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JOINT STANDING COMMITTEE ON TREATIES - 28/02/2011 - Treaties referred on 16 November 2010 and tabled on 9 and 10 February 2011

CHAIR —We will now take evidence on the treaty between Australia and the People’s Republic of China concerning transfer of sentenced persons. I call representatives from the Attorney-General’s Department and the Department of Foreign Affairs and Trade. If you nominate to take any questions on notice, could you please ensure that your written responses to questions reaches the committee secretariat within seven working days of your receipt of the transcript of today’s proceedings. I invite you to make any introductory remarks that you wish to make before we proceed to questions.

Ms Jackson —Thank you, Chair, for the opportunity to appear before you this morning. Australia’s International Transfer of Prisoners, or ITP scheme, has been in place since 2002. The purpose of the ITP scheme is to reintegrate prisoners into society by allowing them to apply to serve their sentences in their home country, without language and cultural barriers which can reduce their prospects of rehabilitation. Once transferred, the prisoner’s sentence will be enforced as far as possible as originally imposed in the sentencing country. The legislative framework for the ITP scheme is contained in the International Transfer of Prisoners Act 1997. The act operates in conjunction with Australia’s multilateral and bilateral ITP treaties, which are brought into effect through regulations made under the act. The Australian government is committed to expanding the scope of its ITP scheme, especially with Australia’s regional partners in law enforcement cooperation. To date, Australia has developed ITP agreements with Thailand, Cambodia, Hong Kong and Vietnam. Australia is also a party to the Council of Europe Convention on Transfer of Sentenced Persons, which enables us to transfer prisoners to and from 64 states’ parties.

The negotiation of a bilateral treaty with China has been a priority for the Australian government for some years. As of 25 February 2011 there are 24 Australians known to be imprisoned in China. A further seven Australians have been charged with offences. According to the Australian Bureau of Statistics prisoner census as at 30 June 2010, 174 prisoners in Australia indicated China as their country of birth. At present China is not a party to any other bilateral or multilateral arrangements which would enable prisoner transfers between Australia and China. The proposed agreement with China would strengthen Australia’s bilateral relationship with China; it would also be a tangible demonstration of Australia’s commitment to law enforcement cooperation in the region.

This treaty is broadly similar to the Council of Europe Convention on Transfer of Sentenced Persons. The agreement is consistent with the requirements of the ITP act. Most importantly, every transfer would require the consent of the prisoner and of both the Chinese and Australian governments before it could take effect. The consent of the Australian state or territory where an incoming prisoner would be detained is also required, as well as the consent of the state in which an outgoing prisoner is housed if the prisoner is a state, rather than a federal, offender. Prisoners would only be eligible for transfer to Australia if they are Australian nationals. Only prisoners who are Chinese nationals may be transferred to China. However, in exceptional circumstances both countries can agree to waive this condition.

The agreement specifies that sentences will be enforced by the continued sentence enforcement method. This means that the receiving country continues to enforce the sentence, as far as possible, as originally imposed by the sentencing country. However, if necessary the sentence may be adapted prior to transfer to make it compatible with the law of the receiving country, providing the adapted sentence is no harsher than the original sentence. The judgement against the prisoner must be final, with no further legal proceedings pending or appeals, before the conditions of transfer can be met. The agreement imposes a dual criminality requirement, meaning that the conduct for which the person was convicted and sentenced must also be criminal in the receiving country. Further, the prisoner must have at least one year left to serve on their sentence at the time they apply for transfer. This is in recognition of the length of time it can take to process an application for transfer. This requirement can be waived by agreement between Australia and China in exceptional cases.

Under the agreement, the receiving party pays the cost of transfer. In the Australian context, under administrative arrangements with the states and territories, the state or territory that the prisoner is transferring to may seek some or all of these costs from the prisoner, providing the prisoner consents to the transfer on that basis. Once the prisoner is transferred, the ongoing costs of imprisonment become the responsibility of the receiving country. The agreement specifies that the sentencing country retains jurisdiction to modify or cancel the prisoner’s conviction or sentence after the prisoner has been transferred. Arrangements for the international transfer of prisoners have been supported by successive Australian governments for humanitarian and rehabilitative reasons. The agreement is expected to reduce the financial and emotional burden on Australians who have family members imprisoned outside of Australia. The agreement is likely to enhance community protection through the effective management and monitoring of prisoners transferred back to Australia, and enables prisoners’ convictions to be recorded by the relevant authorities of their home country. The agreement is also expected to relieve demands on the Australian consular officials in China who are required to provide assistance to Australian prisoners and their families in China.

