An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

Part 12—Enforcement in Australia of sentences imposed by ICC

Division 3- Enforcement of Sentences

172 ICC prisoner transferred to Australia to be regarded as a federal prisoner

(1) For the purpose of enforcement in Australia of a sentence of imprisonment by the ICC, on transfer of the ICC prisoner to Australia under this Part:
the sentence is taken to be a federal sentence of imprisonment; and
the prisoner is taken to be a federal prisoner.

(2) Any period of the sentence of imprisonment as originally imposed by the ICC that was served by the ICC prisoner before the transfer is taken to have been served under the sentence of imprisonment as it is enforced under this Part.

(3) An ICC prisoner who is transferred to Australia under this Part may, while serving a sentence of imprisonment imposed by the ICC that is enforced under this Part, be detained in a prison, or in a hospital or other place, in a State.

(4) Subject to subsection (6), any relevant Australian law, or practice or procedure lawfully observed, about the detention of prisoners applies in relation to the ICC prisoner on or after his or her transfer to Australia to the extent that it is capable of applying concurrently with this Part.

(5) Without limiting subsection (4), Australian law, and practice and procedure, relating to the following matters are applicable to an ICC prisoner who is transferred to Australia under this Part:

conditions of imprisonment and treatment of prisoners;

classification and separation of prisoners;

removal of prisoners from one prison to another;

removal of prisoners between prisons and hospitals or other places or between one hospital or other place and another;

treatment of mentally impaired prisoners;

subject to subsection (6), eligibility for participation in prison programs;

temporary absence from prison (for example, to work or seek work, to attend a funeral or visit a relative suffering a serious illness or to attend a place of education or training);

transfer of prisoners between States.

(6) Australian law, and practice and procedure, relating to release of prisoners on parole or release under a pre-release permit scheme (however called) are not applicable to an ICC prisoner who is transferred to Australia under this Part.

Article 106
Supervision of enforcement of sentences and conditions of imprisonment
2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement.

Article 103
Role of States in enforcement of sentences of imprisonment
1. (a) A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons.
(b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part.
(c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court’s designation.
2. (a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days’ notice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110.
(b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1.
3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following:
(a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence;
(b) The application of widely accepted international treaty standards governing the treatment of prisoners;
(c) The views of the sentenced person;
(d) The nationality of the sentenced person;
(e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement.
4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.