Part 2: Consular services: welfare of Australians overseas
Chapter 4: Welfare of Australians overseas
4.1 Consular role
The Department aims to give humanitarian assistance to Australian citizens and permanent residents whose welfare is at risk abroad, while respecting their rights to privacy.
Many issues are covered by the concept of welfare. Those more frequently experienced are covered in this handbook as it is not possible to cover all possibilities.
Part 3 provides details on financial assistance for welfare and repatriation cases.
Consular officers seeking guidance on a case that is not specifically dealt with in this handbook should seek advice of more senior consular officers at post, or refer the matter for advice to the desk/case officer in Consular Operations or the Consular Emergency Centre after hours.
4.2 Reporting Casework
Posts are required to report to the Department significant casework that involves Australian citizens and Australian permanent residents in their consular district. While there are no specific guidelines on the term significant, posts are expected to exercise judgment and sensitivity in deciding whether a case needs to be reported. When in doubt, staff should refer their concerns to more senior staff members at post and, should the doubt remain, report the case to the Department. Post attention is drawn to the urgent need to report disasters and emergencies.
Prompt, precise and accurate reporting is necessary to ensure the Department has the information required to respond to or advise the next of kin, and brief the Minister or media in high profile cases. Prompt reporting also enables the Department to provide guidance on policy or operations to ensure casework consistency.
4.3 Casework reports
Reports should be succinct and include all relevant facts for casework management. Speculation, generalisations or information in the nature of 'for your background only' should be avoided, as the Department may be legally obliged, when requested, to provide casework files or reports to individuals under FOI legislation.
All casework reporting must be by cable, including non-DFAT posts (such as Austrade posts) which can create cables through CMLIS.
Alerts should only be used for casework reporting when the cable network is not working. Documents such as letters to the post, Third Person Notes and press cuttings, should be scanned and attached into CMIS/CMLIS. Documents too big to scan should be copied and forwarded to the Department in the next available airfreight bag. Reporting by facsimile (fax) is no longer appropriate.
Cable subject headings must follow the following format:
CONSULAR: (category of case): (type of case): FAMILY NAME, given name, middle name red/orange
- CONSULAR: Cat 2: Arrest: BROWN, James Scott
- CONSULAR: Cat 1: Arrest: Brown, James Scott (Red)
Use of this name format is required to ensure accurate details are recorded, particularly when names do not follow the naming convention used in Australia.
Cables must be allocated a category: either category 1 or category 2 (Cat 1 or Cat 2) in the subject line of cables. Cases defined by posts as special interest should be listed as Cat 1 cases. All other cases should be Cat 2.
Cases which post wishes to draw to the attention of the Minister must have ‘red’ in brackets at the end of the subject heading; cases which post believes may not be of interest to the Minister, but will be of interest to the Departmental Executive must have ‘orange’ in brackets at the end of the subject heading.
Special interest cases are those which are likely to attract interest beyond Consular Operations Branch. They include, but are not restricted to, the following examples:
- Cases in which public/media interest is apparent or reasonably expected
- High profile arrest cases, for example, those involving a possible death sentence, or allegations of child sex or drug trafficking
- Major incidents involving hospitalisation of several Australians or a celebrity
- Cases involving the death of several Australians or an unusual cause or location of death
- cases which have or could have national security implications.
Posts need to judge whether a case warrants Category 1. Heads of Mission are expected to be made aware of cases that meet this threshold and to take a close interest in ongoing case management, often in close consultation with the Department.
In accordance with Departmental policy, consular cable summaries must not exceed 10 lines. Staff should aim to keep summaries even shorter. 'Summary Only' cables may be used for consular cases.
Posts should continue to ensure that, as with all other reporting, consular cables remain within the three-page limit.
All consular cables should include Consular Operations in the cable distribution, irrespective of their destination. For example, when a post seeks assistance on a consular case from another post and there is no Consular Operations assistance requested, Consular Operations should still be included in the distribution.
Cables should reference the last cable sent by either Consular Operations or the post.
In some instances, when consular officers are providing consular assistance out of post or after hours, it may be appropriate to phone the Consular Emergency Centre and provide a verbal update, with a cabled report the next working day.
Posts should not close cases they have referred to Consular Operations. If a post considers a case should be closed, it should cable Canberra asking Consular Operations to close the case. The post should give details of the latest activity in the case and why closure is requested.
Posts should be aware that some requests for help, such as passport assistance, may include a consular issue, such as child abduction or welfare, that must be reported to Consular Operations.
4.4 Quick cases - CMIS/CMLIS
A Quick Case can be used in CMIS/ CMLIS by either post or the Department to record one-off cases which do not need to be referred to the other party. As no further action or follow-up is required, Quick Cases are opened, information recorded, and immediately closed i.e posts may close Quick Cases without seeking approval of Consular Operations Branch, Canberra.
A Quick Case should only be used for cases that are being closed immediately or, on rare occasions, when they are expected to be closed in a few days. The case would be created, details of assistance recorded and the case closed. There is no requirement to send a cable to Canberra to report on a Quick Case.
The benefits include quick data entry which is searchable and may be re-opened at a later date, and are included in statistical reporting.
An example of a Quick Case is when an Australian reports the theft of a purse or handbag.
If a case requires further action, the Quick Case can be reopened and treated as a standard consular case with normal reporting requirements. When the case is reopened, the consular officer must check that a duplicate case does not already exist as the Quick Case function does not do this automatically.
Most consular information obtained and recorded by posts and Consular Operations does not require a national security classification. Information the Department collects must be carefully protected and managed, in accordance with the Privacy Act 1988.
The Consular-In-Confidence classification must be used when reporting consular cases. If it is necessary to use a higher sensitivity or national security classification, Consular-In-Confidence should be added as a handling indicator. Consular-In-Confidence should be used on all correspondence by both email and cable on Satin High and Satin Low. (See A/C P0894 Security Classification: Consular-In-Confidence.)
More information on the security requirements for sending emails and cables with in-confidence classification are in section 9.1.26 of the DFAT Security Instructions in Satin High.
The Consular Emergency Centre and Consular Operations Section in Canberra receive thousands of calls every year from anxious relatives seeking information about the whereabouts of family members travelling overseas. Usually concern has been triggered by lack of contact from the traveller when expected.
In nearly all cases, the traveller will eventually make contact and the concerns of the family will be allayed. There are occasions, however, when there is good reason to pursue enquiries about a traveller's whereabouts. Consular officers need to draw upon their experience and exercise judgment to determine whether and to what extent a whereabouts enquiry should be acted upon.
4.7 Acceptance of requests
The overriding factor in whereabouts matters is the welfare of an Australian citizen or permanent resident. As a general rule, the Department will only pursue welfare and whereabouts enquiries which are based on a well-founded concern for the welfare of an Australian citizen or permanent resident overseas, and a belief that the person concerned needs consular assistance.
The nationality or standing of the person making the enquiry is not relevant to pursuing enquiries.
The Department will not normally assist with enquiries prompted by a lack of contact or which seek only to establish the whereabouts of a person
In accordance with the provisions of the Privacy Act, when a person is the subject of a whereabouts enquiry, that person must be free to choose whether the information sought should be passed on to the enquirer.
Before accepting and actioning a whereabouts enquiry, the Department expects enquirers to have exhausted all normal channels to establish the person's whereabouts, such as credit card providers, mail, e-mail, telephone (including mobile), etc.
Neither the Department nor posts should refer genuine welfare enquiries to welfare organisations such as the Red Cross or Salvation Army. Individual posts may, of course, contact these organisations as part of their local procedures.
The Department will only assist with enquiries when motives are humanitarian.
The Department or an overseas post should not undertake:
- enquiries about the whereabouts of non-Australian citizens in Australia. Enquirers should be advised to approach the appropriate consular or diplomatic mission in Australia or in the country where the enquirer is located. Where the relevant government does not have representation in Australia, enquirers seeking to locate persons in Australia on humanitarian grounds should be advised to contact their local Interpol representative to obtain assistance through the police network. In exceptional circumstances, when a post needs to instigate a whereabouts enquiry, it should do so after consultation with Canberra
- enquiries about distant relatives or those relating to tracing 'family trees' should be referred, as appropriate, to genealogical societies
- enquiries on behalf of a person seeking to locate a spouse, when the purpose is to serve legal papers in cases of divorce, child custody, or maintenance arrangements - enquirers should be advised to seek private legal advice
- enquiries of a legal nature, such as private creditors, or credit or hire purchase organisations should be pursued through private channels with legal assistance if necessary.
Other options that may be available to an enquirer in the above situations include:
- paid newspaper advertisement (enquirers may be given the names of suitable newspapers)
- seeking assistance from the International Red Cross
- use of private detective agencies located under the heading Inquiry Agents in the classified pages of Australian telephone directories
4.8 Guidelines for consular officers in Canberra
When a consular officer in Canberra is contacted about the whereabouts of an Australian overseas, the following details should be obtained from the enquirer:
Nature of Emergency
- reason the subject is being sought;
- Note: relevant aspects of the Privacy Act should be explained to the enquirer.
- enquirer's name and relationship to the subject;
- if the enquirer is not a close relative of the subject, and depending on circumstances of the case, ask whether the enquirer is in contact with the subject's family and suggest they have a family member contact Consular Operations.
- enquirer's contact details including home address, home/work/mobile phone numbers/email address; enquirer's contact details - phone, e-mail, address
Subject Personal Details
- full name of the subject (i.e. the person whose whereabouts they are seeking);
- any aliases;
- place and date of birth;
- passport number;
- details of any other nationality or passports held by the subject;
- the subject's contact details: home address, home/work/mobile phone numbers/email address
- subject's known medical problems;
Subject Travel Information
- date and means by which the subject left Australia;
- full itinerary of the subject;
- date of last contact with the subject, including from where and by what means;
- how subject is paying for travel and what form of travel and accommodation the subject is likely to be using;
- details of the subject's travelling companions and whether the enquirer has contacted relatives of travelling companions;
Action taken by enquirer
Has the enquirer:
- tried to contact the subject – phone, e-mail, mail;
- contacted the subject’s travel agent, airline, hotels;
- contacted the subject’s travel insurance company;
- checked social media, e.g. Facebook, Twitter;
- contacted the subject’s bank/credit card provider to seek information on the subject’s most recent credit card activity;
- contacted the mobile phone company to seek information about the subject’s telephone activity;
- contacted the subject’s other friends, family or employer who may have information on their whereabouts;
- Would the enquirer, if necessary, be prepared to offer the subject financial assistance; and
- any other information on the subject that may be relevant.
Insufficient Information provided by Enquirer
If the enquirer is not able to provide sufficient information to enable posts to conduct a whereabouts check, the consular officer should request that the enquirer make contact again once further information is obtained. In these circumstances a CMIS Quick Case must be created.
Should consular officers consider, however, that there is a well-founded concern for the immediate safety/welfare of the subject, they should task the relevant post to take all reasonable and appropriate measures to locate the subject. In such instances, it should be explained to the enquirer that while consular officers will take all reasonable steps to locate the subject, based on the limited information available we may not be successful.
4.9 Referring enquiries to posts
Consular officers in Canberra should undertake the following basic checks prior to tasking posts on whereabouts cases:
- CMIS, ORAO, PICS/DELTA
Cabled tasking should include confirmation that the above checks have been conducted, and that responses to all appropriate questions detailed have been sought from the enquirer.
In the interest of consistency in responses to enquiries, the Department uses the following terms when communicating enquiries to posts:
Please locate and contact - for life and death situations. Examples may include: threats of suicide or self harm by Australians overseas, or the death of a family member in Australia. In such cases the Department expects posts to take immediate action, using all reasonable measures to find the person. Action may include:
- checking with contacts provided by the enquirer;
- seeking the cooperation of appropriate local authorities, e.g. police, immigration, maritime authorities;
- where feasible, checking with local hospitals and hotels
- in extreme circumstances it may be necessary to arrange radio or television messages.
Please check whereabouts - when there is concern for a traveller's welfare. Examples may include concerns for mental or physical health, failing to arrive on a scheduled flight or failure to return to work. In such cases the Department expects posts to use reasonable measures to find the person. Action may include:
- checking with contacts provided by the enquirer;
- seeking the cooperation of appropriate local authorities, e.g. police, immigration, maritime authorities;
- where feasible, checking with local hospitals and hotels
Relevant aspects of the Privacy Act should be explained to the enquirer.
4.10 Guidelines for posts when the enquiry is made to them
Most whereabouts enquiries are generated in Canberra and sent to posts for action. Sometimes, however, an enquiry might be made direct to a post by another post, by an enquirer in another country, or by an enquirer direct from Australia.
When the initial contact on a whereabouts enquiry is made directly to a post, the caller should be advised to contact Consular Operations (tel 1 300 555 135 Option 6) to lodge their enquiry. On occasions, it may be necessary for the post to take the details of the enquiry, in which case the details set out above should be obtained. The enquirer should be advised that they still need to contact Consular Operations and repeat the necessary information to formally lodge the enquiry.
When dealing with a whereabouts enquiry, it is important that posts keep Consular Operations advised of their actions and the results of those actions as soon as they become available. A resubmit system at post is of first importance in dealing with all consular cases and minimises the need for chase up cables from Canberra.
When contact is made with the subject, posts should pass on any message from, and the contact details of, the originating enquirer by cable. Even if the subject advises they will contact the enquirer, posts should obtain their consent to advise the enquirer of their safety and contact details. When the subject does not wish any information to be provided to the enquirer, they should be encouraged at least to allow the enquirer to be advised that the subject is well and, preferably, the country in which they are currently located. The provisions of Public Interest Determination 7 under the Privacy Act may apply in these circumstances.
When a subject has been located, the post may find that welfare issues requiring further action might be involved.
4.11 Family emergencies
When an emergency requires notification to very close relatives in cases of serious illness, injury or death of an Australian abroad (or in Australia when relatives are abroad) information should be sent immediately, and the assistance of appropriate authorities sought without delay.
In Australia and in some other countries, the police may accept the role of locating and informing close relatives of the death of an Australian. This assistance should normally be used where it is available. In countries where local police do not assist, posts will need to have procedures to institute the best search possible to locate the subject of the enquiry.
When police assistance is available to action a whereabouts enquiry and a post decides to use other agencies as well, eg. radio stations or automobile associations, the post should keep the police informed, or preferably consult with them first. Posts should ensure they hold appropriate authority prior to authorising expenditure on an enquiry. If in doubt, posts should contact Consular Operations or the Consular Emergency Centre in Canberra.
The result of efforts to locate an Australian abroad should be advised by cable, even if the person located has agreed to telephone direct to the enquirer, so the latter may be informed promptly that the post has made contact.
4.12 Cooperation with the Australian Federal Police
Procedures are in place with the Australian Federal Police, state and territory police, and Interpol to streamline the handling of whereabouts enquiries overseas. Under these arrangements, federal police involvement is only sought by the Department in exceptional circumstances. The arrangements are set out in the Business Protocol between the Department of Foreign Affairs and Trade, Interpol and the National Missing Persons Co-ordination Centre, Australian Federal Police.
Consular Officers are to ensure that all unresolved case files in CMIS and relevant paper files remain open even after all avenues have been exhausted. Consular Operations Branch will continue to review unresolved cases every three months.
4.13 Missing Persons procedures
A missing person case may start with the enquirer contacting either Consular Operations or the State/Territory police. If the enquirer contacts Consular Operations in the first instance, they should be encouraged to lodge a missing persons report with their local State/Territory police. The enquirer or the State/Territory police should then forward a police report to Consular Operations via firstname.lastname@example.org.
It is not mandatory for enquirers to lodge a missing person report with State/Territory police, however this standard police mechanism ensures reporting consistency and also ensures that all relevant parties are made aware of the case.
Following assessment of the circumstances of the case, and receipt of the police report, Consular Operations may request the assistance of Interpol Canberra to refer an investigation to overseas authorities.
Acting on a police report
Once a police report has been received, create a new case in CMIS. Contact the relevant State/Territory police acknowledging receipt of the missing persons report, and provide the DFAT Consular case manager's name and contact details.
Contact the family representative, introduce yourself as the case officer, provide contact details, explain the missing persons processes, in particular the limitations imposed by the Privacy Act, and confirm the family consent to Consular Operations providing information to Interpol. Ensure that all standard "whereabouts" questions concerning the missing person are asked of the enquirer; refer to the full list of questions in 4.4 above.
Send an email to Interpol using the stationery item in the Centre Consular Operations e-mail account - 'Missing person pro-forma'. Interpol will request the relevant Interpol bureau overseas to engage the assistance of local law enforcement authorities. Interpol Canberra will then pass on any information to Consular Operations for relaying to the family, noting the limits of the Privacy Act, unless the information or enquiry is regarding a police procedure, for example DNA testing, in which case Interpol/State Police will liaise directly with family.
If the family would like the missing person's photo placed onto the National Missing Persons Coordination Centre (NMPCC) website, they will need to discuss this directly with the state/territory police when they lodge the missing persons report.
Missing Person Overseas Agreed Agency Responsibilities chart
4.14 Hospitalisation and other medical issues
Requests for medical assistance may vary widely, from seeking advice on available medical practitioners to providing substantial assistance to sick or injured people in hospital. Hospitalisations are one of the most common and time-consuming consular responsibilities overseas. Cases can range from a simple overnight stay to prolonged and complicated cases taking weeks to resolve. Next of kin are understandably anxious so the consular officer must pay attention to the development of hospitalisation cases. Reporting must be timely and accurate.
