Prisoners (Interstate Transfer) Act 1982

Prisoners (Interstate Transfer) Act 1982

An Act providing for the transfer interstate of prisoners and for related purposes

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART I - Preliminary

1.   Short title

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 on which this Act receives the Royal Assent.

(2)  Except as provided in subsection (1) , the several provisions of this Act shall commence on such day or days as may be fixed by proclamation.

3.   Interpretation

(1)  [Section 3 Subsection (1) amended by No. 94 of 1986, s. 4 ]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 at or in connection with any legal proceedings;

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;

[Section 3 Subsection (1) amended by No. 33 of 1997, s. 10, Applied:01 Aug 2002]

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 Tasmania, in relation to a court of a participating State, means a court of Tasmania that is, under an order in force under section 4 (1) , declared to be a corresponding court in relation to the court of the participating State;

[Section 3 Subsection (1) amended by No. 33 of 1997, s. 10, Applied:01 Aug 2002] 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;

court of petty sessions means a court of petty sessions constituted by a magistrate sitting alone;

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;

[Section 3 Subsection (1) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] gaoler, in relation to a prison, means the person who, under the Corrections Act 1997 , is the correctional officer in charge of the prison;

indeterminate sentence means a sentence of, or order or direction for, imprisonment or detention for life or during the pleasure of the Sovereign or during the pleasure of the Governor-General, the 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 4 (1) , is declared to be an interstate law for the purposes of this Act;

[Section 3 Subsection (1) amended by No. 33 of 1997, s. 10, Applied:01 Aug 2002] joint prisoner means a person upon whom both a Commonwealth sentence of imprisonment has been imposed and any one of the following sentences of imprisonment has been imposed:

(a) a State sentence of imprisonment;

(b) a State sentence of imprisonment as defined by an interstate law;

(c) an ACT sentence of imprisonment as defined by the Prisoners (Interstate Transfer) Act 1993 of the Australian Capital Territory;

(d) a Territory sentence of imprisonment as defined by the Prisoners (Interstate Transfer) Act of the Northern Territory;

[Section 3 Subsection (1) amended by No. 35 of 2013, s. 24, Applied:01 May 2015] local prisons authority means –

(a) in relation to Tasmania, the Director of Corrective Services appointed under the Corrections Act 1997 ; or

(b) in relation to a participating State other than Tasmania, 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;

Northern Territory means the Northern Territory of Australia;

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

[Section 3 Subsection (1) amended by No. 33 of 1997, s. 10, Applied:01 Aug 2002] participating State means a State in which an interstate law is in force;

[Section 3 Subsection (1) amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004]

[Section 3 Subsection (1) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] prison means a prison as defined in section 3 of the Corrections Act 1997 ;

[Section 3 Subsection (1) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] prison officer means a person who is a correctional officer under the Corrections Act 1997 ;

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;

[Section 3 Subsection (1) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] remission regulations means the regulations made under the Corrections Act 1997 relating to the remission of portions of State sentences of imprisonment;

[Section 3 Subsection (1) amended by No. 33 of 1997, s. 10, Applied:01 Aug 2002]

[Section 3 Subsection (1) amended by No. 33 of 1997, s. 10, Applied:01 Aug 2002] 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 of the Northern Territory; or

(e) where relevant, a Commonwealth sentence of imprisonment;

[Section 3 Subsection (1) amended by No. 33 of 1997, s. 10, Applied:01 Aug 2002] 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;

[Section 3 Subsection (1) amended by No. 49 of 1999, Sched. 1, Applied:01 Feb 2000] State sentence of imprisonment means a sentence of imprisonment for an offence against a law of Tasmania, including a sentence of penal servitude, 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 Youth Justice Act 1997 , or a sentence of detention under that Act or any other Act relating to the punishment of persons who committed offences when they were under the age of 18 years;

[Section 3 Subsection (1) amended by No. 33 of 1997, s. 10, Applied:01 Aug 2002] Territory means the Territory of Norfolk Island, the Territory of Christmas Island, the Territory of Cocos (Keeling) Islands or the Jervis Bay Territory;

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

(2)  Where a justice of a participating State, in the exercise of his 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)  [Section 3 Subsection (4) inserted by No. 94 of 1986, s. 4 ]A reference in this Act to the Governor of a participating State includes a reference –

(a) in the case of a State other than the Northern Territory – to any person exercising and performing all the powers and functions of the Governor of that State; and

(b) in the case of the Northern Territory – to the Administrator of the Northern Territory, and to any person exercising and performing all the powers and functions of the Administrator of the Northern Territory.

