EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 282
Issued by the authority of the Minister for Home Affairs
International Transfer of Prisoners Act 1997
International Transfer of Prisoners (Vietnam) Regulations 2009
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, and persons imprisoned overseas who have community ties with Australia, 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 declare that the Act applies in relation to such 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 treaty, a copy of which must be set out in the regulations.
The International Transfer of Prisoners (Vietnam) Regulations 2009 (the Regulations) declare that Vietnam is a transfer country, and apply the Act to Vietnam subject to the Agreement between the Government of Australia and the Government of the Socialist Republic of Vietnam concerning Transfer of Sentenced Persons (the Agreement). A copy of the Agreement is set out in Schedule 1 to the Regulations.
The Regulations commence on the day the Agreement enters into force for Australia. The Agreement will enter into force for Australia thirty days after the date on which the Parties have notified each other in writing that their respective requirements for entry into force of the Agreement have been complied with.
Consultation was unnecessary for this legislative instrument as this instrument has no direct or substantial indirect effect on business.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Regulation 1 names the Regulations.
Regulation 2 provides that the Regulations will commence on the day the Agreement comes into force for Australia.
Regulation 3 defines the terms used in the Regulations.
Regulation 4 declares that Vietnam is a transfer country.
Regulation 5 provides for the application of the Act to Vietnam.
Schedule 1 contains the text of the Agreement.
Overview
The International Transfer of Prisoners Act 1997 is a legislative framework that establishes the International Transfer of Prisoners scheme, allowing Australians imprisoned overseas and foreign nationals imprisoned in Australia to apply for transfer to serve the remainder of their sentence in their home country. This scheme aims to address the need for facilitating prisoner transfers under certain conditions and treaties, providing a legal basis for such arrangements. The Act was enacted by the Australian Parliament to fill the gap in formalising and regulating the transfer of prisoners between Australia and other countries. The International Transfer of Prisoners (Vietnam) Regulations 2009 complement the Act by specifically applying it to Vietnam, subject to the terms of the Agreement between Australia and Vietnam concerning the transfer of sentenced persons. The Regulations, made under the authority of the Minister for Home Affairs, ensure that the Act is effectively implemented in relation to Vietnam once the bilateral Agreement enters into force.
Scope and Application
The International Transfer of Prisoners Act 1997 facilitates the transfer of prisoners between Australia and other countries under specific conditions. The Act applies to Australian citizens and permanent residents imprisoned abroad who have community ties with Australia, as well as foreign nationals imprisoned in Australia who wish to serve their sentence in their home country. This Act serves as the foundation for the International Transfer of Prisoners scheme, which is designed to provide a structured process for such transfers. The geographic and jurisdictional reach of the Act is extended through regulations, such as the International Transfer of Prisoners (Vietnam) Regulations 2009, which apply the Act to Vietnam in accordance with the Agreement between Australia and Vietnam. These regulations specify the conditions under which the Act applies to Vietnam, including any limitations, conditions, exceptions, or qualifications necessary to give effect to the Agreement. The application of the Act to Vietnam is contingent upon the Agreement entering into force, as outlined in the Regulations. The Act's application is thus subject to international treaties and bilateral agreements, which are incorporated through subordinate instruments.
Key Provisions
The main operative sections of the International Transfer of Prisoners (Vietnam) Regulations 2009 (the Regulations) pertain to the application of the International Transfer of Prisoners Act 1997 (the Act) to Vietnam. Regulation 4 explicitly declares that Vietnam is a transfer country under the Act, thereby facilitating the transfer of prisoners between Vietnam and Australia in accordance with the scheme. Regulation 5 applies the Act to Vietnam, subject to the terms of the Agreement between the Government of Australia and the Government of the Socialist Republic of Vietnam concerning Transfer of Sentenced Persons (the Agreement). The Regulations are designed to give effect to the Agreement, which is detailed in Schedule 1.
The Act and the Regulations impose several obligations and requirements on the parties involved in the transfer of prisoners. For example, under the scheme, Australians imprisoned overseas and persons with community ties to Australia who are imprisoned overseas can apply to return to Australia to serve the remainder of their sentence. Similarly, foreign nationals imprisoned in Australia can apply to serve the balance of their sentence in their home country. These applications must comply with the provisions of the Act and the Regulations, including the conditions set out in the Agreement. Additionally, both Australia and Vietnam must meet the requirements for the Agreement to enter into force, which will trigger the commencement of the Regulations.
Breach of the provisions of the Act or the Regulations can result in significant consequences. While the specific offences and penalties are not detailed in the explanatory statement, the Act likely includes provisions for both criminal and civil penalties for non-compliance. For instance, unauthorized transfers of prisoners could be considered criminal offences, potentially carrying substantial penalties, including imprisonment. Civil penalties might also apply for breaches of the regulatory requirements, such as fines or other financial penalties. The exact nature and severity of these penalties would depend on the specific provisions of the Act and any relevant case law or regulations.