On arrival at post, consular officers should visit local hospitals and medical facilities and familiarise themselves with the standard of medical services available, including psychiatric and ambulance services. It may be prudent for the consul to call on the heads of the major hospitals and encourage them to notify the Australian mission of all Australians (or when relevant, Canadians or other nationals) admitted to their hospital.
When a post has been advised of an illness, injury or admission to hospital of an Australian, the following information should be provided to Canberra as soon as possible. It is important that as much of this information as possible should be obtained from the caller during the notifying phone call. The rest can be obtained from follow-up phone calls, from next-of-kin accompanying the client, or from the client themselves on the first visit:
- full name, place and date of birth, passport number
- notifying authority
- current location. If in hospital provide address, phone number, including direct number to ward. Comment on standard of hospital, English language ability and proximity to mission
- name, contact details and English language ability of treating doctor
- detail of incident resulting in hospital admission (where, when, others involved, etc.)
- nature of injuries/illness, nature of treatment, and prognosis
- next of kin details
- details of travelling companions, tour operator and whether they are providing assistance to client
- whereabouts of personal effects
- details of any police or other official involvement
- financial arrangements: insurer, funds requirements - details of who to approach, cost-estimate of total costs involved
- any special or other requirements
- record of contact with client
- whether Privacy Act consent or medical opinion has been obtained when a client is not able to provide informed consent. Note: The Privacy Act does not preclude hospital officials making direct contact with family members and/or responding to enquiries in accordance with their own practices.
When assistance is being provided to more than one client, for example when a number of people may have been injured in an accident, the post should report in separate cables on each individual after initial advice on the overall situation has been sent to Consular Operations.
If appropriate, Consular officers should visit hospitalised clients as soon as practicable to obtain full details of their situation and to request Privacy Act consent (Consent to the disclosure and use of personal information form 2.4), and maintain regular contact by visit or phone from then on if the client wishes. They are expected to keep themselves informed of the client's condition by speaking regularly to the treating doctor. Regular updates should be provided to Consular Operations to alleviate the anxiety of next of kin in Australia who have consented to being contacted.
If the patient is unconscious or unable to provide consent due to a mental health or other disorder, the consular officer will need to seek a waiver of the Privacy Act to enable the next of kin to be notified. The treating doctor should be asked for a statement in writing when this is practicable. It should state that the client cannot give consent. In urgent cases an oral statement will suffice. The request for a waiver should be sent by cable. In very urgent cases contact the Consular Emergency Centre by phone.
Consular officers should also observe the hospital conditions and standard of care and report if they consider these inadequate to the point that the client's recovery is endangered. In this case, consular officers should advise their concerns to Consular Operations which will consider transferring the client to a better hospital in the area, or evacuating the client to another country or Australia. For any of these solutions Consular Operations should liaise closely with the next of kin and the client's insurer, if there is one, in determining the most appropriate course of action.
In non-English speaking countries, communication between the client and their treating doctor may be difficult. The consular officer should ensure that the client can communicate with their doctor and nursing staff, and is kept up to date on their progress. Locally-engaged consular staff can assist here.
Similarly, consular officers should check that communication between the client, the hospital and the client's insurer is working and assist in resolving any communication breakdowns. Again, the language skills and assistance of locally-engaged consular officers can be invaluable.
If the client does not have travel insurance, they need to be advised that they are responsible for their medical bills and they need to start thinking how they will pay them (transfer of funds, loan from family, etc.) Posts should ensure that hospitals are aware that the Department cannot meet hospital and medical charges. These are a matter for private arrangement between the patient, the hospital and doctors. That said, in some exceptional circumstances financial assistance may be available. (Chapter 14)
Major incidents involving hospitalisation of several Australians, or hospitalisation of a celebrity may generate significant media interest. When this occurs, posts should report as soon as possible to Consular Operations or the Consular Emergency Centre by phone. Posts should then report in detail by cable on the trend of events and on action they are taking. Situations attracting media interest should generally be reported at least twice daily, at the beginning and end of the working day, or as agreed with Consular Operations in Canberra. Posts may find it useful to use a brief, situation report format that allows ready up-dating. Posts should continue to report separately on each individual.
4.15 Reciprocal health care agreements
Australia currently has agreements with Finland, Italy, Malta, The Netherlands, New Zealand, the Republic of Ireland, Sweden, and The United Kingdom.
Australian residents visiting these countries are entitled to health care under the host country's public health care scheme.
The agreements provide for medically necessary treatment only. That is treatment for an episode of ill health for which medical attention is necessary before the visitor returns home. Persons who require hospital treatment and seek cover under a reciprocal agreement, are entitled to admission to public hospitals as public patients only. The agreements do not include pre-arranged or elective treatment, or treatment as a private patient either in a public or a private hospital.
Visitors from countries with which Australia has a Reciprocal Health Care Agreement are eligible for benefits under the Medicare program, with the exception of New Zealand and the Republic of Ireland. Visitors from New Zealand and the Republic of Ireland who are covered under an agreement are entitled to free treatment as a public hospital in-patient or outpatient at public hospitals on presentation of their passport, but are not eligible to be enrolled in the Medicare program. There is no rebate if they choose to be treated by a doctor in a private practice or private hospital. However, they are eligible under the Pharmaceutical Benefits Scheme for pharmaceutical benefits for medicines that are medically necessary on presentation of their passport at a pharmacy.All Australians travelling overseas and visitors to Australia, including persons going to or coming from countries with which Australia holds reciprocal health care agreements, are strongly advised to take out travel insurance with a health care component.
4.16 Theft, robbery, loss of effects
One of the most common request posts receive is for assistance to travellers who have either been victims of a robbery or theft, or have lost valuables, money or passport. When the client has appropriate travel insurance, they should be advised to seek the assistance of their insurer.
When replacing a lost passport, consular officers should follow the instructions in the OPI.
To replace lost cash, clients may be able to ask relatives or friends in Australia to send funds. Organisations such as Amex, Western Union or banks can usually provide a quick money transfer service to most parts of the world. In some cases, a traveller's emergency loan might be appropriate (Chapter 13).
When clients are seeking, through the consular service at post, the assistance of Consular Operations to approach a bank to obtain financial assistance, it is imperative that the client provide a signed notification addressed to their bank to permit the Department to be provided with details of their bank account and for an amount (or balance of account) to be transferred to the Department.
Any request to Consular Operations should be made by cable (Austrade by fax) and include at least the following details:
- full name, place and date of birth, passport number
- full details of the person/organisation to contact
- client's current contact details
- amount of money required (in AUD) and its destination
- the reason for requesting the funds
- if required, despatch details of written authority to bank
- any other relevant information.
As a last resort, Consular Operations may arrange for funds to be transferred to the client via Consular Special Services Account for a fee (Chapter 19)
4.17 Assault, including sexual assault
A post will normally be notified of the assault of an Australian by the treating hospital, or the local police if the assault was reported and hospitalisation was not required.
Case management will depend on the situation. The client may be hospitalised with serious injuries, or held for questioning by police.
The client may wish to pursue charges against their attackers, or may themselves also be facing charges. In either case, the post should assist by providing a list of lawyers and other appropriate consular support.
Cases of sexual assault can place extra demands on the consular officer. In dealing with victims of sexual assault, the Department aims to provide support to the victim and assistance for the emotional, social, medical and legal consequences of the assault. This assistance will, however, vary depending on local conditions.
4.18 Initial caring for the victim
In some countries posts will be the first contact and main source of support for an Australian citizen following a sexual assault. In other countries with established systems for managing such crimes, the level of consular assistance will be less. If the post is the first contact, it is important to communicate immediately, clearly and slowly to the victim the extent of consular jurisdiction and influence when dealing with local authorities. Do not make the discussion overly complex. Hence, each posts must understand, in general, local procedures for dealing with police, medical and legal requirements in order to pass this information on to the victim.
Posts should be flexible and use commonsense when handling sexual assault cases. Officers should aim to do all they reasonably can to help the victim, report all cases promptly to Consular Operations, and seek approval for any special help the victim may need.
4.19 General principles
Sexual assaults are a sensitive issue and may attract media interest in the country of the assault and in Australia. Consular officers should exercise flexibility in handling cases, including seeking the Department's approval for special assistance for the victim.
All victims should be believed and supported accordingly. A victim's account may not always appear believable. This could be because the crisis and shock resulting from the assault has caused the victim to be confused. In addition, given the consular officer's knowledge and experience of the country, the victim's behaviour may appear to have been foolish or dangerous. It is not, however, the consular officer's role to judge or investigate. Determining the validity of a complaint is the responsibility of local authorities'. Even when the local police are unsympathetic, it is not a post's role to try and ascertain the truth or otherwise of an allegation of sexual assault.
The majority of sexual assault victims will be female. If possible, a female victim of sexual assault should be interviewed by a female A-based officer. If no female A-based officers are available this should be explained to the client who may prefer to be accompanied by a female member of the LE staff while being interviewed by a male consular officer. This will help the victim feel more at ease.
If the sexual assault victim does not speak English, a female interpreter should be obtained, if possible. If legal proceedings eventuate, it should be confirmed whether the court will provide an interpreter for the victim. If not, the post should contact Consular Operations for guidance.
If a post is in a country with well-developed sexual assault counselling services, a referral to them may be useful to the victim. It is the responsibility of posts to be aware of the referral process for organisations providing:
- specialist counselling
- material aid, such as clothes.
In this regard, posts should be fully conversant with local Red Cross/Green Crescent organisations.
Posts should take special care when giving victims information that they may need in order to decide whether to report an assault. Consular officers should be careful not to provide legal advice. Rather, they should provide victims with a list of local lawyers able to advise on legal implications of an assault. Victims may find this advice helpful in deciding whether or not to report the assault. Consular officers should give the victim time to think about a course of action. They should also advise clients that they may be recalled to the country of the incident to give evidence should the matter proceed to trial. When they indicate a choice, check that they understand the implications. This is extremely important. In some countries, reporting assaults may be fraught with difficulties and may even be dangerous for the victim. If available, counselling options should be given.
It is not necessary to hear all the details of the incident because:
- the victim will have to repeat the story to the police (if reporting it) and the fewer times they have to recount the details, the less traumatising the experience
- consular officers may have to provide affidavits and become involved in the legal proceedings if they are the first to hear the full details.
The following guide to the rights and needs of a rape victim have been supplied by the Canberra Rape Crisis Centre to assist consular officers to provide appropriate support to victims of sexual assault.
4.20 Rights and needs of a person who has been sexually assaulted
- to be believed
- to be told it is not their fault
- to be listened to
no why questions
- safety and privacy
- a non-judgmental attitude
- understanding of their trauma
- to be in control of what’s happening
- an opportunity to talk at their own pace
- their experience validated as significant
- encouragement to accept help and support.
4.21 Guidelines for aiding victims of sexual assault
The safety of a victim is the primary concern. It is important to ensure that the victim:
- has somewhere to stay where they will be safe
- is able to obtain clothing or money if required
- is able to contact their family or friends if desired
- is able to make arrangements to travel home straight away if desired.
Although a victim should make the decision on reporting the incident to the police, consular officers must be aware of local conditions and, while avoiding providing legal advice, communicate these to victims, including whether:
- reporting to the local police is in itself an unsafe act
- local police will only take an interest in a sexual assault case from a non-national if the victim is accompanied by the consul
- it would be unwise for the victim to attend the local police station alone
- reporting to the police is essential prior to the victim presenting themselves for a medical. The police may have a designated medical doctor who must undertake any examinations if they are to be valid in legal proceedings.
Consular officers need to be aware of local medical information for victims of sexual assault, including:
- names of English-speaking doctors
- requirements for forensic medicals, such as who orders them and who is authorised to undertake them.
Posts should keep and maintain a list of suitable English-speaking lawyers to help victims of sexual assault, along with an estimate of their fees. They will also need to be aware of local conditions in relation to the prosecution of sexual assault cases, such as whether the local authorities bring the charges or whether the victim is expected to do so.
Limits of consular assistance
Posts should take care to explain the extent to which they can support the victim. Posts can:
- provide support and escort the victim to the police authorities
- provide a list of doctors
- provide a list of lawyers
- assist the victim by contacting relatives/friends
- contact counselling services
- provide a Traveller's Emergency Loan
- advise on alternative and secure accommodation, if required
- keep the victim informed of legal proceedings if the case goes to court
- provide extra assistance on approval from Consular Operations.
Consular officers need to be aware of the availability of specialist services for dealing with victims of sexual assault. In some countries, specialist services will undertake a support and advocacy role with the victim.
If there are no specialist services available, posts should be aware of any local alternative counselling services. Arrangements can be made via Canberra desk officers or the Consular Emergency Centre to use the services of an Australian counselling service.
The following telephone numbers are for sexual assault centres in Australia. The relevant number should be given to victims for contact when/if they return home.
1 800 200 526
- Rape Crisis Centre (7am to 11pm) +61 2 6247 2525
- Office hours +61 2 6247 8071
New South Wales
- Freecall 1 800 424 017
- Sydney Rape Crisis Centre +61 2 9819 7357
Ruby Gaea Centre against Rape, +61 8 89450155
(24 hours) +61 8 89227156
- Freecall 1800 010120
- Brisbane Rape and Incest Support Centre +61 7 3391 0004
Sexual Assault Support Service:
- 24 hour south and east Tasmania +61 3 6231 1811
- 24 hour northern Tasmania +61 3 6334 2740
- 24 hour north west Tasmania +61 3 6431 9711
- CASA House (24 hour) 1 800 806 292
- CASA Melbourne city +61 3 9344 2210
- Freecall 1 800 199 888
- Sexual Assault Referral +61 8 9340 1828
4.22 Forced marriages
A forced marriage is a marriage in which one or both parties do not (or cannot, for example because they are a minor) consent to the marriage as a result of coercion, threats, or deception. It can involve either adults or minors. Coercion can include physical, psychological, financial, sexual and/or emotional pressure.
An arranged marriage is distinct from a forced marriage and is not criminalised. In an arranged marriage, while the families of both parties play a dominant role in arranging the marriage, the parties have the right to accept the marriage arrangement or not.
In 2013, Commonwealth criminal legislation came into force creating two new offences targeting forced marriage: causing another person to enter into a forced marriage, and being a party to a forced marriage (the latter offence does not apply to a victim).
Reporting Obligation for Consular Officers
Any case involving allegations or suspicions of forced marriage (including if the forced marriage has already occurred) should be promptly reported to Consular Operations. Officers should classify the case under the new “Forced Marriage” category in CMIS.
As with any extra-territorial offence considered to be a serious crime under Australian law, any information related to a possible case of forced marriage involving Australian or permanent resident perpetrators and/or victims must also be reported to Australian authorities via the Sanctions and Transnational Crime section (STC). Chapter 3.2 and Chapter 3.5 provide guidance on those reporting procedures.
Consular cases involving forced marriage are among the most challenging and resource-intensive. Experienced officers in Consular Operations are always available to provide support and guidance to posts.
Consular officers should always take a victim-centred approach, noting that the concept of ‘victim’ in a forced marriage case includes clients who believe they are at risk of forced marriage as well as those already forced to marry. Consular officers should ensure the victim’s welfare and health are handled appropriately and sensitively. This might involve contacting, with appropriate consent, trusted relatives or friends, health professionals and local organisations.
Given the complexities involved in forced marriage cases, local non-governmental organisations and welfare agencies can often play a critical role in providing assistance to a victim of forced marriage. As such, it is important that posts -- particularly those located in countries where there is a significant incidence or risk of forced marriage -- maintain a network of reliable and experienced local contacts who they can call upon if required.
Consular officers should also be aware that involving family in cases of forced marriage may have grave consequences as it may increase the risk of serious harm to the victim. Experience shows that the family may not only punish the victim for seeking help but may expedite arrangements for the marriage.
As with any consular case, the safety of the consular officer is of paramount importance. Consult with Consular Operations if you have any concern for your safety or that of others.
Communication with clients
Officers should be conscious that direct communication with a victim may be difficult and the first call they receive may present the only opportunity to collect details of the case and vital information. Extreme caution must be exercised in seeking to make contact with the client so as not to put the victim or consular officers’ personal safety at risk. In light of these challenges, officers should bear in mind the following guidance when communicating with clients:
- gather as much information as possible during the initial contact with the victim, including all contact details;
- obtain a list of all family and friends who can be trusted and their coordinates;
- reassure the victim regarding confidentiality;
- establish how communications will take place in the future so as to guard against risk of further harm to the client while ensuring contact is maintained. For example, SMS text messaging may provide a discreet and accessible means of communicating.
- if the client has concerns about the privacy of their communications with post, advise them that they may wish to take appropriate steps (i.e. by deleting sent/received messages); and
- taking into account the particular circumstances and urgency of the case, obtain consent to disclose personal information with third parties (i.e. with local NGOs on the ground or trusted contacts in Australia).
Recognising that a victim of forced marriage is in an extremely vulnerable position, it is essential that consular officers respond quickly to all communications from their client, even in situations where there does not appear to be a particular urgency. Sometimes a concerned third party will notify post of a possible forced marriage case, and post will only be able to communicate with that third party. Such situations, where post is not able to verify the details of the case nor obtain consent directly from the victim in question, should be handled very cautiously. Post’s ability to assist in such cases will usually be limited to providing information.
