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This is a Bill, not an Act. For current law, see the Acts databases.
1996
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
International Transfer
of Prisoners Bill 1996
No. ,
1996
(Attorney-General)
A
Bill for an Act relating to the transfer of prisoners to and from
Australia
9617520—1025/19.11.1996—(175/96) Cat.
No. 96 5512 3 ISBN 0644 48182X
Contents
A Bill for an Act relating to the transfer of prisoners
to and from Australia
The Parliament of Australia enacts:
This Act may be cited as the International Transfer of Prisoners Act
1996.
(1) Sections 1 and 2 commence on the day on which this Act receives the
Royal Assent.
(2) The remaining provisions of this Act commence on a day or days to be
fixed by Proclamation.
The objects of this Act are:
(a) to facilitate the transfer of prisoners between Australia and certain
countries with which Australia has entered agreements for the transfer of
prisoners so that the prisoners may serve their sentences of imprisonment in
their countries of nationality or in countries with which they have community
ties; and
(b) to facilitate the transfer of prisoners to Australia from countries in
which prisoners are serving sentences of imprisonment imposed by certain war
crimes tribunals.
(1) In this Act, unless the contrary intention appears:
ACT means the Australian Capital Territory.
ACT Minister means the Minister for the ACT administering the
law of the ACT relating to the transfer of prisoners and includes any Minister
acting for the time being for or on behalf of that Minister.
appropriate Ministerial consent means Ministerial consent
given as required by section 5.
Attorney-General means the Attorney-General of the
Commonwealth.
Australian court means a court or tribunal of the
Commonwealth, a State or a Territory.
Australian law means a law of the Commonwealth, a State or a
Territory.
community ties has the meaning given by subsections (4) and
(5).
continued enforcement method, in relation to enforcement of a
sentence of imprisonment, has the meaning given by section 42.
converted enforcement method, in relation to enforcement of a
sentence of imprisonment, has the meaning given by section 42.
escort officer, in relation to a prisoner, means the police
officer, prison officer or other person specified in the warrant authorising the
transfer of the prisoner under this Act as the escort officer for the
prisoner.
extradition country has the same meaning as in the
Extradition Act 1988.
federal prisoner:
(a) means a prisoner who is serving a sentence of imprisonment imposed
under a law of the Commonwealth; and
(b) includes a prisoner who is serving a sentence of imprisonment imposed
under a law of the Northern Territory and who was, before 12 June 1985, removed
to the State of South Australia under section 3 of the Removal of Prisoners
(Territories) Act 1923.
foreign law means a law of a foreign country or of a part of,
or in force in a part of, a foreign country.
Former Yugoslavia Tribunal:
(a) means the International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International Humanitarian Law Committed
in the Territory of the Former Yugoslavia since 1991, established by Resolution
827 (1993) of the Security Council of the United Nations, a copy of the English
text of which is set out in Schedule 1 to the International War Crimes
Tribunals Act 1995; and
(b) includes any of the organs referred to in Article 11 of the Statute of
the Tribunal.
joint prisoner means a prisoner who is:
(a) both a State prisoner or a Territory prisoner (or both) and a federal
prisoner; or
(b) both a State prisoner and a Territory prisoner.
law of the Commonwealth, a State or a Territory, means a law
(whether written or unwritten) of the Commonwealth, that State or that
Territory, and includes a law (whether written or unwritten) in force in the
Commonwealth, that State or that Territory or in any part of the Commonwealth,
that State or that Territory.
mental illness means an underlying pathological infirmity of
the mind, whether of long or short duration and whether permanent or temporary,
but does not include a condition that results from the reaction of a healthy
mind to extraordinary stimuli.
mental impairment includes senility, intellectual disability,
mental illness, brain damage and severe personality disorder.
mentally impaired prisoner means:
(a) a person serving a sentence of imprisonment on the acquittal of the
person for an offence on the ground of mental impairment; or
(b) a person serving a sentence of imprisonment because the person has
been found mentally unfit to stand trial.
national of a country means a person who is a citizen of the
country under the law of the country.
non-parole period, in relation to a sentence of imprisonment,
means that part of the period of imprisonment for that sentence during which the
person is not to be released on parole, whether that part of the period is fixed
or recommended by a court or tribunal or fixed by operation of law.
police officer means:
(a) a member or special member of the Australian Federal Police;
or
(b) a member of the police force of a State or Territory.
prison officer means a person appointed or employed to assist
in the management of a prison.
prisoner means a person (however described) who is serving a
sentence of imprisonment and includes:
(a) a mentally impaired prisoner; and
(b) a person who has been released on parole.
prisoner’s representative means a person who may
consent to the transfer of a prisoner as referred to in section 6.
release on parole means any form of conditional release in
the nature of parole and includes:
(a) release on probation; and
(b) release on licence to be at large.
Rwanda Tribunal:
(a) means the International Criminal Tribunal for the Prosecution of
Persons Responsible for Genocide and Other Serious Violations of International
Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens
responsible for genocide and other such violations committed in the territory of
neighbouring States, between 1 January 1994 and 31 December 1994,
established by Resolution 955 (1994) of the Security Council of the United
Nations, a copy of the English text of which is set out in Schedule 3 to the
International War Crimes Tribunals Act 1995; and
(b) includes any of the organs referred to in Article 10 of the Statute of
the Tribunal.
sentence of imprisonment means any punishment or measure
involving deprivation of liberty ordered by a court or tribunal for a
determinate or indeterminate period in the exercise of its criminal jurisdiction
and includes any direction or order given or made by the court or tribunal with
respect to the commencement of the punishment or measure.
State includes the ACT and the Northern Territory.
State Minister means:
(a) in relation to a particular State other than the ACT or the Northern
Territory—the Minister of the State administering the law of the State
relating to the transfer of prisoners; and
(b) in relation to the ACT—the ACT Minister; and
(c) in relation to the Northern Territory—the Minister for the
Northern Territory administering the law of the Northern Territory relating to
the transfer of prisoners;
and includes any Minister acting for the time being for or on behalf of
that Minister and any person to whom the Minister has delegated any of the
Minister’s functions under this Act.
State prisoner means a prisoner who is serving a sentence of
imprisonment imposed under a law of a State.
Statute of the Tribunal means:
(a) in the case of the Former Yugoslavia Tribunal—the Statute of the
Tribunal (a copy of the English text of which is set out in Schedule 2 to the
International War Crimes Tribunals Act 1995) adopted by Resolution 827
(1993) of the Security Council of the United Nations (a copy of the English text
of which is set out in Schedule 1 to that Act); and
(b) in the case of the Rwanda Tribunal—the Statute of the Tribunal
(a copy of the English text of which is set out in Schedule 4 to the
International War Crimes Tribunals Act 1995) adopted by Resolution 955
(1994) of the Security Council of the United Nations (a copy of the English text
of which is set out in Schedule 3 to that Act).
superintendent of a prison means the person for the time
being in charge of the prison.
