25 January 2010

Prisoner Transfer Agreements -- Australia and Indonesia...


The purpose of a Prisoner Transfer Agreement (PTA) is to allow foreign nationals incarcerated overseas to serve out the remaining portion of their sentence in their home countries. A PTA between Australia and Indonesia is something that has been in the pipeline for a while. If you are an Australian or an Indonesian incarcerated in a foreign prison, then that pipeline has been very long to date, and would seem to be a little longer still before there is any light at the end of this pipeline.

The Minister of Foreign Affairs, Marty Natalegawa, has admitted as much. Natalegawa is a talented young diplomat who in a rapidly rising career leading to his appointment as FM held key ambassadorial posts in the UK and at the UN. He is a very intelligent man who is economical in his choice of words and rarely misspeaks. So, when he speaks it is probably worth paying attention to.

So, when Natalegawa said to the Australian Associated Press (AAP) that the negotiations for a PTA had not stalled, but rather taking time as a consequence of Indonesia being new to the PTA game, then that is where the game is at. The PTA will impact on the lives of those prisoners who have not been sentenced to death in an Indonesian court. Unfortunately, for those Australians on death row there is zero chance of them being repatriated to Australia to serve out the remainder of their respective sentences and executed.

However, a PTA will potentially permit the likes of Schapelle Corby and Renae Lawrence to be returned to Australia to serve out the remainder of their custodial sentences in an Australian prison.

The devil is in the detail of a PTA. And, this is where negotiations have slowed to a trickle in the very long pipeline that Natalegawa has alluded to. For example, Indonesia has taken a very strong public international stance on drugs and drug smuggling. Therefore, there are quarters within the Indonesian community that are reluctant to include drug smugglers on the list of prisoners who can be returned under a PTA. There is a fear that Australia does not deal with drugs as harshly as they do in Indonesia. And, they are right, we do not execute people period. That fear is that Corby and Lawrence would be returned to Australia under a PTA and then released shortly after their return.

The details are likely to include specific conditions on how much time is to be served in Australia prior to a release. The difficulty here is that Indonesia works on a remission system where prisoners sentences are cut each year, sometimes twice a year, on religious / national holidays for good behaviour. In contrast, the Australian system works on a head sentence and a non-parole period. Ultimately, the same amount of time will conceivably be served under both situations but these are the sorts of details that need to be hammered out before an agreement can be reached.

Another critical issue still to be agreed is how much time prisoners will be required to serve before becoming eligible for a PTA return to their home country. There have been suggestions that Australians serving time in Indonesian jails will have to do almost 3/4 of their sentence before becoming eligible. However, this is unlikely, assuming those on the Australian side of the debate are knowledgeable and well-informed on the Indonesian system. A person convicted in Indonesia is likely to only do 3/4 of their original sentence, and in all likelihood less than 3/4, with remissions for good behaviour and the like.

The classic example here is none other than the son of the former president (dictator), Tommy Soeharto. Tommy was convicted of a little graft and then the subsequent premeditated murder for hire of a Supreme Court justice. The man ended up doing about 2/3 of his original sentence.

So, in that regard a PTA might not make a lot make a lot of sense for most Australians incarcerated in Indonesia. It is also unlikely that the 3/4 of the sentence demand will be met.

It would seem that a PTA will become a reality in the future, but how far into the future remains to be seen.

7 comments:

H. Nizam said...

Rob,

I wonder who will benefit most from such agreement.

Rob Baiton said...

Harry...

Benefit? Good question :D Is the question rhetorical or do you want me to take a stab at an answer?

H. Nizam said...

Rob,
Hmmmmmm .....
I am sure your answer would be interesting

Rob Baiton said...

Harry...

I have written on this before. I would have to search the blog to see whether it is on here.

However, the question of benefits is an interesting one. At least from the Australian perspective the debate is usually centered on Schapelle Corby and the Bali Nine.

In the case of Schapelle Corby, her supporters think that the idea of a PTA is a crap. It will simply never happen. Particularly, it will never happen in Schapelle's lifetime. They are convinced that if she is not immediately released and returned to Australia, then she will die in an Indonesian prison, and soon.

For the Bali Nine, the arguments are much more complex in one sense and very simple in others. Those of the Bali Nine on death row will not see any benefits of a PTA as it seems pretty obvious that those on death row will not be subject to transfers. In any event, Australia does not execute prisoners.

The devil is in the detail. As I noted, if there is a clause that requires 1/2 to 3/4 of a sentence to be served in the country that imposes it before a convict becomes eligible for transfer, then there is likely to be little benefit to Australians incarcerated in Indonesia.

The reality is that with Indonesia's remission system it is likely that a prisoner will only do 1/2 to 3/4 of their original sentence anyway. Similarly, in the Australian context, it will depend on whether the consideration is the head sentence or the non-parole period. The reason being, the non-parole period is usually considerably shorter than the head sentence (for example, a sentence of 20 years with a non-parole period of 14 years).

