Transfers FROM Australia
What are the requirements for transfer FROM Australia?
A prisoner may apply to transfer from Australia to a foreign country if:
- the foreign country is listed as a transfer country under the ITP Act
- the prisoner is either:
- a national of the transfer country, or
- has community ties with the transfer country (note that some countries only allow nationals to transfer under the ITP Scheme)
- 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 the country to which the prisoner seeks to transfer (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 to Hong Kong, Thailand, Cambodia or Vietnam (this requirement may be waived in certain cases).
Please check with local consular staff or prison authorities for further information.
What are ‘community ties’ with a transfer country?
A prisoner has community ties with a transfer country if:
- before being imprisoned in Australia, the prisoner’s home was in the transfer country
- the prisoner’s parent, grandparent or child lives in the transfer country
- the prisoner is married to, or has a de facto relationship with, a person who lives in the transfer 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 who lives in the transfer country.
Is a prisoner still eligible to transfer if they are on parole or coming up for parole?
A prisoner may be eligible to transfer from Australia if they are on parole or coming up for parole, depending on the requirements of the country to which they seek to transfer. Some foreign countries do not allow prisoners on parole to transfer under the ITP Scheme.
Can prisoners transfer to (or from) New Zealand?
Prisoners cannot currently transfer between Australia and New Zealand as New Zealand is not a transfer country under the ITP Act.
How long does it take to process an application for transfer from Australia?
The time that it takes to process an application for transfer varies from case to case. The finalisation of applications for transfer from 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, where relevant, the Australian State or Territory.
When the Australian Attorney-General’s Department receives an application for transfer, it will seek prison reports from the State or Territory in which the applicant is imprisoned, including information about the prisoner’s sentence, behaviour and health.
Once the prison reports are received, the Australian Government will seek consent and terms of transfer from the transfer country. If the transfer country provides its consent to the transfer, the prisoner will be asked to consent to the terms proposed by the transfer country. If the prisoner was convicted of an Australian State or Territory offence, the relevant State or Territory Minister must also consent to the prisoner’s transfer.
If the prisoner (and the State or Territory Minister if required) consents to the transfer, 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 the foreign government.
The process for applications for transfer from Australia is outlined in the following diagram:
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How does the Australian Government assess applications for transfer from Australia?
The Australian Minister for Justice assesses each transfer application on its merits, taking all relevant factors into account. For transfers from Australia, relevant factors may include:
- the extent to which the prisoner’s rehabilitation and reintegration into society would be assisted by the transfer
- whether the prisoner is an Australian citizen
- whether the proposed terms of enforcement of the Australian sentence upon transfer is acceptable. In most cases the foreign country must agree to enforce at least 75 per cent of the Australian non-parole period as a custodial sentence for the sentence enforcement to be regarded as acceptable
- 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 from Australia, including humanitarian considerations such as the health and age of the prisoner. However, the transfer country may decide not to agree to a transfer if it does not have the facilities available to care for a prisoner who is unwell or if it feels that the prisoner’s health condition endangers other prisoners.
Will prisoners be required to pay for their transfer?
In some circumstances prisoners transferring out of Australia may be asked to reimburse the transfer country for some or all of the costs of their transfer. A prisoner will generally be advised of these costs prior to the transfer taking place.
How will transferring to another country affect a prisoner’s sentence?
Generally the sentence a prisoner will serve in a foreign country will be as close as possible to the sentence they are currently serving in Australia. The sentence of imprisonment cannot be harsher than that imposed in Australia.
One of the factors that is considered by the Australian Minister for Justice when he is deciding whether to consent to the transfer of a prisoner from Australia under the ITP Scheme is whether the proposed enforcement of the Australian sentence in the transfer country is acceptable. In most cases, the foreign country must agree to enforce at least 75 per cent of the Australian non-parole period as a custodial sentence. See the ITP Statement of Policy for more information.
The imprisonment conditions of the foreign country will apply, including parole and remission conditions.
A transfer will only occur if the prisoner understands and agrees to the terms on which the sentence will be enforced in the foreign country.
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 does a prisoner apply to transfer from Australia?
A prisoner may only apply using the official forms, which can be downloaded from this website or obtained from authorities in Australian prisons or by contacting the Attorney-General’s Department. Completed applications should be sent to:
International Transfer of Prisoners Unit
International Crime Cooperation Division
Attorney-General’s Department
3-5 National Circuit
BARTON ACT 2600
