New South Wales: Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes (Administration of Sentences) Act 1999 No 93 An Act to consolidate and amend the law with respect to the administration of certain sentences; and for other purposes. Part 1 Preliminary Introductory note— This Part contains machinery provisions, including a statement of the objects of the Act and a provision that defines various words and expressions that are used in the Act. 1 Name of Act This Act is the Crimes (Administration of Sentences) Act 1999. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 2A Objects of Act (1) This Act has the following objects— (a) to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment, (b) to ensure that other offenders are kept under supervision in a safe, secure and humane manner, (c) to ensure that the safety of persons having the custody or supervision of offenders is not endangered, (d) to provide for the rehabilitation of offenders with a view to their reintegration into the general community. (2) In the pursuit of these objects, due regard must be had to the interests of victims of the offences committed by offenders. (3) Nothing in this section gives rise to any civil cause of action or can be taken into account in any civil proceedings. 3 Interpretation (1) In this Act— audio link means facilities (including telephone) that enable audio communication between persons at different places. audio visual link means facilities (including closed-circuit television) that enable audio and visual communication between persons at different places. Chief Executive, Justice Health means the person for the time being holding office or acting as the chief executive of the Justice Health and Forensic Mental Health Network under the Health Services Act 1997. Commissioner means the Commissioner of Corrective Services, Department of Justice. Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth. Commonwealth post sentence terrorism inmate means an inmate of a kind referred to in section 4 (1) (c3). community correction order means an order in force under section 8 of the Crimes (Sentencing Procedure) Act 1999 or section 79 of the Fines Act 1996. Community Corrections means the Community Corrections Division, Department of Justice. community corrections officer means a person who is employed within Corrective Services NSW as a community corrections officer, as referred to in section 231. community service work means any service or activity approved by the Minister, and includes participation in personal development, educational or other programs. compulsory drug treatment detention means detention in accordance with Part 4A. compulsory drug treatment order means an order in force under section 18C of the Drug Court Act 1998. conditional release order means an order in force under section 9 of the Crimes (Sentencing Procedure) Act 1999. convicted inmate means a person referred to in section 4 (1) (a), (b), (c), (c1), (d1) or (d2). correctional centre means— (a) any premises declared to be a correctional centre by a proclamation in force under section 225, including any juvenile correctional centre declared under section 225A, and (b) any police station or court cell complex in which an offender is held in custody in accordance with this or any other Act. correctional complex means any premises declared to be a correctional complex by virtue of a proclamation in force under section 224. correctional officer means a person who is employed within Corrective Services NSW as a correctional officer, as referred to in section 231. Corrective Services NSW means that part of the Department of Justice comprising the group of staff who are principally involved in the administration of this Act. court means— (a) the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission, the District Court or the Local Court, or (b) any other court that, or person who, exercises criminal jurisdiction, but, subject to the Children (Criminal Proceedings) Act 1987, does not include the Children's Court or any other court that, or person who, exercises the jurisdiction of the Children's Court. drug means— (a) a prohibited drug or prohibited plant within the meaning of the Drug Misuse and Trafficking Act 1985, or (b) any other substance declared by the regulations to be a drug for the purposes of this Act. Drug Court means the Drug Court of New South Wales constituted under the Drug Court Act 1998. exercise a function includes perform a duty. full-time detention means detention in a correctional centre. function includes a power, authority or duty. governor, in relation to a correctional centre, means the governor of the correctional centre and includes any person who is for the time being in charge of the correctional centre or any person (however described) who is authorised by the Commissioner to be in charge of the correctional centre. inmate means a person to whom Part 2 applies. intensive correction means intensive correction in the community pursuant to an intensive correction order. intensive correction order means an order in force under section 7 of the Crimes (Sentencing Procedure) Act 1999. interstate leave permit means a permit referred to in section 29. judicially qualified person means— (a) any Judge or retired Judge of a New South Wales court or the Federal Court, or (b) any Magistrate or retired Magistrate, or (c) any person qualified to be appointed as a Judge of a New South Wales court. Justice Health means the statutory health corporation named the Justice Health and Forensic Mental Health Network constituted under the Health Services Act 1997. juvenile correctional centre means any correctional centre declared to be a juvenile correctional centre by a proclamation in force under section 225A. law enforcement agency means any of the following— (a) the Police Service, or the police force of another State or a Territory, (b) the New South Wales Crime Commission, (c) the Australian Federal Police, (d) the Australian Crime Commission, (e) the Director of Public Prosecutions of New South Wales, of another State or a Territory or of the Commonwealth, (f) the Law Enforcement Conduct Commission, (g) the Independent Commission Against Corruption, (h) the Department of Justice, (i) a person or body prescribed by the regulations for the purposes of this definition. local leave order means an order referred to in section 25. local leave permit means a permit referred to in section 26. managed correctional centre means a correctional centre that is for the time being managed under a management agreement. management agreement means an agreement referred to in section 238. management company means a corporation with which the Commissioner has entered into a management agreement under which the corporation manages one or more correctional centres. medical officer, in relation to a correctional centre, means a medical officer appointed for the correctional centre as referred to in section 236C. mobile phone includes any device that may be used, in whole or in part, for the purpose of sending or receiving voice or other data over a mobile telephone network, whether or not it may be used for any other purpose. non-invasive sample means any of the following samples of human biological material— (a) a sample of breath, taken by breath test, breath analysis or otherwise, (b) a sample of urine, (c) a sample of faeces, (d) a sample of saliva taken by buccal