Report into the handling by the Department of Foreign Affairs and Trade of the consular aspects of the Zygier

case On 13 February 2013 the Minister for Foreign Affairs requested the Secretary of DFAT to inquire into the Departments handling of the consular aspects of the Zygier case. 2. Mr Zygier was an employee of the Israeli government before his death in December 2010. Born in Australia in 1976, Mr Zygier held dual nationality and lived in Israel for about ten years before his death. Mr Zygier had an Israeli wife and two children born in Israel. 3. The Secretary commissioned a review team, led by Mr Paul Grigson, Deputy Secretary, to assist him in the preparation of the report. The terms of reference of the review team are at Attachment A. 4. The review team interviewed A-based staff on posting in Tel Aviv from January 2010 to December 2010, as well as staff in senior consular roles at that time, and instigated follow up with other officers where a suggestion emerged about a possible connection. 5. The team instigated a search of all physical and electronic holdings in relevant areas of the Department and posts. 6. The details of DFATs knowledge and actions in the Zygier case are at Attachment B. 7. In summary, the report finds that: two senior officers in the Department of Foreign Affairs and Trade in Canberra were briefed separately and orally by another agency on 24 February 2010 about the detention of Mr Zygier on charges relating to breaches of Israels national security (the individuals name was not provided but we now know it was Mr Zygier); no officer at the Australian embassy in Tel Aviv knew of Mr Zygiers detention before the Australian government was notified, through another agency, of his death on 16 December 2010; the broader issue of the misuse of Australian passports by Israeli intelligence was a high-profile issue at the time and was a pre-occupation of the national security community. There was no suggestion at the time or subsequently that Mr Zygier was involved in this misuse or that he obtained his passports fraudulently. But if media reports prove to be true that Mr
1

Zygier used his passport in the service of Israeli intelligence, this would raise significant questions about the appropriateness of this activity; details of who else within the government was briefed on Mr Zygiers detention are contained in the chronology at Attachment C; the Department received assurances from Israel through intelligence channels about Mr Zygiers treatment in detention in briefings on 24 February 2010. These assurances included that legal representation had been made available to him, that his legal rights were being respected, that his family was aware of his arrest and detention and that he was in good health and was not being mistreated; the Department received no other information, and did not request information, about Mr Zygier from any other source until it was notified on 17 December 2010 of his death; the Department received no requests for assistance from either Mr Zygiers family or legal representatives before December 2010; information from the Israeli government indicates that his family visited Mr Zygier in prison on more than 50 occasions; information from the Israeli government indicates Mr Zygier received regular visits from his legal representatives, including, according to media reporting, in the days before his death; a different understanding existed within government about which agency would be the consular lead in this case; Mr Zygiers repatriation was assisted appropriately by the Department following notification of his death; the review sought details of the charges against Mr Zygier but the Israeli government declined to provide this, noting the charges were the subject of an Israeli gag order. 8. The review team considers 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. That said, the Department had no reason to believe the assurances provided about Mr Zygiers treatment
2

were not being observed, and the sensitive intelligence nature of the case worked against sharing knowledge of Mr Zygiers detention with the Head of Mission; 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 Zygiers 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 agencys request that no written record be kept; the case raises questions about whether consular services should be provided by Australia to dual nationals when they are employed by the government of the country of their second nationality. 9. 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
3

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 Zygiers detention or death.

5 March 2013

Attachment A

Terms of reference of the Report into the handling by DFAT of the consular aspects of the Zygier case

(a) Establish the facts of the case, including who knew what when (b) Examine the way in which DFAT handled the consular aspects of the case (c) Examine the record keeping of the case, including whether intelligence information had been made available to the consular area of the department (d) Make any recommendations on changes to departmental processes which may be required in the light of any lessons learnt (e) Make recommendations on whether there are issues which should be taken up with the Government of Israel, bearing in mind that Mr Zygier/Allen was a dual Australian/Israeli national (f) Any other recommendations which you consider appropriate in the light of your examination of the handling of the case.

