The interstate transfer of prisoners
In certain circumstances (e.g. in the interests of the prisoner’s welfare), a prisoner can be transferred from a prison in Victoria to a prison in another Australian state or territory, and vice versa.
Prisoners on remand cannot be transferred. People on The procedure that allows a person who has been charged with an offence to be released from police control or prison until the hearing of the case. Courts can add conditions to bail. For example, they can require that people released on bail promise to come to the court on a set date, or put up an amount of money that they cannot get back if they do not appear as they promised. See also undertaking. cannot transfer to another state or territory.
Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute.
The Prisoners (Interstate Transfer) A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1983 (Vic) (‘PIT Act’) allows for the interstate transfer of adult prisoners. Schedule 2 of the Children, Youth and Families Act 2005 (Vic) allows for the interstate transfer of underage prisoners.
The legislation relating to the interstate transfer of prisoners is the same in each Australian state and territory; this facilitates transfers between states and promotes the efficient administration of justice.
Reason for transfer: The party presenting evidence in court on behalf of the state or Commonwealth government against a person accused of committing a crime. Also called the Crown. of outstanding criminal charges
Sections 12–19 of the PIT Act allow a prisoner to be transferred interstate for the purpose of criminal proceedings. A prisoner can be transferred at any time in criminal proceedings. Generally, the prosecutor or the prisoner requests the transfer.
The transfer process is usually slow and can take many months. This is because the Victorian and interstate Attorney-General must both approve the transfer. If a prisoner is nearing the end of their sentence, a transfer many not be possible.
Reason for transfer: Prisoner’s welfare
Sections 7–11 of the PIT Act allow a prisoner to be transferred interstate for their welfare. For example, a prisoner who is serving a sentence in a The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area. where none of their family or friends live may seek to transfer to a prison in their home state or territory.
To request an interstate transfer on welfare grounds, the prisoner or their lawyer needs to send a written request to the Victorian Minister for Corrections (s 7(1)(a)) (see ‘Contacts’ at the end of this chapter). The minister bases their decision on a number of considerations.
These considerations include:
- the welfare of the prisoner;
- the administration of justice, Money or property promised to be handed over as a guarantee for repayment of a loan, or as a guarantee that a defendant will meet their bail conditions. and good order of any prison;
- the safe Lawful control over a person which prevents them leaving. A person under arrest is in police custody and is not free to go. A person in prison is serving a custodial sentence that keeps them confined to the prison grounds. of the prisoner and the protection of the community; and
- any other matter the minister considers to be relevant (s 10A).
Thus, a transfer request should state how a prisoner’s continued imprisonment in the relevant state or territory is harmful to the prisoner’s welfare, and how the transfer would benefit the prisoner’s rehabilitation.
The interstate transfer of prisoners on parole
The To free a prisoner after they have served a minimum term, but before the end of their sentence. While on parole the person may be subject to conditions such as having to report regularly to police. Orders (Transfer) Act 1983 (Vic) (‘Parole Orders Act’) allows Victoria to transfer parole arrangements to other Australian states and territories.
Under the Parole Orders Act, authorities can deal with a person on parole as if they had been granted parole in the particular state or territory to which they are transferred. The state or territory that is receiving the person must be willing to accept them.
The Minister for Corrections makes the ultimate decision about whether or not a person on parole is to be transferred. The Adult Parole Board imposes appropriate parole conditions for those who have successfully applied to transfer to Victoria.
Prisoners who wish to request any future parole be transferred interstate should ask their case manager. Those already on parole should ask their parole officer. Both prisoners and parolees should be aware that parole laws vary across Australian jurisdictions.
The international transfer of prisoners
The International Transfer of Prisoners Act 1997 (Cth) (‘ITP Act’) provides the legal framework for the international transfer of prisoners to and from Australia so they may serve their sentence of imprisonment in their home country (ss 7, 8). The Victorian Parliament has given effect to the ITP Act by passing the International Transfer of Prisoners (Victoria) Act 1998 (Vic).
Prisoners can only be transferred to and from countries that have signed the relevant international bilateral treaties (e.g. the Council of Europe’s Convention on the Transfer of Sentenced Persons (1983)). Before a transfer takes place, it must be approved by the Australian Government, the government of the foreign country, and by the prisoner.
Certain conditions need to be satisfied for a transfer to or from Australia to take place. First, there must be at least six months of the prisoner’s sentence remaining (or one year for some countries). Second, neither the prisoner’s sentence nor conviction is subject to The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision.. Third, the prisoner’s A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). is also an offence in the country they wish to transfer to.