Ultimately, in respect of time the remission and non-parole periods are about the same.

On the benefits. Australian prisons are generally in good condition and meet all the accepted minimum standards of care as they relate to treatment of prisoners (meals, conditions, among others). Indonesian prisons do not always meet the requisite standards. And recent news suggests that if you have the cash then you can negotiate better conditions in an Indonesian prison.

My guess is that if a PTA was to be agreed between Indonesia and Australia that the convicts would have to give serious consideration to where those benefits are. I would also speculate that there would be plenty of prisoners who would opt to stay where they are; Indonesian and Australian.

Kay Danes said...

I was previously invited by the Joint Standing Committee on Treaties (Australian government) to participate in its review of the Prisoner Transfer Agreement with Vietnam, and offer any comments, concerns regarding Australia’s future ratification of the Agreement.

I submitted three points in particular for consideration.

1. Sentence equivalency,
2. Costs of transfer,
3. Wrongful convictions

Short answer, these agreements are not get out of jail free cards. they are multi-faceted, hence the complexities in signing and ratifying them. There are 'benefits' to all parties and they are an important mechanism and should be negotiated at the onset of any bilateral and trade agreements.

Many who have worked on this agreements agree that despite the amount of time it takes to get one in place, it's well worth the process because it's important to get them right. They are a good mechanism too in raising civil rights issues pertaining to the foreign internment of citizens, whilst not creating any unnecessary offence to the third party. It's all done without emotion and those who are fortunate to be called upon to participate in such agreements are very fortunate, and most certainly, are considered credible in order to be called upon in the first instance.

Rob Baiton said...

Kay...

In general, I agree with everything you put forward about the issues you raise and the manner in which negotiations are conducted.

The PTA post is Indonesian specific, and consequently Schapelle Corby and the Bali Nine specific. Albeit, there is also a general sense that it could conceivably be applicable to any other Australians finding themselves in an Indonesian prison.

Onto the three main points.

1. Sentence equivalency. This is going to be a sticking point when it comes to drug smugglers / traffickers because Indonesia prides itself on taking a very strong / firm stance against it. So much so that the wacky weed is a class I narcotic.

Using Schapelle as the hypothetical example here. If the Australian government said to their Indonesian counterparts that in terms of equivalency Schapelle has already done enough time. So, if you send her back to Australia under a PTA she will be released almost immediately. I would guess that the Indonesians might stall on any repatriation until she had done more of her sentence in Indonesia.

Conversely, if Australia was to send back an Indonesian jailed in Australia for human trafficking who on arrival in Indonesia would be released even though they still had ten years of their sentence to serve in an Australian prison, might think twice about what message this sends.

The message would seem to be that if you get caught you need only to be thinking about what you would get in terms of a sentence if you were caught in Australia or Indonesia. I wonder if this is conducive to trans-national crime fighting?

2. Transfer costs. I guess it depends on what is included in transfer costs.

3. Wrongful convictions. Similar to the end on point 1. The message would be that even if you were convicted in a foreign court you would ultimately be retried under Australian standards on your return.

I appreciate that foreigners are often caught up in disputes that see them charged with crimes they did not commit, and are therefore subject to a wrongful conviction (should the case go to trial).

However, once again, using Schapelle Corby as an example. Is this a wrongful conviction? The conviction might not meet an Australian common law standard (although there have been past arguments that it would). But, there are solid arguments to be made that it met the Indonesian standard and considering the publicity of the case both in Indonesia and abroad it was generally deemed fair (I am sure that Corby supporters have a real problem with this take).

Furthermore, at least in the eyes of the Indonesian authorities, the crime occurred in their sovereign territory and is subject to their laws.

It would seem to be an unworkable scenario to suggest that travellers can only be subject to the laws and regulations of their country of origin if, and when, they are caught committing crimes in foreign jurisdictions.

On the credibility front. Yes, some people are more credible than others when it comes to arguments and knowledge of these matters. You are credible.

Kay Danes said...

In the past, people have said.. "well we have a PTA with Thailand or some other country so why not bring our Aussies back under a similiar agreement"... and you answered it beautifully. There are unique requirements and/or complexities for each State. AND in some instances there may not be a precedent to use a sentence equivalency. For example if we look at this one topic alone; the argument has been raised a number of times that ganja trafficking occurs in Australia by road. But is there a case precedent of anyone importing ganja to Australia? (not possession. That's an entirely different matter and she was not charged with possession).

When using sentence equivilency the appropriate corrections department is supposed to rely on case precedents in order to make a determination and thus recommendation that can be used in negotiations with other States (Indonesia).

What are your thoughts on this?