Attachment B Attachment B The Departments knowledge and actions relating to the Zygier case 1. On 24 February 2010, Dennis Richardson (Secretary DFAT) was orally briefed by another agency about the Zygiers case. On the same day, Greg Moriarty (First Assistant Secretary, Consular Public Diplomacy and Parliamentary Affairs Division, DFAT) received a separate oral briefing about the Zygier case. Mr Moriarty was the only DFAT officer present at the briefing. The other agency kept a single short record of conversation of its discussions with Mr Richardson and Mr Moriarty. In both briefings the other agency outlined Mr Zygiers circumstances and his detention, but did not provide a name. 2. About a week later, DFAT received a copy of a submission from another agency to the Attorney-General dated 3 March 2010 indicating again that Mr Zygier had been detained. IPL records do not indicate whether the submission was passed on to any other DFAT officer. 3. Two further ministerial submissions from another agency to the Attorney-General have been drawn to our attention. The submissions are dated 1 March 2010 and 13 May 2010. 4. We note that the then Minister for Foreign Affairs, Stephen Smith MP, was on the distribution lists for both submissions. We can find no evidence, nor can the other agency, that the submissions were drawn to his attention. Mr Smith said he has no recollection of the Zygier case during his time as Foreign Minister (2007 September 2010). 5. Mr Richardson has advised that he does not have a clear specific recollection of the details of the briefing on 24 February 2010 which related to Mr Zygiers detention. He recalled discussions in relation to the misuse of passports by Israel, and about investigations into Australians of Israeli background who may have been working for Israeli intelligence. Mr Richardson has no recollection of briefing the Minister for Foreign Affairs or any other Minister about Mr Zygiers detention. The review team noted that the broader issue of the misuse of Australian passports by Israeli intelligence was a high profile issue at the time and was a pre-occupation of the national security community. There was no suggestion at the time or subsequently that Mr Zygier was involved in this misuse or that he obtained his passports fraudulently. But if media reports prove to be true that Mr Zygier used his passport in the service of Israeli

Attachment B intelligence, this would raise significant questions about the appropriateness of this activity. 6. The review team spoke to Mr Moriarty about his recollections of the Zygier case and of the 24 February 2010 briefing. Mr Moriarty had kept a notebook from the period in question, which included handwritten notes of this briefing. 7. The briefing detailed the circumstances leading to the arrest and detention by Israel of Mr Zygier (but not by name), including his employment by the Israeli government. The briefing covered assurances that another agency had sought from Israel on 16 February 2010 regarding Israels treatment of Mr Zygier in detention. These assurances included: that legal representation had been made available to him; that his legal rights were being respected; that his family was aware of his arrest and detention; and that he was in good health and was not being mistreated. 8. The briefing noted that Mr Zygier was being treated by Israel as an Israeli citizen, and that the offences he was charged with carried penalties of up to twenty years imprisonment (not the death penalty). 9. On the points above, Mr Moriartys recollection accords with a formal record of conversation of the briefing prepared by another agency. Recollections diverge, however, on the issues of whether Australias consular obligations had been met, on whether another agency could be a competent authority for the purposes of discharging those obligations, and on which agency was the lead agency for monitoring Mr Zygiers rights and treatment. 10. According to the record, Mr Moriarty advised that on the basis of the assurances received from Israel, Australias consular obligations had been met. The record noted Mr Moriarty said that the main responsibility is to ensure the accused dual citizen was being afforded the full legal rights of an Israeli citizen and treated humanely and fairly by the legal system, further that a competent authority usually DFAT, needed to be satisfied of this. In this case, the other agency was considered a competent authority and as such consular obligations had been met. The briefing agency believed that DFAT would undertake its normal consular role. 11. Mr Moriarty told the review team he did not recall being directly asked what Australias consular obligations were. He said he did not recall a discussion about a competent authority. He recalled discussing that it was unlikely Israel would grant consular access to Mr Zygier, and that the option was available for the family to request consular assistance. Mr Moriarty said he had understood that steps would be taken for the other agency to be the lead in the case, and that any monitoring of the individual would be done through
7

