Australia-Indonesia Prisoner Exchange Agreement

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Although there is an extradition agreement and a 'Treaty of Mutual Assistance on Criminal Matters' between Australia and Indonesia, there is currently no formal agreement for prisoner transfer between the two countries. An Australian prisoner under sentence in Indonesia must serve their entire sentence there, and vice versa.

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[edit] Course of negotiations

Justice authorities of both countries have been in negotiations for since April 2005[1] to forge a mutually acceptable Agreement.

In June 2006, Indonesia's Minister of Law and Human Rights Hamid Awaluddin stated that he and Phillip Ruddock, Australia's attorney general were 'in full agreement' about the content of a proposed agreement.[2]

Australian Justice Minister Chris Ellison had sought agreement by September 2006 and has speculated upon a completion date of early 2007 with the first prisoner transfers to occur soon after.[3] However, a draft provided by him to the Indonesian Ministry of Justice and Human Rights was deemed unacceptable in late December 2006.[4]

The majority of Indonesian nationals in Australian prisons are in custody for illegal immigration or illegal fishingreference required, while there are eleven[5] Australians in Indonesian prisons on drug offences. There are between 40 and 50 Indonesians in Australian prisons.[6]

Australian Attorney-General, Philip Ruddock, revealed on 6 March 2007 that discussions over the minimum time prisoners must serve in the country where they were sentenced had been largely resolved.[7] Prisoners would have to serve at least half of their sentence in the jurisdiction in which they were committed

[edit] Australia's International Transfer of Prisoners Act

Prisoners under death sentence in Indonesia would be excluded from the scope of the Agreement terms because of Australia's refusal to assist in the implementation of the death penalty in all cases]]The main purpose of this law is[8]

'to facilitate the transfer of prisoners between Australia and certain countries with which Australia has entered agreements for the transfer of prisoners so that the prisoners may serve their sentences of imprisonment in their countries of nationality or in countries with which they have community ties'.

It also facilitates the transfer of sentenced war criminals to Australia.

The legislation specifically includes persons subjected to punishment by US Military Commissions, thus covering David Hicks should he not be acquitted of attempted murder and providing material support for terrorism. For transfer in or out of Australia, consent of the Australian Attorney-General and any involved Australian State/Territory Attorney-General is required. Prisoners or their representatives must consent to transfer. They may only do so if they are adult and capable of doing so.

Conditions generally apply for transfer of a prisoner to or from Australia:

Transfers will not be consented to where that may frustrate extradition to an interested third country.

When a prisoner is transferred to Australia, the Attorney-General has a discretion about whether to convert the sentence imposed by the judicial system of the transferring country. He/she may:

  • affirm the sentence imposed
  • adapt the sentence only to an extent that it may conform with Australian law
  • substitute a different sentence

Any adapted or substituted sentence may not be harsher than the original sentence imposed and the Attorney-General has discretion to direct entitlements to parole including the duration of any non-parole period.

In exercising his/her discretion to determine parole conditions the Attorney-General may inform him/herself as he/she thinks fit. That may include:

  • submissions made by the transfer country or tribunal
  • views expressed by any concerned State/Territory Minister
  • views expressed by parole or prison authorities
  • the equivalent sentence that would have been imposed under Australian law
  • limitation or requirements arising from any agreements between Australia and the transferring country or Tribunal.

On transfer to Australia, no appeal or review in Australia lies against the sentence imposed by the transferring country or tribunal; nor is there any appeal against the decision of the Attorney-General concerning the enforcement of the sentence imposed by the transferring country. Prisoners transferred to Australia are taken to be federal prisoners for the purpose of classification, custodial transfer, release, conditions of imprisonment, program eligibility, temporary release, etc Prisoners transferred to Australia are entitled to any remissions and reductions of sentence to which they would be entitled under Australian law as though their sentence was for an offence against Australian federal law. Prisoners transferred from Australia cease to be prisoners under Australian law and become prisoners of the receiving country.

Pardoning, quashing of conviction, amnesty, nullification or commutation of sentence under Australian law that would have affected the sentence of an Australian prisoners transferred overseas must be communicated to the authorities of the country that received him/her. The regime of pardons, amnesties, and other nullifications or commutations of sentences available under Australian law will apply without restriction to prisoners transferred to Australia. Australia will implement any such pardons, amnesties, quashing or commutations from the transferring country or tribunal in respect of prisoners transferred in.

Transfer of a Tribunal prisoner to Australia also requires the consent of the Immigration Minister.

[edit] See also

[edit] Notes

  1. ^ Australia and Indonesia agree to seek prisoner transfer agreement
  2. ^ Govt close to finalising prisoner exchange treaty with Indonesia. 29/06/2006. ABC News Online
  3. ^ Australia, Indonesia could finalize prisoner exchange agreement soon: minister
  4. ^ Australia plans prisoner exchange deal
  5. ^ Transcript of interview with Attorney-General Ruddock by Ray Hadley. See 3rd paragraph of response by Attorney-General
  6. ^ Transcript of interview with Minister Downer by Tony Jones. See 5th Paragraph of response by Mr Downer
  7. ^ No transfer allowed for 'at least six years' | NEWS.com.au
  8. ^ s.3

[edit] External links