Q & A
The following are a sample of requests for free advice
received through the tourismlegal website and the advice
TRAVEL CONSUMER ADVICE REQUIRED
Question What criminal offences must I disclose in a US ESTA
visa waiver application?
In late March I will be travelling to America for work.
However, I am worried about the ESTA Visa Waiver form and as
how to answer certain questions in customs.
To elaborate, I'm referring to one incident: In September
2008, I was Breath and Drug tested at a random roadside RTB.
I tested positive for a drug, and was charged under the Road
Transport Act, with the Offence of "Drive Vehicle with
illict drug present in blood, 1st offense".
I was not placed under arrest following this incident. I
received a fine and 6 months suspended license.
My query is: Since this is technically a drug related
offense, will it cause problems in me travelling to America?
I wrote the US consulate about this question late last year,
and their response was brief and very inconclusive. They
simply said "Driving under the influence is not an offense
of moral turpitude"
Any guidance you can give me on this issue would be very,
very appreciated. I will need to be completing my ESTA early
next week so I hope to have a reply by then.
The relevant question on the ESTA Visa Waiver Application
B) Have you ever been arrested or convicted for an offense
or crime involving moral turpitude or a violation related to
a controlled substance; or been arrested or convicted for
two or more offenses for which the aggregate sentence to
confinement was five years or more; or been a controlled
substance trafficker; or are you seeking entry to engage in
criminal or immoral activities?
The issue you raise is whether you can answer 'no', in the
light of your conviction. I assume that the exact wording of
your conviction was "Drive Vehicle with illict drug present
in blood, 1st offence".
The offence you have been convicted upon is a driving
offence, with a sub-category of an illicit drug instead of
for example over the prescribed level of alcohol.
There is no doubt that driving offences are criminal
offences - as one leading lawyer said in about 1910 "The
motor vehicle will make criminals of us all." Even parking
offences are criminal offences.
So the issue is whether a driving offence is “an offense or
crime involving moral turpitude”? The answer is no. The
description "moral turpitude" applies to serious offences,
usually felonies, such as murder, manslaughter, rape, fraud,
embezzlement, breaking and entering, drug trafficking.
Alternatively, the issue is whether the offence is "a
violation related to a controlled substance"? If this
description were widely interpreted, your violation may come
within this description. However, the ordinary
interpretation of “a violation related to a controlled
substance” is that it is intended to cover possession of,
trafficking in. cultivation of, manufacture of, receiving
proceeds of, illicit substances.
The conclusion is that your offence is essentially a driving
offence, and not a controlled substance offence.
Therefore you are entitled to answer the question 'no'.
For further information on ESTA, and to make application
follow the links to the US Government ESTA site.
Question: Can I recover travel costs in a medical claim under travel
My wife was hospitalized in Italy with acute Bronchio
pneumonia. After 2 days she was discharged into the care of
the family to convalesce. I flew from Sydney to care for
her. QBE is denying her claim for my travel costs and one
reason they gave is that I did not obtain their consent.
This is definitely a term in the contract. There is no
mention in the contract of what might compel them to ever
give consent. I am going to take it to the ombudsman but am
wondering if it is worth while seeing as how they have this
catch all term and are denying consent. Would there be any
legal grounds for striking this term down? Is it
unconscionable or bad faith or some such thing?
Disputes on the interpretation of travel insurance policies
are regularly decided by the Insurance Ombudsman. The
procedure is summarised in the travel insurance policy.
If you make an application to the Insurance Ombudsman to
determine a dispute then an assessor will look at the
information you provide and the information provided by the
travel insurer, and determine the dispute. The determination
is non-binding. The process does not cost the travel
If you are not happy with the determination, then you can
instruct me to apply to the Consumer Trader and Tenancy
Tribunal to decide the dispute, judicially. I would only
make this application if the facts and law you provide
disclose a clear claim.
I cannot give you any specific advice on your particular
dispute without having all the information, including a copy
of the policy to review. If you provide this information, I
will be able to provide an advice to you.
TRAVEL AGENT ADVICE REQUIRED
Question: Am I responsible for Frequent Flyer Memberships
Client sent letter 2yrs after his round world
travel with us and claimed that consultant advised him not
to join a frequent flyer program with any of the Star
Alliance Airlines - no way true, nor any proof! What’s your
The Travel Agent's Duty of Care extends to
making the bookings properly, selecting reputable suppliers,
checking visas and passports and recommending travel
It does not extend to advising upon frequent flyer
membership or ensuring points are credited.