swab, (e) a sample of nail, (f) a sample of hair other than pubic hair, (g) a sample of sweat taken by swab or washing from any external part of the body other than— (i) the genital or anal area or the buttocks, or (ii) the breasts of a female or a transgender person who identifies as a female. non-parole period has the same meaning as it has in the Crimes (Sentencing Procedure) Act 1999. NSW offence means an offence against a law of the State. NSW post sentence inmate means— (a) an inmate of a kind referred to in section 4 (1) (c1), or (b) an inmate of a kind referred to in section 4 (1) (c2). offender, where occurring elsewhere than in Part 3, 4A, 4B, 4C or 5, means a person who is subject to a sentence of imprisonment, and includes an inmate within the meaning of Part 2 and an offender within the meaning of Part 3, 4A, 4B or 4C. offender submission means a submission made to the Review Council or the Parole Authority, for the purposes of this Act, by an inmate of a correctional centre. Official Visitor means an Official Visitor appointed under section 228. Parole Authority means the State Parole Authority constituted by section 183. parole eligibility date, in relation to an offender, means— (a) subject to paragraph (b), the date on which the offender first becomes eligible for release on parole, or (b) if the offender is returned to custody while on release on parole or following revocation of parole, the date occurring 12 months after the date on which the offender is so returned. parole order means an order in force under section 138, 141, 149, 150, 154A, 158, 159 or 160 of this Act. parole revocation order means an order made under Division 3 of Part 7 revoking a parole order. re-integration home detention order means an order made under section 124D. residential facility means any premises declared to be a residential facility by a proclamation in force under section 236L. Review Council means the Serious Offenders Review Council constituted by section 195. sentence means a sentence of imprisonment. sentencing court, in relation to an offender undergoing a penalty imposed by a court, means the court by which the penalty was imposed. serious offender means— (a) an offender who is serving a sentence for life, or (b) an offender who is serving a sentence for which a non-parole period has been set in accordance with Schedule 1 to the Crimes (Sentencing Procedure) Act 1999, or (c) an offender who is serving a sentence (or one of a series of sentences of imprisonment) where the term of the sentence (or the combined terms of all of the sentences in the series) is such that the offender will not become eligible for release from custody, including release on parole, until he or she has spent at least 12 years in custody, or (d) an offender who is for the time being required to be managed as a serious offender in accordance with a decision of the sentencing court, the Parole Authority or the Commissioner, or (e) an offender who has been convicted of murder and who is subject to a sentence in respect of the conviction, or (e1) a Commonwealth post sentence terrorism inmate, or (e2) a NSW post sentence inmate, or (f) an offender who belongs to a class of persons prescribed by the regulations to be serious offenders for the purposes of this definition. statutory parole order—see section 158. submanagement agreement means an agreement referred to in section 239. submanagement company means a corporation with which a management company has entered into a submanagement agreement under which the corporation manages one or more correctional centres on behalf of the management company. transitional centre means premises managed or approved by the Commissioner for the purpose of accommodating certain inmates prior to their release from custody. victim of a serious offender means a person whose name is recorded in the Victims Register as a victim of that offender. Victims Register means the register kept under Part 16 in which certain victims of offenders are recorded. victim submission means a submission made to the Review Council or the Parole Authority, for the purposes of this Act, by a victim of a serious offender. Visiting Magistrate means a Magistrate exercising the functions of a Visiting Magistrate, as referred to in section 227. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) In this Act— (a) a reference to a sentence to which an offender is subject includes a reference to a sentence that has been imposed but is yet to commence, and (b) a reference to the term of a sentence is, if the term is varied under this or any other Act, a reference to the term as so varied, and (c) a reference to a non-parole period of a sentence is, if the period is varied under this or any other Act, a reference to the period as so varied, and (d) a reference to a court that has sentenced an offender, made an order or given a direction includes a reference to the same court differently constituted, and (e) a reference to a condition that a person not commit any offence is a reference to any offence whether committed in New South Wales or in any other State or Territory, and (f) a reference to an obligation that a person not commit any offence is a reference to any offence whether committed in New South Wales or in any other State or Territory. (3) Notes in the text of this Act do not form part of this Act. Part 2 Imprisonment by way of full-time detention Introductory note— This Part applies to those offenders who have been sentenced to imprisonment by way of full-time detention (referred to as inmates) and to other persons who are required to be held in custody. It deals with the following matters— (a) the general obligations of inmates (Division 1), (b) the circumstances in which an inmate can be kept in segregated or protective custody (Division 2), (c) the circumstances in which an inmate may be transferred to another correctional centre, or to hospital, or given leave of absence (Division 3), (d) the management of juvenile inmates (Division 3A), (e) the conveyance and detention of prisoners received from the Australian Capital Territory (Division 4), (f) the conveyance and detention of prisoners received from Norfolk Island (Division 5), (g) the prescription of correctional centre offences, the penalties they attract and the procedure for dealing with both correctional centre offences and other offences (Division 6), (h) the procedure to be followed in determining whether a serious offender is to be given a low security classification permitting unescorted leave of absence from a correctional centre (Division 7), (i) other miscellaneous matters (Division 8). Division 1 Preliminary 4 Application of Part (1) This Part applies to— (a) any person the subject of a warrant under section 62 of the Crimes (Sentencing Procedure) Act 1999 by which a court has committed the person to a correctional centre to serve a sentence or the remainder of a sentence by way of full-time detention, other than a person who is on release on parole, and (b) (Repealed) (c) any person the subject of a warrant under section 181 of this Act by which the Parole Authority has committed the person to a correctional centre to serve the remainder of a sentence by way of full-time detention, and (c1) any person the subject of a warrant under section 20 of the Crimes (High Risk Offenders) Act 2006 by which the Supreme Court has committed the person to a correctional centre