Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Justice, the Hon Michael Keenan MP)

Schedule 3 - International transfer of prisoners

GENERAL OUTLINE

Schedule 3 contains amendments to the International Transfer of Prisoners Act 1997 (ITP Act). Part 1 contains amendments that will clarify that prisoners serving suspended sentences may be transferred under the ITP scheme. These amendments will make clear to prisoners serving such sentences that they fall under consideration of the ITP scheme.

Part 2 will introduce the concept of 'close family member' into the ITP Act. This new definition will be used in two ways. Firstly, it can be used when establishing a prisoner's community ties with a particular state, territory or transfer country. Secondly, it will extend the range of people who can consent to the transfer of a prisoner where they are a child or are incapable of consenting for him or herself.

Part 3 will make a number of amendments to:

•

enable unviable applications for transfer to be closed (for example where the relevant consents have not been obtained)

•

clarify that the definition of 'joint prisoner' includes a prisoner who was convicted in more than one Australian state or territory

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insert a one year time limit on reapplications by prisoners who have had their earlier applications denied, or who withdrew their earlier application

•

simplify the process for notifying a state and/or territory and transfer country of an application for transfer, and seeking the transfer country's proposed terms and consent to the transfer

•

clarify that prisoners wishing to apply for transfer to Australia may do so either via the sentencing country or directly to Australia

•

clarify the date on which an assessment of dual criminality will be undertaken, and

•

allow for application forms to be approved by the Attorney-General (rather than prescribing application forms in the Regulations).

Part 4 contains the application and transitional provisions for the amendments introduced in this Schedule.

International Transfer of Prisoners Act 1997

PART 1 - Suspended sentences

Part 1 will seek to ensure that where prisoners have a suspended sentence they are still considered to be serving a sentence of imprisonment for the purposes of the ITP Act and may be transferred under the ITP scheme.

Item 1 - Subsection 4(1)

Item 1 will insert a new definition at subsection 4(1) of a non-Tribunal offence, which will be defined as an offence which does not come within the existing definition of a Tribunal offence. The distinction between Tribunal offences and non-Tribunal offences is because new provisions relating to suspended sentences to be inserted by this Part will only apply to offences imposed by a country's criminal framework, rather than by a Tribunal. Tribunal offence is already defined at subsection 4(1) as:

(a)

an offence in relation to which the Former Yugoslavia Tribunal has the power to prosecute persons under article 2, 3, 4 or 5 of the Statute of the Tribunal; or

(b)

an offence in relation to which the Rwanda Tribunal has the power to prosecute persons under article 2, 3 or 4 of the Statute of the Tribunal; or

(c)

an offence in relation to which the International Residual Mechanism for Criminal Tribunals has the power to prosecute persons under article 1 of the Statute of the Tribunal.

The effect of this provision will be that any offence which does not fall into the definition at subsection 4(1) of a Tribunal offence will, for the purposes of the ITP Act, be considered a non-Tribunal offence.

Item 2 - Subsection 4(1) (definition of sentence of imprisonment )

Currently subsection 4(1) defines a 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 the court or tribunal with respect to the commencement of the punishment or measure'. The legislation is ambiguous as to whether suspended sentences are captured by this definition and, as such, whether there is legislative authority to transfer a person with a suspended sentence.

Item 2 will repeal the current definition of sentence of imprisonment and replace it with wording that captures suspended sentences. The new definition will provide that sentence of imprisonment means any punishment or measure involving either a deprivation of liberty or a potential deprivation of liberty (if the punishment or measure relates to a conviction for a non-Tribunal offence) ordered by a court or tribunal. Suspended sentences are to be covered by the words 'potential deprivation of liberty'. The sentence imposed need not be for a specified period and includes any direction or order relating to the commencement of the punishment or measure, as is the case for the current definition. The note to this definition explicitly provides that the reference at paragraph 4(1)(b) will apply to suspended sentences.

This amendment will ensure that suspended sentences are captured by the definition of sentence of imprisonment, ensuring there will be legislative authority to transfer a person with a suspended sentence.

Item 3 - Subsection 4(1)

Item 2 will insert a new definition of sentence of imprisonment to ensure that it covers suspended sentences. In line with this amendment, item 3 will insert a definition of serving to have the meaning in subsection 4B(1) and a definition of suspended part of a sentence of imprisonment, which has the meaning given by subsection 4B(2). Subsections 4B(1) and 4B(2) will be inserted by item 4.

Item 4 - After section 4A

In line with amendments to be made by this Part to ensure the ITP Act applies to persons serving suspended sentences, item 4 will insert new section 4B which will provide further detail on suspended sentences of imprisonment.

Subsection 4B(1) will provide that a prisoner serving a sentence of imprisonment will include prisoners subject to a period of potential deprivation of liberty. Therefore, even where a person is subject to a suspended sentence of imprisonment and not in prison (but subject to the potential deprivation of their liberty), they will be considered for the purposes of the ITP Act to be a prisoner serving a sentence of imprisonment.

Subsection 4B(2) will provide that the suspended part of a sentence of imprisonment will be determined as the time involving a potential deprivation of liberty where the prisoner is not in prison and where the prisoner is not on parole. This includes any punishment or measure which has been suspended on conditions.

The effect of this item will be to ensure that even where prisoners are serving the suspended part of their sentence they will still be considered, for the purposes of the ITP Act, to be serving a sentence of imprisonment.

Item 5 - Paragraph 14(1)(c)

Section 14 currently provides the conditions that must be met for a transfer of a prisoner from Australia. Under paragraph 14(1)(c) there must be at least six months remaining of that prisoner's sentence of imprisonment (except in circumstances of a mentally impaired prisoner).

In line with amendments that ensure the ITP Act applies to persons serving suspended sentences, Item 5 will insert new wording after the word 'parole' in paragraph 14(1)(c). This wording will extend the current provision to include persons serving suspended sentences.

