Harming Australians.

The news hook.

In November 2024, six tourists died after drinking tainted alcohol at a backpacker hostel in Vang Vieng, Laos. Two of them were Bianca Jones and Holly Morton-Bowles, both 19, both from Melbourne. Two Danish women, an American man and a British woman also died. More than a dozen other people fell seriously ill.

Lao officials were expected to announce the conclusion of their investigation on 17 July 2026. The ABC reported that the charges under consideration were operating a business illegally, and producing or selling consumer goods hazardous to health. Together they are understood to carry up to one year in jail and a maximum fine of about $1,600. An earlier prosecution of ten people linked to the hostel, for destroying evidence, ended in fines of about $185 and suspended sentences.

The Foreign Minister, Senator Penny Wong, said the Government was "deeply frustrated and bitterly disappointed" that Lao authorities were "not pursuing the most serious charges". The Lao ambassador was called in to Canberra. A Special Envoy, Mr Pablo Kang, was asked to travel to Laos. The families have asked the Australian Government to intervene.

The question a lot of people are now asking is a legal one. Why does Australia not simply lay its own charges? The answer starts with a law written for the Bali bombings.

What happens if an Australian dies overseas?

The starting point in criminal law is territory. A country makes criminal laws for things that happen inside its borders. If an Australian dies in Laos, Lao police investigate, Lao prosecutors decide what to charge, and Lao courts decide the case under Lao law. Australian officials can ask, press, and offer help. They cannot direct.

That offer of help matters. The Australian Federal Police has repeatedly offered to assist the Lao investigation. Those offers have not been taken up. Where a foreign government declines assistance, there is no mechanism that lets Australian police investigate on that country's soil anyway. Sovereignty runs both ways.

So the territorial rule does most of the work, and it produces the result the families are objecting to. But the territorial rule is not the whole of Australian law.

Can Australia prosecute someone for killing an Australian overseas?

Yes. Parliament has said so in plain terms. Division 115 of the Criminal Code Act 1995 (Cth) is headed "Harming Australians". It creates four offences that reach conduct engaged in outside Australia where the victim is an Australian citizen or a resident of Australia.

Most Australian laws that operate overseas are aimed at Australian offenders. Division 272, the child sex offences outside Australia, works that way. Division 115 is different. It keys the jurisdiction to the victim, not the offender. The nationality of the accused is beside the point. What matters is that the person who died was Australian.

Section 115.8 confirms the reach. Each offence applies whether or not a result of the conduct occurs in Australia. Section 115.9 deals with causation: conduct causes death or harm if it substantially contributes to the death or harm. Section 115.7 makes proof of citizenship easy, by allowing a Minister to certify that a person was an Australian citizen or resident at a particular time. That certificate is prima facie evidence.

Why was Division 115 added to the Criminal Code?

The Bali bombings killed 88 Australians on 12 October 2002. Australia had no offence that fitted. Parliament passed the Criminal Code Amendment (Offences Against Australians) Act 2002 (Cth), which was assented to on 14 November 2002 and given a short retrospective operation back to 1 October 2002. The backdating was deliberate. It was 45 days, and it was measured so the new offences covered the date of the bombings.

That history explains the odd drafting still sitting in the section. Section 115.1(1)(a) refers to conduct engaged in "whether before or after 1 October 2002". For conduct before that date, the accused can only be convicted if the conduct was also an offence where it happened, and the maximum penalty is capped at the foreign maximum. There is also a bar on conviction where the person has already been convicted or acquitted of the conduct overseas. Those limits apply only to the pre-2002 conduct. For anything since, Division 115 applies on its own terms.

How much jail time for murder in Australia?

The Division 115 maximums are the same order as the state homicide offences. For conduct on or after 1 October 2002:

Section 115.1, murder of an Australian citizen or a resident of Australia: imprisonment for life.
Section 115.2, manslaughter of an Australian citizen or a resident of Australia: 25 years.
Section 115.3, intentionally causing serious harm: 20 years.
Section 115.4, recklessly causing serious harm: 15 years.

Set those against a maximum of one year and a fine of $1,600, and the families' reaction is easy to understand. Section 115.5 makes clear the Division does not exclude or limit any other Commonwealth, State or Territory law. It sits on top of everything else. For the domestic comparison, see our note on murder and manslaughter in NSW.

The fault element is the hard part.

This is where a Division 115 case gets difficult, and it is the part of the law that gets least attention in the reporting.

Section 115.1 requires the Crown to prove that the accused intended to cause, or was reckless as to causing, the death of the Australian or of any other person. Section 115.2, the manslaughter offence, requires proof that the accused intended the conduct would cause serious harm, or was reckless as to a risk that the conduct would cause serious harm.

Read those again and notice what is missing. There is no negligence limb. In NSW, a person can be convicted of manslaughter by criminal negligence without any awareness of risk at all; the test is objective. Division 115 has no equivalent. Recklessness under the Criminal Code means the accused was aware of a substantial risk and that taking it was unjustifiable in the circumstances known to them. That is a subjective state of mind, and it has to be proved beyond reasonable doubt.

Apply that to a mass poisoning. A prosecutor would have to prove that a particular person, at a particular time, actually knew there was a substantial risk that what was being served would cause serious harm, and served it anyway. Sloppiness will not do it. Failing to check will not do it. A system that let methanol into the supply chain, without more, will not do it. That is a demanding case to build about events in another country two years ago, using evidence you do not control.

