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Thursday, 29 May 1997
Page: 3982

Senator COLSTON(1.07 p.m.) —The Senate has before it today a bill concerning the international transfer of prisoners. This bill provides a framework to enable Australians imprisoned overseas and foreign nationals imprisoned here to be returned to their home country to complete their sentences. Many honourable senators would be aware of my long-held interest in the welfare of Australians who are in prisons overseas.

Given the bill's long gestation, I am pleased to see it reach this stage. It is some 20 years since the United States first negotiated treaties permitting the transfer of US prisoners who were incarcerated overseas. Now 30 countries and nationalities are party to treaties for prisoner transfer with the United States.

Treaties for international transfer have been prepared by the United Nations, the Commonwealth of Nations and the Council of Europe. Australia has been urged to participate in such a scheme now for some years. We can go back as far as 1983 to find reference in this parliament to a scheme for prisoner transfer. This concept was debated in the context of the Transfer of Prisoners Bill 1983, which provided a method for the transfer of prisoners within the Commonwealth of Australia. In a speech addressing the Transfer of Prisoners Bill 1983, John Spender, the then member for North Sydney, noted, and I quote from the House of Representatives Hansard of 1 November 1983, page 2124:

There is also provision for transfer on cases of welfare; for example, where it is in the welfare of the prisoner because he is in a part of the country which is quite a long distance away from the part of the country where his family may live.

Given that enthusiasm for a domestic transfer scheme to a large extent was predicated on the intra-country distances which potentially hampered the welfare of a prisoner, it is strange that it has taken so long to arrive at a scheme aimed at overcoming the same fundamental problem at the international level—that is, the welfare and rehabilitation of a prisoner when the distances involved are so much greater and necessitate international travel.

Nor has the enthusiasm of the previous government been without its contradictions. On 24 October 1984, in responding to a question on notice concerning Australian prisoners in overseas prisons, the then Senator Gareth Evans, on behalf of the Attorney-General, noted that the Standing Committee of Attorneys-General was considering the international transfer of prisoners. He expressed the hope that a final negotiating position could be reached by the end of 1984 or early 1985. Thereafter, it was expected that affected prisoners could be transferred as early as 1986.

In 1991, however, when confronted with a question of the return of Mr James Savage from the United States, Senator Tate, the then Minister for Justice and Consumer Affairs, was quite hesitant to commit Australia's entry to any treaty which would facilitate the international transfer of prisoners. Senator Tate concluded his remarks by noting in relation to possible treaties that—and I quote from the Senate Hansard of 9 October 1991, page 1655:

A very considerable number of legal hurdles . . . would stand in the way of their being negotiated successfully.

On 18 August 1993, in response to a question I asked in the Senate, Senator Bolkus, representing the Attorney-General, acknowledged that the Commonwealth remained in favour of a transfer scheme although he foreshadowed it might take two or three years from that date to put one into place. I raised the question again on 8 February 1995 at which time it was anticipated that the legislation would be introduced in mid-1995.

We now find ourselves approaching the halfway point of 1997 and it would appear that, many years after the issue was first raised in this parliament, legislation to implement a scheme is imminent. The Standing Committee of Attorneys-General and the officers who have assisted in the task of having this legislation and complementary state legislation drafted are to be applauded for their persistence.

In his second reading of the bill in November 1996, the Attorney-General, the Hon. Daryl Williams, noted the advantages in Australia's participation in the international transfer of prisoners. These included the scheme's humanitarian objectives, the possi bility of assisting in the rehabilitation of the prisoners, its potential for relieving pressure on Australia's consular posts and the possible savings to the states if there is a net outflow of prisoners.

There appears to be little dissent from the bill's humanitarian, rehabilitative and economic objectives. There remains, however, a degree of scepticism among members of the general public. Some consider a scheme facilitating the transfer of prisoners presents criminals with a soft option—that in committing a crime overseas they will be afforded the luxury of a safety net to return home. Some recent high profile cases, such as the arrest and subsequent imprisonment of three Australians in Thailand, have revealed that a significant number of members of the public believes that Australian citizens who commit crimes overseas should be subject to the laws of the country in which the crime was committed and should serve their sentences in that country.