The effect of this amendment will be that in determining whether there are at least six months still to serve of a prisoner's sentence for the purposes of paragraph 14(1)(c), regard is to be had to any suspended components of the sentence. For example, if a person has three months remaining of his or her sentence to serve in prison and then a further two years of a suspended sentence after that, then he or she will be considered for the purposes of the ITP Act to have at least six months of his or her sentence remaining to be served.

Item 6 - Paragraph 15(1)(c)

Section 15 currently provides the transfer conditions that must be met for a transfer of a prisoner to Australia. Under paragraph 15(1)(c) there must be at least six months remaining of that prisoner's sentence of imprisonment (other than a mentally impaired or Tribunal prisoner).

In line with amendments that ensure the ITP Act applies to persons serving suspended sentences, Item 6 will insert new wording after the word 'parole' in paragraph 15(1)(c). This wording will extend the current provision to include persons serving suspended sentences.

The effect of this amendment is that in determining whether there are at least six months still to serve of a prisoner's sentence for the purposes of paragraph 15(1)(c), regard will be had to any suspended components of the sentence. For example, if a person has three months remaining of his or her sentence to serve in prison and then a further two years of a suspended sentence after that, then he or she will be considered for the purposes of the ITP Act to have at least six months of his or her sentence remaining to be served.

Item 7 - Paragraph 15(4)(b)

Section 15 currently provides transfer conditions for a transfer of a prisoner to Australia. Under paragraph 15(4)(b) there must be at least six months remaining of a Tribunal prisoner's sentence of imprisonment.

In line with amendments that ensure the ITP Act applies to persons serving suspended sentences, Item 7 will insert new wording after the word 'parole' in paragraph 15(4)(b). This wording will extend the current provision to include persons serving suspended sentences.

The effect of this amendment is that in determining whether there are at least six months still to serve of a Tribunal prisoner's sentence for the purposes of paragraph 15(4)(b), regard will be had to any suspended components of the sentence. For example, if a person has three months remaining of his or her sentence to serve in prison and then a further two years of a suspended sentence after that, then he or she will be considered for the purposes of the ITP Act to have at least six months of his or her sentence remaining to be served.

Item 8 - Subsection 22(3)

Subsection 22(3) currently provides the form that warrants for transfer from Australia should take where the prisoner has not been released on parole.

In line with amendments that ensure the ITP Act applies to persons serving suspended sentences, item 8 will insert new wording after the word 'parole' in subsection 22(3) to make clear that the requirements in subsection 22(3) for a warrant for transfer from Australia will not apply in respect of prisoners who are serving the suspended part of their sentence.

The form which warrants are to take when they relate to prisoners serving a suspended sentence will be set out in new subsection 22(4A) to be inserted by item 9.

Item 9 - After subsection 22(4)

Section 22 currently provides the form that warrants for transfer from Australia should take. In line with amendments that ensure the ITP Act will apply to persons serving suspended sentences,item 9 will insert new subsection 22(4A). Subsection 22(4A) will ensure that where a prisoner is serving the suspended part of their sentence of imprisonment at the time of transfer, the warrant is to specify:

•

any conditions relating to the suspended sentence

•

procedures for the transfer of the prisoner that have been agreed upon with the transfer country, and

•

any necessary authorisations and directions required by the transfer country.

This will ensure that relevant conditions for their transfer can be stipulated on the warrant.

Item 10 - After paragraph 27(5)(b)

Subsection 27(5) provides that where the Minister of the state or territory in which a prisoner transferring to Australia is to serve their sentence of imprisonment consents to the transfer, the Minister is to advise the Attorney-General of certain information.

In line with amendments that ensure the ITP Act applies to persons serving suspended sentences, Item 10 will insert new paragraph 27(5)(ba) which will require the relevant Minister to inform the Attorney-General of any recommended terms or conditions on which the prisoner is to complete serving the suspended part of the sentence.

This amendment will enable the relevant Minister to advise the Attorney-General of any terms or conditions they consider necessary to the prisoner completing their sentence in that state or territory.

Item 11 - Subsection 30(3)

Subsection 30(3) currently sets out the requirements of a warrant for the transfer of a prisoner to Australia. This provision is currently confined to prisoners who have not been released on parole. In line with amendments related to suspended sentences, item 11 will clarify that subsection 30(3) will also not apply to prisoners serving the suspended part of their sentence.

The requirements for warrants relating to prisoners serving the suspended part of their sentence will be set out in new subsection 30(4) as inserted by item 12.

Item 12 - Subsection 30(4)

Subsection 30(4) currently sets out the requirements of a warrant for the transfer of a prisoner to Australia who has been released on parole. This includes any procedures for transfer that have been agreed with the transfer country and any necessary authorisations and directions.

In line with amendments that ensure the ITP Act applies to persons serving suspended sentences, item 12 will extend the subsection to cover prisoners serving the suspended part of the sentence of imprisonment. The amended provision will require the warrant to specify any procedures for the transfer of the prisoner to Australia that have been agreed upon with the transfer country and to give any necessary authorisations and directions. This will ensure the warrant can specify any necessary conditions to give effect to the transfer in relation to transfer of prisoners serving a suspended sentence.

Item 13 - Subsection 46(3)

Section 46 currently stipulates that a prisoner who is transferred to Australia is taken, for the purposes of the ITP Act, to be a federal prisoner. The section provides a series of circumstances in which the prisoner will be treated, or will gain an entitlement, as if he or she were a federal prisoner including in relation to detention, hospitalisation and remission or reduction of the sentence of imprisonment.

In particular, subsection 46(3) provides that a prisoner or Tribunal prisoner who is transferred to Australia under the ITP Act may, while serving a sentence of imprisonment imposed by a transfer country or Tribunal that is enforced under the ITP Act, be detained in a prison or hospital or other place in a state or territory. In line with amendments that ensure the ITP Act applies to persons serving suspended sentence, item 13 will repeal the current subsection and insert new subsections 46(3), (3A) and (3B).

Amended subsection 46(3) will provide that a prisoner who is transferred to Australia under the ITP Act while serving a sentence of imprisonment (other than the suspended part of the sentence) that is imposed by a transfer country and enforced under the ITP Act, may be detained in a prison or hospital or other place in a state or territory.

Amended subsection 46(3A) will provide that a prisoner who is transferred to Australia under the ITP Act while serving the suspended part of a sentence of imprisonment that is imposed by a transfer country and enforced under the ITP Act may have their stay in a place in a state or territory supervised in accordance with terms agreed under the ITP Act.

Amended subsection 46(3B) will provide that a Tribunal prisoner who is transferred to Australia under the ITP Act while serving a sentence of imprisonment that is imposed by a Tribunal and enforced under the ITP Act may be detained in a prison or hospital or other place in a state or territory.

The effect of subsections 46(3), 46(3A) and 46(3B) is to clearly set out how certain prisoners or Tribunal prisoners are able to be detained or otherwise dealt with, depending on the circumstances of their transfer.

Item 14 - After paragraph 46(5)(b)

Subsection 46(5) currently sets out the Australian law, practice and procedure applicable to a prisoner or Tribunal prisoner who is transferred to Australia under the ITP Act. In line with amendments that ensure the ITP Act applies to persons serving a suspended sentence, item 14 will insert a new paragraph after paragraph 46(5)(b) to clarify that a prisoner or Tribunal prisoner who is transferred to Australia under the ITP Act will be subject to the Australian law, practice and procedure relating to serving the suspended part of a sentence of imprisonment.

The effect of this provision will be that prisoners serving a suspended sentence will be subject to the same domestic laws, practices and procedures as are applicable to federal offenders serving a suspended sentence.

PART 2 - Close family members

Under the ITP Act, a prisoner's relationship with certain relatives serves two purposes. Firstly, it can establish that prisoner's community ties with a particular state, territory or transfer country. Secondly, the ITP Act currently permits the prisoner's representative (that is, the prisoner's parent, guardian or legal representative) to consent to the transfer of that prisoner where the prisoner is a child or is incapable of consenting to the transfer.

Part 2 introduces the term 'close family member'. This will be used to broaden the definition of 'prisoner's representative', which currently does not take into account certain family members who a prisoner may prefer to have represent them, such as, in the absence of a parent, a grandparent. This new term will also be used in establishing community ties with a particular state, territory or transfer country.

Item 15 - Subsection 4(1)

Subsection 4(1) contains a range of definitions relevant for the ITP Act. item 15 will insert a range of new definitions associated with close family members. In line with amendments to extend the definition of a prisoner's representative to include that prisoner's close family members, item 15 will insert a new definition of child as defined by the Family Law Act 1975. This new definition is relationship-based rather than age-based and will align the definition of child in the ITP Act with the definition across other Commonwealth legislation.

While item 20 will repeal the current age-based definition of child and item 15 will only introduce a relationship based definition of child, the age-based understanding of child will remain in the ITP Act. This is due to the definition of adult at subsection 6(7) of the ITP Act. This will define adult as persons above the age of 18 years of age or, in the case of a transfer or Tribunal country, a person of or above the age at which a person is considered for legal purposes to be an adult. Therefore, a child for the purposes of the ITP Act will be determined by reference to both their relationship with a parent, and by the fact that they are not an adult.

Item 15 will also insert into subsection 4(1) a reference to close family member as defined at section 4AA, which is inserted by item 18. This new term will be used to establish whether a prisoner has community ties with a particular state, territory or foreign country and expand on who can consent to a prisoner's transfer on their behalf.

Item 15 will also insert a definition of de facto partner which will have the meaning given by the Acts Interpretation Act 1901. The Acts Interpretation Act defines a de facto relationship as one in which two people are not legally married to each other, are not related by family and have a relationship as a couple living together on a genuine domestic basis. As de facto partners will come within the definition of a close family member in new section 4AA to be inserted by item 18, the definition of 'prisoner's representative' will be expanded to encompass a broader range of familial relationships. This definition will ensure that the ITP Act aligns with the definition of de facto partner across other Commonwealth legislation.

Item 15 will insert a definition of parent as a person who, by virtue of the definition of child at subsection 4(1), is the parent of that person. Subsection 4(1) defines child as a person coming within the definition of a child of a person for the purposes of the Family Law Act.

Items 16 and 17

A prisoner's community ties with a particular state, territory or transfer country is one of the eligibility requirements that must be met for transfer under paragraph 13(1)(b) and subsection 12(b). In line with the new definition at item 15 of 'close family member' which will broaden the recognition of relationships considered under the ITP Act, items 16 and 17 will repeal existing paragraphs 4(4)(b), 4(4)(c), 4(5)(b) and 4(5)(c). Items 16 and 17 will replace these provisions so that community ties are established where the principal place of residence of a close family member of the prisoner is in a particular state, territory or transfer country.

Paragraphs 4(4)(b) and (c)

Paragraph 4(4)(b) currently refers to a prisoner's community ties with a transfer country as including where the prisoner has a parent, grandparent or child residing in the transfer country. Paragraph 4(4)(c) currently refers to a prisoner's community ties with a transfer country as including where the prisoner is married or has a de facto relationship with a person whose principal place of residence is in the transfer country.

In line with the new definition of 'close family member' to be inserted by items 15 and 18, item 16 will repeal existing paragraphs 4(4)(b) and 4(4)(c) and will enable community ties to be established if the principal place of residence of a close family member of the prisoner is in the transfer country. The effect of this amendment will be that a prisoner will be able to establish community ties with a particular transfer country where a close family member (that is, a spouse, de facto partner, parent, step-parent, grandparent, child, stepchild, grandchild, brother, sister, stepbrother, stepsister, guardian or carer) has a principal place of residence in that transfer country.

