What to do if Arrested while visiting Australia

Being arrested in a foreign country can be an unexpected and frightening experience. Tourists visiting Australia and NSW must adhere to all local laws and regulations. But many visitors are unaware that Australian law provides fundamental rights and protections if they are arrested. Knowing these rights and your options is crucial when dealing with NSW police and navigating the criminal process.

This article is a practical guide for foreign nationals who find themselves facing the legal system within NSW.

Your Rights 

You have the right to remain silent. 

One of the most important rights you have when you are arrested in NSW is the right to silence.

In most circumstances, you are not required to answer questions put to you by police. This means you do not need to take part in an interview with police, whether it is an informal talk with police or a formal interview, known as an ERSIP. It also means you do not need to give evidence in your trial or defended hearing.

Importantly, your decision to remain silent cannot be used against you. This means that police can’t keep you in custody or refuse your bail just because you did not answer their questions. In addition, it means a jury cannot be told your decision to remain silent suggests you may have something to hide. 

Police will inform you of this right via a police caution. Any words you say or actions you make after being cautioned can be used against you, when your matter goes to Court.  

It is important to remember that at the time you’re arrested, you don’t have all of the information that Police have obtained against you. You are also likely feeling anxious or vulnerable. Before making a decision to speak with police, it is important to obtain legal advice. 

You have the right to legal advice 

It’s important to understand that you have the right to legal advice and representation. 

Many people will only contact a lawyer after they have been arrested and charged. In some circumstances, this is too late. 

As soon as you become aware that police may want to speak with you, you should contact a lawyer. A lawyer’s role is to help you, and provide you with advice. The lawyer can also speak with police on your behalf, to better understand their intentions with wanting to speak with you. 

If police speak with you without any prior warning, remember that you’re entitled to speak with a lawyer before answering questions. 

Your Rights as a Foreign National  

You have the right to interpreter.  

An appropriate interpreter must be present during any investigative procedures by police, if you have limited knowledge of the English language and difficulty communicating with reasonable fluency.

If no interpreter is available to attend in person, they may instead use a telephone interpreter.  

An interpreter will also be arranged to assist you in court free of charge. 

Alternate right to a support person  

Under NSW law, you will be considered a ‘vulnerable person’ if you are from a non-English speaking background. As a result, you are entitled to have a support person present if police are unable to arrange an interpreter for you.

You have the right to speak with a consulate.  

If you are not an Australian citizen and you are detained, the police are required to advise you of your right to communicate with a consular official from your home country. Police also have the responsibility to help facilitate this communication.  

Police must notify the consulate or embassy without delay, and investigate procedures must be deferred for a reasonable period to allow this communication to happen.  

You can also ask for the consular official to attend the place you are detained, and to arrange legal representation on your behalf.

Your family or friend can request your whereabouts.  

Police are also required to answer requests made by a relative, friend or guardian about your whereabouts, so long as you agree to the disclosure of this information.  

Visa Considerations  

If your proceedings are going to require you to stay in Australia for longer than your visa allows, the Government can issue a ‘Criminal Justice Visa’. This will allow you to remain in the country for the proceedings. If such a visa is refused, or not sought, you may be detained in immigration detention if you are not already remanded in custody pursuant to a bail refusal.  

Certain crimes committed by non-citizens can also lead to deportation, mainly those offences which carry an imprisonment term of over 12 months. If you are in Australia on a temporary visa, a higher risk of deportation exists, and even minor offences can lead to immediate deportation. Permanent residency and bridging visas are not absolute shields to deportation, and serious criminal convictions may lead to deportation.  

What to do if your Family Member is Arrested in Australia  

Contact a lawyer immediately.

Your first step should always be to engage a lawyer to help you navigate the criminal system, and guarantee your loved one is being treated fairly. 

The lawyer can speak directly with police to ensure their rights are being complied with.  

Athur Law has experience in assisting non-citizens who have been charged with serious and complex criminal offences in NSW.

Authored by Martin Vazquez & Ruby Bickford of Arthur Law

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With more than 10 years experience as a criminal lawyer, Martin Vazquez specialises in defending clients charged with complex criminal offences at trial, and in summary hearings. He is recognised as a Leading Criminal Lawyer in regional NSW by Doyle’s Guide.

He appreciates that dealing with police, understanding your rights, and the court process can be overwhelming. Martin explores all avenues to ensure his clients get the best possible outcome. For past clients, this has included having evidence excluded, charges withdrawn, and successful costs applications against the prosecution following District Court trials and Local Court hearings. 

Martin began his career working for Sydney’s largest criminal law firm. Before joining Arthur Law, Martin was a Senior Solicitor at Legal Aid NSW, where he specialised in Commonwealth Crime and Strictly Indictable matters.

Ruby Bickford is personable and perceptive, with a meticulous attention to detail. She plays a vital role in supporting the Arthur Law team, and she is committed to making sure every client feels supported throughout their matter.

Ruby is currently studying a Bachelor of Laws/Diploma of Legal Practice and has completed a Bachelor of Media and Communication at the University of Newcastle