Revised Explanatory Memorandum
(Circulated by the authority of the Attorney-General, the Honourable Philip Ruddock MP)Schedule 4 - Transfer of Prisoners
Item 1 - Administrative Decisions (Judicial Review) Act 1977
Item 1 amends Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 to include decisions made by the Attorney-General under the Transfer of Prisoners Act 1983. The effect of this is that the Administrative Decisions (Judicial Review) Act does not apply.
Subsection 3(1) of the Administrative Decisions (Judicial Review) Act defines 'decisions to which that Act applies'. These are decisions of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not) under a specified enactment or by a Commonwealth authority or officer under a specified enactment. However, the definition excludes a decision in any of the classes of decisions set out in Schedule 1 to the Administrative Decisions (Judicial Review) Act.
New paragraph (xb) provides that decisions of the Attorney-General under Part II or III of the Transfer of Prisoners Act refusing applications or requests, or refusing to give consent, on the ground that, or on grounds that include the ground that, refusal is necessary in the interests of security, within the meaning of the Transfer of Prisoners Act will be excluded from the Administrative Decisions (Judicial Review) Act.
Item 1 also amends Schedule 1 to the Administrative Decisions (Judicial Review) Act by inserting new paragraph (xc) to provide that decisions of the Attorney-General under Part IV of the Transfer of Prisoners Act are also excluded from the Administrative Decisions (Judicial Review) Act.
Transfer of Prisoners Act 1983
Part IV will deal with the security transfers of persons sentenced under Commonwealth, State or Territory legislation or who are charged with an offence and are remanded in custody. The definitions contained in subsection 3(1) of the Transfer of Prisoners Act need to be amended to provide for the effective operation of Part IV, as well as other amendments to the Transfer of Prisoners Act made by the Bill.
Item 2 - definition of 'prison'
Item 2 repeals the definition of the term 'prison' in subsection 3(1) and substitutes it with a broader definition.
Subsection 3(1) of the Transfer of Prisoners Act currently defines the term 'prison' to "include any place where a person who has been sentenced to imprisonment may be detained to undergo that imprisonment". This definition of the term 'prison' is limited to where the person has been sentenced to imprisonment.
Transfers under new Part IV apply not only to persons who are serving a sentence of imprisonment, but also to 'remand prisoners'. Accordingly, the definition of 'prison' has been extended to cover any place where a person who has been charged with an offence may be remanded in custody for that offence.
Item 3 - definition of 'remand prisoner'
Item 3 inserts a definition of 'remand prisoner' in subsection 3(1) of the Transfer of Prisoners Act 1983. The definition is particularly relevant in Part IV of the Transfer of Prisoners Act.
Item 4 - definition of 'return transfer order'
Item 4 expands the definition of the term 'return transfer order' in subsection 3(1) of the Transfer of Prisoners Act 1983 to insert a reference to new section 16C.
Subsection 3(1) defines 'return transfer order' as an order for the transfer of a prisoner made under section 14 or 16A. The Transfer of Prisoners Act currently contains two provisions dealing with the return of a prisoner transferred under that Act, namely sections 14 and 16A. Section 14 provides for the return of a prisoner to the State or Territory from where he or she was transferred for the purposes of trial in certain circumstances. Section 16A provides for the return of a prisoner transferred for appeal purposes under section 16. However, these provisions would not deal with returning a prisoner transferred under Part IV on security grounds.
The Bill will insert new section 16C into the Transfer of Prisoners Act to provide for the return transfer of persons who are subject to a security transfer order or a return transfer order under new Part IV.
Item 5 - definition of 'security'
Item 5 inserts into subsection 3(1) of the Transfer of Prisoners Act 1983 a definition of the term 'security'. The new definition of 'security' is broad and is designed to deal with various forms of harm directed at the Commonwealth, States and Territories whether directed from, or committed within Australia or not, as well as the carrying out of Australia's responsibilities in relation to a range of matters listed.
The definition is necessary as it forms the basis of new Part IV which is designed to allow for the transfer of persons who are imprisoned or remanded in custody in relation to a Commonwealth, State or Territory offence in order to protect the security of Australia. The definition is consistent with the definition of security in the Australian Security Intelligence Organisation Act 1979.