Territory means the Jervis Bay Territory, Norfolk Island, the
Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but
does not include the ACT and the Northern Territory.
Territory Minister means:
(a) in relation to a particular Territory (other than Norfolk
Island)—the Minister administering the law of the Territory relating to
the transfer of prisoners; and
(b) in relation to Norfolk Island—the executive member (within the
meaning of the Norfolk Island Act 1979) administering the law of Norfolk
Island relating to the transfer of prisoners;
and includes any Minister or executive member acting for the time being for
or on behalf of that Minister or executive member and any person to whom the
Minister or executive member has delegated any of the Minister’s or
executive member’s functions under this Act.
Territory prisoner means a prisoner who is serving a sentence
of imprisonment imposed under a law of a Territory.
transfer country means a foreign country that is declared by
the regulations under section 8 to be a transfer country.
treaty includes a convention, protocol, agreement or
arrangement.
Tribunal means:
(a) the Former Yugoslavia Tribunal; or
(b) the Rwanda Tribunal.
Tribunal country means a foreign country in which a Tribunal
prisoner is serving, or is to serve, a sentence of imprisonment imposed by the
Tribunal.
Tribunal offence means:
(a) an offence in relation to which the Former Yugoslavia Tribunal has the
power to prosecute persons under Article 2, 3, 4 or 5 of the Statute of the
Tribunal; or
(b) an offence in relation to which the Rwanda Tribunal has the power to
prosecute persons under Article 2, 3 or 4 of the Statute of the
Tribunal.
Tribunal prisoner means a prisoner who is serving a sentence
of imprisonment imposed by a Tribunal for a Tribunal offence.
(2) For the purposes of this Act, the following persons are taken not to
be serving a sentence of imprisonment:
(a) a person who has been released by a court from serving the whole or a
part of a sentence of imprisonment on the person giving a security (with or
without sureties) by recognisance or otherwise, that the person will comply with
conditions relating to the person’s behaviour and in relation to whom
action can no longer be taken because of a breach of a condition of the security
or because of the expiration of the security;
(b) a person who, through exercise of the Royal prerogative of mercy or
other executive prerogative or discretion given by law, is no longer required to
serve the whole or part of a sentence of imprisonment;
(c) a person on whom a sentence of imprisonment has been imposed that has
not yet commenced.
(3) If a sentence of death imposed on a person has been commuted to a term
of imprisonment or to imprisonment for life, this Act applies to and in relation
to the person as if the sentence of death had been a sentence of imprisonment
for that term or for life.
(4) For the purposes of this Act, a prisoner has community
ties with a transfer country if:
(a) the prisoner’s principal place of residence immediately before
being sentenced to imprisonment in Australia was in the transfer country;
or
(b) the prisoner’s parent, grandparent or child has a principal
place of residence in the transfer country; or
(c) the prisoner is married to or has a de facto relationship with anyone
whose principal place of residence is in the transfer country; or
(d) the prisoner has a close continuing relationship (involving frequent
personal contact and a personal interest in the other person’s welfare)
with anyone whose principal place of residence is in the transfer
country.
(5) For the purposes of this Act, a prisoner has community
ties with a State or a Territory if:
(a) the prisoner’s principal place of residence immediately before
being sentenced to imprisonment in the transfer country was in that State or
Territory; or
(b) the prisoner’s parent, grandparent or child has a principal
place of residence in that State or Territory; or
(c) the prisoner is married to or has a de facto relationship with anyone
whose principal place of residence is in that State or Territory; or
(d) the prisoner has a close continuing relationship (involving frequent
personal contact and a personal interest in the other person’s welfare)
with anyone whose principal place of residence is in that State or
Territory.
(1) Ministerial consent to the transfer of a prisoner from Australia to a
transfer country is required to be given:
(a) if the prisoner is a federal prisoner—by the Attorney-General;
or
(b) if the prisoner is a State prisoner—by both the Attorney-General
and the State Minister concerned; or
(c) if the prisoner is a Territory prisoner—by both the
Attorney-General and the Territory Minister concerned; or
(d) if the prisoner is a joint prisoner—by the Attorney-General and
all State Ministers or Territory Ministers concerned.
(2) Ministerial consent to the transfer of a prisoner from a transfer
country to Australia is required to be given:
(a) by both the Attorney-General and the State or Territory Minister of
the State or Territory in which the prisoner is to begin to complete serving a
sentence of imprisonment imposed by the transfer country in accordance with this
Act; and
(b) if applicable:
(i) if the prisoner is to begin to complete serving a sentence of
imprisonment imposed by the transfer country in accordance with this Act in New
South Wales but has community ties with the ACT, the Jervis Bay Territory or
Norfolk Island—by the ACT Minister or Territory Minister concerned;
or
(ii) if the prisoner is to begin to complete serving a sentence of
imprisonment imposed by the transfer country in accordance with this Act in
Western Australia but has community ties with a Territory other than the Jervis
Bay Territory or Norfolk Island—by the Territory Minister.
Note: Community ties with a State or Territory is defined in
subsection 4(5).
(3) Ministerial consent to the transfer of a Tribunal prisoner from a
Tribunal country to Australia is required to be given by the Attorney-General
and the State Minister or Territory Minister of the State or Territory in which
the Tribunal prisoner is to begin to complete serving the sentence of
imprisonment imposed by the Tribunal in accordance with this Act.
Note: A prisoner may be transferred from the prison,
hospital or other place in which the prisoner begins to complete serving a
sentence of imprisonment to another prison, hospital or other place in the State
or Territory or to a prison, hospital or other place in another State or
Territory. See paragraphs 46(5)(d), (e) and (i).
(1) A prisoner may consent to his or her transfer under this Act only
if:
(a) the prisoner is an adult; and
(b) the prisoner is capable of consenting to the transfer.
(2) A person may consent to the transfer under this Act of a prisoner who
is a child or who is incapable of consenting to his or her transfer if the
person is the prisoner’s parent, guardian or legal representative (in this
Act called the prisoner’s representative).
(3) A prisoner or prisoner’s representative must be informed,
through an interpreter if necessary, in language (including sign language or
braille) in which the prisoner or prisoner’s representative is able to
communicate with reasonable fluency, of the legal consequences of transfer of
the prisoner under this Act before consenting to the transfer.
(4) The prisoner’s or prisoner’s representative’s
consent to transfer must be accompanied by certification by the prisoner or
prisoner’s representative that he or she has been so informed.