(5)  [Section 3 Subsection (5) inserted by No. 94 of 1986, s. 4 ][Section 3 Subsection (5) substituted by No. 33 of 1997, s. 10, Applied:01 Aug 2002] 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)  [Section 3 Subsection (5A) inserted by No. 33 of 1997, s. 10, Applied:01 Aug 2002] In the case of the Australian Capital Territory –

(a) the reference in section 26(5) to the Governor of a participating State is a reference to the Governor-General; and

(b) the references in section 26(6)(b) to the Governor of a 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)  [Section 3 Subsection (5B) inserted by No. 33 of 1997, s. 10, Applied:01 Aug 2002] In the case of the Northern Territory, a reference in this Act to the Governor of a participating State is a reference to the Administrator of the Northern Territory, and includes a reference to any person exercising and performing all the powers and functions of the Administrator.

(5C)  [Section 3 Subsection (5C) inserted by No. 33 of 1997, s. 10, Applied:01 Aug 2002] 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)  [Section 3 Subsection (6) inserted by No. 94 of 1986, s. 4 ]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.

(7)  [Section 3 Subsection (7) inserted by No. 94 of 1986, s. 4 ]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.

4.   Corresponding courts and interstate laws

(1)  [Section 4 Subsection (1) amended by No. 94 of 1986, s. 5 ]Subject to subsection (2) , the Governor may, by order-in-council, declare that –

(a) a law of a State (other than Tasmania) is an interstate law for the purposes of this Act; and

(b) a specified court of Tasmania or any court belonging to a specified class or description of courts of Tasmania 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)  [Section 4 Subsection (2) amended by No. 94 of 1986, s. 5 ]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)  [Section 4 Subsection (3) omitted by No. 94 of 1986, s. 5 ].  .  .  .  .  .  .  .  

PART II - TRANSFER AT REQUEST OF PRISONER

5.   Requests for, and orders of, transfer

[Section 5 Substituted by No. 94 of 1986, s. 6 ]

(1)  Where the Minister –

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

(b) [Section 5 Subsection (1) amended by No. 39 of 2005, s. 5, Applied:01 Oct 2005] 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 Tasmania for the transfer of the prisoner to a participating State; and

(b) [Section 5 Subsection (3) amended by No. 39 of 2005, s. 5, Applied:01 Oct 2005] is of the opinion that the prisoner to whom the request relates should be transferred to the participating State –

the Minister shall give to the corresponding Minister of the participating State a written request asking that Minister to accept the transfer of the prisoner to that participating State.

(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 Tasmania and the Minister –

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

(b) [Section 5 Subsection (5) amended by No. 39 of 2005, s. 5, Applied:01 Oct 2005] 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.

6.   Effect of orders under this Part on joint prisoners

[Section 6 Substituted by No. 94 of 1986, s. 6 ]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 authorizes 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 authorized under that Act.

7.   Repeated requests for transfer

[Section 7 Amended by No. 94 of 1986, s. 7 ]A request made by a prisoner for his transfer to a participating State or to a Territory need not be entertained by the Minister if it is made within 1 year after a similar request was made by the prisoner.

8.   Receipt of request for transfer to Tasmania

[Section 8 Amended by No. 94 of 1986, s. 8 ]Where the Minister receives a written request given under the provision of an interstate law that corresponds to section 5 , or a request made for the purposes of Part II of the Transfer of Prisoners Act 1983 of the Commonwealth, asking him to accept the transfer of an imprisoned person to Tasmania, the Minister shall either consent to or refuse to 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 his consent or refusal.

