Introduction

The Agreement between the Government of Australia and the Government of Hong Kong Special Administrative Region of the People’s Republic of China concerning Transfer of Sentenced Persons (the Agreement), done at Hong Kong on 25 November 2005, allows Australian nationals and people who have community ties with Australia serving prison sentences in Hong Kong, and Hong Kong nationals and people who have community ties with Hong Kong serving prison sentences in Australia, to be repatriated to their home country to serve out the remainder of their sentences.¹

The Committee was informed that:

Cooperation between countries to repatriate prisoners to their home countries is designed to assist prisoners to reintegrate successfully into society. The aim of the scheme is to allow prisoners to serve out their sentences without language and cultural barriers, which may reduce their prospects for rehabilitation.²

Allowing for the international transfer of prisoners is seen as having humanitarian, rehabilitative and social benefits while ensuring as far as possible that the original custodial sentence of a transferred prisoner is carried out.³

It is difficult to estimate the precise number of prisoners who, over the lifetime of the Agreement, would be eligible for transfer. However, the Department of Foreign Affairs and Trade reports that there are currently five Australians sentenced to imprisonment in Hong Kong , another four who are in gaol awaiting trial or sentence and a further nine who have been arrested and are currently on bail.⁴

The Agreement

The Agreement obliges Australia to facilitate the transfer of Australian prisoners in Hong Kong and Hong Kong prisoners in Australia within the framework provided for by the Agreement and domestic implementing legislation.⁵

Article 5(1) of the Agreement obliges Australia to endeavour to inform prisoners of the substance of the Agreement.

Transfer between the two Parties is voluntary and requires the consent of the prisoner to the terms of the transfer.⁶ This is important as the terms of the transfer are negotiated by Australia and Hong Kong and will include agreement upon the sentence to be enforced.⁷ Where a request for transfer is made, the receiving Party is obliged to ensure that the transfer is voluntary and the prisoner has full knowledge of the legal consequences.⁸

Article 5 of the Agreement obliges Australia and Hong Kong to provide specific information to facilitate the consideration of a prisoner transfer request.⁹ Following the transfer of a prisoner, Article 9 obliges the receiving Party to provide the transferring Party with information concerning the enforcement of the sentence.¹⁰

The transferring Party retains jurisdiction for the revision, modification or cancellation of convictions and sentences imposed by its courts.¹¹

Article 8 of the Agreement provides for the continued enforcement of a transferred prisoner’s sentence. As a general rule, the sentence imposed by the transferring country will not change.¹² However, where the sentence is incompatible with the law of the receiving Party either by its nature or duration, the receiving Party may adapt the sentence in accordance with its domestic law.¹³ Where this occurs, the receiving country is not able to impose a sentence that is more severe than the sentence imposed by the transferring Party in terms of nature or duration.¹⁴

The receiving party generally bears the cost of the transfer; however: ¹⁵

That country may seek to recover some or all of the costs of transfer from the prisoner, provided that the prisoner is informed in advance and consents to the transfer on the basis that there will be specified cost recovery. In practice, the receiving state or territory in Australia meets the costs of transfer.¹⁶

Article 10 obliges both Parties to cooperate in facilitating the transit of prisoners to or from third States through its territory.

International Transfer of Prisoners (ITP) Scheme

The Agreement is one of three international agreements entered into by Australia to facilitate the international transfer of prisoners between Australia and, following the entry into force of the current Agreement, 58 other countries.

Australia is a party to the Council of EuropeConvention on the Transfer of Sentenced Persons (Council of Europe Convention) which facilitates the transfer of prisoners between Australia and 56 other countries.¹⁷ Under the Council of Europe Convention, 16 prisoners have been transferred from Australia to 5 other jurisdictions.¹⁸

Australia has only one other bilateral prisoner exchange agreement and that is with Thailand, the Agreement with Thailand on the Transfer of Offenders and Cooperation in the Enforcement of Penal Sentences.¹⁹ Under this Agreement, three prisoners have been transferred to Thailand.²⁰

The Committee was informed that Australia is currently negotiating a transfer of prisoner agreement with China, although the details of those negotiations are not publicly available.²¹

Cooperation with the States and Territories

Implementation of the Agreement requires extensive cooperation with the States and Territories. Often, prisoners to be transferred out of Australia will have been sentenced for State and/or Territory offences. In addition, only the States and the Northern Territory currently have prisons and so State and Territory consent is required before prisoners can be received or transferred.

Administrative arrangements, concluded by the Federal Government, exist with all States and Territories except South Australia where they are currently being negotiated.²² Administrative arrangements facilitate the international transfer of prisoners but the Committee was informed that:

The absence of an administrative arrangement with South Australia does not prevent the transfer of prisoners to South Australia.²³

Implementation

The International Transfer of Prisoner Act 1997 (Cth) provides the legislative framework for the transfer of prisoners between Australia and other countries.²⁴ Complementary legislation exists in all States and Territories.²⁵

In 2004, amendments to the International Transfer of Prisoner Act 1997 (Cth) allowed semi-autonomous regions, such as Hong Kong, to be declared a transfer country with which Australia can enter into an agreement for the transfer of prisoners.²⁶

Costs

The National Interest Analysis (NIA) provides that the approximate cost of maintaining a prisoner in Australia is A$50 000 per year.²⁷

However subsequent evidence from the Attorney-General’s Department advised the Committee that approximately $59 203 was spent per year to keep an adult prisoner in custody.²⁸

However, the Committee was informed that there is ‘considerable dispute between jurisdictions as to what it costs to house a prisoner’.²⁹ Following the entry into force of the Agreement, Australia would save approximately this amount of money each year a transferred prisoner would have otherwise spent in an Australian prison.³⁰

The Commonwealth, State and Territory governments have agreed that the costs for received prisoners will be shared, with the Commonwealth bearing the administrative costs of the transfer and the State or Territory government to which the prisoner is being returned bearing the transport and maintenance costs.³¹ As mentioned previously, the State or Territory government may seek to recover such costs from the prisoner.³²

Conclusion and recommendation

The Committee recognises the humanitarian, rehabilitative and social benefits of international transfer of prisoner agreements. In particular, the Committee recognises the value of an agreement with Hong Kong where there is a relatively high number of Australian nationals in Hong Kong prisons.

Dr Andrew Southcott MP
Committee Chair