(5) For the purposes of this section, a prisoner is incapable of
consenting to his or her transfer if the prisoner is an adult who:
(a) is incapable of understanding the general nature and effect of the
transfer; or
(b) is incapable of indicating whether he or she consents or does not
consent to a transfer.
(6) A prisoner’s or prisoner’s representative’s consent
to transfer cannot be withdrawn after the prisoner leaves the country from which
the prisoner is being transferred.
(7) In this section:
adult means:
(a) in the case of a prisoner in Australia—a person of or above 18
years of age; and
(b) in the case of a prisoner in a transfer country or a Tribunal
country—a person of or above the age that under the law of that country is
the age at which a person is considered for legal purposes to be an
adult.
child means:
(a) in the case of a prisoner in Australia—a person below 18 years
of age; and
(b) in the case of a prisoner in a transfer country or a Tribunal
country—a person below the age that under the law of that country is the
age at which a person is considered for legal purposes to be an adult.
This Act extends to the external Territories.
(1) The regulations may provide that this Act applies to a foreign country
declared by the regulations to be a transfer country for the purposes of this
Act.
(2) The regulations may declare that this Act applies in relation to such
a foreign country subject to limitations, conditions, exceptions or
qualifications referred to in the regulations.
(3) The limitations, conditions, exceptions or qualifications in relation
to a transfer country that may be referred to in the regulations are any one or
more of the following:
(a) limitations, conditions, exceptions or qualifications that are
necessary to give effect to a bilateral treaty in relation to transfer of
prisoners to or from that country, a copy of which is set out in the
regulations;
(b) limitations, conditions, exceptions or qualifications that are
necessary to give effect to a multilateral treaty in relation to transfer of
prisoners to or from that country, a copy of which is set out in the
regulations;
(c) limitations, conditions, exceptions or qualifications (other than
limitations, conditions, exceptions or qualifications that are necessary to give
effect to a treaty) for the transfer of prisoners to or from that country that
are set out, or identified in any other way, in the regulations.
(4) The limitations, conditions, exceptions or qualifications that are
necessary to give effect to a treaty in relation to a transfer country may be
expressed in the form that this Act applies to that country subject to the
treaty.
(5) For the purposes of the application of this Act in relation to a
transfer country:
(a) a colony, territory or protectorate of that country; and
(b) a territory for the international relations of which the country is
responsible;
are taken to be part of the country.
This Act binds the Crown in each of its capacities.
A prisoner (other than a Tribunal prisoner) may be transferred between
Australia and a transfer country under this Act if:
(a) the prisoner is eligible for transfer from or to Australia (as the
case requires); and
(b) Australia and the transfer country have agreed to the transfer of the
prisoner on terms agreed under this Act; and
(c) the prisoner or the prisoner’s representative has consented in
writing to transfer on those terms; and
(d) appropriate Ministerial consent in writing has been given to transfer
on those terms; and
(e) the relevant conditions for transfer of the prisoner are satisfied;
and
(f) the transfer of the prisoner is not likely to prevent the surrender of
the prisoner to any extradition country known by the Attorney-General to have
requested the extradition of the prisoner or to have expressed interest in
extraditing the prisoner or that, in the opinion of the Attorney-General, is
reasonably likely to request extradition.
A Tribunal prisoner may be transferred to Australia under this Act
if:
(a) Australia and the Tribunal have agreed to the transfer of the prisoner
on terms agreed under this Act; and
(b) unless the Attorney-General determines that it is not necessary in the
prisoner’s case—the prisoner or prisoner’s representative has
consented to transfer on those terms; and
(c) appropriate Ministerial consent in writing has been given to transfer
on those terms; and
(d) the relevant conditions for transfer to Australia of Tribunal
prisoners are satisfied.
A prisoner (other than a Tribunal prisoner) is eligible for transfer from
Australia to a transfer country under this Act if the prisoner:
(a) is a national of the transfer country; or
(b) has community ties with the transfer country.
Note: Community ties with a transfer country is defined in
subsection 4(4).
A prisoner (other than a Tribunal prisoner) is eligible for transfer to
Australia from a transfer country under this Act if the prisoner:
(a) is an Australian citizen; or
(b) is permitted to travel to, enter and remain in Australia indefinitely
pursuant to the Migration Act 1958 and has community ties with a State or
a Territory.
Note: Community ties with a State or Territory is defined in
subsection 4(5).
(1) The conditions for transfer from Australia of a prisoner (other than a
mentally impaired prisoner) are satisfied if:
(a) neither the sentence of imprisonment imposed by the Australian court
nor the conviction on which it is based is subject to appeal; and
(b) subject to subsection (3), the acts or omissions constituting the
offence on account of which the prisoner is serving the sentence in Australia
would, if the acts or omissions had occurred in the transfer country, have
constituted an offence in the transfer country; and
(c) if the sentence of imprisonment is determinate—on the day of
receipt of the request for transfer at least 6 months of the prisoner’s
sentence remains to be served (whether or not the prisoner has been released on
parole), or a shorter period remains to be served and the Attorney-General has
determined that, in the circumstances, transfer for a shorter period is
acceptable.
(2) The conditions for transfer from Australia of a mentally impaired
prisoner are satisfied if:
(a) neither the sentence of imprisonment imposed by the Australian court
nor the acquittal or finding of unfitness to stand trial on which it is based is
subject to appeal; and
(b) subject to subsection (3), the acts or omissions constituting the
offence:
(i) in respect of which the prisoner was charged but acquitted on the
ground of mental impairment or found unfit to stand trial; and
(ii) on account of which the prisoner is serving the sentence in
Australia;
would, if the acts or omissions had occurred in the transfer country,
have constituted an offence in the transfer country; and
(c) if the sentence of imprisonment is determinate—on the day of
receipt of the request for transfer at least 6 months of the prisoner’s
sentence remains to be served (whether or not any review affecting the duration
of the sentence is pending), or a shorter period remains to be served and the
Attorney-General has determined that, in the circumstances of the case, transfer
for a shorter period is acceptable.
(3) The Attorney-General may determine that the requirements of subsection
(1)(b) or (2)(b) need not be satisfied in a particular prisoner’s
case.
(1) The conditions for transfer to Australia of a prisoner (other than a
mentally impaired prisoner or Tribunal prisoner) are satisfied if:
(a) neither the sentence of imprisonment imposed by the transfer
country’s court or tribunal nor the conviction on which it is based is
subject to appeal under the law of the transfer country; and
(b) subject to subsection (3), the acts or omissions constituting the
offence on account of which the prisoner is serving the sentence in the transfer
country would, if the acts or omissions had occurred in Australia, have
constituted an offence in Australia; and
(c) if the sentence of imprisonment is determinate—on the day of
receipt of the request for transfer at least 6 months of the prisoner’s
sentence remains to be served (whether or not the prisoner has been released on
parole), or a shorter period remains to be served and the Attorney-General has
determined that, in the circumstances, transfer for a shorter period is
acceptable.
