Treaty between the Government of Australia and the Government of the United Arab Emirates concerning Transfer of Sentenced Persons
4.1
The Treaty between the Government of Australia and the Government of the United Arab Emirates concerning Transfer of Sentenced Persons (the proposed Treaty) will allow Australian nationals imprisoned in the United Arab Emirates (UAE) and UAE nationals imprisoned in Australia to apply to serve the remainder of their sentences in their home countries.
4.2
The proposed Treaty will complete a suite of bilateral crime cooperation treaties between Australia and the UAE, the first of which entered into force in 2011.
4.3
Under the proposed Treaty, both governments determine a prisoner’s eligibility for transfer and the appropriate terms of sentence enforcement prior to a prisoner’s transfer.
Australia’s transfer of sentenced prisoners arrangements
4.4
According to the National Interest Analysis (NIA) the Australian international transfer of prisoners scheme allows the humanitarian, rehabilitative and community safety objectives of prisoner transfers to be met while ensuring, as far as possible, that the original sentence of a transferred prisoner is preserved.
4.5
Transfers under the scheme are not intended to provide a more lenient or convenient sentence for prisoners.
4.6
Australia is party to both multilateral and bilateral transfer of sentenced persons treaties.
4.7
The majority of Australia’s international transfers of prisoners take place under the multilateral Council of Europe Convention on the Transfer of Sentenced Persons (Council of Europe Convention), which facilitates the transfer of prisoners between Australia and 65 other Countries.
4.8
The UAE is not a signatory to the Council of Europe Convention, so prisoner transfer requires a bilateral treaty.
4.9
The proposed Treaty will add to Australia’s existing bilateral transfer of sentenced persons treaties with other countries not party to the Council of Europe Convention. Australia has bilateral treaties with:
Numbers involved
4.10
According to the NIA, from September 2002 to November 2018, there have been 87 prisoners transferred from Australia to foreign countries, and 32 prisoners transferred from foreign prisons to Australia.
4.11
As at November 2018, Australia was processing 50 applications for transfer of prisoners out of Australia and 45 applications for transfer of prisoners to Australia. These applications have been made under both the Council of Europe Convention and Australia’s bilateral treaties.
4.12
The Attorney-General’s Department advised the Committee that six Australians were incarcerated in the UAE, and all of them would be eligible to apply for transfer.
4.13
According to the NIA, there are at least five prisoners in Australia who identify as UAE nationals.
4.14
When the proposed Treaty comes into force, the Attorney-General’s Department will write to the relevant Minister responsible for prisons in each Australian state and territory asking that eligible prisoners be notified about the new Treaty.
Reasons for Australia to undertake the treaty action
4.15
Australians imprisoned in a foreign country would usually be removed from that country upon release and return to Australia without the benefit of parole supervision or reintegration programs, and without having their criminal convictions recorded in Australia.
4.16
There are a number of benefits to be gained when transferring Australian nationals incarcerated in the UAE, including:
enhancing prospects for rehabilitation and reintegration into society by removing language and cultural barriers, allowing access to training and education programs whilst in custody, and facilitating contact with family and support networks;
contributing to community safety by ensuring prisoners can be effectively supported, monitored, and supervised upon release from prison and by the recording of convictions in Australia; and
relieving the hardship and financial burden on the Australian based relatives of Australians that are incarcerated in the UAE.
4.17
The Attorney-General’s Department advised the Committee of the advantages of having a transferred prisoner’s conviction recorded in Australia:
From a law enforcement perspective that is an advantage. That they have a previous conviction will then show up on police databases whereas if they’ve been convicted overseas that won’t necessarily be the case ...
4.18
Transfers of UAE nationals incarcerated in Australia to the UAE will benefit those prisoners by enabling them to be considered for any applicable rehabilitation or conditional release programs in the UAE that may not be available to non-citizens in Australia.
Process for transfers
4.19
Transfer applications are initiated by the prisoners themselves.
4.20
In every case, the prisoners, as well as the transferring and receiving countries, must consent to the transfer.
4.21
The agreed terms of the transfer will set out the manner in which the prisoner’s sentence will be enforced in the receiving country.
4.22
Under the International Transfer of Prisoners Act 1997 (Cth) (ITP Act), where the prisoner has been convicted of state or territory offences, the consent of the relevant Australian State or Territory Government is also required.
