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How far should Australia go for Julian Assange?

The drama surrounding Julian Assange continues to grow following Ecuador’s decision to grant him asylum. He faces the threat of being seized in a raid by British authorities on the Ecuadorian Embassy in…

Is Julian Assange getting all he’s owed from the Australian government? EPA/Facundo Arrizabalaga

The drama surrounding Julian Assange continues to grow following Ecuador’s decision to grant him asylum.

He faces the threat of being seized in a raid by British authorities on the Ecuadorian Embassy in London, or the moment he steps out the Embassy door. The United Kingdom is compelled to act to fulfil its obligations to Sweden and extradite Assange to face possible charges of sexual assault. Assange doesn’t want to go to Sweden as he fears that he will be taken from there to the United States because of his involvement in the release of classified documents on Wikileaks. Ecuador, Britain, Sweden, the United States – all have an interest, and all have legal rights and obligations, in the treatment of Assange. And this all arises irrespective of the fact that he is an Australian national.

The international jostling around Assange may well raise questions as to the relevance of nationality in a globalised world. Instead, the fact that different countries have legal rights and obligations in relation to Assange has underlined the importance of territorial boundaries and state sovereignty.

Ecuador is insisting on the inviolability of its embassy, as its sovereign representation within the United Kingdom. Sweden is concerned with the prosecution of offences allegedly committed on its soil. The United Kingdom is seeking to adhere to its international obligations when an alleged offender is found within its territory. The United States is concerned about the potential violation of its laws with the release of government documents onto Wikileaks.

Nationality remains important in some respects, but there is a limit to what actions Australia can take because Australian nationality doesn’t mean we can disregard the laws of another country when travelling overseas. Indeed, the Attorney General Nicola Roxon has stated, “What I like to remind the community though is being an Australian citizen doesn’t give your country legal rights to interfere in other processes.” Her comment highlights a fundamental mismatch between community expectations and the legal reality when it comes to the treatment of nationals abroad.

Australia has a right to take up the claim of its nationals when they are injured or mistreated abroad, but it does not have an obligation to do so.

In Hicks v Ruddock, Justice Tamberlin of the Federal Court indicated that Australia may have a duty to consider taking up the claim of one of its nationals. But having to consider whether to do something is still quite different to being required to do something.

It could even be argued under international law that Australia is not yet entitled to take up any claim on behalf of Julian Assange. This right arises when obligations owed to a national abroad have been breached, and it is not clear what rights Assange has had violated at this point in time.

Even if there had been a violation of rights, then Australia’s right to take up that claim may only be exercised when all national remedies have been exhausted. This requirement anticipates that an individual would pursue his or her rights through a country’s judicial system, providing that country with the opportunity to redress any wrong suffered by the foreign national. Assange did not wait for the final verdict before the British courts, or to pursue his rights further before the European Court of Human Rights.

Both Australia and Assange have some legal rights at present, which are based on consular assistance. Consular rights allow for communications between a national and his or her government. The government can take steps to assist a national detained overseas by, for example, providing advice on gaining legal assistance and serving as a conduit of information to the individual’s family. The Foreign Minister, Senator Bob Carr, has indicated that Assange is receiving the same assistance that any other Australian would receive.

What Australia could do politically is quite a different question from what Australia must do legally to assist a national abroad. These points seem to be conflated when criticisms are directed at the government for perceived inaction. Jennifer Robinson, one of Assange’s legal advisors, clearly understands the difference, and has argued that Australia could do more diplomatically and should seek assurances from the United States about any actions it might take against Assange.

These diplomatic interventions are ultimately what might count the most for an Australian who is detained abroad. They appear to have made a difference for people like the “Bali Boy” and Harry Nicolaides who was convicted of insulting the Thai monarchy and, eventually, David Hicks.

But Assange is not the only national in trouble abroad. Members of the Bali Nine, Andrew Chan and Myuran Sukumaran are now dependent on clemency appeals to the Indonesian President to avoid death sentences for drug trafficking; Jock Palfreeman continues to languish in a Bulgarian prison on a conviction of murder with hooliganism despite glaring issues of due process in his trial.

Australians are constantly finding themselves in trouble overseas and turning to their government for assistance. But there is a limit to what Australia is legally required to do.

