Commonwealth Numbered Regulations - Explanatory Statements
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INTERNATIONAL TRANSFER OF PRISONERS AMENDMENT (2015 MEASURES NO. 1) REGULATION 2015 (SLI NO 146 OF 2015)
EXPLANATORY STATEMENT
Select Legislative Instrument No. 146, 2015
Issued by the authority of the Minister for Justice
International Transfer of Prisoners Act 1997
International Transfer of Prisoners Amendment (2015 Measures No.1) Regulation 2015
The International Transfer of Prisoners Act 1997 (ITP Act) provides the legislative framework for Australia's participation in the international transfer of prisoners (ITP) scheme (the scheme). The scheme allows Australians imprisoned overseas, and foreign nationals imprisoned in Australia, to apply to serve out the remainder of their sentence in their home country. The scheme aims to promote prisoners' successful rehabilitation and reintegration into society, while preserving the sentence imposed by the sentencing country as far as possible. Transfers are not automatic and require the consent of the Australian Government, the government of the foreign country, the prisoner and, in some circumstances, a state or territory government, before a transfer can take place.
Section 58 of the ITP 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 International Transfer of Prisoners Regulations 2002 (the Principal Regulations) prescribes forms to be used to give effect to the transfer of prisoners under the Act.
The ITP Act was recently amended pursuant to Schedule 3 of the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Act 2015. Schedule 3 will commence on 5 September 2015. The amendments streamline the existing ITP processes and clarify or simplify some legislative requirements that need to be met before a prisoner may be transferred into or out of Australia
The purpose of the International Transfer of Prisoners Amendment (2015 Measures No.1) Regulation 2015 is to make consequential amendments to the Principal Regulations and forms prescribed by those Regulations required as a result of amendments to the ITP Act which:
- clarify that the ITP Scheme applies to prisoners serving a suspended sentence; and
- provide that application forms for transfer from Australia now only require approval by the Attorney-General rather than having to be prescribed in the Principal Regulations.
The ITP Act does not specify any conditions that need to be satisfied before the power to make the Regulation may be exercised.
Consultation outside the Australian Government was not undertaken for this legislative instrument because these amendments broaden and clarify the forms to be used for ITP transfers for the purpose of streamlining the ITP process, and are technical in nature. They do not reduce accessibility of forms.
The Office of Best Practice Regulation advised that a Regulation Impact Statement is not necessary for these amendments.
Details of the Regulation are set out in the Attachment.
The Regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulation commenced on the same day as the ITP Act amendments commenced on 5 September 2015.
Authority: Section 58 of the International Transfer of Prisoners Act 1997
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
International Transfer of Prisoners Amendment (2015 Measures No.1) Regulation 2015
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The International Transfer of Prisoners Regulations 2002 (the Principal Regulations) prescribes forms to be used to give effect to the transfer of prisoners under the International Transfer of Prisoners Act 1997 (the ITP Act).
The ITP Act was recently amended to, among other things, clarify that it applies to prisoners serving a suspended sentence, and provide that application forms for transfer from Australia now only require approval by the Attorney-General rather than having to be prescribed in the Principal Regulations. The amendments are contained in Schedule 3 of the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Act 2015 (the amending Act) which will commence on 5 September 2015.
The purpose of the International Transfer of Prisoners Amendment (2015 Measures No.1) Regulation 2015 (the amendment Regulation) is to make consequential amendments to the Principal Regulations as a result of the above amendments to the ITP Act.
The amendment Regulation:
- amends the wording of some regulations and forms, and creates new forms, to cover prisoners serving suspended sentences
- removes some regulations and forms as those forms are no longer required to be prescribed in the Principal Regulations as they can now be approved by the Attorney-General, and
- includes a transitional provision to allow warrant forms issued before commencement of the amendments to continue to be used by the ITP case work area to avoid practical difficulties.
Human rights implications
The Amending Act engaged the human right to humane treatment in detention under article 10(1) of the International Covenant on Civil and Political Rights (ICCPR), which requires that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Article 10(3) also requires State parties to ensure that prison systems have as their essential aim the reformation and social rehabilitation of prisoners. The purpose of the Amending Act was to better facilitate the overall objectives of the ITP Act, which are to promote the successful rehabilitation and reintegration into society of a prisoner, while preserving the sentence imposed by the sentencing country as far as possible. The Parliamentary Joint Committee on Human Rights concluded in its 15th Report of the 44th Parliament that the measures in the Amending Act are compatible with human rights.
The proposed amendments in the amendment Regulation give effect to some of the amendments contained in the Amending Act. They provide forms in the Regulations for the transfer of an additional class of prisoners (those serving a suspended sentence), and remove forms that can now be approved by the Attorney-General, rather than having to be prescribed in the Regulations. Those forms will be available on the Attorney-General's Department website.
These amendments broaden and clarify the forms to be used for ITP transfers for the purpose of streamlining the ITP process, and are technical in nature. They do not reduce accessibility of forms. To the extent that they facilitate implementation of measures under the Amending Act, the amendments promote rights relating to humane treatment in detention in Article 10 of the ICCPR.
Conclusion
This Legislative Instrument is compatible with human rights because it promotes rights.
The Hon Michael Keenan MP, Minister for Justice
ATTACHMENT
Details of the proposed International Transfer of Prisoners Amendment (2015 Measures No.1) Regulation 2015
Section 1 - Name
This section provides that the title of the Regulation is the International Transfer of Prisoners Amendment (2015 Measures No.1) Regulation 2015.
Section 2 - Commencement
This section provides that the Regulation (including Schedule 1) commences at the same time as the amendments to the ITP Act (that is, on 5 September 2015).
