Commonwealth Consolidated Acts

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INTERNATIONAL TRANSFER OF PRISONERS ACT 1997 - SECT 4

Definitions

(1)
In this Act, unless the contrary intention appears:

"ACT" means the Australian Capital Territory.

"ACT Minister" means the Minister for the ACT administering the law of the ACT relating to the transfer of prisoners and includes any Minister acting for the time being for or on behalf of that Minister.

"appropriate Ministerial consent" means Ministerial consent given as required by section 5.

"Attorney-General" means the Attorney-General of the Commonwealth.

"Australian court" means a court or tribunal of the Commonwealth, a State or a Territory.

"Australian law" means a law of the Commonwealth, a State or a Territory.

"community ties" has the meaning given by subsections (4) and (5).

"continued enforcement method", in relation to enforcement of a sentence of imprisonment, has the meaning given by section 42.

"converted enforcement method", in relation to enforcement of a sentence of imprisonment, has the meaning given by section 42.

"escort officer", in relation to a prisoner, means the police officer, prison officer or other person specified in the warrant authorising the transfer of the prisoner under this Act as the escort officer for the prisoner.

"extradition country" has the same meaning as in the Extradition Act 1988 .

"federal prisoner":

(a) means a prisoner who is serving a sentence of imprisonment imposed under a law of the Commonwealth; and
(b) includes a prisoner who is serving a sentence of imprisonment imposed under a law of the Northern Territory and who was, before 12 June 1985, removed to the State of South Australia under section 3 of the Removal of Prisoners (Territories) Act 1923 .

"foreign law" means a law of a foreign country or of a part of, or in force in a part of, a foreign country.

"Former Yugoslavia Tribunal":

(a) means the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, established by Resolution 827 (1993) of the Security Council of the United Nations, a copy of the English text of which is set out in Schedule 1 to the International War Crimes Tribunals Act 1995 ; and
(b) includes any of the organs referred to in Article 11 of the Statute of the Tribunal.

"Immigration Minister" means the Minister administering the Migration Act 1958 .

"joint prisoner" means a prisoner who is:

(a) both a State prisoner or a Territory prisoner (or both) and a federal prisoner; or
(b) both a State prisoner and a Territory prisoner.

"law" of the Commonwealth, a State or a Territory, means a law (whether written or unwritten) of the Commonwealth, that State or that Territory, and includes a law (whether written or unwritten) in force in the Commonwealth, that State or that Territory or in any part of the Commonwealth, that State or that Territory.

"mental illness" means an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.

"mental impairment" includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

"mentally impaired prisoner" means:

(a) a person serving a sentence of imprisonment on the acquittal of the person for an offence on the ground of mental impairment; or
(b) a person serving a sentence of imprisonment because the person has been found mentally unfit to stand trial.

"national" of a country means a person who is a citizen of the country under the law of the country.

"non-parole period", in relation to a sentence of imprisonment, means that part of the period of imprisonment for that sentence during which the person is not to be released on parole, whether that part of the period is fixed or recommended by a court or tribunal or fixed by operation of law.

"police officer" means:

(a) a member or special member of the Australian Federal Police; or
(b) a member of the police force of a State or Territory.

"prison officer" means a person appointed or employed to assist in the management of a prison.

"prisoner" means a person (however described) who is serving a sentence of imprisonment and includes:

(a) a mentally impaired prisoner; and
(b) a person who has been released on parole.

"prisoner's representative" means a person who may consent to the transfer of a prisoner as referred to in section 6.

"release on parole" means any form of conditional release in the nature of parole and includes:

(a) release on probation; and
(b) release on licence to be at large.

"Rwanda Tribunal":

(a) means the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, established by Resolution 955 (1994) of the Security Council of the United Nations, a copy of the English text of which is set out in Schedule 3 to the International War Crimes Tribunals Act 1995 ; and
(b) includes any of the organs referred to in Article 10 of the Statute of the Tribunal.

"sentence of imprisonment" means any punishment or measure involving deprivation of liberty ordered by a court or tribunal for a determinate or indeterminate period in the exercise of its criminal jurisdiction and includes any direction or order given or made by the court or tribunal with respect to the commencement of the punishment or measure.

"State" includes the ACT and the Northern Territory.

"State Minister" means:

(a) in relation to a particular State other than the ACT or the Northern Territory—the Minister of the State administering the law of the State relating to the transfer of prisoners; and
(b) in relation to the ACT—the ACT Minister; and
(c) in relation to the Northern Territory—the Minister for the Northern Territory administering the law of the Northern Territory relating to the transfer of prisoners;

and includes any Minister acting for the time being for or on behalf of that Minister and any person to whom the Minister has delegated any of the Minister's functions under this Act.