The transfer of prisoners to their home countries may also remove language and cultural barriers, and enable prisoners to undertake vocational and educational programs in prison that might not otherwise be available to foreign prisoners. One substantial benefit flowing from the ITP scheme is that it provides the Australian and Chinese governments with the opportunity to grant conditional release to transferred prisoners at the end of their non-parole periods. Examples of conditional release schemes are release on parole or licence, and weekend and home detention schemes. These schemes give prisoners the benefit of gradual reintegration back into society.

In conclusion, the arrangements to enable the international transfer of prisoners are becoming increasingly important in the administration of justice. The number of countries participating in such arrangements continues to grow. The proposed agreement will reduce the burden on the friends and family of prisoners, and assist in enabling Australians to serve their sentences within the Australian prison system where their access to better support networks can increase the prospects of successful rehabilitation. The agreement will also further cement Australia’s bilateral relationship with China.

CHAIR —You pointed out that this arrangement is growing in significance and there are over 60 of these agreements at present. How many prisoners would there be in Australia who are serving sentences that have been imposed in other countries?

Ms Jackson —My understanding is that to date there have been 78 prisoner transfers since the introduction of the scheme in 2002, but that includes both incoming and outgoing transfers. I do not have a number for the—

CHAIR —I think the committee might find it interesting to have the breakdown. I do not imagine there would be a whole lot of outgoing, but we might want to get that confirmed.

Ms Jackson —In fact I think the numbers are the reverse of one’s natural instinct: there are more leaving Australia than coming to Australia.

CHAIR —All the more reason why we would appreciate a breakdown of that, if you can provide it.

Ms PARKE —Ms Jackson, you said that the receiving party could adapt the sentence? I am thinking about a prisoner coming from China to Australia. So Australia could adapt the sentence, you said, prior to the transfer. I just cannot see anything in article 12 that says it is prior to transfer.

Ms Jackson —The normal arrangement would be that the precise sentence is negotiated between the two governments so that the prisoner can give an informed consent and the other country can give an informed consent to the transfer. So any adaptation that might occur—for example, the imposition of a non-parole period, particularly if the sentence is much longer than a similar offence would attract in Australia—would be part of the agreement.

Ms PARKE —Right, so there is no provision to adapt a sentence once they are in Australia?

Ms Jackson —No.

Ms PARKE —But there is a provision for either party to grant a pardon to the transferred person?

Ms Jackson —Yes.

Ms PARKE —So in what circumstances could a pardon be granted?

Ms Jackson —Well, that would be very rare in the Australian situation, because the Governor-General can only grant a pardon where it is clear that the conviction was wrongly imposed. So if there is substantial new evidence that would exonerate the convicted person and there is no longer any avenue of appeal open to the person, in that rare circumstance there might be a pardon granted in Australia. I am not in a position to say whether pardons are granted frequently in China, but certainly we have had three prisoners transferred from Thailand who were pardoned by the King of Thailand after their transfer and were immediately released from prison in Australia.

Ms PARKE —Has Australia ever pardoned a transferred person?

Ms Jackson —No.

Ms PARKE —I notice that the treaty only applies to prisoners who are sentenced in China where the person’s conduct that led to the conviction is also a crime in Australia. Has there ever been a case in any of our arrangements with other countries where someone has been convicted in another country for crime that is not a crime in Australia and they have wanted to transfer but they have not been able to be transferred? Because I would think that somebody in that situation would have a pretty strong claim to want to be transferred.

Ms Jackson —Our notes of negotiations as agreed between ourselves and China indicate that in such a case the transfer would occur outside of the strict terms of the treaty, but one would imagine that the terms and conditions of transfer would be quite similar. Some of Australia’s treaties do enable countries to agree to waive the dual criminality requirement and then to conduct the transfer under the terms of the treaty, but it has been specifically agreed with China that in those circumstances the transfer would be outside the terms of the treaty.