In addressing this bill I wish to raise three points. First, in supporting this bill, I reassure the public that the Commonwealth is not going soft on criminals. Second, it is absolutely essential to create and maintain a high level of trust between authorities and the public in participating countries. Third, given the persuasiveness of the financial advantages of the scheme, I shall examine the issue of the number of prisoners who might be affected.

Going back to the first point, I make it absolutely clear that this bill does not give those considering crime overseas a soft option of returning home. Even though these people are Australian citizens, we cannot condone the activity which led to their detention. Furthermore, in becoming a party to international prisoner transfer treaties, as Australians we must not cast aspersions on the judicial systems of other countries. We have to respect the right of other countries to set penalties as they see appropriate. The primary goal of transferring prisoners under this scheme is a humanitarian one.

Although it is often glossed over, facilitating the rehabilitation of a prisoner should be given a high priority. To those who continue to maintain that Australians should complete their sentences overseas, I reiterate some points I made in this chamber about 12 months ago. At that time I said—and I quote from the Senate Hansard of 6 May 1996, page 378:

A most distressing aspect of having a family member imprisoned overseas is that many people simply cannot afford to go overseas to visit their loved ones. Some do make supreme sacrifices to keep in touch, but even then they can see one another only on an irregular basis.

If prisoners were allowed to complete their sentences in Australia their parents, their friends, their spouses and their immediate families would have more ready opportunities to visit them on a regular basis.

And I re-emphasise a further point I made during the same speech when I said:

If we subscribe to the notion that prisons should be a place of rehabilitation, it could be argued that a person who is going to re-enter Australian society would be better rehabilitated here than in some overseas prison.

Nothing has occurred in the intervening period to change my mind on the importance of the family in rehabilitating prisoners. Indeed, I have been particularly encouraged by the outcome of one case with which I was involved for several years. This former prisoner in a foreign gaol is now leading a normal life in Australia, having taken up the profession she pursued before leaving this country.

While we can never condone criminal activity committed by Australians overseas, it would be a vain hope to think that we could never have some of our citizens in overseas prisons. Whenever this occurs, however, foreign incarceration is a devastating experience for those families who remain in Australia. I earnestly hope that such misfortune does not need to befall those who remain sceptical of the transfer of foreign prisoners in order for them to review their position. Surely, in this case, the traumatic personal experiences of some of our fellow countrymen and women can serve as a lesson to us all.

My second point is that of engendering a sense of trust between all those involved. Criminologist and leading commentator on the issue of the international transfer of prisoners, Mr David Biles, is one who has made this point quite clearly. He reminds us of the mockery made of judicial trust in the case of the Rainbow Warrior bombing where the French authorities failed to enforce the sentence imposed on two French nationals by New Zealand authorities. In an article in the journal, The Criminal Lawyer of December 1994 and in subsequent discussions with Mr Biles, he has emphasised the importance of mutual trust and respect between participating nations. In that article, entitled, `The international transfer of prisoners: issues and challenges for the 1990s', he made the following point on pages 3 and 4:

Even if the receiving country has genuine doubts about the judicial standards that are followed in the sentencing country, the treaty which established the transfer program would require a total and uncritical acceptance of sentences imposed.

Additionally, adherence to this unquestionable principle of trust might go some way in allaying the fears of those who still need to be convinced that prisoner transfer is not an easy option.

I do have one qualification. In this respect, I welcome the provisions of section 44 of the bill which allows that returning prisoners, under some circumstances, will not be obliged to serve the full term of their original sentences before, perhaps, being eligible for release or parole. In this country, for example, in contrast to some of the terms meted out to Australians imprisoned in foreign jurisdictions, we rarely hear of 50-year terms, which could well mean incarceration for the term of a person's natural life.

In order to maintain the integrity of a prisoner's sentence and, therefore, the scheme, it may be in the interests of the Commonwealth to investigate the feasibility of establishing an office specifically charged with overseeing the program. I have visited a similar office in Washington DC and it appeared to operate quite effectively. The office need not be a large one, but it could serve as a central point to coordinate state, federal and inter-country matters as appropriate. I raise this simply as a matter for consideration.

