Arrest of an American Citizen Abroad
The Commonwealth of Australia is a constitutional monarchy with a competent legal system and stable political structure which functions at both Federal and State/Territory level. Each State and Territory therefore has its own laws and administrative procedures for addressing criminal activity.
Anyone who commits a crime in Australia, including a U.S. citizen, is subject to prosecution under the Australian legal system. A U.S. passport does not entitle its bearer to any special privileges, and there should be no expectation of preferential treatment.
The following information provides an insight into the criminal legal system for arrestees.
The Consulate's Role
If a U.S. citizen is arrested, the U.S. Consular Officials should be notified immediately. This may be done by the police at the time of arrest, or at a later stage should the arrestee request it.
The U.S. Embassy and Consulate will do what it can to protect U.S. citizens and their interests, and ensure they are not discriminated against under local law.
Please note that Consular Officers cannot release prisoners, provide funds for bail, provide legal advice or pay legal fees for you. For assistance with legal advice, a list of lawyers is available.
Information regarding a U.S. citizen’s welfare or whereabouts may only be released with their consent under the Privacy Act of 1974. The Embassy/Consulate will only notify family and friends of an arrest after receiving permission from the arrested person.
What the Consulates Can Do
Consular Officers regularly visit U.S. citizens detained in Australia, and make efforts to visit arrestees promptly after being notified of an arrest. During the visits, Consular officials inquire as to the health of the arrestee, the treatment provided by the Australian authorities, and consider any additional requests for assistance.
U.S. Embassies and Consulates can assist family and friends in the U.S. to send money to U.S. citizens incarcerated in Australian correctional facilities. Please refer to the Department of State’s instructions for further information.
For more information on the Consulate’s role, please see the Department of State website.
There are two primary types of legal representation in Australia — a ‘solicitor’ (attorney) and a ‘barrister’. Most solicitors appear in court for a variety of cases, but if a case is complex or requires specialized knowledge, a solicitor may recommend that a barrister assist in the case.
All criminal defendants in the states of New South Wales (NSW) and Queensland (QLD) who wish to have an attorney but do not have the financial means may have access to an accredited attorney through Legal Aid Commissions. While Legal Aid can also represent defendants who wish to appeal a conviction, they are likely to deny a request for their assistance if they do not believe your appeal has a reasonable chance of success.
For further information regarding legal representation please see:
- The Law Society of New South Wales
- The Queensland Law Society
- Australasian Legal Information Institute
U.S. citizens whose visas expire while awaiting trial or during any prison term may be granted a “bridging visa” by The Department of Immigration and Citizenship (DIAC) to give them lawful status in Australia during this time. DIAC generally takes no action while a criminal case is ongoing or during a prison term, but will do so immediately upon completion of the minimum sentence term.
For those who have permanent residence status in Australia, a criminal conviction will prompt DIAC to automatically review immigration status, and potentially revoke residency and deport people at the completion of their jail term.
Bail and Committal or Summary Hearings
The first court appearance will likely be to consider a bail application. Factors such as the nature of the charge(s) and immigration status affect whether bail is granted. Bail for non-Australian citizens is almost always denied, as noncitizens are considered to be a flight risk. Once the decision of whether or not to grant bail is made, the police are required to inform you of your right to contact a lawyer, or any other person in connection with posting bail. The court structure in both NSW and QLD consists of Local (Magistrate) Courts presided over by a magistrate, District Courts presided over by a judge and jury, and a Supreme Court. For minor offenses, the magistrate in a Local Court can hear cases directly and decide guilt or innocence, with a right of appeal to the District Court.
For more serious charges, the magistrate holds a preliminary hearing (called a ‘committal or summary’ hearing) to determine if sufficient evidence exists to sentence an arrestee or proceed to a trial in the District Court. Prosecutors in Australia generally do not take a case to trial unless they are convinced that there is a solid case against an arrestee.
Trial Proceedings and Sentencing
While each Court has its own practice and procedure rules for hearing legal matters, a trial will typically begin by identifying the defendant and reading the charges against them. The defendant will then be asked to enter a plea. Following this, the arguments and evidence for and against a defendant are put forward by the defense and prosecution for consideration by the court, and then the prosecutor and the defense make closing arguments. The judges will then render their judgment and sentence.
An attorney or legal aid representative can provide more information on sentencing procedures and policy in NSW and QLD, or information can be found by contacting the NSW Sentencing Council.
After conviction a defendant may submit a written request for an appeal. After receiving a request for an appeal, the higher court will set a deadline for the defendant and their lawyer to submit a formal statement noting the basis for the appeal to the appropriate court. At this point, the facts of the case will be reexamined to determine whether or not they support the original verdict. The higher court has the power to reverse a lower court decision, alter the sentence, or return the case to a lower court for a new trial.
Information on Correctional Facilities
Once an arrestee has been sentenced, they are classified according to the offense, sentence, prisoner behavior, and immigration status. Classifications may be reviewed at a later date, and assistance is provided by a prison welfare officer for such reviews.
Once assigned to a prison, it is important to quickly learn as much about the facilities as possible. Most prisons issue handbooks to inmates that provide guidance on regulations, procedures and entitlements. Opportunities may exist to earn money working in a variety of industries. Welfare officers are a good source of advice as to the options available at each prison.
Under some circumstances, Americans may be able to serve all or part of their sentence in the U.S. instead of in an Australian prison as part of the Prisoner Transfer program. Information about this program will be provided to U.S. prisoners on the first consular visit by the Consular Officer.