Its better to familiarise yourself with the local laws and obey them, but what should you do as an Australian arrested overseas? We find out.
As an Australian, you probably have certain expectations and ideas about which behaviors are accepted by society, and which ones aren’t. The unacceptable behaviors are generally classed as crimes and, as we know, carry punishments ranging in severity.
Yet what is considered a crime in our society, may not be one in another country, and vice versa. The brutal case of Otto Warmiber, a US citizen who was arrested and sentenced to 15 years of hard labour in North Korea for attempting to steal a propaganda poster, shocked many in the West. When travelling outside of Australia, it’s essential to familiarize yourself with the general legal situation at your destination, and in particular any laws that may apply specifically to your situation.
Around 1000 Australians are arrested overseas each year, and at any time more than 250 Australians are being held in prison overseas. Many countries have laws which differ from those in Australia, and you are subject to the local laws even if they are unfamiliar to you. Crimes may also carry penalties harsher than those you would expect to receive back home, with corporal punishment (such as gay relationships in parts of Indonesia), hard labour, and the death penalty (eg. drug trafficking in parts of Asia) still enforced in various parts of the world. The legal process and standards may vary from those in Australia and you may be detained for long periods during a long administrative procedure, leading up to your trial or sentencing.
When you leave Australia, you no longer have access to the resources and legal support offered in Australia. As an Australian arrested overseas you can expect some assistance from Australian consular staff, however the Australian government has limited power abroad and cannot free you from jail. Use the following information as a guide for what you should do and can expect as an Australian arrested overseas.
Sequence of actions an Australian arrested overseas should take
Being arrested overseas can be a confusing and frightening experience, but it’s important not to lose your head and behave rashly, or you could end up making the situation worse. Stay calm and follow this procedure to ensure your greatest chance of a favorable outcome:
- Contact your nearest Australian consulate, embassy or high commission. You have the right to contact the Australian government; if you don’t know the contact details for your closest representative, then check gov.au/missions for the address and telephone number or call the Consular Emergency Centre on +61 2 6261 3305.
- Once in contact with the Australian government, you will be assigned a consular officer who is able to advise you on obtaining legal representation, contacting your family and accessing money. Be truthful with your consular assistant and don’t lie about your situation. Consular staff are there to ensure that your rights are being met and are not concerned with your guilt or innocence. Frequency of contact with your consular officer depends on your location, the severity of your crime and available resources.
- Ask your consular officer any questions you have. If possible, ask them to contact your friends or family, as this can be a valuable source of support. They will only contact your family if given your permission.
- Seek legal advice. Your consular officer will be able to give you the information of English speaking lawyers in the area. If necessary, you can also hire an interpreter.
What the Australian government can do to help you when arrested overseas
The Australian government will assist you as much as possible, but overseas staff are also subject to the laws and bureaucracy of the local country. The Australian government can:
- Visit you while you are being held in detention
- Assist you in getting information on visitor procedures, access to telephones money
- Provide you with contact details for local English-speaking lawyers
- Given your consent, they can arrange for your family or friends to be contacted and informed your circumstances
- Provide family and friends with information on how to assist you financially
- Discuss serious, justified complaints about ill-treatment by the local authorities
- Bring medical or dental issues to the attention of local authorities, if your own efforts to do so have been unsuccessful
- Arrange a small loan from the Australia government under the Prisoner Loan Scheme, if you meet the eligibility criteria
- Keep track of your court trials
- Give you information on the International Transfer of Prisoners Scheme, if applicable
What the Australian government can’t do
As an Australian arrested overseas, there is much the Australian government can do to assist you, but you need to approach them with realistic expectations, because they will not necessarily be able to help you out of your legal difficulties. The Australian government can’t:
- Get you out of jail or secure your release. They can’t provide written guarantees to the local authorities to get you released
- Acquire a pardon for you
- Determine your innocence or guilt
- Investigate the alleged crime
- Provide you with legal advice or interpreters
- Instigate court procedures or intervene in the local judicial processes
- Arrange your bail or pay your fines
- Pay your legal fees
- Seek better treatment for you than is given by the country to the local citizens or other nationals
Getting legal advice
While the Australian government can’t give you legal advice, your consular officer will give you a list of suitable lawyers in the area. Your consular officer is not a lawyer and is not qualified to give legal advice or appear in court on your behalf. You will need to choose your own lawyer and communicate with them about your case.
Getting family assistance
If you authorize it, your consular officer will contact your family for you and inform them of your situation. They may be able to arrange for you to have direct contact with your family, but if you need to rely on your consular officer to act as a liaison between you and your family, you should nominate one family member to act as the primary point of contact, to avoid confusion. That person can then communicate with the rest of the family. You may also wish to allow your lawyer to cooperate directly with your family.
Your family may wish to assist you financially; in that case, your consular officer can help you to open a local bank account for the deposit of funds, or if necessary, give your family the contact details of the prison in which you’re held.
Your ability to contact your family directly through letters or phone calls will depend largely on the local regulations and prison rules on such matters.
Travel insurance: does it cover your legal expenses?
Travel insurance won’t usually help with legal expenses acquired in a criminal trial, as policies generally have exclusions for illegal activities, or even arrest and detainment by local authorities. Even if you are cleared of charges, don’t expect an insurance payout.
You can, however, get personal liability travel insurance, which can cover you in civil (as opposed to criminal) cases. If you accidently injure somebody or damage the property of a third party, liability insurance can help to pay the legal fees from resulting lawsuits. Just be sure to consult your insurer before seeking legal advice, as you may need to use an approved lawyer.
Obviously it’s never wise to commit a crime, especially in an overseas country. Travel is often a carefree time and understandably seen as a chance to “let one’s hair down,” but it’s always better to err on the said of caution and think before you act. Crimes committed overseas can have serious consequences for you and your family, which may exceed anything you would face in Australia. Never go abroad with the intention of committing a crime and do familiarize yourself with the basic rules and legal culture in your destination before you travel.
For more information on your rights and entitlements when arrested overseas, consult the Smart Traveller brochure, issued by the government.