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[Act 1997 No 144]
New South Wales
International Transfer of Prisoners
(New South Wales) Bill 1997
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
Overview of Bill
The International Transfer of Prisoners Act 1997 of the Commonwealth sets
out a scheme:
(a) to facilitate the transfer of prisoners between Australia and certain
countries with which Australia has entered agreements for the transfer
of prisoners so that prisoners may serve their sentences of
imprisonment in their countries of nationality or in countries with
which they have community ties, and
(b) to facilitate the transfer of prisoners to Australia from countries in
which prisoners are serving sentences of imprisonment imposed by
certain war crimes tribunals.
* Amended in committe--see table at end of volume.
International Transfer of Prisoners (New South Wales) Bill 1997 [Act 1997 No 144]
Explanatory note
The scheme will enable Australians imprisoned overseas, and foreign
nationals imprisoned in Australia, to be returned to their home countries to
complete the serving of their sentences. It will also enable persons who have
a connection with Australia and who have been convicted by certain
international war crimes tribunals (namely the Former Yugoslavia Tribunal
and the Rwanda Tribunal) to be transferred to Australia to serve their
sentences.
The Commonwealth Act by itself will be insufficient to give effect to the
scheme. Incoming prisoners will have to be housed in prisons controlled by
States and Territories which participate in the scheme (as there are no federal
prisons) and many of the prisoners who wish to take advantage of the scheme
and leave Australia will be serving sentences for State or Territory offences.
The Bill for the Commonwealth Act (as well as a Bill for the complementary
legislation that States and Territories which have agreed to participate in the
scheme will need to enact) was developed in consultation with the States and
Territories through the Standing Committee of Attorneys-General.
The object of this Bill is to give effect to the scheme for the international
transfer of prisoners set out in the Commonwealth Act by enabling prisoners
to be transferred to and from this jurisdiction under the scheme.
Outline of provisions
Part 1 Preliminary
Clause l sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 sets out the object of the proposed Act as described in the
Overview above.
Clause 4 defines certain words and expressions used in the proposed Act.
Commonwealth Act means the International Transfer of Prisoners Act 1997
of the Commonwealth and War Crimes Tribunal means the Former
Yugoslavia Tribunal or the Rwanda Tribunal within the meaning of the
Commonwealth Act. Expressions defined in the Commonwealth Act which
are used in the proposed Act have the same meaning as in the
Commonwealth Act, unless a contrary intention appears. For example, the
Commonwealth Act defines prisoner as being a person who is serving a
Explanatorynotepage2
International Transfer of Prisoners (New South Wales) Bill 1997 [Act 1997 No 144]
Explanatory note
sentence of imprisonment and includes a mentally impaired prisoner and a
prisoner released on parole. A Tribunal prisoner is defined as a prisoner who
is serving a sentence of imprisonment imposed by a War Crimes Tribunal for
an offence for which that Tribunal is empowered to prosecute.
Clause 5 provides that notes in the text of the proposed Act do not form part
of the proposed Act.
Part 2 Conferral of functions
Clause 6 empowers a New South Wales Minister to exercise and perform
functions conferred on the Minister by or under the Commonwealth Act.
Clause 7 empowers prison officers, police officers and other officials to
exercise the powers and functions conferred on the officials by or under the
Commonwealth Act in accordance with any arrangement made under clause
8 in relation to the administration of the Commonwealth Act.
Clause 8 states that the Governor may make arrangements with the
Governor-General for the administration of the Commonwealth Act. This
complements the power conferred on the Governor-General under the
Commonwealth Act. These arrangements may be varied or terminated at any
time in accordance with the Commonwealth Act.
Part 3 Enforcement of sentences of imprisonment of
transferred prisoners
Clause 9 provides that, for the purposes of enforcement of sentence, a
prisoner or Tribunal prisoner serving a sentence in New South Wales under
the Commonwealth Act is to be treated in the same way as a federal prisoner.
Clause 9 (1) provides for the application of relevant enforcement laws to such
a prisoner.
Clause 9 (2) gives examples of matters covered by the enforcement laws that
will apply to the prisoner. These include release on parole, removal from one
prison to another and eligibility for participation in prison schemes.
Clause 9 (3) gives effect in New South Wales to directions given by the
Attorney-General of the Commonwealth under section 44 of the
Commonwealth Act. Those directions relate to enforcement of sentences and
include, subject to certain limitations, directions as to the duration and legal
nature of the sentence of imprisonment as it is to be enforced under the
Commonwealth Act, and directions relating to entitlement to release on
Explanatory note page 3
International Transfer of Prisoners (New South Wales) Bill 1997 [Act 1997 No 144]
Explanatory note
parole. If the prisoner or Tribunal prisoner is mentally impaired, directions
can be given regarding any review of the mental condition or treatment of
that prisoner.
Clause 9 (4) gives effect in New South Wales to a direction given by the
Attorney-General of the Commonwealth under section 49 of the
Commonwealth Act. That section provides that where a transferred prisoner
is serving a sentence in Australia, the prisoner may be pardoned or granted
amnesty or commutation of sentence as if the sentence had been imposed for
an offence against an Australian law. The section also provides that, where a
prisoner is pardoned or granted amnesty or commutation of sentence (either
under Australian law or the law of the transfer country) or a prisoner's
conviction is quashed or otherwise nullified under the law of a transfer
country, the Attorney-Genera1 of the Commonwealth must direct that the
person be released. Similar directions must be given if a Tribunal prisoner is
pardoned or granted amnesty or commutation of sentence (either under
Australian law or by a Tribunal) or the prisoner's conviction is quashed or
otherwise nullified.
Clause 10 provides that where a prisoner is transferred from Australia, the
laws of this jurisdiction relating to the enforcement of a sentence imposed by
a New South Wales court cease to have effect. Clause 10 (2) ensures that
where a prisoner is serving a sentence in a transfer country following transfer
from Australia, the prisoner may still be pardoned or granted amnesty or
commutation of sentence as if he or she were still in New South Wales.
Part 4 Miscellaneous
Clause 11 empowers the Governor to make regulations for the purposes of
the proposed Act.
Clause 12 provides for the review of the proposed Act by the Minister 5
years after it is assented to.
Explanatory note page 4