Transfer of prisoners

Interstate transfer of prisoners

Overview

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.

Eligibility

Prisoners on remand cannot be transferred. People on bail cannot transfer to another state or territory.

Legislation

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 Minister for Corrections (s 7(1)(a)) (seeContacts”).

The minister bases their decision on whether the transfer is in “the interests of the welfare of the prisoner” (s 7(1)(b)). 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.

Transfer of prisoners on parole

Prisoners can request to complete their parole in another Australian state or territory. Prisoners should put the request to their parole officer. The Victorian Minister for Corrections makes the decision about the transfer of parole. The receiving state or territory must agree to accept the prisoner. The Parole Orders (Transfer) Act 1983 (Vic) governs the interstate transfer of parole arrangements.

The Victorian Adult Parole Board imposes parole conditions for prisoners who have transferred their parole to Victoria.

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 that they may serve their sentence of imprisonment in their home country (ss 7, 8). A transfer must be approved by the Australian Government, the government of the foreign country, and by the prisoner before the transfer takes place.

The Victorian Parliament has given effect to the ITP Act by passing the International Transfer of Prisoners (Victoria) Act 1998 (Vic).

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 or conviction is subject to appeal. Third, the prisoner’s offence is also an offence in the country they wish to transfer to.

Prisoners can 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)).