8A.   Matters to which Minister may have regard

[Section 8A Inserted by No. 39 of 2005, s. 6, Applied:01 Oct 2005] 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.

9.   Reports

(1)  [Section 9 Subsection (1) amended by No. 39 of 2005, s. 7, Applied:01 Oct 2005] For the purpose of forming an opinion or exercising any discretion under this Part, the Minister may inform himself as he thinks fit and, in particular, by reference to reports of parole and prison authorities of Tasmania and of any participating State.

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

PART III - Transfer For Trial

10.   Request for transfer of prisoner to participating State

(1)  [Section 10 Subsection (1) amended by No. 94 of 1986, s. 9 ]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 Tasmania and the Attorney-General of this State 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 of this State –

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 of this State shall either consent to or refuse to 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 his consent or refusal.

(2)  [Section 10 Subsection (2) amended by No. 94 of 1986, s. 9 ]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 of this State.

(3)  [Section 10 Subsection (3) amended by No. 94 of 1986, s. 9 ]A request made by a prisoner for his transfer to a participating State or to a Territory need not be referred by the Minister to the Attorney-General of this State if it is made within 1 year of a similar request made by the prisoner.

11.   Necessary consents

(1)  [Section 11 Subsection (1) substituted by No. 94 of 1986, s. 10 ]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)  [Section 11 Subsection (2) amended by No. 94 of 1986, s. 10 ]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.

12.   Prisoner to be brought before court of petty sessions

(1)  A court of petty sessions, on proof to its satisfaction that the conditions precedent specified in section 11 (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 a court of petty sessions specified in the order on a date and at a time so specified 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 of this State 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) [Section 12 Subsection (3) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] the prisoner shall be entitled to be represented by an Australian legal practitioner; and

(b) the Attorney-General of this State shall be entitled to appear or be represented.

13.   Order of transfer

[Section 13 Amended by No. 94 of 1986, s. 11 ]The court of petty sessions before which the prisoner is brought pursuant to an order made under section 12 (1) shall –

(a) issue an order for the transfer of the prisoner to the participating State, or to a Territory, specified in the certificate issued in accordance with section 11 (2) in respect of the prisoner; or

(b) if the court, on the application of the prisoner, is satisfied that –

(i) it would be harsh or oppressive or not in the interests of justice to transfer the prisoner to that participating State or Territory; or

(ii) the trivial nature of the charge or complaint against the prisoner does not warrant the transfer –

refuse to issue such an order.

14.   Review of decision of court of petty sessions

(1)  [Section 14 Subsection (1) amended by No. 94 of 1986, s. 12 ]Where the Attorney-General of this State 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 court of petty sessions under section 13 , the Attorney-General of this State, the prisoner, or that person, as the case may be, may, within 14 days after the decision, apply to the Supreme Court for a review of the decision, and, on the making of any such application, the Supreme Court may review the decision.

(2)  [Section 14 Subsection (2) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] The prisoner is entitled to be present or be represented by an Australian legal practitioner at the review, and, for that purpose, any court or a person authorized 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)  [Section 14 Subsection (3) amended by No. 94 of 1986, s. 12 ]The Attorney-General of this State and any other person who has requested or consented to the transfer of the prisoner are 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 court of petty sessions and on any evidence in addition to the evidence so given.

(5)  On the review of a decision, the Supreme Court may confirm the decision or quash the decision and substitute a new decision in its place.

(6)  [Section 14 Subsection (6) amended by No. 94 of 1986, s. 12 ]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.

14A.   Effect of orders under this Part on joint prisoners

[Section 14A Inserted by No. 94 of 1986, s. 13 ]An order of transfer made under this Part in relation to a joint prisoner has no effect –

(a) to the extent that, but for this section, it authorizes or requires the doing of an act or thing under this Act in relation to that person in 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 authorized under that Act.

15.   Prisoner brought to be returned to custody

Where an order is made under section 12 (1) or 14 (2)  –

(a) [Section 15 Amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004] the gaoler to whom it is directed shall execute the order or may charge any prison officer or police officer with the execution of the order; and

(b) [Section 15 Amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004] the prisoner shall, while the order is being executed, be kept in the custody of the gaoler, prison officer, or police officer acting under or in execution of the order, who shall in due course return the prisoner to the custody from which he has been brought.