Ultimately, the diplomatic negotiations that assist Australian nationals happen outside of the media glare, and it cannot always be clear what steps the government takes or what it is prepared to do – until the details are released on Wikileaks.

Join the conversation

47 Comments sorted by

  1. Gordon Smith

    Private citizen

    I admit to not following this case carefully and having no legal training. My understanding is that he has been accused of sexual assault in a country with proven integrity and therefore we can expect that he will receive a fair trial.
    What responsibility does Australia have - are we in the habit of forgiving sexual assault before a fair trial I am obviously to naive to understand.

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    1. Anthony Nolan

      logged in via email @hotmail.com

      In reply to Gordon Smith

      I don't know why people who admit to not having the basic facts of the matter in hand bother to express an opinion. He's wanted for questioning in relation to the allegations; he hasn't been charged; he is fearful that if he returns to Sweden for questioning that he will be extradited to the US to face as yet unknown charges formed by a US grand jury some of which charges may attract the death penalty. As to the substance of the allegations - he has already been interviewed, in Sweden, after which he left the country. No charges were pursued at that time. More questioning is sought, questioning that the Swedes refuse to do by phone, Skype or in the UK. This questioning arises from the revival of the charges which happened suspiciously late in the piece and appear to have been subject to political interference. Remember, google is your friend.

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    2. Gordon Smith

      Private citizen

      In reply to Anthony Nolan

      My apologies Anthony for having the impertinence to express an opinion.I have been sufficiently reprimanded and will refrain from expressing opinions in the future. I trust you will forgive me.

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    3. Eamon Vale

      eLearning Designer

      In reply to Gordon Smith

      Hi Gordon,

      The government of Ecuador (as many other people do) believe that extradition to Sweden for questioning on sexual assault accusations (there have been no formal charges) could lead to further extradition to the US on espionage charges.

      It is important to note that there are no formal charges against Assange. If Sweden wish to interview him (the stated reason for the arrest warrant) they are free to do so and he has made himself available for questioning. Ecuador also made the offer…

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    4. Kelly O'Neill

      Journalist

      In reply to Gordon Smith

      Sweden? Proven integrity? Sweden helped US operatives get Egyptian nationals (Mohammad al-Zari and Ahmed Agiza) to Egypt to be tortured under the rendition policy. Swedish Prime Minister Goran Persson said this was a "mistake”. Yeah, right? So what's stopping the wonderful Swedes with their "proven integrity" from promising Julian won't be sent on to USA?

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    5. Marilyn Shepherd

      pensioner

      In reply to Gordon Smith

      He has not been charged with anything, Britain are simply going to extradite him to answer questions he could and has answered on the phone.

      Gillard won't help because the cables exposed her as a liar waiting to be a shill for the US and Israel.

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    6. Marilyn Shepherd

      pensioner

      In reply to Gordon Smith

      How many priests, pedophiles and rapists are ignored in Australia? Are you as dumb as a post or what?

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    7. Gordon Smith

      Private citizen

      In reply to Marilyn Shepherd

      If you say so Marilyn I must be. I will bow to your superior intelligence and accept that I am as dumb as a post and will refrain from entering such elite company in the future
      Looking forward to Geelong v St Kilda tonight - that might be safer.

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    8. Keith Thomas

      Retired

      In reply to Eamon Vale

      I have compiled a 1 1/2 page text index to the Four Corners program providing the time points of 19 significant points made in the course of the program. This may be useful to send on to others whose understanding of this complex case can be improved by the Four Corners presentation, but who may not want to sit through the 46 minutes.

      If you e-mail me directly at myrmecia at ml1 dot net, I'll send you a copy (may take a few hours as I'm in the UK).

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    9. Yuri Pannikin

      Director

      In reply to Gordon Smith

      Fear not, Gordon Smith, for you have stumbled upon, (with a few exceptions, including this article's wise author), a cabal of the Lunatic Left, who display all the analytic and logical skills of a very odd, deity-worshipping antediluvian cult.

      Not only do they practise the worst, old-fashioned sexism by refusing to believe that the two women in Sweden have a case against Assange, but they also shriek the benevolence of the country of Ecuador and it's authoritarian leader, who has been condemned…

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    10. Keith Thomas

      Retired

      In reply to Yuri Pannikin

      If you remove the adjectives and the reductio ad absurdum from your contribution, Yuri, there is not much left. Please stick to the topic.

