No refuge in Australian law for bad behaviour abroad

03 March 2012 By Lawyers Weekly

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.

Lawyers Weekly Discover

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

No refuge in Australian law for bad behaviour abroad
Intro image
lawyersweekly logo