on trade in goods and services, arms embargoes, travel bans and asset freezing. Sanctions may be imposed on an individual, entity, country, group or vessel and may take several forms, including:
targeted financial sanctions prohibit designated persons or entities from accessing assets, and others from using their assets;
travel bans prohibit designated persons from entering or transiting through Australia;
trade sanctions prohibit the provision of specified goods or services to specified targets; and
commercial activity sanctions prohibit certain kinds of commercial activities.
5.40Sanctions are an important foreign policy tool used to achieve a variety of objectives in line with Australia’s geopolitical security interests and its broader commitment to global peace and human rights, including:
preventing, limiting or ending the adverse impacts of a situation of international concern;
deterring or disrupting those who may consider future destabilising or otherwise egregious actions; and
condemning behaviour and sending a wider message about Australia’s values, principles, norms and what we consider appropriate behaviour or conduct.
5.41The stronger the existing links between Australia and the person or entity targeted by sanctions, the greater the effect of sanctions. Measuring effectiveness is complex, however, and depends heavily on the objectives and intended impact in each individual sanctions listing. The impact sanctions have is both international and domestic, because foreign individuals, entities and governments are targeted by regulating both activity within Australia and the overseas activity of Australians and Australian entities.
Legislative framework
5.42Australia applies two kinds of sanctions, each supported by a legislative framework. The two frameworks are complementary and mutually reinforcing.
(1)Sanctions decided by the United Nations Security Council (UNSC) and its sanctions committees. All United Nations (UN) member states must implement UNSC sanctions. Australia does so through the Charter of the United Nations Act 1945 (COTUNA) and its Regulations.
(2)Autonomous sanctions imposed by the Foreign Minister as a matter of Australian foreign policy, a capability established by the Autonomous Sanctions Act 2011 (AS Act) and its Regulations. Amendments in 2021 allow the Foreign Minister to impose thematic sanctions which are not tied to a specific geographic location.
5.43In response to a specific situation, the UNSC and/or Australia may impose what is referred to as ‘a sanctions regime’. These regimes are usually described with reference to a particular country or groups.
5.44The diagram below illustrates overlap between the autonomous and UNSC-derived sanctions Australia currently has in place.
5.45Sanctions relating to corruption and human rights are a category of thematic sanctions allowed under the 2021 amendment to the AS Actand referred to as ‘Magnitsky' sanctions.
5.46Magnitsky-style sanctions were the sanctions referred to most often in submissions to this inquiry.
Calls for sanctions
5.47Submitters made a strong case for utilising Australia’s existing sanctions regime as a basis for a foreign policy approach that clearly articulated the consequences for wrongfully detaining Australian citizens and acted as a deterrent to hostage diplomacy.
5.48A considerable number of submissions to the inquiry pointed out that Australia’s existing sanctions laws offer a powerful, yet underutilised, framework and tool for both deterrence and response. Submitters raised concerns that Australia displayed a reluctance to use sanctions to respond to wrongful detention and called for this to change.
5.49Dr Gilbert emphasised that effective deterrence policies needed to rely on punishments such a sanctions that ‘promised such severe consequences for hostage taking that no rational actor would take hostages in the first place’. She explained:
Deterrence might include sanctions, extradition, prosecution and other processes in line with international law. Such punishment strategies would be dramatically strengthened through coordination among like-minded targets, particularly Canada, the United Kingdom and the United States.
5.50AWADA characterised Magnitsky-style sanctions as ‘legislative and policy levers which are already in place’ that could be imposed on foreign officials and other individuals behind attempts at hostage diplomacy using Australian citizens.
5.51It highlighted that to date the Australian Government had not sanctioned any individuals in any country specifically for the wrongful detention or state hostage-taking of Australian citizens.
5.52AWADA argued that the imposition of Magnitsky-style sanctions on officials and entities would be an important ‘first step’ in establishing deterrence against hostage diplomacy. It made clear that Australia should be willing to employ its sanctions regime and ‘other creative foreign policy levers’ in direct and explicit response to states wrongfully detaining Australian citizens and engaging in hostage diplomacy.
5.53REDRESS, a non-government organisation that pursues legal claims on behalf of survivors of torture worldwide, submitted that Magnitsky-style sanctions were a critical mechanism within a government’s foreign policy toolkit. It explained that the sanctions had the potential to:
(a)Identify specific individuals or entities which should be held accountable for specific actions – making it more difficult to ignore involvement in conduct contrary to international law.
(b)Be reinforced by other governments who have similar targeted sanctions legislation, demonstrating a collective condemnation of the act which the designation seeks to address.