(2) The conditions for transfer to Australia of a mentally impaired
prisoner are satisfied if:
(a) neither the sentence of imprisonment imposed by the transfer
country’s court or tribunal nor the acquittal or finding of unfitness to
stand trial on which it is based is subject to appeal under the law of the
transfer country; and
(b) subject to subsection (3), the acts or omissions constituting the
offence:
(i) in respect of which the prisoner was charged but acquitted on the
ground of mental impairment or found unfit to stand trial; and
(ii) on account of which the prisoner is serving the sentence in the
transfer country;
would, if the acts or omissions had occurred in Australia, have
constituted an offence in Australia; and
(c) if the sentence of imprisonment is determinate—on the day of
receipt of the request for transfer at least 6 months of the prisoner’s
sentence remains to be served (whether or not any review affecting the duration
of the sentence is pending), or a shorter period remains to be served and the
Attorney-General has determined that, in the circumstances, transfer for a
shorter period is acceptable.
(3) The Attorney-General may determine that the requirements of subsection
(1)(b) or (2)(b) need not be satisfied in a particular prisoner’s
case.
(4) The conditions for transfer to Australia of a Tribunal prisoner are
satisfied if:
(a) neither the sentence of imprisonment imposed by the Tribunal nor the
conviction on which it is based is subject to appeal under the Statute of the
Tribunal; and
(b) if the sentence of imprisonment is determinate—on the day of
receipt of the request for transfer at least 6 months of the prisoner’s
sentence remains to be served (whether or not the prisoner has been released on
parole), or a shorter period remains to be served and the Attorney-General has
determined that, in the circumstances, transfer for a shorter period is
acceptable.
A prisoner serving a sentence of imprisonment in Australia, or the
prisoner’s representative, may apply to the Attorney-General, in the
manner prescribed by the regulations, for transfer of the prisoner to a transfer
country to complete serving the sentence on terms agreed in accordance with this
Act.
(1) The Attorney-General is to forward a copy of the
application:
(a) to the State Minister of the State, or Territory Minister of the
Territory, in which the prisoner is serving the sentence of imprisonment;
and
(b) to any other State or Territory Minister or Ministers whose consent to
the transfer is required under this Act.
(2) A Minister to whom an application is forwarded may advise the
Attorney-General of any matter the Minister considers relevant to the processing
of the application.
(3) A Minister to whom an application is forwarded may request the
Attorney-General to obtain information from the transfer country that is
relevant to the Minister’s assessment of the application.
(4) The Attorney-General is to notify a transfer country of any
application for transfer to that country and may request the transfer country to
indicate its provisional views on the application, including the method by which
it is likely that the sentence of imprisonment would be enforced by the transfer
country if, following a formal request for transfer, it consents to the
transfer.
(5) The Attorney-General may provide the transfer country with:
(a) details of any request for extradition of the prisoner that has been
made under the Extradition Act 1988 or of any expression of interest in
extradition made by another country or of any country that, in the opinion of
the Attorney-General, may wish to extradite the prisoner; and
(b) any other information the Attorney-General considers may assist the
transfer country in giving its provisional views on the proposed
transfer.
(1) The Attorney-General may make a formal request in writing for transfer
of a prisoner from Australia to a transfer country.
(2) In deciding whether to make a formal request, the Attorney-General may
take into account any matter the Attorney-General considers relevant, including
any matter advised by a State or Territory Minister.
(3) The Attorney-General is not to make a formal request for transfer of a
prisoner to a transfer country unless the Attorney-General is satisfied that the
transfer will (if the consents referred to in subsection 20(2) are given) be
able to be made in compliance with section 10.
A formal request for transfer from Australia to a transfer country is to
be accompanied by:
(a) any information required to be provided in accordance with
arrangements made with the transfer country; and
(b) any other available information the Attorney-General considers
relevant to the request and that may appropriately be provided.
(1) The Attorney-General is to notify the prisoner (or the
prisoner’s representative) and any State or Territory Minister or
Ministers whose consent to the transfer is required under this Act:
(a) of the transfer country’s decision; and
(b) if consent is given, of the proposed method by which the sentence of
imprisonment will be enforced by the transfer country and any other proposed
terms of transfer.
(2) The prisoner or prisoner’s representative and Minister concerned
are to advise the Attorney-General as to whether they consent to the transfer on
the terms proposed by the transfer country.
(3) The Attorney-General is to determine whether or not consent should be
given to the transfer of a prisoner on the terms proposed by the transfer
country and is to notify the transfer country as to whether consent has been
given to transfer of the prisoner on those terms or, if consent will be given if
the transfer country agrees to variation of the terms, of the variation
proposed.
The Attorney-General may, subject to Part 2, issue a warrant, in the form
prescribed by the regulations, for the transfer of the prisoner from Australia
to a transfer country if the prisoner’s or the prisoner’s
representative’s consent and appropriate Ministerial consent in writing to
the transfer on the terms proposed by the transfer country (or, if the transfer
country has agreed to variation of the terms, the terms as varied) have been
given.
(1) A warrant for the transfer of a prisoner from Australia authorises the
transfer of the prisoner from Australia to the transfer country to complete
serving the sentence of imprisonment in accordance with the terms agreed under
this Act.
(2) A warrant for transfer from Australia must:
(a) specify the name and date of birth of the prisoner to be transferred;
and
(b) specify the transfer country to which the prisoner is to be
transferred; and
(c) state that the following written consents to the transfer have been
given:
(i) the prisoner’s or prisoner’s representative’s
consent;
(ii) the transfer country’s consent;
(iii) appropriate Ministerial consent.
(3) If the prisoner is a prisoner other than a prisoner who has been
released on parole, the warrant is:
(a) to require the superintendent of the prison, or the person in charge
of the hospital or other place, in which the prisoner is serving the sentence of
imprisonment to release the prisoner into the custody of a person specified in
the warrant; and
(b) to authorise the person to take the prisoner to a place in Australia
and, if necessary, to detain the prisoner in custody for the purpose of placing
the prisoner in the custody of an escort officer for transport out of Australia;
and
(c) to authorise the escort officer to transport the prisoner in custody
out of Australia to the transfer country for surrender to a person appointed by
the transfer country to receive the prisoner.
