The Detail: When New Zealanders Get Into Trouble Overseas

Podcast: The Details

Ministry figures show there are around 60 New Zealanders in prison or captives overseas right now – what lifelines do they have at home?

At the end of October news was published that the New Zealanders Topher Richwhite and Bridget Thackery were Released from detention in Iran.

The social media influencers entered the country in July, but then their accounts went strangely silent.

The New Zealand media picked up on the story but were asked not to publish details of what happened to the couple as the government tried to negotiate their safe exit.

The case shone a spotlight on so-called “quiet diplomacy” – and the practical limits of consular assistance.

Data from the Ministry of Foreign Affairs and Trade shows that there are about 60 New Zealanders who are in prison or in captivity overseas.

read more:
* Questions of ‘quiet diplomacy’ after the release of the New Zealand couple from Iran
* The details: Crossing the diplomatic line: when ambassadors are expelled

13 arrested in China, 12 are in prison in the United States. Others are held in places like Indonesia, Thailand, the UK and Singapore.

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Many have committed drug offenses or fraud, while some have been jailed for murder.

Tim Grosser, trade minister and former ambassador to Indonesia and the US, puts it this way: “When you travel, you don’t travel under the law of New Zealand, you travel under the law and conventions of the country you’re traveling to.”

Grosser says situations where New Zealanders get into serious trouble overseas are “horribly difficult” for diplomats.

“Every situation is unique. I know there are people who underestimate the traditional response of most foreign ministries, which is to avoid publicity, to try and work behind the scenes with the authorities.

Tim Grosser. Photo: RNZ

“There is a very good reason to do that, because if you send screaming headlines in the media, the government concerned may feel that it will lose face or that its own system will question whether it will make any concessions.”

Craig Tuck is a Tauranga lawyer specializing in transnational criminal law and has represented a number of New Zealanders arrested overseas.

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Before the epidemic, he would spend about a week a month abroad, handling cases of this type.

“During the Covid period, everything really stopped, and most of this work is now starting to pick up again with people who have been detained for a period of time who need assistance.”

Tuck says diplomats have to maintain country-to-country relations in these types of situations, and that’s top of mind.

“It is often the lawyer who can say things that indicate a weak rule of law, a two-tiered rule of law, or that there are problems with the procedure and the judicial system.

“There are all kinds of cultural factors that enter into decision-making abroad and it is for transnational lawyers and advocates to start pointing out what is a fair trial and what is a fair procedure.”

When it comes to back-channel diplomatic negotiations, Grosser says the government will work with both the State Department of the country detaining the person, as well as the person’s attorneys.

“That’s a pretty reasonable approach you would take while trying to reassure the authorities that you’re not challenging their law, you were looking for some flexibility.

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“What you would do is slowly introduce political considerations into their equation about their bilateral relationship with New Zealand, because every legal system you and I have ever heard of has a consideration.”

Tuck says diplomacy can go horribly wrong when one government pushes against another, commenting on the criminal justice system or the aid it gives.

He points to the case of the Australian leaders of the Bali Nine, Andrew Chan and Myoran Sukumaran, who were executed in Indonesia in 2015, 10 years after they were arrested on drug charges. In this situation, the Prime Minister of Australia at the time, Tony Abbott, was seen by many to have overreached in his comments on bilateral relations with Indonesia when he tried to save the duo from the death penalty.

Tuck says there are some people he’s represented who have served fairly significant prison terms overseas, while others are serving long periods in prison.

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