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If you are arrested or jailed oveseas How Australian consular officers can and cannot help you if you are arrested or jailed overseas
If you are one of the 750 Australians arrested overseas each year, understanding unfamiliar legal systems and procedures can be distressing and frightening.
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 have access to their consular representative. However, not all countries are party to the Vienna Convention or have ratified and incorporate all the provisions and if they deny consular access you may not be able to see a consular officer.
Australian consular officers from the Department of Foreign Affairs and Trade seek to provide consular assistance to all Australian citizens, including dual nationals. If you are arrested, detained or jailed overseas you should immediately ask to be put in touch with the local Australian Embassy, Consulate or High Commission.
While consular officers will always try to assist an Australian to the greatest extent possible, under international law countries are not obliged to recognise dual nationality. If you are a dual national and arrested in a country that does not recognise dual nationality, the extent to which consular officers will be able to help you will typically be determined by the country you are in at the time of your arrest or detention.
A consular officer can:
A consular officer cannot:
You can find more detailed inf ormation on how consular officers can and cannot help y ou in this brochure.
You should be aware that under the Australian Passports Act 2005, your Australian passport (or other Australian travel document) may be cancelled by the Minister of Foreign Affairs if you are the subject of an arrest warrant issued in a foreign country in respect of a serious foreign offence, or if you are a person prevented by a law or court order of a foreign country from travelling internationally (including imprisonment) in connection with a serious foreign offence. A further Australian passport will not be issued to you pending the outcome of all legal proceedings in the foreign country in relation to the serious offence(s). The cancellation or refusal of your Australian passport in these circumstances, however, does not affect your status as an Australian citizen or your rights to Australian consular assistance as explained in this brochure.
If you are arrested, detained or jailed overseas and request consular assistance, an Australian consular officer will attempt to visit you as soon as possible after notification of your arrest and if permission is granted by the local authorities.
Australian consular officers will not make assumptions about your guilt or innocence. Their primary interest is your welfare. In visiting you and providing consular assistance to you as a detainee, consular officers will aim to ensure, to the extent possible, that you:
Consular officers may be able to assist you in obtaining, from relevant authorities, information about the arrangements at the prison such as visiting, phone and mail regulations, censorship, privileges and social and welfare services - including the possibility of working in the prison.
Consular officers will attempt to have contact with you throughout your arrest and your jail term if you are sentenced. The frequency of their contact will depend on factors such as the length of sentence, the location of the prison and the consular officer being able to obtain the necessary approvals from the local authorities.
You may like to request that meetings with your consular officer are held in private, out of the hearing of police or prison officials, but be aware that this request may not always be granted by the prison authorities.
With regard to legal assistance,the role of Australian consular officers is to ensure that Australians arrested, detained or jailed overseas have sufficient information to organise their own legal representation.
While consular officers can provide you with a list of local English-speaking lawyers, consular officers are not lawyers and cannot provide legal advice or make recommendations as to which lawyer you should choose - the choice of lawyer rests with you. A consular officer may attend your trial as an observer.
In consultation with your legal representative consular officers can also provide general information about the legal system of the country you are being held in. The information may include details on legal aid (if available) and prosecution, remand, bail and appeal procedures, to help you understand what is happening and be aware of your rights.
Local laws and legal processes overseas can be very different to those in Australia and harsher penalties may apply.
As a general rule the Australian Government does not pay the legal fees of Australians arrested or detained overseas. A consular officer can however make arrangements for arrested or detained Australians to receive funds from their family or friends to pay for lawyers or items you may need. You should be aware that you are not entitled to receive Medicare benefits if you are overseas, irrespective of whether you are in jail.
If you cannot afford your own defence and a public defender is not provided by the host Government, you 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 if you are facing a lengthy period of imprisonment or the death penalty.
In the absence of special circumstances that fit within the scope of the Scheme, 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 you will not be eligible to receive financial assistance under the Scheme. The Scheme is not intended to be used to enable you 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 to settle overseas.
