Disappointing response by DFAT to wrongful detention inquiry findings

by Dr Kylie Moore-Gilbert

In the early hours of November 29, the Senate Foreign Affairs, Defence and Trade References Committee quietly published the report of its months-long inquiry into the wrongful detention of Australians overseas.

An advocacy group I co-founded, the Australian Wrongful and Arbitrary Detention Alliance, had been pushing for this inquiry for some time. Our members and supporters enthusiastically wrote submissions and provided oral testimony. As survivors, we are determined that what we went through must not be allowed to happen again to other innocent Aussies.

Having experienced the Department of Foreign Affairs and Trade’s consular system first-hand, we were able to make informed suggestions about how to refine Australia’s approach. Key areas for reform included defining wrongful detention and adopting a clear process for identifying it, instituting a standalone wrongful detention envoy position and enhancing support for families and repatriated detainees.

Forty-four written submissions, three Senate hearings and twenty-two witness testimonies later, we were flabbergasted to discover that DFAT not only disagreed with the Committee’s conclusion that “the current system is not working” and “structural overhaul is needed,” but refused to acknowledge the basic assumption underpinning the entire inquiry: that Australians were being wrongfully detained at all.

DFAT informed the Committee that “there were no cases that it would currently give the label of ‘arbitrary detention’” and that “it was not aware of any cases in the past of Australian citizens being arrested and wrongly detained specifically for diplomatic leverage.”

This absurd position is at odds with the submissions and testimony of almost a dozen witnesses with lived experience of wrongful detention, including journalists Peter Greste and Cheng Lei and economist Sean Turnell.

DFAT’s claim that Australia does not currently have any arbitrary detention cases directly contradicts the expert opinion of the United Nations Working Group on Arbitrary Detention (WGAD). In 2022 the WGAD ruled that Aussie engineer Robert Pether, lured to Iraq and used as a hostage in a commercial dispute between his employer and the Iraqi Central Bank, was arbitrarily detained. Remarkably, Pether submitted testimony to the inquiry from his Iraqi prison cell. DFAT has never explained why it rejects the determination of this independent UN body.

In response to questioning, DFAT’s representative acknowledged that under the previous government, Australian writer Yang Hengjun, subject to a suspended death sentence in China, had been referred to publicly as “arbitrarily detained.” DFAT must clarify why, in now claiming that they have “zero cases,” they have seemingly decided that Dr Yang is no longer arbitrarily detained.

DFAT’s objections are not restricted to any perceived risks that may arise from making public pronouncements, as its submission claims that “even in confidential advocacy” using the label ‘arbitrarily detained’ may jeopardise the government’s efforts at resolving the case.

From the prisoner’s perspective, hearing that your own government considers you to be unjustly imprisoned is immensely validating. This is also the case for the family, who can sometimes feel they are not only fighting the government detaining their loved one, but their own government too. The impact of recognising Aussies who are wrongfully detained, even if only in private, cannot be overstated. Why DFAT would take objection to this is unclear.

DFAT’s claim that no Australians had been arrested, currently or in the past, “for the purpose of leverage” is a reference to ‘hostage diplomacy,’ widely acknowledged to be on the rise as malign actors like Iran and Russia learn that they can win concessions by detaining innocent citizens of Western democracies. Such a statement is staggering, not only because the inquiry spent three days hearing evidence to the contrary, but because even if it were true, it would not be an argument against Australia pre-emptively developing a policy approach to prevent the targeting of our citizens in the future.

This claim deserves scrutiny. The starkest example to the contrary is the case of Sean Turnell. It is a largely uncontroversial fact, acknowledged even by DFAT staffers themselves, that Australia neglected to join our allies in imposing sanctions on the Myanmar military junta that imprisoned him in 2021 out of concern for Turnell’s welfare, and fears that such a move would jeopardise negotiations. Is this not a form of leverage?

Aussie journalist Cheng Lei’s arrest coincided with the dramatic degradation in Australia-China relations in 2020, and her release appeared as a kind of goodwill gesture following the improvement of relations in 2023. Leverage, maybe. That Lei’s fate was tied to the broader bilateral relationship is difficult to deny.

Aren’t prisoner swaps also a form of leverage? I was released from wrongful imprisonment in Iran in 2020 in exchange for three convicted terrorists. Two Aussie backpackers were swapped for an Iranian national Australia had imprisoned in 2019. Iran is holding at least two Australian citizens right now. DFAT should explain why Iran’s demands for concessions do not amount to leverage.

The Senate inquiry made 18 recommendations that would transform how Australia identifies and manages cases of wrongful detention, potentially bringing victims home sooner and ensuring that when they do come home, they receive the support they need to recover. Many individual DFAT employees care deeply about this issue and have been privately supportive of efforts to broaden the range of tools available to help them do their jobs.

It is, frankly, baffling that rather than welcoming the opportunity to learn from survivors and improve its procedures in line with international best practice, DFAT’s institutional response has been to open a debate about the very existence of the phenomenon at all.

Dr Kylie Moore-Gilbert is an Australian-based scholar of the Middle East. In 2018 she was detained during a trip to Iran and served more than two years of a ten-year sentence before being freed in November 2020 in a prisoner exchange deal negotiated by the Australian government. Kylie has since published The Uncaged Sky: My 804 Days in an Iranian Prison and co-founded the Australian Wrongful and Arbitrary Detention Alliance. An edited version of this opinion piece was first published in The Australian on 11 December 2024. It is republished with permission.