Commonwealth Numbered Regulations - Explanatory Statements

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INTERNATIONAL TRANSFER OF PRISONERS (TRANSFER OF SENTENCED PERSONS CONVENTION) AMENDMENT REGULATIONS 2004 (NO. 1) 2004 NO. 170

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 as necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The Act, along 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. Schedule 2 to the Principal Regulations consists of two parts. Part 1 lists transfer countries that are member states of the Council of Europe, whilst Part 2 lists transfer countries that are not. 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 (the Convention).

The purpose of the Regulations was to update the list of transfer countries in Schedule 2 to the Principal Regulations to prescribe Bolivia and Venezuela as declared transfer countries for the purposes of the Act. As neither Bolivia nor Venezuela are member states to the Council of Europe the Regulations inserted the references to Bolivia and Venezuela into Part 2 of Schedule 2 to the Principal Regulations.

On 11 June 2003 Venezuela acceded to the Convention, that accession coming into effect on 1 October 2003. On 2 March 2004 Bolivia acceded to the Convention, that accession coming into effect on 1 June 2004. Accordingly, Australia could engage in the transfer of sentenced persons with Bolivia and Venezuela once those countries were declared to be transfer countries by the Regulations.

The Act specifies no conditions that had to be met before the power to make the Regulations may be exercised.

The Regulations commenced on their notification in the Gazette.