"State prisoner" means a prisoner who is serving a sentence of imprisonment imposed under a law of a State.

"Statute of the Tribunal" means:

(a) in the case of the Former Yugoslavia Tribunal—the Statute of the Tribunal (a copy of the English text of which is set out in Schedule 2 to the International War Crimes Tribunals Act 1995 ) adopted by Resolution 827 (1993) of the Security Council of the United Nations (a copy of the English text of which is set out in Schedule 1 to that Act); and
(b) in the case of the Rwanda Tribunal—the Statute of the Tribunal (a copy of the English text of which is set out in Schedule 4 to the International War Crimes Tribunals Act 1995 ) adopted by Resolution 955 (1994) of the Security Council of the United Nations (a copy of the English text of which is set out in Schedule 3 to that Act).

"superintendent" of a prison means the person for the time being in charge of the prison.

"Territory" means the Jervis Bay Territory, Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include the ACT and the Northern Territory.

"Territory Minister" means:

(a) in relation to a particular Territory (other than Norfolk Island)—the Minister administering the law of the Territory relating to the transfer of prisoners; and
(b) in relation to Norfolk Island—the executive member (within the meaning of the Norfolk Island Act 1979 ) administering the law of Norfolk Island relating to the transfer of prisoners;

and includes any Minister or executive member acting for the time being for or on behalf of that Minister or executive member and any person to whom the Minister or executive member has delegated any of the Minister's or executive member's functions under this Act.

"Territory prisoner" means a prisoner who is serving a sentence of imprisonment imposed under a law of a Territory.

"transfer country" means a foreign country or a region that is declared by the regulations under section 8 to be a transfer country.

"treaty" includes a convention, protocol, agreement or arrangement.

"Tribunal" means:

(a) the Former Yugoslavia Tribunal; or
(b) the Rwanda Tribunal.

"Tribunal country" means a foreign country in which a Tribunal prisoner is serving, or is to serve, a sentence of imprisonment imposed by the Tribunal.

"Tribunal offence" means:

(a) an offence in relation to which the Former Yugoslavia Tribunal has the power to prosecute persons under Article 2, 3, 4 or 5 of the Statute of the Tribunal; or
(b) an offence in relation to which the Rwanda Tribunal has the power to prosecute persons under Article 2, 3 or 4 of the Statute of the Tribunal.

"Tribunal prisoner" means a prisoner who is serving a sentence of imprisonment imposed by a Tribunal for a Tribunal offence.

(2)
For the purposes of this Act, the following persons are taken not to be serving a sentence of imprisonment:

(a) a person who has been released by a court from serving the whole or a part of a sentence of imprisonment on the person giving a security (with or without sureties) by recognisance or otherwise, that the person will comply with conditions relating to the person's behaviour and in relation to whom action can no longer be taken because of a breach of a condition of the security or because of the expiration of the security;
(b) a person who, through exercise of the Royal prerogative of mercy or other executive prerogative or discretion given by law, is no longer required to serve the whole or part of a sentence of imprisonment;
(c) a person on whom a sentence of imprisonment has been imposed that has not yet commenced.

(3)
If a sentence of death imposed on a person has been commuted to a term of imprisonment or to imprisonment for life, this Act applies to and in relation to the person as if the sentence of death had been a sentence of imprisonment for that term or for life.

(4)
For the purposes of this Act, a prisoner has community ties with a transfer country if:

(a) the prisoner's principal place of residence immediately before being sentenced to imprisonment in Australia was in the transfer country; or
(b) the prisoner's parent, grandparent or child has a principal place of residence in the transfer country; or
(c) the prisoner is married to or has a de facto relationship with anyone whose principal place of residence is in the transfer country; or
(d) the prisoner has a close continuing relationship (involving frequent personal contact and a personal interest in the other person's welfare) with anyone whose principal place of residence is in the transfer country.

(5)
For the purposes of this Act, a prisoner has community ties with a State or a Territory if:

(a) the prisoner's principal place of residence immediately before being sentenced to imprisonment in the transfer country was in that State or Territory; or
(b) the prisoner's parent, grandparent or child has a principal place of residence in that State or Territory; or
(c) the prisoner is married to or has a de facto relationship with anyone whose principal place of residence is in that State or Territory; or
(d) the prisoner has a close continuing relationship (involving frequent personal contact and a personal interest in the other person's welfare) with anyone whose principal place of residence is in that State or Territory.


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