Item 6 - definition of 'security transfer order'
Item 6 inserts a definition of the term 'security transfer order' into subsection 3(1) of the Transfer of Prisoners Act. A security transfer order is an order under new section 16B. New subsection 16B(1) will enable the Attorney-General to make a security transfer order in writing where he believes on reasonable grounds that it is necessary in the interests of security to transfer a prisoner or remand prisoner.
Items 7, 8 and 9 - definition of 'transfer order'
Items 7, 8 and 9 expand the definition of 'transfer order' in subsection 3(1) of the Transfer of Prisoners Act 1983 to include a 'security transfer order' and 'an order made under section 16D or 16E'.
This definition requires amendment to include references to security transfer orders, as will be made under new Part IV, section 16D orders (transfer for court proceedings) and orders under section 16E for a transfer for trial of a remand prisoner. This will ensure that for the purposes of the Transfer of Prisoners Act the term 'transfer order' covers the new types of orders introduced under the Bill.
Item 8 inserts the term 'or' to the end of paragraph (a) of the definition of 'transfer order' in subsection 3(1) to provide for the addition of 'security transfer order' and to indicate that the definition includes any of the types of orders listed, rather than a consolidation of those orders.
Item 9 also inserts a reference to "or (d) an order under section 16D or 16E" after the end paragraph (c) of the definition of "transfer order" in subsection 3(1).
Item 10 - amending subsection 3(10)
Item 10 inserts into subsection 3(10) of the Transfer of Prisoners Act 1983 after the term 'transfer order' reference to "(other than a security transfer order or an order under section 16D or 16E)".
Subsection 3(10) prevents the making or execution of a transfer order while the relevant person is subject to a sentence of imprisonment for contempt of court, a sentence of imprisonment for breaches of privileges of Parliament and a sentence of imprisonment that involves periodic detention.
Item 10 amends subsection 3(10) so that it does not apply to a person being transferred pursuant to a security transfer order, a transfer for court proceedings or the transfer for trial of a remand prisoner. For example, a person can be transferred for security reasons if he or she is serving a sentence of imprisonment that involves periodic detention. Orders made under those new provisions give rise to overriding circumstances where the predominant consideration should be the necessity of making the order for the reasons outlined in those provisions relating to security.
Items 11 and 13 - Consolidating Parts III and IV into a single Part III
The new items amend the Transfer of Prisoners Act 1983 to consolidate Parts III and Part IV of the Act into a single new Part III.
Currently, Part III of the Transfer of Prisoners Act deals with transfers for trial purposes and Part IV of the deals with the return of prisoners transferred for trial purposes under Part III, or who are required to attend court proceedings for appeal purposes. The Bill consolidates Parts III and IV into a single Part, namely Part III.
The Bill achieves this by dividing Part III into two Divisions, with Division 1 dealing with trial transfer orders and Division 2 dealing with the return of prisoners.
Item 11 inserts a reference to 'Division 1 - Trial transfer order'.
Item 12 repeals the heading 'Part IV' and Item 13 inserts before section 14 of the Transfer of Prisoners Act 1983 'Division 2 - Return of Prisoner'.
Item 14 inserts a new subsection 16(1A) to subsection 16(1) of the Transfer of Prisoners Act 1983. Section 16 enables the court to order that a person who is undergoing a sentence to be brought before the court for certain purposes (e.g. appeal) where that person was transferred to another State or Territory pursuant to a transfer order.
As a consequence of this Bill the definition of transfer order is being extended to include orders under new Part IV dealing with security transfer orders. New Part IV of the Transfer of Prisoners Act deals with the return of prisoners who are the subject of a security transfer order. Consequentially, new subsection 16(1A) provides that a court cannot make such an order under subsection 16(1) if the transfer order is an order under new Part IV.
Item 15 - Transfer for purpose of security
Item 15 inserts a new Part IV into the Transfer of Prisoners Act 1983 to govern transfers on security grounds.
Prisoners and remand prisoners will be dealt with in accordance with the sentence administration arrangements of the State or Territory in which they are held.
New Part IV consists of sections 16B, 16C, 16D, 16E and 16F.