16.   Request for transfer of imprisoned person to Tasmania

Where a person who is the subject of an arrest warrant issued in accordance with the laws of Tasmania is imprisoned in a participating State, the Attorney-General of this State 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 Tasmania to be dealt with according to law.

17.   Request for transfer to Tasmania by imprisoned person

Where –

(a) a person who is imprisoned in a participating State is the subject of an arrest warrant issued in accordance with the laws of Tasmania; and

(b) the Attorney-General of the participating State has given a notice, in writing, to the Attorney-General of this State that he has consented to a request made by the person to be transferred to Tasmania to enable him to be dealt with according to law –

the Attorney-General of this State shall either consent or refuse to consent to the transfer and shall give to the Attorney-General of the participating State notice, in writing, of his consent or refusal.

PART IV - Transfer Back to Original State

18.   Return of prisoner to participating State if no sentence or shorter sentence in Tasmania

[Section 18 Substituted by No. 94 of 1986, s. 14 ]Where –

(a) a person is transferred to Tasmania 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 13 or 14 (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 Tasmania 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 Tasmania; or

(ii) the person did become liable to serve in Tasmania 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 21 , issue an order for the transfer of the person to the participating State or to the Territory, as the case may require.

19.   Effect of orders under this Part on joint prisoners

[Section 19 Substituted by No. 94 of 1986, s. 14 ]An order of transfer made under this Part in relation to a joint prisoner has no effect –

(a) to the extent that, but for this section, it authorizes or requires the doing of an act or thing under this Act in relation to that person in 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 authorized under that Act.

20.   

21.   Provisions ancillary to section 18

(1)  [Section 21 Subsection (1) amended by No. 94 of 1986, s. 15 ]The provisions of section 18 do not apply in respect of a person if –

(a) [Section 21 Subsection (1) amended by No. 39 of 2005, s. 8, Applied:01 Oct 2005] the Minister receives a written request made by the person, being a request for the person to serve the person's imprisonment in Tasmania, 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 Tasmania; or

(b) an indeterminate sentence (not being a translated sentence) is imposed on the person by a court of Tasmania.

(1A)  [Section 21 Subsection (1A) inserted by No. 39 of 2005, s. 8, Applied:01 Oct 2005] 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)  [Section 21 Subsection (2) amended by No. 94 of 1986, s. 15 ]For the purpose of section 18 , 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)  [Section 21 Subsection (3) amended by No. 94 of 1986, s. 15 ]For the purpose of determining which of the periods referred to in section 18 (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 18 (b) , includes a translated sentence that was originally imposed by a court of Tasmania;

(d) the expression

translated sentence or translated sentences in section 18 (b) does not include a transferred sentence that was originally imposed by a court of Tasmania; and

(e) where a State sentence of imprisonment which a person became liable to serve in Tasmania (not being a translated sentence) is cumulative with a translated sentence or translated sentences originally imposed by a court other than a court in Tasmania, 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 Tasmania.

PART V - Effect of Order of Transfer

22.   Transfer in custody of escort

(1)  [Section 22 Subsection (1) amended by No. 94 of 1986, s. 16 ]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) authorizes the escort to take and keep custody of the prisoner for the purpose of conveying him from Tasmania to such prison in a participating State or a Territory as is specified in the order and there delivering him into the custody of the gaoler of that prison.

(2)  [Section 22 Subsection (2) amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004] A reference in subsection (1) to an escort is a reference to a prison officer, a police officer, or a person appointed by the Minister by an instrument in writing to be an escort for the purposes of this Act, or any 2 or more of them.

(3)  [Section 22 Subsection (3) amended by No. 94 of 1986, s. 16 ]Where –

(a) under an interstate law or under the Transfer of Prisoners Act 1983 of the Commonwealth, or both, an order is issued for the transfer to Tasmania of a person imprisoned in a participating State or a Territory;

(b) pursuant to the order an escort brings the person into Tasmania –

the escort, while in Tasmania, is authorized to hold, take and keep custody of the person for the purpose of conveying him to such prison in Tasmania as is specified in the order and there delivering him into the custody of the gaoler.

