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Thursday, 29 May 1997
Page: 3985

Senator ELLISON (Parliamentary Secretary to the Minister for Health and Family Services and Parliamentary Secretary to the Attorney-General)(1.25 p.m.) —I have been asked by the Greens to put on the record my background notes relating to this bill. The government is willing to accede to this request and I now table the background notes. I also seek leave to have them incorporated in Hansard .

Leave granted.

The document read as follows


Responses to comments, and questions with regard to the International Transfer of Prisoners Bill 1996

Rights of Indigenous People

Clarification was sought on how the International Transfer of Prisoners Bill 1996 (the Bill) will address the unique situation of some indigenous Australians imprisoned overseas. Advice was also sought on the changes that might be needed to the Migration Act 1958 to ensure that people in this particularly vulnerable position are not denied the rights that the Bill seeks to provide.

It is not the intention that indigenous Australians imprisoned overseas will be denied the opportunity to transfer to Australia under the Bill. Such persons will simply have to satisfy the same conditions for transfer to Australia which apply to any other Australian imprisoned overseas. Transfer of prisoners to Australia entails the entry of persons to Australia, and is therefore inextricably linked to the migration legislation. Accordingly, prisoner transfers cannot proceed independently of migration policy Considerations .

The Bill contains a number of prerequisites which must be satisfied before prisoners can be transferred to Australia. Clause 13 of the Bill sets out the eligibility requirements in relation to migration policy concerns. It provides that, for transfers to Australia, a person must be:

an Australian citizen; or

permitted to travel to, enter and remain in Australia indefinitely pursuant to the Migration Act 1958 and have community ties with a State or Territory.

Clearly, it is possible for indigenous Australians imprisoned overseas to satisfy these requirements. If, for example, an Australian-born indigenous Australian imprisoned overseas has not ceased to be an Australian citizen (for example, by taking out the citizenship of another country), he or she would satisfy the first limb. Alternatively, if the person is no longer an Australian citizen, he or she could satisfy the second limb by being entitled to return to Australia pursuant to the migration legislation. In each case, the prisoner could be transferred to Australia if all other conditions are satisfied.

An issue which was extensively discussed during the inquiry into the Bill by the House of Representatives Standing Committee on Legal and Constitutional Affairs (the Committee) was whether these limbs would be sufficient to cover indigenous Australians who had been forcibly removed from their families as children and taken overseas by their foster or adoptive parents. The Human Rights and Equal Opportunity Commission (HREOC) noted that such persons might not satisfy either limb of the eligibility requirements in clause 13, and suggested that a third category of eligibility should be added to cover such persons.

As pointed out above, it is possible for such persons to satisfy the eligibility requirements in clause 13. Furthermore, it would not be appropriate for the international transfer of prisoners legislation to make special provisions relating to entry to Australia in relation to indigenous Australians. The Bill is drafted in such a way as to interact with the present migration legislation. That is, after all, the overarching legislation by which persons are enabled to enter Australia. If a person is not able to enter Australia under the migration legislation, then this Bill should not create a separate right for convicted persons within a particular class of persons to enter Australia. The incongruous result would be that, for a particular class of persons (indigenous Australians), those who have been convicted of offences overseas would be automatically eligible for return to Australia, whereas law-abiding persons of the same class would have no such automatic right under the migration legislation. Therefore, if special provision is required in relation to rights of entry to Australia of indigenous Australians, this issue should be addressed in the context of the migration legislation. The real issue is whether all indigenous Australians overseas (whether imprisoned or not) should have an automatic right of return to Australia. This is clearly a wider policy issue relating to the migration legislation, and is not limited to the International Transfer of Prisoners Bill. Accordingly, the Government does not consider that this issue should delay the passage of the present legislation.

The Committee accepted these arguments (see paragraphs 2.12 to 2.28 of the Committee's report), and recommended that the Minister for Immigration and Multicultural Affairs initiate an examination of the issues surrounding the eligibility of persons, who have been removed from Australia as children, to have a right of entry to Australia (recommendation 3).

The Attorney-General has raised this matter with the Minister for Immigration and Multicultural Affairs. The minister has advised that he considers sufficient scope already exists under the migration legislation for persons to be given a right of entry to Australia in circumstances where they were taken from Australia as a child, and had lost their Australian citizenship.

