Photographer : Manila B |
Imprisonment of Australians overseas is not uncommon. On the contrary, these eleven individuals make up just a handful of the hundreds of Australians that are currently being held in prisons around the world for committing all sorts of crimes. Drug-related offences, such as drug trafficking and possession, account for a very large proportion of these convictions, and it is mainly these convictions that we hear about through the media. However, Australians are also imprisoned for other crimes, including arson (Israel), embezzlement (Laos), sodomy (Fiji) and bank robbery (USA).
Why does it happen?
So, why are these Australians held in prisons overseas and not in Australian prisons? The answer to this question has to do with the principle of sovereignty, or independence, of individual countries and their legal systems. This means that all people within the territory of a particular country are subject to the laws and regulations of that country, even if they are a foreigner. So, if you’re in a foreign country and you do something which is against its laws, you become subject to the arrest procedures, the court system, the criminal sentences and the terms and conditions of imprisonment of that particular country.
What does this mean for Australians overseas?
Australians are at risk of receiving sentences that are much more severe than those that would be given under the Australian criminal justice system, for the very same crime! In particular, in countries where the death penalty still exists, Australians are at risk of being sentenced to death, even though this sentence was abolished under Australian law. Unfortunately this harsh outcome has been, and will continue to be, the fate of many Australians in prison overseas.
What can the Australian government do to help?
Because of the independence of the legal systems of each individual country, the Australian government has very limited powers to interfere with the trial, conviction and imprisonment of Australians overseas. They cannot do anything to change the laws of foreign countries. However, they do have some power to help Australian prisoners.
Diplomatic negotiations
One way they may assist actual or potential prisoners is by talking to, and negotiating with, the foreign countries, in an attempt to excuse or to soften the sentence an Australian receives. This attempt can be made by the Prime Minister or by a federal minister. They can ask that:
- a crime and its penalty be pardoned (forgiven)
- a prisoner be granted amnesty from their offence (released from any type of punishment); or
- a prisoner be granted clemency (a reduced sentence or penalty). Appeals for clemency are usually made to reduce a death sentence to a sentence of imprisonment.
Consular assistance
The government may also provide assistance to Australian prisoners overseas, through the Australian consulate located in the country where the crime was committed.
Australian consular representatives can do many things to reduce the harshness of a sentence and the conditions prisoners are living in. These include:
- providing prisoners with information that will help them to understand the legal system of the foreign country
- helping to find legal representation
- visiting prisoners to brighten up their day
- ensuring that the basic food and health needs of prisoners are met
- helping the prisoner to secure a loan from the Australian government to cover all essential expenses if things like medical treatment and adequate food is not provided by the prison
- ensuring that they are treated according to international humanitarian standards
- making objections to any mistreatment or neglect of prisoners, and taking up any complaints by prisoners of ill treatment, abuse or discrimination.
What the consulate cannot do is:
- give prisoners legal advice
- interfere in the legal proceedings of the foreign country
- directly release Australian prisoners from jail.
Prisoner exchange treaties
The most significant powers of the Australian government to assist Australian prisoners overseas, lies in its ability to transfer these prisoners from jails overseas to jails in Australia, to serve out the remainder of their sentence. This is made possible through the International Transfer of Prisoner Scheme that has been introduced under the
Australian International Transfer of Prisoner Act 1997. This means prisoner transfers can take place between Australia and countries with which Australia has an agreement. Australia currently has agreements with 58 countries including Canada, Britain and Thailand. It is currently in negotiations with Indonesia.
This scheme provides many benefits for prisoners. Under this scheme, as soon as a prisoner is transferred to Australia, their sentence becomes subject to Australian rather then foreign laws. This means that it may be possible for the prisoner to be released, or their sentence reduced by Australian authorities. Prison transfer also enables Australian prisoners to be in contact with family and friends and frees them from the cultural barriers and shock they may have faced overseas. Another bonus is that by being transferred to Australia, prisoners are often provided with better care facilities then they had overseas.
However, just because an application is made by an Australian prisoner, does not guarantee that the transfer will occur. The operation of this scheme relies on having the consent of all authorities involved, including; the consent of the government where the prisoner is in jail, the consent of the Australian government, and finally the consent of the government of the state/territory where the prisoner is applying to be transferred to.
How do I know this?
Attorney General’s Department,
Australia’s International Transfer of Prisoners Scheme: frequently asked questions,
http://www.ag.gov.au/agd/WWW/criminaljusticeHome.n...
Department of Foreign Affairs and Trade,
Getting help overseas,
http://www.smartraveller.gov.au/tips/gaolos.html
Foreign Prisoner Support Service,
http://www.phaseloop.com/foreignprisoners
NSW Council for Civil Liberties,
Australian prisoners abroad,
http://www.nswccl.org.au/issues/prisoners/abroad.php
Prisoners Overseas,
http://www.prisonersoverseas.com/