(4)  [Section 22 Subsection (4) inserted by No. 35 of 2013, s. 25, Applied:01 May 2015] Without limiting subsections (1) and (3) , it is sufficient compliance with an order referred to in either of those subsections if the prisoner concerned –

(a) is delivered into the custody of an escort of the State or Territory to which the prisoner is being transferred, being an escort who is authorised by the local prisons authority for that State or Territory to receive custody of the prisoner; and

(b) is so delivered into custody at a place at which the escort referred to in paragraph (a) is authorised by the local prisons authority for that State or Territory to receive custody of the prisoner.

23.   Transfer of sentence with prisoner

(1)  [Section 23 Subsection (1) amended by No. 94 of 1986, s. 17 ]Where pursuant to an order of transfer a prisoner is conveyed to a participating State or a Territory specified in the order, then, from the time the prisoner arrives in the participating State or the Territory, every State sentence of imprisonment imposed on the prisoner, including a translated sentence, ceases to have effect in Tasmania except –

(a) for the purpose of any appeal against or review of any conviction, judgment, or sentence made, imposed, or fixed by a court of Tasmania;

(b) in relation to any period of imprisonment served by the prisoner in Tasmania; or

(c) in relation to the remittance of money to the Minister which is paid in discharge or partial discharge of a sentence of default imprisonment originally imposed on the prisoner by a court of Tasmania.

(2)  [Section 23 Subsection (2) inserted by No. 94 of 1986, s. 17 ] Subsection (1) does not apply to a sentence of imprisonment imposed upon a person where the person has completed serving that sentence.

24.   Information to be sent to the participating State

(1)  Where pursuant to an order of transfer a prisoner is conveyed to a participating State, the Minister shall cause to be sent to the corresponding Minister of the participating State or to some person for the time being designated by him –

(a) the order of transfer;

(b) the warrant of, or other authority for, commitment for any sentence of imprisonment which the prisoner was, immediately before he left Tasmania, serving or liable to serve,

(c) a report relating to the prisoner, which shall –

(i) contain such information and be accompanied by such documents available in Tasmania as appear to be likely to be of assistance to any court, authority, or officer in the participating State; and

(ii) include details of convictions, sentences of imprisonment, minimum terms of imprisonment, periods of imprisonment served, entitlements to remissions, and grants of parole and a copy of any record relating to the prisoner's conduct; and

(d) details, accompanied by any relevant orders or other documents, of any subsequent variations to the information provided in accordance with this subsection, whether arising from any appeal or review or otherwise.

(2)  A reference in subsection (1) to an order or other document is a reference to either the original or a copy certified in the prescribed manner.

25.   Sentence deemed to have been imposed in Tasmania

(1)  [Section 25 Subsection (1) amended by No. 94 of 1986, s. 18 ]Where under an interstate law an order is issued for the transfer to Tasmania of a person imprisoned in a participating State and the person is brought into Tasmania pursuant to the order, then from the time the person arrives in Tasmania –

(a) any State sentence of imprisonment (as defined in the interstate law of the participating State) imposed upon the person by a court of the participating State and any sentence of imprisonment deemed by the provision of an interstate law that corresponds to this section to have been imposed by a court of the participating State shall be deemed to have been imposed upon the person; and

(b) any direction or order given or made by a court of the participating State with respect to when any such State sentence of imprisonment shall commence shall, so far as practicable, be deemed to have been given or made –

by a corresponding court of Tasmania and, except as otherwise provided in this Act, shall be given effect to in Tasmania, and the laws of Tasmania shall apply, as if such a court had had power to impose the sentence and give or make the direction or order, if any, and did in fact impose the sentence and give or make the direction or order, if any.

(2)  [Section 25 Subsection (2) added by No. 94 of 1986, s. 18 ] Subsection (1) does not apply to or in respect of a sentence of imprisonment imposed upon a person where the person has completed serving that sentence.

