Interstate Transfer (Community-based Sentences) Act 2009

Interstate Transfer (Community-based Sentences) Act 2009

This Act may be cited as the Interstate Transfer (Community-based Sentences) Act 2009.

This Act commences on a day to be proclaimed.

In this Act, unless the contrary intention appears – community-based sentence means – a community service order within the meaning of the Sentencing Act 1997; or a probation order within the meaning of the Sentencing Act 1997; or a community correction order within the meaning of the Sentencing Act 1997; or a sentence, imposed by a court of this State, another State or a Territory, that is a member of a class of sentences prescribed by regulations made under this Act; or a sentence, imposed by a court of another State or a Territory, that corresponds, or substantially corresponds, to – an order referred to in paragraph (a), (b) or (ba); a sentence of a class prescribed by regulations made for the purposes of paragraph (c); corresponding authority means a person or body with powers, under a corresponding law of another State or a Territory, that correspond, or substantially correspond, to those of the Minister under Parts 3 and 4; corresponding law means a law, of another State or a Territory, that – corresponds, or substantially corresponds, to this Act; or is declared to be a corresponding law under subsection (2); corresponding Minister, in relation to an interstate jurisdiction, means the person who has powers under the corresponding law of that jurisdiction that correspond to the powers of the Minister under this Act;Director, Community Corrections means the person appointed under the State Service Act 2000 to manage probation officers working on community corrections programs under section 88 of the Corrections Act 1997; interstate authority for an interstate jurisdiction is the entity that is the local authority for the jurisdiction under the corresponding law of the jurisdiction; interstate jurisdiction means a participating jurisdiction other than this jurisdiction; interstate law enforcement officer, in relation to an interstate jurisdiction, means a local law enforcement officer within the meaning of the corresponding law of that jurisdiction; interstate offender means an offender who is subject to an interstate sentence; interstate sentence means a community-based sentence in force in an interstate jurisdiction; interstate travel permit means an interstate travel permit issued under section 13B or an interstate travel permit (however described) issued under the corresponding law of another State or a Territory; jurisdiction means a State or Territory of the Commonwealth; local authority for this jurisdiction is the Director of Corrective Services appointed under the Corrections Act 1997 or such other person as may be prescribed; local law enforcement officer means a correctional officer, or probation officer, within the meaning of the Corrections Act 1997, or a police officer; local offender means an offender who is subject to a Tasmanian community-based sentence; local sentence means a community-based sentence in force in this jurisdiction;Ministerial arrangements means arrangements referred to in section 13A; offender, in relation to a community-based sentence, means the person on whom the sentence was imposed; originating jurisdiction, in relation to a community-based sentence, means the jurisdiction in which the sentence was originally imposed; participating jurisdiction means this jurisdiction or a State or Territory of the Commonwealth declared by the regulations to be a participating jurisdiction; register means the register established under section 5;Registrar means the Administrator of the Magistrates Court, within the meaning of that expression in the Magistrates Court Act 1987; sentence means an order, decision or other sentence (however described) and includes part of a sentence; serve, in relation to a sentence, includes – to comply with or satisfy the sentence; and to do anything else in accordance with the sentence; this jurisdiction means Tasmania; transfer criteria means the criteria specified in section 6(1).

The Minister, by notice, may declare a law of another State or a Territory to be a corresponding law for the purposes of this Act.

A declaration may be made under subsection (2) whether or not the law specified in the declaration corresponds, or substantially corresponds, to this Act.

This Act does not apply in relation to a sentence that was imposed by a court in this State, another State or a Territory, on a person who was not an adult at the time he or she committed the offence in relation to which the sentence was imposed.

This Act does not apply to – a parole order within the meaning of section 3 of the Parole Orders (Transfer) Act 1983; or a sentence to the extent that it imposes a fine or other financial penalty, however described; or a sentence to the extent that it requires the offender to make a specific act of reparation to a specific person who has been caused harm or loss by the offender.

The Registrar must establish and maintain, for the purposes of this Act, a register of sentences.

The register is to consist of 2 parts.

One part of the register is to consist of sentences registered under Part 4.