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    11. Yuri Pannikin

      Director

      In reply to Keith Thomas

      Keith, it's not quite an RaA, more like plain old ridicule.

      Anyway, there's not much more to say, other than I agree with the gist of Natalie Klein's article.

      Actually, there is a *lot* more to say, but I'm not wasting my time on this one.

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    12. William Bruce

      Artist

      In reply to John Phillip

      "Gillard won't help because the cables exposed her as a liar waiting to be a shill for the US and Israel."

      I don't know about this....but the notion of liar and shill for US & Israel is a thought........

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    13. George Greenwood

      Retired

      In reply to Gordon Smith

      My understanding is that every country should look after its citizens. OK if they have commited some heinous crime and the country demanding extradition is noted for the fairness of its judicial system consider the demand.

      Let's go back a bit. Gough Whitlam gave Burchett his passport back despite his controversial views on the Vietnam war. To my mind this was long overdue and Burchett was probably lucky he didn't end up in Guantanamo.

      Now consider Assange. The Swedes let him go and then changed…

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  2. Anthony Nolan

    logged in via email @hotmail.com

    Compare and contrast the Australian Government's treatment of Assange with its treatment of members of the Australian Wheat Board who bribed Hussein's regime in order to secure sales. Also compare and contrast to the treatment of employees of Securency who were alleged to have had corrupt dealings with members of the Vietnamese government. Also contrast the treatment by the Australian Government of the DFAT employee who is alleged to have had an affair with a high ranking Vietnamese officer in the course of this sordid business ((http://www.smh.com.au/opinion/political-news/trade-official-in-spy-sex-scandal-20120812-242sm.html).

    And you, Professor Klein, are claiming that the Australian government is within its rights, on the legal niceties, to hang Assange out to dry.

    One rule for the establishment, another altogether for a broadcaster like Assange.

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    1. Bruce Moon

      Bystander!

      In reply to Anthony Nolan

      Anthony

      I appreciate you contrasting Natalie's cerebral assessment of rights and obligations with the value-laden reality of letting citizens 'hang out to dry' merely to satisfy diplomatic dealings.

      The aspect I'm so saddened about in this long running saga is that by hounding Assange through the court process (and eventually into the Ecuadorian Embassy), the British have largely done what the US wanted.

      Had the British been less aggressive in its stance, we likely would have had Wikileaks revealing much about the scale and extent of the banking crimes undertaken in the US leading to the GFC. The US government appears to be posturing on this one - to the benefit of the banking industry.

      In this matter, the greater good would have been to enable the common good.

      Cheers

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    2. Lynne Newington

      Researcher

      In reply to Bruce Moon

      It reminds me of the comment someone made about Saddam Hussein after his execution, 'he had to swing before he could sing".
      Not that I understood what that was all about, that was before Witileaks time.

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    3. Ben Koh

      Sports Doctor. PhD social Research into Athlete Motivation. ACSM (Health Fitness Instructor and Exercise Specialist). Ex-elite swimmer.

      In reply to Bruce Moon

      Hi Bruce,

      What is your "greater good" and "common good"?

      I agree with your point "...contrasting Natalie's cerebral assessment of rights and obligations with the value-laden reality of letting citizens 'hang out to dry' merely to satisfy diplomatic dealings..."

      In my comments to Prof Klein, I commented on the issue of the law versus diplomacy; and how "no legal requirement to do something" is not the same as "the legal requirement for not doing something".

      But alas, nether law nor diplomacy are my area of expertise, so it is just a personal (and lay) perspective.

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    4. Dianna Arthur

      Environmentalist

      In reply to Anthony Nolan

      "Compare and contrast the Australian Government's treatment of Assange with its treatment of members of the Australian Wheat Board who bribed Hussein's regime in order to secure sales. "

      Absolutely.

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  3. Kelly O'Neill

    Journalist

    This article is a disappointing apology for Oz govt stand.

    I hope you are not suggesting that the UK has an obligation to enter Ecuador embassy when you say "The United Kingdom is compelled to act to fulfil its obligations to Sweden". You have stated this but give no reasons why you believe it to override other obligations. For example, what of non-refoulement under the 1951 Refugee Convention? UK certainly has an obligation to ensure that Julian is not taken to USA.