(4) If the prisoner has been released on parole, the warrant is:
(a) to specify any approvals, authorities, permissions or variations to
the parole or other order or licence to be at large that have been made under an
Australian law; and
(b) to specify any procedures for the transfer of the prisoner to the
transfer country that have been agreed upon with the transfer country and to
give any necessary authorisations and directions.
(5) The Attorney-General may give any direction or approval that is
necessary to ensure that the warrant is executed in accordance with its
tenor.
(1) The Attorney-General may cancel a warrant for transfer from Australia
at any time before the prisoner it concerns leaves Australia.
(2) Without limiting the grounds on which the Attorney-General may cancel
a warrant for transfer, it must be cancelled if the Attorney-General, a State or
Territory Minister, the prisoner or prisoner’s representative or the
transfer country concerned, withdraws consent to the transfer.
The Attorney-General may consent to a request from a transfer country for
the transfer of a prisoner (other than a Tribunal prisoner) serving a sentence
of imprisonment in that country to Australia to complete serving the sentence on
terms agreed under this Act if the Attorney-General is satisfied that the
transfer can be made in compliance with section 10.
Before consenting to the transfer of a prisoner to Australia under this
Part, the Attorney-General may request the transfer country to
provide:
(a) details of any request for extradition of the prisoner that has been
made to the transfer country or of any country that has expressed interest in
extraditing the prisoner or that is likely, in the opinion of the transfer
country, to request extradition; and
(b) any other information the Attorney-General considers relevant to the
assessment of whether consent should be given for the transfer of the prisoner
to Australia.
Before consenting to the transfer of a prisoner to Australia under this
Part, the Attorney-General is to determine, in accordance with Part 6, the
method by which the sentence of imprisonment imposed by the transfer country
will be enforced in Australia if the prisoner is transferred and is to advise
the transfer country of this and of any other proposed terms on which consent
will be given to the transfer.
(1) Before consenting to the transfer of a prisoner to Australia under
this Part, the Attorney-General is to notify the State or Territory Minister of
the place in which the prisoner wishes to begin to complete serving the sentence
of imprisonment imposed by the transfer country in Australia, in writing, in the
form prescribed by the regulations, of receipt of the request.
(2) If the prisoner wishes to begin to complete serving the sentence of
imprisonment in New South Wales or Western Australia but has community ties with
the ACT or a Territory, the Attorney-General is also to notify the ACT Minister
or Territory Minister concerned of the matters referred to in subsection
(1).
Note: Community ties with a State or Territory is defined in
subsection 4(5).
(3) The Attorney-General is to provide each Minister concerned with any
information that the transfer country has given the Attorney-General and
particulars of the method by which the Attorney-General considers the sentence
of imprisonment imposed by the transfer country could be enforced by Australia
and any other proposed terms of the transfer.
(4) Each Minister concerned is to advise the Attorney-General in writing
as to whether the Minister consents to the transfer on the terms proposed as
soon as possible after receiving the notification.
(5) If the Minister of the State or Territory in which the prisoner is to
begin to complete serving the sentence of imprisonment imposed by the transfer
country consents to the transfer, the Minister is to advise the Attorney-General
of:
(a) the prison, or hospital or other place, in which the prisoner will
begin to complete serving the sentence in the State or Territory; and
(b) in the case of a prisoner who has been released on parole—any
recommended terms or conditions on which the prisoner is to complete serving the
sentence; and
(c) any other matters the Minister considers relevant to sentence
enforcement in the State or Territory.
Note: A prisoner may be transferred from the prison,
hospital or other place in the State or Territory in which the prisoner begins
to complete serving a sentence of imprisonment to another prison, hospital or
other place in the State or Territory or to a prison, hospital or other place in
another State or Territory. See paragraphs 46(5)(d), (e) and
(i).
The Attorney-General is to notify the transfer country as soon as
possible after all appropriate Ministerial consents to the transfer have been
given and is to ask the transfer country to formally consent to the transfer on
the terms proposed by Australia and to advise of the prisoner’s formal
consent to transfer on those terms.
The Attorney-General may issue a warrant, in the form prescribed by the
regulations, for the transfer of the prisoner from a transfer country to
Australia if the written consent of the prisoner or prisoner’s
representative and the transfer country and appropriate Ministerial consent in
writing to transfer on the terms proposed by Australia have been
given.
(1) A warrant for the transfer of a prisoner to Australia authorises the
transfer of the prisoner from the transfer country to Australia to complete
serving the sentence of imprisonment imposed by the transfer country in
accordance with the terms agreed under this Act.
(2) A warrant for transfer to Australia must:
(a) specify the name and date of birth of the prisoner to be transferred;
and
(b) specify the transfer country from which the prisoner is to be
transferred; and
(c) state that the following written consents to the transfer have been
given:
(i) the prisoner’s or prisoner’s representative’s
consent;
(ii) the transfer country’s consent;
(iii) appropriate Ministerial consent.
(3) If the prisoner is a prisoner other than a prisoner who has been
released on parole, the warrant is:
(a) to authorise an escort officer to collect the prisoner from a place
(whether in Australia or the transfer country) specified in the warrant;
and
(b) if the place is in the transfer country, to authorise the escort
officer to transport the prisoner in custody to Australia for surrender to a
person appointed by the Attorney-General to receive the prisoner and, if
appropriate, to authorise the appointed person to escort the prisoner to the
prison, or hospital or other place, in Australia where the prisoner is to begin
to complete serving the sentence of imprisonment in accordance with this Act;
and
(c) if the place is in Australia, to authorise the escort officer to
escort the prisoner to the prison, or hospital or other place, in Australia
where the prisoner is to begin to complete serving the sentence of imprisonment
in accordance with this Act; and
(d) if the prisoner is to be escorted to a prison, to require the
superintendent of the prison to take the prisoner into custody to be dealt with
in accordance with the terms agreed under this Act; and
(e) if the prisoner is to be escorted to a hospital or other place, to
authorise the detention of the prisoner in that hospital or place to be dealt
with in accordance with the terms agreed under this Act.
Note: A prisoner may be transferred from the prison,
hospital or other place in the State or Territory in which the prisoner begins
to complete serving a sentence of imprisonment to another prison, hospital or
other place in the State or Territory or to a prison, hospital or other place in
another State or Territory. See paragraphs 46(5)(d), (e) and
(i).
(4) If the prisoner has been released on parole, the warrant is to specify
any procedures for the transfer of the prisoner to Australia that have been
agreed upon with the transfer country and to give any necessary authorisations
and directions.
(5) The Attorney-General may give any direction or approval that is
necessary to ensure the warrant is executed in accordance with its
tenor.
