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ANTI-TERRORISM ACT (NO. 2) 2004 NO. 124, 2004 - SCHEDULE 4

- Transfer of prisoners

Administrative Decisions (Judicial Review) Act 1977

1 After paragraph (xa) of Schedule 1

Insert:

(xb) decisions of the Attorney-General under Part II or III of the Transfer of Prisoners Act 1983 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 that Act);
(xc) decisions of the Attorney-General under Part IV of the Transfer of Prisoners Act 1983 ;

Transfer of Prisoners Act 1983

2 Subsection 3(1) (definition of prison )

Repeal the definition, substitute:

"prison" includes:

(a) any place where a person who has been sentenced to imprisonment may be detained to undergo that imprisonment; and
(b) any place where a person who has been charged with an offence may be remanded in custody for that offence.

3 Subsection 3(1)

Insert:

"remand prisoner" means a person who has been charged with an offence against a law of the Commonwealth and who has been remanded in custody for that offence.

4 Subsection 3(1) (definition of return transfer order )

Omit "or 16A", substitute ", 16A or 16C".

5 Subsection 3(1)

Insert:

"security" means:

(a) the protection of, and of the people of, the Commonwealth and the several States and Territories from:
(i) espionage; or
(ii) sabotage; or
(iii) politically motivated violence; or
(iv) promotion of communal violence; or
(v) attacks on Australia's defence system; or
(vi) acts of foreign interference; or
whether directed from, or committed within, Australia or not; and
(b) the carrying out of Australia's responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a).

6 Subsection 3(1)

Insert:

"security transfer order" means an order for the transfer of a prisoner made under section 16B.

7 Subsection 3(1) (before paragraph (a) of the definition of transfer order )

Insert:

(aa) a security transfer order; or

8 Subsection 3(1) (at the end of paragraph (a) of the definition of transfer order )

Add "or".

9 Subsection 3(1) (at the end of the definition of transfer order )

Add:

; or (d) an order under section 16D or 16E.

10 Subsection 3(10)

After "transfer order", insert "(other than an order under Part IV)".

11 Part III (after the heading)

Insert:

Division 1—Trial transfer order
12 Part IV (heading)

Repeal the heading.

13 Before section 14

Insert:

Division 2—Return of prisoner
14 After subsection 16(1)

Insert:

(1A)
However, subsection (1) does not apply if the transfer order in pursuance of which the person is in that other State or Territory is an order under Part IV.

15 Before Part V

Insert:

Part IV—Transfer for purpose of security
16B Transfer of prisoner on security grounds
(1)
The Attorney-General may make an order in writing for the transfer of:

(a) a prisoner serving a federal sentence of imprisonment in a prison of a State or Territory; or
(b) a remand prisoner in a prison of 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.

(2)
In exercising his or her powers under subsection (1) to make an order, the Attorney-General must have regard to all matters that he or she considers relevant, including, but without limiting the generality of the foregoing:

(a) the administration of justice; and
(b) the welfare of the prisoner or remand prisoner.

(3)
The Attorney-General must not make an order under subsection (1) for the transfer of the prisoner or remand prisoner unless both:

(a) the appropriate Minister of the State or Territory in which the prisoner or remand prisoner is in prison; and
(b) the appropriate Minister of the State or Territory to which the prisoner or remand prisoner is to be transferred;

have consented in writing to the transfer.

16C Return of prisoner
(1)
If:

(a) a prisoner or remand prisoner is transferred to a State or Territory pursuant to:
(i) a security transfer order; or
(ii) a return transfer order under this section (unless it orders a transfer to the originating State or Territory); and
(b) the Attorney-General reviews the order; and
(c) as a result of the review, the Attorney-General believes on reasonable grounds that, if he or she were now to consider the transfer of the prisoner or remand prisoner to the State or Territory, the order would not be made;

the Attorney-General may make an order in writing for the transfer of the prisoner or remand prisoner from that State or Territory back to:

(d) the State or Territory from which he or she has been transferred pursuant to that order; or
(e) if that State or Territory is not the originating State or Territory:
(i) the originating State or Territory; or
(ii) any other State or Territory to which the prisoner or remand prisoner has been transferred, pursuant either to a security transfer order or to a return transfer order under this section, since his or her transfer from the originating State or Territory.

(2)
The Attorney-General must conduct a review of an order referred to in paragraph (1)(a), within 3 months after:

(a) the day on which the Attorney-General made the order; and
(b) the day on which the Attorney-General last reviewed the order;

unless the Attorney-General has made an order under subsection (1) after a review of that order.

