find the latest legal job
Corporate Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Highly-respected, innovative and entrepreneurial Not-for-Profit · Competency based Board
View details
Chief Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Dynamic, high growth organisation · ASX listed market leader
View details
In-house Projects Lawyer | Renewables / Solar | 2-5 Years PQE
Category: Generalists - In House | Location: All Australia
· Help design the future · NASDAQ Listed
View details
Corporate Lawyer (3-5 years PQE)
Category: Corporate and Commercial Law | Location: Sydney CBD, Inner West & Eastern Suburbs Sydney NSW
· National firm acting for domestic and multinational clients
View details
Lawyer – CTP Insurance (2-3 years)
Category: Insurance and Superannuation Law | Location: Sydney CBD, Inner West & Eastern Suburbs Sydney NSW
· Well-regarded team offering mentoring and career development
View details
No refuge in Australian law for bad behaviour abroad

No refuge in Australian law for bad behaviour abroad

Too many Australians holidaying overseas seem to think they will be protected by Australian law if they are arrested for misbehaviour, writes Michael Bosscher A recent spate of incidents…

Too many Australians holidaying overseas seem to think they will be protected by Australian law if they are arrested for misbehaviour, writes Michael Bosscher

A recent spate of incidents involving Australians arrested abroad should be a wake-up call to travellers that when they fly overseas they leave behind their rights under Australian law.

Media publicity detailing the experiences of Melbourne mother Annice Smoel, arrested by Thai police and accused of stealing a $60 barmat from the Aussie Bar in Phuket, has focused new attention on the behaviour of Australians abroad.

With experts saying more than 1000 Australians are likely to be arrested overseas this year, it is important for travellers to realise that, legally, they are effectively on their own if they misbehave abroad.

All travellers, and especially young people, need to appreciate that the Australian legal system cannot protect them once they leave home.

While an Australian facing trial in another country is entitled to access to an Australian embassy or consulate's services, they cannot expect to be whisked home to face the courts under the Australian legal system.

They are on their own, facing the justice system of the country in which they are arrested.

Australians love their travel. At any given time there are about a million Australians overseas in countries that each have their own legal system and range of offences.

Too often, travellers expect the local Australian embassy to get them out of trouble.

Recent government statistics showed that in 2008-2009, 970 Australians were arrested abroad. Of them, 507 are serving time in foreign prisons and there have already been 790 arrests so far this year, with the figure expected to pass 1000.

Australians abroad have no special privileges. An Australian charged with a crime overseas can't just call their Australian lawyer to fly out and defend them, unless the lawyer also happens to be formally recognised and admitted to practice in that foreign jurisdiction.

An Australian defence lawyer can play a role in acting as a liaison between the defendant's family and government agencies in Australia, as well as seeking witnesses or evidence within Australia. This could be important in ensuring a matter is properly heard by foreign courts.

While an Australian lawyer may be a fish out of water in a foreign legal system, the local lawyer has the huge benefit of knowing Australian law and how to find crucial information to help a client abroad.

I believe more needs to be done to make young travellers understand that if they are charged with an offence in other countries, the case is heard under that country's laws in that country and not Australian law back in Australia.

Given the ease of international travel, and its popularity among young people, the perils of foreign travel should be part of the high school curriculum now.

In the Annice Smoel case, friends of the Melbourne woman who reportedly admitted to placing the barmat in her handbag as a practical joke are graphic examples of Australians who need a reality check when abroad.

Look where this stunt led: she was arrested and had an unpleasant time in a Thai jail cell facing a charge that could have resulted in a serious prison term. An unthinking practical joke could have had disastrous consequences because these people had no idea of what can happen if a person is arrested in Thailand.

Travellers need to come up to speed on local laws in other countries which might affect them. In Thailand for example, insulting the monarchy, including defacing bank notes, can mean 15 years in jail.

Nobody knows this better than Melbourne man Harry Nicolaides, who worked in Thailand as a university lecturer and freelance writer, and was arrested at Bangkok airport in August 2008. The arrest warrant alleged that Nicolaides had insulted the Thai royal family in his novel, Verisimilitude, which he had self-published in Thailand in 2005.

He was tried and sentenced to three years' imprisonment but spent less than six months in prison until February this year before receiving a Royal pardon and fleeing home to Australia.

One of the awareness issues surrounding people such as Nicolaides and Annice Smoel is the media's short-term attention span.

Both Nicolaides and Smoel were front page news in their day but the news media quickly moved on when they were released. Within days both had been forgotten - out of the public's mind. And because of this, other travellers do not necessarily have warning bells going off when they travel abroad.

Ongoing publicity about the penalties for drug carrying is the exception. Schapelle Corby's imprisonment in Bali is an ongoing media favourite, as is the lingering fate of the Bali Nine.

But who today remembers the tragic event in the 1980s when Australians Kevin Barlow and Brian Chambers were executed by the Malaysian Government, for possessing less than 150 grams of heroin?

Did Australian travellers learn any long-term lessons from the tragedy of Barlow and Chambers? Perhaps. Nobody can feign ignorance of the penalties for carrying drugs.

Thorough reporting of the experiences of Australians facing drug charges abroad has brought the issue of these travel dangers into the public consciousness. But while we all hope this message might be getting through, it seems to be a different story about general misbehaviour offences.

There needs to be more done to educate travellers that the legal rights they enjoy under Australian law don't apply overseas. It's a simple message but - oddly - quite a few travellers just don't get it.

Australian lawyers can act here to assist a traveller arrested abroad, but we cannot send in the SAS to rescue tourists. We cannot subvert another country's criminal justice system. We cannot demand that the person be tried under our justice system.

Education and awareness are the best things we can do - to remind travellers of the legal reality that our Australian legal system offers no protections for misbehaviour overseas.

Michael Bosscher is managing partner of national criminal defence law firm, Ryan and Bosscher Lawyers

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

No refuge in Australian law for bad behaviour abroad
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Warning
Aug 23 2017
NT Law Society sounds alarm on mandatory sentencing
The Law Society Northern Territory has issued a warning over mandatory sentencing, saying it hasn’...
Unite
Aug 22 2017
Professionals unite in support of marriage equality
The presidents of representative bodies for solicitors, barristers and doctors in NSW have come toge...
Aug 21 2017
Is your firm on the right track for gig economy gains?
Promoted by Crowd & Co. The way we do business, where we work, how we engage with workers, ev...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...