New section 16B establishes a third ground for transfer under the Transfer of Prisoners Act, being transfers on security grounds. New section 16B is designed to deal with situations where there are reasonable grounds for believing that the transfer of a prisoner or a person charged with an offence under the law of the Commonwealth, a State or Territory is necessary in the interests of security.
New subsection 16B(1) provides the Commonwealth Attorney-General with the discretion to make a written order for the transfer of a prisoner or a remand prisoner imprisoned in a State or Territory to another State or Territory if the Attorney-General believes on reasonable grounds that it is necessary in the interests of security to order such a transfer.
The requirement that the Attorney-General believe on 'reasonable grounds' enables the Attorney-General to take advice from appropriate bodies including bodies that may be constituted in the future for the purpose of advising on these transfers.
Under new subsection 16B(1) the Attorney-General is able to make such an order for a prisoner serving a federal, Territory or State sentence of imprisonment or a remand prisoner. Accordingly, new section 16B will regulate security transfers for all prisoners and remand prisoners within Australia, regardless of whether the person is serving a sentence of imprisonment imposed under a law of the Commonwealth, a State or Territory, or if the person is remanded in custody in relation to an offence against the law of the Commonwealth, a State or Territory.
New subsection 16B(2) provides that in making a decision under new subsection 16B(1), the Attorney-General may consider all matters he or she considers relevant as well as the administration of justice and the welfare of the prisoner or remand prisoner.
New subsection 16B(3) stipulates that the Attorney-General must not make an order under new subsection 16B(1) without the written consent of relevant Ministers in writing. The relevant Ministers who must consent to the transfer are the appropriate Minister in the State or Territory in which the prisoner or remand prisoner is in prison and the appropriate Minister in the State or Territory to which the prisoner or remand prisoner is to be transferred.
Requiring the consent of both State or Territory Ministers will ensure that the State or Territory in which the prisoner is in prison or a remand prisoner is remanded, and the receiving State or Territory, is informed of the transfer and has no objections to the transfer. For example, the receiving State may not have adequate facilities for the particular offender.
New subsection 16C provides for the return of a prisoner or remand prisoner transferred to a State or Territory under a security transfer order or a return order made under section 16C.
New subsection 16C(1) provides that the Attorney-General may in certain circumstances make a written order for the return transfer of a prisoner or remand prisoner to either the State or Territory in which they were initially imprisoned or remanded, or to any other State or Territory to which the prisoner or remand prisoner was transferred under a security transfer order.
Such orders will be made where the Attorney-General reviews the order and as a result of that review, believes on reasonable grounds that in the current circumstances the order would not be made.
This provides a legislative mechanism for the return of a prisoner or remand prisoner to the State or Territory in which the prisoner was initially imprisoned or remanded, or any subsequent State or Territory to which that person was transferred under Part IV, where the Attorney-General believes on reasonable grounds that there is no longer a threat associated with the detention of that person in that State or Territory.
New subsection 16C(2) requires the Attorney-General to periodically review a security transfer order made under new subsection 16B(1) or a return order made under new subsection 16C(1), unless the prisoner has been returned to the originating State in which case the process has been concluded. Such reviews must be conducted within either three months of the day on which the Attorney-General made the order or last reviewed the order.
The Attorney-General is required under new subsection 16B(1) to make an order for the return transfer of a prisoner or remand prisoner where after such a review it is reasonable to believe that there is no longer a basis for making a security transfer order under new subsection 16B(1) or a return order under new subsection 16C(1). This requirement does not apply if the Attorney-General has made a new security transfer order under new subsection 16B(1) within the three months.
New subsection 16C(3) outlines the matters the Attorney-General must consider when making a written return order under new subsection 16C(1). In making the determination the Attorney-General must have regard to all matters that he or she considers relevant including the administration of justice and the welfare of the prisoner or remand prisoner.
As with new subsection 16B(2), this allows the Attorney-General to consider various information that may impact on his decision whether to make a return transfer order.
New subsection 16C(4) establishes the consent requirements necessary to authorise a return transfer under new subsection 16C(1). New subsection 16C(4) requires that the Attorney-General must not make an order for the return of a prisoner or remand prisoner without the written consent of the relevant State Ministers.