Absolute liability does soften one part of the task. It applies to the element that the victim was an Australian citizen or resident, so the Crown does not have to prove the accused knew the victim was Australian, and no mistake about it is a defence. But absolute liability attaches to the citizenship element, not to the fault element that does the real work.

What crimes can you be extradited for in Australia?

Assume the evidence existed. You still have to get the accused into an Australian courtroom. Australia does not try people in their absence for offences of this kind.

Extradition runs under the Extradition Act 1988 (Cth). Australia can only ask a country to surrender a person if that country has been declared an extradition country, which usually means a bilateral treaty or a multilateral convention covering the offence. The conduct normally has to be a serious offence in both countries. Australia has bilateral extradition treaties with a long list of countries. Laos is not on it.

Even where a treaty exists, many countries will not surrender their own nationals to face trial abroad. That is a common and long-standing reservation. A Division 115 charge against a foreign national who stays at home is a charge on paper.

The related tool is the Mutual Assistance in Criminal Matters Act 1987 (Cth), which is how Australia formally asks another country for evidence. It depends on that country agreeing to help. A government that has not accepted an offer of AFP assistance is not an obvious candidate to gather and hand over a brief of evidence against its own citizens.

The Attorney-General's consent.

Section 115.6 adds one more gate. Proceedings for a Division 115 offence must not be commenced without the Attorney-General's written consent. A person may still be arrested, charged, remanded in custody, or released on bail before the consent is given, so the requirement does not stop police acting quickly. It does mean the decision to run the prosecution is taken by a Minister, not by the prosecutor alone.

Consent provisions of this kind are standard in Commonwealth offences that reach into foreign territory. Charging a foreign national over conduct in their own country is a diplomatic act as much as a legal one, and the drafting reflects that. It is one reason Division 115 has stayed close to unused since 2002. The espionage offences in Division 91 carry the same kind of gate.

Is Australia in the International Criminal Court?

Australia is a party to the Rome Statute. The International Criminal Court is not an answer here. Its jurisdiction covers genocide, crimes against humanity, war crimes and the crime of aggression. Six tourists poisoned in a hostel, however grave, is none of those things. The ICC does not review a foreign prosecutor's charging decision, and there is no international court that does.

What the law can and cannot deliver.

Division 115 answers the jurisdiction question and almost nothing else. Australia has the power. Whether it can use the power turns on three things it does not control: evidence held by a foreign government, custody of an accused who is beyond reach, and the cooperation of a state that has so far declined help.

That is why the Australian response has been diplomatic rather than forensic. Calling in an ambassador, appointing a Special Envoy, and raising the matter minister to minister are the levers that actually exist. They look weak next to a life sentence on the statute book. They are what is available.

There is a wider lesson for anyone who follows Australian criminal law. Extraterritorial offences are written after disasters, and they are written quickly. Division 115 came out of Bali. The aviation offences came out of a different gap. They are real laws with real maximum penalties. Their practical reach is set by treaties, cooperation and consent, none of which appear in the section you read.

Frequently asked.

What happens if an Australian dies overseas?

The death is investigated by the police of the country where it happened, and that country's criminal law applies. Australian consular officials can assist the family, press for a thorough investigation, and offer help through the AFP. Australia cannot direct a foreign investigation or compel a foreign prosecutor to lay a particular charge. Division 115 of the Criminal Code (Cth) gives Australia its own offences, but using them depends on evidence and on getting the accused into an Australian court.

Can Australia prosecute someone for killing an Australian overseas?

Yes, in principle. Division 115 of the Criminal Code (Cth) applies to conduct outside Australia where the victim is an Australian citizen or resident. The nationality of the offender does not matter. In practice the offences are rarely used, because the evidence sits in the foreign country and the accused is usually beyond Australian reach.

How much jail time for murder in Australia?

Under section 115.1 of the Criminal Code (Cth), murder of an Australian citizen or resident overseas carries a maximum of life imprisonment where the conduct occurred on or after 1 October 2002. Manslaughter under section 115.2 carries 25 years. Intentionally causing serious harm under section 115.3 carries 20 years. Recklessly causing serious harm under section 115.4 carries 15 years.

What crimes can you be extradited for in Australia?

Extradition runs under the Extradition Act 1988 (Cth). Australia can only make or receive a request in relation to a country declared to be an extradition country, usually under a bilateral treaty or a multilateral convention, and the conduct generally has to be a serious offence in both countries. Australia does not have a bilateral extradition treaty with every country, and many countries refuse to surrender their own nationals.

Is Australia in the International Criminal Court?

Yes, Australia is a party to the Rome Statute. But the ICC only has jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression. An ordinary killing of an Australian overseas does not fall within those categories. The ICC is not a court of appeal from a foreign prosecutor's charging decision.

Does the Attorney-General have to approve a Division 115 prosecution?

Yes. Section 115.6 says proceedings must not be commenced without the Attorney-General's written consent. A person can still be arrested, charged, remanded in custody or released on bail before that consent is given.

Why was Division 115 added to the Criminal Code?

It was inserted by the Criminal Code Amendment (Offences Against Australians) Act 2002 (Cth) after the Bali bombings of 12 October 2002. The Act was assented to on 14 November 2002 and given a limited retrospective operation back to 1 October 2002, so that it covered conduct on the date of the bombings.

Sources.

Criminal Code Act 1995 (Cth), Division 115 · Criminal Code Amendment (Offences Against Australians) Act 2002 (Cth) · Minister for Foreign Affairs, "Laos methanol developments", 17 July 2026 · Attorney-General's Department, Extradition

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 17 July 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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