(3)
In exercising his or her powers under subsection (1) to make an order, the Attorney-General must have regard to all matters that he or she considers relevant, including, but without limiting the generality of the foregoing:

(a) the administration of justice; and
(b) the welfare of the prisoner or remand prisoner.

(4)
The Attorney-General must not make an order under subsection (1) for the transfer of the prisoner or remand prisoner unless both:

(a) the appropriate Minister of the State or Territory in which the prisoner or remand prisoner is in prison; and
(b) the appropriate Minister of the State or Territory to which the prisoner or remand prisoner is to be transferred;

have consented in writing to the transfer.

(5)
In this section:

"originating State or Territory" means the last State or Territory in which the prisoner or remand prisoner was held other than as a result of an order under this Part.

16D Transfer for court proceedings—general
(1)
If a security transfer order, or a return transfer order under section 16C, has been made in relation to a prisoner or remand prisoner, the Attorney-General may make an order in writing for:

(a) the transfer of the prisoner or remand prisoner from the State or Territory in which the prisoner or remand prisoner is in prison to another State or Territory to appear in proceedings before a court in that other State or Territory; and
(b) the transfer of the prisoner or remand prisoner from the other State or Territory back to the first-mentioned State or Territory as soon as practicable after that appearance has concluded.

(2)
However:

(a) the Attorney-General must not make an order under subsection (1) if the Attorney-General believes on reasonable grounds that it is contrary to the interests of security; and
(b) this section does not apply in relation to the appearance of a remand prisoner in proceedings for the offence with which he or she is charged and for which he or she has been remanded in custody; and
(c) this section does not apply once the prisoner or remand prisoner has been returned to the originating State or Territory (within the meaning of section 16C).

(3)
In exercising his or her powers under subsection (1) to make an order, the Attorney-General must have regard to all matters that he or she considers relevant, including, but without limiting the generality of the foregoing:

(a) the administration of justice; and
(b) the welfare of the prisoner or remand prisoner.

(4)
The Attorney-General must not make an order under subsection (1) for the transfers of the prisoner or remand prisoner unless both:

(a) the appropriate Minister of the State or Territory in which the prisoner or remand prisoner is in prison at the time the order is made; and
(b) the appropriate Minister of the State or Territory to which the prisoner or remand prisoner is to be transferred to appear in the proceedings;

have consented in writing to the transfers.

16E Transfer for trial of remand prisoner
(1)
If:

(a) a security transfer order, or a return transfer order under section 16C, has been made in relation to a remand prisoner; and
(b) the remand prisoner is required to appear in proceedings for the offence with which he or she is charged and for which he or she has been remanded in custody before a court in a State or Territory; and
(c) the remand prisoner is in prison in another State or Territory;

the Attorney-General must make an order in writing for:

(d) the transfer of the remand prisoner from the other State or Territory to the State or Territory in which he or she is required to appear; and
(e) the transfer of the remand prisoner from the State or Territory in which he or she is required to appear back to the other State or Territory as soon as practicable after that appearance has concluded.

(2)
However:

(a) the Attorney-General is not required to make an order under subsection (1) if:
(i) the Attorney-General believes on reasonable grounds that it is essential in the interests of security that the order not be made; and
(ii) the court that remanded the remand prisoner in custody orders that his or her detention may continue; and
(b) this section does not apply once the prisoner or remand prisoner has been returned to the originating State or Territory (within the meaning of section 16C).

16F Transfer under State transfer laws
(1)
If an order under this Part has been made in relation to a prisoner or remand prisoner:

(a) an application must not be made to a court for an order under a State transfer law for the transfer of the prisoner or remand prisoner to another State or Territory; and
(b) an order (other than an order by a court) must not be made under a State transfer law for the transfer of the prisoner or remand prisoner to another State or Territory;

unless the Attorney-General has consented in writing to the transfer.

(2)
This section does not apply once the prisoner or remand prisoner has been returned to the originating State or Territory (within the meaning of section 16C).

16 Subsection 17(5)

After "a transfer order", insert "(other than an order under Part IV)".

17 Subsection 17(6)

After "a transfer order", insert "(other than an order under Part IV)".

18 At the end of subsection 29(1)

Add "or the powers under Part IV".

19 After subsection 29(1)

Insert:

(1A)
However, a delegation under subsection (1) does not extend to the power:

(a) to make or revoke an order under Part II; or
(b) to make an application under section 8; or
(c) to give consent for the purposes of subsection 9(2); or
(d) to serve notices or make orders under Division 2 of Part III;

in any case:

(e) that relates to a prisoner or remand prisoner who is subject to an order under Part IV; or
(f) in which making or revoking the order, making the application, giving the consent or serving the notice would involve consideration of questions of security.

20 At the end of subsection 29(4)

Add "or the powers under Part IV".



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