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  4. Hugh Watkins

    Client Advisor.

    Smuggle drugs into Bali, and you get consular support.
    Run over someone on a jet ski and you get consular support.
    Embarrass the US government and its lackeys in Canberra, and you get hung out to dry.

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  5. Sean Lamb

    Science Denier

    Personally I don't believe Assange is in danger of extradition to America and I agree there isn't our Government can do.

    But I also note that the Swedish government has summoned the Ecuadorean ambassador and ask what does Ecuador, a small poor country, think they are doing embarrassing a white, wealthy country like Sweden.

    Fair enough, then the Australian government could summon the Swedish ambassador and tell them that as Australians we don't appreciate it when government officials alter witness…

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    1. Anthony Nolan

      logged in via email @hotmail.com

      In reply to Sean Lamb

      I've seen some of the material that you've linked before but not all of it. It's RED HOT and requires a careful read but is a must read.

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    2. Sean Lamb

      Science Denier

      In reply to Anthony Nolan

      My opinion, which I don't expect many or any to agree with, is as follows:
      The sexual assault charges are a manufactured event, but why or how they were manufactured is unclear.
      My belief is Ms W is acting in an honest straightforward way, she was upset by sex without a condom, wanted Assange to have an STD test, was convinced by Ms A to go to the police but appears not to have assented to a rape accusation. Ms A, on the other hand, is not an honest actor. She seems to be a lesbian (maybe bisexual…

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    3. William Bruce

      Artist

      In reply to Sean Lamb

      We will have to wait and see what Assange says tonight at 11 Pm.
      I suspect Ms Anna Ardin might have or have had intelligence links?
      She might be a Saint and we all ought assume this of course?....

      I suspect it will ALL come out if US & Oz is stupid enough to NOT just let this matter die a natural death because it will attract attention to things best left behind us, ...and perhaps Obama HIMSELF ought declare Assange intentions NOW because the whole world is watching.

      Fortunately the Liberal…

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    4. David Boxall

      logged in via Facebook

      In reply to William Bruce

      William Bruce: "... it was not Assange that enabled the "unedited" or "unscreened" cables or information to be released."
      If memory serves; to ensure that the information would remain available, it was freely distributed in a heavily encrypted file. Eventually, there were thousands of copies, all over the 'net and outside it. None of the information was accessible without the passphrase.
      A couple of journalists decided to make some money by publishing a book on the affair. Unfortunately, they revealed the passphrase in that book.
      What were they thinking? Who knows?

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    5. Keith Thomas

      Retired

      In reply to David Boxall

      David, thank you for raising this. Can you clarify for me, please?

      Just how were those documents both leaked and released published? Was it by Wikileaks on their website? Was it by the five newspapers? Was it by way of thousands of copies of an encrypted file, accessible only using a passphrase (not as widely distributed as the file) which was released in a book written by a Guardian journalist? Or was it a bit of each?

      The answer to these questions would appear to be significant in clarifying the legal from the moral from the political situation.

      (Like yer hat, mate!)

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    6. David Boxall

      logged in via Facebook

      In reply to Keith Thomas

      As I remember it, the information was given to several news organisations. They vetted, redacted and published as they saw fit. Wikileaks published on their website nothing that had not already been released by one of their partners.
      All of the information was also distributed freely in a heavily encrypted file. This is a form of protection, to ensure that the Jeannie could never be put back into the bottle. The tactic is quite common, where there is a fear that information might be seized and/or destroyed.
      The unredacted information that might have put lives at risk was exposed by the release of the passphrase.
      Assange is guilty of entrusting a lot of sensitive information to people who proved to be untrustworthy. As for the journalists; I'll leave that for others to judge.

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    7. William Bruce

      Artist

      In reply to David Boxall

      Thanks David Boxall

      I am fairly sure the code to unlock the files was in the front of the book these Journos published. It was not given to them by Assange at all......Someone else in Wikileaks perhaps?

      You must see the video of JA's BRILLIANT speech on ABC News (Internet). Bravo ABC.

      It is a real heartening thing to see a 40 year old with such insight and the ability to articulate it.

      I think what he is highlighting is at the absolute razors edge of how the planet evolves from now on.......Freedoms, Justice, progress, friendships & Democracy or.......... "Democracy" in name only.