Paragraph 4(5)(b) and (c)

Paragraph 4(5)(b) currently refers to a prisoner's community ties with a state or territory as including where the prisoner has a parent, grandparent or child residing in the state or territory. Paragraph 4(5)(c) currently refers to a prisoner's community ties with a state or territory as including where the prisoner is married or has a de facto relationship with a person whose principal place of residence is in a state or territory.

In line with the new definition at item 15 of close family member to be inserted by items 15 and 14, item 17 will repeal existing paragraphs 4(5)(b) and 4(5)(c) and will enable community ties to be established if the principal place of residence of a close family member of the prisoner is in that state or territory. The effect of this amendment will be that a prisoner will be able to establish community ties with a particular state or territory where a close family member (that is, a spouse, de facto partner, parent, step-parent, grandparent, child, stepchild, grandchild, brother, sister, stepbrother, stepsister, guardian or carer) has a principal place of residence in that state or territory.

Item 18 - After section 4

The ITP Act currently permits a person to consent to the transfer of a prisoner who is a child or who is incapable of consenting to the transfer if they are the prisoner's parent, guardian or legal representative. This person is described in the ITP Act as the 'prisoner's representative'. This definition does not take into account other family members who a prisoner may prefer to have represent them, such as, in the absence of a parent, a grandparent. The ITP Act further currently provides that the location of certain limited family members of a prisoner is relevant to establishing whether or not that prisoner has community ties with a particular state, territory or transfer country.

Item 18 will insert a definition of close family member at section 4AA to include:

•

the person's spouse or de facto partner

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the parent, step-parent or grandparent of the person

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a child, stepchild or grandchild of the person

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a brother, sister, stepbrother or stepsister of the person, or

•

a guardian or carer of the person.

Definitions of de facto partner, parent and child will be inserted in subsection 4(1) by item 15.

The effect of item 18 will be to:

(a)

broaden the relationships that can be used to establish community ties (as referred to by the amendments to be made by items 16 and17) to also include, where relevant, the prisoner's:

•

grandchild

•

stepparent, stepchild, stepbrother or stepsister

•

brother or sister, or

•

guardian or carer, and

(b)

broaden the people who can consent on behalf of a prisoner to a transfer (as referred to by the amendments to be made by item 19) to also include, where relevant, the prisoner's:

•

spouse or de facto partner

•

step-parent or grandparent

•

child, stepchild or grandchild

•

brother, sister, stepbrother or stepsister, or

•

carer.

New paragraph 4AA(2)(a) will clarify that to establish whether a person comes within the relationships referred to at subsection 4AA(1), those relationships are to be traced through that child's parent (as determined using the new definition of child). For example, to determine whether Kathleen is Tom's grandparent, where Tom is the child of Angela, then this is to be done by tracing Tom's relationship to Kathleen by reference to Tom's relationship with Angela.

New paragraph 4AA(2)(b) will provide that someone is the stepchild, stepbrother, stepsister or step-parent of another person even where two persons are each other's de facto partner and not legally married. For example, where Angela is the parent of Tom, and is not married to Pete but is in a de facto relationship with him, Tom is considered, for the purposes of the Act, to be Pete's stepchild. Paragraph 4AA(2)(b) does not limit subsection 4AA(1) given, if two people are already married, then the references to stepchild, stepbrother, stepsister or step-parent have their ordinary meaning as defined in the Macquarie dictionary.

Item 19 - Subsection 6(2)

The current definition of prisoner's representative at subsection 6(2) is restricted to the prisoner's parent, guardian or legal representative. This definition does not take into account certain family members who a prisoner may prefer to have represent them, such as, in the absence of a parent, a grandparent.

Item 19 will insert a new definition of prisoner's representative and will provide that that person may consent to a prisoner's transfer where the prisoner is not an adult or is incapable of consenting to the transfer. New subsection 6(2) will extend the definition of prisoner's representative to include a person who is the prisoner's close family member (the definition of which will be inserted by item 18) or legal representative. This amendment will expand the definition of prisoner's representative to encompass the broad range of familial relationships, ensuring that if a prisoner is incapable of consenting to their own transfer, a broad range of persons will be able to do so on their behalf.

Item 20 - Subsection 6(7) (definition of child )

Subsection 6(7) currently defines a child by reference to their age (that is, a person below 18 years of age or, in the case of a transfer or Tribunal country, below the age at which a person is considered for legal purposes to be an adult). Item 20 will repeal the definition of child in addition to the amendments to be introduced by item 15 which will insert a new definition of child linked to that person's familial relationships pursuant to the Family Law Act 1975. While item 20 will repeal the current definition of child and item 15 will align the new definition with the Family Law Act, the age-based understanding of child will remain in the Act. This is due to the fact that the definition of adult remains at subsection 6(7) of the ITP Act and this definition only applies to persons above the age of 18 years of age or, in the case of a transfer or Tribunal country, a person of or above the age at which a person is considered for legal purposes to be an adult. Therefore, a child will take its ordinary meaning and be anyone who is not an adult.

Part 3 - Other amendments

Item 21 - Subsection 4(1) (definition of joint prisoner )

Subsection 4(1) currently defines 'joint prisoner' as:

•

a prisoner who is both a state prisoner or territory prisoner (or both) and a federal prisoner, or

•

both a state prisoner and a territory prisoner.

This definition does not make provision for a prisoner who has been convicted in more than one state or more than one territory.

Item 21 will repeal and substitute the definition of joint prisoner in section 4(1). The new definition will provide that a joint prisoner is a prisoner who is serving sentences of imprisonment imposed under the laws of two or more of the states and territories or at least one of the states and territories as well as under federal law.

