The Australian government has a choice as to what help it will provide nationals imprisoned overseas. Such assistance would usually be welcomed. Yet, as the pressure to act increases, international tension may rise and prevent a quick and favourable resolution.
Australians travelling overseas are often in need of help from their government. They lose their passports, need medical help, get caught up in civil unrest or natural disasters, and they are arrested.
What the government can and should do to help is highly contentious. Under international law, detained individuals can demand little more than the right to have their consulate informed of their situation. What steps a government then takes is a matter of discretion.
The varied support Australia has offered to its nationals detained abroad can be readily seen by the cases of David Hicks and Stern Hu.
The government did obtain a range of assurances from the United States as to Mr Hicks's treatment when he was first detained, but, as is well known, it took its time before insisting that steps be taken to secure Mr Hicks's return. For Mr Hu, the former Rio Tinto executive arrested for bribery and stealing commercial secrets in China, Australia sought to ensure a prompt trial but seemingly did not insist on its rights under a bilateral consular treaty to attend that trial.
The help the Bali boy is receiving is exceptional service, and may not ultimately be in his interest. No Australian should forget that when we travel overseas, we are bound by the laws of the country we're in, including any punishment for violating those laws, whether it is the death penalty or a month in rehab.
Australia cannot step in and have those laws changed or demand that they not apply to an Australian citizen. Imagine if Indonesia contacted the Australian government demanding the immediate return of men and boys held on people smuggling charges. It is unlikely Australia would brook such interference.
Each country is entitled to apply its judicial processes to alleged offenders within its jurisdiction. If due process rights or other human rights of an individual are violated, national courts are afforded the opportunity to address those violations.
Australia's Foreign Minister has acknowledged that Indonesian legal process must be followed for the Bali boy. Kevin Rudd has rightly recognised that any help Australia offers falls within the parameters of Indonesian law.
Australia's right to take legal action on behalf of one of its nationals and assert that claim against another country crystallises when the remedies available domestically have been exhausted. This is Australia's right of diplomatic protection under international law. Before then, it is a question of diplomacy and consular assistance.
The arrest and detention of Australians overseas has become sufficiently common that the government has produced an information pack on its Smartraveller website on what services it may offer. They do not include phone calls from the Prime Minister while the ambassador visits your jail cell. Nor do they normally include front-page news stories with statements of support by the Foreign Minister.
Australia has been able to work effectively behind the scenes to help nationals imprisoned abroad. Thursday's Senate estimates committee hearing that exposed how the name of the Bali boy had been revealed by both sides of Parliament cuts against any notion of diplomatic discretion in Australia's dealing with Indonesia over the Bali Boy.
The difficulty now for the boy is that the high level assistance and large media coverage might backfire.
Indonesia has been left in a more difficult position because of the amount of attention this case has generated. The Indonesian government wants to send a message about its fight against drug offenders. If it makes a decision favourable to the boy now, it risks looking like it has succumbed to Australian pressure in the application of its drug laws. It is then doubtful that any lesson is learned from this episode by other Australians holidaying in Bali. These factors are now more acute and don't help the Bali boy.
This conundrum could have been avoided. Quiet diplomacy and less media attention may have done more for the plight of the boy than may presently be the case.