pursuant to a continuing detention order, interim detention order or emergency detention order under that Act, and (c2) any person the subject of a warrant under section 49 of the Terrorism (High Risk Offenders) Act 2017 by which the Supreme Court has committed the person to a correctional centre pursuant to a continuing detention order, interim detention order or emergency detention order under that Act, and (c3) any person the subject of a continuing detention order or interim detention order in force under Division 105A of Part 5.3 of the Commonwealth Criminal Code who, under an arrangement with the State under section 105A.21 of that Code, is detained in a correctional centre, and (d) any person the subject of a warrant or order by which a court has committed the person to a correctional centre on remand in connection with proceedings for an offence committed, or alleged to have been committed, by the person, and (d1) any person the subject of an order under section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987 by which the Children's Court has committed the person to the control of the Minister administering this Act, and (d2) any person who is the subject of a warrant under section 170 (1) (a) of the Defence Force Discipline Act 1982 of the Commonwealth by which an authorised officer under that Act has committed the person to a correctional centre pursuant to a punishment of imprisonment imposed under that Act, and (d3) any person who is a detainee within the meaning of the Migration Act 1958 of the Commonwealth and who is held in a correctional centre as referred to in paragraph (b) (ii) of the definition of immigration detention in section 5 of that Act, and (e) any person the subject of a warrant or order by which a court or other competent authority has committed the person to a correctional centre otherwise than as referred to above, and (f) any person in custody who is given into the keeping of a correctional officer under section 250, and (g) any person whose release from custody has been delayed in accordance with section 8(2)(b) or 8A. (2) This Part does not apply to a person who is detained in a correctional centre in accordance with Part 16 of the Law Enforcement (Powers and Responsibilities) Act 2002. (3) In this Part, inmate means a person to whom this Part applies and convicted inmate means a person referred to in subsection (1) (a), (c), (c1), (d1) or (d2). 5 Obligations of inmate The obligations of an inmate while serving a sentence by way of full-time detention are— (a) to comply with such requirements of this Part and the regulations as apply to the inmate, and (b) to comply with the requirements of any directions given to the inmate under this Part. 6 Work performed by inmates (1) The governor of a correctional centre may make an order directing any convicted inmate in the correctional centre to carry out such work as the governor considers suitable. (2) The governor may direct a convicted inmate, or such classes or groups of convicted inmates as the Commissioner may from time to time determine, to carry out community service work, or any work for Corrective Services NSW or a public or local authority— (a) within the correctional centre in which the inmate is imprisoned, or (b) within the correctional complex in which the inmate is imprisoned but outside the correctional centre, or (c) outside the correctional complex in which the inmate is imprisoned. (3) An inmate is not required to carry out work that the inmate is not capable of carrying out. 7 Payments to inmates (1) The Commissioner may, out of money provided by Parliament or otherwise legally available, make payments to inmates for any reason (including for work done). (2) Payment for work done by inmates of a managed correctional centre may not be made by the management company for the correctional centre otherwise than in accordance with a scheme approved by the Commissioner. (3) The payment of an inmate by the Commissioner under this section for work done (whether or not at the direction of the Commissioner) does not constitute employment of, or a contract of service with, the inmate by the Crown or any other person, and accordingly an inmate who undertakes any such paid work is not— (a) a worker for the purposes of the Workers Compensation Act 1987, the Workplace Injury Management and Workers Compensation Act 1998, the Annual Holidays Act 1944 or the Long Service Leave Act 1955, or (b) an employee (however described) for the purposes of the Industrial Relations Act 1996 or any Act or other law. 7A Deductions from remuneration earned by inmates on external work release program (1) Any remuneration earned by an inmate as a participant in an external work release program is to be paid by the employer to the Commissioner on behalf of the inmate. (2) The Commissioner may deduct from such remuneration an amount, calculated in accordance with the directions of the Minister, to contribute towards— (a) the costs of administering the external work release program, and (b) travel fares and other expenses relating to the inmate's participation in the external work release program, and (c) the costs of the inmate's imprisonment during the period in which such remuneration is earned. (3) The Commissioner must cause a record to be kept of remuneration received and deductions made under this section. (4) In this section— external work release program means a program provided under this Act which enables an eligible inmate to work in paid employment in the community during the inmate's sentence, in accordance with a local leave permit. 8 Release from custody (1) Unless sooner released under a re-integration home detention order or on parole, an inmate who is serving a sentence by way of full-time detention (the current sentence) is to be released from custody on the day the sentence expires, as determined in accordance with Division 1 of Part 4 of the Crimes (Sentencing Procedure) Act 1999 but subject to any variation of the term of that sentence under this or any other Act. (2) An inmate may be released from custody— (a) at any time on the day the current sentence expires, or (b) if the current sentence expires on a day that is not a working day and the inmate requests it—at any time during the next working day. (2A), (2B) (Repealed) (3) This section does not apply to an inmate who, on the day the current sentence expires, is subject to another sentence that is being served by way of full-time detention— (a) where the other sentence commenced before, but will not end until after, the expiry of the current sentence, or (b) where the other sentence commences immediately after the expiry of the current sentence. (4) In this section— working day means a day that is not— (a) a Saturday or Sunday, or (b) a public holiday or a bank holiday. 8A Delayed release from custody (1) An inmate may be released from custody at any time during the period of 4 days after the inmate's release date if— (a) there is, in the opinion of the Commissioner, a good reason to delay the release, and Example— a lack of transport (b) the inmate requests or consents to the delay. (2) In this section— release date, in relation to an inmate, means the day on which the inmate is authorised, under this Act or another Act or law, to be released from custody. Division 2 Segregated and protective custody 9 Definitions In this Division— protective custody direction means a direction referred to in section 11. segregated custody direction means a direction referred to in section 10. suspension direction means a direction referred to in section 20 (1) (a). 10 Segregated custody of inmates (1) The Commissioner may direct that an inmate be held in segregated custody if of the opinion that such segregation is necessary to secure— (a) the personal safety of any other person, or (b) the security of a correctional centre, or (c) good order and discipline within a correctional centre. (2) The governor of a correctional centre may exercise the Commissioner's functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the segregated custody direction was given. (3) A segregated custody direction given by the governor of a correctional centre does not apply in relation to any other correctional centre. (4) Subsection (3) is subject to section 15. 11 Protective custody of inmates (1) The Commissioner may direct that an inmate be held in protective custody if of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to the personal safety of the inmate. (2) The Commissioner may also direct that an inmate be held in protective custody if the inmate requests the Commissioner in writing to do so. (3) The governor of a correctional centre may exercise the Commissioner's functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the protective custody direction was given. (4) A protective custody direction given by the governor of a correctional centre does not apply in relation to any other correctional centre. (5) Subsection (4) is subject to section 15. 12 Effect of segregated or protective custody direction (1) An inmate subject to a segregated or protective custody direction is to be detained— (a) in isolation from all other inmates, or (b) in association only with such other inmates as the Commissioner (or the governor of the correctional centre in the exercise of the Commissioner's functions under section 10 or 11) may determine. (2) An inmate who is held in segregated or protective custody— (a) is not to suffer any reduction of diet, and (b) is not to be deprived of any rights or privileges other than those determined by the Commissioner (or the governor in the exercise of the Commissioner's functions under section 10 or 11), either generally or in a particular case, and other than those the deprivation of which is necessarily incidental to the holding of the inmate in segregated or protective custody. 13 Form of direction A segregated or protective custody direction must be in writing and must include the grounds on which it is given. 14 Information concerning review of segregated or protective custody direction As soon as practicable after an inmate is directed— (a) to be held in segregated custody under section 10, or (b) to be held in protective custody under section 11 (other than at the inmate's request), the governor of the correctional centre is to provide the inmate with information concerning the inmate's rights to a review of the segregated or protective custody direction. 15 Transfer of inmate held in segregated or protective custody (1) If an inmate held in segregated or protective custody under a segregated or protective custody direction given by the governor of a correctional centre is transferred to another correctional centre, the segregated or protective custody direction applies— (a) in relation to the correctional centre to which the inmate is transferred (the receiving correctional centre), and (b) in relation to the conveyance of the inmate to the receiving correctional centre, including custody of the inmate in any correctional centre in which the inmate is held during the course of being conveyed to the receiving correctional centre. (2) Within 72 hours after the arrival of the inmate at the receiving correctional centre, the governor of the receiving correctional centre must review the segregated or protective custody direction, having regard to the grounds referred to in section 10 or 11, and give one of the following directions— (a) a direction revoking the segregated or protective custody direction, (b) a direction confirming the segregated or protective custody direction, (c) a direction confirming the segregated or protective custody direction but amending its terms. (3) A direction given under subsection (2) has effect according to its terms. (4) A segregated or protective custody direction that is subject to a direction under subsection (2) (b) or (c) is, on and after the giving of that direction, taken to be a segregated or protective custody direction given by the governor of the receiving correctional centre. (5) A direction by the governor of a receiving correctional centre revoking, confirming or amending a segregated or protective custody direction has effect even though it is given outside the period during which it is required to be given under this section. 16 Review of segregated or protective custody direction by Commissioner (1) The governor of a correctional centre where an inmate is held in segregated or protective custody must submit a report about the segregated or protective custody direction to the Commissioner within 14 days after the date on which the direction is given (the relevant date), regardless of whether the segregated or protective custody direction was given by the Commissioner or by the governor of a correctional centre. (2) Within 7 days after receiving the report, the Commissioner must review the segregated or protective custody direction and give one of the following directions— (a) a direction revoking the segregated or protective custody direction, (b) a direction confirming the segregated or protective custody direction, (c) a direction confirming the segregated or protective custody direction but amending its terms. (3) If the direction is confirmed, the governor of the correctional centre where the inmate is held in segregated or protective custody must submit a further report about the direction to the Commissioner within 3 months after the relevant date, and within each subsequent period of 3 months after that period. (4) Within 7 days after each occasion on which the Commissioner receives any such further report, the Commissioner must review the segregated or protective custody direction and give one of the directions referred to in subsection (2) (a)–(c). (5) The confirmation of a segregated or protective custody direction by the governor of a correctional centre under section 15, or by the Review Council under section 22, does not affect the requirements for reporting about and reviewing a segregated or protective custody direction under this section. (6) A direction by the Commissioner revoking, confirming or amending a segregated or protective custody direction has effect even though it is given outside the period during which it is required to be given under this section. (7) In this section— report, in relation to a segregated or protective custody direction, means a report recommending whether or not the segregated or protective custody direction should be revoked, confirmed or amended. 17 Revocation of segregated or protective custody direction (1) A segregated or protective custody direction remains in force until it is revoked. (2) The Commissioner may, at any time, revoke a segregated or protective custody direction or amend its terms. (3) The Commissioner must revoke a protective custody direction given at the request of an inmate if the inmate requests the Commissioner in writing to revoke it. (4) The governor of a correctional centre may exercise the Commissioner's functions under this section in relation to the correctional centre. 18 Report to Minister on segregated or protective custody direction (1) As soon as practicable after confirming a segregated or protective custody direction, the Commissioner must give written notice of that fact to the Minister, giving reasons for the confirmation direction, if— (a) the confirmation direction will result in the inmate being subject to a total continuous period of segregated or protective custody exceeding 6 months, or (b) the inmate has already been subject to a total continuous period of segregated or protective custody exceeding 6 months. (2) This section does not apply to a direction confirming a protective custody direction that was given at the request of an inmate. 19 Review of segregated or protective custody direction by Review Council (1) An inmate whose total continuous period of segregated or protective custody exceeds 14 days may apply to the Review Council for a review of the segregated or protective custody direction under which the inmate is held in segregated or protective custody. (2) The application is to be in writing and is to include the inmate's reasons for making the application. (3) The Review Council must review the direction unless subsection (4) applies. (4) The Review Council may refuse to review the direction if— (a) the application does not, in the opinion of the Review Council, disclose substantial grounds for a review, or (b) the Review Council has previously determined a review of the same direction under this Division and the application does not, in the opinion of the Review Council, disclose substantially different grounds for review. (5) The Review Council may not refuse to review a direction under subsection (4) if a period of more than 3 months has elapsed since the Review Council determined a review of the segregated or protective custody direction. (6) This section applies regardless of whether the relevant segregated or protective custody direction was given by the Commissioner or by the governor of a correctional centre. 20 Suspension directions by Review Council (1) The Chairperson of the Review Council may give a direction for— (a) the suspension of an inmate's segregated or protective custody direction, or (b) the transfer of an inmate to a different correctional centre. (2) A suspension direction may be given at any time after an application for a review is made and before it is determined. (3) While a suspension direction is in force, the inmate is not to be held in segregated or protective custody unless a new segregated or protective custody direction is given. (4) The Chairperson may at any time vary or revoke a suspension direction. (5) A suspension direction does not revoke a segregated or protective custody direction. (6) A direction for the transfer of an inmate to a different correctional centre may be given— (a) if the Chairperson considers that the inmate's removal would facilitate the review of the segregated or protective custody direction, or (b) for any other reason that the Chairperson thinks fit. (7) The determination of a review of a segregated or protective custody direction by the Review Council under section 22 revokes any suspension direction applying to the segregated or protective custody direction. 21 Procedure for review of segregated or protective custody direction by Review Council (1) In determining any matter relating to the segregated or protective custody of an inmate, the Review Council is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate. (2) The Review Council must cause notice of any hearing in relation to a review to be given to the inmate who applied for the review. (3) If the inmate so wishes, the Review Council must allow the inmate to be present, and to be heard, at the hearing. (4) The inmate may be represented by an Australian legal practitioner chosen by the inmate or, if the Review Council so approves, by some other person chosen by the inmate. (5) The Commissioner or the governor of a correctional centre (or both) may be represented by an Australian legal practitioner or by some other person. (6) Division 2 of Part 9 applies to the conduct of a review by the Review Council under this Division. 22 Determination of review by Review Council (1) In reviewing a segregated or protective custody direction, the Review Council must take the following matters into account— (a) whether the direction was given or reviewed in accordance with this Division, (b) whether the direction was reasonable in the circumstances, (c) whether the direction was necessary to secure the personal safety of the inmate or any other person, (d) the security of, and the preservation of good order and discipline within, the relevant correctional centre, (e) the interests of the public. (2) In determining an application for review, the Review Council may revoke, confirm or amend the segregated or protective custody direction to which the application relates. Division 3 Transfer and leave of absence Subdivision 1 Transfer and leave of absence within New South Wales 23 Transfers from one correctional centre to another (1) The Commissioner may order that an inmate be transferred from one correctional centre to another— (a) because the correctional centre is being or is about to be repaired, altered, enlarged or rebuilt, or (b) because of an outbreak or threatened outbreak in the correctional centre of an infectious disease, or (c) because the correctional centre has ceased or is about to cease to be a correctional centre, or (d) because the correctional centre is overcrowded, or (e) because inmates in the correctional centre need to be separated in compliance with the requirements of the regulations, or (f) because of any other reason specified in the order. (2) In relation to an inmate who is under the age of 18 years, such an order may not be made on a ground referred to in subsection (1) (d), (e) or (f) so as to transfer the inmate from a juvenile correctional centre to a correctional centre that is not a juvenile correctional centre. Note— Such an inmate may only be transferred to such a correctional centre in accordance with section 41C (2). 24 Transfers to hospital (1) The Commissioner may order that an inmate be transferred— (a) to a hospital (including a hospital that is or forms part of a correctional centre or correctional complex), or (b) to some other place specified in the order, if of the opinion that it is necessary or desirable for the inmate to receive medical attention there. (2) While the inmate is at the hospital or other place, the Commissioner may direct a correctional officer to take charge of the inmate. (3) An inmate who is transferred to a hospital may be discharged from the hospital on the certificate of the medical superintendent or other person in charge of the hospital. (4) On being discharged from the hospital or other place, the inmate must immediately be returned— (a) to the correctional centre from which the inmate was transferred, or (b) to such other correctional centre as the Commissioner may direct. (5) The Commissioner's functions under this section may be exercised in relation to a correctional centre by the governor of the correctional centre. 