Need for participation by all States and Territories

Concern was expressed about the situation that will arise if one of the Territories or States fails to agree to participate in the scheme, and it was suggested that some form of federal intervention might be appropriate in order to ensure that the legislation applies equally throughout Australia.

It is clear for a number of reasons that national application of the legislation is the ideal position. The issue of Australian participation in international prisoner transfer has been on the agenda for the Standing Committee of Attorneys-General (SCAG) for many years. The Commonwealth initially adopted an "all or nothing" approach whereby it was decided not to proceed with the scheme unless all States and Territories participated.

With the Northern Territory deciding not to participate, however, it was decided that, on balance and in light of the humanitarian considerations, proceeding without the Northern Territory's participation would be preferable to not proceeding at all.

HREOC suggested to the Committee that the problem of fragmented implementation could be overcome if the relevant State or Territory minister's consent was not necessary in order to transfer a prisoner into Australia. However, this would fundamentally change the nature of the whole scheme. The scheme is premised on a consensus agreement involving cooperation between the Commonwealth and the States/Territories.

Since there are no federal prisons, incoming prisoners will need to be imprisoned in State/ Territory prisons. It was suggested by HREOC that this problem could be overcome by the fact that incoming prisoners would be regarded as federal prisoners, and there is a constitutional obligation on the States to take federal prisoners. This argument, however, is flawed in relation to this scheme, since incoming prisoners are deemed to be federal prisoners only for sentence enforcement purposes. As explained in the Explanatory Memorandum (paragraph 128), deeming of incoming prisoners as federal prisoners is not designed to affect the agreed financial responsibilities. States and Territories agreed in SCAG to pay for incoming prisoners. If the States/Territories are to bear costs for incoming prisoners, then their consent needs to be obtained for transfers.

It has been suggested that federal intervention to force the States or Territories to participate would be an alternative way of overcoming the problems associated with fragmented implementation in Australia. Options involving the overriding of a consensus agreement have not been seriously considered because the Government simply does not consider anything other than a consensus arrangement to be viable in the particular circumstances of the legislation and the whole scheme.

As noted above, incoming prisoners will need to be housed in State/Territory prisons (at State/Territory expense). In addition, many of the prisoners who will seek to take advantage of the proposed scheme to leave Australia will be serving sentences for State and Territory offences. Accordingly, the successful participation of Australia in international prisoner transfers will depend to a large measure on the cooperation of the State and Territory authorities. SCAG has, therefore, been used as a forum over several years for consultation and discussion on this matter. The Bill is the culmination of a long and intensive consultation process with the States and Territories. It has involved an enormous amount of work and cooperative effort on both general and detailed matters at the Commonwealth and State/Territory levels. It is a delicately balanced arrangement based on a consensual agreement.

In view of these considerations, the Government agrees with the Committee's conclusion that delaying the scheme until all States and Territories have agreed to participate would be undesirable and may even lead to the collapse of the scheme, and that this is not an appropriate situation for the Commonwealth to use its constitutional powers to compel all States and Territories to participate. (For further clarification of this issue, see the discussion at pages 108 to 110 of the transcript of evidence, and at paragraphs 2.4 to 2.11 of the Committee's report.)

In all the circumstances, the Government considers that the best approach is to proceed with the scheme, and to strongly encourage the Northern Territory to participate in it. In accordance with the Committee's recommendation, the Attorney-General has recently written to his colleagues in all the States and Territories. He has drawn the Committee's report to their attention, emphasised the value of the scheme, the need for it to operate on a national basis, and the need for all States and Territories to enact complementary legislation as a matter of priority. Further follow-up action on this issue will be undertaken as necessary.

Risk of torture

Some concerns have been raised relating to ensuring that prisoners cannot be transferred to a situation where they may be subject to human rights abuses including torture, and ensuring that prisoners experiencing human rights abuses in overseas prisons are not prevented from being eligible for transfer back to Australia.

