Detention or death of a foreign national in Australia

Department of Foreign Affairs and Trade

June 2012

This brochure outlines the Responsibilities of Commonwealth, state and territory agencies in the case of detention, death or injury of a foreign national so Australia can meet its international obligations. These obligations exist under the Vienna Convention on Consular Relations (VCCR). Specific Articles of the VCCR are implemented in Australian law through the Consular Privileges and Immunities Act.

Detention of a foreign national

Rights of a detained foreign national

Where a foreign national is detained the detainee has the right to consular services from a relevant foreign consular official. Detainees should be provided with adequate interpreting services where necessary and/or required.

Rights of Consular Officials in relation to detained foreign nationals

Foreign consular officials in Australia have the right to:

NOTE: These rights do not apply where a foreign national expressly requests that they do not wish to access consular assistance.

Additional Requirements for Chinese, Vietnamese or Indonesian Nationals

Australia has bilateral consular agreements with China and Vietnam and a Memorandum of Understanding with Indonesia that impose additional obligations and requirements on Australian authorities for notifying consular officials and for providing them access to their detained nationals.

Authorities are required to do everything reasonable to provide relevant information in response to requests from Chinese, Vietnamese and Indonesian consular officials seeking to ascertain the whereabouts of their nationals, while having regard to relevant Australian laws about protection of personal information.

Specific Requirements for detained CHINESE NATIONALS

Unless a Chinese national expressly requests otherwise, Australian authorities are required to notify Chinese consular officials of the detention of one of their nationals, within three calendar days. Chinese consular officials are also entitled, under the agreement, to attend the trial or legal proceedings.

Specific Requirements for detained VIETNAMESE NATIONALS

Unless a Vietnamese national expressly requests otherwise, Australian authorities are required to notify Vietnamese consular officials of the detention of one of their nationals, within three working days.

Vietnamese consular officials are also entitled, under the agreement, to attend the trial or legal proceedings.

Specific Requirements for detained INDONESIAN NATIONALS

Indonesian consular officials must be notified of the detention of an Indonesian national within three working days, but identifying personal details must not be provided if the individual does not consent. Indonesian consular officials are also entitled, under the Memorandum of Understanding, to attend the trial or legal proceedings if they are open court proceedings and if closed, they may attend if allowed by the court.

Death of a foreign national

Notification of the death of a foreign national

The authority which is registering the death whether it be police, a coroner or other authority should inform the relevant foreign consulate of the death without delay.

Death of a Chinese, Vietnamese or Indonesian National

Australian authorities are required to inform Chinese, Vietnamese and Indonesian consular officials of the death of their nationals without delay and provide a copy of the death certificate upon request.

Injury or Hospitalisation of a Foreign National

Where a foreign national is seriously injured or hospitalised and is incapacitated, we encourage authorities to contact the person's consulate or embassy as soon as practical.

If the appointment of a guardian or trustee is required for the foreign national, the consulate should be informed.

What to do if you detain a foreign national

INFORM without delay the detained person of their rights to have the relevant consular post or embassy informed of their detention and to have access to consular assistance.

TELL DETAINEE: You can ask us to inform your consulate or embassy now or at any time in the future.

ASK DETAINEE: Do you want your consulate or embassy notified of your arrest/detention?

IF ANSWER YES: Notify their consulate or embassy without delay and their request for consular assistance.

NOTE additional requirements for Chinese, Vietnamese or Indonesian nationals below.

IF SILENCE: Do not inform the consulate or embassy apart from the exception below.

Indonesian nationals only — notify Embassy/consulate within 3 working days that their national has been detained. No identifying personal information of the detainee should be provided.

IF ANSWER NO: Do not inform the consulate or embassy apart from the exception below.

Indonesian nationals only — notify Embassy/consulate within 3 working days that their national has been detained. No identifying personal information of the detainee should be provided.

How to contact foreign consular officials

To locate relevant embassy/consulates, see the list on the Department of Foreign Affairs and Trade website.

Please direct any further questions to: