Revised Explanatory Memorandum
(Circulated by the authority of the Attorney-General, the Honourable Philip Ruddock MP)Outline, financial impact statement and notes on items
Outline
The Bill contains, in Schedule 3 amendments to the Schedule of the Criminal Code Act 1995 ('the Criminal Code'); and in Schedule 4 amendments to the Administrative Decisions (Judicial Review) Act 1977 and to the Transfer of Prisoners Act 1983. The proposed amendments improve Australia's counter-terrorism legal framework.
The objects of this Bill are:
- a.
- to amend the Criminal Code Act 1995 to strengthen the counter-terrorism legislation by extending the application of offence provisions under Division 102 of the Code to people whose associations with a listed terrorist organisation, or with a person who is a member or who promotes or directs the activities of such an organisation, assists the organisation to continue to exist or to expand.
- b.
- to amend the Transfer of Prisoners Act 1983 to include security as a third ground for transfer between State or Territory prisons for federal, State and Territory prisoners, as well as for persons charged with and remanded in custody for an offence. The amendments to the Transfer of Prisoners Act will also provide for the return transfer of such persons, as well as the transfer of such persons for court proceedings.
- c.
- To amend the Administrative Decisions (Judicial Review) Act 1977 to make decisions of the Attorney-General under Part IV of the Transfer of Prisoners Act 1983, as well as any decision of the Attorney-General under the Act on the grounds of security, exempt from the application of the Act.
Division 102 of the Criminal Code
The Bill would insert a new offence provision, "Association with a Terrorist Organisation", in Division 102 of the Criminal Code which would make it an offence to intentionally associate with a person who is a member or who promotes or directs the activities of a listed terrorist organisation where that association provides support that would help the terrorist organisation to continue to exist or to expand. The offence would only apply to organisations which are listed as terrorist organisations under the Criminal Code Regulations 2002 and where the person knew that the organisation was a listed terrorist organisation. Exceptions to the offence are provided for in relation to associations with close family members; associations for the purpose of public religious worship; associations for the purpose of the provision of aid of a humanitarian nature; and associations for the purpose of providing legal advice or representation in criminal proceedings, or related proceedings, or proceedings relating to whether the organisation in question is a terrorist organisation.
The provision draws on concepts from the offence of consorting (which is a State and Territory offence aimed against criminal gangs), and fairly recently enacted New South Wales legislation which provides for the use of non-association orders as part of sentencing (Crimes (Sentencing Procedure) Act 1999 (NSW) No. 92.). Just as consorting offences can be used to break up criminal gangs, the proposed offence can be used to break up terrorist groups.
Transfer of Prisoners Act 1983
Schedule 4 amends the Transfer of Prisoners Act 1983 to include security as a third ground for transfer between State or Territory prisons for federal, State and Territory prisoners, as well as for persons charged with and remanded in custody for an offence. The amendments to the Transfer of Prisoners Act will also provide for the return transfer of such persons, as well as the transfer of such persons for court proceedings.
Financial impact statement
The Bill is not expected to have a significant financial impact.
Notes on items
It is proposed that the short title of the Act will be the Anti-terrorism (No. 2) Act 2004.
Item 4 of the table provides that Schedule 3 commences on the day after the day on which this Act receives the Royal Assent.
Item 5 of the table provides that Schedule 4 commences on the day on which this Act receives the Royal Assent.
This clause provides that Acts specified in Schedule 3 (Criminal Code Act 1995); and in Schedule 4 (Administrative Decisions (Judicial Review) Act 1977 and Transfer of Prisoners Act 1983) are amended as set out in each case.
Schedule 3 - Associating with a Terrorist Organisation
This item defines 'associate'. It provides that a person associates with another person if the person meets or communicates with the other person. This definition is intended to include all modern forms of communication.
This item defines 'close family member' as the person's spouse, de facto spouse or same-sex partner; parent, step-parent or grandparent; child, step-child or grandchild; brother, sister, step-brother or step-sister; guardian or carer. This definition is provided for the purpose of an exception to the application of the offence in the case of a person's association with close family members who may be members or who may promote or direct the activities of organisations specified in regulations as terrorist organisations.
Item 3 - New Section 102.8 of the Criminal Code
This item inserts a new section 102.8 "Association with a Terrorist Organisation" into Division 102 of the Criminal Code.
The new section 102.8 makes it an offence for a person to intentionally associate on two or more occasions, or on any occasion subsequent to a conviction for the same offence, with a person who is a member or who promotes or directs the activities of an organisation which is listed as a terrorist organisation under the Criminal Code Regulations 2002. Two or more occasions is a limitation found in the approach of courts and legislatures to the offence of consorting and related provisions (see section 100.A of the Crimes Act 1900 (NSW) No. 40.) and is a safeguard that only has relevance to the first offence.
A person who is convicted of an offence under the new subsection 102.8 (1) in relation to the person's conduct on 2 or more occasions is not liable to be punished for an offence under subsection (1) for other conduct of the person that takes place at the same time as that conduct or within 7 days before or after any of those occasions. This will avoid raising the prospect of a multiplicity of charges concerning the same course of conduct.
