Prisoners (Interstate Transfer) Act 1982

This Act may be cited as the Prisoners (Interstate Transfer) Act 1982.

This section and section 1 shall commence on the date of assent to this Act.

Except as provided in subsection (1), the several provisions of this Act shall commence on such day or days as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.

This Act shall be administered by the Minister for Corrective Services.

In this Act, except in so far as the context or subject-matter otherwise indicates or requires—

arrest warrant means a warrant to apprehend, a warrant to arrest or a warrant to commit a person to prison, but does not include—

such a warrant, where the term of imprisonment which the person to be apprehended, arrested or committed under the warrant is liable to serve is default imprisonment, or

a warrant to secure the attendance of a witness.

Attorney-General, in relation to the Northern Territory, means the person holding Ministerial office under section 36 of the Northern Territory (Self-Government) Act 1978 of the Commonwealth who is, under that Act, designated for the time being as the holder of the office of Attorney-General.

Commonwealth sentence of imprisonment means a sentence of imprisonment for an offence against a law of the Commonwealth or of a Territory.

corresponding court of New South Wales, in relation to a court of a participating State, means a court of New South Wales that is, under an order in force under section 6 (1), declared to be a corresponding court in relation to the court of the participating State.

corresponding Minister, in relation to a participating State, means the Minister of that State who is responsible for the administration of the interstate law of that State.

default imprisonment means imprisonment in default of—

payment of any fine, penalty, costs or other sum of money of any kind imposed or ordered to be paid by any court, judge or justice, or

entering into a recognizance to keep the peace or to be of good behaviour.

gaoler has the same meaning as governor has in the Crimes (Administration of Sentences) Act 1999.

indeterminate sentence means a sentence of or order or direction for imprisonment or detention for life or during the pleasure of Her Majesty or during the pleasure of the Governor-General, the Governor or the Governor of a participating State, and includes such a sentence, order or direction imposed, made or given by, or by the operation of, an Act or other law.

interstate law means a law that, under an order in force under section 6 (1), is declared to be an interstate law for the purposes of this Act.

joint prisoner means a person on whom both—

any one of the following—

a State sentence of imprisonment,

a State sentence of imprisonment as defined by an interstate law,

an ACT sentence of imprisonment as defined by the Prisoners (Interstate Transfer) Act 1993 of the Australian Capital Territory,

a Territory sentence of imprisonment as defined by the Prisoners (Interstate Transfer) Act 1983 of the Northern Territory, and

a Commonwealth sentence of imprisonment,

have been imposed.

justice means justice of the peace.

local prisons authority means—

in relation to New South Wales, the Commissioner of Corrective Services, or

in relation to a participating State other than New South Wales, the local prisons authority for that State within the meaning of the interstate law of that State, or

in relation to a Territory, the local prisons authority for that Territory within the meaning of the Transfer of Prisoners Act 1983 of the Commonwealth.

order of transfer means an order issued under section 7, 15, 16 (6) or 20 for the transfer of a prisoner to a participating State.

participating State means a State in which an interstate law is in force.

prison has the same meaning as correctional centre has in the Crimes (Administration of Sentences) Act 1999.

prison officer has the same meaning as correctional officer has in the Crimes (Administration of Sentences) Act 1999.

prisoner means a State prisoner or a joint prisoner.

relevant security, in relation to a person, means a security given by the person, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person’s behaviour.

sentence of imprisonment means—

a State sentence of imprisonment, or

a State sentence of imprisonment as defined by an interstate law, or

an ACT sentence of imprisonment as defined by the Prisoners (Interstate Transfer) Act 1993 of the Australian Capital Territory, or

a Territory sentence of imprisonment as defined by the Prisoners (Interstate Transfer) Act 1983 of the Northern Territory, or

where relevant, a Commonwealth sentence of imprisonment.

State includes the Australian Capital Territory and the Northern Territory.

