A former diplomat says the Prisoner X case highlights government limitations when giving consular assistance to Australians with dual citizenship.

Ben Zygier is believed to have worked for Israel's spy agency Mossad before being arrested and jailed in a top secret Israeli prison in February 2010.

The dual Australian-Israeli national died in his supposedly suicide-proof jail cell in December 2010.

He did not request or receive Australian consular assistance after being arrested, and Australia's ambassador in Tel Aviv was not told about the case.

Foreign Affairs officials in Canberra learned of Zygier's arrest via Australian intelligence officers in Israel, and then relied on the assurances of Israeli authorities that he was being treated within his rights as an Israeli citizen.

Foreign Minister Bob Carr has described that as a failing, and former Australian diplomat Ross Burns agrees.

But he doubts consular assistance would have helped Zygier in any case.

"Australians have high expectations of what can be achieved on behalf of dual nationals in situations that emerge in foreign countries," he told The World Today.

"The reality in international law is that we don't have automatic right of access to people if they enjoy the nationality of the host of the other country.

"I think it suited politicians to give this picture of our consular role being virtually all powerful and overriding another nationality, which it can't be.

"It's never all powerful because, as Senator Carr's often pointed out, you're dealing with the jurisdiction of another country in any event, but if the person entered that country with that country's passport, then really our role is only a matter of grace and favour if the local officials feel like doing much about it."

'Snowstorm of paper'

DFAT has reviewed the handling of the Zygier case but questions still remain about who knew what and when.

The prime minister at the time of Zygier's arrest was Kevin Rudd, while the foreign minister was Stephen Smith.

Both say they have no recollection of being briefed about the case even though senior advisers in their offices were.

Then-attorney-general Robert McClelland has revealed he was briefed, and the Opposition says it defies belief that Mr Smith was not.

But Dr Burns thinks it is understandable.

"You have to appreciate that there's a snowstorm of paper going up every day to ministers' offices," he said.

"It's up to the various levels of advisers and chief of staff to sort out what should go any further.

"But, because more and more issues have become political and ... politicians since the '90s have demanded an upfront media role, for example, on media issues, ever more paper is going up, drawing attention to the things and in the process I'm not surprised if things get overlooked.

"I mean, it's just a huge volume of material which it's difficult to prioritise."

 

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