International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2008 (No. 1)

Administered by Attorney-General's Department

Legislation au F2008L00848 Regulations Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 24

 

 

Issued by the authority of the Minister for Home Affairs

 

International Transfer of Prisoners Act 1997

 

International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2008 (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 as 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 in a ‘transfer country’ 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, so long as their home country is a ‘transfer country’. 

 

A ‘transfer country’ is defined in subsection 4(1) of the Act as ‘a foreign country or region that is declared by the regulations under section 8 to be a transfer country’.   Subsections 8(2) and (3) of the Act allow regulations to declare that the Act applies in relation to a foreign country subject to the limitations, conditions, exceptions or qualifications necessary to give effect to a treaty.  Section 4 of the Act defines ‘treaty’ to include a convention, protocol, agreement or arrangement.

The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Regulations 2002 (the Principal Regulations) declare countries that are bound by the Convention on the Transfer of Sentenced Persons (the Convention) to be ‘transfer countries’ under the Act, subject to that Convention.  This ensures that people imprisoned in Australia who are foreign nationals of those countries, and Australian’s imprisoned in those countries, can participate in the International Transfer of Prisoners Scheme established by the Act.  The purpose of these Regulations is to eliminate the need to amend the Principal Regulations each time a new country becomes party to the Convention.

The Convention was done at Strasbourg on 21 March 1983, and 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.

The Principal Regulations originally listed the countries that are bound by the Convention (in Schedule 2), and declared the countries in that list to be ‘transfer countries’.  Schedule 2 had been amended four times since the Principal Regulations came into force in December 2002.  Prior to these Regulations Schedule 2 was out of date as it did not cover Russia and Mexico, for whom the Convention had recently come into force.

The Regulations repeal the list of countries in Schedule 2 and declare that each foreign country for whom the Convention is in force is a ‘transfer country’.  The Regulations include a note referring the reader to the Council of Europe’s treaty website which contains a current list of countries for which the Convention is in force.

The approach of referring in regulations to foreign countries who are party to a Convention without listing those countries is not without precedent (see for example sub-regulation 4(1) of the Mutual Assistance (Transnational Organised Crime) Regulations 2004).  Subsection 13(3) of the Legislative Instruments Act 2003 allows things to be declared in regulations by referring to a class of things.

 

The federal and State agencies responsible for liaising with prisoners about Australia's International Transfer of Prisoners Scheme were informed about these regulations prior to them being made.  In accordance with the requirement in section 54 of the Act, States and Territories will be informed when new countries become ‘transfer countries’ under the Act by virtue of becoming bound by the Convention.  A list of ‘transfer countries’ is also available on the website of the Attorney-General's Department.

 

The Regulations will not impose any compliance costs on businesses, and will not restrict competition.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.

Details of the Regulations are set out in the Attachment.

 

ATTACHMENT

Details of International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2008 (No. 1)

Regulation 1 is a citation provision.

Regulation 2 provides for the Regulations to commence on the day after they are registered on the Federal Register of Legislative Instruments.

Regulation 3 provides that the International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Regulations 2002 are amended by Schedule 1.

Schedule 1, item 1 rewords the declaration of ‘transfer country’ so that a transfer country is a foreign country for which the Convention is in force rather than a country listed in Schedule 2. 

This item also inserts two notes to assist the reader.  The first notes that the rules on when the Convention comes into force for a State are set out in Articles 18 and 19 of the Convention.  The rules vary slightly for member States of the Council of Europe and non-member States.  In most cases the Convention enters into force for a State on the first day of the month following the expiration of a period of three months after the date that State has deposited an instrument of ratification, acceptance or approval (for signatory States), or an instrument of accession (for non-member States that are not signatories), with the Secretary General of the Council of Europe.

The second note informs the reader that the Council of Europe’s treaty website contains a current list of countries for which the Convention is in force.

 

Schedule 1, item 2 provides that the Act applies to a transfer country, subject to the Convention.  This means that people imprisoned in Australia who are foreign nationals of countries for which the Convention is in force, and Australian’s imprisoned in those countries, can participate in the International Transfer of Prisoners scheme established by the Act.  In the event of any inconsistency between the Act and the Convention, the Convention will apply.

 

Schedule 1, item 3 repeals Schedule 2, which contained the list of countries to whom the Convention applies.  This list is made redundant by the rewording of the declaration of ‘transfer country’ in Schedule 1, item 1 which no longer refers to Schedule 2.  This change means that the Principal Regulations no longer need to be amended every time a new country becomes a party to the Convention.