Assistance for victims in Australia
For many clients, the decision as to whether and how to return to Australia is daunting, often carrying significant implications for their personal/family situation. Consular officers should aim to provide clients with as much information as possible to help them make an informed decision.
The AFP is best placed to provide preliminary assistance to consular clients in a forced marriage case upon their return to Australia. The AFP role includes receiving the consular client at the airport upon their return, assessing whether they are eligible for the Support for Trafficked People Program discussed below, and otherwise by making appropriate referrals to other agencies.
With the consent of the consular client, contact with the AFP should be initiated by Conops as early as possible while the client is still overseas.
The AFP Operations Coordination Centre can be contacted 24 hours a day, 7 days a week on + 61 2 6126 7755 or at AOCC-Operations@afp.gov.au.
Support for Trafficked People Program
The Australian Government provides a comprehensive range of support services for suspected trafficked people, through its “Support for Trafficked People Program” (the Support Program). As forced marriage is considered part of the suite of human trafficking and slavery offences, the Support Program is available to victims of forced marriage, including those at risk of forced marriage. The Support Program is delivered nationally by the Australian Red Cross. Eligibility for the Support Program is determined by the AFP based on the applicability of the Australian legislation to the particulars of the case. In particular, there must be some connection between the offence and Australia. The conduct, or a result of the conduct, must either occur partly or wholly in Australia or partly or wholly on board an Australian aircraft or ship, or the offender must be an Australian citizen, resident, or body corporate incorporated in Australia.
The Support Program provides intensive support for up to 45 days (which may be extended to 90 days in certain circumstances, for example, if the victim is a minor) to all eligible trafficked people, irrespective of whether they are willing or able to assist police. The range of support services offered includes accommodation, a living allowance, access to health care including counselling, access to interpreters, and access to legal and migration services. Ongoing support is available to victims assisting with the criminal justice process through the Justice Support Stream of the Support Program. Further information on the Support Program on the FAHCSIA website.
State/Territory Child Protection Services
Child protection services are available in Australian States and Territories to assist children and young people who have been victims of domestic/family violence and abuse. If the client is a suspected victim of forced marriage, referral in the first instance should be to the AFP, who will then liaise with State/Territory child protection services as appropriate.
Forced marriage cases will often involve passports issues. For example, the perpetrator or co-conspiratoray confiscate a victim’s passport as surety. When it is likely passport issues will be involved, cable reporting should include the Passports Services/Policy and Operations distribution topic to ensure the APO is kept informed at all times.
Consular officers should note that persons with parental responsibility for a child are legally entitled to hold their child’s passport. Ordinarily the consent of all persons with parental responsibility, or an Australian court order permitting the child to travel internationally, is required to obtain an Australian passport for a child. However, in certain circumstances (including in the case of a child who is the subject of a forced marriage) a delegate of the Minister (an Approved Senior Officer) can consider issuing a passport without the consent of all persons with parental responsibility. This is a discretionary decision which will be made by the delegate based on the merits of the case, including any supporting evidence. The standard timeframe for the processing of an application under special circumstances is 6 to 8 weeks, however cases will be prioritised where circumstances warrant it. While such a determination can often be taken fairly quickly, it is important for Post and Conops to ensure early liaison with APO (via cable or email to Complex Child Passport Applications – passports_ASOs_children@dfat.gov.au).
Please note that if a minor has already married, a delegate in APO has the discretion to determine whether the applicant can be considered as an adult application dispensing with the need for the parents’ consent or an application under special circumstances. If a minor is married, proof of marriage needs to be forwarded to APO for consideration.
Cases involving minors forced into marriage are especially delicate and complex and can present challenges for consular staff, particularly in a foreign jurisdiction where the marriage of a minor may be culturally accepted and not illegal. In such cases, the ability to engage local authorities to assist is significantly reduced.
Minors will be particularly vulnerable and reliant on consular officers for assistance. It is critical to establish early and regular contact with minor clients, balanced against the safety considerations outlined above. With the client’s consent, local as well as Australian welfare agencies and NGOs may be able to provide valuable assistance and advice.
The forced marriage of a child has been internationally recognised as a human rights violation and a form of child abuse, since the child may be subjected to threats and coercion and non-consensual sex. Consular officers should refer to Chapter 11.5 on managing allegations of child abuse, including the child welfare checklist.
In all cases involving a minor, consular officers should consult with Consular Operations and the APO before taking any action to issue travel documentation or assist in repatriation. For guidance regarding the repatriation of a minor, please refer to Chapter 15.
Note that, as per departmental guidelines, a Certificate of No Impediment (CNI) to marriage should not be issued if either of the parties is not of marriageable age as required under Australian law. Please consult Chapter 22.22 for further guidance regarding CNIs and minors.
4.23 Female genital mutilation
Female genital mutilation (FGM) refers to procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons. FGM has been recognized as a violent and harmful practice and a violation of the rights of girls and women.
FGM has been reported to occur in all parts of the world, with greatest prevalence in western, eastern and north-eastern regions of Africa, some countries in Asia and the Middle East, and among certain immigrant communities in North America and Europe. Girls from the age of infancy to 15 are reported to be most vulnerable.
Historically, instances of Australian girls or young women being taken overseas for the purposes of FGM have come to the attention of consular officers infrequently. Consular officers should nonetheless be aware that FGM is criminalised in Australia by State and Territorial laws which apply extra-territorially to acts committed overseas, including performing FGM or arranging for a person to be taken or sent abroad for such purposes. Accordingly, there is a duty to report information relating to a possible case of FGM abroad involving an Australian victim or perpetrator. Further guidance on these reporting requirements is provided in Chapter 3, Managing Allegations of Criminal Conduct Overseas, including Chapter 3.6 on FGM.
Immediate consular assistance should be provided to a victim of FGM if they are Australian. Noting that the vast majority of FGM cases involve children, consular officers should refer to Chapter 11.5 Managing Allegations of Child Abuse for further guidance.
4.24 Wrongful removal of persons from Australia
If a consular officer believes a person may have been wrongfully removed from Australia, they should immediately bring this to the attention of the Assistant Secretary, Consular Operations Branch, so the matter can be taken up with the Department of Immigration and Citizenship.
4.25 Relief and repatriation
When requests for relief and repatriation are received from sole parents supporting children abroad, the cases should be treated in accordance with Chapter 15 (Repatriation) and Chapter 12 (Provision of financial assistance) of this handbook.
Chapter 5: Registration of Australians overseas
5.1 Reasons for registration
The primary objective of registering Australians overseas is to facilitate contact for consular purposes. Registering details with the Department is a Smartraveller campaign. All posts are encouraged to actively pursue registration of travellers in their countries of responsibility. However, in high risk countries where posts are most likely to need to contact Australians in an emergency situation, this is particularly important.
5.2 General principles
Registration information is protected by the Privacy Act 1988 and must not be passed to any person or body other than the Department. Posts should, however, be aware that agencies such as the Australian Taxation Office have the power under the Act on occasions to examine the register. While a warning to a person registering is not necessary under the Act, if an examination is to be undertaken (very rare), it should be cleared by Consular Branch. Chapter 2 gives details on Privacy Act requirements.
Australians who wish to be registered must be given the opportunity to do so.
Posts should draft letters and local notices with care to ensure they do not alarm the people they are inviting to register.
5.3 Sample notice to Australians overseas
Purpose of registration
A register of Australians overseas is maintained at this Embassy/High Commission/Consulate solely for use in relation to consular activities eg. to facilitate contact in an emergency. The information in the Register is protected by the Privacy Act 1988 and can only be divulged under the provisions of that Act.
Protection of Australians
When travellers enter a foreign state, they become subject to its laws and are legally accountable for acts they commit on its territory. In the event of Australians finding themselves in difficulty, consular officers seek to ensure that they receive the benefit of the same laws, administration, protection and means of redress for injuries which the foreign state affords its own subjects.
The Australian Government, through its consular officers, endeavours to provide assistance when danger exists due to natural disaster, civil unrest, war, etc., when it is considered necessary and where it can be arranged. This does not diminish the obligation of Australian travellers to keep themselves informed on any situation in the country likely to affect their safety.
Change in details
In order for consular officers to provide appropriate assistance to Australian citizens in the event of an emergency, it is necessary for those registered to ensure that their contact and other registered details are current.
5.4 Method of registration
The Department has introduced online registration of Australians overseas in a secure online form. The registration site can be accessed at http://www.smartraveller.gov.au - select 'Register with us' - and includes a Registration FAQ. Online registration of Australians overseas is a component of the Consular Management Information System (CMIS) and allows posts to view the registration data relevant to them on the local version of the database.
Online registration of Australians overseas supersedes manual registration. Nevertheless, for Australians who cannot register online, posts should maintain manual registration procedures to allow input of registrations into the online registration of Australians overseas database. A sample of the registration card is at 5.5
Posts are recommended to monitor and update the database. Ensuring that information is complete and accurate facilitates communication with Australians overseas in the event of a crisis or other event requiring a mass mail-out.
5. 5 Sample registration form
Download sample registration form
5.6 Who can register?
Only Australian citizens and their dependants, who may hold citizenship of another country, or long-term permanent residents of Australia who are temporarily outside Australia may register.
Australians with dual nationality may register, whether or not they are in, or visiting the country of their second nationality.
Posts should register all members of a family together, but should continue to note any member who is not Australian. Any additional nationalities should also be shown, particularly when one is the nationality of the country of residence.
Australians should be registered in the consular district where they reside, but if some other consular office is more easily accessible and they do not have access to the Internet, they may as an exceptional measure, manually register there. The online registration of Australians overseas will automatically update to inform Canberra and the consular office within whose district they actually reside.
A Notice to Australians Overseas should be given to all Australians who register (5.3).
5.7 Change of address
Posts should keep registration details up-to-date and ensure there are appropriate processes for checking the accuracy of registrations. Posts should suggest to intending long-term residents that they confirm their registration annually via the online registration system. Any subsequent change of address could be advised by email to the post.
5.8 Amendment of registrations
Posts may propose an amendment to the date of departure of any entry in the online registration database if they are satisfied that the person concerned has ceased to be an Australian, has died, or left the country.
5.9 Removal of names from register
Posts may propose removing any name from the online registration database if they are satisfied that the person concerned was never an Australian citizen or permanent resident of Australia, or never visited the country.
No Australian citizen or permanent resident of Australia who has registered and visited the country for which they registered should ever have their entry removed unless it is replaced with a more accurate registration.
Chapter 6: Arrest, detention and imprisonment
6.1 Consular role in relation to Australians arrested or detained overseas
The terms arrested or detained apply to any Australian arrested and/or being held for investigation, whether charges have been laid or not, or confined to prison.
The arrest or detention of Australians overseas is a complex issue in consular protection. People arrested or detained require sensitive and well-considered assistance, possibly over an extended period. Sound guidance and policy direction may be required in handling bilateral relations in these cases. The nature of the crime committed or the long-term nature of detention may attract media and parliamentary interest in Australia, calling for careful and considered responses by Government and the Department.
Consular protection in the case of arrested, detained or imprisoned people means ensuring, as far as possible that:
- Australians arrested, detained or imprisoned overseas are able to see an Australian consular officer and receive consular assistance
- Australians overseas charged with offences against local law or otherwise punished have access to appropriate legal defence and receive a fair trial under local law
- Australians imprisoned overseas are treated no less favourably than local citizens confined for similar offences
- the basic needs of Australian prisoners are met and the prisoners enjoy humanitarian standards of prisoner welfare.
6.2 The Vienna Convention and access to detained persons
Consular officers should familiarise themselves with Article 36 of the Vienna Convention on Consular Relations [PDF]. (Chapter 2 in the policy handbook)
Article 36 of the Convention [PDF] specifies the consular officer's right to visit, converse and correspond with, and arrange legal representation for nationals in prison. In accordance with the Privacy Act, a consul must not, take action on behalf of a prisoner if the prisoner opposes it.
The Convention also obliges the authorities of a state to inform the consular post without delay if they have detained one of its nationals and the detained person requests it, and to forward any communication from a detained person to that person's consul. The authorities must, furthermore, inform the detainee of these rights.
The Australian Government takes a serious view of any denial of rights to consular access. Posts should report any denial promptly to the Department. The report should be sufficiently detailed to enable the Department to take up the case immediately, either with the state's diplomatic representation in Canberra or with the foreign ministry of a state not represented in Australia.
Countries which have ratified or acceded to the Convention are listed at Appendix 5 in the Consular Policy Handbook.
The rights of prisoners are further reinforced by the United Nations declaration on the human rights of persons who are not nationals of the country in which they live, which provides that 'any alien shall be free at any time to communicate with the consulate or diplomatic mission of the State of which he is a national'. (UNGA Resolution 40/144, Article 10)
The International Covenant on Civil and Political Rights also makes specific provisions relating to persons arrested or detained, in the following terms:
Article 9(3): 'Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release…'
Article 9(4): 'Anyone who is deprived of liberty by arrest or detention shall be entitled to take proceedings before a court…'
Article 10: 'All persons deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the human person…'
Article 14: 'All persons shall be equal before the courts and tribunals…'
Article 14(3C): 'In the determination of any criminal charge against him everybody shall be entitled … (c) to be tried without undue delay … (f) to have the free assistance of an interpreter…'
Article 14(7): 'No one shall be liable to be tried or punished again for an offence for which he has finally been convicted or acquitted in accordance with the law of penal procedure of any country'.
6.3 Assistance to arrested or detained persons
Consular officers should ensure that local authorities bring these cases to their attention promptly. To achieve this, good relationships should be maintained with appropriate local officials, particularly police.
When engaging in any consular activity, officers should meticulously avoid giving the impression that they are prejudging the merits of a case or the treatment of the person detained.
When consular officers learn of the arrest of an Australian they should attempt to visit the client at the earliest opportunity. Even if posts are advised by an authoritative source that an arrested or imprisoned Australian does not want a consular visit, they should make every effort to make direct contact with the Australian to confirm those wishes and satisfy themselves that the person is fully acquainted with consular services. Posts should not consider an arrest letter as a substitute for an early visit.
If the arrest takes place in a country with no resident Australian mission, the post is encouraged to make arrangements with other Commonwealth missions or consular sharing partners for an initial visit and, when appropriate, a follow up prison visit. In the absence of these arrangements, the post should explore the possibility of having a local representative of a charitable or religious organisation make an initial visit.
When a prisoner elects not to receive consular visits, these wishes should, as far as possible, be confirmed in writing and the prisoner advised that their request will need to be reconfirmed each 12 months. Prisoners should also be made aware that they may request consular visits to be resumed at any time.
A list of legal practitioners or firms willing to represent foreigners and showing specialities should be prepared at each post for prisoners and other Australians who need this information. The list cannot indicate any preference for one practitioner/firm over another and consular officers must not give an oral or other indication of preference. The list should be checked and updated at least annually. All lists must contain a disclaimer that neither the post nor the Australian Government accepts any responsibility for the ability or probity of the practitioners on the list or the fees they might charge.
6.4 Welfare of prisoners
When Australians are imprisoned overseas, consular officers should show a continuing interest in their situation. Their concern, however, is with the prisoner's welfare and they should not make assumptions about the prisoner's guilt or innocence.
The crimes which prisoners have committed, or have allegedly committed, have no bearing on the responsibility to provide a sensible humanitarian response to their basic needs. Consular officers should carefully monitor the physical conditions of imprisonment, including access to medical and dental care, and make full reports to the Department. Consular officers should show compassionate understanding of the psychological impact of imprisonment and separation from the home environment and culture. Serious problems of adjustment should be reported to the Department.
Consular officers are expected to have the personal and professional skills to handle the welfare needs of prisoners in a foreign environment. However, when a prisoner appears to be suffering discrimination at the hands of the penal or judiciary authorities to the extent that a just treatment of the case and/or the physical welfare of the prisoner may not be reasonably assured, consular officers should urgently bring the situation to the attention of the Department.
Consular officers should maintain close contact with prison authorities to facilitate access and informal representations on behalf of prisoners and to maintain an awareness of prison conditions. Consular officers are responsible for ensuring that they are familiar with the actual living conditions in prisons where Australians are held.
Officers involved in prisoner welfare should be familiar with the United Nations approved Standard Minimum Rules for the Treatment of Prisoners (Appendix 6A). While the rules are not binding, officers should be ready to draw them to the attention of local authorities if it appears that they are not being observed.
6.5 Prisoner health
Prisoners in foreign countries may face special problems arising from loneliness, disorientation, violence, racial discrimination, corruption, drugs and lack of access to adequate medical and dental attention. Physical or psychological ill-health may result and monitoring this aspect forms a significant part of prisoner welfare work.
Diagnosis of psychological conditions is a matter for an expert, not consular officers. Consular officers should, however, be alert to problems of behaviour and adjustment as these are a major determinant of how a prisoner will cope with deprivation of freedom.
When deciding any action necessary the consular officer must consider:
- the prisoner's own wishes, needs and financial resources
- prison rules and conditions
- facilities and services which can reasonably be provided by the Australian mission and local authorities
- assistance available from other sources, such as family, friends and welfare organisations.
The most common health problems concern food, standards of hygiene, and lack of adequate medical and dental services. In many countries the prison diet must be supplemented for western prisoners and, in some cases, prisoners have to provide their own basic medicines.
6.6 Reporting arrest/detention cases
All arrests must be reported promptly by cable to Assistant Secretary Consular Branch (AS CNB) and Assistant Secretary Passport Business Improvement and Technology Branch (AS PCB).
