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Are all Australians arrested overseas eligible to receive consular assistance?
Generally, yes. Under the Vienna Convention on Consular Relations, which is the generally accepted standard for all countries, a person who has been arrested, detained or jailed outside their own country is entitled to request access to their consular representative. However, not all countries are party to the Convention, or have ratified or incorporated all the provisions.
Any Australian who is arrested, detained or jailed overseas should, if they require assistance, ask to be put in touch with the local Australian Embassy, Consulate or High Commission.
If you are a dual national arrested, detained or jailed in the country of your other nationality, the assistance which Australian consular representatives can give you may be limited. Check our travel information for dual nationals (link) brochure for further information.
What level of consular assistance can an Australian arrested overseas expect?
In providing consular assistance to Australians detained overseas, consular officers will try to ensure that, to the extent possible, that the detainee:
Assistance may include visiting the detainee regularly in prison, providing general information about the country's legal system and local prison system, offering a list of English speaking local lawyers, helping detainees contact their family, providing information on financial assistance, and monitoring legal processes to determine if the detainee is receiving fair treatment under local law.
Can an Australian consular officer recommend lawyers or provide legal advice?
No. While consular officials can provide the detainee with a list of lawyers and general information about the legal system of the country they are being detained in, consular staff are not lawyers and cannot provide legal advice or make recommendations as to which lawyer a person should choose. T his long-standing practice is consistent with the approach taken by Australia's consular partners, including the United States and United Kingdom.
The role of Australian consular officers is to ensure that Australians have sufficient information to organise their own legal representation.
Will the Australian Government cover legal costs overseas?
The Australian Government as a general rule does not pay the legal fees of Australians arrested, detained or jailed overseas. A consular officer can however make arrangements for arrested, detained or jailed Australians to receive funds from their family or friends to pay for lawyers.
Australians who can't afford their own defence may apply to the Commonwealth Attorney-General's Department under the Special Circumstances (Overseas) Scheme for financial assistance to cover overseas legal costs and related expenses. Assistance under this Scheme is provided only in the most exceptional circumstances, usually where the applicant is facing a lengthy period of imprisonment or the death penalty.
In the absence of special circumstances, a lack of financial means to pay for legal fees is not sufficient in itself to justify the provision of financial assistance. The availability of legal assistance in the overseas jurisdiction will usually mean that an applicant is not eligible to receive financial assistance under the Scheme. The Scheme is not intended to be used to enable the applicant to hire a private lawyer in place of an overseas court-appointed lawyer or public defender. As one of the Scheme's criteria is the extent of the applicant's connection with Australia, financial assistance usually is not available under the Scheme for Australians who have left Australia and settled overseas.
Applicants for financial assistance for legal fees need to complete the form entitled ‘Application for assistance by the Commonwealth for legal and related expenses for schemes administered by the Attorney-General' and return it to the Attorney-General's Department for consideration. The form is available from Australian consular officers or by c ontacting the Legal Assistance Branch of the Attorney-General's Department.
Further information on the Scheme is available from the Attorney-General's Department phone: 02 6250 6770 (within Australia) or 61 2 6250 6770 (outside of Australia).
Does the Australian Government provide an allowance to Australians in jail overseas?
No. However, in many countries prisoners are able, with the cooperation of prison authorities, to operate commercial bank accounts to receive funds from family and friends.
In some instances a consular officer may be able to arrange a loan from the Australian Government under the Australian Government's Prisoner Loan Scheme. However, a loan can only be arranged if a detainee or prisoner is destitute and :
Loans under the Prisoner Loan Scheme can not be obtained to cover legal costs or bail. Loans under the Prisoner Loan Scheme must be repaid after the detainee is released from prison.
How much assistance can a detainee's family expect to receive?
Consular officers can often be a key link between Australians detained overseas and their families back home. Under the Privacy Act 1988, however, in most cases consular officers can only pass on information to a detainee's family with the explicit consent of the detainee. This means that, unless permission is granted by the detainee, a consular officer will not even be able to confirm that an individual is in prison.