26.   Provisions relating to translated sentences

(1)  [Section 26 Subsection (1) amended by No. 94 of 1986, s. 19 ][Section 26 Subsection (1) substituted by No. 7 of 1987, s. 9 ]Where under a law of a participating State there has been fixed by or under a law in respect of a translated sentence a minimum term of imprisonment (being a shorter term than the translated sentence), during which minimum term the person subject to the sentence is not eligible to be released on parole, that minimum term shall, subject to subsection (1A) have effect for the purposes of the law of Tasmania.

(1A)  [Section 26 Subsection (1A) amended by No. 9 of 2003, Sched. 1, Applied:16 Apr 2003] [Section 26 Subsection (1A) inserted by No. 7 of 1987, s. 9 ]Where a minimum term referred to in subsection (1) is of lesser duration than the non-parole period (if any) that would be applicable, under section 68 of the Corrections Act 1997 , to the sentence to which it relates if that sentence had been imposed by a court in Tasmania, subsection (1) has effect as if that minimum term were of the same duration as that non-parole period.

(1B)  [Section 26 Subsection (1B) inserted by No. 7 of 1987, s. 9 ]Where a person referred to in subsection (1) is subsequently transferred to a participating State, the minimum term referred to in that subsection shall, unless it has been quashed on a review by, or on appeal to, a court of the participating State where the minimum term was fixed, have effect, notwithstanding subsection (1A) , for the purposes of the application of the interstate law of that State and may be treated as if it had been a minimum term fixed by a court of Tasmania.

(2)  [Section 26 Subsection (2) amended by No. 94 of 1986, s. 19 ]Except as provided by subsection (3) , where a translated sentence is varied or quashed on review by or appeal to a court of the participating State where the sentence was imposed the sentence shall be deemed to have been varied, or to have been quashed, by a corresponding court of Tasmania.

(3)  [Section 26 Subsection (3) amended by No. 94 of 1986, s. 19 ]Where a translated sentence is otherwise varied or ceases to have effect as a result of action taken by any person or authority in that participating State, the sentence shall be deemed to have been varied to the same extent, or to have ceased to have had effect, as a result of action taken by an appropriate person or authority in Tasmania.

(4)  Nothing in this Act operates to permit in Tasmania any appeal against or review of any conviction, judgment, sentence, or minimum term made, imposed, or fixed in relation to a person by a court of a participating State.

(5)  [Section 26 Subsection (5) amended by No. 94 of 1986, s. 19 ]Where a translated sentence is an indeterminate sentence requiring that the person who is the subject of the sentence be detained during the pleasure of the Sovereign or during the pleasure of the Governor of the participating State in which the sentence was imposed, the person shall be detained during the Governor's pleasure.

(6)  [Section 26 Subsection (6) amended by No. 94 of 1986, s. 19 ]The Governor –

(a) may exercise the royal prerogative of mercy in favour of a person who is subject to a translated sentence as if the person were –

(i) an offender convicted in a court of Tasmania; or

(ii) an offender convicted within Tasmania before a judge or magistrate of Tasmania; and

(b) in exercising that prerogative, may give effect to any indication given by the Governor of the participating State in which the sentence of imprisonment was imposed on that person as to what the Governor of the participating State may have done had the person not been transferred to Tasmania.

(7)  [Section 26 Subsection (7) amended by No. 94 of 1986, s. 19 ]A person who is subject to a translated sentence –

(a) shall be deemed to have served in Tasmania such period of the translated sentence as, up to the time of his transfer to Tasmania, he had served in respect of that sentence in a participating State (including any period deemed by the provision of an interstate law that corresponds to this paragraph to have been served in a participating State and any period spent in custody while being transferred to a prison in Tasmania); and

(b) shall, subject to subsection (8) , be deemed to be entitled under the remission regulations to any remission of his translated sentence for which, up to the time of his transfer to Tasmania, he was eligible in respect of that translated sentence in the participating State (including any remission of sentence deemed by an interstate law to have been earned in a participating State) and any further remission of sentence under the remission regulations shall be calculated from the time of the arrival of the person in Tasmania.