The amendment is designed to make clear that the definition applies to all possible combinations of imprisonment being a person who is a prisoner of:

•

two or more states

•

two or more territories

•

at least one state and at least one territory, or

•

the Commonwealth and one or more states and/or one or more territories.

Item 22 - After section 10

Item 22 will introduce new section 10A. Subsection 10A(1) will ensure that the Attorney-General need not take steps to make a decision where a transfer cannot proceed due to an application not meeting at least one of the requirements under the ITP Act (i.e. an unviable application). Subsection 10A(2) will provide the Attorney-General with the discretion not to take steps to make a decision on a transfer application where that application has been received within twelve months of a previous application that did not meet one or more of the requirements of section 10 or was withdrawn.

Subsection 10A(1) - Unviable applications

Current section 10 of the ITP Act outlines requirements that must be met for a prisoner to be transferred between Australia and a transfer country. There are a number of situations where a prisoner may not meet a requirement under section 10, for example, where a relevant party does not consent, the prisoner is subject to an extradition request or the prisoner is not an Australian citizen. Currently, where a prisoner does not meet all of the requirements in section 10 it is unclear whether the Attorney-General would still need to make a decision on the transfer request.

Item 22 will insert new subsection 10A(1) to provide that, if any of the requirements in new paragraphs 10A(1)(c), (d) or (e) are not met, the Attorney-General need not take any steps for making a decision to consent, or refuse to consent, to the transfer of a prisoner.

The requirements in paragraph 10A(1)(c) will be:

•

the prisoner is eligible for transfer from or to Australia as the case requires (as required by subsection 10(a) of the ITP Act)

•

the prisoner or the prisoner's representative has consented in writing to transfer on those terms (as required by subsection 10(c) of the ITP Act)

•

the relevant conditions for transfer of the prisoner are satisfied (as required by subsection 10(e) of the ITP Act and set out in sections 14 and 15)

•

the transfer of the prisoner is not likely to prevent the surrender of the prisoner to any extradition country known by the Attorney-General to have requested the extradition of the prisoner or to have expressed interest in extraditing the prisoner or that, in the opinion of the Attorney-General, is reasonably likely to request extradition (as required by subsection 10(f) of the ITP Act)

The Attorney-General will also need not make a decision where the transfer country has not consented to the transfer of the prisoner under the ITP Act (as required under paragraph 10(b)). For example, if a prisoner wishes to transfer and the transfer country has not agreed to the terms of the prisoner transfer, the Attorney-General will not be required to make a decision.

Similarly, the Attorney-General will need not make a decision where the consent of the relevant state or territory Ministers to the transfer has not been given in writing (as required under section 10(d)). That is, if a prisoner wishes to transfer to an Australian state or territory and the consent of the relevant state or territory Minister has not been given, the Attorney-General will not be required to make a decision. Also, if a state or territory prisoner is transferring out of Australia, then there will be no need to make a decision if the relevant state or territory Ministers have not given consent.

The effect of this amendment will be that, in circumstances where all the requirements for transfer cannot be met, the transfer cannot proceed and a case will be closed. The prisoner will be informed of the outcome of his or her matter under section 52.

Subsection 10A(2) - Reapplications

Currently, the ITP Act does not restrict when a prisoner may reapply for transfer when their application has been refused or withdrawn. Subsequently, a number of prisoners have reapplied for transfer after their earlier application has been refused by the Attorney-General, the relevant state or territory minister, or the transfer country. Prisoners have also reapplied within months of them withdrawing an earlier application. This scenario is particularly problematic where, as is often the case, reapplications are received within months of prisoners being informed that their earlier application has been refused when there is no new information or change in circumstances to support a request for transfer. The processing of these reapplications is not resource or time efficient, especially when the outcome is not going to change due to the lack of new information or a change of circumstances.

New paragraph 10A(2) will provide that the Attorney-General need not take any steps for making a decision in relation to a transfer to or from Australia where an application is received by the Attorney-General less than one year after the later of either:

•

the prisoner being informed that their earlier application did not meet the requirements in section 10, or

•

the day the prisoner informed the Attorney-General that the earlier application was being withdrawn.

This new provision is intended to reduce the number of reapplications being processed where there is no likelihood that the original outcome will change. This provision is not intended to unreasonably restrict reapplications within the time limit where new circumstances or information manifests. For example, the provision will give the Attorney-General the flexibility to consider reapplications from a prisoner who has demonstrated new information or a change in circumstances that is relevant to their request to transfer.

New paragraph 10A(3) will provide that Part 3 of the Act, which relates to transfers from Australia, and Part 4 of the Act, which relates to transfers to Australia of prisoners from transfer countries, have effect subject to section 10A. The effect of this amendment is that any request for transfer to or from Australia for a non-Tribunal prisoner will be subject to section 10A and its provisions regarding when the Attorney-General is not required to take any steps for making a decision under sections 16 or 24.

Item 23 - Paragraph 14(1)(b)

Currently under paragraph 14(1)(b) the Attorney-General has a discretion to refuse a request for transfer of a prisoner (other than a mentally impaired prisoner) from Australia where the acts or omissions constituting the offence on account of which the prisoner is serving the sentence in Australia would not have constituted an offence in the transfer country, had the conduct occurred in the transfer country (that is, where there is no dual criminality).

At present the way that the provision is constructed could give rise to ambiguity as to when dual criminality is assessed. Item 23 will clarify that dual criminality is to be considered at the time the prisoner's application for transfer is received by the Attorney-General.

Item 24 - Paragraph 14(1)(c)

Paragraph 14(1)(c) currently sets out the transfer conditions for a transfer from Australia of a prisoner (other than a mentally impaired prisoner) where the sentence of that prisoner's imprisonment is for a determinate period of time. This provision currently refers to an application under section 16 as a 'request for transfer'. This does not align with the wording of section 16. Item 24 is a minor and technical amendment which will replace the words 'request for transfer' with 'application' to be consistent with section 16.

