Prisoners (Interstate Transfer) Act 1982 (NSW)

Prisoners (Interstate Transfer) Act 1982 No 104 An Act relating to the transfer interstate of prisoners. Part 1 Preliminary 1 Name of Act This Act may be cited as the Prisoners (Interstate Transfer) Act 1982. 2 Commencement (1) This section and section 1 shall commence on the date of assent to this Act. (2) 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may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette. 3 (Repealed) 4 Administration This Act shall be administered by the Minister for Corrective Services. 5 Definitions (1) In this Act, except in so far as the context or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— (a) 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 (b) 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— (a) 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 (b) 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— (a) any one of the following— (i) a State sentence of imprisonment, (ii) a State sentence of imprisonment as defined by an interstate law, (iii) an ACT sentence of imprisonment as defined by the Prisoners (Interstate Transfer) Act 1993 of the Australian Capital Territory, (iv) a Territory sentence of imprisonment as defined by the Prisoners (Interstate Transfer) Act 1983 of the Northern Territory, and (b) a Commonwealth sentence of imprisonment, have been imposed. justice means justice of the peace. local prisons authority means— (a) in relation to New South Wales, the Commissioner of Corrective Services, or (b) 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 (c) 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) a State sentence of imprisonment, or (b) a State sentence of imprisonment as defined by an interstate law, or (c) an ACT sentence of imprisonment as defined by the Prisoners (Interstate Transfer) Act 1993 of the Australian Capital Territory, or (d) a Territory sentence of imprisonment as defined by the Prisoners (Interstate Transfer) Act 1983 of the Northern Territory, or (e) 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. (2) 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. (3) 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. (4) A reference in this Act to an Act of the Commonwealth includes a reference to an Act amending or replacing that Act. (5) 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. (5A) In the case of the Australian Capital Territory— (a) the reference in section 28 (4) to the Governor of the participating State is a reference to the Governor-General, and (b) 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. (5B) 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. (5C) 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. (6) 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. (7) 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) a person— (i) who has been released from serving a part of that sentence on parole or upon licence to be at large, and (ii) 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, (b) a person— (i) who has been released from serving the whole or a part of that sentence upon giving a relevant security, and (ii) in relation to whom— (A) 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 (B) 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, (c) 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. (8) 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. 6 Corresponding courts and interstate laws (1) Subject to subsection (2), the Governor may, by order published on the NSW legislation website, declare that— (a) a law of a State (other than New South Wales), is an interstate law for the purposes of this Act, and (b) 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. (2) 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. (3) (Repealed) Part 2 Transfer at request of prisoner 7 Requests for, and orders of, transfer (1) Where the Minister— (a) 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 (b) 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— (c) 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 (d) 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. (2) Where the Minister— (a) has— (i) 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 (ii) received from that Minister written notice of consent to the transfer of the prisoner to the participating State, or (b) has— (i) 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 (ii) 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. (3) Where the Minister— (a) 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 (b) 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. (4) Where the Minister has— (a) 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 (b) 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. (5) Where a joint prisoner is serving a sentence of imprisonment in New South Wales and the Minister— (a) receives a written request made by the prisoner for the transfer of the prisoner to a Territory, and (b) 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. (6) A decision to issue, or not to issue, an order under this section is not reviewable by a court or tribunal. 8 Effect of orders under this Part on joint prisoners An order of transfer issued under this Part in relation to a joint prisoner has no effect— (a) 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 (b) 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. 9 Repeated requests for transfer 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. 10 Receipt of request for transfer to New South Wales 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. 10A Matters to which Minister may have regard In forming an opinion or exercising any discretion under this Part, the Minister may have regard to any one or more of the following— (a) the welfare of the prisoner concerned, (b) the administration of justice in this or any other State, (c) the security and good order of any prison in this or any other State, (d) the safe custody of the prisoner, (e) the protection of the community in this or any other State, (f) any other matter the Minister considers relevant. 