The consent required is that of the appropriate Minister of the State or Territory in which the prisoner or remand prisoner was imprisoned or remanded and of the State or Territory to which the prisoner or remand prisoner is to be transferred. Requiring the consent of such Ministers will ensure that the State or Territory in which the prisoner is imprisoned or a remand prisoner is remanded, and the receiving State or Territory, is informed of the transfer and has no objections to it.
New subsection 16C(5) defines an 'originating State or Territory' for the purposes of new section 16C. The originating State or Territory means the State or Territory in which the prisoner was held prior to becoming subject to a security transfer order under the Transfer of Prisoners Act 1983.
New section 16D provides for the transfer of a prisoner or remand prisoner who is subject to a security transfer order, or a return transfer order under new section 16C, to a State or Territory to attend court proceedings.
New subsection 16D(1) empowers the Attorney-General to make an order in writing for a prisoner or remand prisoner who is subject to a security transfer order or a return transfer order to attend court proceedings, as well as the transfer of that prisoner back to the first-mentioned State or Territory as soon as practicable after that appearance has concluded.
This provision provides a mechanism for the transfer of persons who are subject to a security transfer order or return transfer order for court proceedings and their return after the legal proceedings are finalised. The provision covers the return after the conclusion of court proceedings to avoid another transfer order having to be made.
New subsection 16D(2) outlines situations where it is inappropriate to make an order for transfer of court proceedings. For example, new paragraph 16D(2)(a) provides that the Attorney-General must not make an order if the Attorney-General believes on reasonable grounds that it would be contrary to the interests of security.
New paragraph 16D(2)(b) provides that new section 16D does not apply where the purpose for that transfer is to allow a remand prisoner to appear in proceedings for the offence with which he or she has been charged and for which he or she had been remanded in custody. This circumstance is specifically dealt with in new subsection 16E.
Once a person who is subject to a security transfer order or an order under new subsection 16C(1) has been returned to the originating State, as will be defined in the Transfer of Prisoners Act 1983, new section 16D will no longer apply. In such circumstances the Attorney-General will have determined as a result of a review of the security transfer order or return order that there is no longer a risk to security in that originating State or Territory. Where this occurs the prisoner will be subject to the general provisions of the Transfer of Prisoners Act, as well as the interstate transfer of prisoners legislation in the relevant State or Territory.
New subsection 16D(3) outlines the matters the Attorney-General must have regard to when considering whether to order a transfer for the purposes of attending court proceedings. This provision requires the Attorney-General to have regard to all matters that he or she considers relevant, including the administration of justice and the welfare of the prisoner or remand prisoner.
This discretion enables the Attorney-General to consider information from a range of sources including those bodies that may be constituted in the future for the purpose of advising on these transfers.
New subsection 16D(4) establishes the consent requirements necessary for transfer for court proceedings. The consent of the appropriate Minister of the State or Territory in which the prisoner or remand prisoner is imprisoned or remanded at the time the order was made is required in writing.
This provides an opportunity for the State or Territory from which the prisoner or remand prisoner is being transferred, as well as the receiving State or Territory, to provide input into the transfer. This is appropriate as the relevant States or Territories will need to ensure that adequate facilities and measures are in place to deal with persons subject to a security transfer order.
New section 16E seeks to regulate the transfer of remand prisoners for trial purposes. In the interests of justice it is necessary to provide for the transfer of a person who is charged with an offence and who is remanded in custody for that offence to attend court for the offence with which he or she is charged and for which he or she has been remanded in custody.
New subsection 16E(1) provides that the Attorney-General must make an order in writing for the transfer of a remand prisoner to attend court where: (a) there is a security order or a return transfer order under new section 16C for that person, (b) the remand prisoner is required to appear in court for proceedings for the offence for which they have been remanded in custody, and (c) the remand prisoner is not in the jurisdiction in which the proceedings are being conducted.
The new provision also ensures that the Attorney-General can order the transfer of such a remand prisoner back from the State or Territory in which they appeared to the other State or Territory in which they were remanded as soon as practicable after that appearance. This would allow for security concerns arising from the presence of the prisoner in the State or Territory in which he or she was required to appear to be minimised.
