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.