11 Reports (1) 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. (2) 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. Part 3 Transfer for trial 12 Request for transfer of prisoner to participating State (1) Where a person who is the subject of an arrest warrant issued in accordance with the law of a participating State, the Commonwealth or a Territory is a prisoner serving a sentence of imprisonment in New South Wales and the Attorney General receives— (a) from— (i) 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 (ii) in the case of an arrest warrant issued in accordance with the law of the Commonwealth or a Territory—the Attorney-General of the Commonwealth, a written request, accompanied by a copy of the warrant, or (b) 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 a 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 Attorney General's refusal or consent. (2) Where the Minister receives a written request made by a prisoner for the transfer of the prisoner to a participating State, or to a Territory to be dealt with according to law, the Minister shall refer the written request to the Attorney General. (3) A request made by a prisoner for transfer to a participating State, or to a Territory need not be referred by the Minister to the Attorney General if it is made within one year of a similar request made by the prisoner. 13 Necessary consents (1) An order of transfer shall be issued under this Part only if— (a) the Attorney General has, in writing, consented to the transfer of the prisoner to whom the order relates to the participating State or to the Territory, as the case may be, (b) in the case of a request for the transfer of a prisoner to a participating State (including a prisoner to whom paragraph (c) (ii) applies)—the Attorney-General of the participating State has, in writing, either consented to or requested the transfer, and (c) in the case of— (i) a request for the transfer of a prisoner to a Territory, or (ii) a request for the transfer of a prisoner for the purpose of being dealt with in respect of an arrest warrant issued in accordance with the law of the Commonwealth, the Attorney-General of the Commonwealth has, in writing, either consented to or requested the transfer. (2) A certificate signed by a prescribed officer certifying that any consent or request required under subsection (1) for the transfer of a prisoner to a participating State, or to a Territory, specified in the certificate has been given or made is, in the absence of evidence to the contrary, proof that the consent or request has been given or made. (3) In this section— prescribed officer means the Secretary of the Department of Communities and Justice or an officer authorised by the Secretary. 14 Prisoner to be brought before Local Court (1) The Local Court, upon proof to its satisfaction that the conditions precedent specified in section 13 (1) have been complied with, shall by order in writing direct the gaoler of the prison where the prisoner to whom the certificate relates is then imprisoned to bring the prisoner before the Local Court (at the place, on a date and at a time specified in the order) for determination as to whether an order of transfer shall be issued. (2) Notice of an order made under subsection (1) shall be served on the Attorney General and on the prisoner to whom the order relates. (3) At a hearing for the purpose of determining whether an order for the transfer of a prisoner shall be issued— (a) the prisoner shall be entitled to be represented by an Australian legal practitioner, and (b) the Attorney General shall be entitled to appear or be represented. 15 Order of transfer If a prisoner is brought before the Local Court pursuant to an order made under section 14 (1), the Local Court shall— (a) issue an order for the transfer of the prisoner to the participating State, or to the Territory specified in the certificate issued in accordance with section 13 (2) in respect of the prisoner, or (b) if the Local Court, on the application of the prisoner, is satisfied that it would be harsh or oppressive or not in the interests of justice to transfer the prisoner to that participating State or Territory or that the trivial nature of the charge or complaint against the prisoner does not warrant the transfer, refuse to issue such an order. 16 Review of decision of Local Court (1) Where the Attorney General, or the prisoner, or any other person who has requested or consented to the transfer of the prisoner, is dissatisfied with the decision of the Local Court under section 15, the Attorney General, the prisoner or that person, as the case may be, may, within 14 days of the decision, apply to the Supreme Court for a review of the decision and the Supreme Court may review the decision. (2) The prisoner shall be entitled to be present or be represented by an Australian legal practitioner at the review and for that purpose any court or a person authorised by the rules of the Supreme Court may by order in writing direct the gaoler of the prison where the prisoner is then imprisoned to bring the prisoner to the place of the review specified in the order on a date and at a time so specified. (3) The Attorney General and any other person who has requested or consented to the transfer of the prisoner shall be entitled to appear or be represented at the review. (4) The review of the decision shall be by way of rehearing on the evidence, if any, given before the Local Court and on any evidence in addition to the evidence so given. (5) Upon the review of a decision, the Supreme Court may confirm the decision or quash the decision and substitute a new decision in its stead. (6) For the purpose of giving effect to any such substituted decision the Supreme Court may issue an order for the transfer of the prisoner to the appropriate participating State or Territory. 16A Effect of orders under this Part on joint prisoners An order of transfer issued under this Part in relation to a joint prisoner has no effect— (a) 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 (b) 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. 17 Prisoner brought to be returned to custody Where an order is made under section 14 (1) or 16 (2)— (a) the gaoler to whom it is directed shall execute the order or may charge any prison officer or member of the police force with the execution of the order, and (b) the prisoner shall, while the order is being executed, be kept in the custody of the gaoler, prison officer or member of the police force acting under or in execution of the order, who shall in due course return the prisoner to the custody from which the prisoner has been brought. 