(8)  [Section 26 Subsection (8) inserted by No. 94 of 1986, s. 19 ]Any remission of a translated sentence –

(a) for which the person who is subject to the sentence was eligible up to the time of the person's transfer to Tasmania; and

(b) which is attributable to a part of the sentence not served or not to be served in the participating State from which the person was transferred –

shall not be taken into account for the purposes of subsection (7) (b) .

(9)  [Section 26 Subsection (9) inserted by No. 94 of 1986, s. 19 ] Subsection (6) does not apply in relation to a conviction or transferred sentence referred to in section 24 (2) (a) or (b) of the Transfer of Prisoners Act 1983 of the Commonwealth, but nothing in this subsection shall be construed as preventing the Queen or the Governor from exercising the royal prerogative of mercy as referred to in section 24 (2) of that Act .

27.   Translated sentences – default imprisonment

(1)  [Section 27 Subsection (1) amended by No. 94 of 1986, s. 20 ]Where a translated sentence is a sentence by which default imprisonment was ordered and any portion of the amount in default of payment of which the default imprisonment was ordered is paid by or on behalf of the prisoner who is the subject of the sentence to the gaoler of the prison in which he is imprisoned –

(a) the term of default imprisonment shall be reduced by a period which bears to the term of default imprisonment the same proportion as the portion paid bears to the total amount that was payable and, subject to any other sentence of imprisonment, the prisoner shall be entitled to be released on the expiry of the reduced period; and

(b) the portion so paid shall be remitted by the gaoler to the corresponding Minister of the participating State where the sentence by which default imprisonment was ordered was originally imposed.

(2)  [Section 27 Subsection (2) amended by No. 94 of 1986, s. 20 ]Where a translated sentence is a sentence by which default imprisonment was ordered and, on a review by or an appeal to a court of the participating State where the sentence was imposed or as a result of any other action taken by any person or authority in that participating State, the amount in default of payment of which the default imprisonment was ordered is reduced or the obligation to pay that amount is quashed –

(a) the term of default imprisonment shall, where the amount is reduced, be reduced by a period which bears to the term of default imprisonment the same proportion as the amount of the reduction bears to the total amount that was payable and, subject to any other sentence of imprisonment that may be imposed on him, the prisoner shall be entitled to be released on the expiry of that reduced period; or

(b) the prisoner shall, where the obligation to pay the amount is quashed, thereupon, subject to any other sentence of imprisonment that may be imposed on him, be entitled to be released.

PART VI - Miscellaneous

28.   Notification to prisoners of certain decisions

The Attorney-General of this State shall, when he makes a decision in respect of a prisoner for the purposes of this Act, advise that prisoner of that decision.

29.   Lawful custody for transit through Tasmania

(1)  [Section 29 Subsection (1) amended by No. 94 of 1986, s. 21 ]Where, in relation to a person imprisoned in a participating State or a Territory, an order is made under an interstate law or under the Transfer of Prisoners Act 1983 of the Commonwealth, or both, for the transfer of that person to a participating State or a Territory and in the course of conveying the person to the participating State or Territory pursuant to the order an escort brings the person into Tasmania, then –

(a) [Section 29 Subsection (1) amended by No. 35 of 2013, s. 26, Applied:01 May 2015] while in Tasmania the escort is authorized to hold, take and keep custody of the person for the purpose of conveying him within Tasmania in accordance with the order; and

(b) any gaoler is authorized, on –

(i) the request of the escort; and

(ii) delivery to the gaoler by the escort of a copy of the order of transfer certified by the escort to be such a copy –

to receive the person and to detain him in custody as though he were a State prisoner for such time as the escort requests and is reasonably necessary for the purpose of executing the order.

(2)  Where a gaoler has the custody of a person under subsection (1) (b) , the gaoler is authorized, on the request of an escort and production by the escort of the order of transfer relating to the person, to deliver the person into the custody of the escort.

