International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2004 (No. 1) 2004 No. 170
EXPLANATORY STATEMENT
Statutory Rules 2004 No. 170
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 2004 (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 provide that the Act applies 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 to the Principal Regulations is declared to be a transfer country. Schedule 2 to the Principal Regulations consists of two parts. Part 1 lists transfer countries that are member states of the Council of Europe, whilst Part 2 lists transfer countries that are not. 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 update the list of transfer countries in Schedule 2 to the Principal Regulations to prescribe Bolivia and Venezuela as declared transfer countries for the purposes of the Act. As neither Bolivia nor Venezuela are member states to the Council of Europe the Regulations inserted the references to Bolivia and Venezuela into Part 2 of Schedule 2 to the Principal Regulations.
On 11 June 2003 Venezuela acceded to the Convention, that accession coming into effect on 1 October 2003. On 2 March 2004 Bolivia acceded to the Convention, that accession coming into effect on 1 June 2004. Accordingly, Australia could engage in the transfer of sentenced persons with Bolivia and Venezuela once those countries were declared to be transfer countries 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 their notification in the Gazette.
Overview
The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2004 (No. 1) were enacted to update the list of transfer countries under the International Transfer of Prisoners Act 1997. This Act facilitates the transfer of Australian prisoners to serve their sentences in their home countries and vice versa. The problem or gap the Act addresses is the need for a formalised legal framework to manage the international transfer of prisoners, ensuring that such transfers are conducted in accordance with relevant conventions and agreements. These regulations were introduced by the Parliament of Australia to provide the necessary updates to the existing regulatory framework to include Bolivia and Venezuela as eligible transfer countries following their accession to the relevant international Convention. The policy objective behind these amendments was to ensure that Australia’s international prisoner transfer scheme remains current and compliant with international obligations by recognising new countries that have joined the Convention on the Transfer of Sentenced Persons.
Scope and Application
The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2004 (No. 1) pertains to the scope and application of the International Transfer of Prisoners Act 1997, which facilitates the transfer of prisoners between Australia and other countries. The Act applies to Australian citizens who are imprisoned overseas and wish to return to Australia to serve the remainder of their sentence, as well as foreign nationals imprisoned in Australia who seek to complete their sentences in their home countries. The Act’s application extends to any country that has acceded to the Convention on the Transfer of Sentenced Persons, and these countries are referred to as 'transfer countries'. The Regulations, made under the authority of the Minister for Justice and Customs, update the list of transfer countries by including Bolivia and Venezuela, thus enabling prisoner transfer arrangements with these nations once they acceded to the Convention. These Regulations do not impose specific conditions or thresholds but are effective upon their notification in the Gazette, aligning with the Act's provisions for necessary or convenient regulation-making.
Key Provisions
The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2004 (No. 1) amends the Principal Regulations to update the list of transfer countries under the International Transfer of Prisoners Act 1997 (the Act). Specifically, regulation 4 of the Amendment Regulations declares Bolivia and Venezuela as transfer countries for the purposes of the Act, by inserting them into Part 2 of Schedule 2 of the Principal Regulations (regulation 3). These countries are not members of the Council of Europe but have acceded to the Convention on the Transfer of Sentenced Persons, which governs the transfer scheme. The Act allows Australians imprisoned overseas to return to Australia to serve the remainder of their sentences and also allows foreign nationals imprisoned in Australia to apply to serve the balance of their sentences in their home country.
Under the Amendment Regulations, the obligations on the parties involved are primarily administrative and procedural. The Australian government must now recognise Bolivia and Venezuela as eligible countries for prisoner transfers under the scheme. This involves ensuring that any applications from prisoners in these countries to be transferred to Australia, or from Australian prisoners in these countries to be transferred back to Australia, are processed according to the procedures outlined in the Act and the Convention. The obligations also extend to ensuring that the transfer agreements with Bolivia and Venezuela meet the standards and requirements set out in the Convention.
Breaching the provisions of the Act or the Regulations can lead to various civil, criminal, or administrative consequences. Under the Act, failure to comply with the regulations made under it can result in penalties. The Act does not specify particular offences or penalties, but breaches of regulations could potentially lead to legal action, fines, or other administrative sanctions. Additionally, if a transfer does not comply with the Convention or the Act, it could result in diplomatic repercussions between Australia and the country involved. The exact consequences of a breach would depend on the specific circumstances and the nature of the non-compliance.