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  6. R. Ambrose Raven

    none

    As a comparison, consider Britain's attitude to Israeli alleged war criminals.

    When alleged Israeli war criminal Major General Doron Almog flew to Heathrow in 2009, Scotland Yard allowed his plane to leave the U.K. because officers feared an attempt to execute a warrant would lead to a gun battle at Heathrow airport. Shooting that Brazilian electrician eight times presumably presented no such obstacle; they were clearly looking for reasons to avoid serving the warrant. Granted, that the logical…

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  7. William Bruce

    Artist

    What a joke article. The matter has nothing to do sex...or "legal process".

    Seems Wikileaks has, along with others for years now, highlighted the most serious war crimes by people in high places.....and they want, moreover NEED, to silence the exposure of them by Wikileaks' "EVIDENCE", and,... they are seriously out stop Wikileaks, discredit and GET Assange ....They don't want to end up in the dock themselves...and they need to silence dissent...AND there is big money for some in the 1% in all…

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  8. William Bruce

    Artist

    Julian Assange's mother Christine recently tweeted the following facts about extraditions involving the US, the UK, Sweden, and Australia.
    1. Australian PM Julia Gillard and Opposition leader Tony Abbot backed new Extradition Act Amendments making it easier for U.S.A to extradite Aussies. The Greens fought it.
    2. For the FIRST TIME Aussies can be now be extradited for minor offences.
    3. The protection of "political" motives has been weakened. If the charge is "terrorism" then "political" cannot…

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  9. Lynne Newington

    Researcher

    Whenever someone is targeted, adding fuel to destroy them, sex always seems to raise it's head, male or female.
    Even in war, the degregation of the anatomy is the ultimate aim.
    Maybe its the most vulnerable asset, which is sickening really.

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  10. Ben Koh

    Sports Doctor. PhD social Research into Athlete Motivation. ACSM (Health Fitness Instructor and Exercise Specialist). Ex-elite swimmer.

    Prof Klein

    This is an interesting article useful in providing a legal insight and provides the terms of reference for a current issue. And in that academic context, I accept your point that Australia HAS a RIGHT to take up the claim of its nationals when they are injured or mistreated abroad, but it does NOT have an OBLIGATION to do so.

    Just as the legal system in any country is not simply about what is right or wrong (but what the law is), international relations and diplomacy should probably…

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  11. John Phillip
    John Phillip is a Friend of The Conversation.

    Grumpy Old Man

    Well put, Natalie. I guess the vitriol from Julian's flock indicates that many would disagree, seeing this farce as either a conspiracy or an example of class struggle. (God, does that mean JA is now some sort of modern day Joan of Arc?) Thank you for taking the emotion out of and dealing with facts. Cheers

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  12. Peter Koeman

    Business Owner

    A letter to Assang 30/9/12

    Unfortunately you must think all Australians as naive. "You walk in the footsteps of Ghandi?" Stop it. In a previous life you were a hacker and in this reincarnation, you carried that one step further and published state secrets. Wether you can see the harm or good in that act is irrelevant to those from whom you took the information. You and your agents have knowingly violated a basic pillar of what is morally right in our western society. You have stolen and then used…

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    1. William Bruce

      Artist

      In reply to Peter Koeman

      Re "CLAIMS" of Assange wrongdoing.

      Koeman notes"...you must think all Australians as naive. You walk in the footsteps of Ghandi?" Stop it. In a previous life you were a hacker and in this reincarnation......."

      Wow Koeman. (Your not Pro-war/Pro-Isreal War are you?)
      For someone who seems to believe he has super-natural all knowing powers of perception (see above) you don't seem to be very perceptive or WISE.
      You talk naive whilst you assume the mantel of "Judge & Jury" and omit all the most…

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    2. Yuri Pannikin

      Director

      In reply to William Bruce

      Rule number 7: ignore anything written by someone who uses caps for emphasis.

      "(Your not Pro-war/Pro-Isreal War are you?) "

      Seriously . . .

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    3. Yuri Pannikin

      Director

      In reply to William Bruce

      Yep, that confirms it . . . LL.

      Rule number 8: never believe anything from someone whose main point of debate is a crazy cult web site reference (and caps of course).

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