The other part of the register is to consist of entries made under section 13(2) in relation to sentences that were in force in this State but which have subsequently become registered under a corresponding law pursuant to a request under section 8.

Subject to this Act, the register may be in a form determined by the Registrar.

In this Act, the transfer criteria in relation to a community-based sentence are – whether a sentence that corresponds to the sentence could be made in the State (including this State) or Territory in which it is proposed to register the sentence; and the welfare of the offender; and the administration of justice in this State, another State or a Territory; and the protection of the community in this State, another State or a Territory; and whether the offender can comply with the sentence in the State (including this State) or Territory in which it is proposed to register the sentence; and whether the sentence can be administered safely, efficiently and effectively; and any other matters that are prescribed by regulations made under this Act.

In making a decision under this Act, the Minister may have regard to any reports from persons who are parole, prison, or correctional services authorities – in this State; or in another State or a Territory in relation to which a law has been declared to be a corresponding law.

The Minister may send to a corresponding authority reports from persons referred to in subsection (2), so as to assist the corresponding authority to form an opinion or to exercise a discretion under a corresponding law.

An offender may, in writing addressed to the Minister, request that a community-based sentence in relation to the offender that is in force under a law of this State be transferred to another State or a Territory.

The Minister must agree, or refuse to agree, to a request received under subsection (1) from an offender.

In deciding whether to agree or refuse to agree under subsection (2), the Minister – must have regard to the transfer criteria; and may have regard to any other matter or information that the Minister thinks fit, including any matter that has arisen since the request to which the decision relates was made.

The Minister may not agree to a request received under subsection (1) from an offender unless the Minister is satisfied that it has been explained to the offender that, if the community-based sentence in relation to the offender is registered in another State or a Territory under a corresponding law – the offender will be bound by the requirements of the law of the other State or the Territory; and a breach of the sentence may result in the offender being resentenced in the other State or the Territory; and the other consequences of a breach of the sentence in the other State or the Territory (in particular the penalties that may be imposed for the breach) may be different from the consequences of a breach of the sentence in this State.

The Minister must cause to be served on the offender from whom a request was received under subsection (1) notice of – the decision of the Minister under subsection (2) in relation to the request; and if the Minister decided not to agree with the request, his or her reasons for not agreeing.

The Minister may request the corresponding authority of another State or a Territory to register a community-based sentence that is in force under a law of this State.

A request under subsection (1) may be accompanied by any information or documents that are required under the corresponding law or that the Minister thinks fit.

The Minister must not make a request under subsection (1) to the corresponding authority of another State or a Territory in relation to a community-based sentence unless – the Minister has agreed under section 7 to a request from the offender that the sentence be transferred to that State or Territory and is satisfied that the offender consents to the registration of the sentence in that State or Territory; and the Minister is satisfied that there is no application for appeal or review in relation to the sentence that has not been finally determined.

If the Minister makes under section 8(1) a request to a corresponding authority in relation to a community-based sentence, the Minister may, at the request of the corresponding authority or on the Minister's own initiative, give the authority further information about the sentence or the offender.

If a corresponding authority – agrees to a request made to the authority under section 8(1) to register a community-based sentence; and makes the agreement subject to conditions (in this section referred to as "preconditions") being satisfied by the offender before the sentence is registered – the Minister must decide whether to agree to the registration of the sentence being subject to those preconditions being satisfied.

Before making a decision under subsection (1) in relation to a sentence, the Minister must – consult with the offender; and consider the welfare of the offender.

If the Minister does not agree to the registration of the sentence being subject to the preconditions specified by the corresponding authority being satisfied, the Minister must – cause notice to be served on the offender; and notify the corresponding authority – that the Minister does not agree, and set out the Minister's reasons for disagreeing.

An offender may, before a community-based sentence is registered in another State or a Territory, provide to the Minister a notice, in a form approved by the Minister, to the effect that the offender no longer consents to the registration of the sentence in the other State, or the Territory, specified in the notice.

As soon as practicable after a notice is provided to the Minister under subsection (1), the Minister must forward the notice to the relevant corresponding authority.