Division 3Division 3 Transfer and leave of absence
Subdivision 1 Transfer and leave of absence within New South Wales
23 Transfers from one correctional centre to another
(1) The Commissioner may order that an inmate be transferred from one correctional centre to another:(a) because the correctional centre is being or is about to be repaired, altered, enlarged or rebuilt, or(b) because of an outbreak or threatened outbreak in the correctional centre of an infectious disease, or(c) because the correctional centre has ceased or is about to cease to be a correctional centre, or(d) because the correctional centre is overcrowded, or(e) because inmates in the correctional centre need to be separated in compliance with the requirements of the regulations, or(f) because of any other reason specified in the order.(2) In relation to an inmate who is under the age of 18 years, such an order may not be made on a ground referred to in subsection (1) (d), (e) or (f) so as to transfer the inmate from a juvenile correctional centre to a correctional centre that is not a juvenile correctional centre.Note. Such an inmate may only be transferred to such a correctional centre in accordance with section 41C (2).
(1) The Commissioner may order that an inmate be transferred:(a) to a hospital (including a hospital that is or forms part of a correctional centre or correctional complex), or(b) to some other place specified in the order,if of the opinion that it is necessary or desirable for the inmate to receive medical attention there.(2) While the inmate is at the hospital or other place, the Commissioner may direct a correctional officer to take charge of the inmate.(3) An inmate who is transferred to a hospital may be discharged from the hospital on the certificate of the medical superintendent or other person in charge of the hospital.(4) On being discharged from the hospital or other place, the inmate must immediately be returned:(a) to the correctional centre from which the inmate was transferred, or(b) to such other correctional centre as the Commissioner may direct.(5) The Commissioner’s functions under this section may be exercised in relation to a correctional centre by the general manager of the correctional centre.
(1) The Commissioner may make an order (a local leave order) requiring an inmate to be taken from a correctional centre to any place in the State:(a) on such conditions and for such period as may be specified in the order, and(b) for such purpose as the Commissioner considers appropriate.(2) Without limiting subsection (1) (b), the purposes for which a local leave order may be made include the following:(a) enabling an inmate to be interviewed by a police officer, or by an officer of a law enforcement agency, in connection with the commission of an offence in a correctional centre, whether or not the offence was committed or is suspected of having been committed by the inmate,(b) enabling an inmate to assist in the administration of justice.(3) The conditions to which a local leave order is subject must include such conditions as are required by the regulations to be included in such an order.(4) Subject to subsection (3), the Commissioner may, at any time:(a) vary or omit any condition of a local leave order, or(b) substitute or add new conditions to a local leave order, or(c) revoke a local leave order.
(1) The Commissioner may issue a permit (a local leave permit) allowing an inmate to be absent from a correctional centre:(a) on such conditions and for such period as may be specified in the permit, and(b) for such purpose as the Commissioner considers appropriate.(2) Without limiting subsection (1) (b), the purposes for which a local leave permit may be issued include the following:(a) enabling an inmate to be interviewed by a police officer, or by an officer of a law enforcement agency, in connection with the commission of an offence in a correctional centre, whether or not the offence was committed or is suspected of having been committed by the inmate,(b) enabling an inmate to assist in the administration of justice,(c) enabling an inmate to attend a funeral service or burial of a member of the inmate’s immediate or extended family,(d) enabling an inmate to be present at an occasion of special significance to the inmate’s immediate or extended family,(e) enabling an inmate to visit any member of the inmate’s immediate family who is suffering serious illness or disability,(f) enabling an inmate to apply for work or attend an interview with an employer or prospective employer,(g) enabling an inmate to attend a place of education or training in connection with any course of education or training,(h) enabling an inmate to engage in employment specified in the permit,(i) enabling an inmate to have weekend leave,(j) enabling an inmate to reside at a transitional centre,(k) enabling an inmate to attend tuition or perform work in connection with a course of education or training being undertaken by the inmate,(l) in the case of a female inmate who is the mother of a young child or young children, enabling the inmate to serve her sentence with her child or children in an appropriate environment.(3) The conditions to which a local leave permit is subject must include such conditions as are required by the regulations to be included in such a permit.(4) Subject to subsection (3), the Commissioner may, at any time:(a) vary or omit any condition of a local leave permit, or(b) substitute or add new conditions to a local leave permit, or(c) revoke a local leave permit.(5) For the purposes of this section, member of the inmate’s immediate family includes a person with whom the inmate has a de facto relationship (within the meaning of the Property (Relationships) Act 1984).
26A Conditions of leave as to non-association and place restriction
(1) The conditions to which a local leave permit is subject may include either or both of the following:(a) provisions prohibiting or restricting the inmate from associating with a specified person,(b) provisions prohibiting or restricting the inmate from frequenting or visiting a specified place or district.(2) A condition referred to in subsection (1) (a) or (b) is suspended while the inmate is in lawful custody (otherwise than while unescorted as referred to in section 38 (2) (a)).(3) An inmate does not contravene a prohibition or restriction as to his or her association with a specified person:(a) if the inmate does so in compliance with an order of a court, or(b) if, having associated with the person unintentionally, the inmate immediately terminates the association.(4) An inmate does not contravene a requirement not to frequent or visit a specified place or district if the inmate does so in compliance with an order of a court.(5) In this section, associate with means:(a) to be in company with, or(b) to communicate with by any means (including post, facsimile, telephone and email).
