Commonwealth Numbered Regulations - Explanatory Statements

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INTERNATIONAL TRANSFER OF PRISONERS (TRANSFER OF SENTENCED PERSONS CONVENTION) AMENDMENT REGULATIONS 2003 (NO. 1) 2003 NO. 278

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 apply the Act 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 of 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 (the Convention).

The purpose of the Regulations was to make a minor technical amendment to the structure of Schedule 2 of the Principal Regulation, to add two countries to the list of transfer countries to which the Act applies, and to remove one country from the list.

Schedule 2 of the Principal Regulations previously prescribed transfer countries under two headings, by reference to whether or not they are member states to the Council of Europe. The Regulations formalised this distinction by replacing the existing headings with two Part headings. Part 1 lists transfer countries that are member states of the Council of Europe, whilst Part 2 lists transfer countries that are not.

The Regulations also amended the list of transfer countries in Schedule 2 by replacing the reference to the Federal Republic of Yugoslavia (FRY) with a reference to Serbia and Montenegro, and by adding Japan.

On 4 February 2003 FRY was officially dissolved and renamed the state of Serbia and Montenegro. Serbia and Montenegro is a party to the Convention and a member of the Council. Accordingly, Australia could enter into prisoner transfer arrangements with Serbia and Montenegro once that state was declared a transfer country by the Regulations.

FRY was previously prescribed under Schedule 2 of the Principal Regulations as a transfer country. To reflect FRY's dissolution, the Regulations removed the reference to FRY from Schedule 2 of the Principal Regulations.

On 17 February 2003 Japan acceded to the Convention as a non-member of the Council, its accession taking effect from 1 June 2003. Accordingly, Australia could enter into prisoner transfer arrangements with Japan once Japan was declared a transfer country 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 gazettal.