Attachment B intelligence channels. Mr Moriarty said no record of conversation was provided to him. 12. Mr Moriarty said he had a note in his book indicating he had verbally briefed the Foreign Ministers Chief of Staff, Frances Adamson, shortly after the briefing on 24 February 2010. Mr Moriarty briefed no other officer in the Department or at post in Tel Aviv. He said that he had been told that only he and Mr Richardson were being briefed. He had been asked that no formal record of the briefing be kept. 13. Apart from a further brief enquiry by Mr Moriarty to the other agency some weeks after the initial briefing on 24 February 2010, the Department did not follow up on the assurances received about Mr Zygier. Mr Moriarty said he understood that the other agency would be pursuing the issue through intelligence channels and that it had agreed to provide any further information that became available. 14. There was no follow-up activity by DFAT either after the briefings on 24 February 2010 or after receipt of the submission on 1 March 2010. Despite advice from the Israeli government to the contrary, we have seen no evidence in DFAT that Israel provided any further updates on Mr Zygiers detention or circumstances relating to his case. We have been advised that updates were not received through intelligence channels. 15. It is clear that a shared understanding did not emerge about consular responsibilities from the discussion on 24 February 2010. If a formal protocol on the handling of such issues had been in place, this uncertainty would not have occurred. This was, of course, a highly unusual case with few, if any, precedents and, in those circumstances, the lack of such a protocol is not surprising. 16. Similarly, there is confusion over the use of the term competent authority. Again, if a formal protocol had been in place, this is unlikely to have emerged. And a protocol would have helped avoid the uncertainty around lead responsibilities in the case. 17. The review team has looked closely at the circumstances of the initial judgment made to accept the assurances provided by Israeli authorities. We cannot find any grounds for not accepting these assurances. Specific questions were asked about Mr Zygiers circumstances. The officer from the other agency seeking the assurances was a senior, highly experienced officer who considered the assurances to be genuine. 18. The review team also considered the issues around the judgment to decide against following up these assurances. The judgment involved a shared assessment that Israel would not grant
8

Attachment B consular access to Mr Zygier. It included consideration that the Department believed Mr Zygier was being treated as an Israeli citizen (see paragraph 8) and that Mr Zygiers family knew of his arrest and had not sought assistance from the Australian government (and did not do so over the next 10 months). It took into account concerns that a diplomatic approach may jeopardise the intelligence channel (the only source of information on the case). And it included as a factor the nature of Mr Zygiers circumstances. This was not a usual or straightforward consular matter and the usual considerations did not apply. 19. The judgment made was reasonable in the circumstances. But with hindsight it may have been prudent to consult with the Head of Mission (HOM) on the case, although it is unlikely that the HOM would have been given access in this case by the Israeli government. The decision not to follow up would sit more comfortably had the reasons for not following up been recorded in an appropriate way. Importantly, the review team considers that, subject to a specific exemption from the Minister for Foreign Affairs, HOMs should be briefed on information held by any Australian agency on the detention of any Australian in his/her country of accreditation. Repatriation of Mr Zygiers remains 20. Ambassador Faulkner (HOM Tel Aviv) was briefed about Mr Zygiers death on 17 December 2010. This was the first time she had been briefed on his case. Prior to this date, the embassy had no knowledge of his detention. On 21 December 2010, the embassy was contacted, most probably by a funeral director, about assisting with the repatriation of Mr Zygiers body to Melbourne. The case was managed in Tel Aviv by a locally engaged consular officer. The officer created a case file in the Consular Management Information System (CMIS), which is the first time Mr Zygiers name appears in any formal departmental consular records since his detention. The cause of death was noted as asphyxia by hanging in Ramla. 21. Repatriating Mr Zygiers body to Australia was routine and uneventful. The funeral directors in Israel and Melbourne managed most arrangements. Post and CPD were only involved in obtaining the provisional quarantine clearance to allow the body to return to Australia. Following usual practice, his body was not accompanied by a consular officer. Official translations of his death and embalming certificates accompanied the body. An import permit was not required as his body was accompanied by official documentation (death and embalming certificates). The case was closed on 23 December 2010 after Mr Zygiers body had arrived in Melbourne. 22. The review team notes that three errors were made in managing Mr Zygiers repatriation, all of which relate to record management.
9