State prisoner means a person upon whom a State sentence of imprisonment has been imposed, but does not include a person upon whom a Commonwealth sentence of imprisonment has been imposed.

State sentence of imprisonment means a sentence of imprisonment for an offence against a law of New South Wales, including a sentence by which default imprisonment is ordered, an indeterminate sentence and a translated sentence, but not including such a sentence while it is being served in a detention centre within the meaning of the Children (Detention Centres) Act 1987 or detention under any Act relating to the punishment of persons who committed offences when they were under the age of 18 years.

Territory means the Territory of Norfolk Island, the Territory of Christmas Island, the Territory of the Cocos (Keeling) Islands or the Jervis Bay Territory.

translated sentence means a sentence of imprisonment deemed by section 27 to have been imposed on a person by a court of New South Wales.

Where a justice of a participating State, in the exercise of the justice’s powers, issues a warrant of commitment while not constituting a court, the sentence of imprisonment imposed by the warrant shall, for the purposes of this Act, be deemed to have been imposed by a court.

For the purposes of this Act, a sentence of imprisonment imposed, or originally imposed, by, or by the operation of, an Act or other law of a State or Territory shall, except as prescribed by regulations under this Act, be deemed to have been imposed, or originally imposed, by a court of that State or Territory.

A reference in this Act to an Act of the Commonwealth includes a reference to an Act amending or replacing that Act.

In the case of a State other than the Australian Capital Territory or the Northern Territory, a reference in this Act to the Governor of a participating State includes a reference to any person exercising and performing all the powers and functions of the Governor of that State.

In the case of the Australian Capital Territory—

the reference in section 28 (4) to the Governor of the participating State is a reference to the Governor-General, and

the references in section 28 (5) (b) to the Governor of the participating State are references to the Governor-General or to the Executive within the meaning of the Australian Capital Territory (Self-Government) Act 1988 of the Commonwealth.

In the case of the Northern Territory, a reference in this Act to the Governor of a participating State (or of the participating State) is a reference to the Administrator of the Northern Territory, and includes a reference to any person exercising all the powers and functions of the Administrator.

A reference in this Act to the Governor-General includes a reference to any person exercising and performing all the powers and functions of the Governor-General.

A reference in this Act to a person upon whom a sentence of imprisonment has been imposed does not include a reference to a person who has completed serving that sentence.

The following persons upon whom a sentence of imprisonment has been imposed shall be taken, for the purposes of this Act, to have completed serving that sentence—

a person—

who has been released from serving a part of that sentence on parole or upon licence to be at large, and

in respect of whom action can no longer be taken under a law of the Commonwealth, a State or a Territory by way of requiring the person to serve the whole or a part of the remainder of that sentence,

a person—

who has been released from serving the whole or a part of that sentence upon giving a relevant security, and

in relation to whom—

action can no longer be taken under a law of the Commonwealth, a State or a Territory in respect of a breach of a condition of that security, or

action cannot, by reason of the expiration of the security, be taken under a law of the Commonwealth, a State or a Territory by way of requiring the person to serve the whole or a part of that sentence,

a person who, as the result of the exercise of the royal prerogative of mercy, is no longer required to serve the whole or a part of that sentence.

A reference in this Act to release on parole includes a reference to release on probation and to any other form of conditional release in the nature of parole.

Subject to subsection (2), the Governor may, by order published on the NSW legislation website, declare that—

a law of a State (other than New South Wales), is an interstate law for the purposes of this Act, and

a specified court of New South Wales or any court belonging to a specified class or description of courts of New South Wales is, for the purposes of this Act, a corresponding court in relation to a specified court of a participating State or in relation to any court belonging to a specified class or description of courts of a participating State.

An order shall not be made under subsection (1) in respect of a law of another State unless the Governor is satisfied that that law substantially corresponds to the provisions of this Act and contains provisions that are referred to in this Act as provisions of an interstate law that correspond to specified provisions of this Act.

