Australia-Indonesia Prisoner Exchange Agreement

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.

Course of negotiations

Justice authorities of both countries have been in negotiations for since April 2005 [ [http://www.cript.gov.au/agd/WWW/justiceministerHome.nsf/Page/Media_Releases_2005_2nd_Quarter_7_April_2005_-_Australia_and_Indonesia_agree_to_seek_prisoner_transfer_agreement Australia and Indonesia agree to seek prisoner transfer agreement] ] 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. [ [http://www.abc.net.au/news/newsitems/200606/s1674235.htm Govt close to finalising prisoner exchange treaty with Indonesia. 29/06/2006. ABC News Online ] ]

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. [ [http://english.people.com.cn/200612/14/eng20061214_332309.html Australia, Indonesia could finalize prisoner exchange agreement soon: minister] ] However, a draft provided by him to the Indonesian Ministry of Justice and Human Rights was deemed unacceptable in late December 2006. [ [http://news.ninemsn.com.au/article.aspx?id=151980 Australia plans prisoner exchange deal] ]

The majority of Indonesian nationals in Australian prisons are in custody for illegal immigration or illegal fishing^{reference required}, while there are eleven [ [http://www.ag.gov.au/agd/WWW/MinisterRuddockHome.nsf/Page/Interview_Transcripts_2005_Transcripts_28_April_2005_-_Transcript_-_Ray_Hadley_Morning_Programme Transcript of interview with Attorney-General Ruddock by Ray Hadley. See 3rd paragraph of response by Attorney-General] ] Australians in Indonesian prisons on drug offences. There are between 40 and 50 Indonesians in Australian prisons. [ [http://www.foreignminister.gov.au/transcripts/2006/060629_lateline.html Transcript of interview with Minister Downer by Tony Jones. See 5th Paragraph of response by Mr Downer] ]

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. [ [http://www.news.com.au/story/0,23599,21338579-2,00.html No transfer allowed for 'at least six years' | NEWS.com.au ] ] Prisoners would have to serve at least half of their sentence in the jurisdiction in which they were committed

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 [s.3]

'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.

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:
* their sentence and/or conviction must not be subject to appeal
* the offense they are convicted of must also be an offense in the receiving country
* at least six months of the sentence term must remain to be served.

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.

ee also

*Australia-Indonesia Relations
*Foreign Relations of Australia
*Foreign relations of Indonesia
*List of Australians in international prisons
*Bali Nine
*Schapelle Corby

Notes

External links

* [http://www.cript.gov.au/agd/WWW/justiceministerHome.nsf/Page/Media_Releases_2005_2nd_Quarter_7_April_2005_-_Australia_and_Indonesia_agree_to_seek_prisoner_transfer_agreement Australian Minister for Justice and Customs announces intention to seek Agreement, 7 April 2005]
* [http://www.asia-pacific-action.org/southeastasia/indonesia/netnews/2006/ind38v10.htm#Australia,%20Indonesia%20'to%20swap%20prisoners' Australia, Indonesia 'to swap prisoners', 12 October 2006]
* [http://english.peopledaily.com.cn/200612/14/eng20061214_332309.html Agreement expected early 2007]
* [http://news.ninemsn.com.au/article.aspx?id=151980 Preparations for Aus-Indo prisoner exchange agreement]
* [http://www.news.com.au/dailytelegraph/story/0,22049,20989751-5006506,00.html Indonesia rejects prisoner exchange draft, 29 December 2006]
* [http://www.austlii.edu.au/au/other/dfat/treaties/1995/7.html Australia-Indonesia Extradition Teaty, in force from 21 January 1995]
* [http://www.austlii.edu.au/au/other/dfat/treaties/1999/10.html Treaty between Australia and the Republic of Indonesia on Mutual Assistance in Criminal Matters, in force from 17 July 1999]
* [http://www.austlii.edu.au/au/legis/cth/consol_act/itopa1997396/ Australia's INTERNATIONAL TRANSFER OF PRISONERS ACT 1997]