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International Transfer of Prisoners Amendment Bill 2004

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2002-2003-2004

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

INTERNATIONAL TRANSFER OF PRISONERS AMENDMENT BILL 2004

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General, the Hon Philip Ruddock MP)

 

 

INTERNATIONAL TRANSFER OF PRISONERS AMENDMENT BILL 2004

 

OUTLINE

 

This Bill amends the International Transfer of Prisoners Act 1997 to facilitate the transfer back to Australia of Australian citizens detained at Guantanamo Bay who may subsequently be convicted, found guilty and sentenced to a term of imprisonment by a military commission of the United States of America.  The Bill also allows for the application of the Act to areas that have an unusual status.  The amendments made by the Bill may be summarised as follows:

 

·                 expand the meaning of ‘transfer country’ for the purposes of the Act, and

·                 clarify the meaning of the terms ‘court’ and ‘tribunal’ for the purposes of the Act. 

 

FINANCIAL IMPACT STATEMENT

 

There are no direct financial impacts from this Bill.

 





NOTES ON CLAUSES

 

Item 1 Short Title

The short title of this Act is the International Transfer of Prisoners Amendment              Act 2004 .

Item 2 Commencement

 

This item provides that the Bill will commence on Royal Assent.

 

The amendments contained in the Bill will be underpinned by a bilateral agreement between Australia and the USA on the transfer of Australian citizens detained at Guantanamo Bay and who are found guilty and sentenced by a military commission of the USA.  Such an agreement will set out administrative matters relevant to the transfer of such prisoners to Australia, such as sentence enforcement and costs.  The amendments in the Bill, whilst technically taking effect from Royal Assent, would therefore have no practical effect until such a bilateral agreement commences operation. 

Item 3             Schedules

 

This item explains that the items set out in the Schedules amend the Acts specified and that the other items in the Schedules have effect according to their terms.  This Bill amends the International Transfer of Prisoners Act.

SCHEDULE 1 - AMENDMENT OF THE INTERNATIONAL TRANSFER OF PRISONERS ACT 1997

 

Item 1

 

This item amends the definition of the term ‘transfer country’ in subsection 4(1) to insert a reference to ‘or a region’.

 

Subsection 4(1) defines the term ‘transfer country’ to mean a foreign country that is declared by the regulations under section 8 to be a transfer country.  Section 8 does not provide an indication of what a ‘foreign country’ is, leaving section 22 of the Acts Interpretation Act 1901 to define the term.  This provision defines the term as ‘any country (whether or not an independent sovereign state) outside Australia and the external Territories’.  That interpretation of the term ‘transfer country’ for the purposes of the Act is therefore limited to a ‘country’ outside Australia and its external Territories.  It does not, however, provide for circumstances where a country is in control of a region that may not form part of the landmass that constitutes the mainland of a foreign country. 

 

This amendment expands the definition of ‘transfer country’ to not only include a foreign country, but also a region of that country.  This will allow Australia to enter into transfer arrangements with a declared transfer country under section 8 of the Act for the transfer of prisoners who are detained in a region of that country that is not part of the landmass of that country, such as Hong Kong and Guantanamo Bay.   

 

Item 2

 

This item inserts a proposed new section 4A into the Act to clarify the meaning of the terms ‘court’ or ‘tribunal’ for the purposes of the Act, particularly in the context of the term ‘sentence of imprisonment’. 

 

The Act applies to the transfer of ‘prisoners’, a ‘prisoner’ being defined under subsection 4(1) of the Act as a person (however described) who is serving a sentence of imprisonment and includes a mentally impaired prisoner and a person who has been released on parole.  Subsection 4(1) of the Act defines ‘sentence of imprisonment’ as:

 

any punishment or measure involving deprivation of liberty ordered by a court or tribunal for a determinate or indeterminate period in the exercise of its criminal jurisdiction and includes any direction or order given or made by a court or tribunal with respect to the commencement of the punishment or measure.

 

It is unclear whether a military commission that sentences a person to a punishment or measure involving the deprivation of liberty is a court or tribunal for the purposes of the Act that is exercising its criminal jurisdiction.  Proposed 4A clarifies this issue.      

 

Items 3 and 4

 

The purpose of these items is to amend the Act to apply the Act to a region or area that, whilst not part of the landmass that constitutes the mainland of a declared transfer country, is under the control or jurisdiction of a transfer country.  This will enable the Act to apply to such areas connected to a declared transfer country where they have an unusual status and/or do not form part of the landmass of such a country, such as Hong Kong and Guantanamo Bay.   

 

Subsection 8(5) of the Act clarifies the meaning of ‘transfer country’ as defined in subsection 4(1) of the Act by listing the types of areas in relation to a transfer country that are taken to be part of that foreign country.

 

Item 3 amends subsection 8(5) of the Act to extend the list of areas that constitute part of a ‘transfer country’ for the purposes of the Act, further clarifying what types of areas may constitute part of a foreign ‘transfer country’ for the purposes of the Act.

 

Item 4 inserts a proposed new subsection 8(6) into the Act.  This provision will further clarify what types of regions constitute a ‘foreign country’ for the purposes of                  section 8 of the Act, enabling Australia to enter into arrangements with a foreign country that is declared under section 8 of the Act for the transfer of prisoners not only from such a foreign country, but also a range of areas that may not constitute a sovereign independent State, such as Guantanamo Bay.   

 

Item 5

 

This item provides for the retrospective application of the amendments in relation to a sentence of imprisonment (within the meaning of the International Transfer of Prisoners Act 1997 immediately after the time this Schedule commences ).