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Dubai businessman’s lawyer: consular help an Australian right

Australians must be able to depend on their government for help overseas, writes John Sneddon, lawyer for Australian businessman Marcus Lee. Lee was thrown in jail in Dubai for four years for a crime he did not commit.

On Australia Day 2009, the Dubai Police invited Marcus Lee to attend a meeting that afternoon to assist them with “inquiries”. Upon arrival at Police HQ, he was accused of fraud, arrested without charge and thrown in jail. He spent the next nine months in three Middle Eastern prisons — the first two months in solitary confinement.

He was finally released on bail in October 2009 and spent the next four years under house arrest as his case slowly ground its way through the Dubai legal system. Marcus was finally acquitted in May last year, and when the Dubai prosecutor appealed, his acquittal was again upheld by the Court of Appeal last November. He is, and always has been, an innocent man. I am his lawyer and have represented him throughout the ordeal.

For the duration of his lengthy Dubai ordeal, Marcus received consular assistance from Australia’s representatives in the United Arab Emirates. The assistance Marcus received covered a range of issues but was primarily in the form of briefings and updates from consular staff, representations made on his behalf to the Dubai authorities and attendance at all court hearings by Department of Foreign Affairs and Trade officials based in Abu Dhabi. He received no financial assistance whatsoever, but the assistance provided by Australia’s ambassador to the UAE, Pablo Kang, and the numerous other diplomatic staff in Dubai was greatly appreciated.

As reported in Crikey on Tuesday, Foreign Minister Julie Bishop this week sparked controversy when she threatened to recover the costs of the consular services provided to the Greenpeace activist Colin Russell, who was arrested for protesting against oil drilling in the Arctic in September. Her comments came after Russell expressed the opinion upon his return to Australia that the government “should have gone into bat a little bit more for me”. DFAT is currently inviting submissions in relation to its consular strategy for 2014-2016.

Given his recent acquittal and the prominence of his case, it was inevitable that Marcus would be dragged into the debate about the nature and extent of consular assistance provided to Australians who get into trouble overseas. Having represented Marcus and Julie Lee for the last four years, I am firmly of the view that any significant reduction in the nature and extent of consular services could leave Australians vulnerable and isolated at a time when they need the full protection of their Australian citizenship.

Australians are extensive travellers. We travel for business, and we travel for pleasure. We travel to attend family weddings, births and funerals. Some of us go abroad to make money. Others travel to spend it. Travel encourages the exchange of ideas, knowledge, goods and services and fosters trade between Australia and the rest of the world. Travel is good for Australia, but it is inevitable that Australians will get in trouble when they are abroad. When they do, we should do all that we can to assist them.

That is not to say Australians can expect extraordinary assistance; DFAT makes it very clear on its website that the assistance it can provide is very limited. Marcus Lee certainly never expected the Australian government to break him out of prison. But it is not unreasonable for Australians arrested overseas to expect that embassy staff may be able to visit them in prison, speak up if they are mistreated and pass information about their plight to their families. How could we put a cost on that? And should it be provided on a user-pays basis?

Granted, there may be scope for some tinkering around the edges. But wholesale change to the system may result in people who legitimately deserve assistance languishing forgotten in foreign jails while high-profile cases gain all the attention. Sometimes the most important thing an Australian caught up in foreign legal proceedings can do is keep a low profile so as not to upset local sensibilities. Assistance should not be determined by prominence in Australian tabloid newspapers and interviews granted to shock jocks. Each case is different, and assumptions made about the Australians involved can often be baseless.

For example, as Crikey reported, Dr James Cotton, professor emeritus at the University of New South Wales, said there was “some merit” in seeking costs from Marcus Lee (and his co-accused Matthew Joyce) because they were in Dubai to make money so could therefore afford to pay. Certainly in the case of Marcus Lee, nothing could be further from the truth. Marcus was not in Dubai on a huge expat salary package and over the last five years has lost everything he owns. He has been unable to work since Australia Day 2009 due to his visa conditions, and he and his wife have subsisted on two-minute noodles to make ends meet. I have acted for Marcus on a pro bono basis because he had no other means of obtaining legal representation in Australia. When he eventually returns to Australia, Lee will be completely impecunious.

I say “eventually” because Marcus and Julie remain trapped in Dubai today, nearly two months after his second acquittal. In order to leave Dubai, Marcus needs an exit certificate. Unfortunately, he can’t get one until he pays his arrears of rent. He can’t do that until he gets his bail money back, and the money has still not landed in his bank account. To put a cost on consular services provided to him simply because he was “making money” five years ago would be an injustice.

On the first page of my Australian passport, the Governor-General of Australia requests that as an Australian citizen I be permitted to “pass freely without let or hindrance” and that I be afforded “every assistance and protection of which he or she may stand in need”. If we ask others to afford Australians assistance when they are in need abroad, we stand as hypocrites if we don’t provide them with every assistance as well.

2
  • 1
    NJCC
    Posted Thursday, 9 January 2014 at 11:05 am | Permalink

    Good article. It seems to be a silly populist idea that governments like to run every now and then. Surely the practical impact would just be a lot of people in need filing for bankruptcy on top of their other woes. The government wouldn’t actually recover anything.

  • 2
    Chris Hartwell
    Posted Friday, 10 January 2014 at 9:27 am | Permalink

    It seems another ideological knee-jerk reaction by this government to transition every service to user-pays (and privatised if at all possible)

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