Transfers TO Australia

What are the requirements for transfer TO Australia?

A prisoner may apply to transfer from a foreign country to Australia if:

• the foreign country is listed as a transfer country under the ITP Act
• the prisoner is either:
  • an Australian citizen, or
  • an Australian permanent resident who has community ties with an Australian State or Territory
• neither the prisoner’s sentence of imprisonment nor the conviction on which it is based is subject to appeal
• the offence for which the prisoner is serving a sentence would also be an offence in Australia (this requirement may be waived in certain cases), and
• at least six months of the prisoner’s sentence remains to be served, or one year if transferring from Hong Kong, Thailand, Cambodia or Vietnam (this requirement may be waived in certain cases).

Please check with local consular staff or the International Transfer of Prisoners Unit for further information.

What are ‘community ties’ with an Australian State or Territory?

A prisoner has community ties with an Australian State or Territory if:

• before being imprisoned in the foreign country, the prisoner’s home was in that State or Territory
• the prisoner’s parent, grandparent or child lives in that State or Territory
• the prisoner is married to, or has a de facto relationship with, a person who lives in that State or Territory, 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 who lives in that State or Territory.

It is important to note that Australian citizens are not required to prove community ties with Australia to be eligible for transfer. However, the relevant Minister in the State or Territory to which a prisoner wishes to transfer is required to consent to the transfer for it to occur. The relevant State or Territory Minister may require the prisoner to demonstrate community ties with the State or Territory before he or she will consent to the transfer. It is therefore recommended that all applicants provide as much detail as possible about their community ties with Australia.

Is a prisoner still eligible to transfer if they are on parole or coming up for parole?

 A prisoner may be eligible to transfer to Australia if they are on parole or coming up for parole, depending on the requirements of the country from which they seek to transfer.  Some foreign countries do not allow prisoners on parole to transfer under the ITP Scheme.

Are prisoners who have received the death penalty eligible for transfer to Australia?

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The definition of ‘prisoner’ under the ITP Act does not include a person who has been sentenced to death. This means that people who have been sentenced to death cannot transfer to Australia under the ITP Act. However, the ITP Act provides that if a sentence of death imposed on a person has been commuted to a term of imprisonment, the person may apply to transfer to Australia.

Can prisoners transfer from (or to) Indonesia?

Prisoners cannot currently transfer between Australia and Indonesia. For such transfers to occur Australia would need to enter into an ITP agreement with Indonesia, or Indonesia would need to become a party to the Council of Europe Convention on the Transfer of Sentenced Persons. Australia continues to work with Indonesia to progress discussion on a proposed ITP agreement.

How long does it take to process an application for transfer to Australia?

The time that it takes to process an application for transfer varies from case to case. The finalisation of applications for transfer to Australia can take some time, as they must be considered by a number of different parties, including the governments of Australia, the foreign country and the Australian State or Territory.

When the Australian Attorney-General’s Department receives an application for transfer to Australia, it will seek reports from the sentencing country, including information about the prisoner’s sentence, behaviour and health.

Once the reports are received, the Australian Government will propose terms of transfer to the relevant State or Territory Minister and seek that Minister’s consent to the transfer. If the State or Territory Minister consents to the transfer, the prisoner and the foreign country will both be asked to consent to the terms of transfer proposed by the Australian Government. If both parties consent, the Australian Minister for Justice will consider the application and determine whether to provide final consent to the transfer. If the Australian Minister provides his consent, he will sign a warrant authorising the prisoner’s transfer.

Once the warrant has been signed, arrangements for the prisoner’s physical transfer will be made between the relevant State or Territory and foreign governments.

The process for applications for transfer to Australia is outlined in the following diagram:

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How does the Australian Government assess applications for transfer to Australia?

The Australian Minister for Justice assesses each transfer application on its merits, taking all relevant factors into account. For transfers to Australia, relevant factors may include:

• the extent to which the prisoner’s rehabilitation and reintegration into the Australian community would be assisted by the transfer
• whether the transfer will contribute to community safety
• whether the prisoner is a dual citizen of Australia and another country
• the views of relevant authorities and agencies, such as the Australian Federal Police, and
• any relevant humanitarian considerations that apply to the case.