Therefore, I would answer the letter to the effect that
advice on Frequent Flyer Membership and points are not part
of the services your travel agency provides - it is the
traveller's responsibility to obtain membership and ensure
points are credited on all occasions.
Question: What does a Travel Agent do if the client refuses to
co-operate with a passport validity check?
Hi there, just wanting to know as a travel agent we ask to
see peoples passports, we state on their itinerary they need
6 mths validity. If a client fails to bring this in (after
many phone calls asking) and then discover their passport is
out (even by a day) whose legal responsibility is this??
You are raising an important point concerning a travel
agent's responsibility to check upon passport validity.
You are correct to include a statement on your itinerary
that passports need 6 months validity. Also, checking
passports before travel for 6 months validity is good
practice. You are correct to choose 6 months validity
because that period applies to entry to many countries.
The question you raise is - if a client refuses to
co-operate by not allowing you to check their passport is
there anything more that you can do to protect yourself from
a claim for compensation should the client travel and be
refused entry to a country which has the 6 months validity
The answer is that you should confirm in writing (a letter
or email) to the client that -
We have requested that you bring in your passport or fax us
the information page on your passport to allow us to check
passport validity, but you have failed to do so. We have
booked your travel in good faith relying upon passport
validity, but cannot be held responsible if you are denied
entry to a country because your passport is invalid to
satisfy entry requirements because you have not given us the
opportunity to check your passport validity.
Question - Am I responsible to reimburse a client’s
airfare where they are denied entry because their passport
does not have 6 months’ validity?
My client travelled to Indonesia few weeks back, and was
refused entry as his passport did not have six months
validity. Apparently they are very strict about it. My
client is claiming for the full fare refund from us due to
not informing him regarding same.
Passenger travelled with Garuda Indonesian Airlines, who are
the people who boarded him on that flight.
I would like to know, is it really my fault that I did not
check is passport or is it the Airline's fault and what is
the passenger's part in this matter.
If a travel agent arranges travel, it is a legitimate
expectation for the client to expect that they will be
allowed entry to the destination, in terms of visa and
passport requirements that apply.
In this case of travel to Indonesia, tourist visas are
obtained at the destination airport, not prior to travel.
Therefore you did not obtain a visa for the client for this
travel. Had you needed to organise a visa, the client would
have given you their passport, in which event you would have
assumed responsibility to check passport validity.
It is arguable that a travel agent's responsibility to use
'due care and skill' extends to warning the client about
passport validity when overseas travel is arranged. For this
reason, travel agents should provide a warning on the
itinerary that they issue for the travel arrangements about
A suitable warning is -
Make sure your passport and the passports of everyone who is
travelling with you has at least six months' validity from
your planned date of return to Australia. You should also
carry copies of a recent passport photo with you in case you
need a replacement passport while overseas.
If you are not travelling on an Australian passport, you
will need to check the entry and exit requirements that
apply to your passport.
For more information on entry and exit requirements
overseas, and travel advisories, visit
Summary - in circumstances where a visa is not arranged for
a client, a warning in this form is sufficient to absolve a
travel agent's responsibility for passport validity.
In this case, the client should be told to look to the
airline is the responsible party, because under IATA
regulations, airlines are responsible to check visa validity
at check-in and deny boarding where a visa is required and
there is no valid visa. This responsibility may or may not
extend to passport validity.
If the airline is not responsible, the client will bear the
loss themselves. When the passenger asks where they could
have obtained the information, they should be directed to
the www.smartraveller.gov.au website / Travel Advisories.
Question -Can I have some information on your legal
I am looking at starting up an online travel company and am
interested in your legal training courses.
Are you able to please offer some further information about
this as it does not appear on your website.
The training courses have been tailor-made for medium to
large travel groups, dealing with documentation (client
agreements, emails, etc), advertising, travel insurance, and
travel decisions of the Consumer Trader & Tenancy tribunal.
Your needs would be different, and perhaps are dealt with on
a question by question basis. If you have a short answer
question, my advice is without charge. If it is a longer
answer question, I will provide a fee quote for you to
approve before answering the question.
Please feel free to mail order my book – Australian Travel &
Tourism Law – there is an order form on the