(Repealed)

Where the Minister—

receives a written request made by a State prisoner serving a sentence of imprisonment in New South Wales for the transfer of the prisoner to a participating State or to a Territory, and

is of the opinion that the prisoner to whom the request relates should be transferred to the participating State or the Territory,

the Minister shall—

where the request is for the transfer of the prisoner to a participating State—give to the corresponding Minister of the participating State a written request asking that Minister to accept the transfer of the prisoner to the participating State, and

where the request is for the transfer of the prisoner to a Territory—give to the Attorney-General of the Commonwealth a written request asking the Attorney-General to consent to that transfer.

Where the Minister—

has—

in respect of a request made by a State prisoner for a transfer to a participating State, given to the corresponding Minister of the participating State a written request under subsection (1) (c), and

received from that Minister written notice of consent to the transfer of the prisoner to the participating State, or

has—

in respect of a request made by a State prisoner for a transfer to a Territory, given to the Attorney-General of the Commonwealth a written request under subsection (1) (d), and

received from the Attorney-General of the Commonwealth written notice of consent to the transfer of the prisoner to the Territory,

the Minister may issue an order for the transfer of the prisoner to the participating State or the Territory, as the case may be.

Where the Minister—

receives a written request made by a joint prisoner serving a sentence of imprisonment in New South Wales for the transfer of the prisoner to a participating State, and

is of the opinion that the prisoner to whom the request relates should be transferred to the participating State,

the Minister shall give to the corresponding Minister of the participating State a written request asking that Minister to accept the transfer of a prisoner to that participating State.

Where the Minister has—

in respect of a request by a joint prisoner for a transfer to a participating State, given to the corresponding Minister of the participating State a written request under subsection (3), and

received from that Minister written notice of consent to the transfer of the prisoner to the participating State,

the Minister may issue an order for the transfer of the prisoner to the participating State.

Where a joint prisoner is serving a sentence of imprisonment in New South Wales and the Minister—

receives a written request made by the prisoner for the transfer of the prisoner to a Territory, and

is of the opinion that the prisoner to whom the request relates should be transferred to the Territory,

the Minister may issue an order for the transfer of the prisoner to the Territory.

A decision to issue, or not to issue, an order under this section is not reviewable by a court or tribunal.

An order of transfer issued under this Part in relation to a joint prisoner has no effect—

to the extent that, but for this section, it authorises or requires the doing of an act or thing under this Act in relation to that person in the person’s capacity as a person upon whom a Commonwealth sentence of imprisonment has been imposed, and

unless and until a transfer order corresponding to the order of transfer is in force under the Transfer of Prisoners Act 1983 of the Commonwealth in respect of the person or the transfer of the person is otherwise authorised under that Act.

A request made by a prisoner for transfer to a participating State or to a Territory need not be entertained by the Minister if it is made within one year of a similar request made by the prisoner.

Where the Minister receives a written request given under the provision of an interstate law that corresponds to section 7, or a request made for the purposes of Part II of the Transfer of Prisoners Act 1983 of the Commonwealth, asking the Minister to accept the transfer of an imprisoned person to New South Wales, the Minister shall either refuse to consent, or consent, to the transfer and shall give to the Minister by whom the written request was given or to the Attorney-General of the Commonwealth, as the case may be, written notice of the Minister’s refusal or consent.

In forming an opinion or exercising any discretion under this Part, the Minister may have regard to any one or more of the following—

the welfare of the prisoner concerned,

the administration of justice in this or any other State,

the security and good order of any prison in this or any other State,

the safe custody of the prisoner,

the protection of the community in this or any other State,

any other matter the Minister considers relevant.

For the purpose of forming an opinion or exercising any discretion under this Part, the Minister may inform himself or herself as the Minister thinks fit and, in particular, by reference to reports of parole and prison authorities of New South Wales and of any participating State.

Reports of parole and prison authorities may be sent to a corresponding Minister for the purpose of assisting the corresponding Minister to form an opinion or to exercise a discretion under the interstate law administered by the corresponding Minister.