Attachment B First, the date of death was incorrectly recorded in CMIS and in a cable from post as 9 December 2010, when it should have been 15 December 2010. Secondly, the embassy did not keep a copy of the death certificate on file. Thirdly, the notifying authority is listed in CMIS as family. The post consular officer cannot in fact recall speaking to a family member, and only recalls speaking to the funeral director in Israel. It is his view that the funeral director called on behalf of the family, and this is why he noted family as the notifying authority, and not a specific family member. There is no record of any other contact with the Zygier family. 23. It is the review teams view that these were very minor process errors and did not affect the consular service that the Australian government provided to the Zygier family. The Embassy has since reviewed its document management process and death certificates are now kept on file. Consular services and dual nationality 24. Mr Zygiers case has raised significant issues about consular services provided to Australians who are dual nationals particularly in circumstances where they are working for another State. General consular services 25. The Australian government provides consular services to Australians overseas to protect them and their interests. Consular services are not a legal right for Australian nationals, and are provided at the discretion of the government. The policies, procedures and service levels set out in the Australian Consular Handbook Operations (Operations Handbook) represent guidelines only, and are not intended to create any legally binding duties or obligations on the Government to provide particular consular assistance or services. The preface to the Operations Handbook states that the most appropriate level of consular services will be determined on a case by case basis at DFATs sole discretion. 26. Australias consular access to Australian nationals overseas is provided for under Article 36 of The Vienna Convention on Consular Relations (1961) (VCCR). Under Article 36, subject to the consent of the individual concerned, the receiving state must: inform the consular post of the sending state without delay if a national of the sending state has been arrested or detained; and allow for consular officers to visit, converse or correspond with the national of the sending state and to arrange for the legal representation, unless the national in prison, custody or detention expressly opposes such action.
10

Attachment B

27. In the case of an Australian nationals arrest or detention overseas, the Operations Handbook (Chapter 6) provides that consular protection for such individuals means ensuring as far as possible that the individual: is able to see an Australian consular officer and receive consular assistance; have access to appropriate legal defence and receive a fair trial under local law; is treated no less favourably than local citizens confined for similar offences; and has their basic needs met and enjoy humanitarian standards of prisoner welfare. Australian consular policy on dual nationality 28. Dual nationality is not addressed by the VCCR. However Article 4 of the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws (1930) (Hague Convention), provides that a state may not afford diplomatic protection to one of its nationals against a state whose nationality such person also possesses. This means that in the state of one nationality, dual nationals technically have no right to approach or request assistance from representatives of the other nationality. 29. Although Australia has acceded to the Hague Convention, the Government extends to Australian dual nationals the same level of consular assistance as other citizens. The Consular Handbook Policy states that Despite Article 4 of the Hague Convention, Australian consular officers are charged with protecting Australians even if they hold another nationality. Nevertheless, the receiving state is under no obligation to allow consular access or assistance to the sending state if the individual is a dual national of the receiving state. Application of dual nationality aspects to Mr Zygiers case 30. As Mr Zygier was a dual national, there was no obligation under the VCCR for Israel to notify Australia of his arrest. As noted in paragraph 7, assurances from Israel were sought about Mr Zygiers treatment and rights while in detention. The review team has looked closely at the judgment made to accept these assurances (paragraph 17). The review team also considered the issues around the judgment of following up on these assurances (paragraph 18). 31. The review team heard from Mr Moriarty that Mr Zygiers dual nationality was one, but not the sole, factor in the decision not to seek to make diplomatic inquiries on his behalf. Australia had heard
11

Attachment B through intelligence channels that Mr Zygier would be treated as an Israeli citizen under Israeli law. Both Mr Moriarty and the other agency considered Israeli authorities would not grant access to him given his Israeli nationality and the charges against him. 32. These are reasonable judgements in the circumstances. This case however raises the broader issue of the provision of consular services to dual nationals, particularly in relation to cases where the dual national is a government official of the other state. This issue should be the subject of a further review. Issue of passports to Mr Zygier 33. Mr Zygier was issued passports in three names: his birth name and two other names following legal name changes. He only held one passport at any given time. Australians who have legally changed their name are advised to change all their identity documents and records, including passports. But if media reports prove to be true that Mr Zygier used his passport in the service of Israeli intelligence, this would raise significant questions about the appropriateness of this activity. Provision of media talking points to the Foreign Ministers Office 34. We have examined the uncertainties surrounding the provision of media talking points to the Foreign Ministers Office on 7 February 2013. The points that were initially provided did not reflect the Departments knowledge of the Zygier case at the time due to imperfect systems for maintaining sensitive intelligence information relating to consular matters. 35. The review team considers that a system of information management, whereby records are kept of sensitive information coming into Consular Public Diplomacy and Parliamentary Affairs Division (CPD), and officers in that division are alerted that a consular case may have intelligence sensitivities, would have assisted CPD in providing the Foreign Ministers Office with a more comprehensive and accurate brief of the Australian governments engagement in the Zygier case. 36. Currently there is no mechanism for officers in CPD to hold Top Secret material, or to be alerted to sensitivities about particular cases. This makes it difficult for CPD officers to make judgments about handling those cases. We recommend that CPD and International Security Division jointly look at introducing a system in which consular and Consular Management Information System files could be flagged to alert CPD officers to cases with an intelligence or other
12

