EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 48
Issued by the authority of the Minister for Justice and Customs
International Transfer of Prisoners Act 1997
International Transfer of Prisoners (Hong Kong) Regulations 2006
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 as 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 arrangements also allow foreign nationals who are imprisoned in Australia to apply to serve the balance of their sentence in their home country.
Section 8 of the Act provides, in part, 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. The regulations may also 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 these may include limitations, conditions, exceptions and qualifications to give effect to a bilateral treaty, a copy of which should be set out in the regulations.
The International Transfer of Prisoner (Hong Kong) Regulations 2006 (the Regulations) declare that Hong Kong is a transfer country, and applies the Act to Hong Kong subject to the Agreement between the Government of the Hong Kong Special Administrative Region of the People’s Republic of China and the Government of Australia concerning the Transfer of Sentenced Persons, done at Hong Kong on 25 November 2005 (the Agreement). A copy of the Agreement is set out in Schedule 1 to the Regulations.
The Regulations commence on the day the Agreement comes into force for Australia. The Agreement will come into force for Australia thirty days after the date on which the Parties have notified each other in writing that their respective requirements for entry into force of the Agreement have been complied with.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Regulation 1 names the Regulations.
Regulation 2 provides that the Regulations commence on the day the Agreement comes into force for Australia.
Regulation 3 defines terms used in the Regulations.
Regulation 4 declares that Hong Kong is a transfer country.
Regulation 5 provides for the application of the Act to Hong Kong.
Schedule 1 contains the text of the Agreement.
Overview
The International Transfer of Prisoners (Hong Kong) Regulations 2006 were enacted under the authority of the Minister for Justice and Customs, pursuant to Section 58 of the International Transfer of Prisoners Act 1997. This legislation was introduced to facilitate the transfer of prisoners between Australia and Hong Kong, allowing Australian citizens imprisoned in Hong Kong to return to Australia to serve the remainder of their sentences and enabling foreign nationals imprisoned in Australia to serve the balance of their sentences in Hong Kong. The primary objective of the Act is to provide a legal framework for the international transfer of prisoners, ensuring that such transfers are conducted in a manner that is consistent with both Australian and international law. The Regulations specifically apply the Act to Hong Kong, subject to the terms of the Agreement between the Government of the Hong Kong Special Administrative Region of the People’s Republic of China and the Government of Australia concerning the Transfer of Sentenced Persons, which is detailed in Schedule 1 to the Regulations. These Regulations are designed to ensure that the transfer process is both lawful and orderly, taking into account the specific requirements and stipulations outlined in the bilateral treaty.
Scope and Application
The International Transfer of Prisoners (Hong Kong) Regulations 2006 apply the International Transfer of Prisoners Act 1997 to Hong Kong, declaring it as a transfer country under the Act. This legislation allows for the transfer of Australian prisoners serving sentences in Hong Kong to return to Australia to complete their sentences and vice versa for foreign nationals imprisoned in Australia who wish to serve the remainder of their sentences in Hong Kong. The application of the Act to Hong Kong is contingent on the Agreement between the Government of the Hong Kong Special Administrative Region and the Government of Australia concerning the Transfer of Sentenced Persons, which is detailed in Schedule 1 of the Regulations. The Regulations commence on the day the Agreement comes into force for Australia, which is thirty days after both parties notify each other in writing that all necessary requirements for the Agreement's entry into force have been met. The scope of the Act and Regulations is limited to the terms and conditions outlined in the Agreement, and they do not apply beyond what is specified in the bilateral treaty.
Key Provisions
The main operative sections of the International Transfer of Prisoners (Hong Kong) Regulations 2006 are the provisions that declare Hong Kong as a transfer country under the International Transfer of Prisoners Act 1997 and specify the conditions under which the Act applies to Hong Kong. Regulation 4 declares Hong Kong as a transfer country, while Regulation 5 outlines how the Act applies to Hong Kong, subject to the terms and conditions of the Agreement between the Government of the Hong Kong Special Administrative Region and the Government of Australia concerning the Transfer of Sentenced Persons, which is detailed in Schedule 1. These regulations are designed to facilitate the transfer of prisoners between Australia and Hong Kong, in accordance with the Agreement.
The obligations and requirements imposed by these Regulations on the parties involved are primarily centered around the terms and conditions set out in the Agreement, which is referenced in Schedule 1. Both Australian and Hong Kong authorities must adhere to the procedures and criteria stipulated in the Agreement when processing transfer applications. This includes ensuring that all documentation is properly completed and submitted, and that the requirements for the transfer of prisoners, such as health and security assessments, are met. Both countries must also facilitate the timely communication and exchange of information necessary to process transfer applications and to manage the logistics of prisoner transfers.
Breaches of the requirements under these Regulations may result in significant consequences. Although the specific offences and penalties are detailed in the International Transfer of Prisoners Act 1997, the Regulations themselves do not explicitly state penalties for non-compliance. However, any actions that contravene the provisions of the Agreement, or that fail to comply with the conditions set out in the Regulations, could potentially lead to legal challenges or diplomatic issues between Australia and Hong Kong. The maximum penalties for breaches under the Act can include substantial fines and imprisonment, depending on the severity of the breach and the discretion of the court.