{"id":"F2007L00845","name":"International Transfer of Prisoners (Military Commission of the United States of America) Regulations 2007","slug":"international-transfer-of-prisoners-military-commission-of-the-united-states-of-america-regulations-","collection":"legislative_instrument","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":"79 of 2007","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":64622,"registerId":"commonwealth-F2007L00845-current","compilationNumber":null,"startDate":"2026-04-02","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"International Transfer of Prisoners (Military Commission of the United States of America) Regulations 2007","content":"![](image.001.png)\n\nInternational Transfer of Prisoners (Military Commission of the United States of America) Regulations 20071\n\nSelect Legislative Instrument 2007 No. 79\n\nI, PHILIP MICHAEL JEFFERY, Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the International Transfer of Prisoners Act 1997.\n\nDated 29 March 2007\n\nP. M. JEFFERY\n\nGovernor‑General\n\nBy His Excellency’s Command\n\nPHILIP RUDDOCK\n\nAttorney‑General\n\n1 Name of Regulations\n\nThese Regulations are the International Transfer of Prisoners (Military Commission of the United States of America) Regulations 2007.\n\n2 Commencement\n\nThese Regulations commence on the day after they are registered.\n\n3 Definition\n\nIn these Regulations:\n\n> Act means the International Transfer of Prisoners Act 1997.\n\n4 Application of the Act\n\nFor section 8 of the Act, the Act applies to the United States of America for the transfer to Australia of a prisoner:\n\n(a) serving a sentence of imprisonment ordered by a military commission established under chapter 47A of title 10 of the United States Code; and\n\n(b) subject to the arrangement set out in Schedule 1.\n\n> Note For the declaration of the United States of America as a transfer country, see the International Transfer of Prisoners (Transfer of Sentenced Persons Convention) Regulations 2002.\n\nSchedule 1 Arrangement\n\n(regulation 4)\n\nArrangement between the Government of Australia and the Government of the United States of America on the Transfer of Prisoners Sentenced by United States Military Commissions Established Pursuant to the Military Commissions Act of 2006 and the United States Code and on Co‑operation in the Enforcement of Sentences Imposed by those Military Commissions.\n\nThe Government of Australia and the Government of the United States of America;\n\nReferring to their mutual undertaking to work towards pursuing the option of repatriating any Australian national sentenced to a term of imprisonment by a United States military commission to Australia for service of sentence;\n\nHave put into place the following Arrangement to facilitate such repatriations based on their mutual understandings.\n\nParagraph 1 – Definitions\n\nFor the purposes of this Arrangement:\n\n1.  “applicable United States area” means the United States Naval Station at Guantanamo Bay, Cuba, an area over and within which the United States exercises complete jurisdiction and control pursuant to an Agreement between the United States and Cuba for the lease to the United States of lands in Cuba for Coaling and Naval Stations, signed at Habana, February 16, 1903 and entered into force February 23, 1903, and continued in effect pursuant to the Treaty of Relations between the United States and Cuba, signed at Washington, May 29, 1934 and entered into force June 9, 1934;\n2.  “sentence” means any punishment or measure involving deprivation of liberty ordered by a United States military commission, on account of a criminal offense;\n3.  “judgment” means a decision or order of a United States military commission imposing a sentence;\n4.  “prisoner” means a person sentenced to a term of imprisonment by a United States military commission;\n5.  “United States military commission” means a military commission established pursuant to the Military Commissions Act of 2006 and the United States Code.;\n6.  “United States Code” refers to chapter 47A of title 10 of the United States Code, as amended by section 3(a) of the Military Commissions Act of 2006; and\n7.  “national of Australia” means a person who is an Australian citizen; or is permitted to travel to, enter and remain in Australia indefinitely pursuant to the Migration Act 1958 and has community ties with a State or a Territory.\n\nParagraph 2 – General principles\n\n1.  The undersigned Governments 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.\n\n2. 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.\n\n3. 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.\n\nParagraph 3 – Duty to furnish information\n\n1. Any national of Australia charged with an offense or offenses before a United States military commission is to be informed of the substance of this Arrangement.\n\n2. Any prisoner to whom this Arrangement may apply is to be afforded the opportunity to apply for transfer.\n\n3. If the prisoner expresses an interest to the Government of the United States of America in being transferred under this Arrangement, the Government of the United States of America is to so inform the Government of Australia as soon as practicable, and after the judgment becomes final, is to promptly make available to the prisoner means whereby he or she may communicate with a representative of the Government of Australia.\n\n4. The prisoner is to be informed, in writing, of any action taken by the Government of the United States of America or the Government of Australia under the preceding paragraphs, as well as of any decision taken by either Government on a request for transfer under Paragraph 4.\n\nParagraph 4 – Requests and replies\n\n1. Requests for transfer and replies, including denials of and agreements to transfer, are to be made by the Government of Australia or the Government of the United States of America in writing.\n\n2. Requests and replies are to be communicated through the Secretary of the Attorney‑General’s Department for the Government of Australia and the Legal Advisor to the Appointing Authority for Military Commissions for the Government of the United States of America.\n\n3. Either Government may deny a request for transfer.\n\nParagraph 5 – Supporting documents\n\n1. Where a request for transfer has been made and not denied, the Government of the United States of America is to provide the Government of Australia with the following information:\n\n1.  a statement advising of the identity and nationality of the prisoner, referencing the document relied upon to establish these facts;\n2.  a statement of facts upon which the sentence was based;\n3.  the termination date of the sentence, the length of time already served by the prisoner and any credits to which he or she is entitled as a result of circumstances, including on account of good behavior and other reasons;\n4.  a certified copy of all judgments, sentences and determinations provided for in the Military Commissions Act of 2006 and the United States Code concerning the prisoner from the date of his detention in the custody of the United States of America, and the law of which such judgments, sentences and determinations are based;\n5.  any medical or social reports on the prisoner, information about any such treatment he or she has received while in the custody of the United States of America, and any recommendation for his or her further such treatment in Australia; and\n6.  any additional information requested by the Government of Australia, that is relevant to the transfer of the prisoner under this Arrangement.\n\nParagraph 6 – Conditions for transfer\n\n1. Any transfer under this Arrangement is to be on the following conditions:\n\n1.  the prisoner is a national of Australia;\n2.  the sentence imposed on the prisoner by a United States military commission is one of imprisonment;\n\nc. the judgment is final;\n\nd. the Government of the United States of America and the Government of Australia and the prisoner all consent to the transfer provided that where in view of his age or physical or mental condition either Party considers it necessary, the prisoner’s consent may be given by a person entitled to act on his behalf; and\n\ne. the prisoner will be treated humanely and in accordance with the laws and international obligations of Australia.\n\nParagraph 7 – Consent and its verification\n\n1.  If both Governments agree to the transfer, the Government of the United States of America is to ask the prisoner to give consent to the transfer and is to ensure that, if the prisoner gives consent, it is given voluntarily and with full knowledge of the legal consequences thereof.\n\n2. The Government of the United States of America is to afford an opportunity to the Government of Australia, if the Government of Australia so desires to verify, through a visit by an official of the Government of Australia to meet with the prisoner prior to the transfer, that the prisoner’s consent to the transfer under the Arrangement is given voluntarily and with full knowledge of the consequences thereof.\n\n3. The Government of the United States of America is to inform the prisoner, in writing, that should the prisoner not consent to the transfer he or she will not be detained by the Government of the United States of America beyond the term of imprisonment imposed by the United States military commission or otherwise penalized.\n\n4. Once consent is obtained from the Government of the United States of America, the Government of Australia, and the prisoner, the prisoner is to be transferred as soon as practicable.\n\nParagraph 8 – Effect of transfer for the United States\n\n1.  The taking into charge of the prisoner by the appropriate authorities in Australia is to have the effect of suspending the enforcement of the sentence by the United States of America.\n\n2. The Government of the United States of America is to no longer enforce the sentence if Australia considers enforcement of the sentence to have been completed.\n\nParagraph 9 – Effect of transfer for Australia\n\n1.  The competent authorities of Australia are to continue the enforcement of the sentence immediately upon the prisoner being taken into Australian custody.\n\n2. The enforcement of the sentence in Australia is to be governed by the law of Australia and Australia alone is to be competent to take all appropriate decisions.\n\nParagraph 10 – Continued enforcement\n\n1.  Consistent with its law, the Government of Australia is to respect and maintain the legal nature and duration of the sentence as determined by the United States.\n\n2. If, however, this sentence is by its nature or duration incompatible with the law of Australia, or its law so requires, Australia may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offense. As to its nature, the punishment or measure is to, as far as possible, correspond with that imposed by the sentence to be enforced. The punishment is not to aggravate, by its nature or duration, the sanction imposed by the United States.\n\nParagraph 11 – Amnesty, commutation\n\nEither Government may grant amnesty or commutation of the sentence in accordance with its Constitution or other laws.\n\nParagraph 12 – Review of judgment, pardon\n\nThe Government of the United States of America alone is to have the right to decide on any application for review of the judgment or to pardon an offense.\n\nParagraph 13 – Termination of enforcement\n\nThe Government of Australia is to terminate enforcement of the sentence as soon as it is informed by the Government of the United States of America of any decision or measure as a result of which the sentence ceases to be enforceable.\n\nParagraph 14 – Information on enforcement\n\nThe Government of Australia is to provide information to the Government of the United States of America concerning the enforcement of the sentence:\n\na. when the Government of Australia considers enforcement of the sentence to have been completed;\n\nb. if the prisoner has escaped from custody before enforcement of the sentence has been completed; or\n\nc. if the Government of the United States of America requests a special report.\n\nParagraph 15 – Signature and effective date\n\nThe effective date of the Arrangement will be the date of signature.\n\nParagraph 16 – Relationship to other Agreements and Arrangements\n\nThis Arrangement does not affect the rights and undertakings derived from extradition treaties and other treaties on international co‑operation in criminal matters providing for the transfer of prisoners for purposes of confrontation or testimony.\n\nParagraph 17 – Withdrawal\n\nEither Government may withdraw at any time from this Arrangement by written notice to the other Government.\n\n> Note\n\n> Note: 1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.frli.gov.au.","sortOrder":0}],"analysis":{"flash_summary":{"complexity_score":5,"scope_assessment":{"changed":false,"description":"This regulation stays within the statutory power and original purpose of the International Transfer of Prisoners Act 1997 to declare particular transfer arrangements and apply the Act to specified transfer countries. It does not broaden the Act’s mechanisms beyond their intended use; rather it applies those mechanisms to a particular context (Australian nationals sentenced by United States military commissions) and records an intergovernmental Arrangement setting the procedural and substantive conditions for transfers."},"complexity_factors":["Short instrument but with a substantive Schedule (Schedule 1) containing 17 numbered paragraphs","Seven defined terms in Paragraph 1 creating cross‑references to both Australian and United States law","Conditional logic for transfer in Paragraph 6 (multiple conjunctive conditions: nationality, sentence type, finality of judgment, consent of both governments and prisoner, humane treatment)","Consent verification provisions with optional Australia site‑visit (Paragraph 7) and documentary proof requirements (Paragraph 5)","Cross‑jurisdictional legal mapping: enforcement shifts to Australia but must respect US sentence nature/duration where possible, with an adaptation mechanism under Australian law (Paragraphs 8–11)","Reserved sovereign rights: US retains exclusive control over review/pardon of US judgments (Paragraph 12)","Specified administrative channels for communication (Paragraph 4.2) and reporting obligations (Paragraph 14)","Reference to a specific and politically sensitive detention area (Guantanamo Bay) increasing logistical and legal complexity (Paragraph 1 definition)","Withdrawable arrangement clause allowing either Government to terminate at will (Paragraph 17)"],"plain_english_summary":"**What this instrument does (mechanics)\n\n- This is a regulation made under the International Transfer of Prisoners Act 1997 that makes the Act apply to the United States of America for a specific class of cases (regulation 4).  In short: it establishes a formal arrangement allowing Australian nationals who have been sentenced to imprisonment by United States military commissions to be transferred to Australia to serve their sentences, and sets out the steps and conditions for doing so (Schedule 1, Paragraphs 1–17).\n\n- The regulation starts to operate the day after it is registered (regulation 2) and defines the Act it relies on (regulation 3).\n\n- The Arrangement in Schedule 1 sets definitions, the process for requesting transfers, the documents the United States must provide, the conditions that must be met before a transfer can occur, who decides what, and how sentences will be dealt with once a prisoner arrives in Australia (Schedule 1, Paragraphs 1–16).\n\nWho is affected\n\n- Primary individuals affected: Australian nationals (defined as Australian citizens or persons allowed to remain indefinitely under the Migration Act who have ties to an Australian State or Territory) who are sentenced to imprisonment by United States military commissions established under the Military Commissions Act of 2006 and the United States Code (Schedule 1, Paragraph 1 definitions; regulation 4).\n\n- Governments and agencies affected: the Australian Government (principally the Attorney‑General's Department as the communication channel), the United States Government (specifically the office handling military commissions), and Australian corrective services authorities that will take custody and enforce sentences once transferred (Schedule 1, Paragraphs 4, 5, 8–10).\n\nWhy it matters (official purpose, and what that implies)\n\n- The stated purpose is to facilitate repatriation: to allow Australian nationals sentenced by US military commissions to be transferred to Australia to serve their prison terms (Arrangement preamble; Paragraph 2).\n\n- Mechanically, that means: the United States and Australia exchange information and documents about the prisoner and the sentence (Paragraph 5); both governments and the prisoner must consent before transfer (Paragraphs 4, 6, 7); once transferred, Australia assumes custody and enforces the sentence under Australian law but is to preserve the legal nature and duration of the US-imposed sentence where compatible with Australian law (Paragraphs 8–11).\n\nOfficial claims tested against practical trade-offs and implementation effects\n\n- Who pays: Once transferred, Australia takes custody and therefore bears the ordinary operational costs of imprisonment (Paragraphs 8–11). The United States suspends enforcement while Australia enforces the sentence (Paragraph 8).\n\n- Who decides: Either Government may refuse a transfer request (Paragraph 4.3). The United States alone retains the right to decide on review of the US judgment and to grant pardons or reviews for the US-imposed judgment (Paragraph 12). Australia alone is competent to make enforcement decisions once the prisoner is in Australia, including adapting the sentence where incompatibility with Australian law requires it (Paragraph 9 and 10).\n\n- Prisoner choice and protections: Transfer requires the prisoner’s voluntary, informed consent (Paragraph 7.1–7.3). The US must inform the prisoner of the Arrangement and the right to apply for transfer, and must allow communication with Australian representatives (Paragraph 3). The Arrangement provides a mechanism for Australia to verify voluntariness via an on-site visit before transfer (Paragraph 7.2).\n\n- Legal adaptation and limits: Australia must respect the nature and duration of the US sentence where possible, but may adapt the sanction to fit Australian law if the US sentence is incompatible; adaptation must not aggravate (make worse) the punishment in nature or duration (Paragraph 10). This creates a judicial/administrative task in Australia to map US military-commission sentences to corresponding Australian sanctions.\n\n- Administrative and information requirements: The US must provide identity, factual basis for the sentence, sentence length and credits, certified copies of judgments, and medical/social reports (Paragraph 5). Communication is to be routed through named officials (Paragraph 4.2). These documentary and verification duties create a compliance burden on both governments.\n\nCosts, incentives and risks (practical considerations)\n\n- Concentrated benefits, diffuse costs: Benefits of transfer are concentrated (the individual prisoner and close family), while costs (incarceration, administrative processing, legal adaptation) are carried by Australian corrections and justice budgets and are therefore dispersed across taxpayers.\n\n- Administrative burdens and implementation risk: Verifying the voluntariness of consent in locations such as the US Naval Station at Guantanamo Bay (explicitly named in the definitions) may be logistically and politically difficult (Paragraph 1 definition). Producing certified judgments and detailed records spanning detention and military commission procedures may be complex and time-consuming (Paragraph 5).