International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2003 (No. 1) 2003 No. 278
EXPLANATORY STATEMENT
Statutory Rules 2003 No. 278
Issued by the authority of the Minister for Justice and Customs
International Transfer of Prisoners Act 1997
International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2003 (No. 1)
Subsection 58(1) 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, along with any multilateral and bilateral transfer agreements, forms the basis of 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 sentences in an Australian prison. The scheme also allows foreign nationals who are imprisoned in Australia to apply to serve the balance of their sentences in their home country.
Subsection 8(1) of the Act provides that the regulations may apply the Act to a foreign country declared by the regulations to be a transfer country for the purposes of the Act.
Regulation 4 of the International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Regulations 2002 (the Principal Regulations) provides that each country specified in Schedule 2 of the Principal Regulations is declared to be a transfer country. Regulation 5 of the Principal Regulations provides that the Act applies to each country specified in Schedule 2, subject to the Convention on the Transfer of Sentenced Persons (the Convention).
The purpose of the Regulations was to make a minor technical amendment to the structure of Schedule 2 of the Principal Regulation, to add two countries to the list of transfer countries to which the Act applies, and to remove one country from the list.
Schedule 2 of the Principal Regulations previously prescribed transfer countries under two headings, by reference to whether or not they are member states to the Council of Europe. The Regulations formalised this distinction by replacing the existing headings with two Part headings. Part 1 lists transfer countries that are member states of the Council of Europe, whilst Part 2 lists transfer countries that are not.
The Regulations also amended the list of transfer countries in Schedule 2 by replacing the reference to the Federal Republic of Yugoslavia (FRY) with a reference to Serbia and Montenegro, and by adding Japan.
On 4 February 2003 FRY was officially dissolved and renamed the state of Serbia and Montenegro. Serbia and Montenegro is a party to the Convention and a member of the Council. Accordingly, Australia could enter into prisoner transfer arrangements with Serbia and Montenegro once that state was declared a transfer country by the Regulations.
FRY was previously prescribed under Schedule 2 of the Principal Regulations as a transfer country. To reflect FRY's dissolution, the Regulations removed the reference to FRY from Schedule 2 of the Principal Regulations.
On 17 February 2003 Japan acceded to the Convention as a non-member of the Council, its accession taking effect from 1 June 2003. Accordingly, Australia could enter into prisoner transfer arrangements with Japan once Japan was declared a transfer country by the Regulations.
The Act specifies no conditions that had to be met before the power to make the Regulations may be exercised.
The Regulations commenced on gazettal.
Overview
The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2003 (No. 1) were enacted under the authority of the Minister for Justice and Customs to amend the International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Regulations 2002. This regulatory change was introduced to address the need for updating the list of countries with which Australia can engage in prisoner transfer arrangements under the International Transfer of Prisoners Act 1997. The Act, which establishes the framework for transferring sentenced prisoners between Australia and other countries, was designed to facilitate the return of Australian nationals serving sentences overseas to Australia, and the transfer of foreign nationals serving sentences in Australia back to their home countries. The policy objective of these regulations was to ensure that the list of transfer countries remained current and reflected the evolving international landscape, particularly in relation to the dissolution of the Federal Republic of Yugoslavia into Serbia and Montenegro and Japan's accession to the Convention.
Scope and Application
The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2003 (No. 1) amends the International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Regulations 2002, extending the application of the International Transfer of Prisoners Act 1997 to include additional countries for the purposes of prisoner transfer arrangements. The Act facilitates the transfer of Australian prisoners serving sentences overseas and foreign nationals serving sentences in Australian prisons back to their home countries. The Act applies to any country declared a transfer country by the regulations, with the regulation specifying countries under two distinct parts based on their membership of the Council of Europe. The Regulations update the list of transfer countries to reflect the dissolution of the Federal Republic of Yugoslavia and the accession of Japan to the Convention, ensuring that Australia can enter into transfer arrangements with these jurisdictions in accordance with the Convention. The Regulations have a direct and immediate effect upon gazettal, with no additional conditions or thresholds specified in the Act for the exercise of the regulatory power.
Key Provisions
The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2003 (No. 1) (the Regulations) amend the International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Regulations 2002 (the Principal Regulations) to formalise the distinction between transfer countries that are member states of the Council of Europe and those that are not, by creating two distinct parts in Schedule 2 of the Principal Regulations (Regulation 3). The Regulations also update the list of transfer countries by replacing the reference to the Federal Republic of Yugoslavia (FRY) with Serbia and Montenegro, reflecting the dissolution of FRY and its renaming, and by adding Japan as a new transfer country (Regulation 4). These changes enable Australia to enter into prisoner transfer arrangements with Serbia and Montenegro and Japan, once they are formally declared as such.
The Regulations impose no specific obligations or requirements on any parties or entities they govern, beyond what is already stipulated in the International Transfer of Prisoners Act 1997 (the Act). Instead, they primarily serve to update the list of countries with which Australia can enter into prisoner transfer agreements under the scheme established by the Act. The Regulations ensure that the list of transfer countries in Schedule 2 of the Principal Regulations is current and accurately reflects the legal status of each country in relation to the Convention on the Transfer of Sentenced Persons.
The Act itself does not outline specific offences, penalties, or consequences for breaches of the Act or the Regulations. However, the general principles of administrative law and the common law would apply in the event of any disputes or challenges to the validity of the Regulations. For example, if a party were to challenge the Regulations on the grounds that they were made without the requisite authority or were otherwise invalid, the matter would be decided according to the principles of administrative law. Similarly, if a party were to breach any of the conditions or requirements of a prisoner transfer agreement made under the scheme, the consequences would depend on the terms of that agreement and any applicable domestic or international law.
In summary, the Regulations update the list of transfer countries in Schedule 2 of the Principal Regulations to reflect the dissolution of FRY and the accession of Japan to the Convention. They impose no new obligations or requirements on any parties or entities they govern, beyond what is already stipulated in the Act. While the Act itself does not outline specific offences, penalties, or consequences for breaches of the Act or the Regulations, the general principles of administrative law and the common law would apply in the event of any disputes or challenges to the validity of the Regulations or breaches of any prisoner transfer agreements made under the scheme.