I now turn to my third point, namely, the question of numbers. One aspect of the bill championed by its proponents is that the scheme is expected to be cost effective; that is, it is estimated that the number of Australian prisoners transferring to Australia will be fewer than the number of foreign prisoners transferring out. Yet, in its advisory report, the House of Representatives Standing Committee on Legal and Constitutional Affairs noted that there is considerable uncertainty about the number of prisoners who would transfer in and out of Australia under the scheme.

On 6 May 1996, in the Senate, I presented figures which showed that there were 157 known Australians imprisoned overseas. At that time, I noted that such figures were indicative only. Prisoners are released from time to time, and others are charged and convicted or held in custody while they are awaiting trial. Furthermore, under the terms of the Vienna Convention, where any Australians state that they do not want the Australian Embassy or High Commission informed of their arrest, the arresting country is not obliged to inform the Australian post.

It is with that qualification that I present the following figures, current to 9 May 1997, kindly supplied to me by the Department of Foreign Affairs and Trade. The department estimates that there are currently 192 Australians, comprising 170 men and 22 women, either sentenced or awaiting sentence overseas. Sixty-seven of the 192 charges are drugs related.

It is more difficult to obtain accurate figures for the number of foreign citizens in Australian gaols. Again, I refer to the work of Mr Biles, who estimated that, in 1994, there were approximately 380 foreign prisoners in Australian prisons who were perhaps eligible under the proposed international transfer scheme. He noted, however, that there is no national record of the number of foreign citizens in Australian gaols. His estimate of 380 was arrived at by extrapolating figures collected from a survey conducted in Queensland by two prominent prisoner support groups in 1992. On the other hand, in its submission to the House of Representatives Standing Committee on Legal and Constitutional Affairs, the Department of Immigration and Multicultural Affairs estimated that at least 632 prisoners currently held in Australian gaols would be eligible for transfer.

It is not the case, as these figures might initially suggest, that the scheme would facilitate the annual transfer of some 200 Australian prisoners to Australia and some 600 foreign prisoners back to their homeland. As Mr Biles has pointed out, the total of 200 Australian prisoners represents a group which has accumulated without a transfer scheme being in place. Furthermore, prisoner transfer cannot occur in cases where a prisoner is yet to be tried, who is awaiting the outcome of an appeal or where there is insufficient time left to serve. Therefore, after the first year of operation, Mr Biles estimates the annual figure would settle down to somewhere in the region of 20 to 30 prisoners seeking transfer back to Australia. Of the approximately 600 foreign prisoners in Australian gaols, there is no indication of, first, how many prisoners would be eligible to take advantage of the scheme; and, second, how many of those who are eligible would seek transfer back to their own country.

Until there is more certainty regarding the numbers of prisoners involved, we need to guard against undue enthusiasm for the scheme based on its presumed financial advantages. Indeed, such a position may only serve to reinforce the scepticism to which I referred earlier. Nevertheless, at a time when the humanitarian nature of our society is being questioned and self-interest seems to have totally overwhelmed our concerns for a person's fundamental wellbeing, it is my sincere hope that the humanitarian imperatives of the International Transfer of Prisoners Bill could overcome our society's constant deference to fiscal considerations.

In conclusion, I wish to make two points. The first of these is that I indicate my support for this legislation and I look forward to its implementation, together with the necessary complementary legislation of the states. Such an outcome will give hope to those of our fellow countrymen and women who languish in foreign prisons and to their loved ones who await their return to Australia.

Second, and importantly, I express my appreciation to Australia's consular officials around the world whose work, often in trying conditions, usually goes unnoticed. Their duties involve far more than attending to the needs of Australians who are in foreign prisons. Nevertheless, it is these officers whose efforts are vital for the welfare of imprisoned Australians and they approach this task with a degree of diligence which far exceeds their official responsibility in this area. The professionalism of these men and women is integral to the implementation of this legislation, and I acknowledge their untiring efforts in their work overseas.