(c)Be visible to external stakeholders, therefore increasing public scrutiny of the designee’s actions.
(d)Increase national and international public attention to the conduct allegedly perpetrated by the designated person.
(e)Provide a deterrent and trigger behavioural change in the perpetrator.
(f)Provide a measure of accountability by keeping perpetrators and their ill-gotten wealth out of key financial markets.
5.54REDRESS noted that while sanctions alone could not ensure full accountability, when coupled with other tools and collective international action, their impact could be enhanced. It further noted that for survivors of human rights violations (such as individuals subjected to wrongful detention), the knowledge that their suffering was recognised by the sanctioning government could provide ‘relief and hope for justice’.
5.55Dr Coyne and Mr Bassi called for targeted sanctions to be deployed to exert pressure and punish those responsible for wrongful detention of Australian citizens, but added the caveat that sanctions may have ‘limited practical impact’ if not supported by a broader international coalition.
Case study – Iran
5.56The committee received evidence calling for the imposition of sanctions on Iran, given it was a frequent perpetrator of hostage diplomacy.
5.57For example, AUSIRAN recommended that Australia should consider implementing targeted sanctions against high-ranking officials and entities within the Islamic Republic of Iran and Islamic Revolutionary Guard Corps responsible for orchestrating and facilitating wrongful detentions. It detailed:
These sanctions could include asset freezes, travel bans, and restrictions on financial transactions. By targeting individuals and organisations directly involved in these practices, Australia can send a strong message that such actions will have direct and personal consequences for those responsible.
5.58REDRESS provided commentary on the impact of sanctions on hostile states such as Iran. It stated:
…evidence shows that sanctions have a powerful public accountability impact through the identification of the alleged perpetrators and acknowledgment by the international community of abuses committed by the Iranian regime.
5.59AWADA and REDRESS both advised the committee that they had already formally lodged material with Department of Foreign Affairs and Trade and the Minister for Foreign Affairs recommending Magnitsky-style sanctions be imposed on particular individuals directly implicated in Iran’s hostage diplomacy activities
5.60REDRESS outlined the information it had provided to the Australian Government:
More recently, in collaboration with survivors of state hostage taking in Iran, REDRESS has submitted two dossiers to sanctions authorities in the UK, US, EU, Canada and Australia, asking them to impose Magnitsky sanctions on 20 Iranian officials involved in Iran's hostage-taking practices. The submissions are based on testimony from victims, including former hostages and the families of current hostages, and expose the deliberate, systemic and escalating nature of Iran's hostage-taking practices, amounting to torture and other violations of international law.
5.61AWADA provided further information on the provision of material:
The UK-based NGO REDRESS submitted a report, based on comprehensive research with victim-survivors of Iranian hostage diplomacy, to the Foreign Minister’s office and DFAT in December 2022 recommending Magnitsky sanctions on an initial tranche of 10 individuals directly implicated in Iran’s hostage-taking business model. Kylie Moore-Gilbert has also submitted a list of known Iranian officials who played a direct role in her wrongful detention to the offices of former Foreign Minister Marise Payne and current Foreign Minister Penny Wong, requesting that sanctions be considered.
5.62The Iranian individuals implicated ranged from low, mid to high-ranking officials and a judge, and had been identified based on an extensive evidence-gathering exercise. However, despite being in receipt of the information and the strength of the evidence, the committee was informed that the Australian Government had not even responded or engaged in any follow-up, let alone imposed any sanctions.
5.63REDRESS advised that all it had received from the Government was an automated response to an email. It outlined:
We received an automated response. I also know that Kylie Moore-Gilbert has previously advocated for the imposition of sanctions in response to a file where we've not had any further engagement. And those are two very detailed dossiers. We are talking about 90 pages for one and 70 pages for the other. Each identifies 10 individuals, which makes it 20 individuals in total.
5.64REDRESS expressed frustration that the Australian Government had not moved to impose any sanctions, given ‘that they are sitting on the evidence that we have provided’.
5.65It stated:
We submitted both files to the Australian government, and we didn't receive any response or follow-up engagement, despite some of the evidence being contributed by Australian victims of hostage taking. This level of engagement not only has been extraordinarily frustrating but also undermines accountability processes. From the perspective of victims, it has compounded feelings of powerlessness and helplessness, as it shows a complete lack of interest. Two sanctions were imposed last year against two media officials by the Australian Government. In a welcome development, those designations did refer to their involvement in harassing dual nationals and being involved in the broadcasting of forced confessions. But we would like to see much more action, given that they are sitting on the evidence that we have provided.