18 Request for transfer of imprisoned person to New South Wales Where a person who is the subject of an arrest warrant issued in accordance with the laws of New South Wales is imprisoned in a participating State, the Attorney General may give to the Attorney-General of the participating State a written request, accompanied by a copy of the warrant, for the transfer of the person to New South Wales to be dealt with according to law. 19 Request for transfer to New South Wales by imprisoned person Where— (a) a person is imprisoned in a participating State, (b) the person is the subject of an arrest warrant issued in accordance with the laws of New South Wales, and (c) the Attorney-General of the participating State has given a notice, in writing, to the Attorney General that the Attorney-General of the participating State has consented to a request made by the person to be transferred to New South Wales to enable the person 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 notice, in writing, of the Attorney General's refusal or consent. Part 4 Transfer back to original State 20 Return of prisoner to participating State if no sentence or shorter sentence in New South Wales Where— (a) a person is transferred to New South Wales from a participating State or a Territory pursuant to an order issued under the provision of the interstate law of that participating State that corresponds to section 15 or 16 (6), or under Part III of the Transfer of Prisoners Act 1983 of the Commonwealth, or both, (b) so far as the Minister is aware, every complaint or information alleging any offence by the person against the law of New South Wales or the Commonwealth has been finally dealt with according to law and as a result— (i) the person did not become liable to serve any sentence of imprisonment in New South Wales, or (ii) the person did become liable to serve in New South Wales one or more sentences of imprisonment under which the period of imprisonment remaining to be served is shorter than the period of imprisonment remaining to be served by the person under any translated sentence or translated sentences or any sentence of imprisonment that has been imposed upon the person for any other offence against a law of the Commonwealth or a Territory, and (c) the person is either a State prisoner or a joint prisoner, the Minister shall, subject to section 23, issue an order for the transfer of the person to the participating State or to the Territory, as the case may require. 21 Effect of orders under this Part on joint prisoners An order of transfer issued under this Part in relation to a joint prisoner has no effect— (a) 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 (b) 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. 22 (Repealed) 23 Provisions ancillary to section 20 (1) The provisions of section 20 do not apply in respect of a person if— (a) the Minister receives a written request made by the person, being a request for the person to serve the person's imprisonment in New South Wales, and the Minister and— (i) in the case of a person transferred from a participating State (being a person who is a State prisoner)—the corresponding Minister of the participating State, (ii) in the case of a person transferred from a participating State (being a person who is a joint prisoner)—the corresponding Minister of the participating State and the Attorney-General of the Commonwealth, or (iii) in the case of a person transferred from a Territory (being a person who is a joint prisoner)—the Attorney-General of the Commonwealth, agree in writing that the person should serve the imprisonment in New South Wales, or (b) an indeterminate sentence (not being a translated sentence) is imposed upon the person by a court of New South Wales. (1A) In making a decision under subsection (1) (a), the Minister may have regard to any one or more of the following— (a) the welfare of the person concerned, (b) the administration of justice in this or any other State, (c) the security and good order of any prison in this or any other State, (d) the safe custody of the person, (e) the protection of the community in this or any other State, (f) any other matter the Minister considers relevant. (2) For the purpose of section 20, a complaint or information alleging an offence by a person is finally dealt with if— (a) the person is tried for the offence and— (i) the time or extended time, if any, fixed by or under any Act, within which an appeal against, or an application for the review of, the decision given on the trial may be lodged, or within which a retrial may be ordered, has expired, and (ii) any appeal or application for review in respect of the decision given on the trial has been determined or withdrawn and proceedings in respect of any retrial and any decision given on the retrial have been concluded, or (b) the complaint or information is withdrawn or a nolle prosequi or similar instrument is filed in respect of the offence. (3) For the purpose of determining which of the periods referred to in section 20 (b) is the shorter or longer— (a) any entitlement to remissions shall be disregarded, (b) a finite period of imprisonment shall be treated as being shorter than a period to be served under an indeterminate sentence, (c) the expression "sentences of imprisonment" in section 20 (b) includes a translated sentence that was originally imposed by a court of New South Wales, (d) the expression "translated sentence or translated sentences" in section 20 (b) does not include a translated sentence that was originally imposed by a court of New South Wales, and (e) where a State sentence of imprisonment which a person became liable to serve in New South Wales (not being a translated sentence) is cumulative with a translated sentence or translated sentences originally imposed by a court other than a court of New South Wales, that translated sentence or those translated sentences shall be deemed— (i) not to be a translated sentence or translated sentences, as the case may be, and (ii) to be a sentence or sentences, as the case may be, which the person is liable to serve in New South Wales. Part 5 Effect of order of transfer 24 Transfer in custody of escort (1) An order of transfer— (a) shall direct the gaoler of the prison where the prisoner who is the subject of the order is then imprisoned to deliver the prisoner into the custody of an escort and shall be sufficient authority to the gaoler so to deliver the prisoner, and (b) authorises the escort to take and keep custody of the prisoner for the purpose of conveying the prisoner from New