2010 Consular case
I have today released the report from the Secretary of the Department of Foreign Affairs and Trade (DFAT) into the consular handling of the case of Mr Ben Zygier – a dual Australian-Israeli citizen who was detained in Israel on January 31, 2010 and passed away in Ayalon prison on December 15, 2010.
The report examines:
• DFAT’s knowledge of Mr Zygier’s detention and death; and how and when that information was received;
• Government handling of consular aspects of this case; and
• lessons learned and recommendations for future improvement in consular services.
The report also raises questions regarding the nature of Australian consular responsibilities for dual nationals, and the use of Australian passports by dual nationals working for the government of their other country of nationality.
The Australian Government sought and relied upon assurances from Israeli authorities that:
1. the individual’s legal rights would be respected and,
2. he had legal representation of his own choosing;
3. the individual’s family members had been notified of his arrest and detention; and
4. he was not being mistreated.
The report finds:
• Mr Zygier was granted regular access to a lawyer and more than 50 visits by family members, while in detention in 2010.
• There was no request from Mr Zygier, his family or his lawyer for Australian consular assistance;
• despite the above, there was a lack of clarity in Government decision-making over consular responsibilities; and
• in the event, no Australian consular assistance was provided to Mr Zygier and there is no record in this report of any direct contact between Australian Government officials and Mr Zygier during this time.
The Zygier case was complex and outside the normal bounds of consular activity. However it is unsatisfactory that there was a lack of clarity over the exercise of consular responsibilities.
It is also unsatisfactory that details of assistance provided by Israeli authorities to Mr Zygier were not sought by or provided to DFAT until the commissioning of this report.
I acknowledge DFAT’s contemporaneous assessment that Israel would not have granted direct consular access to Mr Zygier. However it would have been preferable for follow-up information to have been sought in in 2010.
The report notes that:
• With the benefit of hindsight it would have been prudent to consult the Australian Head of Mission in Tel Aviv in February 2010 about the likelihood of Australia being granted consular access to Mr Zygier.
• A clear understanding within government about consular responsibilities in the case would have generated greater confidence in the decision-making around it.
• A more coherent system for handling intelligence information on individual consular cases would have assisted management of issues around Mr Zygier’s circumstances.
• Although a record of briefings in February 2010 would have assisted future handling of issues around the case, this would have been difficult given the briefing agency’s request that no written record be kept.
The report recommends that:
1. Subject to a specific exemption from the Minister for Foreign Affairs, Heads of Mission should be informed of the circumstances of any Australian citizen detained for any reason within the country of their accreditation if that information is available to any Australian agency.
2. The Department should lead whole-of-government development of a protocol for dealing with individuals detained on intelligence-related matters. The protocol could be modelled on a protocol developed in 2011 to handle cases involving Australians detained overseas in security-related circumstances.
3. A better system should be developed to ensure that senior consular officers can access written records, including intelligence, of sensitive cases.
4. A further review be held into the consular services that should be provided by Australia to dual nationals, particularly in circumstances where the individual is employed by the government of the other country; and
5. We await the outcome of the various inquiries underway or foreshadowed in Israel into the handling of the Zygier case by Israeli authorities before seeking further details from Israel, noting that the Australian government has no legal basis on which to conduct an inquiry in Israel into the circumstances of Mr Zygier’s detention or death.
I have directed that these recommendations be implemented.
I again express my condolences to the Zygier family in Australia and Israel for the passing of Ben Zygier and regret any distress caused by the necessary airing of this matter through this report.
Read the full report here.