The often tireless efforts of officials in Australia and around the world to secure the release of their citizens detained arbitrarily have yielded mixed results. This malign practice by autocratic regimes continues.

The patchy outcomes show the need for Australia to review and improve its approach. The current Senate inquiry into the wrongful detention of Australian citizens abroad, due to report around the end of November, provides a crucial opportunity to better understand and tackle this pressing issue that brings together human rights, diplomacy and national security.

The first weakness is that there is not enough public messaging that arbitrary detention and hostage diplomacy are used by authoritarian regimes to achieve their strategic objectives.

Of course, some Australians overseas do the wrong thing and face local justice accordingly. Arbitrary detention and hostage diplomacy, by contrast, are used to gain political or economic concessions from the detained citizen’s government, in violation of their human rights and without legal justification. This latter practice must be identified and called out for what it is. The resulting attention should galvanise rule-abiding nations to hold hostage-taking countries collectively to account and to deter the practice.

The exquisite dilemma that governments face is that they must at once prioritise the welfare of their citizen while maintaining a resolute conviction not to give concessions that might provide temporary relief but incentivise further use of the malign practice over the longer term.

Recognising the wicked nature of this challenge forms the basis of the submission we recently made to the Senate inquiry, arguing that Australia needs a well-defined policy framework that covers diplomatic engagement, legal action, international partnerships and public communication.

First, a consistent and transparent application of the term ‘arbitrary detention’ is needed. Cases have often been marked by significant inconsistencies, adding to our own public’s confusion and potentially letting authoritarian regimes off the hook.

Australian citizen Yang Hengjun has been detained in China since January 2019. After two years of unsuccessful diplomatic engagement and worsening treatment, the Australian government labelled his detention as arbitrary, marking the first use of the term in relation to a citizen held by China. This label has rarely been used in relation to others held by China, including Cheng Lei. And more recently, particularly around the June 2023 visit to Australia of Chinese Premier Li Qiang, the Australian government seemingly dropped the word ‘arbitrary’ in relation to Yang.

Any argument that silence or mutedness is a necessary diplomatic compromise does not cut it. The unjustified, punitive and coercive detention of an Australian citizen cannot simply be accepted and absorbed into a relationship in pursuit of stability. It must be regarded rather as an ongoing source of destabilisation.

Second, a principle should be maintained that the welfare of the individual is paramount and that Australia’s upholding of international rules and deterrence of future cases are higher priorities than economic and diplomatic relationships. Preventing future exploitation of detainees means the policy should prohibit making policy concessions or payments to regimes involved in hostage diplomacy.

Third, we need clarity on when to use quiet diplomacy versus public advocacy. This will depend on the circumstances of each case. In the immediate period after a citizen is detained, quiet diplomacy can offer the best chance of an early release, while premature public attention might make it harder for the detaining regime to relent.

The mistake that governments have sometimes made is in failing to recognise when that stage has ended and when greater public pressure is required.

Fourth, it is essential that like-minded nations and international organisations strengthen their co-operation. By working closely with the United States, Canada, European nations and others, Australia can exert collective diplomatic, reputational and economic pressure on regimes that engage in hostage diplomacy.

In February 2021, the Canadian government led a landmark international declaration against arbitrary detention, signed by about 60 countries. But more than three years later, democracies like Australia must go beyond declarations and ensure there are adequate enforcement mechanisms such as targeted sanctions—the fifth measure Australia should utilise. Once a case becomes formally recognised as state-backed arbitrary detention, mechanisms such as sanctions should be used to hold regimes to account and deter them from further breaches.

This could be done through the potent tool of Magnitsky-style legislation passed in 2021, which enables Australia to impose financial and travel restrictions on individuals and entities in regimes that practice arbitrary detention. Successive Australian governments have shrunk from using them in response to Yang’s arbitrary detention (and in relation to human rights abuses in Xinjiang) but, with no end in sight for Yang after almost six years, using Magnitsky to target those responsible is now long overdue.

Sixth, public engagement is essential for the purpose of transparency and enabling Australians to make more informed decisions while travelling or living abroad. Keeping the public and affected families aware of Australia's actions will help build trust and ensure accountability. Proactive public campaigns can educate Australians about travel risks.

Finally, we need support mechanisms such as the establishment of a deterrence fund. This fund would support diplomatic efforts, legal actions and public awareness campaigns, ensuring Australia has the resources to respond swiftly and effectively.

Addressing the issue of wrongful detention demands a dynamic and comprehensive response. Proactive reforms and strategic partnerships will enable Australia to safeguard its citizens effectively and ensure responses are principled, transparent and impactful.