Ms PARKE —Have we ever had a situation where an Australian prisoner has been on death row and has been transferred to Australia and we have adapted the sentence accordingly?

Ms Jackson —No, it is not possible for a prisoner subject to the death penalty to be transferred. Before that can occur, the sentencing country would have to commute the sentence to a sentence of imprisonment; and then the transfer can follow the normal course.

Ms PARKE —Is Australia currently in negotiation with Indonesia over a similar treaty?

Ms Jackson —We have been in dialogue on that subject with Indonesia for quite a number of years.

Ms PARKE —And how is it progressing?

Ms Jackson —The President has indicated that he would be open to such an agreement, but Indonesia is not a party to any bilateral or multilateral treaty for the transfer of sentenced persons and does not have domestic legislation.

Senator WORTLEY —You said that at least one year of a sentence must be remaining when an application for transfer is made, the reason being, you went on to say, the time frame that a transfer would take. What is the expectation of the time frame for transfer in these situations?

Ms Jackson —I do not know that it is possible to put a time frame on individual transfers. They would vary considerably depending on the circumstances of the particular individual applying for transfer. I would imagine that in a case where there is serious illness that is the basis for the transfer things could be progressed much more quickly than in the normal course, but certainly our experience has been that it is not unusual for cases to take 12 months for consents to be arrived at.

Senator WORTLEY —What sort of reason would be given for a transfer application to take 12 months?

Ms Jackson —It is quite a complicated exchange of information about the prisoner’s conviction, about the sentence, about behaviour in prison, about the medical condition of the prisoner and so on. So there is quite a deal of information that has to pass between the parties. Often more information will be required than was originally provided. There will need to be negotiation on the actual sentence to be served in the receiving country. These things just take time.

Senator WORTLEY —Is there an agreement on a standard form of information from both parties that would be required for a transfer or can that change as the case progresses?

Ms Jackson —The standard requirements are set out in article 8 of the treaty, but they are expressed in general terms. Depending on the circumstances of a particular individual, more information—for example, more detailed medical information, including the prisoner’s condition and the medication or other treatment the prisoner receives—may need to be provided.

Senator WORTLEY —Could there be a situation where additional information is required and that could draw out the time frame taken for the transfer to occur?

Ms Jackson —That is correct.

Senator WORTLEY —Thank you.

Dr STONE —You say that, following transfer, the sentence must be enforced as far as possible. You have had some 72 of these incoming-outgoing cases with our currently existing bilateral agreements. How often have these sentences been changed in either Australia or the other country? What are the circumstances in which they have been changed? Is it due to ill health or is there some other reason that we cannot match the sentence in the other country as originally given?

Ms Jackson —One particular case of which I am aware was where several women applied to transfer from Thailand, where they were the subject of sentences of 35 or so years—from recollection. That is much longer than our law permits, where the maximum sentence is 25 years. In that case we negotiated with Thailand for a non-parole period to be set, which was broadly similar to the term that they would have served for a similar offence within Australia. It certainly happens, and it is not infrequent.

Dr STONE —So you would expect the same sort of negotiation to occur with China?

Ms Jackson —Yes.

Dr STONE —And with similar sorts of good outcomes? We have not had any evidence that there would be a problem.

Ms Jackson —One hopes so.

Dr STONE —Are most of these exchanges initiated by the prisoner?

Ms Jackson —Either the prisoner or the prisoner’s family—they may sometimes apply.

Dr STONE —So prisoners are well aware of the other treaties—with Cambodia, Vietnam, Thailand and so on—and they will obviously be made aware of this treaty if it comes to pass? Their lawyers would be very familiar with it, I presume.

Ms Jackson —I might pass to my DFAT colleagues.

Mr Sadleir —That is true.

Dr STONE —If there is an exchange, can the prisoner’s legal representation have the same sort of access via telecommunication or branches of their legal office in that other country? Is there any restriction on them having ongoing legal interaction once they are transferred either way?