This raises issues relating to informed consent, the type of information required to be provided to prisoners, and whether the Attorney-General should refuse a transfer because of possible human rights abuses notwithstanding that a fully informed prisoner has expressed his or her willingness to transfer (for example, in order to be closer to his or her family, etc). These issues were exhaustively addressed during the Committee's inquiry. (See particularly paragraphs 2.83 to 2.94 of the Committee's report, paragraphs 13 to 18 and 41 to 48 of the Attorney-General's Department's submission of 17 February 1997 and pages 107 to 108 and 117 to 118 of the transcript of evidence.)

In relation to the sort of information that will be provided to prisoners, it is envisaged that the regulations will stipulate that appropriate information on prison conditions in other countries (for example, reports and information from independent organisations like Amnesty International or International Prison Watch) must be provided before a prisoner makes a decision. The regulations could also require prisoners to be given contact details, etc in order to give them the opportunity to obtain further information on prison conditions from relevant international organisations.

In response to the query about whether prisoners will be able to reverse a decision to be transferred up until the time that they leave the country where they are originally detained, clause 6(6) of the Bill confirms that this is the case.

It has been noted that prisoners being transferred from Australia would be protected from being sent to unsuitable destinations by virtue of the fact that Australia will be negotiating a list of "transfer countries" which, by definition, will meet some agreed standards of imprisonment and treatment of prisoners. A question was raised on how this will help an Australian citizen who might be imprisoned in a country that is not on the "transfer list", possibly being held in conditions that violate agreed standards for treatment of prisoners. The Government accepts that this will need to be considered as part of the process of negotiating prisoner transfer agreements with other countries. It may be that agreements will be entered into with particular countries that would, in other circumstances, not be considered as appropriate treaty partners. This would enable prisoners to be transferred to Australia from those countries (subject to the satisfaction of all the conditions, including consent by the other country). Outgoing transfers to these countries would be subject to the protection arising from the need for full consent and the fact that transfers will always be considered on a case-by-case basis.

Death penalty

Clarification was sought on how prisoners will be protected from being transferred to a country that may wish to apply the death penalty. As has been correctly pointed out, this is again tied in with the issue of informed consent. However, it was noted that it is particularly relevant for the war crimes tribunals cases which are excluded from the consent requirement.

It is true that, in relation to transfers of war crimes tribunal prisoners under the Bill, the consent of the prisoner is not required. However, in relation to tribunal prisoners, the Bill (in Part 5) provides only for transfers of tribunal prisoners to Australia. There will be no outwards transfers of tribunal prisoners. It should also be noted that the Statutes of the International War Crimes Tribunals do not enable the death penalty to be imposed upon conviction by the Tribunals.

In general prisoner transfer cases, the prisoners will have already had a sentence imposed and may have served some of that sentence. The purpose of a transfer will be to ensure that the prisoner continues to serve that sentence in another country. Prior to the transfer taking place, there would be discussions between Australia and the other country as to how the sentence will be enforced in the other country. If the other country proposes to enforce the sentence by way of the death penalty, then Australia would not consent to the transfer.

Senator ELLISON —The government thanks honourable senators for their contributions. In particular, the government endorses the comments by Senator Bob Collins that Australian prisoners overseas have a right to humane treatment, and also the aspects of this bill which relate to rehabilitation. The government also agrees that there will be no reduction in any sentence, that the deterrent aspect of these sentences will remain in force, and that this bill in no way is an indication that the government is going soft of anyone who offends against the criminal law of any foreign country.

I acknowledge Senator Colston's longstanding interest in this matter and thank him for his most comprehensive survey of the background of this bill and, in particular, its history. The passing of this bill will well affect and, I believe, assist consular officials, as outlined by Senator Colston. Indeed, the Senate's foreign affairs committee heard evidence from consular officials in this regard in relation to another inquiry.

Finally, it gives me much satisfaction to oversee the passage of this bill. I was involved in a matter which concerned the imprisonment of a Western Australian businessman some years ago for a matter which would not have been an offence in this country. He served 12 months in a gaol in a foreign country in circumstances which we would consider undesirable and at some risk to his health. If this bill had been law then, he could well have been transferred to Perth to serve the relevant time there, but in the context of an Australian prison and in close touch with his family. I commend the bill to the Senate.

Question resolved in the affirmative.

Bill read a second time, and passed through its remaining stages without amendment or debate.