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What to Do if You're Busted With Drugs Overseas

With a Perth teenager facing a decade in a Bali prison, we asked a legal expert what he – and others like him – should do in similar situations.
Thailand's full moon party. Image via Wikimedia Commons

This article originally appeared on VICE Australia/New Zealand

On Wednesday morning, news broke that 18-year-old Perth teenager Jamie Murphy had been arrested in Bali for allegedly possessing a suspicious white powder. The recent high school graduate, who was celebrating Leavers (that's West Australian for "schoolies"), is currently being held in custody in Kuta. And thanks to Indonesia's harsh drug penalties, he may be facing 12 years in a local prison.


It's a narrative we're familiar with. Young Aussie tourists are caught with drugs throughout Asia on a semi-regular basis, and their lives change forever. For this reason we got in touch with a legal expert to find out what to do if you get busted overseas.

Donald R. Rothwell is Professor of International Law at the Australian National University College of Law in Canberra. Here's what he said:

VICE: Hi Donald, what's the first thing you should do if you're busted with drugs overseas?
Donald Rothwell: The first thing is to request a phone call to the nearest Australian embassy, or the nearest Australian consulate. You should insist on that. It's your entitlement as a foreign national in the legal system of a foreign country. Once the embassy or the consulate has been alerted, they can send a representative to be there during initial questioning with police. They can make recommendations concerning the availability of a local lawyer. So it would be critical for any young adult caught up in this situation to do this—it makes it clear straight away that the Australian citizen will be supported by their government during that crucial first phase of the investigation.

How should you act around police overseas, should you deny everything?
Well obviously if you consider yourself innocent, it's probably in your best interests to answer questions and assist the police. On the other hand if you're under suspicion, as in this case, where he was found in possession of a substance—and especially given his age, age is an important factor here—under those circumstances, you need a lawyer and a consular official to be there by your side, to assist in answering questions.


What obligations does the Australian government have here? Do they have to try their best to protect nationals when they're overseas?
It's a really good question. The Australian Government publishes what's called a Consular Services Charter which is available on the DFAT website. Under that charter, it outlines the extent of the assistance that they can provide citizens. It makes very clear that they do not give legal advice, nor do they provide legal assistance. But they will provide an Australian with details of local lawyers who can assist. They're really there as a resource, but they make it very clear they won't provide legal assistance.

So what can the Australian consulate really do, given they can't help legally?
What they can do is be relatively interventionist in terms of ensuring basic human rights are observed while citizens are held in detention.

Would the government ever make some kind of political deal to get someone released?
That's not the practice of the Australian Government. Certainly the nearest to a deal that's been made was in the case of David Hicks, and his repatriation from Guantanamo Bay. The Howard Government was very keen in 2006 to ensure the issue surrounding David Hicks was resolved, but in more regular criminal matters such as Schapelle Corby or this one, the Australian government won't engage in a deal.

Support for Australian Schapelle Corby, who was jailed in Indonesia's Kerobokan Prison for nine years. Image via Wikimedia Commons

What if you're convicted and jailed? what kind of ongoing support might you get?
You are very much on your own. The Australian Government will still ensure that consular representatives will visit the Australian in jail, and once again that goes to ensuring that their welfare and the conditions in which they're being held meet the minimum standards. But, you know, it's difficult for the Australian Government to press countries on some of these matters. Sometimes in Southeast Asia the standards of jails are considerably different to what we're used to in Australia.


Any chance of being deported and serving time back home?
We don't have what's called a "prisoner transfer agreement" with Indonesia. So that's another possible situation where a prisoner could serve out their sentence in Australia—but such an agreement has not yet been negotiated with a country like Indonesia.

Are there any other countries with strict drug laws where we have such an agreement?
Yes, we have one with Thailand, and we also have one with China. The one with China has recently come to prominence because of the situation with Matthew Ng, who was an Australian-Chinese businessman convicted of certain crimes in China who was returned and repatriated under the Australia-China prison transfer agreement.

What role does the media play in this situation? Would Australian media coverage of your family pleading for your release persuade the Indonesian government to show some mercy?
Look, I think the Indonesian Government isn't very responsive to media attention over these matters. Certainly in higher profile death penalty cases, there may well have been some merits to media attention, because it then focuses attention on Australian politicians on the significance of those issues in Australia. It often moves Australian politicians. But in these more standard cases, media attention in Australia I think has no impact on the Indonesian criminal justice process. Indeed I would suggest to you, if you think back to the media circus around Schapelle Corby, it just adds to the trauma of the accused person if they end up going to trial.

Ok, let's say you've just received a decade-long jail sentence. At that point could you take any action to get your sentence reduced?
Yes you can. As we saw with Schapelle Corby it is possible to seek parole. So there are mechanisms in the Indonesian court system for good behaviour.

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