Ms Jackson —Not that I am aware of, but that would be a matter for the relevant prison authorities to permit access of the kind that the prisoner seeks.

Dr STONE —What are the prisoner’s appeal mechanisms if, once they get transferred, they experience a different sort of outcome to the one they anticipated or was negotiated? Is there any appeal mechanism or process like prisons in Australia have?

Ms Jackson —Our ITP Act specifically precludes any kind of appeal, so it is very important that, before the prisoner consents to the transfer, they fully understand the terms of the transfer. It would be a matter for consular authorities to confirm the full understanding of the prisoner before agreement is reached.

Dr STONE —But if that agreed situation was not what was experienced by the prisoner, if they agreed to a certain sentence, commutation or certain set of circumstances and understood it thoroughly but it did not seem to be occurring in the other country—in this case we are talking about China—is there any mechanism of appeal? I suppose you are suggesting that, if they are a Chinese national, there would be no appeal back to our embassy, so they would have to appeal to their own country in some way.

Ms Jackson —It sounds like the situation you are postulating is in fact a breach of the treaty.

Dr STONE —A breach of the agreement, yes.

Ms Jackson —That would be a matter for diplomatic channels to take up.

Dr STONE —Thank you.

Ms LIVERMORE —The prisoner, in most instances, would need to make a request for a transfer and it all has to occur with the prisoner’s consent, but are there any risks to prisoners in that situation that you have become aware of—where the prisoner has asked to be transferred back to their home country and that has led to any kinds of repercussions within the prison system overseas?

Ms Jackson —None of which I am aware. I do not know whether our DFAT colleagues are.

Mr Sadleir —None of which I am aware of either.

Ms LIVERMORE —So are there any particular safeguards in place or does it really fall back to the normal interaction with our consular officials in the other country?

Ms Jackson —This is not a situation that we have encountered in practice, but clearly any issues that arise in the course of the transfer and subsequently would be matters that we would engage our DFAT colleagues in.

Ms LIVERMORE —Okay.

ACTING CHAIR (Mr Forrest) —Are there any further questions? I would like to ask one of my own. It is to do with assessing the willingness of the Chinese to be cooperative in this. In your opening statement, Ms Jackson, you said that China is not a signatory to any of these agreements with anybody, not even the Council of Europe. If we are successful in getting this arrangement up with China, will the Australia-China agreement be the only one that exists for China?

Ms Jackson —That is my understanding, yes.

ACTING CHAIR —Thank you for clarifying that. Are there any further questions?

Dr STONE —Ms Jackson, I think that is a very interesting point—that, for China, this is the first time they have entered into such an agreement, although there are many, many around the world and have been for many years. Did China initiate this bilateral agreement or did Australia? Is there an expectation, do you believe, that China will now enter into many other such agreements with other countries, or is it that we have many more Chinese nationals imprisoned in Australia than other developed countries do?

Ms Jackson —I am really not in a position to answer for China in this regard, but I can confirm that Australia initiated the negotiation of this treaty and in fact pre-empted it coming into force by making regulations under the act to enable a specific individual to transfer from China who was gravely ill at the time.

Dr STONE —So how were we able to do that if this treaty is not as yet in place?

Ms Jackson —Australia only needs to declare a country to be a transfer country before it has an ITP relationship with that country, and it does so by passing regulations. The advantage of having the regulations underpinned by a treaty is that then there is a reciprocal arrangement agreed between the parties.

Dr STONE —I see. So we found China quite amenable to this treaty; it is just that perhaps other countries have not made the same initiating steps?

Ms Jackson —That may well be; I am not in a position to comment.

ACTING CHAIR —Senator Birmingham, we are about to wind up but I will give you an opportunity to ask a question before I wrap things up.

Senator BIRMINGHAM —Thank you, Acting Chair. I will review the Hansard and pass anything through to the Secretariat, having not heard the other questions asked—my apologies.

ACTING CHAIR —I thank the witnesses for returning today and giving evidence. If the committee has any further questions, the committee secretariat may seek further comment from you at a later date.

Resolved (on motion by Senator O’Brien):

That this committee authorises publication of the transcript of the evidence given before it at the public hearing this day.

Committee adjourned at 11.51 am