EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 79
Issued by the authority of the Attorney-General
International Transfer of Prisoners Act 1997
International Transfer of Prisoners (Military Commission of the United States of America) Regulations 2007
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 also declare that the Act applies in relation to 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. Section 4 of the Act defines ‘treaty’ to include a convention, protocol, agreement or arrangement.
The United States of America is declared to be a transfer country by the International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Regulations 2002. These Regulations state that the Act applies to the United States of America, subject to the Council of Europe Convention on the Transfer of Sentenced Persons (the Convention).
To ensure that prisoners who are sentenced by a military commission of the United States of America have the right to apply for transfer, the Governments of Australia and the United States have entered into a separate Arrangement for the transfer of prisoners and cooperation in the enforcement of sentences.
The International Transfer of Prisoners (Military Commission of the United States of America) Regulations 2007 (the Regulations) give effect to the Arrangement. The Regulations apply the Act to the United States of America subject to the Arrangement, in the case of a transfer to Australia of a prisoner serving a sentence ordered by a United States military commission. A copy of the Arrangement is set out in Schedule 1.
The Office of Regulation Review has advised that a Regulatory Impact Statement on the Regulations is not required.
The Regulations commenced on the day after they were registered in the Federal Register of Legislative Instruments.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The International Transfer of Prisoners Act 1997 was enacted to provide a legal framework for the transfer of prisoners between Australia and other countries, enabling Australian citizens imprisoned overseas to apply to return to Australia to serve the remainder of their sentence, and allowing foreign nationals imprisoned in Australia to apply to serve the balance of their sentence in their home country. This legislation addresses the gap in facilitating the transfer of prisoners, ensuring that prisoners have access to a judicial process in their home country and aiming to promote international cooperation in criminal justice matters. Enacted by the Parliament of Australia, the Act seeks to balance the interests of the prisoner, the countries involved, and the broader community by providing a structured process for prisoner transfers. The International Transfer of Prisoners (Military Commission of the United States of America) Regulations 2007 further elaborate on the application of the Act to the United States, ensuring that prisoners sentenced by a United States military commission are also eligible for transfer under the scheme.
Scope and Application
The International Transfer of Prisoners Act 1997 (the Act) provides the legislative framework for the International Transfer of Prisoners scheme in Australia, facilitating the transfer of Australian prisoners held overseas back to Australia to complete their sentences, as well as enabling foreign nationals imprisoned in Australia to serve their sentences in their home countries. The Act applies to individuals who are Australian citizens or permanent residents sentenced in a foreign jurisdiction, as well as foreign nationals sentenced in Australia, thereby covering a broad range of persons under its purview. Geographically, the Act's application is extended through subordinate regulations, which can declare specific foreign countries as "transfer countries." For instance, the United States of America has been declared a transfer country under the International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Regulations 2002, subject to the terms of the Council of Europe Convention on the Transfer of Sentenced Persons. Additionally, the International Transfer of Prisoners (Military Commission of the United States of America) Regulations 2007 apply the Act to the United States in cases involving prisoners sentenced by a U.S. military commission, subject to a separate arrangement between Australia and the United States. These regulations provide the necessary qualifications and conditions under which the Act applies to the United States in such specific contexts.
Key Provisions
The International Transfer of Prisoners Act 1997 (the Act) is a foundational piece of legislation that facilitates the transfer of prisoners between Australia and other countries. Section 58 of the Act allows for regulations to be made to prescribe matters necessary for the operation of the scheme, which allows Australian citizens imprisoned overseas to apply to serve the remainder of their sentence in Australia, and foreign nationals imprisoned in Australia to apply to serve their sentence in their home country. Section 8 of the Act enables the Governor-General to declare a foreign country as a transfer country, subject to any limitations, conditions, exceptions, or qualifications set out in the regulations. Such regulations can also give effect to treaties, conventions, protocols, agreements, or arrangements as defined in section 4 of the Act.
Under these Regulations, the United States of America is declared a transfer country, with the Act applying to the United States subject to the Arrangement for the transfer of prisoners and cooperation in the enforcement of sentences between Australia and the United States. This Arrangement allows prisoners sentenced by a military commission of the United States the right to apply for transfer to Australia. The specific details of this Arrangement are outlined in Schedule 1 of the Regulations.
The Act imposes certain obligations and requirements on parties involved in the transfer process. These include ensuring that any transfer complies with the terms of the Act and any relevant regulations, such as the Arrangement with the United States. Authorities in both Australia and the transfer country must work together to facilitate the transfer process, ensuring that it is conducted in a manner that respects the rights and needs of the prisoner, as well as the legal frameworks of both countries.
Breaches of the provisions of the Act or the Regulations can lead to various legal consequences. While the specific penalties are not detailed in the Explanatory Statement, under Australian law, breaches of legislative provisions can result in both civil and criminal penalties. Civil penalties might include fines, while criminal penalties could include imprisonment, depending on the severity and nature of the breach. The maximum penalties would be determined by the specific provisions of the Act and any relevant sentencing guidelines.