A detainee is typically asked to select one family member, or friend if they wish, to whom they would like the consular officer to provide information about their case and well-being. It is then up to that person to update other family members and friends. In some instances the detainee will be able to speak to their family directly and it will not be necessary for information to be passed via a consular officer.
Do consular officers treat Australians who are found to be guilty differently?
No. Consular officers do not judge the guilt or innocence of Australian detainees and the outcome of a court case does not determine the treatment a consular client receives.
A consular officer's focus is on ensuring the trial is conducted fairly and in accordance with local law, and that the detainee's basic needs are being met in prison.
Will the Australian Government intervene in foreign legal proceedings?
No. The Government cannot intervene in another country's legal system or seek to impose Australian standards on the judicial process of that country. Australians would not tolerate foreign government intervention in our legal processes, and we cannot expect a different standard to apply in other countries.
Will the Australian Government make representations on behalf of prisoners?
Where the Australian Government is asked to make a representation on behalf of an Australian prisoner, this would normally need to be based on well-founded concerns about the fairness of the application of the legal process to the prisoner's case. The Government would need to be able to argue that the Australian prisoner was being accorded inferior treatment to that which would be given to a local prisoner. The advice of local lawyers about the timing and nature of such representations would be an important consideration as their familiarity with the local legal system enables them to judge whether such representations would be effective. Any such representations would be made only after consultation with the prisoner, after the prisoner has discussed the issue with his or her local lawyer.
Examples where the Government may consider making representations to the relevant authorities on behalf of detainees could include where the prisoner alleges mistreatment or discrimination, when there are lengthy delays in the trial or bringing the case to court, when prisoners are not being provided with appropriate medical care or, where the prisoner's welfare is judged to be at risk. The Australian Government may also consider make formal representations to the other Government in support of applications for pardon or clemency and, in cases where the prisoner is facing a death sentence, for commuting the sentence to a prison term.
Engagement by the Australian Government demonstrates that the Government is closely monitoring the case, expects procedural fairness to be applied and can add weight to the defendant's case at each stage of the judicial process. However there are no guarantees that such representations will obtain the desired outcome.
Can the Australian Government arrange for an Australian to be released from jail?
Consular officers cannot get Australians out of jail, or provide the arresting authorities with any written guarantees to secure an Australian's release from prison.
The Australian Government may, however, initiate or support an application for a pardon lodged on behalf of Australian prisoners in overseas jails. This is only where local law and practice allow and where the prisoner has served a sentence approximately equivalent to the sentence that would have been served had the offence been committed in Australia, less one year. The purpose behind the one year reduction is to provide a reasonable amount of time for local authorities to process the pardon application.
The granting of a pardon is entirely a matter for the authorities of the country in which the person has been imprisoned.
Can the Australian Government arrange for an Australian sentenced overseas to serve their sentence in Australia?
Australia has International Transfer of Prisoner Agreements in place with a number of countries.
Subject to eligibility requirements, the scheme is available to Australians held in Thailand and Hong Kong, through a bilateral agreement, or in one of the 60 countries which are parties to the Council of Europe Convention on the Transfer of Sentenced Persons. A list of countries is available from the Attorney-General's website.
To enable a prisoner in one of these countries to be transferred to Australia:
Australians can only be transferred from countries where an agreement is in place. The ITP scheme is not automatic and the application process, even in countries with which Australian has an existing agreement, can be lengthy.
Further information on the ITP scheme is available from the Attorney-General's Department
What is the Australian Government doing to ensure Australian travellers are aware of the difficulties they may encounter overseas?
The Australian Government aims to encourage travel which is both safe and responsible. Accordingly, the Department maintains travel advice for most countries that are popular destinations for Australians in all regions of the world. The Department does not issue travel bans and does not and cannot make decisions about whether, when or where Australians should travel.
Every DFAT travel advice reminds Australians that consular assistance cannot override local law, even where local laws may appear harsh or unjust by Australian standards. They also highlight that local laws and legal processes can be very different from those in Australia and that a violation of local laws may result in a jail sentence, served in a local prison.
The Department of Foreign Affairs and Trade also prepares a range of consular publications which contain numerous travel tips for Australian travellers.