Section 3 - Authority
This section provides that the Regulation is made under the International Transfer of Prisoners Act 1997.
Section 4 - Schedules
This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 - Amendments
This Schedule contains the amendments to the International Transfer of Prisoners Regulations 2002.
Item 1 - This item inserts a Part heading 'Part 1 - Preliminary'.
Item 2 - regulation 3 - definitions
Existing Regulation 3 has been repealed and a new Regulation 3 inserted which:
- provides that the term Act refers to the International Transfer of Prisoners Act 1997.
- replaces the existing Note with a new Note that advises that a number of expressions used in the Regulations are defined in the Act. The new Note includes all the existing expressions referred to in the existing Note except for "community ties" as that term no longer appears in the Regulations. The new Note includes two new expressions, "serving' and "suspended part", as these are new definitions in the Act and appear in the amended Regulations and forms.
Item 3 - regulations 5 and 6 - references to forms
Existing Regulations 5 and 6 have been repealed.
Existing Regulation 5 prescribes application forms (Forms 1 and 3) to be used for prisoner transfers from Australia. Existing Regulation 6 prescribes further forms (Forms 2 and 4) to be used to obtain sentencing information from correctional services officials to accompany the application form. Regulations 5 and 6 (and the forms they prescribe) are no longer required, as section 16 of the ITP Act now provides that applications can be made 'using a form approved in writing by the Attorney-General' - rather than 'in the manner prescribed in the regulations'. The sentencing information required by Regulation 6 will instead be sought in the application forms to be approved by the Attorney-General.
This item also inserts a Part heading 'Part 2 - Transfer of Prisoners'.
Item 4 and 5 - sub regulation 7(a) and new sub regulation 7(c) - warrant for transfer of prisoner from Australia
Amendments to the ITP Act clarified that the ITP Scheme applies to prisoners serving suspended sentences. This was mainly achieved through extended definitions of 'sentence of imprisonment' (section 4 of ITP Act) and 'suspended sentence of imprisonment' (section 4B of ITP Act).
Existing Regulation 7 prescribes the warrant forms to be used for transfer of prisoners from Australia. As a result of the amendments to the ITP Act, sub regulation 7(a) now prescribes that the Form 5 warrant be used for prisoners who are in prison and not serving the suspended part of their sentence. New sub regulation 7(c) prescribes a new Form 6A warrant for transfers for prisoners who are serving the suspended part of their sentence.
Items 6 and 7 - sub regulation 9(a) and new sub regulation 9(c) - warrant for transfer of prisoner to Australia
Existing Regulation 9 prescribes the warrant forms to be used for transfer of prisoners to Australia. As a result of the amendments to the ITP Act, sub regulation 9(a) now prescribes that the Form 8 warrant be used for prisoners who are in prison and not serving the suspended part of their sentence. New sub regulation 9(c) prescribes a new Form 9A warrant for transfers for prisoners who are serving the suspended part of their sentence.
Item 8 - application and transitional provisions
This item adds a new Part and Division for transitional provisions. The new Part is called 'Part 3 - Application and transitional provisions'.
This item also adds a new regulation 13 to provide transitional arrangements for warrant forms. It provides that amended or new warrant forms (Forms 5, 6A, 8 and 9A) only apply to warrants issued on or after the day the amendments commenced. Accordingly, the 'old' regulations and forms for warrants continue to apply and are valid for all warrants issued before commencement.
This item also adds a new regulation 14 which provides that Part 3 will be repealed on 5 September 2017. The purpose of this regulation is to ensure that the transitional provision (regulation 13) is repealed when spent.
Part 5A of the Legislative Instruments Act 2003 provides for the automatic repeal of some legislative instruments but not those that contain transitional provisions such as regulation 13. It has become a drafting convention to include a repeal date to ensure transitional provisions do not remain on the statute book once spent.
Item 9 Schedule 1 (Forms 1 to 4)
Existing Forms 1 to 4, which are the application forms prescribed by the previous regulations for transfers from Australia, have been removed as they are no longer required to be prescribed in the regulations following the amendment to section 16 of the ITP Act. Section 16 of the ITP Act now provides that application forms for transfer from Australia only require the approval of the Attorney-General.
Application and transitional provisions in relation to these forms are contained in Part 4 of Schedule 3 to the Crimes Legislation Amendment (Psychoactive Substances and other Measures) Act 2015.
Items 10 and 11 - Form 5 Warrant for transfer from Australia - prisoner not on parole and not serving suspended sentence
Form 5 is the warrant form prescribed by Regulation 7 for transfer from Australia when the prisoner is in prison (that is, not on parole). Regulation 7 now prescribes the use of Form 5 for prisoners who are in prison and not serving the suspended part of their sentence.
Item 12 - new Form 6A Warrant for transfer from Australia - prisoner serving suspended sentence
This item creates the new Form 6A warrant prescribed by new sub regulation 7(c) for transfer from Australia of prisoners serving the suspended part of their sentence.
Items 13 and 14 - Form 8 Warrant for transfer to Australia - prisoner not on parole and not serving suspended sentence
Form 8 is the warrant form prescribed by Regulation 8 for transfers to Australia when the prisoner is in prison (that is, not on parole). Regulation 8 now prescribes the use of Form 8 for prisoners who are in prison and are not serving the suspended part of their sentence.
Item 15 - new Form 9A Warrant for transfer to Australia - prisoner serving suspended sentence
This item creates the new Form 9A warrant prescribed by new sub regulation 9(c) for transfer to Australia of prisoners serving the suspended part of their sentence.
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