\n\n- Legal and procedural friction: Australia must sometimes adapt a sentence to fit domestic law, which can require court or administrative orders (Paragraph 10). That process creates litigation risk and decision-making discretion in Australia about equivalence of punishments.\n\n- Sovereignty and limited remedies: The Arrangement explicitly preserves each government’s separate authority on pardons, reviews and amnesty (Paragraphs 11–12). That means an Australian prisoner cannot compel the United States to review or amend the US judgment; likewise the US retains final say on US-side legal remedies.\n\n- Behavioural effects: The Arrangement permits prisoners to apply for transfer; it could increase transfer applications from eligible prisoners. It also gives governments discretion to accept or deny requests, which preserves bargaining leverage and control over who is transferred (Paragraphs 2–4).\n\nNet operational picture (who pays, who decides, what changes)\n\n- Who pays: Australia pays for custody and enforcement after transfer; the US suspends enforcement when Australia takes custody (Paragraph 8).\n- Who decides: Either government can refuse a transfer; both governments and the prisoner must consent for transfer; the US retains exclusive rights over US judgment review and pardons; Australia has exclusive competence to enforce and to adapt sentences under domestic law (Paragraphs 4, 7, 12, 9–10).\n- What behaviour changes: Prisoners gain a formal route to request transfer; governments must exchange documents and verify consent; Australian courts or administrators may need to adapt foreign military-commission sentences to Australian sentencing frameworks.\n\nKey procedural points to watch (implementation risk and compliance burden)\n\n- Ensuring voluntary and informed consent in custody settings (Paragraph 7).\n- Gathering certified judgments and full custody histories from US military commission files (Paragraph 5).\n- Mapping military-commission punishments into equivalent Australian sanctions without aggravation (Paragraph 10).\n- Ongoing reporting obligations about enforcement status, escapes, and completion (Paragraph 14).\n\n(References: regulation 4; Schedule 1, Paragraphs 1–17.)"},"flash_summary_failed":{"failed":true,"reason":"Unauthenticated. Configure AI_GATEWAY_API_KEY or use a provider module. Learn more: https://ai-sdk.dev/unauthenticated-ai-gateway","source":"analysis-cron"},"kimi_summary":{"content_quality":"ok","complexity_score":3,"scope_assessment":{"changed":false,"description":"The legislation remains tightly focused on its original purpose. It creates a specific mechanism for prisoner transfers from US military commissions at Guantanamo Bay to Australia, which was its intended scope from inception. The instrument has not expanded beyond this narrow, specific purpose."},"complexity_factors":["Very short instrument (only 4 regulations plus Schedule)","Single defined term ('Act') in the regulations themselves","Schedule contains bilateral treaty-style text with 17 paragraphs of straightforward procedural rules","No nested exceptions or complex conditional logic in the regulatory provisions","Cross-references limited to: the enabling Act (International Transfer of Prisoners Act 1997), the Migration Act 1958 for nationality definition, and US legislation (Military Commissions Act 2006, Title 10 USC Chapter 47A)","Clear linear structure: definitions → application → schedule containing arrangement terms","Substantive complexity lies in the political/operational context (Guantanamo military commissions) rather than legislative drafting complexity"],"plain_english_summary":"This law creates a bilateral \"Arrangement\" enabling Australian citizens (or permanent residents with community ties) convicted and sentenced by US military commissions at Guantanamo Bay to be repatriated to Australia to serve their sentences. Transfers require prisoner consent (or incapacity exceptions), finality of sentence, and agreement by both governments; Australia must treat transferred prisoners humanely and may adapt—but not increase—the sentence. The US alone retains review or pardon power, and either country can withdraw from the Arrangement."}},"importantCases":[],"_links":{"self":"/api/acts/international-transfer-of-prisoners-military-commission-of-the-united-states-of-america-regulations-","history":"/api/acts/international-transfer-of-prisoners-military-commission-of-the-united-states-of-america-regulations-/history","analysis":"/api/acts/international-transfer-of-prisoners-military-commission-of-the-united-states-of-america-regulations-/analysis","conflicts":"/api/acts/international-transfer-of-prisoners-military-commission-of-the-united-states-of-america-regulations-/conflicts","importantCases":"/api/acts/international-transfer-of-prisoners-military-commission-of-the-united-states-of-america-regulations-/important-cases","documents":"/api/acts/international-transfer-of-prisoners-military-commission-of-the-united-states-of-america-regulations-/documents"}}