The Arrest/detention checklist has been loaded into CMIS as a cable template and should be used for all reporting except for subsequent visit reporting.
The template includes information about all aspects of a case except for regular visit reports. It is divided into five parts:
- Personal details and details of the arrest
- First visit to the detainee
- Committal Proceedings
When initially reporting an arrest, it is likely that little information will be known. Post should complete as much detail as is available, confirm passport information from PICS if required and delete the remaining points as necessary. It should be noted however, that posts should provide the other information as it becomes available.
The reporting cable must use the ODIN topic CONSULAR/Arrest and Detention.
If the arrest takes place after hours or appears political or likely to attract media interest, the post should alert the CEC immediately by telephone, followed by cable. Similarly, an immediate report should be made if the person detained or charged appears likely to suffer bodily harm or prejudice to property.
If the arrest/detention or charge appears political or intended to embarrass the Australian Government or likely to necessitate later diplomatic representations, the consular officer must immediately report the matter to the Head of Mission and to the Department classifying the case as Cat 1 (either red or orange – Chapter 4.3 refers).
High-profile cases, for example those involving Ministerial contact, a possible death sentence or receiving media coverage, should be reported by Cat 1 cable immediately.
If the charge relates to child sex offences, transnational organised crime (eg. drug trafficking, people smuggling, etc.), terrorism or corruption refer to chapter 3 for additional guidance and reporting requirements.
6.7 Visits to prisoners
As a general rule, consular officers must visit Australians in detention as soon as possible after arrest to provide them with a copy of the arrest letter and to obtain their consent to the disclosure and use of personal information for family and friends. All arrests must be reported promptly by cable to Assistant Secretary Consular Branch (AS CNB) and Assistant Secretary, Passport Business Improvement and Technology Branch, Australian Passports Office using the ODIN topic CONSULAR/Arrest and Detention.
All government officials undertaking a prison visit MUST report promptly using the appropriate reporting template (ie Arrest/detention Checklist or the Subsequent Visit Checklist). The official must provide a full report to the relevant Australia diplomatic/consular post either the same day the visit takes place or no later than the first working day after the visit. Posts are responsible for the prompt transmission of the report to Canberra. Posts must ensure any government official/s undertaking prison visits are briefed on this requirement and posts must report any incidents of non compliance to AS CNB promptly.
Where it is assessed that a detainee does not have the ability to communicate with Australian officials or a legal representative this must be drawn to the attention of AS CNB immediately.
6.8 Arrest/detention Checklist
Initial Prison Visit Checklist
Download the Arrest/detention Checklist [DOC 47 KB]
Sample letter to detained person
6.9 Subsequent Prison Visits
After the initial visit, posts should arrange a visits program. Monthly visits are appropriate when the prevailing conditions of imprisonment are well below acceptable international or Australian standards. Posts will also need to take into account the level of dependence of prisoners on consular visits. Posts should not depart from a routine without the knowledge and understanding of the prisoner.
All government officials undertaking a prison visit MUST report promptly using the appropriate reporting template (ie Arrest/detention Checklist or the Subsequent Visit Checklist). The official must provide a full report to the relevant Australia diplomatic/consular post either the same day the visit takes place or no later than the first working day after the visit. Posts are responsible for the prompt transmission of the report to Canberra. Posts must ensure any government official/s undertaking prison visits are briefed on this requirement and posts must report any incidents of non compliance to AS CNB promptly.
Where it is assessed that a detainee does not have the ability to communicate with Australian officials or a legal representative this must be drawn to the attention of AS CNB immediately.
The visits program needs to take into account the substantial resources involved in visiting prisoners regularly and reporting on their welfare. The welfare needs of some clients may be met though other avenues, including rehabilitation and work programs run by prison authorities. Others have local support networks of families and friends or religious and social workers. Posts should remain alert to issues, such as whether questions brought up by prisoners during consular visits would be more appropriate for their legal representatives or prison authorities.
Posts are encouraged to regularly reassess their prison visits program. Consular Operations is prepared to consider proposals case-by-case. Proposals should identify any difficulties with the current visits program and nominate a visiting frequency for each client, taking into account language, social, culture, religious factors and the presence, or otherwise, of a local support network. Proposals should also identify any other relevant factors, including access to reverse charge telephone facilities or mobile phones that allow prisoners to communicate with family, friends and legal representatives.
For prisoners serving sentences longer than five years, it may be appropriate to program visits frequently in their first year of incarceration, less often through the middle of their sentence and more frequently again during the final year. During the final year, issues such as passport or visa renewal, arranging access to pre-release counselling, and so on need to be addressed.
Some existing long-term prisoners may request that the present program of visits continues unaltered. There should be sympathy for these requests when there is a genuine need, subject to resource availability.
To avoid disappointment or distress to prisoners, the visit program should not be fixed to particular days of the month.
Consular officers making prison visits should ensure that they obey prison regulations, particularly those applying to carrying items in and out of the prison. Breaking the rules could result in a curtailment of consular visits and punishment for the prisoner.
Prison visits serve to monitor the condition of the prisoner and the prison and to remind both the prisoner and the prison authorities of the Australian Government's continuing interest.
If consular access to the prisoner is denied, either at the time of arrest or during imprisonment, the post should inform Consular Operations promptly. The Government's clear intention is that access to Australian consular assistance should be sought unless prisoners indicate, personally and clearly, that they do not wish to see a consular officer.
At some posts, due to the location of the prison, the objectives of a visit can be achieved by telephone. While this option is acceptable, it is still preferable for those prisoners to be physically visited as regularly as possible. Notwithstanding that a prisoner visit takes place personally or by phone, a report in the format at 6.10 must be cabled to Consular Operations promptly.
Consular officers' regular reporting to Consular Operations on the welfare of prisoners is invaluable to the Department in keeping families informed when there is consent to do so. Prisoners have the primary responsibility, however, of communicating with their families and consular officers should remind them of this.
6.10 Subsequent Visit Checklist
Whenever a visit is made to a prisoner or arrestee, whether in person or by telephone, a report must be cabled to Consular Operations, using the ODIN topic CONSULAR/Arrest and detention as soon as possible after the visit.
Subsequent Prison Visit Checklist
Download the Subsequent Visit Checklist [DOC 36 KB]
6.11 Assistance to persons under investigation but not detained
When Australians have been released on bail or are under investigation but not detained, posts should continue to seek regular updates on their welfare, including monitoring their legal proceedings.
6.12 Arrest, detention or imprisonment of a minor
The arrest and detention of a minor (an Australian under 18 years of age) will likely require an additional level of consular assistance. Cases involving the detention of a minor should be reported as Category 1. Particular issues that consular officers will need to take into consideration include:
- close monitoring of the minor's health and well-being, including conducting, when possible, weekly visits (at least until the minor is sentenced and settled into prison routines)
- close liaison and support to parents/family members of a minor when they visit the country of detention
- familiarity with local legal processes in relation to minors, for example the likelihood of the minor being tried as an adult. In the event that the minor will be tried as an adult, for example due to the seriousness of an offence, posts should cable details to Consular Operations as soon as possible. Consular Operations may seek legal advice on whether representation on this issue would be appropriate
- ensuring whenever possible that minors in pre and post trial detention are kept separate from adults, in accordance with the standard minimum rules for the treatment of prisoners (Appendix 6A)
- if necessary, act as a liaison between the minor and an educational institution and/or child welfare agency in Australia.
These guidelines are not prescriptive. Additional guidance should be sought from the Head of Mission/Head of Post or Canberra on managing difficult or complex cases.
6.13 Advice to the next of kin
In the context of consular work, the Department uses the term next of kin for a person nominated by the consular client as the contact point for passing on information about their predicament. In most cases, the next of kin is a relative of the client, but the client may nominate others as their next of kin, for example lawyers, doctors or friends.
Except in exceptional circumstances, the Department will only accept one next of kin. When a client requests more than one person be contacted, they should be asked to detail the reasons and be advised that the ability to accede to their request will be determined by Consular Operations.
Australians under arrest should be asked whether they wish the Department to inform their next of kin, and must be asked to confirm their wishes in writing. If they wish the next of kin to be informed, the post should inform the Department. The Department will pass on the message, initially by telephone if practicable, and will follow up this advice with a letter along the lines of the sample in 6.12 If the next of kin is at post, the consular officer should consult with Consular Operations on the dispatch of the arrest letter.
If the prisoner does not wish their next of kin informed, the officer must attempt to obtain confirmation of this in writing and then submit a written report to the Department. The prisoner should be advised that even though they may not consent to the release of any information, it is not unusual for information about their predicament to reach the media or relatives through other sources. In these circumstances, the Department may, if asked, confirm details already in the public domain and, if appropriate, correct any inaccuracies in existing reports.
6.14 Sample letter to the next of kin of detained person
6.15 Attendance in court
Normally, consular officers should try to be in court when an Australian citizen is charged with a criminal offence. If the trial is conducted in accordance with local practice, but is likely to be drawn out, they should not feel obliged to attend all sessions.
It would not normally be appropriate for consular officers to appear in court as witnesses. When in doubt, officers should consult the Department.
While attendance of a consul should not aim to influence the decision of the court, it does serve to remind the prisoner, the prisoner's lawyer, and the judiciary of the Australian Government's interest in the case.
A brief report on the outcome of the hearing should be sent to the Department as early as possible. In high profile cases this should be phoned to the Consular Emergency Centre.
6.16 Conduct of trials
In the conduct of the trial, the Government wants to ensure that a prisoner is legally represented and has access to an interpreter. Normally the essentials of a fair trial consist of the following elements:
- the accused person must be aware of the specific charges
- the accused must be given adequate time to prepare a case and be afforded the opportunity of summoning witnesses in defence
- the accused must be given the opportunity to know the substance and source of any evidence, and be given the opportunity of probing the evidence by cross examination
- the accused must be afforded the right of being defended by a lawyer of their choice
- the trial should be held before an impartial tribunal
- an Australian representative should be able to attend the judicial proceedings
- the accused must be able to understand the proceedings and have access to an interpreter if necessary.
6.17 Reporting trial results
Posts must update case specifics in CMIS and notify Consular Operations without delay of the results of trials using the ODIN topic CONSULAR/ Arrest and Detention..
Reports should contain at least the following information:
- full name of the accused
- reference to the previous advice of arrest
- departmental file number, when known
- list of charges heard and the trial verdict on each charge
- sentence passed for each guilty verdict, indicating whether gaol sentences are to be served concurrently
- expected date of release
- any indication available (specify source) of parole date
- whether an appeal is contemplated or has been lodged;
- note of anything that the accused has specifically requested not be passed to the next of kin
- • Where an Australian is sentenced to a period of imprisonment of 12 months or more the post is to advise CAU/APO, Canberra to enable consideration to be given to cancelling their passport.
6.18 Commonwealth legal financial assistance: serious overseas criminal matters
The Australian Attorney-General’s Department may help Australians facing serious criminal charges in an overseas country with the cost of their defence.
The department may cover legal fees relating to the defence, and other related expenses. They will not, generally, cover the cost of any legal fees or expenses incurred before an application is made.
Assistance is only available where the accused person is at risk of being punished by:
imprisonment for 20 years or more
the death penalty.
Assistance will not normally be granted to people who:
- Can meet the cost of their defence without incurring serious financial difficulty
- are eligible for legal assistance in the overseas country
- do not have a continuing connection with Australia.
The applicant completes the application form to the extent relevant to overseas proceedings. The form is on the Department of the Attorney General's website at: Special Circumstances (Overseas) Scheme [Attorney-General's Department]
6.19 Cancelling a passport
In accordance with Section 13 of the Australian Passports Act 2005, where a person has been arrested for a serious foreign offence (see below), arrest reporting must include sufficient information to assist the Competent Authority (Executive Director, Australian Passport Office (ED APO), Assistant Secretary, Passport Client Services Branch, (AS PCB) or Assistant Secretary, Passport Business Improvement and Integrity Branch (AS PBB) ), to make a decision:
- to not issue (ie. refuse) a passport under s13 of the Australian Passports Act 2005 and/or
- to cancel the detainee's current passport, if this is considered necessary or appropriate, taking into account the security of any arrangements for custody of the passport by local police/court authorities, including the likely duration of custody.
All passport cancellations and/or refusals in this category require a decision by the Minister. The CAR and ASO unit (CAU) of the APO, Canberra, decides whether the circumstances of the case meet the relevant criteria and, if so, will make a recommendation to the Minister on cancellation and/or refusal of the passport. CAU will enter the appropriate Passport Issuing Control System alerts and communicate directly with the post on further assistance that may be required.
A serious foreign offence is defined in the Australian Passports Act 2005 as an offence against the law of a foreign country
- for which the maximum penalty is death or imprisonment for a period of not less than 12 months
- is specified in a Minister’s Determination as a serious foreign offence, including people smuggling, terrorism, assault, child sex offences, drug trafficking and other drug-related offences
- which if committed in Australia, would be an indictable offence under the Australian Passports Act 2005 (ie. any offence other than failure to report a lost/stolen travel document) or
- when the conduct involved, even if it does not carry a penalty under the law of the country, is required under a treaty to which Australia and the country are parties to be classified as an offence for which the surrender of persons is allowed.
Refer to the OPI for instructions on requests for replacement passports when the valid travel document is being held by a local law enforcement authority or court, or where a passport has been lost, stolen or has expired.
6.20 Media enquiries about arrests (See also Section C: Information and privacy, and Section D: Dealing with the media)
The basic principles and instructions relating to privacy and dealing with the media, are in Sections C and D of the policy handbook.
6.21 Transfer of funds for prisoners and financial assistance to prisoners
Transfer of funds for prisoners and prisoner loans are in Part 3.
6.22 Representations on behalf of prisoners
Normally the Australian Government does not make formal representations on behalf of prisoners, except for Government-supported pardon applications detailed below.
Less serious matters involving the welfare of an Australian in gaol can often be resolved in the first instance by the prisoner themselves or, if this fails, by informal representations by the consular officer to the gaol authorities. The success of these representations depends largely on the consular officer's relationship with those authorities. These representations are informal and must remain so. If formal representations are proposed, the Department must be consulted beforehand.
When prisoners seek to move from one prison to another because of poor conditions and consular officers are satisfied that a move could assist the welfare of the prisoner, the officer may recommend that the Department make these representations to the local authorities.
Before making representations to local authorities at the request of a prisoner, consular officers should satisfy themselves, to the extent practicable, that the prisoner has discussed the relevant issues with their legal adviser.
The Australian Government may initiate or support an application for pardon lodged on behalf of Australian prisoners in overseas gaols when local law and practice allow, and when the prisoner has served a sentence equivalent to the sentence in Australia, less one year. The purpose behind the one-year reduction for the timing of pardon applications is to provide reasonable time for processing the pardon application through the local bureaucracy.
Posts that are asked by prisoners to initiate or support applications for pardon should provide the Consular Operations Branch with details of the crime and sentence. The Branch will determine, with independent advice when necessary, the length of sentence that would have been served in Australia for the same or a similar crime. This advice will determine the time when the Australian Government, through the relevant mission, may initiate or support a request for a pardon, ie. one year before the prisoner will have served the number of years that would have been served in Australia.
When there are special humanitarian considerations, the Australian Government may support or initiate requests for pardon even if the prisoner has not yet served a sentence equivalent to that in Australia where there is evidence of:
- medical evidence of severe deterioration in the prisoner's physical or mental health
- diagnosis of an incurable medical condition, with likelihood of severe deterioration in the near future.
These guidelines in are intended to be restrictive. Posts and/or prisoners should not expect them to be loosely applied.
Fundamental principles for posts to bear in mind for applications for pardon are:
- local law and practice must permit Australian Government intervention in the pardons process
- it is for the prisoner to decide whether a pardon application will be submitted. Neither the Government nor the relevant Australian post should proceed without the full and explicit approval of the prisoner
- prisoners, or their agents, are responsible for preparing their applications. The willingness of the Government or post to submit, when appropriate, an application should not be taken to mean that preparation of the application will be undertaken by the post
- when an application is complete or close to finalisation, the post should prepare the covering papers. This might be a letter from the Head of Mission to the relevant authority, a third person note to the local Foreign Ministry, or a combination of forms of lodgment. The post should draft the covering letters/note and fax them to the Department for consideration by Consular Branch. When warranted, the Branch may contact the prisoner's family in Australia to seek additional information or input
- when an application has been lodged, the post should, from time to time, make representations to the appropriate local authorities in support of the application. In compelling circumstances, consideration could be given to making additional representations at ministerial level or in the context of bilateral officials talks. It should not, however, be assumed that these additional representations are the norm.
6.24 Prisoner transfer
The Attorney-General's Department is responsible for policy and management of the International Transfer of Prisoners Scheme. The scheme is available, subject to eligibility, to Australians held in Thailand and in Vietnam, through bilateral agreements, and in 65 countries which are parties to the Council of Europe Convention on the Transfer of Sentenced Persons. Detailed information on the scheme is on the Attorney-General's Department website, and in the link International Prisoner Transfer Scheme from the Law and Justice section on the home page.
It is important to note that the scheme is consent-based and requires the agreement of the Minister for Justice and Customs, the Minister or Attorney-General of the Australian state to which the prisoner is seeking to transfer, and the authorities of the sentencing country, as well as consent of the prisoner.
Consular officers are to be closely involved whenever the prisoner or the Attorney-General's Department seek assistance with the transfer. The level of involvement will vary from one post to another and may depend on a number of factors, including expectations of host government authorities that diplomatic missions be involved directly, and cultural or language barriers.