25 Local leave orders (1) The Commissioner may make an order (a local leave order) requiring an inmate to be taken from a correctional centre to any place in the State— (a) on such conditions and for such period as may be specified in the order, and (b) for such purpose as the Commissioner considers appropriate. (2) Without limiting subsection (1) (b), the purposes for which a local leave order may be made include the following— (a) enabling an inmate to be interviewed by a police officer, or by an officer of a law enforcement agency, in connection with the commission of an offence in a correctional centre, whether or not the offence was committed or is suspected of having been committed by the inmate, (b) enabling an inmate to assist in the administration of justice. (3) The conditions to which a local leave order is subject must include such conditions as are required by the regulations to be included in such an order. (4) Subject to subsection (3), the Commissioner may, at any time— (a) vary or omit any condition of a local leave order, or (b) substitute or add new conditions to a local leave order, or (c) revoke a local leave order. 26 Local leave permits (1) The Commissioner may issue a permit (a local leave permit) allowing an inmate to be absent from a correctional centre— (a) on such conditions and for such period as may be specified in the permit, and (b) for such purpose as the Commissioner considers appropriate. (2) Without limiting subsection (1) (b), the purposes for which a local leave permit may be issued include the following— (a) enabling an inmate to be interviewed by a police officer, or by an officer of a law enforcement agency, in connection with the commission of an offence in a correctional centre, whether or not the offence was committed or is suspected of having been committed by the inmate, (b) enabling an inmate to assist in the administration of justice, (c) enabling an inmate to attend a funeral service or burial of a member of the inmate's immediate or extended family, (d) enabling an inmate to be present at an occasion of special significance to the inmate's immediate or extended family, (e) enabling an inmate to visit any member of the inmate's immediate family who is suffering serious illness or disability, (f) enabling an inmate to apply for work or attend an interview with an employer or prospective employer, (g) enabling an inmate to attend a place of education or training in connection with any course of education or training, (h) enabling an inmate to engage in employment specified in the permit, (i) enabling an inmate to have weekend leave, (j) enabling an inmate to reside at a transitional centre, (k) enabling an inmate to attend tuition or perform work in connection with a course of education or training being undertaken by the inmate, (l) in the case of a female inmate who is the mother of a young child or young children, enabling the inmate to serve her sentence with her child or children in an appropriate environment. (3) The conditions to which a local leave permit is subject must include such conditions as are required by the regulations to be included in such a permit. (4) Subject to subsection (3), the Commissioner may, at any time— (a) vary or omit any condition of a local leave permit, or (b) substitute or add new conditions to a local leave permit, or (c) revoke a local leave permit. (5) For the purposes of this section, member of the inmate's immediate family includes a de facto partner of the inmate. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. 26A Conditions of leave as to non-association and place restriction (1) The conditions to which a local leave permit is subject may include either or both of the following— (a) provisions prohibiting or restricting the inmate from associating with a specified person, (b) provisions prohibiting or restricting the inmate from frequenting or visiting a specified place or district. (2) A condition referred to in subsection (1) (a) or (b) is suspended while the inmate is in lawful custody (otherwise than while unescorted as referred to in section 38 (2) (a)). (3) An inmate does not contravene a prohibition or restriction as to his or her association with a specified person— (a) if the inmate does so in compliance with an order of a court, or (b) if, having associated with the person unintentionally, the inmate immediately terminates the association. (4) An inmate does not contravene a requirement not to frequent or visit a specified place or district if the inmate does so in compliance with an order of a court. (5) In this section, associate with means— (a) to be in company with, or (b) to communicate with by any means (including post, facsimile, telephone and email). Subdivision 2 Interstate leave of absence 27 Definitions In this Subdivision— corresponding Commissioner, in relation to a participating State, means the officer responsible for the administration of correctional centres (however described) in the participating State. corresponding interstate law means a law that is declared to be a corresponding interstate law for the purposes of this Subdivision by an order published under section 28. escape, in relation to an interstate prisoner temporarily released from lawful custody, includes fail to return to lawful custody at the end of the time for which the prisoner has been released. escorted custody, in relation to an interstate prisoner, means in the custody of an interstate escort under section 30. interstate escort, in relation to a participating State, means— (a) a correctional officer (however described) or a police officer of that State, or (b) a person who is authorised to have the custody of an interstate prisoner under a permit issued in accordance with the corresponding interstate law of that State, or (c) a person who is appointed by the corresponding Commissioner of that State by an instrument in writing to be an escort for the purpose of escorting an interstate prisoner to that State. interstate prisoner means a person who is in New South Wales under the authority of a permit issued under a corresponding interstate law. participating State means any State in which a corresponding interstate law is in force. State includes the Australian Capital Territory and the Northern Territory. unescorted custody, in relation to an interstate prisoner, means leave within New South Wales in circumstances where— (a) the leave is authorised by a permit issued under a corresponding interstate law, and (b) no interstate escort has been appointed to escort the prisoner while within New South Wales, and (c) the corresponding interstate law provides that the prisoner is taken to be in the custody of the corresponding Commissioner or another official of the participating State while in New South Wales. 28 Corresponding interstate law (1) The Governor may, by order published on the NSW legislation website, declare that a law of a State other than New South Wales is a corresponding interstate law for the purposes of this Subdivision. (2) Such an order is to be made only if the Governor is satisfied that the law substantially corresponds with the provisions of this Subdivision. 