Attachment B sensitive dimension. International Security Division (Intelligence Policy and Liaison section) would be the repository for intelligence material relating to those cases. CPD officers would know to contact International Security Division for further information about the cases. Access to the International Security Division-held information could be managed by an appropriately cleared officer in CPD such as the Intelligence Liaison officer within the division. Circulation within DFAT of sensitive information 37. As part of its examination of which officers knew what pieces of information about the Zygier case at particular times, the review team looked at how sensitive material on the case was distributed within DFAT. Information on the Zygier case was tightly controlled. Specific information on Mr Zygiers detention was shared with only two DFAT officers on a strict need-to-know basis. 38. Much of the information on Mr Zygier that the Department has now seen, including his position as an official employed by the Israeli government and his detention by Israel, was contained in a series of ministerial submissions by another agency to the Attorney-General. 39. These submissions have cover pages which include names of officers in other departments to whom information copies are to be made available. Within DFAT, the submissions list either the Secretary of DFAT or FAS CPD or both. 40. The review team found it was not straightforward to track which officers in DFAT had seen a submission on a particular date. DFAT has a mechanism for handling and distributing sensitive information received from other agencies (Intelligence Policy and Liaison section in International Security Division - IPL). IPL has a system of providing receipts for hard copy material received from other agencies by safehand courier. In the case of the submissions relating to the Zygier case, only one was receipted (by the Executive Officer to the Secretary). The others were not, but appear to have been handdelivered directly to the individual officers listed on the cover page. 41. While the receipting process for sensitive information relating to Mr Zygier appears not to have had a bearing on DFATs handling of this case, the issue of how the Department keeps track of the distribution of such information emerged as a risk that needs to be addressed. We would propose that other agencies ensure to the extent possible that all sensitive material is distributed through IPL. There may be particular circumstances where only the Secretary has a need to know. But as a general rule, IPL has the facilities to hold Top Secret codeword information, its officers have the appropriate clearances to deal with such information, and it has the distribution
13

Attachment B mechanisms in place to ensure that material is passed on promptly to addressees. Information from the Israeli government 42. Significant uncertainty exists around the details of Israels handling of the arrest, detention and legal processes of Mr Zygier. The exact nature of charges that he faced is not clear. Israel has said publicly that at least one inquiry is underway into the handling of the Zygier case by Israeli authorities, and others may follow. We should await the outcome of those reviews before pursuing further information on the details of Israels handling of the case. Australia has no standing to conduct an independent investigation into the circumstances of Mr Zygiers death, nor to demand material from Israel. There is a divergence of view between Australia and Israel over whether Australian agencies were provided with any updates on Mr Zygiers case, including his welfare, during the period of his detention in Israel. 43. DFAT Secretary Peter Varghese met the Israeli Ambassador, HE Mr Yuval Rotem, on 15 February 2013, 20 February 2013 and 21 February 2013. During those meetings, Mr Varghese sought further information from Israel about the circumstances and conditions of Mr Zygiers detention, including the nature of the charges he faced, whether Mr Zygier had asked for visits from his family and legal representatives and whether he had raised concerns about his treatment. In response, Israel provided some information in three documents. This information included advice that Mr Zygier requested and was granted more than 50 personal visits by family members during the period he was in detention, that he received regular visits by his three lawyers (including, according to media reporting, in the days before his death), and that his family in Australia and Israel had been kept informed throughout his detention. Material held by the Department 44. In the time available, the review team has arranged searches of relevant documents held by DFAT that could contain a reference to the Zygier case before his death in December 2010. Mr Zygiers name appears on two invitation lists from the embassy in Tel Aviv dating several years before his detention in February 2010. We cannot rule out that he appears in other documents or has had some incidental contact with the Department or its officers before his detention, including in relation to his passport applications. We have, for instance, followed up a suggestion in the media that Mr Zygier may have sought consular assistance from the Australian embassy in Tehran at some point before his detention. We have found no
14

