Issue

Australians in prisons overseas

David Hicks, Shappelle Corby, the Bali nine—do any of these names sound familiar? I’m not surprised! The names and faces of these young Australians have dominated the media in the last two years. And why? Because they all have one very significant thing in common—they are all in prison overseas.

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Submitted by: Joanne | 8 comments  VIEW COMMENTS


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/
Discuss Now 8 comments View all 1 2

Samira 04-Aug-2008

I do not think we can place David Hicks and Corby in the same category. The events and imprisonment of Hicks were fuelled by political motivation in particular the events of 9/11 and the 2003 War for Oil.

However what frightens me about this situation is the fact that the USA government is able to indefinitely hold citizens of other nations in prisons.

Kelly Simpson 08-Jan-2008

I agree with megsam - if you don't do anything wrong, you won't be punished.

Perhaps rather than questioning the supposed severity of gaol terms and punishment overseas, you might question the leniency of our own? I would prefer a drug dealer to get many multiple years in prison, rather than be given a 'heavy fine' or short gaol term which does nothing to deter he or she from continuing such behaviour.

The morality of the wider world does not decrease with our own advancement, particularly our advancements in liberalism.

megsam 19-Dec-2007

My theory is regardless of where you are from - if you commit a crime in another country you should be punished by their judicial system. The penalty may differ from Australia but if you do it in their country the choice is theirs.
Simple way to not be locked up overseas - Don't Break The Law and you will be fine.

nicoleS 01-Jul-2007

David Hicks was imprisoned without being charged with any crime for around five years, he pleaded guilty because the prosecution agreed that if he did he would only serve another 9 months given that he had already served five years.

He wasn't tried nor charged in Australia.

Would he kill an Australian Soldier? If they were shooting at him? Who knows? Did he? No.

Further, I doubt Guantanamo Bay is any sort of Club Med. Also, I have a hard time understanding the logic, that locking people up, not explaining why you are holding them captive and treating them horribly, will make them respect you or your country. Particularly if people are not afraid to die, re-incarceration isn't a big threat.

funnelweb 30-Apr-2007

Who is David Hicks? I understand the person you refer to changed his name in 1999 to Muhammad Dawood. If he hadn't broken any Australian laws why should he be charged and tried in Australia? He's no innocent angel, he has now pleaded guilty and previously confessed to allegations of fighting with the jihadists in Sudan, the KLA in Kosovo, the Mujahadeen in Afghanistan. He was well trained in gorilla warfare and if he had the chance, he would have killed the first Australian soldier in his way. You think not? Think again.

I do agree however, that noone deserves to be tortured or held without charge for 5years, but from what I've read, the reason for the delays was a result of his own legal team challenging the US in the supreme court on constitutional grounds. Mr Dawood says he was treated like he was in a "Nazi concentration camp", however, the picture of him showed a tanned athletic looking man, who apparently was studying maths behind bars and aspires to be a teacher or statistician.