Item 25 - Paragraph 14(2)(b)

Currently under paragraph 14(2)(b) the Attorney-General has a discretion to refuse a request for transfer of a mentally impaired prisoner where the acts or omissions constituting the offence for which the prisoner is serving the sentence in Australia (or of which the prisoner was acquitted on the ground of mental impairment or unfitness for trial) would not have constituted an offence in the transfer country, had the conduct occurred in the transfer country (that is, where there is no dual criminality).

At present the way that the provision is constructed could give rise to ambiguity as to when dual criminality is assessed. Item 25 will clarify that dual criminality is to be considered at the time the prisoner's application for transfer is received by the Attorney-General.

Item 26 - Paragraph 14(2)(c)

Paragraph 14(2)(c) currently sets out the transfer conditions for a transfer from Australia of a mentally impaired prisoner where the sentence of that prisoner's imprisonment is for a determinate period of time. This provision refers to an application under section 16 as a 'request for transfer'. This does not align with the wording of section 16. Item 26 is a minor and technical amendment which will replace the words 'request for transfer' with 'application' to be consistent with section 16.

Item 27 - Paragraph 15(1)(b)

Currently under paragraph 15(1)(b) the Attorney-General has a discretion to refuse a request for transfer of a prisoner (other than a mentally impaired or Tribunal prisoner) to Australia where the acts or omissions constituting the offence on account of which the prisoner is serving the sentence in the transfer country would not have constituted an offence in Australia, had the conduct occurred in Australia (that is, where there is no dual criminality).

At present the way that the provision is constructed could give rise to ambiguity as to when dual criminality is assessed. Item 27 will clarify that dual criminality is to be considered at the time the prisoner's application for transfer is received by the Attorney-General.

Item 28 - Paragraph 15(1)(c)

Paragraph 15(1)(c) currently sets out the transfer conditions for a transfer to Australia of a prisoner (other than a mentally impaired or Tribunal prisoner) where the prisoner's sentence of imprisonment is for a determinate period of time. This provision currently refers to a request under section 24 as a 'request for transfer'. This does not align with the wording of section 24. Item 28 is a minor and technical amendment to remove the words 'for transfer' from this provision which will align the wording of paragraph 15(1)(c) with that at section 24.

Item 29 - Paragraph 15(2)(b)

Currently under paragraph 15(2)(b) the Attorney-General has a discretion to refuse a request for transfer of a mentally impaired prisoner to Australia where the acts or omissions constituting the offence for which the prisoner is serving the sentence in Australia (or of which the prisoner was acquitted on grounds of mental impairment or unfitness for trial) would not have constituted an offence in Australia, had the conduct occurred in Australia (that is, where there is no dual criminality).

At present the way that the provision is constructed could give rise to ambiguity as to when dual criminality is assessed. Item 29 will clarify that dual criminality is to be considered at the time the prisoner's application for transfer is received by the Attorney-General.

Item 30 - Paragraph 15(2)(c)

Paragraph 15(2)(c) currently sets out the transfer conditions for a transfer to Australia of a mentally impaired prisoner where the prisoner's sentence of imprisonment is for a determinate period of time. This provision currently refers to an application under section 24 as a 'request for transfer'. This does not align with the wording of section 24. Item 30 is a minor and technical amendment to remove the word 'for transfer' from this provision which will align the wording of paragraph 15(2)(c) with that at section 24.

Item 31 - Section 16

Section 16 currently provides that either a prisoner serving a sentence of imprisonment in Australia, or the prisoner's representative, may apply to the Attorney-General, in the manner prescribed by the regulations, for transfer to a transfer country. At present the International Transfer of Prisoners Regulations 2002 prescribes the forms which must be used when making these applications.

Item 31 will provide that forms for the purposes of section 16 will no longer be prescribed in regulations but instead will be approved by the Attorney-General. This amendment will ensure that any changes to the forms can be actioned quickly and easily without having to amend the regulations. This amendment will not compromise accessibility of the forms and will still maintain appropriate scrutiny and oversight of the forms through the Attorney-General. The forms will continue to be made available on the Attorney-General's Department's public website and information guiding the use of these forms will be maintained by the Attorney-General's Department.

Item 32 - At the end of section 16

Section 16 currently provides that a prisoner serving a sentence in Australia, or the prisoner's representative may, in a manner prescribed by the regulations, apply to the Attorney-General for transfer to a transfer country. Current section 10 of the ITP Act outlines requirements that must be met for a prisoner to be transferred between Australia and a transfer country. There are a number of situations where the requirements in section 10 may not be met.

Further, the ITP Act does not place a restriction on when a prisoner may reapply for transfer when their application has been refused or withdrawn. Subsequently, a number of prisoners have reapplied for transfer after their earlier application has been refused by the Attorney-General, the relevant state or territory minister, or the transfer country. Prisoners have also reapplied within months of withdrawing their earlier application. This is particularly problematic where, as is often the case, reapplications are received within months of prisoners being informed that their earlier application has been refused, and there is no new information or change in circumstances to support a request for transfer. The processing of these reapplications is not resource or time efficient, especially when the outcome is not going to change due to the lack of new information.

Item 32 will insert a note at section 16 to provide that (as set out in new section 10A to be inserted by item 22), the Attorney-General need not take any steps to decide whether to consent, or refuse to consent, to the transfer of a prisoner if certain requirements are not met or if reapplications are received by the Attorney-General less than one year after an earlier application for the prisoner was not proceeded with.

Item 33 - Sections 17, 18 and 19

The ITP Act currently prescribes two separate steps for notifying a transfer country of an application for transfer, and seeking the transfer country's consent to the transfer and its proposed terms of sentence enforcement. Specifically, section 17 enables the Attorney-General to seek a foreign country's provisional views on an application for transfer. Section 18 then enables the Attorney-General to make a formal request for transfer, while section 19 provides for the information to accompany a formal request. Section 17 also contains a process for notifying and seeking the views of the relevant state or territory.