Attachment B evidence of this. It is possible that Mr Zygier has had other telephone or written contact with the Department that we have not been able to trace. 45. Our searches uncovered documents relating to Mr Zygiers repatriation to Australia in December 2010 and to media interest in the case in January and February 2013. 46. Apart from records relating to the issuing of passports to Mr Zygier, the only documents held by the Department relating to the period before Mr Zygiers death in December 2010 is the 3 March 2010 submission to the Attorney-General which had been copied to the Secretary of the Department. The review team asked that thorough searches of electronic and physical holdings within the Department that related to the Zygier case be made. If these further searches uncover any significant information, we will advise you. Conclusion 47. Mr Zygiers case was highly unusual and with little precedent. Mr Zygiers employment provided a filter for decision-making that has applied in few other cases. It is open to a reasonable person to question the provision of consular services to dual nationals in such circumstances. 48. We consider that the circumstances of this case should prompt a further review into the consular services that should be provided by Australia to dual nationals, particularly where the individual is employed by the government of the other country. 49. We found that the Departments handling of the case was made more difficult by uncertainty within government around responsibilities in such cases and imperfect processes for handling intelligence material. This case indicates that procedures for handling sensitive material must ensure that consular officers with a legitimate need can access that material in an appropriate way. It indicates that briefings that are too tightly restricted and cannot be recorded lead to, at the very least, incomplete judgments in consular cases. And they may lead in future to questionable decisions and judgments themselves. This is no ones interest. 50. To guard against such outcomes, we recommend that, subject to a specific exemption from the Minister for Foreign Affairs, Heads of Mission should be informed about any Australian detained within the country of their accreditation if that information is available to any Australian agency. We suggest that the Department lead whole-ofgovernment development of a protocol for dealing with Australians detained on intelligence-related matters. And the Department should
15

Attachment B develop a better system to ensure that senior consular officers can access written records, including intelligence, in an appropriate manner when they need it. 51. Finally, we consider the Australian government should await the outcomes of the reviews underway or foreshadowed in Israel into the handling of the Zygier case by Israeli authorities before seeking further details on the case from the Israeli government. Australia has no standing to conduct an independent investigation into the circumstances of Mr Zygiers death, nor to demand material from Israel.

16

Attachment C Attachment C Chronology

31 January 2010 Benjamin Zygier/Alon/Allen/Burrows arrested by Israeli authorities on national security related charges and is incarcerated in Ayalon prison. Another Australian agency is first advised by Israel about Mr Zygiers detention. The agency seeks assurances from Israel about Mr Zygiers welfare and legal rights. Then DFAT Secretary Dennis Richardson is briefed for the first and only time. Then First Assistant Secretary Consular Public Diplomacy and Parliamentary Affairs Division (FAS CPD) Greg Moriarty is briefed. DFAT is told that the Prime Ministers Office and the Attorney-General have been briefed about the case. After 24 February 2010 (date not recorded) DFAT orally advises Foreign Ministers Chief of Staff about Mr Zygiers detention. At the request of the agency which briefed DFAT, no formal record of oral advice was kept. DFAT sent no further advice or briefing to Foreign Ministers office. Foreign Ministers Chief of Staff does not recollect the conversation and there is nothing to suggest that the Foreign Minister himself was briefed. A submission by another agency to the AttorneyGeneral about Zygiers detention is received in the Secretarys office. The distribution list is: Prime Ministers Office Philip Green, Foreign Affairs Adviser Prime Minister and Cabinet Duncan Lewis, National Security Adviser Department of Foreign Affairs and Trade Dennis Richardson, Secretary Australian Secret Intelligence Service Nick Warner, Director General Attorney-Generals Department Miles Jordana, Deputy Secretary, National Security and Criminal Justice Attorney-Generals Office Layton Pike, Chief of Staff.