Consular officers may be required to assist prisoners, their families or legal representatives in obtaining basic information about the scheme, including application forms. Information and forms are available through the Attorney-General's Department website, or by contacting the Assistant Secretary, National Law Enforcement Policy Branch, Attorney-General's Department.
While consular officers should provide assistance with basic information and eligibility requirements, requests for information that cannot be met by the website should be referred to Attorney-General's Department.
- For the Attorney-General's Department to process an application for transfer, certain information must be obtained from the relevant authorities in the sentencing country. Consular officers may be requested to assist in obtaining this information. The required information includes:
- details of the offence, conviction and sentence, including court reports and judge's remarks on sentencing (when available)
- reports on the applicant's imprisonment, including details of security classification, issues in management of the prisoner, behavioural and educational courses undertaken (when available)
- reports on the prisoner's medical status (if requested by the Attorney-General's Department).
- When documents are not in English, consular officers should provide advice and assistance to the Attorney-General's Department on translation, including arranging translation in the sentencing country when this is the most efficient and cost-effective approach.
- Consular officers may be requested to provide advice and assistance to the Attorney-General's Department on aspects of the transfer process, such as:
- keeping prisoners informed of the status of applications, based on advice from the Attorney-General's Department
- terms and conditions of transfer, including how the sentence will be enforced in Australia
- facilitating referral of the request for transfer to authorities of the sentencing country
- travel arrangements for escort officers and the prisoner
- liaising with authorities on arrangements for the physical hand-over of the prisoner to escort officers, including protocols for escort officers
- any requests for further information by the Attorney-General's Department, the sentencing country of the prisoner, their family or legal representatives.
The prisoner's application should include a consent by the prisoner for their personal information to be disclosed as necessary for the purposes of processing their application. As well as consenting to disclosure of their information to Government agencies, prisoners are asked to nominate individuals to whom their personal information may be disclosed, such as relatives or legal representatives. Consular officers should consult with the Attorney-General's Department and exercise care before disclosing personal information in response to any query.
6.25 Advice to the Department of impending release of prisoner
When a prisoner is nearing release, the post should advise Consular Operations in good time of the nature of any assistance the prisoner may require on return to Australia. If necessary, the Department will consult organisations to ascertain what assistance can be provided and advise the post. This advice will include contact names and addresses. However, it is usually up to the prisoner to apply directly to the organisation for assistance. Prisoners should make their own arrangements for air tickets and travel funds, but often their situation requires some consular assistance.
Reporting should highlight whether the prisoner will be deported directly from custody or if they will be the subject of parole conditions. Either scenario will have a bearing on the type of travel document is issued. Guidance should be sought from the APO (CAU or POS).
6.26 Pre-release counselling
All Australian states have programs for the support and reintegration into society of prisoners released from Australian gaols. These include:
- accommodation and meals
- counselling services and assistance in finding work, including special assistance through the Australian Government's work assistance programs.
Prisoner aid organisations in each capital city offering these programs are in 6.28.
Organisations with which the Department has been in touch have indicated their willingness to extend assistance to ex-prisoners returning to Australia from overseas. The extent of assistance may vary from time to time in the light of current resources.
6.27 Services offered by prisoners' aid organisations
Assistance to prisoners, ex-prisoners and their dependants may be obtained from the following specialised agencies. Some areas may have a number of agencies offering similar assistance. When there is no listing for a state or territory, it may be possible to locate an agency by referring to either the community listings at the beginning of the local telephone directory or in the local White Pages directory under 'prisoner aid'.
- Prisoners Aid (ACT)
GPO BOX 112
Canberra ACT 2601
- Tel: +61 2 6257 4866
- Email: email@example.com
- Community Restorative Centre Inc
174 Broadway (Cnr Shepherd Street)
(PO Box 91)
Broadway NSW 2007
- Tel: +61 2 9288 8700
- Fax: +61 2 9211 6518
- Website: www.crcnsw.org.au
- Darwin Prisoners Aid Association
60 Boulter Road
Berrimah NT 0828
- Tel: +61 8 8922 3777
- Fax: +61 8 8922 4832
- Offenders Aid and Rehabilitation Services of N.T
PO BOX 1028
Parap NT 0804
- Tel: +61 8 8981 0487
- Fax: +61 8 8981 1727
- Email: firstname.lastname@example.org
- Prison Fellowship Australia
PO Box 3310
Norman Park QLD 4170
- Ph: +61 7 3399 3190
- Email: email@example.com
- Website: http://prisonfellowship.org.au/homepage_54_4.html
- Australian Community Safety & Research Organisation Inc
PO BOX 440
Lutwyche QLD 4030
- Tel: +61 7 3262 6001
- Fax: +61 7 3257 0227
- Email: firstname.lastname@example.org
- Offenders Aid and Rehabilitation Services of S.A., Inc.
234 Sturt Street
Adelaide SA 5000
- Tel: +61 8 8218 0700
- Fax: +61 8 8212 5515
- Website: www.oars.org.au
- Tasmania Association of Prisoner Support Service Inc (TAPSS)
Glenorchy TAS 7010
- Tel: +61 3 6225 5042
- Email: email@example.com
- Victorian Association for the Care and Resettlement of Offenders (VACRO)
Level 1, 116 Hardware St
Melbourne VIC 3000
- Tel: 1800 049 871
- Fax: +61 3 9602 2355
- Email: firstname.lastname@example.org
- Website: www.vacro.org.au
- Outcare Inc
27 Moore St
East Perth WA 6004
- Tel: +61 8 6323 8622
- Fax: +61 8 6323 8611
- Email: email@example.com
- Website: www.outcare.com.au
Chapter 7: Medical evacuation
7.1 Consular role
When an Australian is in a hospital with inadequate facilities to treat their condition satisfactorily, a medical evacuation to adequate medical facilities should be considered. If the client has no travel insurance and cannot pay for their evacuation, or their condition is so severe there is no time to organise finance from alternate sources, a Government-financed medical evacuation may be considered. The destination of a Government-funded medical evacuation is usually a capital city in Australia.
All cases involving applications for financial assistance for medical cases must be referred to Consular Operations by cable, or in cases of extreme emergency by phone, to the Director Consular Operations or, out-of-hours to the Consular Emergency Centre. In non-urgent cases, as with other types of assistance, the client must have made every attempt to obtain funding from private sources before a loan can be considered. See Chapter 14 for details on how to give a loan to cover a medical evacuation and a checklist.
To the extent possible, the patient's views on evacuation should be sought and made known to those involved in making decisions on the evacuation. The decision rests primarily with the patient and/or the patient's family in consultation with the treating doctor. Others that may become involved in the decision-making include medical staff, the insurance company, the carrying airline and, when Government funding is involved, Consular Operations.
Medical evacuations are often sensitive and subject to media interest. While many take place without the post's knowledge or involvement (eg. by insurance companies) a post should advise Consular Operations promptly by cable of any case coming to its knowledge and any involvement by the post, however slight. The cable should contain as much relevant data as possible.
Despite the obvious heightened concern for the client's welfare in evacuation cases, consular officers must ensure that they obtain Privacy Act consent from the client or a waiver, unless an exemption applies to giving information to third parties.
In the case of a request for medical evacuation linked to illness caused by a highly communicable and potentially life threatening disease (such as Severe Acute Respiratory Syndrome), posts should provide a report by the treating medical practitioner/hospital on the patient's condition, level of infectiousness, local quarantine restrictions and fitness to travel. Consular Branch will consult the Department of Health and Ageing on all these requests and arrangements for airport reception and hospitalisation in Australia as necessary.
7.2 The decision to evacuate
As far as possible, persons involved in making decisions on medical evacuation should have the following information available:
- local availability of professional medical expertise
- knowledge of the extent of local hospital facilities, including support services such as nursing
- possible period of treatment
- cost factors, such as hospital and medical charges and evacuation costs, including costs of an escort if required
- ability of the patient, relatives or insurance company to finance medical evacuation
- the patient's need for emotional support
- the patient's condition and fitness for air travel.
Posts should always seek to ensure that hospitals are aware that the Department cannot meet hospital and medical charges. These are a matter for private arrangement between the patient and the hospital and doctors. (Chapter 14)
Head of Mission/Head of Post discretion could apply in exceptional circumstances. This could extend to include costs to collect patient, evacuate them to a suitable treatment centre which could be in Australia, local hospital and treatment costs and the cost of an escort.
In medical evacuations at Australian Government expense, the Department will accept responsibility for making the necessary decisions.
7.3 How an evacuation is arranged
For medical evacuation, the general principles for providing Government funding are the same as for repatriation. (Chapter 14)
The consular officer should follow these steps:
Step 1: Alert Consular Operations by cable to the possibility of an evacuation and keep them informed of progress.
Step 2: Consult the patient when possible, as well as the patient's doctor.
Step 3: Consult the airline which will require details for evaluation before accepting a patient. These details could include:
- patient's full name
- date and place of birth
- residential address in Australia with home and office telephone numbers of persons to be informed of the illness/accident and approached for assistance
- name and address, including telephone number of hospital
- a brief description of the patient's general condition and whether the local hospital or attending doctor considers a stretcher on the aircraft is necessary. This is usually supplied directly from the hospital to the airline by completing an airline form
- medication patient is receiving and what will be required immediately before and during flight
- any restraint required during flight (supplied by hospital or doctor)
The hospital will probably be required to make a recommendation on the need for an escort and, if required, the type of escort (see 7.4)
Step 4: If the patient cannot meet all costs before leaving the post, Consular Operations requires the following detailed breakdown of costs so it can either seek funds from relatives, friends or insurance company or approve expenditure from Departmental sources:
- airfare of patient
- return airfare for escort if provided locally
- other expenses, such as departure tax, overstay fines, etc.
Consular Operations will advise the post when funds are available and the post should enter into no obligation until it receives this advice.
Step 5: Advise Consular Operations of the airline's decision as soon as it is known and the type of escort, if required. The most common types of escort are:
- medical officer
- medical officer with psychiatric qualifications
- nurse with psychiatric qualifications
- unqualified family member or accompanying friend.
If Qantas is nominated and a medical escort is to be secured from Australia, Consular Operations will consult Qantas and arrange for the medical escort.
Medical evacuations cannot be arranged hastily, as a stretcher may have to be fitted in the originating country of the airline, eg. Australia in the case of Qantas. See the general guidance in the sections on escorts below.
Step 6: Advise Consular Operations of the final flight details and any variation in the patient's condition.
Advise the local police, if the patient was involved in an accident which might have come to police attention. In some cases, it may be necessary to seek police approval to proceed.
Inform post/s en route of any required change in aircraft and provide relevant background data. Information should include reason for medical evacuation, conditions of carriage by airline, whether or not travelling with an escort, medication carried, and complete itinerary that includes details of reception arrangements in Australia. The post/s will meet the escorted passenger and assist with transit arrangements (change of aircraft, overnight accommodation in the airport's first aid station, or hospital outside the airport).
Step 7: Ensure the ambulance is booked, tarmac clearance has been obtained for the ambulance and perhaps for the consular officer, the ambulance or other staff are available to carry the patient onto the aircraft, the hospital is aware of the departure time and necessary arrangements have been made, and the hospital account has been paid or the hospital and the patient have come to another arrangement acceptable to both. The post must not guarantee payment unless the funds have been received through Consular Special Services Account and will be Government-funded as part of the evacuation.
Obtain a medical report and hand it to the escort. If the report is not available before the patient leaves or if the hospital will not hand it to a non-medical person, the report could be forwarded through the Department to the appropriate hospital or doctor in Australia.
Step 8: When the client has departed, advise Consular Operations of the details and repeat this information by cable or telephone to post/s involved in stop-over arrangements.
When a relative or friend is conducting the medical evacuation, posts may find the following additional guidelines useful.
In case of an accident, has the next of kin been advised? Consular Operations would advise them if asked to do so. A large range of overseas events generate media interest in Australia and,consequently, relatives hearing of accidents that involve Australians may approach Consular Operations
Has the doctor in charge or hospital agreed to the patient's departure by air? The airline may request a hospital certificate to this effect
If the patient is to take prescribed medication during flight, the original prescription should be in possession of the escort, relative or friend of the patient. It would also assist local authorities to have medication in a clearly labelled container showing the patient's name and contents or prescription, especially in transit or during an unforeseen stopover, when the patient may be in either the airport's first aid station or a hospital.
If no direct flight is available, the airline must book the passenger through and must advise a second or third carrier of relevant details and requirements
Check whether reception arrangements in Australia have been made. This is the responsibility of the family in Australia, not Consular Operations.
How will flight details or last minute changes be transmitted to Australia? The accompanying escort could be advised to get in touch with the nearest Australian post which may be able to do this. In most cases, however, the carrying airline will have its own communications system. Any outstanding insurance or legal matters, should be finalised before departure. Insurance companies may have provisions covering the acceptance of a claim during a specific period. Late submission may void the eventual claim. Some insurance companies will meet the charges directly if they have a local office. Advice to insurance company (if any) in Australia.
When a relative, friend or insurance company has taken charge of an evacuation, the post should maintain contact with that person or with the airline to ensure that suitable arrangements have been made.
The Department requires posts to notify an airline when an intending passenger may be ill during the journey. Airlines have a responsibility not only for protecting the evacuee, but also other passengers.
7.4 Checklist medical treatment/medical evacuation
|1||Is Australian citizenship proven? (by passport/travel document/Passport Issuing Control System)||Yes / No|
|2||Is the recipient a short-term traveller? (usually not a long term overseas resident)||Yes / No|
|3||Does the recipient have travel insurance to cover their situation? (obtain information from travel insurance firm in writing)||Yes / No|
|4||Is the recipient able to obtain financial assistance by other means? Has the applicant provided a list of people who Conops can contact about providing financial assistance? What was the outcome of contacting those on the list? (family, friends, acquaintances, banks, travel insurance, financial institutions)||Yes / No|
|5||Is the post satisfied that medical treatment/medical evacuation is appropriate? (written documentation from doctor and/or hospital required)||Yes / No|
|6||Has the post worked out costs by obtaining itemised quote(s) for:
||Yes / No
Yes / No
|7||Has the Director Consular Operations approved the expenditure of funds?
(approval received by cable or fax, or in extreme emergencies, verbally from Director Consular Operations)
|Yes / No|
|8||Have loan details been entered into SAP and forms printed?||Yes / No|
|9||Have acknowledgement and legal documentation and UTR been signed by:
||Yes / No|
|10||Have the terms and conditions been read out loud to the person signing for the loan? Have they signed?||Yes / No|
|11||If the adult recipient is not signing for the loan, has the Explanation of Indemnity been read out loud to the recipient? Have they signed?||Yes / No|
|12||Has a copy of the acknowledgement and indemnity documents been given to the loan signatory?||Yes / No|
|13||Has the loan signatory been given documentation on payment schedule requests?||Yes / No|
|14||Has the loan amount been recorded in AUD in the loan signatory's passport?||Yes / No|
7.5 Escorts for medical evacuation
In many cases, a medical evacuee will need to be accompanied by an escort. It is likely that in these cases the airline will require an escort with medical training or qualifications. The following outlines the role and responsibility of officers in relation to escorts.
When civilian airlines are used for medical evacuation of Australians suffering from a physical or psychiatric disorder, arrangements for an escort are normally made by family or friends. In their absence, the Department co-ordinates arrangements. As any costs incurred for the escort are ultimately the patient's responsibility, they should be minimised. Relatives or friends who are on the spot may be suitable escorts if they are acceptable to the airline.
Since the decision to carry a passenger is one for the airline, local airline offices may need to consult their head offices before accepting a medical evacuee. Therefore, posts should establish contact early with the carrier.
When the Department is meeting the costs of evacuation under the conditions applying to repatriation, it will initially meet the costs for the escort and the ambulance.
The initial decision on the required qualifications of an escort is made by the airline. The person meeting the charges will then choose the escort, whether a family member, a medical practitioner or someone else qualified for the responsibility.
When a post believes a medical evacuation case may arise, it should advise Consular Operations of any preferences the patient might have for a particular escort, and whether there is a suitable local escort willing to serve on the same terms as an escort from Australia. While this advice can help Consular Operations, no firm plans can be made until the airline decides the level of escort it requires.
The return passage for the escort chosen is the responsibility of the passenger or the person paying for the medical evacuation.
In some countries, it may not be possible to procure adequate medical supplies for the journey. In these cases, the post should advise whether an escort from Australia should bring supplies and should ensure that local authorities will not create difficulties over entry of the medication.
7.6 Reception in Australia
When the patient has no relatives or friends in Australia, Consular Operations will liaise with the appropriate authorities, for example doctors and hospitals, to arrange reception. For this purpose a copy of the medical history is required.
Patients with psychiatric disorders must be examined on arrival at the airport to confirm any requirement to be placed under psychiatric care. In these cases, it is of prime importance to provide a full medical history of the patient. This may be conveyed in a sealed envelope to be examined by a medical practitioner or by the hospital of destination only.
To make proper reception arrangements, Consular Operations must have at least 48 hours notice during working hours. Staff of other departments involved may not be available on weekends and public holidays.
Treatment of mentally ill persons is covered in Australia by law, and legal and practical problems can arise when an arriving patient who is not being met by friends or relatives refuses ambulance or hospital care at the airport.