The legislative two-step process for seeking the transfer country's consent is inefficient and time-consuming. Item 33 will repeal these provisions and will replace them with new sections 17 and 18 containing a simpler process to combine the steps required for dealing with the foreign country.

New section 17 will mirror the existing requirements in relation to dealing with the relevant state or territory. Specifically, subsection 17(1) will provide that the Attorney-General must give state or territory Ministers whose consent is required to the proposed transfer a copy of the prisoner's application and any other information the Attorney-General considers relevant. For example, if a prisoner is serving a sentence of imprisonment in New South Wales, the Attorney-General would forward a copy of the application and any other information to the New South Wales Minister.

Subsection 17(2) will provide that the state or territory Ministers may advise the Attorney-General of any matters they consider relevant to the processing of the application. Further, state or territory Ministers may request the Attorney-General to obtain information from the transfer country that is relevant to that Minister's assessment of the application. The effect of this amendment is to ensure that the State or Territory Minister can both seek and provide information relevant to the proposed transfer.

New section 18 will set out the process for seeking a transfer country's consent to transfer. Subsection 18(1) will require the Attorney-General to ask the transfer country whether or not it consents to the transfer and to propose the terms on which that transfer is to be made. This amounts to notification of the transfer country for the purposes of the Council of Europe Convention on the Transfer of Sentenced Persons and any bilateral agreements.

Subsection 18(2) provides that any request from the Attorney-General to the transfer country is to include a copy of the section 16 application, any agreed information required by the transfer country and any further information the Attorney-General deems relevant such as information provided by a state or territory Minister.

Item 34 - Subsection 20(3)

Section 20 sets out the process for seeking the consent of the prisoner, relevant state and territory Ministers and the Attorney-General to a proposed transfer. In particular, under subsection 20(3), the Attorney-General is to determine whether or not to consent to the transfer on the terms proposed by the transfer country. Section 20 also provides that the Attorney-General must indicate to the transfer country if he or she will give consent to the transfer if the transfer country agrees to a variation of their proposed terms. It is unclear on the current wording of the ITP Act if it is a mandatory requirement that the Attorney-General 'is to notify the transfer country ... if consent will be given if the transfer country agrees to variation of the terms' regardless of whether that variation would be acceptable to the other country. This is in contrast to the original purpose of the ITP Act where it was intended that the Attorney-General would have the discretion to advise whether he or she might consent if the transfer country agreed to a variation of terms.

Item 34 will repeal subsection 20(3) and replace it with three subsections (subsections 20(3), (4) and (5)) to clarify the steps in relation to the Attorney-General's consent.

New subsection 20(3) will provide that the Attorney-General must decide whether to consent to the transfer of the prisoner from Australia on the terms proposed by the transfer country. Under subsection 20(4) the Attorney-General will also be required to notify the transfer country of his or her decision.

Under subsection 20(5), where the Attorney-General decides not to transfer on the terms proposed by the transfer country, the Attorney-General will have a discretion to include in the notice to the other country that his or her consent may be forthcoming if the transfer country is willing to accept a variation to the terms proposed. The consent referred to in subsection 20(5) will be specifically not guaranteed, since any transfer on varied terms requires the consent of the relevant state or territory, the Attorney-General, the prisoner and the foreign country.

This amendment will make clear that the Attorney-General's decision to seek variation of terms is purely discretionary. As such, the Attorney-General will not be required to seek a variation to proposed terms where it is clear that the transfer country will not agree to the revised terms. This is in line with the original intent of the provision, as outlined in the Explanatory Memorandum to the International Transfer of Prisoners Bill 1996:

59. Subclause [20](3) provides that the Attorney-General is to determine whether or not consent should be given to the transfer on the terms proposed and is to notify the transfer country accordingly. The subclause also recognises that the Attorney-General may inform the transfer country that consent will be given if that country agrees to a variation of the terms. [emphasis added]

Items 35-38

The amendments at items 35-38 will amend section 24 to ensure prisoners can make a transfer application directly to Australia.

Section 24 currently provides that the Attorney-General may consent to a request from a transfer country for the transfer of a prisoner (other than a Tribunal prisoner) to Australia if the Attorney-General is satisfied that the transfer can be made in compliance with section 10. The wording of this provision restricts transfer applications to only coming from the transfer country.

Item 35

Item 35 will insert new numbering to section 24 by adding the number '(1)' before the word 'The', as a consequence of item 38 which will add a new subsection to section 24.

Item 36

Section 24 currently provides that the Attorney-General may consent to a request from a transfer country for the transfer of a prisoner to Australia. This wording restricts transfer applications to only coming from the transfer country. Item 36 will remove the words 'from a transfer country' as a consequence of the amendments to be made by item 38 enabling requests for transfer of a prisoner to also come from the prisoner themselves or the prisoner's representative as well as the transfer country.

Item 37

In line with the amendment to ensure that prisoners wishing to apply for transfer to Australia may do so through the sentencing country or directly to Australia (captured by the removal of the words 'a transfer country' from section 24), item 37 will replace the words 'that country' with the words 'a transfer country', given the transfer country is no longer referred to previously in the provision.

Item 38

Item 38 will insert a new subsection at the end of section 24, setting out that a request may be made by the transfer country, the prisoner or the prisoner's representative. The effect of the amended provision is that requests for transfer of a prisoner to Australia will not be restricted to only coming from a transfer country, but can also come from the prisoner themselves or the prisoner's representative. This brings the ITP Scheme in line with the Council of Europe Convention on the Transfer of Sentenced Persons, which Australia has ratified.