29 Issue of interstate leave permit (1) The Commissioner may issue an interstate leave permit to an inmate of a correctional centre for leave to travel to and from, and remain in, a participating State for a specified period— (a) if the inmate does not have a high security classification, on any grounds that the Commissioner considers appropriate, or (b) if the inmate has a high security classification, only if the leave is for medical treatment or for some compassionate purpose. (2) In particular, the Commissioner may issue an interstate leave permit to an inmate who is an Aboriginal person if satisfied that the purpose of the leave is— (a) to enable the inmate to attend a funeral service or burial of a member of the inmate's immediate or extended family, or (b) to enable the inmate to be present at an occasion of special significance to the inmate's immediate or extended family. (3) The period specified in an interstate leave permit must not exceed 7 days. (4) An interstate leave permit is subject to such conditions (including conditions relating to the escort of the inmate) as the Commissioner specifies in the permit or as may be prescribed by the regulations. (5) The Commissioner may, by instrument in writing, appoint any correctional officer to be an escort for the purposes of this Subdivision. (6) In this section, high security classification means a classification prescribed by the regulations as a high security classification. (7) For the purposes of this section, member of the inmate's immediate family includes a de facto partner of the inmate. 30 Effect of interstate leave permit (1) If it is a condition of an interstate leave permit that an inmate be escorted to a participating State, the permit— (a) authorises the inmate concerned to be absent from the correctional centre in the custody of an escort for the purpose and period specified in the permit, and (b) authorises the escort to take and keep custody of the inmate for the purpose of escorting the inmate— (i) to the participating State (whether or not across any other State), and (ii) within the participating State, in accordance with the permit, and (c) authorises the escort to take and keep custody of the inmate for the purpose of returning the inmate to the correctional centre from which leave of absence was given. (2) If it is not a condition of an interstate leave permit that an inmate be escorted to a participating State, the permit authorises the inmate concerned to be absent from the correctional centre for the purpose and period specified in the permit. 31 Variation or revocation of interstate leave permit The Commissioner may at any time— (a) vary or omit any condition of an interstate leave permit (whether specified in the permit or prescribed by the regulations), or (b) substitute or add new conditions to an interstate leave permit, or (c) revoke an interstate leave permit. 32 Breach of interstate leave permit An inmate must not fail, without reasonable excuse, to comply with any condition of an interstate leave permit. Maximum penalty—10 penalty units. 33 Notice to participating State and transit jurisdiction On granting an interstate leave permit, the Commissioner must cause written notice of the fact that the permit has been granted, and of the period of the permit, to be given— (a) to the corresponding Commissioner and the chief officer of police of the participating State to which the inmate is to travel, and (b) to the chief officer of police of any other jurisdiction through which the inmate is to travel to reach the participating State. 34 Effect of interstate leave permit issued under corresponding interstate law A correctional officer (however described) or a police officer of a participating State who is authorised under a permit issued under a corresponding interstate law to escort a person imprisoned in that State to or through New South Wales is authorised, while in New South Wales— (a) to take and keep custody of the person for the purposes and period set out in the permit, and (b) to take and keep custody of the person for the purpose of returning the person to the participating State. 35 Arrest of escaped interstate prisoners If it appears to an interstate escort, a police officer or any other person that an interstate prisoner has escaped from lawful custody, the interstate escort, police officer or person may arrest the interstate prisoner and (in the case of an interstate prisoner in escorted custody) return the interstate prisoner to the custody of the interstate escort. 36 Return of escaped interstate prisoners to State of origin (1) An interstate prisoner— (a) who is arrested following an escape, or (b) who attempts to escape, may be taken before a Magistrate. (2) Despite the terms of any permit issued in accordance with a corresponding interstate law, a Magistrate may by warrant (a return warrant)— (a) order the return of the interstate prisoner to the participating State in which the permit was issued, and (b) order the interstate prisoner to be delivered to an interstate escort for the purpose of such a return. (3) A return warrant may be executed in accordance with its terms. (4) An interstate prisoner who is the subject of a return warrant may be held in custody as an inmate until the person is delivered into the custody of an interstate escort in accordance with that warrant, or until the expiry of a period of 14 days from the issue of the warrant, whichever first occurs. (5) A return warrant ceases to have effect if the interstate prisoner who is the subject of the warrant is not delivered into the custody of an interstate escort, in accordance with the terms of the warrant, within 14 days after the warrant is issued. 37 Liability of Crown for damage caused by inmate or escort (1) The Crown in right of the State is liable for any damage or loss sustained by any person in a participating State that is caused by the acts or omissions of an inmate or escort while in a participating State because of an interstate leave permit. (2) Nothing in this section affects any right of action the Crown may have against the inmate or escort for the damage or loss concerned. Subdivision 3 Miscellaneous 38 Absent inmates taken to be in custody (1) This section applies to an inmate who is absent from a correctional centre in any of the following circumstances— (a) while performing community service work or other work outside a correctional centre, as referred to in section 6 (2), (b) while being transferred from one correctional centre to another, as referred to in section 23 or 41C, (c) while at a hospital or other place referred to in section 24, or while being transferred between a correctional centre and such a hospital or place, (d) while absent from a correctional centre in accordance with a local leave order, (e) while absent from a correctional centre in accordance with a local leave permit, (f) while absent from a correctional centre in accordance with an interstate leave permit, (f1) while absent from a correctional centre in accordance with an approval granted under section 255A, (g) while being transferred from one part of a correctional centre to another part of the correctional centre located on separate premises. (2) An inmate who is absent from a correctional centre in any of the circumstances referred to in subsection (1) is taken to be in custody as follows— (a) if not escorted by a correctional officer, the inmate is taken to be in the custody of the governor of the correctional centre from which he or she is absent, (b) if escorted by a correctional officer employed in a correctional centre, the inmate is taken to be in the custody of the governor of the correctional centre in which the correctional officer is employed, (c) if escorted by a correctional officer not employed in a correctional centre, the inmate is taken to be in the custody of the designated officer. (3) An inmate is not taken to be absent from a correctional centre merely because the inmate is in some other part of a correctional complex of which the correctional centre forms part. (4) In this section— correctional officer includes— (a) a person employed on a temporary basis within Corrective Services NSW to perform some or all of the duties of a correctional officer, and (b) a person holding an authority under section 240 to perform escort duties. designated officer means the person for the time being holding or acting in the position within Corrective Services NSW designated by the Commissioner for the purposes of this section. 