5.66Dr Moore-Gilbert, who was wrongly detained for two years and three months in Iran between 2018 and 2020, also expressed her disappointment that the Government had not engaged with her or REDRESS on their recommendations for Magnitsky-style sanctions. She reiterated that Australia had not sanctioned anybody for the hostage-taking of Australian citizens, pointing out that the Iranian judge who had sentenced her to a 10 year prison sentence had also targeted other Australian citizens. She detailed:
Geoffrey Robertson made the very powerful case earlier for Abolqasem Salavati, the IRGC [Islamic Revolutionary Guard Corp] judge who sentenced me—but not just me. At least three or four other Australians have been sentenced wrongfully by this judge, including Jolie King and Mark Firkin, the two backpackers; Meimanat Hosseini Chavoshi, the ANU [Australian National University] researcher; and an Australian citizen who was convicted only a few months ago by that same judge in Iran and is in prison today as we speak. This guy has been targeting Australian citizens relentlessly, yet we don't even sanction him, unlike our allies and partners abroad.
5.67Mr Robertson expressed frustration with the Australian Government’s reluctance to impose sanctions. He posited that this reluctance was perhaps to avoid upsetting particular regimes, or perhaps due to DFAT’s wilful blindness to the effectiveness of sanctions as a tool of justice and human rights.
5.68He provided commentary on the effectiveness of sanctioning judges:
If you look at the background to the Magnitsky laws, and I have written a book about them, you will see that they come about because there are certain officials who are hand-in-glove or are part of an oppressive state who have been the direct perpetrators of, in this case, wrongful imprisonment. Now, judges were the first to be sanctioned in the original 2012 Magnitsky laws that came to pass in America, because judges and prosecutors do the work. They do the dirty work of the state against their own ethics in cases where they are bound to be independent and are meant to be objective, and they're also, of course, quite wealthy. They go abroad, they want to send their families abroad to study at other universities, so they're good targets. They are worried by incurring Magnitsky sanctions yet they don't get sanctioned.
5.69Mr Robertson drew the committee’s attention to Judge Abolqasem Salavati, the Iranian judge who wrongly sentenced Dr Moore-Gilbert and other arbitrarily detained Australians. He argued that this judge would be the ideal candidate for the Australian Government to sanction, and yet despite the evidence of his direct implication in hostage diplomacy, this had not happened. He explained:
I use the example of the judge, Judge Salavati…who passes all the death sentences in Tehran. He was the monster who found Kylie Moore-Gilbert, who was palpably innocent, guilty and jailed her for 10 years. He jailed a couple of obviously innocent Australian backpackers. So he'd be the first to be sanctioned if DFAT had any real understanding of what Magnitsky laws are about. But they quite openly—brazenly, in my view—say, 'Oh, they're merely a tool of our foreign policy.' They're not a tool of justice, and of human rights, which they should be and which they've always been busy as being. So in answer to your question, I do think there is that danger if they are seen as a tool of foreign policy, merely that they cease to be a tool of justice.
Hostage diplomacy as a form of foreign interference
5.70The committee explored with submitters the question of whether hostage diplomacy could be categorised as a form of foreign interference. Submitters argued that given the foreign policy implications, it should be understood as such.
5.71For example, in response to the committee’s direct question of whether hostage diplomacy amounted to foreign interference, Mr Robertson agreed emphatically that it did. He stated:
Very much so. I believe it's a crime against humanity, and it breaches all sorts of rules of the Vienna convention and conventions we have about diplomatic behaviour. It's wrong to call it diplomatic hostage taking. It's got nothing to do with diplomacy as properly defined.
5.72In response to the same question, Dr Moore-Gilbert also strongly argued that hostage diplomacy constituted foreign interference. She responded:
Yes, it's pretty obvious that it is. We're seeing an increase in foreign interference and transnational repression throughout the Western world. … It's a very insidious, grey area form of foreign interference, but it absolutely is and it works. …. There are no attempts to punish these malign actors who are repeatedly targeting Australia. It is a form of foreign interference.
5.73Dr Moore-Gilbert also made clear that the Australian Government not acknowledging this and responding to the phenomenon as such only risked increasing cases and encouraging more overt forms of foreign interference. She explained:
Us not sending that signal that we're not going to stand for it and that we're going to pay that price again and again and essentially capitulate again and again, in my view is actually encouraging it to happen further. That might spill over into more overt forms of foreign interference, too. In not tackling foreign interference broadly as a phenomenon, it probably will lead to more hostage taking as well as one tool in the toolkit of such malign actors' behaviour.