30.   Escape from custody of person being transferred

(1)  [Section 30 Subsection (1) amended by No. 35 of 2013, s. 27, Applied:01 May 2015] [Section 30 Subsection (1) amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004] A person in the custody of an escort pursuant to section 22(3) or section 29 who escapes from that custody may be apprehended without warrant by the escort, any police officer, or any other person.

(2)  Where a person in custody pursuant to section 29  –

(a) has escaped and been apprehended; or

(b) has attempted to escape –

that person may be taken before a justice who may, notwithstanding the terms of any order of transfer issued under an interstate law, by warrant under his hand –

(c) order the person to be returned to the participating State in which the order of transfer under which that person was being conveyed at the time of the escape or attempt to escape was issued; and

(d) for that purpose, order the person to be delivered to an escort.

(2A)  [Section 30 Subsection (2A) inserted by No. 94 of 1986, s. 22 ] Subsections (1) and (2) do not apply to a person to whom section 47 of the Crimes Act 1914 of the Commonwealth applies by virtue of section 26 (2) of the Transfer of Prisoners Act 1983 of the Commonwealth.

(3)  A warrant issued under subsection (2) may be executed according to its tenor.

(4)  [Section 30 Subsection (4) amended by No. 94 of 1986, s. 22 ]A person who is the subject of a warrant issued under subsection (2) may be detained in custody as a State prisoner until he is delivered into the custody of an escort in accordance with that warrant or until the expiration of a period of 7 days from the issuing of the warrant, whichever first occurs.

(5)  If a person who is the subject of a warrant issued under subsection (2) is not, in accordance with the warrant, delivered into the custody of an escort within a period of 7 days from the issuing of the warrant, the warrant shall have no further effect.

(6)  A reference in subsection (2) , (4) , or (5) to an escort in relation to a person who was, at the time of his escape or attempt to escape, being conveyed under an order of transfer issued in a participating State is a reference to –

(a) the escort who had the custody of that person pursuant to that order;

(b) a prison officer or a member of the police force of the participating State; or

(c) a person appointed by the corresponding Minister of the participating State by an instrument in writing to be an escort for the purpose of conveying that person to the participating State –

or any 2 or more of them.

31.   Escape from custody – penalty

(1)  [Section 31 Subsection (1) amended by No. 94 of 1986, s. 23 ]Any person who, being a person in custody under an order of transfer, escapes or attempts to escape from that custody while he is not within Tasmania or the participating State or the Territory to which he was being conveyed under that order is guilty of a crime and is liable on conviction to imprisonment for a term not exceeding 7 years, to be served after the expiration of any term of imprisonment or detention to which he was subject at the time of his escape or attempt to escape.

(2)  [Section 31 Subsection (2) amended by No. 94 of 1986, s. 23 ]Without limiting the generality of section 106 of the Criminal Code Act 1924 , that section applies to a person –

(a) who is in custody under an order of transfer; and

(b) who escapes from that custody while he is not within Tasmania or the participating State or the Territory to which he was being conveyed under that order –

in the same way as it applies to a person who escapes from lawful custody while undergoing a sentence involving deprivation of liberty in Tasmania.

(3)  [Section 31 Subsection (3) added by No. 94 of 1986, s. 23 ] Subsections (1) and (2) do not apply to a person to whom section 47 of the Crimes Act 1914 of the Commonwealth applies by virtue of section 26 (1) or (2) of the Transfer of Prisoners Act 1983 of the Commonwealth.

32.   Revocation of order of transfer on escape from custody

[Section 32 Amended by No. 94 of 1986, s. 24 ]Any court of petty sessions may revoke an order of transfer if it appears to the court, on application made to it under this section by the holder of a prescribed office or position or by a person who belongs to a prescribed class of persons, that the person in respect of whom the order was issued has, in the course of his being conveyed in accordance with that order, committed –

(a) the offence of escaping or attempting to escape; or

(b) any other offence –

whether –

(c) the offence was an offence against the law of Tasmania, the Commonwealth, a participating State, or a Territory; or

(d) a charge has been laid or a conviction secured in respect of the offence or not.

33.   Regulations

The Governor may make regulations for carrying out or giving effect to this Act.