The amendment extends the application of Division 102 to persons who have links with a listed terrorist organisation or a person who is a member or who promotes or directs the activities of a listed terrorist organisation, but who themselves are not members of the organisation but through the association provide support to the organisation.
Strict liability applies to the element in paragraphs (1)(b) and (2)(g) (that the organisation is a terrorist organisation specified in regulations). Consequently, the prosecution would not have to prove that the person was aware that the organisation is a terrorist organisation specified in regulations. However, the prosecution must still prove that the person intentionally associated with a person who is a member or who promotes or directs the activities of the organisation, and that the person knew that the organisation was a terrorist organisation.
Application of paragraph 6.1(2)(b) of the Criminal Code (which concerns the rules that govern strict liability) means that the person would have a mistake of fact defence available under section 9.2 of the Criminal Code. In the case of the new subsections 102.8(1) and (2), this would mean that a person is not criminally responsible if before the time of the offending conduct the person considered whether or not the organisation was an organisation specified in regulations and the person was under a mistaken but reasonable belief that it was not such an organisation. The defendant bears the evidential burden in this case. If the person can point to evidence that they had such a mistaken belief then it is for the prosecution to prove beyond reasonable doubt that there was no mistaken belief.
In addition to the normal mistake of fact defence attaching to strict liability, subsection (5) also includes a recklessness exception. The offences in the new subsections 102.8(1) and (2) will not apply if the person is not reckless as to whether the organisation is a terrorist organisation specified in regulations. Application of subsection 13.3(3) of the Criminal Code means that the person bears an evidential burden in relation to this matter. If the person can point to evidence suggesting a reasonable possibility that the exception applies, then it is for the prosecution to prove beyond reasonable doubt that the exception has no application. This is consistent with proposed amendments to section 102.5 in the Anti-Terrorism Bill (terrorism training offence) which were acceptable to the Senate Legal and Constitutional Legislation Committee in its report on that Bill.
It is intended that the offence will apply in relation to the provision of support to the terrorist organisation as an entity, rather than with respect to the activities of the organisation. The offence is therefore designed to address the fundamental unacceptability of the organisation itself by making meeting or communicating ("associating") with the organisation in a manner which assists the continued existence or the expansion of the organisation illegal. This is an acknowledgement that because membership of such organisations is illegal, playing a role in supporting the existence or expansion of an illegal organisation should also be a crime.
The person must intend to help the organisation continue to exist or to expand on each occasion of associating with a person who is a member of the organisation. The person must know that the associate is a member of an organisation and that the organisation is a terrorist organisation.
Exceptions are provided for in the case of associations with 'close family members' relating to matters that could be regarded (taking into account the person's cultural background) as matters of family or domestic concern, and associations at a place being used for public religious worship which take place in the course of practicing a religion. These exceptions are based upon similar exceptions provided for in section 100A of the Crimes (Sentencing Procedure) Act 1999 No. 92 (NSW). Exceptions under the NSW law relating to education, employment and residence are not included because of the potential for misuse of these kinds of exception by those with links to a terrorist organisation.
Exceptions are also provided for in relation to associations only for the purpose of providing aid of a humanitarian nature and associations only for the purpose of providing legal advice or legal representation in connection with criminal proceedings or proceedings connected with criminal proceedings or proceedings relating to whether the organisation in question is a terrorist organisation. The exception in relation to humanitarian aid is intended to apply to persons undertaking humanitarian aid who, through the course of providing such humanitarian aid, associate with a person who is a member of a terrorist organisation or who promotes or directs the activities of a terrorist organisation. The exception in relation to legal advice and representation is designed to ensure that lawyers who provide advice to, or act on behalf of, a person who is a member of a terrorist organisation or who promotes or directs the activities of a terrorist organisation are not liable under the provision. It is important that even those suspected of associating with terrorists have adequate legal advice so that the courts can be sure there is an adequate array of evidence and argument in specific cases. The Government is committed to a trial process that identifies genuine cases of terrorist-related wrongdoing.
The amendment is by necessity wide-ranging in terms of the types of activities or persons who might be subject to it. For this reason, the new section 102.8 has been designed to avoid impugning the implied constitutional freedom of political communication. This exception can be established by the defendant if he or she establishes the evidential burden. If the person can point to evidence suggesting a reasonable possibility that the association was a purely political communication for the purposes of the Constitution, then it is for the prosecution to prove beyond reasonable doubt that the exception would have no application. For example, a journalist interviewing a terrorist for a documentary could make use of the exception.
The new section 102.8 will also provide an alternative charge with lower penalties than section 102.7 "Providing Support to a Terrorist Organisation" in the Criminal Code. Section 102.7 is concerned with more serious activities. Under section 102.7, it is an offence to provide support or resources to a terrorist organisation that would assist the organisation to engage in, prepare, plan, assist in or foster the doing of a terrorist act.
The existing ancillary offences dealing with the aiding and abetting, counselling or procuring the commission of an offence under section 11.2(1) of the Criminal Code, and the offence provisions designed to capture the facilitation of terrorist acts such as those in Division 101 of the Criminal Code, are more difficult to prove than the proposed offence because they contain a causal element that is linked to the commission of a terrorist act.
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).