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 bail cannot transfer to another state or territory.
The Prisoners (Interstate Transfer) Act 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: Prosecution 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 jurisdiction 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, security and good order of any prison;
- the safe custody 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 Parole 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 appeal. Third, the prisoner’s offence is also an offence in the country they wish to transfer to.