Australia could agree to to a request from some victims of the Christchurch mosque attack that would see the terrorist responsible die in an Australian jail, rather than serve his sentence in New Zealand.
The 29-year-old Australian terrorist, Brenton Tarrant, was yesterday sentenced to life without the possibility of parole for killing 51 people and attempting to kill 40 others at two mosques in March last year.
But during his sentencing, some victims’ families requested he be sent back to his home country, calls echoed by New Zealand’s Foreign Minister, Winston Peters, who said it was “fair and logical” the gunman be removed from the country.
However, New Zealand hasn’t yet made a formal request for Australia to consider accepting the gunman.
If it does, Prime Minister Scott Morrison has left the door open to working with New Zealand on the issue, but there will be some hurdles to overcome.
Here’s how such a proposition could work.
There’s no prisoner transfer deal between Australia and New Zealand
Despite the strong ties between Australia and New Zealand, surprisingly there’s no formal prisoner transfer deal between the two countries.
As a spokesman for Attorney-General Christian Porter told the ABC:
“Under the International Transfer of Prisoners Act 1997 [ITP Act], the Australian Government can only transfer prisoners from a country which is recognised as a ‘transfer country’ under the ITP Act.
“New Zealand is not a ‘transfer country’ under the ITP Act as it does not have any agreement or arrangement for prisoner transfers with Australia.”
Prisoner transfers are different to extraditions — which is when one country demands another help to secure someone wanted of an offence, and have them shipped over to face investigation and trial.
The likely option for bringing him to Australia
International law expert Don Rothwell, from the Australian National University (ANU), said there were multiple options that could be pursued if the transfer was on the cards.
But he said the most likely was what he described as the “David Hicks option”.
Mr Hicks spent time in the US military’s Guantanamo Bay prison in Cuba, after being captured in Afghanistan in 2001. He pleaded guilty to providing material support for terrorism.
“When David Hicks was sentenced by the military commission in the United States, even though Australia had a prisoner transfer agreement with the US, it didn’t encompass the sentence handed down by a military commission,” Professor Rothwell said.
In other words, the existing Australia-US agreement related to sentences in civilian courts.
“Australia and the US negotiated a special agreement purely to deal with the Hicks situation, and that was appropriate given the security concerns and legal issues,” Professor Rothwell said.
But, there are key differences between the Hicks and Tarrant cases. When Mr Hicks was returned to Australia to serve out his sentence, he only served another nine months behind bars.
“One of the elements of a prisoner transfer arrangement is that there are no sentence discounts,” Professor Rothwell said.
“In the case of Tarrant, this would obviously be a very important aspect of any negotiation — certainly in terms of any special agreement with New Zealand.”
Tarrant’s sentence expires when he dies. So, keeping him behind bars for the rest of his life would need to be an explicit term in any agreement.
Mr Hicks’s conviction was later set aside.
Other options are far more complicated
There are two other potential options for bringing the convicted terrorist from New Zealand to Australia.
The first would be for the two countries to negotiate a new bilateral prisoner transfer treaty. The second possibility would be for New Zealand to sign up to an international convention, such as the Council of Europe Convention on the Transfer of Sentenced Persons.
While there are other treaties these could be modelled on, speeding up drafting and implementation, these two options are more complicated. That’s because the agreements would cover all criminals, not just this prisoner.
The political will for such a deal is likely lacking.
The willingness for a deal to be struck
Just because there isn’t a formal agreement or treaty, doesn’t mean there’s no chance of the Christchurch terrorist seeing out his days behind bars in Australia.
Mr Peters, who’s party governs in coalition with Ms Ardern’s, has cited Australia’s practice of deporting Kiwis convicted of crimes back across the Tasman, suggesting it sets a precedent for this case.
But there are differences. Generally, people are deported after their sentences have expired.
Tarrant’s sentence will never run out.
“The Christchurch gunman is going to be an irritant in Australia-New Zealand relations for some time,” Melissa Conley Tyler from the Asia Institute at the University of Melbourne said.
“New Zealand is very aware that when its citizens are convicted of crimes in Australia, we deport them back to New Zealand — admittedly after they’ve served their sentences — and this is for much less serious crimes.
“From a New Zealand perspective, this is a terrorist who is an Australian citizen and New Zealand taxpayers will be footing the bill for his incarceration for the rest of his life.
“So even though Australia may not be legally obliged to agree to a transfer, I’d expect that New Zealand will continue to make this request.”
If he is sent back to Australia, there’d then be the discussion about where such a dangerous individual should be locked up — the immediate option would be Goulburn Supermax, in regional New South Wales.
Both Ms Ardern and Mr Morrison have said now the sentencing is through, the terrorist responsible should be locked up and forgotten about.