What help can Australians hope for if arrested overseas?

Traveller's hotel room Source: AAP

The Department of Foreign Affairs and Trade says there have been an increasing number of calls to Australian embassy staff to help Australians arrested overseas. Figures in the department's annual report also serve as a reminder to Australians traveling overseas that, if arrested, the Australian government is not obliged to offer legal support.  Andrea Nierhoff reports.  

It may have simply been an act of youthful exuberance by a group of Formula One fans in Malaysia.

But when nine Australians were arrested there recently after stripping off their clothes in public, the Australian government had no obligation to help.

They were fortunate to escape conviction and return to Australia shortly after the incident -- but others have not been so lucky.

In its annual Consular State of Play report, the department notes the number of cases of Australians arrested overseas has risen to 1,551 in 2015-16, up 23 per cent in a year.

Foreign Minister Julie Bishop says Australians need to know there is a limit to what the Australian government can do to help Australians in legal trouble overseas.

"Our consular officials cannot just whisk you out of jail. People have to take responsibility for their behaviours overseas. And we're particularly concerned that people have an understanding of local laws, local customs, and that, once you are subject to the legal system or the judicial processes of another country, then there is a significant constraint on the Australian government in providing assistance."

Foreign Affairs recently gained access to three Australian employees of Crown Resorts detained in China this month, but there is little they can do or say about them.

Their case highlights the precarious situation faced by any Australian arrested or detained overseas.

In the 2015-16 period, close to 300 Australians were arrested in the United States, many for visa violations, and increases were also noted for Thailand and the United Arab Emirates.

Australians are most commonly arrested for drugs, fraud and assault-related offences, as well as growing numbers for theft, including at major international airports.

University of Sydney international law professor Tim Stephens says the situation can be even more complex for Australians with dual nationality.

"As a matter of international law, Australia is under no obligation to assist its nationals overseas, and, where the national is a national of another country, so a dual national, Australia could, if it wished, simply leave that person to be protected by their other state of nationality. But in practice, the Australian government does the best it can to protect its nationals, including dual nationals, when they arrested overseas. But the government faces acute difficulties in doing so, primarily because of resource constraints."

Australia's Smart Traveller website says, under international law, countries are not obliged to recognise dual nationality.

A country also has the right to refuse Australian consular officials access to an Australian citizen who, according to its own laws, it considers and treats as its own citizen.

And if a person is a dual national not travelling on an Australian passport, the amount of help that person can receive may also be further limited.

Foreign Affairs' annual report also shows an increase of 5 per cent in the number of Australians in prisons overseas.

In the United States, Australians are in prison on a wide range of offences.

In China, fraud is the main charge.

In South-East Asia, drug-related offences dominate.

Professor Stephens says many of those in prison overseas have to rely on their own networks for support.

"There have been lots of examples where individuals who found themselves in difficulty have really needed to rely very heavily on family and business and other connections in order to sustain them through the process of challenging criminal proceedings in foreign jurisdictions."

In some countries, there was also a spike in arrests for alcohol-related offences, a reminder to Australians to be aware of local laws and customs before going overseas.

Dr Ross Tapsell is a lecturer in Asian Studies at the Australian National University.

He says many Australians continue to travel extensively in South-East Asia but many are not aware of how strict laws are in the region, especially when it comes to drugs.

He says that includes drugs for personal use.

"We've seen in South-East Asia, in particular, governments being far more strict and, in fact, quite extreme laws being introduced around drugs -- particularly the Philippines, particularly Indonesia, where politicians are riding populist waves against drug-taking in the region and drug addiction. So now is not a good time to be taking drugs in South-East Asia, in particular, because of this anti-drug push in populist politics occurring at the moment."

While the Australian government does not guarantee assistance, it does try to provide basic consular services for Australians in legal trouble.

Those services can include a list of English-speaking lawyers, information to family and friends and monitoring of court trials.

And, where appropriate, they can include access to the International Transfer of Prisoners Scheme in countries with agreements.

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