EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 260
Issued by the authority of the Minister for Home Affairs
International Transfer of Prisoners Act 1997
International Transfer of Prisoners (China) Regulations 2008
Section 58 of the International Transfer of Prisoners Act 1997 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Act facilitates Australia’s participation in the International Transfer of Prisoners Scheme. Under the Act, Australians imprisoned overseas in a ‘transfer country’ may apply to return to Australia to serve the remainder of their sentence in an Australian prison. The Act also allows foreign nationals who are imprisoned in Australia to apply to serve the balance of their sentence in their home country, if that country is a ‘transfer country’ under the Act.
A ‘transfer country’ is defined in subsection 4(1) of the Act as ‘a foreign country or region that is declared by the regulations under section 8 to be a transfer country’. Subsection 8(1) of the Act provides that regulations may provide that the Act applies to a foreign country declared by regulations to be a transfer country for the purposes of the Act.
The Regulations declare China to be a transfer country for the purposes of the Act.
Subsections 8(2) and (3) of the Act enable regulations to be made to declare that the Act applies in relation to a transfer country subject to limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty. Section 4 of the Act defines ‘treaty’ to include a convention, protocol, agreement or arrangement. However, in order for regulations to be made to declare a foreign country to be a transfer country, it is not necessary for a formal agreement providing for the international transfer of prisoners between Australia and the foreign country to be in force.
The Treaty between Australia and the People’s Republic of China concerning the Transfer of Sentenced Persons (the Treaty) was signed on 6 September 2007. The Treaty has not yet entered into force in Australia. If the Treaty is ratified, the Regulations will be amended to provide that transfer of prisoners between Australia and China are subject to the terms of the Treaty.
The Regulations declare China to be a transfer country for the purposes of the Act prior to the Treaty entering into force to permit a particular Australian citizen, who is ill and is currently incarcerated in China, to be transferred to Australia as soon as possible. A recent independent medical report on the prisoner advised that his transfer to Australia was ‘a matter of urgency’.
The Regulations allow arrangements to be made with China for the prisoner to be transferred to Australia, prior to the Treaty entering into force.
The Regulations do not oblige Australia to transfer any prisoners to or from China. Under the Act, prisoners must apply to transfer and transfer can only occur with the consent of the prisoner and the governments of Australia and the foreign country. Transfers of prisoners from Australia who have been convicted of a State or Territory offence, and all transfers of prisoners to Australia, also require the consent of the relevant State or Territory Government.
The object of the Act is to facilitate the transfer of prisoners so that they may serve their sentences of imprisonment in their home country. ‘Sentence of imprisonment’ is defined in the Act as ‘any punishment or measure involving deprivation of liberty ordered by a court or tribunal’ and does not include death sentences. The Act does not enable the transfer of persons to serve sentences which involve other forms of punishment, such as the imposition of the death penalty.
However, if a prisoner who has been sentenced to death successfully applies for clemency and has their sentence commuted to a sentence of imprisonment, they will be eligible to apply to transfer to Australia, provided the country in which they are imprisoned is a ‘transfer country’ under the Act.
The Act and all the international agreements to which Australia is a party, including the Treaty with China, provide that the sentence enforced in the receiving must not be harsher, in legal nature or duration, than the sentence imposed in the sending country. Neither the Act nor relevant agreements would enable a foreign country to impose the death penalty in relation to offences for which the person has been transferred to serve a sentence of imprisonment.
The Federal and State agencies responsible for liaising with prisoners about Australia's International Transfer of Prisoners Scheme were informed about the Regulations prior to them being made.
Consultation was unnecessary for this legislative instrument as this instrument has no direct or substantial indirect effect on business.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.
Details of the Regulations are set out in the Attachment.
ATTACHMENT
Details of International Transfer of Prisoners (China) Regulations 2008
Regulation 1 is a citation provision.
Regulation 2 provides for the Regulations to commence on the day after they are registered on the Federal Register of Legislative Instruments.
Regulation 3 is a definition provision.
Regulation 4 declares China to be a transfer country.
Regulation 5 provides that the International Transfer of Prisoners Act 1997 applies to China.