The ITP Statement of Policy provides further information on policies that guide the assessment of applications for transfer.

Will a prisoner’s health be taken into account when a decision about a transfer is being made?

The Australian Minister for Justice takes a number of factors into account when deciding whether to consent to a transfer to Australia, including humanitarian considerations such as the health and age of the prisoner. However, an Australian State or Territory Minister may decide not to agree to a transfer if they do not have the facilities available to care for a prisoner who is unwell, or if they feel that the prisoner’s health condition endangers other prisoners.

Will prisoners be required to pay for their transfer?

Prisoners transferring to Australia may be asked to pay all or part of the costs involved with their transfer, if the relevant State or Territory Minister considers that the prisoner is in a position to do so.

If the prisoner is required to pay transfer costs, arrangements must be finalised and agreed to by the prisoner, or the prisoner’s representative, before the prisoner’s physical transfer will be arranged.

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How will transferring to Australia affect a prisoner’s sentence?

Generally the sentence a prisoner will serve in Australia will be as close as possible in nature and duration to that imposed by the transfer country. The sentence of imprisonment cannot be harsher than that imposed in the transfer country.

The Australian Minister for Justice is guided by the ITP Statement of Policy when determining how a sentence imposed by a transfer country will be enforced in Australia upon transfer.

What conditions will apply to a prisoner who transfers to Australia?

When a prisoner applies to transfer to Australia they will be asked to nominate the Australian State or Territory to which they wish to transfer. This would normally be the State or Territory in which they have family, friends or support networks.

If a prisoner has ties with more than one State or Territory they may nominate each of those States or Territories in their application. However, only one State or Territory will be approached by the Australian Government at a time.

If an application for transfer to Australia is successful, the prisoner will be held in Australia as a federal prisoner, as if they were serving a sentence of imprisonment imposed under Commonwealth law.

Federal prisoners are held in State and Territory prisons under the same conditions as State and Territory prisoners, and are eligible for the same programs as other prisoners in the State or Territory. The main difference is that decisions about their sentence, including parole, are made by the Commonwealth rather than by State or Territory authorities.

The non-parole periods and parole conditions imposed on prisoners who transfer to Australia under the ITP Scheme may differ from those imposed on other federal prisoners.

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To which Australian prison will a prisoner be transferred?

The prison to which a prisoner is transferred will depend on the State or Territory to which they are transferred. Prisoners will generally be received, upon transfer, into a metropolitan prison for assessment and classification. In most cases, the prisoner will then be transferred to a prison appropriate to their classification and needs.

For further information, prisoners may wish to view individual State and Territory corrective services websites.

Will a prisoner have a criminal record in Australia if they don’t transfer?

Through international policing information sharing and cooperation, Australian authorities may become aware of a prisoner’s foreign conviction, regardless of whether the prisoner applies to transfer to Australia under the ITP Scheme.

When a prisoner applies to transfer under the ITP Scheme, it is the Attorney‑General’s Department’s usual practice to notify the Australian Federal Police of the application.

If a prisoner is transferred, there will be a record of the sentence and conviction in Australia. Whether a prisoner transfers or not, they may be required to disclose any criminal convictions, including any offence committed overseas.

Can a prisoner appeal if their transfer is refused?

Decisions of the Australian Minister for Justice are reviewable. Prisoners who are considering whether to seek a review of a decision made by the Minister may wish to seek their own independent legal advice.

Prisoners may also reapply for transfer.

How do prisoners apply to transfer to Australia?

It is recommended that prisoners speak to the Australian Embassy or High Commission in the country in which they are imprisoned about how to apply to transfer to Australia, as the way applications are handled will vary from one country to another. Once a prisoner has applied to transfer to Australia, Embassy or High Commission staff will be able to tell them how their application is progressing.

Completed applications may be sent to:

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International Transfer of Prisoners Unit
International Crime Cooperation Division 
Attorney-General’s Department
3-5 National Circuit
BARTON ACT 2600
AUSTRALIA

The Attorney-General’s Department will handle the application and will contact authorities in the foreign country and in the relevant State or Territory, to see if agreement to the transfer can be reached. The Department will also be in regular contact with the prisoner while their application is being processed.