Under new subsection 16E(2) the Attorney-General has a discretion not to make an order under new subsection 16E(1) if the Attorney-General believes on reasonable grounds that it is essential in the interests of security that the order not be made and the court that remanded the remand prisoner in custody orders the continued detention of the remand prisoner.
The word 'essential' has been used to reflect that the starting obligation is that remand prisoners must be returned to appear in court proceedings and that it is only if it is 'essential' in the interests of security that the transfer be denied and that the court has ordered that the remand prisoners detention be continued. This is to ensure that the criminal charges against the remanded prisoner are not unreasonably delayed.
New subsection 16E(2) precludes the application of new section 16E once the prisoner or remand prisoner has been returned to the originating State or Territory as defined.
New section 16F stipulates that where a prisoner or remand prisoner is subject to an order under new Part IV of the Transfer of Prisoners Act 1983, applications or orders for transfer on welfare or trial grounds under State complementary transfer of prisoner legislation cannot be made without the Attorney-General's written consent.
The purpose of new section 16F is to ensure that the Attorney-General is involved in the transfer of any State prisoner or remand prisoner who is subject to a security transfer order under Part IV from one State or Territory to another State or Territory. This is appropriate given that the Attorney-General is responsible for national security.
New subsection 16F(1) stipulates that transfers under State transfer laws (trial or welfare) for person subject to an order under new Part IV cannot be made unless the Attorney-General consents in writing to the transfer.
New subsection 16F(2) provides that new section 16F does not apply once the person has been returned to the originating State or Territory under new section 16C.
In such circumstances new Part IV would have no further application and the prisoner or remand prisoner is again solely subject to the interstate transfer of prisoners legislation in the originating State.
These new items preclude the application of subsection 17(5) and subsection 17(6) of the Transfer of Prisoners Act 1983 to orders under new Part IV.
Section 17 of the Transfer of Prisoners Act provides for the transfer, custody and handing over of prisoners transferred under the Transfer of Prisoners Act. Subsection 17(5) provides amongst other things that where a prisoner is a joint prisoner a transfer order under the Transfer of Prisoners Act has no effect until there is a complementary State order of transfer made pursuant to State interstate transfer of prisoners legislation.
Subsection 17(6) provides that a transfer order has no effect where it purports to authorise the transfer of a State prisoner from a State to another State or Territory.
Retaining subsections 17(5) and 17(6) would have inhibited the new security transfer scheme and consequently those subsections have been excluded from applying to persons subject to orders under Part IV.
Item 18 inserts into subsection 29(1) of the Transfer of Prisoners Act 1983 a reference to powers under Part IV.
Section 29 of the Transfer of Prisoners Act provides for the delegation of powers under that Act. Subsection 29(1) grants the Attorney-General discretion to delegate his or powers under the Transfer of Prisoners Act. The compulsory nature of security transfers and return transfers under Part IV, as well as other relevant requirements, such as periodical review of security transfer orders or return orders, requires the consideration and authorisation of the Attorney-General. It is inappropriate to delegate such powers in such circumstances.
Item 19 inserts a new subsection 29(1A) to further limit the delegation powers under subsection 19(1) of the Transfer of Prisoners Act 1983.
New subsection 29(1A) will preclude the Attorney-General from delegating identified powers under Part II or III of the Transfer of Prisoners Act associated with security transfers. As outlined above, it is inappropriate for a delegate of the Attorney-General to make orders, consider applications, give consent or serve notices that relate to a prisoner or remand prisoner subject to an order under new Part IV in circumstances that involve consideration of questions of security.
Item 20 inserts a reference to 'or powers under Part IV' to the end of subsection 29(4) of the Transfer of Prisoners Act 1983.
Subsection 29(4) allows the appropriate Minister of a State to delegate in writing any or all of his powers under the Transfer of Prisoners Act other than the power of delegation. The new amendment will preclude the Minister of a relevant State from being able to delegate any of his or her powers under Part IV, such as the power to consent to a transfer on security grounds under new subsections 16B(3), 16C(4) and 16D(4).