39 Powers of arrest (1) A police officer or correctional officer may, with or without a warrant, arrest an inmate— (a) who has contravened, or has manifested an intention to contravene, a condition of a local leave order, local leave permit, interstate leave permit or approval granted under section 255A, or (b) whose local leave order, local leave permit, interstate leave permit or approval granted under section 255A has been revoked, or (c) who has not returned to a correctional centre at the expiry of the period specified in a local leave order, local leave permit, interstate leave permit or approval granted under section 255A, or (d) who has escaped from custody. (2) A police officer who arrests an inmate under subsection (1)— (a) in the case of an inmate who has escaped from custody—is to take the inmate before an authorised officer to be dealt with according to law, or (b) in any other case—is to convey the inmate to the nearest appropriate correctional centre. (3) A correctional officer who arrests an inmate under subsection (1)— (a) in the case of an inmate who has escaped from custody—is to take the inmate to a police officer, or before an authorised officer to be dealt with according to law, or (b) in any other case—is to convey the inmate to the nearest appropriate correctional centre. (4) If an inmate is taken before an authorised officer under subsection (2) (a) or (3) (a), the authorised officer may, by warrant, commit the inmate to the custody of— (a) the person from whose custody the inmate escaped, or (b) a correctional centre to be held pending the return of the inmate to the custody of that person, or (c) any other person with lawful authority to hold the inmate in custody. (5) Subsection (4) does not limit the powers of an authorised officer to deal with an inmate according to law. (6) A warrant under subsection (4) is sufficient authority— (a) for any police officer or correctional officer to convey the inmate to the person specified in the warrant, or to the correctional centre specified in the warrant, and to deliver the inmate into the custody of that person or the governor of that correctional centre, and (b) for the governor of the correctional centre to keep the inmate in his or her custody pending the person's return to the custody of the person from whose custody the inmate escaped. (7) In this section— authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002. 40 Certain unlawful absences not to affect length of sentence (1) This section applies to an inmate who is unlawfully absent from a correctional centre during the term of a sentence— (a) otherwise than by reason of having escaped from lawful custody, and (b) otherwise than by reason of having failed to return to a correctional centre at the expiry of the period specified in a local leave permit, interstate leave permit or approval granted under section 255A, and (c) otherwise than by reason of having failed to return to a correctional centre following the revocation of an intensive correction order or parole order, and (d) otherwise than by reason of having failed to enter a correctional centre in accordance with a warrant or order committing the inmate to a correctional centre, and so applies whether or not the inmate is taken, while absent, to be in the custody of the governor of the correctional centre. (2) For the purpose only of calculating how much of the sentence the inmate has served, the inmate is taken to have been in lawful custody for the whole of that absence. 41 Transfer of inmates to or through ACT An inmate who is in the Australian Capital Territory— (a) while being transferred from one correctional centre to another under this Act, or (b) while being transferred to a hospital or other place for medical attention, or (c) while absent from a correctional centre in accordance with a local leave order or local leave permit, remains in the lawful custody of the governor of the correctional centre from which the inmate is transferred or absent. Division 3A Juvenile inmates 41A Definitions In this Division— adult correctional centre means a correctional centre that is not a juvenile correctional centre. juvenile inmate means an inmate who is under the age of 21 years. section 28 juvenile inmate means a juvenile inmate under the age of 18 years who has been transferred to a juvenile correctional centre pursuant to an order under section 28 of the Children (Detention Centres) Act 1987. 41B Custody of section 28 juvenile inmates Subject to this Act, a section 28 juvenile inmate is to be held in custody in a juvenile correctional centre. 41C Transfers to and from juvenile correctional centres (1) The Commissioner may order that a juvenile inmate be transferred from an adult correctional centre to a juvenile correctional centre for any reason specified in the order. (2) The Minister may order that a juvenile inmate be transferred from a juvenile correctional centre to an adult correctional centre if— (a) the Commissioner, in the case of a juvenile inmate who is of or above the age of 18 years, or (b) the Review Council, in the case of a juvenile inmate who is under the age of 18 years, recommends to the Minister that the inmate should be transferred. (3) A recommendation for the transfer of a juvenile inmate from a juvenile correctional centre to an adult correctional centre may not be made unless the Commissioner or Review Council, as the case may be, is satisfied that— (a) the inmate wishes to be transferred, or (b) the inmate's behaviour is or has been such that he or she should be transferred, or (c) it is in the inmate's best interests that he or she be transferred, or (d) the association of the inmate with other juvenile inmates at the juvenile correctional centre constitutes, or is likely to constitute, a threat to— (i) the personal safety of any other person, or (ii) the security of the juvenile correctional centre, or (iii) good order and discipline within the juvenile correctional centre. (4) Subsection (2) does not limit the operation of section 23 (1) in relation to juvenile inmates who are of or above the age of 18 years. Note— Section 23 (2) limits the operation of section 23 (1) in relation to juvenile inmates who are under the age of 18 years. (5) Subsections (2), (3) and (4) do not apply to the transfer of a juvenile inmate to a hospital pursuant to an order by the Commissioner under section 24. (6) Such an order may not be made without prior consultation between the Commissioner and the Chief Executive, Justice Health. 41D Procedure to be followed by Review Council as to transfer of juvenile inmate to adult correctiona