If you wish to apply for financial assistance for legal fees you will need to complete the form entitled "Application for assistance by the Commonwealth for legal and related expenses for schemes administered by the Attorney-General's Department website.
Further information on the Scheme is also available from the Attorney-General's Department phone: 02 6250 6770 (within Australia) or 61 2 6250 6770 (outside Australia).
In many countries Australian prisoners are able, with the cooperation of prison authorities, to operate commercial bank accounts to receive funds from family and friends. If this is possible, your consular officer should be able to assist you with setting up the account or making other arrangements so that money provided by your family or friends reaches you.
In some instances a consular officer may be able to arrange a loan for you from the Australian Government under the Australian Government's Prisoner Loan Scheme. However, a loan will only be arranged if:
A loan cannot be obtained to cover legal costs or bail.
Loans granted under the Prisoner Loan Scheme must be repaid after you are released from prison.
If you are able to make contact with your family directly while under arrest or in prison, we encourage you to keep them informed of your health and welfare needs. We also recommend that you allow your family to liaise with your appointed legal representative directly in order to obtain information on your case.
If you are not able to make contact with your family, consular officers may be able to assist. Consular officers can often be a key link between you and your family and friends back home. Under the Privacy Act 1988, however, consular officers can only pass on information to your family if you provide your express permission. If you do not want your family to be notified, your request will be respected and the consular officer will withhold information from your family and friends.
When deciding whether information should be passed on to your family you should consider the distress and uncertainty you may cause your family by not providing consent. Unless you grant permission, the consular officer will not even be able to confirm that you are in prison unless your situation has received media attention and your family has contacted the Department of Foreign Affairs and Trade. Therefore, you should consider the possible disadvantages of not advising your family that you are in prison.
Detainees relying on consular officers to pass on information should nominate one family member or friend to whom they would like the consular officer to provide information about their case and well-being. It will then be up to that person to update other family members and friends.
To facilitate provision of consular services under the Vienna Convention on Consular Relations, the Department of Foreign Affairs and Trade collects information regarding arrest or detention of Australian citizens.
The Department of Foreign Affairs and Trade, subject to the restrictions of the Privacy Act 1988, may give some or all of the information collected on issues relating to law enforcement to Australian law enforcement agencies.
Australian consular officers aim to ensure Australians arrested overseas are treated no less favourably than local citizens detained for similar offences, are subject to humanitarian standards of prisoner welfare and their basic needs are met.
With your permission, consular officers, in consultation with your legal representative, can take up any justified and serious complaints about ill-treatment or discrimination with the local authorities. They can also ensure that any medical or dental problem is brought to the attention of the prison doctor/dentist.
You should be aware that the Australian Government can generally only make representations to local authorities if:
The Australian Government may also consider making formal representations to the other Government in support of applications for pardon or clemency and, if a prisoner is facing a death sentence, for commuting that sentence to a prison term.
While engagement by the Australian Government demonstrates the Government is closely monitoring the case, expects procedural fairness to be applied and can add weight to your case at each stage of the judicial process, there are no guarantees that such representations will obtain the desired outcome.
Australia seeks to extend to all its citizens, including dual nationals, the full range of consular assistance. However, under international law, countries are not obliged to recognise dual nationality.
A country may not permit Australian consular assistance to be given to Australian citizens who, according to its own laws, it considers and treats as its own nationals. Or, a person might not be regarded as being an Australian if that person was not travelling on their Australian passport, which may also limit the Australian Government's ability to provide consular assistance.
While consular officers will always try to assist to the greatest extent possible, under such circumstances the extent to which we are able to help you will typically be determined by the host government.
If you are arrested or detained in a country of which you are a dual national and that country does not recognise dual nationality, you should ask for access to consular officials from the nearest Australian Embassy, High Commission or Consulate and press the local authorities for such access to the extent possible.
If you receive a lengthy prison sentence overseas and all appeal avenues have been exhausted, you may wish to ask your consular officer whether there is any possibility your sentence could be reduced or served, in part, within Australia. While there are no guarantees on the outcome, consular officers will assist you to the extent they are able.