5.74AWADA reiterated in its written submission that hostage diplomacy is a ‘very effective’ means of shaping or curtailing Australian’s foreign policy. It explained:
These cases highlight that there are real and significant foreign policy ramifications when countries wrongfully detain Australian citizens for diplomatic leverage. Ramifications which extend well beyond the devastating impact such detentions have on the lives of the individuals involved and their families. Hostage diplomacy is a very effective means of shaping, or curtailing, Australia’s foreign policy in ways which might be entirely unrelated to the relatively niche issue of the imprisonment of individual Australian citizens.
Government views
5.75The Department of Home Affairs (Home Affairs) took a more conservative view on the matter. It gave the opinion that hostage diplomacy could be a form of foreign interference if the legislated definition was met; although it noted that decisions on whether an act met the thresholds of foreign interference would ‘more naturally sit’ in the Attorney General’s Department. Mr David Chick, Acting First Assistant Secretary for Counter Foreign Interference Coordination Centre (CFICC) within the department, stated that he was not aware of particular cases where the threshold for foreign interference had been met.
5.76Home Affairs provided an explanation of foreign interference, noting that the legislated definition did ‘not normally extend’ to the wrongful detention of Australians abroad except in particular circumstances:
Foreign interference occurs when a foreign government attempts to harm Australia to advance their strategic, political, military, social or economic goals. Foreign interference includes conduct by or on behalf of a foreign government that is covert, deceptive or threatening and is intended to do one of the following things: to influence a political or government process, influence the exercise of an individual's political rights, support foreign intelligence activities or prejudice Australia's national security. The legislated definition of 'foreign interference' would not normally extend to the arbitrary detention of Australian citizens overseas unless the intent of the detention was to limit the exercise of an individual's rights in Australia or influence a political or government process.
5.77Evidence to the committee appeared to indicate that the CFICC did not have any engagement in the management of policy or operational responses to instances of wrongful detention. For example, Mr Chick confirmed that Home Affairs had ‘no leadership role’ in developing or managing Australia’s framework to deter and respond to cases of wrongful detention, advising that it would take advice from DFAT on such matters. He also confirmed that the CFICC had not been involved in any cases of wrongful detention. Mr Chick additionally confirmed that Home Affairs had not provided advice to the government on the practice of foreign regimes using hostage diplomacy to pressure, or attempt to pressure, Australia into a particular policy or diplomatic stance.
5.78DFAT told the committee that if when managing the case of a wrongly detained Australian it encountered any behaviour from the detaining government that ‘clearly stepped over any line’, it would engage with Home Affairs and the Attorney-General’s Department.
5.79The committee questioned DFAT in an attempt to gain clarity on how DFAT would deal with a foreign government making a demand in exchange for the release of a detained Australian — that is, in a situation of hostage diplomacy. Ms Ganly advised that she was aware of cases where DFAT had undertaken negotiations, rather than dealt with demands.
5.80The committee asked DFAT whether there had been any ‘clear-cut’ examples of a foreign government detaining an Australian citizen and seeking a particular policy outcome or position from our government as a condition of release. In particular, the committee referenced the case of Mr Michael Kovrig, a former Canadian diplomat who was arbitrarily detained in China for over 1000 days, where the Chinese Government made a very explicit demand in exchange for his release – an act internationally recognised as hostage diplomacy. DFAT advised that Australia had not had any ‘similar situations’ to Mr Kovrig’s case.
Committee view and recommendations
5.81The committee is of the view that hostage diplomacy constitutes a form of foreign interference. It considers that hostage diplomacy must be understood as a global trend of coercive diplomacy and foreign interference which warrants a broader foreign policy response, not just dealt with on an ad-hoc, individual case-by-case basis.
5.82The committee heard from numerous witnesses that the wrongful detention of a citizen by a foreign regime which then seeks to make demands or apply pressure to the Australian Government regarding a government decision or action should be considered a form of foreign interference.
5.83Evidence from the Department of Home Affairs specified that foreign interference includes conduct that is threatening, and is intended to influence a government process or prejudice Australia’s national security, and that the wrongful detention of an Australian can therefore meet the legislated definition.
5.84However, the committee is of the view that, considering the clear evidence that there are a number of foreign regimes which do undertake hostage diplomacy specifically for the purpose of obtaining leverage over another government, it is not sufficient for the Australian Government to consider foreign interference only in the context of whether a foreign interference offence can be made out in relation to a particular case.
