EXPLANATORY STATEMENT
Select Legislative Instrument 2007 No. 80
Issued by the authority of the Attorney-General
International Transfer of Prisoners Act 1997
International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2007 (No. 1)
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 bilateral or multilateral 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 (the Principal Regulations). 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 Arrangement applies to persons sentenced to a term of imprisonment by a United States military commission in the United States Naval Station at Guantanamo Bay, Cuba.
The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2007 (No. 1), amends the Principal Regulations. It provides that the Act applies to the United States of America subject to the Convention, other than in relation to the transfer to Australia of a person serving a sentence of imprisonment ordered by a United States military commission. The amending Regulations complement the International Transfer of Prisoners (Military Commission of the United States of America) Regulations 2007, which apply the Act to the United States subject to the Arrangement for transfers to Australia of prisoners serving a sentence ordered by a United States military commission.
The Office of Regulation Review has advised that a Regulatory Impact Statement on the amendment of the Principal 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 facilitate the transfer of Australian prisoners serving sentences in foreign countries back to Australia and vice versa for foreign nationals imprisoned in Australia. This Act addresses the need for a structured and legal framework to manage the transfer of prisoners between countries, ensuring that the process is carried out in a manner that respects international obligations and agreements. The Act is administered by the Australian Parliament and its policy objective is to provide a balanced approach to prisoner transfers that considers both the rights of the individual prisoner and the interests of the countries involved.
The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2007 (No. 1) were introduced to amend the existing regulations under the Act, specifically to ensure that the Act applies appropriately to the United States of America. These regulations were necessitated by the need to accommodate the unique circumstances of prisoners sentenced by United States military commissions, particularly those held at Guantanamo Bay. By complementing the separate Arrangement between Australia and the United States, these amendments aim to align the application of the Act with both the Convention and the specific needs of military commission cases, thereby ensuring that all prisoner transfer processes are legally sound and comprehensive.
Scope and Application
The International Transfer of Prisoners Act 1997 (the Act) applies to Australians who are imprisoned overseas and wish to return to Australia to serve the remainder of their sentence, as well as foreign nationals who are imprisoned in Australia and wish to serve the balance of their sentence in their home country. The Act is given effect through subordinate regulations, which specify the countries eligible for prisoner transfer, the treaties governing these transfers, and any limitations or exceptions. The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2007 (No. 1) amend the principal regulations to ensure that the Act applies to the United States of America subject to the Council of Europe Convention on the Transfer of Sentenced Persons, except in relation to prisoners sentenced by a United States military commission at Guantanamo Bay, Cuba, for whom a separate Arrangement is in place. These regulations work in conjunction with the International Transfer of Prisoners (Military Commission of the United States of America) Regulations 2007 to cover transfers of military commission prisoners to Australia. The application of the Act and its subordinate regulations is thus subject to specific international treaties and arrangements, and can be tailored to address unique circumstances in different jurisdictions.
Key Provisions
The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2007 (No. 1) amend the existing Principal Regulations, which were established to facilitate the international transfer of prisoners under the International Transfer of Prisoners Act 1997 (the Act). The Act allows Australian citizens imprisoned overseas and foreign nationals imprisoned in Australia to apply for a transfer to serve their sentences in their home countries. Section 8(1) of the Act empowers the Governor-General to make regulations that apply the Act to foreign countries and declare them as transfer countries. These regulations can include conditions, exceptions, or qualifications necessary to implement a bilateral or multilateral treaty, as outlined in section 8(2) of the Act. The Principal Regulations previously declared the United States of America as a transfer country, subject to the Council of Europe Convention on the Transfer of Sentenced Persons (the Convention).
These amending Regulations adjust the application of the Act to the United States of America by maintaining the Convention’s applicability, but excluding transfers related to sentences imposed by United States military commissions. This amendment is intended to complement the International Transfer of Prisoners (Military Commission of the United States of America) Regulations 2007, which specifically address transfers of prisoners sentenced by such military commissions under a separate Arrangement between Australia and the United States. The new Regulations ensure that the Act applies to the United States in accordance with the Convention, except for those prisoners serving sentences ordered by United States military commissions, who are governed by the separate Arrangement.
The amending Regulations impose certain obligations on the parties involved. Firstly, they require adherence to the Convention in cases of prisoner transfer between Australia and the United States, except where the Arrangement applies. The Regulations also require that any transfer application is made in accordance with the procedures and conditions specified in the Act and the Regulations. Both Australia and the United States must ensure that any prisoner transfer complies with the terms of the Convention and the Arrangement, as applicable. These obligations include verifying the eligibility of the prisoner for transfer, assessing the suitability of the receiving country to enforce the sentence, and ensuring that the transfer does not prejudice the interests of either country.
Breach of the requirements set out in the Act or the Regulations can lead to various legal consequences. The Act includes provisions for offences related to the unauthorised transfer of prisoners, which can result in criminal penalties. Under section 59 of the Act, a person who contravenes the Act or the Regulations can be subject to a penalty of up to 50 penalty units, which equates to approximately AUD 5,500 as of the current penalty unit amount. For corporations, the penalty can be up to 250 penalty units. Additionally, civil or administrative penalties may apply depending on the specific breach and the jurisdiction. It is important for all parties involved in the transfer process to comply with the Act and the Regulations to avoid these potential penalties and ensure the smooth operation of the international transfer scheme.