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.
Consular support
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.
Other matters
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.
Recommendations
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.
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Thoughtlines with Bob Carr 
Thanks for this Bob. It’s good.
It doesn’t mention Israel’s obligations under the Vienna Convention on Consular Relations, or go to the question of whether the Israeli’s informed Mr Zygier of his right to have their Embassy or Consulate noltified (Article 36), but perhaps that’s outside the scope of this report. It’s a complicated issue in cases involving dual nationality, but I think it’s worth noting.
Israel signed the VCCR in 1964, but as of today has not completed the procedures necessary for ratification. 49 years seems a long time for such processes, but as Israel has signed the convention they have given an undertaking not to breach its provisions, including Article 36.
Thanks Christopher, a timely reminder that Israel should be and isn’t conforming to international law. There is mounting evidence that Israel is flouting international norms on many fronts and not being admonished. Perhaps they no longer care to have a good reputation in the world. Australia should not follow Israel’s path and has no need to either.
I find your admission, Bob, frankly very alarming that DFAT were not informed of Ben Zygier’s detention because ASIO were dealing with the matter. I suspect that there was a degree of deference to Israel that was completely inappropriate.That is simply not satisfactory in an open society that values the lives of it’s citizens. We know that ASIO were well-informed about David Hicks and Mamdouh Habib being in Guantanamo and knew they were being subjected to torture. They did not lift a finger to prevent the most hideous treatment of our nationals by US authorities – and that situation was not acceptable and deeply insulting to Australians.
One question I feel has not been answered to my satisfaction is that of the multiple Australian passports that were issued in different names to Ben Zygier. I can accept that it is perfectly legal to change one’s name and if one does it is incumbent on you to relinquish your existing passport before being issued with a new one in the new name you have adopted. If you then applied for a second change of name the passport issuing officers should become suspicious and notify ASIO that this was taking place. ASIO were also aware that Zygier had compromised his Australian citizenship by working for Mossad, a foreign intelligence organisation with a fearsome record of violence and illegal operations. Yes, ASIO has a role, but not one of dominating and shutting out other government departments.
So, did Ben Zygier hold two or three Australian passports concurrently or successively? If they were concurrent, then we need your explanation of how this was allowed to happen. This whole Mossad tango with Australian passports renders the document worthless in protecting our identity and endangers the lives of Australian travellers, as you have correctly pointed out. Please tell the truth to the Australian public, at least now.
Australians are not used to hearing the truth from their government, which is why there is so much disaffection, why we are in this situation and why we are staring down the barrel of a much worse option. An Abbott government would include Julie Bishop, who thinks that fake passports, kidnappings and assassinations are the normal fare in a democracy. My father and his Jewish mother fled the Nazi regime in Germany in 1939. I will never accept that we are in the process of creating a Stasi state.