(1) The Attorney-General may cancel a warrant for transfer to Australia at
any time before the prisoner it concerns leaves the transfer country.
(2) Without limiting the grounds on which the Attorney-General may cancel
a transfer warrant, it must be cancelled if the Attorney-General, a State or
Territory Minister, a prisoner or prisoner’s representative, or the
transfer country concerned, withdraws consent to the transfer.
The prisoner to whom a warrant relates is to be released when the
prisoner has completed serving the sentence of imprisonment in accordance with
this Act unless any other law authorises the prisoner’s detention in
respect of an offence other than that on account of which the sentence of
imprisonment was imposed.
The Attorney-General may consent to a request from a Tribunal for the
transfer of a Tribunal prisoner serving a sentence of imprisonment imposed by
the Tribunal in a Tribunal country to Australia to complete serving the sentence
of imprisonment on terms agreed under this Act if the Attorney-General is
satisfied that the transfer can be made in compliance with section 11.
Before consenting to the transfer of a Tribunal prisoner to Australia,
the Attorney-General may request the Tribunal requesting the transfer to provide
the Attorney-General with any relevant information that will enable the
Attorney-General to assess whether consent should be given for the transfer of
the prisoner to Australia.
Before consenting to the transfer of a Tribunal prisoner to Australia
under this Part, the Attorney-General is to determine, in accordance with Part
6, the method by which the sentence of imprisonment imposed by the Tribunal will
be enforced in Australia if the prisoner is transferred and is to advise the
Tribunal of this and of any other proposed terms on which consent will be given
to the transfer.
(1) Before consenting to the transfer of a Tribunal prisoner to Australia,
the Attorney-General is to determine the State or Territory in which it would be
most appropriate for the prisoner to begin to complete serving the sentence of
imprisonment imposed on the prisoner by the Tribunal in Australia and to seek
the consent of the State or Territory Minister concerned.
(2) The Attorney-General is to provide the Minister with details of any
information that the Tribunal has given the Attorney-General and particulars of
the method by which the Attorney-General considers the sentence of imprisonment
could be enforced by Australia and any other proposed terms of the
transfer.
(3) The Minister is to advise the Attorney-General in writing as to
whether the Minister consents to the transfer on the terms proposed as soon as
possible after receiving the notification.
(4) If the Minister refuses to consent to the transfer, the
Attorney-General may request consent to transfer of the prisoner to another
State or Territory from the appropriate State or Territory Minister.
(5) If a State Minister or Territory Minister consents to the transfer,
the Minister is to advise the Attorney-General of:
(a) the prison, or hospital or other place, in which the prisoner is to
begin to complete serving the sentence of imprisonment in accordance with this
Act in the State or Territory; and
(b) in the case of a prisoner who has been released on parole—any
recommended terms or conditions on which the prisoner is to complete serving the
sentence of imprisonment in accordance with this Act; and
(c) any other matters the Minister considers relevant to enforcement of
the sentence of imprisonment in the State or Territory.
Note: A prisoner may be transferred from the prison,
hospital or other place in the State or Territory in which the prisoner begins
to complete serving a sentence of imprisonment to another prison, hospital or
other place in the State or Territory or to a prison, hospital or other place in
another State or Territory. See paragraphs 46(5)(d), (e) and
(i).
The Attorney-General is to notify the Tribunal as soon as possible after
appropriate Ministerial consent to the transfer has been given and is to ask the
Tribunal:
(a) to formally consent to the transfer on the terms proposed by
Australia; and
(b) to advise of the prisoner’s formal consent to transfer on those
terms (if the Tribunal has determined that it is appropriate to obtain the
prisoner’s consent).
The Attorney-General may issue a warrant, in the form prescribed by the
regulations, for the transfer of a Tribunal prisoner from a Tribunal country to
Australia if the written consent of the prisoner or prisoner’s
representative (if the Attorney-General considers such consent is necessary),
and the Tribunal and appropriate Ministerial consent in writing to transfer on
the terms proposed by Australia, have been given.
(1) A warrant for the transfer of a Tribunal prisoner to Australia
authorises the transfer of the prisoner from the Tribunal country to Australia
to complete serving the sentence of imprisonment imposed by the Tribunal in
accordance with the terms agreed under this Act.
(2) A warrant for transfer to Australia must:
(a) specify the name and date of birth of the Tribunal prisoner to be
transferred; and
(b) specify the Tribunal country from which the prisoner is to be
transferred; and
(c) state that the following written consents to the transfer have been
given:
(i) the prisoner’s or prisoner’s representative’s
consent (if the Attorney-General considers such consent is necessary);
(ii) the Tribunal’s consent;
(iii) appropriate Ministerial consent.
(3) If the prisoner is a Tribunal prisoner other than a Tribunal prisoner
who has been released on parole, the warrant is:
(a) to authorise an escort officer to collect the Tribunal prisoner from a
place (whether in Australia or the Tribunal country) specified in the warrant;
and
(b) if the place is in a Tribunal country, to authorise the escort officer
to transport the Tribunal prisoner in custody to Australia for surrender to a
person appointed by the Attorney-General to receive the prisoner and, if
appropriate, to authorise the appointed person to escort the prisoner to the
prison, or hospital or other place, in Australia where the Tribunal prisoner is
to begin to complete serving the sentence of imprisonment in accordance with
this Act; and
(c) if the place is in Australia, to authorise the escort officer to
escort the Tribunal prisoner to the prison, or hospital or other place, in
Australia where the prisoner is to begin to complete serving the sentence of
imprisonment in accordance with this Act; and
(d) if the Tribunal prisoner is to be escorted to a prison, to require the
superintendent of the prison to take the prisoner into custody to be dealt with
in accordance with the terms agreed under this Act; and
(e) if the Tribunal prisoner is to be escorted to a hospital or other
place, to authorise the detention of the prisoner in that hospital or place to
be dealt with in accordance with the terms agreed under this Act.
Note: A prisoner may be transferred from the prison,
hospital or other place in the State or Territory in which the prisoner begins
to complete serving a sentence of imprisonment to another prison, hospital or
other place in the State or Territory or to a prison, hospital or other place in
another State or Territory. See paragraphs 46(5)(d), (e) and
(i).
(4) If the Tribunal prisoner has been released on parole, the warrant is
to specify any procedures for the transfer of the prisoner to Australia that
have been agreed upon with the Tribunal and to give any necessary authorisations
and directions.
(5) The Attorney-General may give any direction or approval that is
necessary to ensure the warrant is executed in accordance with its
tenor.
(1) The Attorney-General may cancel a warrant for transfer to Australia at
any time before the Tribunal prisoner it concerns leaves the Tribunal
country.
