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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)
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.
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).