Prisoner transfers from Australia
What are the requirements for a transfer from Australia to another country?
A prisoner will be eligible to apply for a transfer from Australia if all of the following criteria are satisfied:
- a prisoner transfer arrangement is in place between Australia and the foreign country to which the prisoner wishes to transfer; and
- the prisoner is a national of the foreign country or has community ties with the foreign country; and
- the prisoner's conviction or sentence of imprisonment is not subject to appeal; and
- the acts or omissions constituting the offence for which the prisoner is serving the sentence in Australia would, if the acts or omissions had occurred in the transfer country, have been an offence in the transfer country; and
- at least 6 months of the prisoner's sentence remains to be served.
The requirements for each case will depend on the terms and conditions set out in the international transfer agreement between Australia and the foreign country, and the domestic legislation of Australia and the foreign country.
See sections 12 and 14 and Part 3 of the International Transfer of Prisoners Act 1997 for information about eligibility requirements.
What are "community ties" with a foreign country?
A prisoner will have "community ties" with a foreign country if any of the following tests are satisfied:
- the prisoner's principal place of residence immediately before being sentenced to imprisonment in Australia was in the foreign country; or
- the prisoner's parent, grandparent or child has a principal place of residence in the foreign country; or
- the prisoner is married to, or has a de facto relationship with a person whose principal place of residence is in the foreign country; or
- the prisoner has a close continuing relationship (involving frequent written or personal contact and a personal interest in the other person's welfare) with a person whose principal place of residence is in the foreign country.
See subsection 4(4) of the International Transfer of Prisoners Act 1997 for information about community ties with a foreign country.
How will transferring to another country affect a prisoner's sentence?
- As a general rule, the sentence imposed in Australia will not change. A harsher sentence cannot be imposed by the foreign country.
- The imprisonment conditions of the foreign country will apply, including parole and remission conditions.
- The aim of the scheme is to allow the sentence imposed in Australia to be served in the foreign country, not for a new sentence to be substituted for the Australian sentence.
- A transfer will only occur if the prisoner has understood and has agreed to the way in which the sentence will be enforced in the foreign country.
See sections 45 and 47 of the International Transfer of Prisoners Act 1997 for information about the enforcement of sentences after transfer to a foreign country.
Will prisoners be required to pay for their transfer?
In some circumstances prisoners transferring out of Australia may be asked to reimburse the State or Territory Government for some or all of the costs of their transfer. Cost arrangements must be finalised and agreed to by the prisoner, or the prisoner's representative, before State or Territory consent may be given to the transfer.
Prisoners who are deported from Australia following completion of their sentence are similarly required to pay for the cost of their removal. (See section 210 of the Migration Act 1958)