4.23
The proposed Treaty contains a number of safeguards and protections including:
if the prisoner has been sentenced to death, a transfer cannot be effected unless the death penalty has been commuted to a term of imprisonment or life imprisonment; and
double jeopardy protections, as the proposed Treaty does not allow for a prisoner to be tried for the same crime in the receiving country for which the sentence was imposed in the transferring country.
4.24
The proposed Treaty also contains a number of requirements that must be met before a prisoner can be eligible for transfer:
prisoners are only eligible to apply to transfer from the UAE to Australia if they are Australian nationals;
similarly, a prisoner eligible for transfer from Australia to the UAE must be a national of the UAE;
the prisoner’s convictions and sentence must be final and not subject to further legal appeal;
there must be at least 12 months of the prisoner’s sentence remaining to be served on the day the transfer request is received unless otherwise agreed by UAE and Australia; and
the conduct giving rise to the offence for which the person has been sentenced must constitute a criminal offence in both countries.
4.25
Once a prisoner makes a transfer request, the transferring country is required to notify the receiving country and provide a range of information relevant to the potential transfer, including the nature of the offence, conviction and sentence and any correctional, medical or social reports about the prisoner.
4.26
The receiving country is obliged to provide information relevant to the transfer, including how the sentence will be enforced.
4.27
The sentencing country is also required to take reasonable steps to inform sentenced persons of the full legal consequences of transfer. In Australia, this is done at the point in the transfer process when the Attorney-General’s Department writes to a prisoner to seek their consent to transfer.
4.28
For prisoners transferring to Australia, this letter will set out the expiry date of the prisoner’s sentence, the earliest possible date they could be released if granted parole, and any other relevant information, such as whether any particular parole conditions may be imposed on the prisoner upon their release.
4.29
Prisoners are given reasonable time to consider the proposed terms of transfer and to seek legal advice or make enquiries before deciding whether to consent.
4.30
Where a prisoner is deciding whether to consent to a transfer, the cost of obtaining legal advice is the responsibility of the prisoner. The Australian Government does not provide legal advice and nor will it pay for legal advice to be provided.
4.31
The State or Territory to which a prisoner transferred to Australia is sent is determined based on where the prisoner has the closest connection.
4.32
In all cases, the transferring country retains exclusive jurisdiction for the review, revisions, modification or cancellation of convictions that have been imposed by its courts.
4.33
If the transferring country makes a decision that affects the prisoner’s conviction or sentence, the receiving country is obliged to modify or terminate the enforcement of the sentence accordingly.
Costs
4.34
The cost of continued enforcement of the sentence after transfer is to be borne by the receiving country, except for any costs incurred exclusively in the territory of the transferring country.
the Commonwealth will meet the administrative costs involved in processing transfers;
the State or Territory to which a prisoner returns will be responsible for meeting the costs of transporting the prisoner to Australia from an international departure point in the transfer country;
if the State or Territory Minister considers that an incoming prisoner, or their family, is in a position to pay for costs associated with their transfer to Australia, they may seek reimbursement from the prisoner or their family; and
the relevant State or Territory will meet the costs of the ongoing incarceration of the prisoner.
4.36
In relation to outgoing prisoners from Australia to the UAE, the UAE will bear the cost of transfers under the proposed Treaty, except those expenses incurred exclusively in Australia. This includes moving a prisoner from their current prison to the nearest point of international departure.
Implementation
4.37
The treaty will be given effect by making regulations under Section 8 of the ITP Act, declaring the UAE to be a transfer country for the purposes of the Act.
Conclusion
4.38
The Committee would like to thank the Attorney-General’s Department for its comprehensive NIA. It particularly appreciates the inclusion of concrete facts and figures regarding the number of people affected by the treaty action. The provision of such detailed information in the NIA itself facilitates the work of the Committee, both by providing the Committee and Australian citizens with a practical and immediate understanding of the circumstances of a treaty’s application, and by avoiding any delays in the consideration process where further information or detail has to be sought.
4.39
The Committee agrees that the proposed Treaty is in Australia’s interests and recommends that binding treaty action be taken.
4.40
The Committee supports the Treaty between the Government of Australia and the Government of the United Arab Emirates concerning Transfer of Sentenced Persons and recommends that binding treaty action be taken.