5.85The committee notes DFAT’s apparent assertion that there have been no instances of foreign governments taking an Australian citizen and seeking a particular policy outcome or position for their release. In contrast, the committee notes the strong evidence presented to the inquiry by a range of witnesses that the practice is increasingly common, and that there are indications that Australians have been wrongfully detained for diplomatic leverage. The committee is disappointed in the vague nature of DFAT’s evidence on this and similar matters throughout the inquiry. However, the committee acknowledges that this may be reflective of the fact that Australia does not have a clear framework and a formal definition and categorisation process for identifying cases of wrongful detention.
5.86The committee strongly believes that a foreign regime seeking a certain outcome from the Australian Government in exchange for the release of a wrongly detained individual is a very serious matter. Regardless of whether the requested outcome is couched in terms of a negotiation or demand, and regardless of whether such behaviour by a foreign regime or official is likely to be able to be prosecuted as a foreign interference offence, such behaviour is cause for great concern and should be flagged by the responsible agencies and met with a whole of government response.
5.87As such, the committee would like to see greater awareness, strategic thinking and coordination by DFAT, the Department of Home Affairs and intelligence agencies to address hostage diplomacy as a form of foreign interference. This, in addition to the recommendations in chapters 3 and 4, will allow Australia to create a comprehensive policy framework to combat hostage diplomacy and the threats it poses.
5.88To the committee’s mind it is unacceptable that some states should try to use the wrongful detention of Australian citizens for diplomatic leverage. Australia must utilise both unilateral and multilateral responses to combat this reprehensible practice which threatens individual citizens, Australia’s national security, and the stability of the global order at large.
5.89The act of taking an Australian hostage to secure diplomatic leverage, or seeking to secure a strategic or policy outcome by leveraging the welfare of a wrongfully detained Australian, should be regarded by the Australian Government as an egregious breach of a diplomatic relationship and responded to accordingly.
5.90The committee considers that Australia needs to formulate a cohesive foreign policy response to more effectively deter and punish those states that engage in hostage diplomacy through the wrongful detention of Australian citizens.
5.91The committee is disappointed that the Australian Government appears reluctant to use Magnitsky-style sanctions to punish perpetrators of hostage diplomacy, particularly given the policy levers are already in place for this mechanism.
5.92Additionally, the committee is dismayed to hear that despite being presented with reputable evidence from REDRESS and Dr Kylie Moore-Gilbert naming 20 Iranian officials with direct responsibility for the wrongful detention of Australian citizens, the Australian Government has not even acknowledged these requests and evidence, let alone taken action and imposed sanctions.
5.93Australia must not be afraid to call out and punish cases of hostage diplomacy, particularly those perpetrated by known, serial offenders such as Iran, China and Russia. The Australian Government must not prioritise the public appearance of constructive diplomatic relations at the expense of strong action that protects Australian citizens and holds offending regimes to account. The committee is of the view that the Government must not stand for these countries using Australian citizens as bargaining chips.
5.94Australia has recognised that wrongful detention is an issue that requires an international response, having endorsed the Canadian-led Declaration Against Arbitrary Detention in State-to-State relations. However, the committee considers that the Australian Government must take a stronger position in its efforts to deter and respond to wrongful detention. A symbolic stance is not enough and must be backed by concrete actions.
5.95The committee recommends that the Australian Government recognise the deterrence of wrongful detention of Australians as a top priority of Australian foreign policy. The government should utilise all the tools available to it to increase this deterrence.
5.96The committee recommends that the relevant agencies of Australia’s counter-foreign interference framework acknowledge hostage diplomacy as a serious and egregious form of foreign interference and work closely with the Special Envoy on Wrongfully Detained Australians to counter this foreign interference threat.
5.97The committee recommends that where regimes are known to engage in wrongful detention for diplomatic leverage or to secure prisoner exchanges, such as Russia and the Islamic Republic of Iran, the Australian Government should make clear to those regimes that they should expect severe diplomatic consequences and sanctions in response to this behaviour.
5.98The committee recommends that the Australian Government should sanction senior officials responsible for the wrongful detention of Australians, including judges responsible for allowing or authorising wrongful detention and imprisonment.
5.99The committee recommends that where a foreign regime is currently wrongfully or arbitrarily detaining an Australian, the Australian Government should exercise restraint in its public engagements with representatives of that regime.
5.100The committee recommends that the current Department of Foreign Affairs and Trade travel advice that Australian travellers to the People’s Republic of China, Afghanistan, North Korea, the Islamic Republic of Iran, Mali, Myanmar and Russia are at increased risk of arbitrary detention should be reflected in Australia’s bilateral approach to engagement with those countries.
5.101The committee recommends that the Australian Government should increase transparency and utilise public attribution wherever possible as a deterrent to regimes which seek to wrongfully detain Australians.
Senator Claire Chandler
Chair
Liberal Senator for Tasmania