EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 76
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 2006 (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 Schedules 1 and 2 to the Principal Regulations to prescribe Bosnia and Herzegovina, Ecuador and Korea as declared transfer countries for the purposes of the Act. As Bosnia and Herzegovina is a member of the Council of Europe, the regulations inserted the reference to Bosnia and Herzegovina into Part 1 of Schedule 2 to the Principal Regulations. As Ecuador and Korea are not members of the Council of Europe, the regulations inserted the reference to Ecuador and Korea into Part 2 of Schedule 2 to the Principal Regulations.
On 15 April 2005, Bosnia and Herzegovina ratified the Convention, with that ratification coming into effect on 1 August 2005. Accordingly, Australia could engage in the transfer of sentenced persons with Bosnia and Herzegovina once that country is declared to be a transfer country by the Regulations.
On 12 July 2005, Ecuador acceded to the Convention, with that accession coming into effect on 1 November 2005. Accordingly, Australia could engage in the transfer of sentenced persons with Ecuador once that country is declared to be a transfer country by the Regulations.
On 20 July 2005, Korea acceded to the Convention, with that accession coming into effect on 1 November 2005. Accordingly, Australia could engage in the transfer of sentenced persons with Korea once that country is declared to be transfer country by the Regulations.
The Office of Regulation Review has advised that a Regulation Impact Statement on the amendment of the Principal Regulations is not required.
The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.
Overview
The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2006 (No. 1) were introduced to update the list of transfer countries under the International Transfer of Prisoners Act 1997. This Act, enacted by the Australian Parliament, facilitates the transfer of prisoners between Australia and other countries under bilateral and multilateral agreements, enabling Australians imprisoned overseas to return to Australia to serve their sentences and allowing foreign nationals imprisoned in Australia to serve their sentences in their home countries. The 2006 amendment was made to incorporate Bosnia and Herzegovina, Ecuador, and Korea as new transfer countries, reflecting their accession to the Convention on the Transfer of Sentenced Persons. This amendment was necessary to align Australian legislation with international agreements and facilitate the transfer of sentenced persons under the Convention. The Regulations were issued under the authority of the Minister for Justice and Customs and came into effect immediately upon registration on the Federal Register of Legislative Instruments.
Scope and Application
The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2006 (No. 1) amends the International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Regulations 2002 to include Bosnia and Herzegovina, Ecuador, and Korea as transfer countries under the International Transfer of Prisoners Act 1997. The Act facilitates the transfer of Australian prisoners serving sentences overseas back to Australia and allows foreign nationals serving sentences in Australia to return to their home country to complete their sentence. This scheme is contingent upon the country being a signatory to the Convention on the Transfer of Sentenced Persons, which Australia acceded to on 5 September 2002. The regulations update the list of transfer countries by inserting references to these new countries into Schedule 2 of the Principal Regulations, with Bosnia and Herzegovina added to Part 1 as a member of the Council of Europe and Ecuador and Korea added to Part 2 as non-member states that have acceded to the Convention. The amendment allows for the formal engagement in prisoner transfer arrangements with these countries once they are declared as transfer countries through the regulations. The Office of Regulation Review determined that a Regulation Impact Statement was not necessary for these amendments, and the regulations came into effect the day after their registration on the Federal Register of Legislative Instruments.
Key Provisions
The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2006 (No. 1) introduce specific provisions under the International Transfer of Prisoners Act 1997, primarily through amendments to the Principal Regulations. Regulation 4 of these Amendment Regulations updates the list of transfer countries by adding Bosnia and Herzegovina, Ecuador, and Korea to Schedule 2 of the Principal Regulations. This change reflects the fact that these countries have either ratified or acceded to the Convention on the Transfer of Sentenced Persons, thereby becoming eligible for prisoner transfer agreements with Australia under the scheme. Bosnia and Herzegovina was inserted into Part 1 of Schedule 2 as it is a member State of the Council of Europe, while Ecuador and Korea, which are not members of the Council of Europe, were inserted into Part 2 of Schedule 2.
The obligations imposed by these Regulations on the relevant parties are primarily administrative and procedural. The Department of Foreign Affairs and Trade, in consultation with the Department of Attorney-General and Justice, is responsible for ensuring that the updated list of transfer countries in Schedule 2 aligns with the current status of international agreements. This involves verifying that the listed countries have indeed ratified or acceded to the Convention and that they are ready to engage in prisoner transfer agreements. Additionally, Australian authorities must ensure that any prisoner transfer applications from these countries are processed in accordance with the provisions of the Act and any bilateral agreements in place.
Failure to comply with the provisions of the International Transfer of Prisoners Act 1997 or the associated Regulations can result in both civil and criminal consequences. For instance, any person who knowingly provides false or misleading information in an application for prisoner transfer could be subject to criminal penalties, including fines and imprisonment. Under Section 66 of the Act, a person can be fined up to 5,000 penalty units or imprisoned for up to five years, or both, for providing false or misleading information. Furthermore, breaches of the Regulations by entities such as government departments or agencies could lead to civil penalties, including financial penalties imposed by administrative tribunals or courts.