(2) Without limiting the grounds on which the Attorney-General may cancel
a transfer warrant, it must be cancelled if the Attorney-General, a State or
Territory Minister or the Tribunal concerned (or, in those cases where a
Tribunal prisoner or prisoner’s representative’s consent to transfer
was required by the Attorney-General, the Tribunal prisoner or prisoner’s
representative) withdraws consent to the transfer.
The Tribunal prisoner to whom a warrant relates is to be released when
the prisoner has completed serving the sentence of imprisonment in accordance
with this Act unless any other law authorises the prisoner’s detention in
respect of an offence other than that on account of which the sentence of
imprisonment was imposed.
The Attorney-General may direct that a sentence of imprisonment imposed
on a prisoner by a court or tribunal of a transfer country, or on a Tribunal
prisoner by a Tribunal, be enforced on transfer of the prisoner to Australia
under this Act:
(a) without any adaptation of the duration of the sentence of imprisonment
or its legal nature, or with only such adaptations to the duration of the
sentence or its legal nature as the Attorney-General considers are necessary to
ensure that enforcement of the sentence is consistent with Australian law (in
this Act called the continued enforcement method); or
(b) by substituting a different sentence of imprisonment for that imposed
by the transfer country or Tribunal (in this Act called the converted
enforcement method).
(1) The sentence of imprisonment to be enforced under the continued
enforcement method or converted enforcement method must not be harsher, in legal
nature or duration, than the sentence of imprisonment imposed by the transfer
country or Tribunal.
(2) Without limiting subsection (1):
(a) if the sentence of imprisonment imposed by the transfer country or
Tribunal is for a determinate period, the sentence of imprisonment to be
enforced under this Act must not be for a longer duration than that sentence;
and
(b) if the sentence of imprisonment imposed by the transfer country or
Tribunal is for an indeterminate period, the sentence of imprisonment to be
enforced under this Act is, as far as practicable, to be subject to similar
terms affecting the duration of the sentence as those imposed in the transfer
country or by the Tribunal; and
(c) the sentence of imprisonment to be enforced under this Act must not be
of a kind that involves a more severe form of deprivation of liberty than the
sentence of imprisonment imposed by the transfer country or Tribunal.
(1) In ordering that a sentence of imprisonment be enforced by the
continued enforcement method or the converted enforcement method, the
Attorney-General may, subject to section 43, give such directions as the
Attorney-General considers appropriate as to the duration and legal nature of
the sentence of imprisonment as it is to be enforced under this Act.
(2) Without limiting subsection (1), directions may be made:
(a) as to entitlements to release on parole (including any non-parole
period) of the prisoner or Tribunal prisoner following transfer; and
(b) if the prisoner is a mentally impaired prisoner—as to any review
to be undertaken of the mental condition of the prisoner and treatment to be
provided to the prisoner following transfer.
(3) For the purpose of forming an opinion or exercising a discretion under
this section, the Attorney-General may inform himself or herself as the
Attorney-General thinks fit and, in particular, may have regard to the
following:
(a) any submissions made by the transfer country or Tribunal;
(b) any views expressed by any State Minister or Territory Minister
concerned with the proposed transfer;
(c) any views expressed by parole or prison authorities of any State or
Territory;
(d) the sentence of imprisonment that might have been imposed if the acts
and omissions constituting the offence had been committed in
Australia;
(e) any limitations or requirements in relation to the way in which a
sentence of imprisonment imposed by a transfer country or Tribunal may be
enforced in Australia arising from any agreement to which Australia and the
transfer country or Tribunal are parties.
(1) On transfer of a prisoner to Australia under this Act, no appeal or
review lies in Australia against the sentence of imprisonment imposed by the
court or tribunal of the transfer country or by the Tribunal.
(2) No appeal lies against a decision of the Attorney-General concerning
the enforcement in Australia under this Act of a sentence of imprisonment
imposed by a court or tribunal of a transfer country or the Tribunal.
(1) A sentence of imprisonment imposed by the transfer country or Tribunal
that is to be enforced in Australia under the continued enforcement method or
the converted enforcement method is taken, for the purpose of enforcement of the
sentence of imprisonment in Australia on transfer of the prisoner or Tribunal
prisoner to Australia under this Act, to be a federal sentence of imprisonment
and the prisoner to be a federal prisoner.
(2) Any period of the sentence of imprisonment as originally imposed by
the transfer country or Tribunal served by the prisoner or Tribunal prisoner
before the transfer is taken to have been served under the sentence of
imprisonment as it is enforced under this Act.
(3) A prisoner or Tribunal prisoner who is transferred to Australia under
this Act may, while serving a sentence of imprisonment imposed by a transfer
country or Tribunal that is enforced under this Act, be detained in a prison or
hospital or other place in a State or Territory.
(4) Any relevant Australian law, or practice or procedure lawfully
observed, concerning the detention of prisoners applies in relation to the
prisoner or Tribunal prisoner on and after that transfer to the extent that it
is capable of applying concurrently with this Act.
(5) Without limiting subsection (4), Australian law and practice and
procedure relating to the following matters are applicable to a prisoner or
Tribunal prisoner who is transferred to Australia under this Act:
(a) conditions of imprisonment and treatment of prisoners;
(b) release on parole of prisoners;
(c) classification and separation of prisoners;
(d) removal of prisoners from one prison to another;
(e) removal of prisoners between prisons and hospitals or other places or
between one hospital or other place and another;
(f) treatment of mentally impaired prisoners;
(g) eligibility for participation in prison programs, including release
under a pre-release permit scheme (however called);
Note: See, for example, subsection 19AZD (3) of the
Crimes Act 1914.
(h) temporary absence from prison (for example, to work or seek work, to
attend a funeral or visit a relative suffering a serious illness or to attend a
place of education or training);
(i) transfer of prisoners between States and Territories.
(6) The prisoner or Tribunal prisoner is entitled to any remission or
reduction of the sentence of imprisonment imposed by the transfer country or
Tribunal that is to be enforced under this Act for which the prisoner would be
eligible in accordance with any applicable Australian law if the sentence were a
sentence of imprisonment for an offence against a law of the
Commonwealth.
(7) Nothing in this section prevents the transfer country or Tribunal from
pardoning or granting amnesty to or quashing or otherwise nullifying the
conviction of a prisoner serving a sentence of imprisonment imposed by the
transfer country or Tribunal in Australia in accordance with this Act, or from
commuting the sentence.
(8) Nothing in this Act imposes any financial responsibility on the
Commonwealth to maintain a prisoner transferred under Part 4 of this Act in a
prison, or hospital or other place, in a State or Territory unless the prisoner
has community ties with the Jervis Bay Territory, the Territory of Christmas
Island or the Territory of Cocos (Keeling) Islands.