Australia has International Transfer of Prisoner Agreements with a number of countries which can, under certain circumstances, enable Australian prisoners to serve out their sentence in an Australian jail. A transfer can ensure that your rehabilitation is not affected by language and cultural barriers, or by separation from family and friends. It is also designed to relieve the burden on family members who have relatives imprisoned overseas.
To be eligible to transfer back to Australia:
Your consular officer will be able:
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, if asked, 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. Ask your consular officer for more details.
There are often a number of things that you can do to help yourself while in jail overseas. Even though it is likely to be extremely difficult, you should try to adapt to the conditions around you as quickly as possible and try to find activities you can do. Prison conditions and management varies from prison to prison, so you will need to ask your prison about its rules.
You may wish to ask the prison authorities for advice on:
If you have difficulties communicating with the prison, or arranging activities such as study, you should advise your consular officer.
If you have a health problem you should inform the prison authorities and ask to see the prison doctor. If you are worried about your health, for example if you are HIV-positive, or think you may be HIV-positive, you should discuss this with the prison doctor and your consular officer.
On return to Australia, Department of Foreign Affairs and Trade consular officers can provide you with the contact names and numbers of prison support organisations in your state or territory. These organisations can assist you to re-establish your life in Australia.
If you have concerns about a family member arrested or detained overseas or would like an update on their situation, you should contact the Department's Consular Operations Branch in Canberra. You should not contact the Australian Embassy, Consulate or High Commission directly.
Consular Operations
Branch
Department of Foreign Affairs and Trade
R G Casey
BuildingBarton ACT 0221
Ph: 02 6261 3305
or 1300 555 135
(24 hour number, cost of a local call).
Bear in mind that while the Department's staff are there to help you and you can contact them at anytime, our primary client is the person who has been detained. If they do not wish us to convey information to you, we cannot go against their wishes. If the Department cannot assist with your requests, its officers will explain why this is so.
If you would like to visit your family member in jail overseas, you should contact the Consular Operations Branch for information on visiting arrangements before leaving Australia. Prison visiting arrangements vary from country to country and we recommend you make arrangements before you depart.
Consular officers can also advise what can be sent or taken to prisoners overseas and provide you with the full postal address of the prison and its telephone numbers, details of the prisoner's legal representative and information about the authorities responsible for the court proceedings.
Consular officers can be found in Australian diplomatic and consular posts overseas. The Department of Foreign Affairs and Trade's consular network extends to some 160 points of service around the world. These overseas posts are usually located in capital cities but there are also some in regional centres. Sometimes the head of an Australian consulate will be an Honorary Consul.
Not all countries have an Australian diplomatic or consular post but there is usually an Australian post in the region. Under a consular agreement with Canada there are a number of locations where Australians can access consular services through Canadian embassies and high commissions. Informal arrangements also exist with other consular services including those of the United Kingdom and the United States to lend assistance to Australians in need.
Address and telephone numbers of Australian embassies, high commissions and consulates can be found in local telephone directories, hotel, tourist offices or police stations in the country concerned. Contact details are also available from the Department of Foreign Affairs and Trade website.
A directory of Australian overseas posts appears in the 'Contacts' section of each edition of Hints for Australian travellers (pdf). This booklet is issued with your passport. Canadian posts that help Australians are also listed in the Hints booklet.
The 24-hour Consular Emergency Centre (CEC) in Canberra can also be contacted for assistance from anywhere in the world on +61 2 6261 3305 or +61 1300 555 135.
While every care has been taken in preparing this brochure, neither the Australian Government nor its agents or employees, including any member of Australia's diplomatic and consular staff abroad, can accept liability for any injury, loss or damage arising in respect of any statement contained therein.
Consular Policy Branch
Department of Foreign Affairs and
Trade
RG Casey Building
BARTON ACT 0221
Tel: (02) 6261 3305; 1300 555 135
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