Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
Section A. Cooperation between States
Australia’s International Transfer of Prisoners Act (1997), as amended in 2004, has as its objects:
(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 the 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.
The Act defines “tribunal” as “(a) the Former Yugoslavia Tribunal; or (b) the Rwanda Tribunal”.
In a later amendment to the Act, sentences of imprisonment imposed by US military commissions have been included, as follows:
For the purposes of this Act:
(a) a military commission of the United States of America is taken to be a court or tribunal of the United States of America; and
(b) any punishment or measure involving deprivation of liberty ordered by a military commission of the United States of America is taken to have been ordered by a court or tribunal of the United States of America in the exercise of its criminal jurisdiction; and
(c) any direction or order given or made by a military commission of the United States of America with respect to the commencement of such punishment or measure is taken to have been given or made by a court or tribunal of the United States of America.
Australia’s International Transfer of Prisoners (Military Commission of the United States of America) Regulations (2007), states in its Schedule 1 (Arrangement):
1. The undersigned Governments [the United States and Australia] are to afford each other the widest measure of cooperation in respect of the transfer of prisoners in accordance with the provisions of this Arrangement.
2. A person sentenced by a United States military commission in the applicable United States area may be transferred to Australia in accordance with the provisions of this Arrangement, in order to serve the sentence imposed on him or her.
3. Transfer may be requested only by the Government of Australia or the Government of the United States of America, upon application to either by a prisoner desiring to be transferred under this Arrangement.