Item 38 will also insert a note at the end of section 24. Current section 10 of the ITP Act outlines requirements that must be met for a prisoner to be transferred between Australia and a transfer country. There are a number of situations where the requirements in section 10 may not be met.

Further, the ITP Act does not place a restriction on when a prisoner may reapply for transfer when their application has been refused or withdrawn. Subsequently, a number of prisoners have reapplied for transfer after their earlier application has been refused by the Attorney-General, the relevant state or territory minister, or the transfer country. Prisoners have also reapplied in circumstances where they have withdrawn their earlier application. This scenario is particularly problematic where, as is often the case, reapplications are received within months of prisoners being informed that their earlier application has been refused, and when there is no new information or change in circumstances to support a request for transfer. The processing of these reapplications is not resource or time efficient, especially when the outcome is not going to change due to the lack of new information.

Item 38 will insert a note at section 24 to provide that (as set out in new section 10A, inserted by item 22), the Attorney-General need not take any steps to decide whether to consent, or refuse to consent, to the transfer of a prisoner if certain requirements are not met or if reapplications are received by the Attorney-General less than one year after an earlier application for the prisoner was not proceeded with.

Item 39 - Section 28

Section 28 currently provides that, in seeking a transfer country's consent to transfer, the Attorney-General is to notify the transfer country when all appropriate Ministerial consents have been given. The words 'appropriate Ministerial consent' are defined at section 5 to include the consent of the Attorney-General. As the Attorney-General is not able to provide his consent until the transfer country provides its consent, the current wording of this provision could give rise to ambiguity. New section 28 clarifies that the Attorney-General's consent is not required prior to seeking the consent of the transfer country to the transfer.

New subsection 28(1) will provide that as soon as possible after the criteria at subsection 28(2) are satisfied for a transfer, the Attorney-General must notify the transfer country that those criteria are satisfied and ask the transfer country:

•

whether it consents to the transfer of the prisoner on the terms proposed by the Attorney-General, and

•

to advise whether the prisoner, or the prisoner's representative, consents to transfer on those terms.

New subsection 28(2) will set out the criteria which must be satisfied before the Attorney-General is to notify the transfer country and seek their consent to the transfer. These criteria are:

•

the prisoner is eligible for transfer to Australia (as required by subsection 10(a) of the ITP Act)

•

the relevant conditions for transfer of the prisoner are satisfied (as required by subsection 10(e) of the ITP Act)

•

the transfer is not likely to prevent the surrender of the prisoner to any extradition country known by the Attorney-General to have requested the extradition of the prisoner or to have expressed interest in extraditing the prisoner or that, in the opinion of the Attorney-General, is reasonably likely to request extradition (as required by subsection 10(f) of the ITP Act), and

•

applicable state and territory Ministers have given consent in writing to transfer as required by subsection 10(d) of the ITP Act.

By clarifying that only the relevant state and/or territory consents are required, this provision will make clear that the Attorney-General's consent is not required prior to seeking the transfer country's consent to transfer.

Item 40 - section 52

Section 52 currently requires the Attorney-General to arrange for any prisoner or prisoner's representative, who makes a request for transfer, to be kept informed of the progress of the request. The way that the provision is constructed could give rise to ambiguity as to whether this obligation equally applies to situations where an application is made by a transfer country on behalf of a prisoner.

Item 40 will repeal section 52 and substitute it with a provision that will clearly require the Attorney-General to arrange to keep the prisoner or prisoner's representative informed, regardless of whether they or the transfer country made the request for transfer.

This amendment will ensure that regardless of whether the application is made directly to Australia or through the transfer country, the Attorney-General will be obliged to arrange for the prisoner or prisoner's representative to be kept informed of the progress of the request.

Item 41 - At the end of section 53

Section 53 currently allows the Attorney-General to delegate all or any of his or her powers under the ITP Act or the Regulations to the Secretary of the Department or an SES employee (or acting SES employee) in the Department.

Item 41 will provide that the Attorney-General can additionally delegate his or her powers to a person performing the duties of an Executive Level 2 or equivalent. As a number of the Attorney-General's powers in the ITP Act are administrative and non-contentious in nature, it is appropriate that the Attorney-General has the option to delegate these powers to an APS employee who holds or performs the duties of the Executive Level 2, or equivalent, position in the Department.

PART 4 - Application and transitional provisions

Item 42 - Application of Amendments

Item 42(1) will provide that the amendments made by Schedule 3 will apply to requests for transfer from or to Australia which are received at or after the commencement of Part 4 of this schedule or before the commencement of Part 4, if, at commencement, the Attorney-General had yet to make a decision on the application or request. The effect of the provision is that the ITP Act as amended by this Schedule will apply to any request under consideration by the Attorney-General at the time the amendments commence, or received at any time after commencement.

However, item 42(2) provides that new section 10A (to be introduced by item 22) will only apply to applications or requests received at or after the commencement of Part 4. New subsection 10A(1) will ensure that the Attorney-General need not take steps to make a decision where a transfer cannot proceed due to an application not meeting at least one of the requirements under the ITP Act. New subsection 10A(2) will allow the Attorney-General to not take steps for making a decision in relation to a transfer to or from Australia where reapplications are received by the Attorney-General less than one year after a decision not to progress the application. In relation to subsection 10A(2), this will be the case regardless of when the earlier application was received.

Item 43 - Transitional - saving current prescribed forms

Section 16 as amended by item 31 will no longer require forms to be prescribed in the regulations, but rather, will require the forms to be approved by the Attorney-General. Item 43 will provide that any forms made for the purposes of section 16 which are in force immediately before the commencement of Schedule 3 are to be taken to be a form approved by the Attorney-General for the purposes of section 16. The effect of this provision is that it will not be necessary to seek the Attorney-General's approval of the forms that are currently in the regulations. These forms will be deemed to be the approved form for the purposes of section 16, until the Attorney-General approves a new form for the purposes of that section.