EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 40
Issued by the Authority of the Minister for Justice and Customs
Subject: International Transfer of Prisoners Act 1997
International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2005 (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 necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Act, together 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. 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, done at Strasbourg on 21 March 1983 (the Convention), which was proposed within the framework of the Council of Europe. The Convention is open for accession by non-member States of the Council of Europe. Australia acceded to the Convention on 5 September 2002 and it entered into force for Australia on 1 January 2003. Schedule 2 to the Principal Regulations consists of two parts. Part 1 lists transfer countries that are member States of the Council of Europe and for which the Convention is in force, while Part 2 lists transfer countries that are not member States of the Council of Europe and which have acceded to the Convention.
The purpose of the Regulations was to update the list of transfer countries in Schedule 2 to the Principal Regulations to prescribe Moldova, Mauritius and San Marino as declared transfer countries for the purposes of the Act. As Moldova and San Marino are members of the Council of Europe, the Regulations inserted the references to Moldova and San Marino into Part 1 of Schedule 2 to the Principal Regulations. As Mauritius is not a member of the Council of Europe, the regulations inserted the reference to Mauritius into Part 2 of Schedule 2 to the Principal Regulations.
On 12 May 2004, Moldova acceded to the Convention, with that accession coming into effect on 1 September 2004. On 25 June 2004, San Marino acceded to the Convention, with that accession coming into effect on 1 October 2004. On 18 June 2004, Mauritius acceded to the Convention, with that accession coming into effect on 1 October 2004. Accordingly, Australia could engage in the transfer of sentenced persons with Moldova, San Marino and Mauritius once those countries were declared to be transfer countries by the Regulations.
The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.
Overview
The International Transfer of Prisoners Act 1997 was enacted to facilitate the return of Australian citizens serving sentences in foreign countries and to allow foreign nationals imprisoned in Australia to serve their sentences in their home country. This legislation was introduced to address the need for a formal and streamlined process for the transfer of sentenced prisoners, ensuring that individuals can be repatriated or transferred in a manner that complies with international agreements and legal standards. The Act, together with associated multilateral and bilateral agreements, forms the basis of the International Transfer of Prisoners Scheme in Australia. The scheme operates under the authority of the Parliament of Australia, with the Minister for Justice and Customs having the power to make regulations necessary to implement the Act. The policy objective of the Act is to provide a mechanism for the humane and orderly transfer of prisoners, respecting the rights and needs of both the prisoners and the countries involved in the transfer.
Scope and Application
The International Transfer of Prisoners Act 1997, along with associated regulations and transfer agreements, governs the International Transfer of Prisoners Scheme in Australia. This scheme facilitates the transfer of Australian prisoners to serve their sentences in their home country and vice versa for foreign nationals imprisoned in Australia. The Act applies to any person who is an Australian citizen or permanent resident and who is imprisoned outside Australia, as well as to foreign nationals imprisoned within Australia, subject to their consent and the terms of the applicable transfer agreements. The geographic reach of the Act is not limited to Australia but extends to any country that has entered into a transfer agreement with Australia, including those specified in the regulations. The Act’s application to specific countries is declared through subordinate instruments, such as the International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2005, which update the list of transfer countries to include Moldova, Mauritius, and San Marino. These regulations came into effect following the respective countries' accession to the Transfer of Sentenced Persons Convention, allowing for the transfer of sentenced persons between Australia and these newly declared countries.
Key Provisions
The main operative sections of the International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2005 (No. 1) focus on amending the list of transfer countries under the International Transfer of Prisoners Act 1997. Specifically, these regulations (regulation 3) update Schedule 2 of the Principal Regulations to include Moldova, Mauritius, and San Marino as transfer countries. This means that these countries can now participate in prisoner transfers with Australia under the Scheme. Regulation 4(2) ensures that these amendments only apply to applications made after the regulations came into effect.
The obligations and requirements imposed by these regulations on the parties or entities they govern are primarily administrative. The Department of Justice, which oversees the International Transfer of Prisoners Scheme, must now consider applications for prisoner transfers from or to Moldova, Mauritius, and San Marino in accordance with the Act. These countries must also meet the criteria set out in the Convention on the Transfer of Sentenced Persons. Additionally, the regulations require that any application for transfer be made in accordance with the procedures and requirements outlined in the Act and any relevant transfer agreements.
Failure to comply with the provisions of the International Transfer of Prisoners Act 1997 or the regulations can result in significant consequences. Under section 60 of the Act, any person who contravenes the Act or the regulations may be liable to a penalty. The specific penalties can vary depending on the nature and severity of the breach but may include fines and imprisonment. For instance, section 59 outlines that a person who wilfully makes a false or misleading statement in an application under the Act may be liable to a penalty of up to 100 penalty units (currently AUD 11,000) for an individual and up to 500 penalty units (AUD 55,000) for a body corporate. Additionally, the Act provides that certain offences can be prosecuted either by the Commonwealth Director of Public Prosecutions or by the Attorney-General. This dual prosecution approach ensures that breaches of the Act are taken seriously and can be appropriately addressed within the legal framework.