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Notice given 28 October 2003

2332  Senator Bartlett: To ask the Minister representing the Minister for Foreign Affairs—

(1) Can the Minister confirm that Australian Consular Officer Mr Brian Brook has been served a subpoena to appear as a witness against Mr Kirk Pinner, an Australian citizen who is currently being held in custody on a criminal charge in the United States of America (US).

(2) With reference to a letter, dated 4 September 2003, from the Australian Consulate-General in San Francisco to Mr Pinner, which states in part ‘we had been seeking to have Consular Officer Brian Brook exempted from subpoena, however the US Department of State has confirmed that this is not possible’: (a) what steps were taken by the Australian Consulate-General to have Mr Brook exempted from the subpoena; and (b) was any written request sent to the US Department of State, or any other US authority, to this effect. 

(3) In seeking to have Mr Brook exempted from the subpoena, did the Australian Consulate-General raise with US Department of State or any other US authority, the obligations of the US under the Vienna Convention on Consular Relations; if not, why not. 

(4) (a) If the issue of the obligations of the US under the Vienna Convention was raised, what was the response; and (b) does Australia accept that response.

(5) Did Australia at any time waive its rights under the Vienna Convention in respect of the testimony of Mr Brook; if so: (a) was this communicated to the US authorities in writing; (b) what were the reasons for the waiver on this occasion, given that the liberty of an Australian citizen who has not been convicted of any crime was at stake; and (c) why was such a waiver not communicated to Mr Pinner in the letter from the Consulate-General, dated 4 September 2003.

(6) If Australia did not waive its rights under the Vienna Convention, does it accept the claim by the US Department of State that it is nevertheless ‘not possible’ to exempt Mr Brook from the subpoena; if so, as the letter from the Consulate-General implies, on what basis does the Australian Government believe that the subpoena over-rides the obligations of the US under the Vienna Convention.

(7) Is there any formal or other arrangement between Australia and the US that takes precedence over the mutual obligations of each country under the Vienna Convention. 

(8) If Mr Brook has not been issued a subpoena in relation to the criminal proceedings against Mr Pinner, will he be providing evidence for the prosecution despite the absence of any subpoena; if so, will this be of his own free will or on the instructions of the department.

(9) (a) Has the Australian Government provided any information, written or otherwise, to the US authorities in relation to Mr Pinner leaving the jurisdiction of the US while a criminal charge is pending against him; and (b) has the prosecution been provided with any information originating from the Australian Consulate in Los Angeles; if so, what reasons justified the provision of such information to US authorities, when there was no obligation to do so on account of the Vienna Convention.

(10) Can a list of the documents provided by the Australian Government to US authorities in relation to Mr Pinner, as well as any information that may have been conveyed verbally by Australian Government officials to US authorities, be provided.

(11) Does the Government have any concerns regarding the ability of Australian consulate staff to represent the interests of Australian citizens in the US if such staff can be obliged to testify against Australian citizens pursuant to subpoenas issued by US courts.