Prisoners (Interstate Transfer) Act 1983

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

Act 1983.

This Act shall come into operation on a date to be fixed by the

Administrator by notice in the Gazette.

In this Act:

another Territory and other Territory mean the Jervis Bay Territory, the Territory of Norfolk Island, the Territory of Christmas Island, the Territory of Cocos (Keeling)

Islands or any prescribed external Territory to which the provisions of the Transfer of Prisoners Act 1983 of the Commonwealth have been extended.

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 a participating State, means the person who is designated for the time being as holder of the office of Attorney-General for that State.

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

corresponding court of the Territory, in relation to a court of a participating State, means a court of the Territory that is, under an order in force under section 4(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 the Crown of that State charged for the time being with the administration of the interstate law of that

State.

default imprisonment means imprisonment in default of:

payment of any fine, penalty, costs or other amount of money of any kind imposed or ordered to be paid by a court on the finding of guilt of a person for an offence; or

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

indeterminate sentence means a sentence of or order or direction for imprisonment or detention for life or during the pleasure of the Sovereign or during the pleasure of the

Governor-General, the Administrator 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 a declaration in force under section 4(1), is declared to be an interstate law for the purposes of this Act.

joint prisoner means a person upon whom both:

a Territory sentence of imprisonment (as defined by this Act) or a State sentence of imprisonment (as defined by an interstate law);

and

a Commonwealth sentence of imprisonment,

have been imposed.

order of transfer means an order issued under section 5, 13, 14(6) or 18 for the transfer of a prisoner to a participating State.

participating State means a State of the Commonwealth in which there is in force an interstate law.

prison means:

in the Territory – a custodial correctional facility (as defined in section 11(1)(a) of the Correctional Services Act

2014); or

in a participating State or another Territory – a prison or other correctional facility (however described).

prison officer means:

in the Territory – a correctional services officer (as defined in section 16 of the Correctional Services Act 2014); or

in a participating State or another Territory – a prison officer (however described).

prisoner means a Territory 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 Territory sentence of imprisonment as defined by this Act or a State sentence of imprisonment as defined by an interstate law, and includes (where relevant) a Commonwealth sentence of imprisonment.

State includes the Australian Capital Territory.

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

Territory sentence of imprisonment means a sentence of imprisonment for an offence against a law of the Territory, including a sentence of penal servitude, a sentence by which default imprisonment is ordered, an indeterminate sentence and a translated sentence, but does not include a sentence of imprisonment imposed under the Youth Justice Act 2005 or detention in a detention centre within the meaning of that Act.

translated sentence means a sentence of imprisonment deemed by section 25 to have been imposed on a person by a court of the Territory.

Note for subsection (1)

The Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act.

Where a justice of the peace 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 the Territory, a State or another Territory shall, except as prescribed by regulations under this Act, be deemed to have been imposed, or originally imposed, by a court of the Territory or, as the case may be, of that State or other Territory.

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

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

Governor of that State, as the case may be.

In relation to the Australian Capital Territory, the reference to the Governor of a participating State:

in section 26(4) is a reference to the Governor-General; and

in section 26(5)(b) is a reference to the Governor-General or the

Executive within the meaning of the Australian Capital Territory (Self-Government) Act 1988 of the Commonwealth.

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, the Territory, a State or another 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, the Territory, a State or another 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 any such law 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 Administrator may, by notice in the Gazette, declare that:

a law of a State is an interstate law for the purposes of this

Act; and

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

A declaration shall not be made under subsection (1) in respect of a law unless the Administrator 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.

The jurisdiction conferred on the Local Court under this Act is

part of the Court's criminal jurisdiction.

For exercising its jurisdiction under this Act the Court must be constituted by a Local Court Judge.

Part II Transfer at request of prisoner

Where the Minister:

receives a written request made by a Territory prisoner serving a sentence of imprisonment in the Territory for the transfer of the prisoner to a participating State or to another Territory; and

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

Territory – give to the Attorney-General of the Commonwealth a written request asking the Attorney-General of the Commonwealth to consent to that transfer.

Where the Minister:

has:

in respect of a request made by a Territory 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 Territory prisoner for a transfer to another 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 that other

Territory;

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

Where the Minister:

receives a written request made by a joint prisoner serving a sentence of imprisonment in the Territory 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 the 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 the Territory and the Minister:

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

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

the Minister may issue an order for the transfer of the prisoner to that other 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, to the extent that (but for this section) it authorizes or requires the doing of an act or thing under this Act in relation to that person in his or her capacity as a person upon whom a

Commonwealth sentence of imprisonment has been imposed, has no effect unless and until:

a transfer order corresponding to the order of transfer is in force in respect of that person under the Transfer of Prisoners

Act 1983 of the Commonwealth; or

the transfer of that person is otherwise authorized under that

Act.

A request made by a prisoner for his transfer to a participating

State or to another Territory need not be entertained by the Minister if it is made within 12 months after 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 5, 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 the Territory, the

Minister shall either refuse to consent, or consent, to the transfer and shall give to the corresponding 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.

For the purpose of forming an opinion or exercising a 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 the Territory and of any participating State.

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

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

the welfare of the prisoner concerned;

the administration of justice in the Territory, a participating

State or another Territory;

the security and good order of any prison in the Territory, a participating State or another Territory;

the safe custody of the prisoner concerned;

the protection of the community in the Territory, a participating

State or another Territory;

any other matter the Minister considers relevant.

Part III Transfer for trial

Where a person the subject of an arrest warrant issued in accordance with the law of a participating State, the Commonwealth or another Territory is a prisoner serving a sentence of imprisonment in the Territory and the Attorney-General receives:

from:

in the case of an arrest warrant issued in accordance with the law of a participating State – the Attorney-General of the participating State; or

in the case of an arrest warrant issued in accordance with the law of the Commonwealth or another Territory – the Attorney-General of the Commonwealth,

a written request, accompanied by a copy of the warrant; or

a written request made by the prisoner to the Minister and referred to the Attorney-General,

being in any case a request for the transfer of the prisoner to a participating State or to another Territory to be dealt with according to law, the Attorney-General shall either refuse to consent, or consent, to the transfer and shall give to the

Attorney-General of the participating State, the Attorney-General of the Commonwealth or to the Minister, as the case may be, written notice of the refusal or consent.

Where the Minister receives a written request made by a prisoner for the transfer of the prisoner to a participating State or to another Territory to be dealt with according to law, the Minister shall, subject to subsection (3), refer the written request to the

Attorney-General.

A request made by a prisoner for transfer to a participating

State or to another Territory need not be referred by the Minister to the Attorney-General if it is made within 12 months after a similar request made by the prisoner.