Overview

The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2008 (No. 1) were introduced to amend the existing International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Regulations 2002. This amendment was enacted by the Parliament of Australia to address the problem of keeping the list of transfer countries updated under the International Transfer of Prisoners Act 1997. The Act facilitates the transfer of prisoners between Australia and other countries, provided these countries are party to the Convention on the Transfer of Sentenced Persons. By referring to the Convention directly in the regulations instead of maintaining a list in Schedule 2, the need to amend the Principal Regulations each time a new country accedes to the Convention is eliminated. This approach ensures the regulations remain current and effective without requiring frequent legislative changes. The policy objective is to streamline the process of updating the list of transfer countries and facilitate the participation of Australians and foreign nationals in the International Transfer of Prisoners Scheme.

Scope and Application

The International Transfer of Prisoners Act 1997 applies to Australians imprisoned in foreign countries and foreign nationals imprisoned in Australia, provided that the foreign country is a 'transfer country' as defined by the Act. The Act establishes the International Transfer of Prisoners Scheme, allowing eligible individuals to apply to serve their remaining sentence in their home country or in Australia, respectively. A 'transfer country' is a foreign country or region that is bound by the Convention on the Transfer of Sentenced Persons, and is declared as such under the regulations made under the Act. The Act has a national reach within Australia and applies to conduct and transactions related to the transfer of prisoners in accordance with the Convention. The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2008 (No. 1) modify the Principal Regulations to eliminate the need to amend the list of countries in Schedule 2 each time a new country becomes party to the Convention. Instead, the regulations declare that a 'transfer country' is a foreign country for which the Convention is in force. This approach ensures that the list of transfer countries remains up-to-date and simplifies the regulatory process. The regulations also refer to the Council of Europe's treaty website for a current list of countries for which the Convention is in force.

Key Provisions

The International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Amendment Regulations 2008 (No. 1) are designed to streamline the administration of the International Transfer of Prisoners Scheme established under the International Transfer of Prisoners Act 1997 (the Act). They do so by amending the definition of 'transfer country' to include any foreign country for which the Convention on the Transfer of Sentenced Persons (the Convention) is in force, rather than relying on a schedule of listed countries. This approach ensures that the regulations do not become outdated as new countries accede to the Convention (Regulation 1, Schedule 1, item 1). Additionally, the Regulations declare that the Act applies to a transfer country subject to the Convention, facilitating the participation of foreign nationals and Australians imprisoned in Convention-bound countries within the Scheme (Schedule 1, item 2). To prevent redundancy and streamline future amendments, the Regulations repeal Schedule 2 of the Principal Regulations, which previously listed the countries to which the Convention applies (Schedule 1, item 3). The Act and these Regulations impose obligations on several entities involved in the International Transfer of Prisoners Scheme. The Governor-General, under section 58 of the Act, has the authority to make regulations necessary to implement the Scheme. The federal and state agencies responsible for liaising with prisoners about the Scheme are required to be informed about these Regulations prior to their enactment (subsection 54(1) of the Act). Furthermore, States and Territories must be informed when new countries become 'transfer countries' under the Act due to their accession to the Convention (subsection 54(2) of the Act). The Attorney-General's Department is responsible for maintaining and making publicly available a list of 'transfer countries' on their website, ensuring transparency and accessibility for all parties involved. Under the Act, breaches of the regulations or non-compliance with the requirements for prisoner transfers may result in civil or criminal penalties, although the specific consequences are not detailed in the explanatory statement. It is reasonable to infer, however, that any actions that hinder the proper implementation of the Scheme or violate the terms of the Convention could lead to legal repercussions. Given the nature of international agreements and the obligations they entail, penalties could range from fines to more severe legal actions depending on the severity and intent behind the breach. The Regulations themselves do not impose compliance costs on businesses or restrict competition, aligning with the broader objectives of the Scheme to facilitate the humane treatment and appropriate punishment of prisoners. By referring to the Convention and maintaining an up-to-date list of adhering countries, the Regulations ensure that the Scheme remains effective and responsive to international legal developments without unnecessary administrative burdens.

Legal classification tags

Area of Law
International Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Regulatory Standards
Licensing & Registration
Catchwords
Transfer of Sentenced Persons Convention

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.