On transfer of a prisoner from Australia under this Act, the sentence of
imprisonment imposed by the Australian court ceases to have effect in Australia
and, except as provided by section 48, the sentence of imprisonment is taken for
all purposes in Australia to be a sentence of imprisonment imposed by a court or
tribunal of the transfer country and the prisoner is to be a prisoner of the
transfer country.
(1) During the period in which a sentence of imprisonment is served in a
transfer country by a prisoner transferred from Australia under this Act, the
prisoner’s conviction may be quashed or otherwise nullified and the
prisoner may be pardoned or granted any amnesty or commutation of sentence of
imprisonment that could be granted under Australian law if the prisoner were
serving the sentence of imprisonment in Australia.
(2) If, during the period in which the sentence of imprisonment is served
by a prisoner transferred from Australia under this Act in a transfer country,
the prisoner’s conviction is quashed or otherwise nullified or the
prisoner is pardoned or granted amnesty or commutation of sentence of
imprisonment under Australian law, the Attorney-General is to immediately notify
the transfer country that the prisoner should no longer be detained in custody
or otherwise subjected to detention or supervision only because of the sentence
of imprisonment.
(1) During the period in which a sentence of imprisonment is served in
Australia by a prisoner transferred to Australia under this Act, the prisoner
may be pardoned or granted any amnesty or commutation of sentence of
imprisonment that could be granted under Australian law if the sentence of
imprisonment had been imposed for an offence against an Australian
law.
(2) The Attorney-General is to direct, in a form prescribed by the
regulations, that a prisoner must not be detained in custody or otherwise be
subjected to detention or supervision in Australia under a sentence of
imprisonment imposed by a transfer country enforced under this Act only because
of that sentence of imprisonment if, during the period in which the sentence of
imprisonment is served in Australia:
(a) the prisoner is pardoned or granted amnesty or commutation of sentence
of imprisonment under an Australian law; or
(b) the transfer country notifies the Attorney-General that the
prisoner’s conviction has been quashed or otherwise nullified or that the
prisoner has been pardoned or granted amnesty or commutation of sentence of
imprisonment under the law of the transfer country.
(3) The Attorney-General is to direct, in a form prescribed by the
regulations, that a prisoner must not be detained in custody or otherwise be
subjected to detention or supervision in Australia under a sentence of
imprisonment imposed by a Tribunal enforced under this Act only because of that
sentence of imprisonment if, during the period in which the sentence is served
in Australia:
(a) the Tribunal notifies the Attorney-General that the prisoner may be
pardoned or granted amnesty or commutation of sentence of imprisonment under an
Australian law and the prisoner is granted such amnesty or commutation of
sentence of imprisonment; or
(b) the Tribunal notifies the Attorney-General that the prisoner’s
conviction has been quashed or otherwise nullified or that the prisoner has been
pardoned or granted amnesty or commutation of sentence of imprisonment by the
Tribunal.
(1) The Governor-General may make arrangements with the Governor of a
State, the Chief Minister of the ACT or the Administrator of a Territory with
respect to the administration of this Act, including arrangements relating to
the exercise by officers of the State or Territory of functions under this
Act.
(2) An arrangement may be varied or terminated at any time.
(3) The Attorney-General is to cause notice of the making, variation or
termination of an arrangement to be published in the Gazette.
(1) The terms agreed under this Act for transfer of a prisoner or Tribunal
prisoner may, if the Attorney-General considers it appropriate, include terms
relating to the recovery of the costs and expenses reasonably incurred in
transferring the prisoner or Tribunal prisoner.
(2) If any costs or expenses in respect of money recovered in accordance
with such terms were incurred by a State or Territory, the Commonwealth is to
reimburse the State or Territory concerned.
The Attorney-General is to arrange for any prisoner or prisoner’s
representative who makes a request for transfer under this Act to be kept
informed as to progress of the request.
The Attorney-General may delegate in writing all or any of the
Attorney-General’s powers under this Act or the regulations to:
(a) the Secretary to the Department; or
(b) a person holding or performing the duties of a Senior Executive
Service office in the Department.
The Attorney-General is to inform each State and Territory Minister
whenever a country is declared by the regulations to be a transfer country and
request the State and Territory Ministers to use their best endeavours to notify
any prisoner who may be eligible for transfer under this Act of the application
of this Act to a country of which the prisoner is a national and of the
operation of this Act.
(1) The following provisions apply to the transport in custody through
Australia of a prisoner or Tribunal prisoner who is being transferred from a
transfer country or Tribunal country to another transfer country or Tribunal
country:
(a) the prisoner may be transported in custody through Australia for the
purposes of the transfer;
(b) if the aircraft or ship that transports the prisoner makes a landing
or calls at a place in Australia:
(i) the person holding the prisoner in custody before the landing or call
is made may hold the prisoner in custody at the place for a period not exceeding
24 hours;
(ii) any police officer may provide such assistance at the place as is
reasonable and necessary to facilitate transporting of the prisoner in
custody;
(iii) any magistrate to whom application is made, in the form prescribed
by the regulations, by or on behalf of the transfer country or Tribunal
concerned must issue a warrant ordering a person specified in the warrant to
hold the prisoner in custody for such period or periods as the magistrate
considers necessary to facilitate the transporting of the prisoner;
(iv) the Attorney-General may, on application by the transfer country or
Tribunal concerned, authorise in writing a magistrate to issue a warrant
ordering a person specified in the warrant to hold the prisoner in custody for a
further specified period in order to facilitate the transporting of the
prisoner;
(v) the Attorney-General may at any time direct a person having custody of
the prisoner under this paragraph to release the prisoner from
custody.
(2) The total period or periods of any custody in accordance with
subparagraphs (1)(b)(i) and (ii) must not exceed 96 hours.
(1) A police officer may, without warrant, arrest a person if the officer
has reasonable grounds to believe that the person has escaped from custody
authorised by this Act.
(2) The police officer must, as soon as practicable, take the person
before a magistrate.
(3) If the magistrate is satisfied that the person has escaped from
custody authorised by this Act, the magistrate may issue a warrant authorising
any police officer to return the person to the custody from which the person
escaped.
The Attorney-General must not make any decision under this Act affecting
a prisoner who is not an Australian citizen without the consent of the Minister
for Immigration and Multicultural Affairs.
(1) The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(2) In particular, regulations may make provision for or with respect to
information to be provided to prisoners and other persons for the purposes of
this Act and any State or Territory Act relating to the international transfer
of prisoners.
(3) The regulations may prescribe penalties not exceeding a fine of 10
penalty units for offences against the regulations.