EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 114
Issued by the authority of the Minister for Justice
International Transfer of Prisoners Act 1997
International Transfer of Prisoners (China) Regulations 2011
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 forms the basis for the International Transfer of Prisoners scheme (the scheme) in Australia. The scheme allows Australians imprisoned overseas to apply to return to Australia to serve the remainder of their sentence in an Australian prison. The scheme also allows foreign nationals who are imprisoned in Australia to apply to serve the balance of their sentence in their home country.
Subsection 8(1) of the Act provides that the regulations may apply the Act to a foreign country and may declare that country to be a transfer country for the purposes of the Act. Subsection 8(2) provides that the regulations may declare that the Act applies in relation to such a foreign country subject to limitations, conditions, exceptions or qualifications referred to in the regulations. Paragraph 8(3)(a) provides that the limitations, conditions, exceptions or qualifications can include those necessary to give effect to a treaty, a copy of which must be set out in the regulations.
The International Transfer of Prisoners (China) Regulations 2011 (the Regulations) declare that China is a transfer country, and apply the Act to China subject to the Treaty Between Australia and the People’s Republic of China Concerning Transfer of Sentenced Persons (the Treaty). A copy of the Treaty is set out in Schedule 1 to the Regulations.
The Regulations commence on the day the Treaty enters into force for Australia. In accordance with Article 20 of the Treaty, the two countries must inform each other in writing of the completion of domestic implementation. The Treaty will enter into force thirty days after the date of the latter communication.
Consultation outside the Australian Government was not undertaken for this legislative instrument as it relates to criminal justice and law enforcement matters. The legislative instrument does not have a direct, or substantial indirect, effect on business and does not restrict competition. The Treaty was the subject of a public hearing by the Joint Standing Committee on Treaties, which recommended binding treaty action be taken in Report 117, tabled on 14 June 2011.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
ATTACHMENT
Details of the Regulations
Details of the International Transfer of Prisoners (China) Regulations 2011
Regulation 1 names the Regulations.
Regulation 2 provides that the Regulations commence on the day the Treaty will enter into force.
Regulation 3 repeals the International Transfer of Prisoners (China) Regulations 2008
Regulation 4 defines ‘Act’ to mean the International Transfer of Prisoners Act 1997 and ‘treaty’ to mean the Treaty between the Government of Australia and the Government of the People’s Republic of China concerning Transfer of Sentenced Persons.
Regulation 5 declares China to be a transfer country for the purposes of the International Transfer of Prisoners Act 1997.
Regulation 6 provides that the International Transfer of Prisoners Act 1997 applies to China subject to the Treaty.
Schedule 1 contains the text of the Treaty.
Overview
The International Transfer of Prisoners (China) Regulations 2011, issued under the International Transfer of Prisoners Act 1997, establish the legal framework for the transfer of prisoners between Australia and China. Enacted by the Minister for Justice, these regulations respond to the need for a formalised system to manage the return of Australian citizens serving sentences in Chinese prisons and the transfer of Chinese nationals imprisoned in Australia to serve their sentences in China. This legislative instrument aims to align with the Treaty Between Australia and the People’s Republic of China Concerning Transfer of Sentenced Persons, ensuring the process complies with international obligations and facilitates the humane and orderly transfer of prisoners. The Regulations, which come into effect upon the Treaty entering into force, embody the policy objective of enhancing cooperation between the two countries in criminal justice matters, thereby promoting mutual trust and respect.
Scope and Application
The International Transfer of Prisoners Act 1997 and the associated International Transfer of Prisoners (China) Regulations 2011 govern the process for transferring prisoners between Australia and China. The Act applies to individuals who are Australian citizens or permanent residents and are serving a sentence in a foreign country, or foreign nationals serving a sentence in Australia, who wish to return to their home country to serve the remainder of their sentence. The Act and Regulations facilitate the transfer of prisoners under the terms of the Treaty Between Australia and the People’s Republic of China Concerning Transfer of Sentenced Persons, which is incorporated into the Regulations as Schedule 1. The Regulations specify that China is a transfer country under the Act and detail the conditions under which the Act applies to China, aligning with the requirements of the Treaty. The Act and Regulations provide the legal framework for such transfers, including the necessary conditions and limitations, and are effective from the day the Treaty enters into force for Australia.
Key Provisions
The International Transfer of Prisoners (China) Regulations 2011, made under section 58 of the International Transfer of Prisoners Act 1997, establish the legal framework for the transfer of prisoners between Australia and China, aligning with the Treaty Between Australia and the People’s Republic of China Concerning Transfer of Sentenced Persons (section 6). The Regulations declare China as a transfer country and apply the Act to China in accordance with the Treaty (regulation 5). These provisions are pivotal as they formalise the legal basis for prisoner transfers, ensuring that the movement of prisoners between the two countries is governed by a specific set of rules and conditions outlined in the Treaty.
Under these Regulations, both Australian and Chinese authorities are obliged to adhere to the stipulations and conditions set forth in the Treaty, which is detailed in Schedule 1. For Australian authorities, this includes ensuring that any prisoner transferred to China meets the eligibility criteria and that all legal and procedural requirements are met (regulation 6). Similarly, the Chinese authorities must comply with the Treaty when receiving Australian prisoners, ensuring that the transfer process respects the rights and conditions stipulated within the Treaty. The obligations extend to both parties ensuring that any communication regarding the implementation and operation of the Treaty is conducted in a timely and transparent manner.
Failure to comply with the provisions of the Regulations and the Treaty may result in significant legal consequences. The Act itself does not explicitly outline specific offences, penalties, or civil/criminal consequences for breaches of the Regulations. However, the severity of non-compliance could potentially lead to diplomatic tensions, the halting of the transfer scheme, or legal disputes between the two countries. In the broader context, any breaches could undermine the integrity of international agreements and the rule of law, potentially leading to further legal actions or sanctions under domestic or international law.