Only qualified medical practitioners in Australia have the power to certify or order the admission of a person to a psychiatric hospital. Police, however, have the power to apprehend persons they believe are mentally ill and take them for examination by a medical practitioner.
To guard against problems at the airport, posts should ensure that the attending overseas hospital establishes early direct contact with the psychiatric hospital that will admit the patient in Australia. Consular Operations will assist in making this first contact through the state health authorities. State authorities may provide a medical officer to meet the patient at the airport.
7.7 RAAF medical evacuation
In the Australian and Pacific regions the Royal Australian Air Force may undertake emergency medical evacuations when:
- suitable treatment is not available locally
- there are no other means of evacuation to a suitable centre for treatment
- a suitable aircraft is available at the time.
Posts should in the first instance contact Consular Operations or the Consular Emergency Centre when appropriate. Consular Operations will liaise with Assistant Secretary Consular Operations Branch to obtain approval to approach the RAAF, the post and Headquarters Air Command.
7.8 Notification of next of kin
If the patient requests it, or if the doctor advises it, the post should ensure that the next of kin is notified urgently if a patient is likely to die. This notification should report the doctor's assessment and advice, and should preferably be sent through Consular Operations.
Chapter 8: Deaths of Australians overseas
8.1 Consular role
The consular role in the deaths of Australians overseas aims to ensure:
- prompt notification to Consular Operations and the next of kin
- guidance and support to families or others involved
- assistance to families or others with disposal of remains and personal effects
- when no alternative is available, proper disposal of the body.
Neither the post nor Consular Operations should seek to protect the next of kin or families from information which might be unpleasant or distressing. Freedom of Information legislation does not provide for withholding information on the basis that it might cause distress. If necessary, officers should consult Chapter 1 on Freedom of Information.
8.2 Deaths overseas
Host countries have a duty to inform posts without delay of the death of one of the post's nationals, under Article 37 of the Vienna Convention.
If a post receives advice on the death of an Australian from sources other than government authorities, such as tour operators, travel agencies or friends of the deceased, the post should at once seek confirmation and additional details from government authorities, usually the local police.
When the next of kin or relatives are present and can make decisions, they should be encouraged to take charge of arrangements. When the deceased had travel insurance, the company should be encouraged to take charge of arrangements in consultation with the family.
The post should also offer assistance, within the scope of these guidelines, to relatives or friends. Consular officers should be aware that deaths are highly emotive for both relatives and friends of the deceased and the officer's handling of the case reflects strongly on the consular service and the Department as a whole.
Posts must not release the names of deceased persons to enquirers until they have received confirmation that the deceased's next of kin has been notified.
If the post considers special circumstances exist, Consular Operations may assist with the transfer of funds for costs associated with the death, disposal of remains etc. via Consular Services Special Account. When posts assist relatives in finalising accounts by using funds paid into the Consular Services Special Account they should not commit any funds from this account until they have received allocation advice from Consular Operations.
Cases may arise when relatives doubt the accuracy of information on the cause of death and may ask for further investigation. As general policy, they should be advised that this is a private legal matter that they must pursue. The sample letter to the next of kin (Sample 8.16), in its second last paragraph is intended to meet this situation. However, when the Department perceives a broader Australian interest in the matter, posts may be requested to make enquiries with local authorities.
8.3 Identification of bodies
The identity of the deceased must be established and confirmed as soon as possible. This function is normally the responsibility of the local authorities, and includes issuing a death certificate.
In some countries, particularly in remote areas, local authorities may expect an Australian consular officer to attend and assist in the procedures. Furthermore, consular officers may consider it necessary, in local conditions, to satisfy themselves about the identity of the deceased.
If there is any doubt about the identity of the deceased, posts should communicate this to Consular Operations when reporting the death. The report should include the reasons for the doubt, detail the method used for identification, and outline proposed procedures for confirmation of identity.
On receipt of advice of a death, Consular Operations normally arranges for state or territory police to notify the next of kin in person as soon as possible. If necessary, this notification will include reasons for any doubts about the identity of the deceased.
In some circumstances, positive identification may be difficult. The most common aids to identification are:
- passport photograph
- photographic driver's licence
- scars and other identifying marks
- dental charts (odontogram)
- DNA testing.
When scars or similar signs are evident, the report to Consular Operations should describe them as accurately as possible, with linear measurements in relation to adjacent physical features. When x-ray facilities are available in the morgue they may be used to identify features, such as old bone fractures.
Fingerprints of persons, other than those with a police record in Australia, are of little value as there is no general Australian requirement for fingerprinting citizens. However, it may be possible to discuss with the Australian Federal Police forensics if there is any possibility of compiling ante mortem material from the deceased's residence.
8.4 Disaster victim identification
In cases of mass casualties overseas or when identification of the deceased may be in question (eg. fire, exposure to the elements), there is a requirement under Australian legislation for the deceased to undergo disaster victim identification.
When this identification is required, the post should discuss it with local authorities to ascertain the availability of forensic experts to conduct the identification to international standards. Consular Operations will also liaise with the Australian Federal Police, who may consider sending the local authorities an offer to assist in conducting the identification.
Consular Operations should request that the Australian Federal Police arrange to discuss the identification process with the next of kin and obtain ante-mortem material from the family, as appropriate.
If disaster victim identification protocols are initiated, Consular Operations will need to ensure the relevant State Coroner is notified of the identification before the deceased is repatriated to Australia. Copies of all relevant documentation should be passed to the Coroner as a matter of priority following positive identification. The Coroner will decide whether the body can be released to the funeral director immediately on arrival in Australia or whether a further forensic examination is required.
Approval for burial/cremation in Australia following disaster victim identification can only be granted by the relevant state Coroner.
8.5 Notification of death to the Department
Posts must notify Consular Operations of the death as soon as possible by cable or phone, when there is either:
- a requirement to notify the next of kin in Australia or another country or
- no requirement for next of kin notification, but media interest is apparent or reasonably expected.
Consular Operations normally arranges for state or territory police to notify in person the next of kin as soon as they can be located
When the next of kin is known to reside in a country other than Australia, the notification cable should be sent directly to the post with consular responsibility for the country concerned with a request for the post to arrange for notification of death by the local police. This notification cable should be copied to Consular Operations.
When the notification is merely a formality (ie. an Australian expatriate who has been a long-term resident overseas who died in-country and whose remains have been disposed of locally by the family) and no consular involvement was necessary, notification may be by routine cable. In these cases, the notification would be expected to be abbreviated.
When reporting cases of deaths to Consular Operations, officers should ensure that they attribute any statement concerning the cause of death to the source from which the information was supplied.
Notifications should include the following points. Note that when an item is not available or not applicable, it should be noted:
- full name of the deceased, with date and place of birth, using the format of surname, given names, date and place of birth
- full passport details
- name of the notifying authority
- date and place of death with a brief account of cause quoting the source(s) of the information
- current location of the body
- name and address of next of kin shown in the passport and advise whether or not they have been informed
- a current estimate of local costs of burial, cremation and local disposal of ashes, cremation and return of ashes to Australia or return of the body to Australia in both local and Australian currency, using the current exchange rate. When the body has to be moved from an outlying area to a main town, the cost of this move is included in the estimate
- whether local health regulations set a time limit for burial
- full details of any personal travel insurance known to be held or located among personal papers
- any other useful information if no contacts are listed in the passport, such as a driver's licence or personal letters
- any special information affecting disposal of the body, such as that it is too badly decomposed or the local authorities require an autopsy. If an autopsy is required, provide an indication on how long it will take to obtain the autopsy report
- whether a Will can be located and whether it conveys wishes for disposal.
8.6 Disposal of the body
Local law overrides other considerations. If the local authorities insist on disposal of the body within a set time limit and the next of kin cannot be located, the local authorities will take any decision on disposal.
As soon as the wishes of the next of kin are known, Consular Operations will inform the post by cable.
When burial or cremation arrangements are made in the country of death, the time of the funeral/cremation should be notified to Consular Operations for forwarding to the next of kin.
8.7 Return of human remains to Australia
When human remains are to be returned to Australia for burial or cremation, there are requirements to meet under the Australian Quarantine Act 1908. Human remains are required to be accompanied by a death certificate, or an official copy of an official certificate, or an official extract from an entry in an official register that sets out the date, place and cause of death.
As cremation is not permitted or provided in some countries, some human remains are returned to Australia for cremation. In most cases, documentation by the local authorities in the country of death is sufficient to enable cremation to take place in Australia. When additional documentation is required, posts will receive a detailed request from Consular Operations.
If the body is to be repatriated to Australia, Consular Operations can be requested to obtain the necessary quarantine clearance. DAFF Biosecurity should be notified at least 48 hours prior to the arrival of the remains. This is to ensure DAFF Biosecurity is not placed in the position of having to refuse the entry of a body or order its cremation under quarantine supervision.
The following requirements and conditions should be covered when seeking approval from the DAFF Bio Security by cable to Consular Operations: Officers should ensure that they attribute any statement concerning the cause of death to the source from which the information was supplied.
- name and date of birth of the deceased
- advice of the date, place and cause of death
- confirmation that copies of the death certificate, together with a translation into English when necessary, will accompany the human remains. Translations made by the post will suffice, as they are required only for entry and not for judicial purposes (see 8.9). If it has been necessary to obtain an import permit, confirm that a copy will accompany the remains
- details of confirmed flight arrangements for the human remains from the post to the destination in Australia or beyond. This should also include airway bill details, including the airway bill number
- name and address of the consignee, usually a funeral director or State Coroner. If details are not known, the post should ask Consular Operations to obtain these from the next of kin
- confirmation that a copy of the Certificate of Embalmment and a translation, if required, will accompany remains.
Apart from Consular Operations, airlines, shipping companies, local or Australian undertakers or other authorities may seek quarantine approval directly from AQIS. Posts should confirm with the local undertaker or airline if they are responsible for obtaining quarantine clearance.
If official documentation setting out the date, place and cause of death is not available or the cause of death is unclear, the remains must be accompanied by an import permit. Import permits are granted/approved by DAFF Bio Security on the advice of the Department of Health and Ageing. Posts should contact Consular Operations as soon as possible if an import permit is required. Import permits are only issued on working days and take 24 to 48 hours to issue. The post may be requested to obtain a certificate from local authorities stating that death was not caused by a communicable disease.
Death from quarantinable disease
If the death certificate or official copy of an official certificate or official extract from an entry in an official register indicates that the cause of death is one of Australia's quarantinable diseases listed below, the Department of Health and Ageing requires the post to notify the National Incident Room immediately, by telephoning +61 2 6289 3030.
This number is manned 24 hours every day. The National Incident Room will notify the quarantine service and the Chief Quarantine Officer for the jurisdiction at which the human remains will be arriving. The post should provide the following information:
- name of the deceased
- date, place, cause or circumstance of death
- expected date, time and place of arrival
- transportation arrangements, including the airline and flight number of the transport aircraft, and who will be meeting the plane and transporting the body in Australia.
Australia's quarantinable diseases are:
- Dengue Fever
- Highly Pathogenic Avian Influenza
- Human Swine Influenza with Pandemic Potential
- Severe Acute Respiratory Syndrome (SARS)
- Viral Haemorrhagic Fever in Humans (VHF)
- Small Pox
- Yellow Fever
Bodies must be contained in an outer coffin or crate suitably prepared for transportation. The inner container must be hermetically sealed and may be made from lead, bronze, zinc, steel, aluminium or polythene plastic sheeting with a minimum thickness of 0.26mm. In the latter case, the polythene container must have all excess air removed and both ends hermetically sealed with double welds.
Embalming is not a legal requirement for entry into Australia under the Quarantine Act and the requirements for packing and quarantine clearance are the same whether remains are embalmed or not. However, if the body is embalmed this may be taken into consideration when determining appropriate import permit conditions, as embalming reduces the risk of infection.
If the remains are to be embalmed, they should be arterially and cavity embalmed, according to recognised codes of practice. A certificate of embalmment, translated when necessary, or a copy must accompany the remains to Australia.
In some instances, embalming may not be recommended, for example if the body is to undergo an autopsy in Australia. The institution performing the autopsy may also have other requirements which should be considered when preparing the body for transporting.
State and territory laws apply to the handling and transport of human remains. These may include additional requirements to those of the Federal Government.
8.8 Return of ashes and other human remains to Australia
There are no quarantine restrictions on the importation of human ashes after cremation. (Section P in the policy handbook)
Most Australian quarantine requirements are also the normal requirements of international airlines. If post receives enquiries regarding the importation of other remains such as bones or teeth, the enquirer should be referred to the Department of Agriculture website.
8.9 Translation of certificates
Human remains imported into Australia must be accompanied by a copy of an official death certificate or an import permit, and an embalming certificate if the remains have been embalmed. To assist entry, these certificates should be in, or translated into, English. As this requirement is only for the point of entry, this translation may be made by the post if resources permit, and it does not have to be authenticated in the normal manner. A certification on the back of the translation in the following terms is sufficient:
'To the best of my knowledge, this is a true translation of the Death/ Embalmment Certificate for
When an original death certificate does not accompany the body to Australia, posts should ensure one is obtained from the local authorities, authenticated by a consular officer, and forwarded separately to Consular Operations as soon as possible for probate and other legal purposes.
According to advice received, all states and territories will accept an original copy of an overseas death certificate for probate purposes. However, probate authorities in South Australia will only accept an original death certificate for probate when:
- for Hague Convention countries, when an apostille has been affixed to the document or the document is authenticated by the nearest Australian or British post
- for non-convention countries, when the document is authenticated by the nearest Australian or British post.
When neither of these conditions is met, the South Australian probate authorities require the death to be registered with the Registrar of Deaths Abroad and will accept the Registrar's extract from its records.
When official translations are required, they should be made by the local Foreign Ministry, or an officially accredited translator, or a member of the locally engaged staff who is employed as a translator. Australia-based members of the staff of the mission must not provide official translations.
8.10 Disposal of human remains by the Australian Government
When no relatives can be traced, or relatives are unwilling or unable to assist, or there is no time for enquiries, the post should seek approval from Consular Operations for the deceased to be buried by local authorities in a pauper's grave. When this service is not available, the Government will meet burial costs. (Chapter 20) The deceased should not be cremated without instructions from Consular Operations, as there could be a religious objection. A consular officer should attend a burial whenever possible.
8.11 Follow-up action by posts
Posts must promptly obtain copies of any formal reports on the death and supplied under local law (eg. accident or autopsy reports, etc.) and forward them to Consular Operations for dispatch to the next of kin or executor.
If funds have been transferred to post via Consular Services Special Account, the post should ensure that all accounts have been finalised and send cabled advice to Consular Operations of the acquittal of the internal order number before the case is closed.
8.12 Receipt and return of personal effects
A post should not accept the deceased's personal effects unless there is no alternative. In these circumstances, an inventory is prepared by two people. When the items to be received are held by local authorities, eg police, hospital, etc. a detailed inventory should be requested from that authority before accepting the items, to minimise disputes with the next of kin over unaccounted items.
Officers preparing inventories should observe the following:
- all items are to be individually listed, but groups of items such as letters, receipts, road maps, etc. giving the number of each are permissible
- inventories should contain the number/s of all accountable or reimbursable items, such as airline tickets (noting whether fully used), travellers cheques, bank books, cheque books, bankcards, other credit cards, and cash
- no item is to be destroyed or censored except for soiled items (eg. blood-stained) or perishable foodstuffs. Items that are disposed of should be itemised and marked as destroyed, with an explanation, for example soiled. Posts should exercise discretion when soiled items are valuable.
The post must forward two copies of the inventory to Consular Operations, together with advice of the cost of dispatch by various means (air freight, airmail, surface mail, etc.) and expected time of delivery. Costs should be quoted in local currency and Australian dollars, using current commercial exchange rates.
The two checking officers should sign a certificate that they have checked all items. This document should be retained at the post in case further checking is required later.
Cash that is bankable through the official account should be credited to Cost Centre X2100, GL Account 19200 (Unidentified/ Found Money), post's consular/passport receipts internal order (refer CE571842L) and Company Code 2000.
When property includes valuable items, posts should indicate this in the inventory's covering memorandum, together with advice on the safest means of dispatch (other than by diplomatic bag) and additional costs, for example insurance and registration
Posts should return personal papers, including cancelled passport, travellers' cheques, cheque books, airline tickets, credit cards, etc. by air freight bag to Consular Operations. The cancelled passport may be destroyed if requested by the next of kin.
At posts where local services and other forwarding agents are considered unreliable, posts should advise Consular Operations of this at the time of forwarding the inventory, and advise the cost per kilogram of air freight. In special cases, Consular Operations may give approval to use the air freight bag for dispatch to Consular Operations of personal belongings of a deceased Australian. Consular Operations may recover any freight charges from the estate or next of kin.
Items to be disposed of other than by sale at the request of the executor or the next of kin, should be given to local charities, particularly those which provide assistance to the post in its work.
Posts are not expected to arrange the sale of personal items. The sale of property, such as furniture, vehicles or boats should be arranged through a representative appointed by the executor of the estate.
On receipt of advice from Consular Operations on dispatch of items, or on receipt of funds from the executor or next of kin, the post should forward items directly to the address provided.
8.13 Passport of the deceased
In countries where the passport is not required for despatch of the remains, posts should cancel the deceased's passport when death is confirmed by a death certificate. The cancelled passport may then be handed to the next of kin or forwarded to Consular Operations to pass to the next of kin or executor. Alternately, the cancelled passport may be destroyed if requested by the next of kin.