16 February 2010

24 February 2010

1 March 2010

17

Attachment C
1 March 2010 A submission by another agency to the AttorneyGeneral about a separate issue refers to an unnamed dual Australian-Israeli national facing charges in Israel relating to breaches of Israels national security. The distribution list is: Minister for Foreign Affairs Mr Stephen Smith Department of Foreign Affairs and Trade Dennis Richardson, Secretary Department of the Prime Minister and Cabinet Duncan Lewis, National Security Adviser Australian Secret Intelligence Service Nick Warner, Director-General Office of National Assessments Allan Gyngell, Director-General Defence Signals Directorate Ian McKenzie, Director Defence Intelligence Organisation Major General Richard Wilson, Director. There is no record to confirm that the Foreign Minister saw this submission and the Foreign Minister at the time does not recollect seeing any briefing on the Zygier case. 13 May 2010 A submission by another agency to the AttorneyGeneral about a separate issue refers to Benjamin Zygier, a dual Australian-Israeli national and employee of the Israeli government, detained in Israel for breaches of Israels national security. The distribution list is: Minister for Foreign Affairs Australian Secret Intelligence Service, Nick Warner, Director-General Department of Foreign Affairs and Trade, Dennis Richardson, Secretary There is no record to confirm that the Foreign Minister saw this submission and the Foreign Minister at the time does not recollect seeing any briefing on the Zygier case. 16 December 2010 Australia informed through intelligence channels that Zygier committed suicide on 15 December 2010.

17 December 2010

FAS CPD James Batley briefed about the death. 18

Attachment C
HOM Tel Aviv briefed for the first time about the case. A submission to Attorney-General by another agency advising of Zygiers suicide is distributed to: Prime Minister and Cabinet Duncan Lewis, National Security Adviser Australian Secret Intelligence Service Nick Warner, Director General Department of Foreign Affairs and Trade James Batley, FAS CPD 21 December 2010 Funeral director, on behalf of the Zygier family, advises embassy in Tel Aviv of the death. DFAT facilitates repatriation of remains to Melbourne. 23 December 2010 16 January 2013 18 January 2013 DFAT closes consular case. DFAT refuses FOI request from the ABCs Foreign Correspondent program on privacy grounds. FAS CPD Justin Brown is briefed by another agency making no reference in oral briefing to Zygiers detention. FAS CPD receives a submission to the Attorney-General by another agency dated 14 January 2013 advising of possible media reporting on Zygiers death and making reference to his incarceration. The distribution list is: Attorney-Generals Department Roger Wilkins AO, Secretary Australian Secret Intelligence Service Nick Warner AO, Director-General Department of Foreign Affairs and Trade Peter Varghese AO, Secretary Department of Foreign Affairs and Trade Justin Brown, FAS CPD Department of the Prime Minister and Cabinet Dr Margot McCarthy, National Security Adviser. 31 January 2013 7 February 2013 FAS CPD Justin Brown briefed orally again on media interest in Zygier, making no reference to detention. Foreign Ministers Office is approached by Foreign Correspondent with questions on the case. FAS CPD Justin Brown prepares media talking points. A submission to Attorney-General by another agency advising of expected media reporting on Zygiers death is distributed to:

19

Attachment C
Attorney-Generals Department Roger Wilkins AO, Secretary Australian Secret Intelligence Service Nick Warner AO, Director-General Department of Foreign Affairs and Trade Justin Brown, FAS CPD Department of the Prime Minister and Cabinet Dr Margot McCarthy, National Security Adviser. 11 February 2013 12 February 2013 13 February 2013 FAS CPD Justin Brown is briefed in detail on the Zygier case. Foreign Correspondent reports that Prisoner X was Mr Zygier. Israels Justice Ministry confirms a prisoner had been held in detention under a pseudonym for security reasons. Foreign Minister and DFAT Secretary provide an interim report on the Zygier case to Senate Estimates DFAT Secretary Peter Varghese meets Israeli Ambassador, HE Yuval Rotem, and seeks detailed information about the case. Israel releases part of a judicial inquiry into the cause of Mr Zygiers death, which was handed down on 19 December 2012. The Israeli Prime Ministers Office releases a statement noting that Mr Zygier had no contact with the Australian security agencies. 20 February 2013 DFAT Secretary Peter Varghese meets Israeli Ambassador, HE Mr Yuval Rotem, for an update on Israels response to DFATs request for information. The Attorney-General makes a statement noting the Israeli Prime Minister had issued a statement saying that Mr Zygier had had no contact with Australian security agencies. 21 February 2013 DFAT Secretary Peter Varghese meets Israeli Ambassador, HE Mr Yuval Rotem, for a further update.

14 February 2013 15 February 2013

19 February 2013

20