8.14 Registration of deaths overseas
In most cases a death can be registered with the local authorities. Persons winding up an estate may then obtain a death certificate from them. If this certificate is authenticated, it is normally accepted in Australia.
Deaths which are not registrable elsewhere may be registered in Australia under the Registration of Deaths Abroad Act 1984. Deaths already registered overseas may also be registered under this Act. Registration is not compulsory, but may assist relatives in obtaining certificates or in searches of births, deaths and marriages records.
Applications for registration of deaths overseas cannot be made at Australian missions overseas and should be referred directly to the Registrar of Births, Deaths and Marriages in the deceased's state of origin. Further information may be obtainable from the ACT Registrar General's Office in Canberra:
- Office of Regulatory Services
GPO Box 158
Canberra ACT 2601
- Tel: +61 2 6207 0460
- Fax: +61 2 6207 0895
- Internet: http://www.ors.act.gov.au
- Enquiries: BDM@act.gov.au
The following may be registered:
- a death outside Australia of an Australian citizen, an Australian resident or a person receiving an Australian pension
- deaths of persons who died on Australian aircraft or ships
- deaths of persons on aircraft or ships who are not Australian but have proceeded to or departed from an Australian port.
Person includes persons other than Australian citizens.
Deaths may not be registered under the Act when:
- identity of the deceased is unknown
- death occurs in a state or territory and therefore may be registered under state law or the law of a territory of Australia.
Certain disappearances that are taken to be deaths of persons who would fulfil the conditions of a death that may be registered can also be registered when a registering officer is satisfied beyond reasonable doubt that the person has died. This evidence might be an authenticated report, aircraft manifest, ship's records/passenger list or other similar documents/statements.
An applicant for Registration of a Death Abroad must fill in the appropriate form (Form 213 ADA) which is available on the Office of Regulatory Services website and will need an original of the local death certificate and a translation, if applicable, for the Registrar to accept the application.
- The form should be printed and mailed to the Registrar, accompanied by the required documentation. Photocopies of the documentation are acceptable, but must be certified as true copies by a justice of the peace or consular officer.
Subsequent certificates, such as a copy or an extract of an entry in the Register, may only be issued by the Registrar for a fee. Current fees should be confirmed with the Registrar prior to lodging an application. Applications may be made by letter or on a form available on the website.
8.15 Death in Australia
Posts may be asked to notify the next of kin overseas of the death of a relative in Australia. This service is provided on humanitarian grounds at the request of authorities in Australia, ie. police, Public Trustees or, in some cases, the next of kin present in Australia.
Notification of death to the next of kin should be a personal visit by local police authorities. Advice by telephone, email or fax is undesirable and should be avoided.
8.16 Sample letter to next of kin of deceased persons
(usually prepared by Consular Operations - time/events permitting)
8.17 Attachment to letter to next of kin of deceased persons
Chapter 9: Estates of Australians overseas
9.1 Consular role
Estate matters, like other private legal matters, should be handled without the intervention of consular officers as much as possible. Posts should encourage judicial authorities and private persons to use normal public channels of direct communication, rather than consular officers.
Consular officers should not accept property of a deceased Australian or administer or transmit this property. An exception is countries where local law allows only consular officers to deal with this property.
In cases other than the exception above, consular officers should, when necessary, assist the deceased's family, employers, bankers or other agents to receive the deceased's property.
In the case of the deceased's personal effects, however, such as clothing and items being carried by the deceased, posts should follow the procedure in 8.12.
9.2 Administration of estates
The local administration of estates should be undertaken by a representative of the beneficiaries or the appropriate local Public Administrator. Consular officers should go no further than communicating with Consular Operations, so any beneficiaries in Australia may be informed of the existence of the estate and any pending Court proceedings.
When, in spite of this, consular officers are requested by the local authorities to administer an estate, the limits are:
- officers must obtain authorisation from Consular Operations before undertaking the role, as distinct from merely transmitting effects
- officers should explain to the local authorities their inability to act, if the case is one in which they are not empowered to do so under these guidelines. They should suggest that the person or authority making the request consult their own legal advisers.
9.3 Receipt of property
When a consular officer receives any property, two officers must prepare an inventory, which must then be signed by both the deliverer and the receiver. The post should forward a copy to Consular Operations, together with full details of the executor, or the next of kin if there is no Will. When the executor of the Will or the next of kin lives in the jurisdiction of the consular officer, the officer should notify the executor or the next of kin of the action taken, and advise that the property can be delivered only upon the granting of probate or letters of administration.
When the executor or the next of kin lives in Australia, the consular officer should retain the property until Consular Operations issues instructions for its disposal, following the grant of probate or letters of administration.
Consular officers must not destroy any effects received unless Consular Operations issues instructions to do so. Officers should record any disposal action on the inventory.
9.4 Advice to beneficiaries
When a consular officer receives notice that an application for probate of the Will of a deceased Australian has been offered, or that letters of administration are being sought in connection with the estate of an Australian citizen who died overseas intestate, the officer should communicate immediately with any possible Australian beneficiaries who may be in the jurisdiction of the post. If the officer knows of possible beneficiaries in Australia or elsewhere, they should arrange for contact through Consular Operations or the accredited post.
A consular officer, when communicating with Consular Operations or another post, should give full details of the deceased and any possible beneficiaries.
9.5 Recommendation of lawyers or agents
When beneficiaries in Australia or elsewhere are interested in being represented in the local administration of an estate, a consular officer may, if requested to do so, supply a copy of the post's list of local lawyers.
9.6 Remittance of proceeds
When consular officers are asked to remit the proceeds from an estate to a beneficiary, they should check with Consular Operations on arranging this remittance and supply all known details of the deceased and the beneficiary. When Consular Operations is satisfied that the person concerned is entitled to receive the proceeds, it will advise the post of the means to dispatch the proceeds.
If a consular officer has doubts about the identification of a beneficiary, the officer should advise Consular Operations, giving reasons for these doubts.
9.7 Death intestate
If an Australian domiciled abroad dies intestate and without known kin, the property and effects in the country of death may belong to the government of that country.
If, however, the local authority hands the proceeds of this estate to an Australian consular officer, the officer should not decline to accept. The post should retain the property and advise Consular Operations. The post should supply the following:
- a list of all effects constituting the deceased person's estate
- evidence that the person died intestate
- steps taken to discover beneficiaries
- length of the deceased person's residence in the country of death.
Consular Operations will attempt to identify and locate beneficiaries or creditors in Australia.
9.8 Receipt for property delivered
When a consular officer delivers any property to an executor, administrator, or beneficiary, the officer must obtain a receipt.
Chapter 10: Taking custody of funds and property
10.1 Custody of funds
Consular officers should not normally take charge of private funds from or on behalf of Australians abroad, whether for safe custody or transfer. This is a function of banks or financial institutions and enquirers should be advised accordingly.
This rule, however, does not apply to handling funds paid for consular services. These could include cash funds of deceased persons or funds lodged for the assistance of a consular client. In all these cases, the funds should pass into official accounts via the Consular Services Special Account.
Australians seeking assistance in transferring should be advised to use normal commercial channels. Only in exceptional circumstances would use of the official account be considered. In these exceptional circumstances, posts should seek approval by cabling full details to Consular Operations. Posts must not anticipate approval.
10.2 Custody of property
Custody services do not normally extend to looking after people's private property (ie. land and buildings).
10.3 Custody of personal effects
Consular officers should not accept custody of personal property from the owner or the owner's representative, whatever its nature. Persons seeking this service should be advised to apply to a bank, safe deposit agency or left luggage office, as appropriate.
In some countries, however, local laws make it obligatory for consular officers to accept personal effects and those laws should be respected.
The handling of effects of deceased persons is covered in this chapter and Chapter 9.
10.4 Emergency circumstances
During an emergency, consular officers have discretion to temporarily take custody of personal effects or portable assets.
When there is no emergency but the consular officer considers there is a case for assistance, the matter should be referred to Consular Operations for guidance.
10.5 Form of receipt
When property is accepted in the circumstances described above, consular officers should issue a receipt along the lines of 10.6. The receipt should make clear that the property will only be retained for three months and may be disposed of after that time. The consular officer should be satisfied that the depositor understands and accepts the conditions.
Officers should take every reasonable precaution to ensure that property is not lost or damaged.
10.6 Sample receipt
10.7 Lost property
Posts should avoid accepting lost property believed to belong to Australians if there are appropriate local authorities available and willing to undertake the task.
When posts are obliged to accept temporary custody of lost property, adequate safekeeping arrangements must be made.
There are, therefore, two procedures for property cases, depending on whether it is held by a lost property office or the post.
Items held by a lost property office or equivalent
When property is held at a local lost property office that requires assistance in locating and informing the owner, the post should obtain the following details and write directly to the owner, setting out the options and advising them to enter into direct contact with the holding authority:
- a description of the property
- any local reference number
- name and address of holder
- address where items are held and may be collected
- any charges which may be levied, including air, sea and registered mail and freight costs for return of the items and how to make payment.
Items held by the post
When a post is asked to accept lost property, it must take all steps available to check that it belongs to an Australian and the person is no longer in the area. Having done this, the post may accept custody of the goods. Australian passports are handled in accordance with OPI.
Two members of staff (preferably one Australia-based) should immediately prepare an inventory by:
- listing all items (miscellaneous papers, including road maps, may be grouped)
- providing accurate descriptions of valuable items, including serial numbers if possible
- signing the inventory as checked and found correct.
The post must then issue an official receipt(s) for any cash which can be banked in the official accounts, crediting:
Company code 2000 (Administered)
Cost Centre …X2100 (ADITEM - Admstd Rev)
GL Code …19200 (Unidentified/Found Monies)
Internal Order …. the post's consular/passport receipts internal order.
Posts should note receipt details on the inventory and notify Canberra of contact details for the recipient in Australia. Posts are not to refund money directly to recipients. When the owner of the funds cannot be identified, posts should seek advice by cable from Consular Branch before proceeding with any receipting of the funds (see Chapter 7 in the policy handbook for details on receipting and refunding unidentified/found money)
Posts should destroy soiled items or perishables, noting the inventory accordingly (including reasons for destruction) and place in a secure storage area all items retained, including personal papers such as travellers cheques, credit cards, etc.
Posts should write directly to the owner in Australia, detailing the lost items held and advising the cost in local currency for return by mail and air-freight. It would be advisable to also include in the letter the approximate AUD value of these costs. This letter should also advise the owner to forward a bank draft, in a specified currency, directly to the post if return is required, or provide instructions for disposal. The letter should also explain that, if no response is received within three months, the items will be disposed of, in accordance with Departmental policy.
10.8 Disposal of unclaimed or lost property
Unclaimed or lost property may be disposed of after three months, if no reply has been received from the owner. Goods, such as bags and clothing etc., can be disposed of either by sale with the proceeds receipted to Administered Revenue, or by donation to a relevant charity, unless it is impractical or undesirable in the public interest to do either. In either case, records of disposal must be kept as the original owner may claim compensation. When there is a need, posts may also retain some items of clothing to assist Australians in need.
Chapter 11: Children's Issues
11.1 Rights of the Child
International human rights instruments recognise that children as well as adults have basic human rights. Children also have the right to special protection because of their vulnerability to exploitation and abuse.
The overarching instrument, the United Nations General Assembly adopted the Convention on the Rights of the Child (the CRC) was signed in 1989 and incorporates the whole spectrum of human rights including the right to survival; to develop to the fullest; to protection from harm, abuse and exploitation; and to participate fully in family, cultural and social life. The CRC has 54 articles in total and Articles 43-54 are focussed on how governments should work together to ensure the rights of all children.
As a signatory to the CRC, Australia has an obligation to protect the rights of children within its jurisdiction.
11.2 Consular Authority
The authority for consular protection of Australian minors is derived from various treaties, laws and regulations. These include, but are not limited to, the CRC and the VCCR, both to which Australia is a signatory.
Consular officers therefore have clear authority to ascertain the welfare of Australian minors who are outside Australia, particularly when there is any indication that their health and safety could be at risk.
Regardless of the citizenship of the parents, Australian and Australian Permanent Resident minors abroad should be provided with appropriate consular assistance. Conversely, where consular assistance is being provided to an Australian citizen parent with non-Australian children, consular officers should be cognisant of the need to ensure the welfare of all children involved and, where appropriate, work closely with relevant foreign authorities to ensure their welfare.
Consular officers should be mindful of Article 3 of the CRC which states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
11.3 Reporting Children’s Issues
All cases involving child welfare issues must be reported promptly by cable to Canberra. If cases occur outside of Canberra’s or post’s business hours or in cases where immediate action is judged necessary to protect a child’s welfare and/or local structures/authorities are inadequate, the case should be reported by telephone to Conops/Consular Emergency Centre (CEC) and followed as soon as practical by cable.
Given the nature of these cases, it is vital that consular officers provide prompt and regular cabled reporting of developments, including accounts of individual meetings/conversations that may have an impact on the case.
Consular officers also need to be aware of their responsibility to report the commission of a serious crime which constitutes an extraterritorial offence under Australian law. DFAT officers must familiarise themselves with Chapter 3 (Managing allegations of criminal conduct overseas) as well as Administrative Circular N543/09 which outlines the key Australian extraterritorial criminal offences including child sex offences, forced marriage and female genital mutilation offences. “Child sex offences” includes sexual abuse by any Australian against any minor (including own children) overseas.
11.4 The role of International Social Service (ISS)
ISS provides social work and legal services to families, children and single adults across international borders, including family tracing and reunification, international family mediation, kinship care and other child welfare matters (including care assessments), and support for families experiencing international parental child abduction.
ISS has an international network of members and can act as an adviser in difficult child welfare cases – providing links to the local child welfare agency, advice on how child welfare issues are handled in country and links to Australian counterparts.
As ISS has many individual organisations which form part of its network, enquiries should be directed to its Australian office in the first instance, via the CEC if necessary.
ISS contact details in Australia:
ISS will either provide the information on request or, where appropriate, ISS Australia staff can make a referral to the overseas ISS network member. No fee will be charged for ISS Australia services however some ISS members overseas may charge fees for the provision of these services. Consular clients will be responsible for payment of any ISS services they utilise.
11.5 Child Abuse
Child abuse is the term used to describe different types of maltreatment inflicted on a child. It includes non-accidental physical abuse, sexual abuse, neglect and emotional abuse. It requires different and specialised responses.
In most jurisdictions local authorities will take responsibility for the protection of minors, including non-residents, but there are a number of jurisdictions where little or no local child protection and/or welfare systems exist and where the management of such allegations is significantly more complex. The aim of this section is to convey broad guidance for consular officers dealing with child abuse cases in circumstances where local authorities are unable or incapable of responding adequately in ways that recognise the need for urgent action to protect the interests of the child.
11.5.1 Managing Allegations of Child Abuse
Consular cases involving allegations of child abuse are complex and serious matters. Such allegations should be dealt with in an expeditious and sensitive manner.
Allegations of child abuse are subject to local laws and posts must liaise closely with local law enforcement and other relevant authorities. The process of determining whether a child is the victim of abuse is something that is done by professionals. It is not the role of posts to undertake detailed investigations into allegations of abuse. Consular officers should not take physical custody of children who are victims of child abuse, except in cases where there is imminent danger and all other options have been exhausted. Where the threat to the welfare of a child is deemed imminent, consular officers should evaluate the nature and severity of the danger using the Child Welfare Checklist and report immediately to the CEC.
While posts must act in accordance with the instructions of the local authorities, it is recognised that in some jurisdictions, local authorities may seek to inappropriately involve and in some cases transfer responsibility to posts. In such cases, the Government is prepared to make strong representations to host country authorities where child protection is warranted.
In all situations, but particularly in those jurisdictions lacking adequate welfare systems, posts should:
- consult with CONOPS in the first instance, providing regular updates on the case;
- establish contact with International Social Service (ISS) or their partner contacts. Chapter 11.4 provides guidance on how to contact ISS;
- seek local legal advice on
- the local legal and regulatory framework for dealing with child abuse allegations i.e. the key actors (police, child protection agencies etc.)
- the legal process (police investigation, medical report, child welfare investigation, family assessment); and
- how local law treats allegations of child abuse;
- engage local authorities, where possible, and keep them informed;
- work with like-minded consular partner countries to establish a network of reliable local NGOs/support services (counselling, shelters, lawyers etc.) to support the child and the parent; and
- handle the child and parent as separate consular clients and with complete impartiality – ideally, cases should be dealt with by different consular officers.
In cases where the accusation of abuse is against the parent/s, positions of parent/s and child will be in conflict and we need to ensure that, while the highest priority is accorded to the child, consular assistance is extended to both.
Repatriation of the child should only be considered as an option of last resort and if accompanied by a parent (or guardian), or with a parent’s (or guardian’s) explicit consent, preferably in writing. The abusing parent’s consent should only be sought where it would not be inappropriate or pose a danger to the child.
Where the child requires a travel document for repatriation, APO is to be consulted early on. There are limited circumstances where a travel document can be issued to a child without the consent of one or both of their parents. Discretion also exists for APO to consider who lodges a child passport application and where it is lodged.
Where required, Conops will contact and liaise with the relevant State/Territory child welfare agency in Australia. Conops will require the consent of the individual to discuss the matter with the agency. In cases where that is not possible and where the case is urgent in terms of protecting the interests of the child, consular officers should consult by telephone with Conops/Consular Emergency Centre (CEC).
In those cases where posts are unable to sustain the high workload associated with child abuse cases within their existing resources, they should urgently bring this to the attention of Conops and discuss options for addressing the situation in ways that enable the case to be handled appropriately.
11.6 Forced Marriage and Children
A forced marriage is a marriage in which one or both spouses do not (or, in the case of some with learning or physical disabilities, cannot) consent to the marriage and duress is involved. It can involve either adults or minors. Duress can include physical, psychological, financial, sexual and/or emotional pressure.
Child marriage is a violation of human rights and is prohibited by a number of international conventions and other instruments. While child marriage affects both sexes, girls are disproportionately affected as they are the majority of the victims.
The Australian Government is committed to protecting Australians from forced marriage including through criminal legislation passed in February 2013. The new laws have extra-territorial effect (i.e. such crimes committed overseas can be prosecuted in Australia).
Consular officers must therefore report allegations of forced marriage involving Australian or Australian Permanent Resident perpetrators and/or victims to Canberra immediately. Chapter 3.2 and Chapter 3.5 provide guidance on reporting requirements.
When passport issues are involved, consular officers should follow the instructions in the Online Passport Information (OPI) website, and take particular care when issuing a passport to a minor.
Further guidance on the management of forced marriage cases is available in Chapter 4.22.
11.7 Female Genital Mutilation (FGM)
Female genital mutilation (FGM, also known as female genital cutting), refers to procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons. FGM is mostly carried out on young girls sometime between infancy and age 15. FGM is practised throughout the world, but has a heavy concentration in Africa and in some countries in Asia and the Middle East.
FGM is criminalised in Australia by State and Territorial laws which apply extra-territorially to acts committed overseas, including performing FGM or arranging for a person to be taken or sent abroad for such purposes. Chapters 3.2 and 3.6 provide guidance to consular officers regarding their duty to report information relating to a possible case of FGM abroad involving an Australian victim or alleged perpetrator.
Consular officers should refer to the guidance provided in Chapter 11.5 Managing Allegations of Child Abuse in dealing with consular cases involving FGM. In particular, officers should
- consult with CONOPS in the first instance;
- be familiar with the local legal framework on FGM as well as medical and other local support services for victims of FGM;
- handle the child and parent/relative as separate consular clients (if the parent/relative may have been involved in arranging for the FGM to be carried out).
11.8 International Commercial Surrogacy
Surrogacy is a form of assisted reproductive treatment in which a woman carries a child for another person or couple, and then surrenders the child to that person or couple. International commercial surrogacy (in which a foreign surrogate is paid for carrying the child) is becoming increasingly popular among Australians.
Australian commissioning parents may seek consular assistance if they encounter difficulties with their international surrogacy arrangement, often due to complications with the laws or regulations of the host country.
Overseas commercial surrogacy raises many complex legal and social considerations. It is poorly regulated in many countries, which gives rise to a range of concerns for the welfare of the parties involved. In Australia, surrogacy is regulated by the states and territories. Commercial surrogacy is unlawful in all Australian states and territories except the Northern Territory. Current legislation in the Australian Capital Territory, Queensland and New South Wales, also makes it an offence for residents to enter into overseas commercial surrogacy arrangements.
Children born pursuant to a surrogacy arrangement are entitled to Australian citizenship and an Australian passport provided they meet the requirements of Australian law, namely, the Australian Citizenship Act 2007 and the Australian Passports Act 2005.
Posts should ensure they are familiar with the local legal requirements for Australians commissioning a child through a foreign surrogate. Information sharing (as appropriate and in accordance with the Privacy Act) among immigration, consular and passport officers at post can also assist in the management of surrogacy cases.
In countries where international surrogacy is prevalent, posts should ensure that the post website and Smartraveller travel advice:
- refer people to the relevant foreign authorities for information regarding local legal requirements; and
- urge Australians to seek independent legal advice regarding Australian and foreign surrogacy laws.
Questions on international surrogacy issues may be referred to the Consular Policy and Training section (CTS).
11.9 Parental Child abduction
In general terms, child abduction occurs when a child is removed from their usual place of residence to another without the consent of all persons with parental responsibility. In the consular perspective, abduction occurs when a child is removed from or to Australia without the consent of all persons with parental responsibility.
When a child is abducted from and to countries that are signatories to the Hague Convention on the Civil Aspects of International Child Abduction, action can be taken for the child to be returned to its country of habitual residence where the courts can be approached to resolve disputes about the child's custody. Assistance that may be given under this Convention is outlined in 11.9.5.
In other cases, matters of custody should be determined by the courts in the country where the child is located.
11.9.1 Consular role in child abduction cases
Consular Operations Branch has responsibility for the day-to-day management of the consular aspects of international child abduction cases involving Australians, whether a Hague Convention or non-Hague Convention case.
Allegations of child abduction are taken very seriously and must also be handled sensitively. The expectations of the non-abducting parent must be carefully managed. Posts should report all cases of child abduction or possible child abduction to the Consular Operations Branch.
Consular officers should not become involved in matters relating to custody (parental responsibility) of children. The question of custody is determined by the courts. Parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Brochures on Child Abduction are available from AGD. Consular Policy and Training (CTS) can facilitate liaison with AGD as necessary.
When providing welfare assistance to a child who is the subject of a custody disagreement, consular officers are to ensure that the child's welfare is protected at all times.
If a consular officer has any reason to believe a client is or may be in breach of, or is attempting to breach the law in a custody case, by removing a child from a foreign jurisdiction, they should immediately bring the matter to Canberra’s attention.
Consular officers in Hague Convention signatory countries should ensure that clients are made aware of the existence of the Hague Convention and its implications, particularly in cases where a single parent seeks to permanently relocate children to another Hague Convention country. While clients may not always be forthcoming with accurate information about their situation or intentions, consular officers should routinely provide this information in cases involving child custody issues. A record of advice provided to clients in this regard should be recorded in CMIS.
When making decisions on the issue of travel documents or requests for relief or repatriation when the minor is the subject of a custody dispute, the consular officer will usually have to take into account the outcome of legal proceedings in Australia. Other proceedings may also have some bearing on a decision.
Hague Convention Countries
Responsibility for all legal and procedural aspects of cases that fall under the Hague Convention resides with Attorney-General's Department (AGD). (See also A/C P1007 International Child Abduction: Allocation of responsibilities.)
Consular officers must take great care to ensure they differentiate, and are seen to do so, between the welfare and legal aspects of a case. Generally speaking, the consular officer has no role in legal matters (other than as a post box in some cases) but has a specific and significant role to play in determining the welfare of an Australian who is a minor.
Non Hague Convention Countries
The majority of cases involving the Department are abductions of minors to countries which are not signatories to the Hague Convention. Child abductions to non-Hague Convention countries are often complex and lengthy cases, and the ability of consular staff to monitor the welfare of abducted minors is often limited, as it relies on the agreement of the abducting parent or family members caring for them to provide access.
AGD cannot help with the return or access application if a child is abducted to a non-Hague Convention country. AGD may, however, be able to help parents with the cost of engaging a lawyer overseas for family law matters, including in non-Hague Convention countries.
Australia has bilateral agreements on child abduction with two non-Hague convention countries, namely Lebanon and Egypt. AGD is able to provide some assistance under those agreements to left-behind parents.
11.9.2 Enforcement of judgments
Persons seeking information on whether a particular judgment may be registered and enforced in Australia should be referred to the Australian Government Attorney-General's Department's website which provides comprehensive information
11.9.3 Child custody (parenting) orders, child abduction
Enforcement of overseas child custody orders in Australia (and Australian child custody laws overseas) may be pursued under the Family Law Act (Commonwealth ) or the Hague Convention on the Civil Aspects of International Child Abduction. Enquiries about child abduction or child custody matters should be directed to the Australian Government Attorney-General's Department in Canberra.
11.9.4 Precautions against abduction
When a parent fears that a child may be abducted and removed from Australia, they should be referred to the Attorney-General's Department in Australia through the website http://www.ag.gov.au or Child Abduction Hotline 1800 100 480.
The Family Law Act 1975 provides penalties for persons who seek to avoid current or pending decisions of the court on custody of minors. For example, under Sections 65Y and 65Z, it is an offence to take a child out of Australia in breach of a court order or pending court order.
The Family Law Act provides for circumstances when a statutory declaration can be served, forbidding the transport of a child from Australia.
The full provisions of the Family Law Act are at http://www.comlaw.gov.au/.
When a parent suspects that a child is in danger of being removed from Australia and no Australian passport has been issued for the child, the parent may request that the Passport Office in Australia raise a stop-alert for the child.
A Form PC-9 Child Alert Request form can be downloaded from the Passport Office homepage (www.passports.gov.au). Callers without access to the Internet should call Australian Passport Information Service on 13 12 32 and ask for forms to be sent to them, one for each child involved.
When a parent approaches a post requesting a stop-alert, the post should have the appropriate passport form (PC9) completed and forwarded by fax to their Regional Eligibility Centre of the Approved Senior Officer Referral Unit (Fax +61 2 6112 1029) for action as quickly as possible.
The precautions described in the preceding paragraphs are not a complete bar to abduction. Persons holding two passports, one Australian and another of a second citizenship, or using false documents, or making false statements may attempt to evade precautions. Children may also leave Australia on a passport issued before conflict arose.
Dual nationals may sometimes have a child included in a passport of their second nationality. Then, even if a child's name appears in warning lists in the context of the Family Law Act at departure points or in a notice served on carriers, it may not be possible to identify the child, particularly if a foreign script is involved.
In some cases, the Australian Federal Police may be able to assist the client by placing a barrier alert at Australian airports. Callers should be advised to consult the police website www.afp.gov.au -National Activities/Family Law or phone the police in their capital city and ask for the Family Law Unit.
11.9.5 Return of abducted children under The Hague Convention
Australia is a party to the Hague Convention on the Civil Aspects of International Child Abduction. The Convention allows a person, institution or other body with rights of custody to a child to request the return of a child if they have been wrongfully removed to, or retained in another convention country. Current information on the Convention is on the Attorney-General's Department's website: www.ag.gov.au/childabduction.
The Attorney General's Department performs the functions of the Commonwealth Central Authority for the Convention and all communication on matters under the Convention should be channelled through the Attorney-General's Department. The relevant contact in the Attorney-General's Department is the International Family Law Section, Family Law Branch. Phone: 1800 100 480 (within Australia), +61 2 6141 3100 (outside Australia), email: firstname.lastname@example.org
Persons seeking the return of a child to Australia under the Convention need to complete an application form, Form 1 of Schedule 3 of the Family Law (Child Abduction Convention) Regulations 1986. This application is on the website: www.ag.gov.au/childabduction. Parents in Australia should seek assistance from the appropriate state or territory central authority to complete the application. The state or territory central authority will forward the application to the commonwealth central authority. The commonwealth central authority, after checking that the application is in accordance with the Convention, forwards the application to the overseas central authority in the country to which the child has been removed or retained.
Persons seeking the return of a child to another Convention country from Australia, should contact the central authority in the country from which the child has been taken to obtain information about making an application under the Convention.
When a child is abducted from Australia, the person seeking the child's return may apply for Australian Government financial assistance under the Overseas Custody (Child Removal) Scheme. The application form for this Scheme is available on the website: www.ag.gov.au/childabduction. Applications should be sent to Assistant Secretary, Legal Assistance Branch, Attorney-General's Department, Robert Garran Offices, 3-5 National Circuit, Barton, ACT 2600.
The type of assistance that needs to be offered by posts in Convention countries depends on the country involved. When there are communication problems (due to language differences or for other reasons), posts may be asked to liaise between the commonwealth central authority and the local overseas central authority. Posts may also be requested to assist with arrangements for the return of a child to ensure they return safely.
Australia has entered into bilateral agreements with Egypt and Lebanon on child abduction. The agreements sets up a consultative mechanism to assist parents whose children have been abducted to either Egypt or Lebanon, as the case may be, or who are having difficulties in contacting their children. Parents whose children have been removed to Egypt or Lebanon should contact the Attorney-General's Department about applying for assistance under the bilateral agreement.
When a child has been taken to a country which is not a party to the Convention and is one with which Australia does not have a bilateral agreement, parents need to start court proceedings in the country where the child has been taken to obtain orders for their return to Australia. The Attorney-General's Department may be able to provide parents with financial assistance under the Overseas Custody (Child Removal) Scheme for these court proceedings.
11.10 Parental responsibility - the Australian perspective
Under Australian domestic law the concept of custody no longer exists. Instead, Australian law uses the term parental responsibility. The term parental responsibility in Australian legislation includes the concept of rights of custody referred to in the Convention.
Parental responsibility is defined in the Family Law Act as all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Under Australian law, there is a presumption of equal shared parental responsibility, which means that both parents have an equal role in making decisions about major long-term issues, such as where a child goes to school or major health issues. It is important to understand the difference between equal shared parental responsibility and equal time with the child. Some parents believe that equal shared parental responsibility means that the children should spend equal time with each parent. Shared parental responsibility is about parents taking an equal role in making decisions about major long-term issues that affect their children. In all decisions about children, the court is required to decide on the basis of what is in the best interests of the child.
Under the Family Law Act, a parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person's duties, powers, responsibilities or authority in relation to the child. The Family Law Act makes clear that unless a parenting order explicitly takes away a parent's rights to parental responsibility, each parent of a child who is not 18 has parental responsibility.
As arrangements for children can only be decided by a court or by agreement between parents or other persons with an interest in the care, welfare and development of a child, these remain a private legal matter.
In certain cases, applicants may be eligible for assistance from the appropriate state or territory Legal Aid Commission for legal work in Australia for overseas proceedings. Addresses are in telephone directories. Legal aid commissions have no power to grant legal aid for legal costs incurred overseas.
11.11 Maintenance proceedings
Australia is a party to the UN Convention on the Recovery Abroad of Maintenance (UNCRAM) and also has bilateral arrangements with a number of countries. Pursuant to these arrangements, the Family Law Act allows Australian authorities to enforce overseas maintenance orders, or commence new proceedings in Australian courts to obtain maintenance for a person overseas. Authorities in other countries may also enforce Australian maintenance orders or commence new proceedings in their courts to obtain maintenance for a person in Australia. All enquiries about maintenance should be referred to the Administrative and Domestic Law Section in DFAT.
11.12 Child Welfare Visits
On occasion, a non-custodial parent may request consular officials undertake a welfare visit to their child/ren. While there may be occasions where consular officers may be required to undertake this role, general practice should be to refer such clients to the ISS in Australia in the first instance (see chapter 11.5). ISS, through their offices overseas or partner organisations can provide home assessments and reports, in Australia or overseas, where there are welfare concerns.
Consular officers should seek approval and guidance from Consular Operations where a client insists that post undertake a child welfare visit.
11.13 Child Welfare Checklist
The Child Welfare Checklist should be used to report all child abuse/neglect cases. Where a consular officer assesses that a child may be in imminent danger, the CEC should be advised immediately by telephone, followed by cable including the checklist information.
Sample of the Chile Welfare Checklist
- Passport Number
- Marital Status
- Location of family
- Circumstances surrounding presence in host country (e.g. tourist, PR, business, married)
- Person or people from whom serious harm is feared or alleged
- Why serious harm is feared or alleged
- Any current injury as a result of violence from the person/people from who serious harm is feared or alleged
- Any other current injury (regardless of cause) or illness
- Any physical harm suffered in the past from the person or people now creating fear including details
- Any physical harm threatened from those people in the past including details
- Any steps taken to date to secure protection of host country authorities
- Any help sought from non-government sources – family, friends, NGOs, religious organisations etc. and the result
- Any disputes relating to the feared harm currently being adjudicated by a judicial or other host country authority
- Whether the individual is (or the persons from who harm is feared are) subject to any arrest warrants or other judicial/law enforcement orders in the host country, in Australia, or in a third country (whether or not related to the reasons for which temporary refuge is sought)
- Involvement in any other ongoing legal proceedings (whether or not related to the reasons for which temporary refuge is sought)
- If family is present in host country, are they aware that the child has sought or was intending to seek temporary refuge
- Are local or host government officials aware that the child has sought or was intending to seek temporary refuge? If so, identify those officials.
- What does the child want (e.g. to stay in the post facilities for a short period until a particular danger passes, until some reliable protection is available or to return to Australia
- If the child wishes to return to Australia, is he or she aware of any general or particular restrictions on his or her travel out of the host country under host law.
- If the child wishes to return to Australia, does he or she have access to a current travel document.
11.14 Privacy Issues and Children
Disclosure of 'personal information' is prohibited under the Privacy Act 1988 (the Privacy Act) except in five very limited circumstances, (Information Privacy Principle 11.1). (See Chapter 2 on The Privacy Act for further guidance.)
In some circumstances a third party (for example, a parent or guardian) may consent to disclosure of personal information on behalf of a child, but only if the child is unable to consent themselves.
If post assesses that a child is sufficiently mature to consent on their own behalf, it may not be appropriate to rely on consent given by another person. In deciding if post should rely on consent from a third party to release a child’s information, post should consider the best interests of the child.
Consular officers may decide to not release information about a child to the child’s parent where the child has indicated that their personal information is not to be disclosed or where post assesses that such disclosure could jeopardize the child’s safety and wellbeing.
If information is being sought by a third party (local law authorities, the AFP or state/territory police forces) to locate the child’s other parent (where that parent is absent), requests to access their information contained on the child’s passport application/s can be directed to APO (through Conops/Consular Emergency Centre) for consideration.