Subdivision 2 Interstate leave of absence
In this Subdivision:corresponding Commissioner, in relation to a participating State, means the officer responsible for the administration of correctional centres (however described) in the participating State.
corresponding interstate law means a law that is declared to be a corresponding interstate law for the purposes of this Subdivision by an order published under section 28.
escape, in relation to an interstate prisoner temporarily released from lawful custody, includes fail to return to lawful custody at the end of the time for which the prisoner has been released.
escorted custody, in relation to an interstate prisoner, means in the custody of an interstate escort under section 30.
interstate escort, in relation to a participating State, means:
(a) a correctional officer (however described) or a police officer of that State, or(b) a person who is authorised to have the custody of an interstate prisoner under a permit issued in accordance with the corresponding interstate law of that State, or(c) a person who is appointed by the corresponding Commissioner of that State by an instrument in writing to be an escort for the purpose of escorting an interstate prisoner to that State.interstate prisoner means a person who is in New South Wales under the authority of a permit issued under a corresponding interstate law.
participating State means any State in which a corresponding interstate law is in force.
State includes the Australian Capital Territory and the Northern Territory.
unescorted custody, in relation to an interstate prisoner, means leave within New South Wales in circumstances where:
(a) the leave is authorised by a permit issued under a corresponding interstate law, and(b) no interstate escort has been appointed to escort the prisoner while within New South Wales, and(c) the corresponding interstate law provides that the prisoner is taken to be in the custody of the corresponding Commissioner or another official of the participating State while in New South Wales.
28 Corresponding interstate law
(1) The Governor may, by order published in the Gazette, declare that a law of a State other than New South Wales is a corresponding interstate law for the purposes of this Subdivision.(2) Such an order is to be made only if the Governor is satisfied that the law substantially corresponds with the provisions of this Subdivision.
29 Issue of interstate leave permit
(1) The Commissioner may issue an interstate leave permit to an inmate of a correctional centre for leave to travel to and from, and remain in, a participating State for a specified period:(a) if the inmate does not have a high security classification, on any grounds that the Commissioner considers appropriate, or(b) if the inmate has a high security classification, only if the leave is for medical treatment or for some compassionate purpose.(2) In particular, the Commissioner may issue an interstate leave permit to an inmate who is an Aboriginal person if satisfied that the purpose of the leave is:(a) to enable the inmate to attend a funeral service or burial of a member of the inmate’s immediate or extended family, or(b) to enable the inmate to be present at an occasion of special significance to the inmate’s immediate or extended family.(3) The period specified in an interstate leave permit must not exceed 7 days.(4) An interstate leave permit is subject to such conditions (including conditions relating to the escort of the inmate) as the Commissioner specifies in the permit or as may be prescribed by the regulations.(5) The Commissioner may, by instrument in writing, appoint any correctional officer to be an escort for the purposes of this Subdivision.(6) In this section, high security classification means a classification prescribed by the regulations as a high security classification.(7) For the purposes of this section, member of the inmate’s immediate family includes a person with whom the inmate has a de facto relationship (within the meaning of the Property (Relationships) Act 1984).
30 Effect of interstate leave permit
(1) If it is a condition of an interstate leave permit that an inmate be escorted to a participating State, the permit:(a) authorises the inmate concerned to be absent from the correctional centre in the custody of an escort for the purpose and period specified in the permit, and(b) authorises the escort to take and keep custody of the inmate for the purpose of escorting the inmate:(i) to the participating State (whether or not across any other State), and(ii) within the participating State,in accordance with the permit, and(c) authorises the escort to take and keep custody of the inmate for the purpose of returning the inmate to the correctional centre from which leave of absence was given.(2) If it is not a condition of an interstate leave permit that an inmate be escorted to a participating State, the permit authorises the inmate concerned to be absent from the correctional centre for the purpose and period specified in the permit.
31 Variation or revocation of interstate leave permit
The Commissioner may at any time:(a) vary or omit any condition of an interstate leave permit (whether specified in the permit or prescribed by the regulations), or(b) substitute or add new conditions to an interstate leave permit, or(c) revoke an interstate leave permit.
32 Breach of interstate leave permit
An inmate must not fail, without reasonable excuse, to comply with any condition of an interstate leave permit.Maximum penalty: 10 penalty units.
33 Notice to participating State and transit jurisdiction
On granting an interstate leave permit, the Commissioner must cause written notice of the fact that the permit has been granted, and of the period of the permit, to be given:(a) to the corresponding Commissioner and the chief officer of police of the participating State to which the inmate is to travel, and(b) to the chief officer of police of any other jurisdiction through which the inmate is to travel to reach the participating State.
34 Effect of interstate leave permit issued under corresponding interstate law
A correctional officer (however described) or a police officer of a participating State who is authorised under a permit issued under a corresponding interstate law to escort a person imprisoned in that State to or through New South Wales is authorised, while in New South Wales:(a) to take and keep custody of the person for the purposes and period set out in the permit, and(b) to take and keep custody of the person for the purpose of returning the person to the participating State.
35 Arrest of escaped interstate prisoners
If it appears to an interstate escort, a police officer or any other person that an interstate prisoner has escaped from lawful custody, the interstate escort, police officer or person may arrest the interstate prisoner and (in the case of an interstate prisoner in escorted custody) return the interstate prisoner to the custody of the interstate escort.
36 Return of escaped interstate prisoners to State of origin
(1) An interstate prisoner:(a) who is arrested following an escape, or(b) who attempts to escape,may be taken before a Magistrate.(2) Despite the terms of any permit issued in accordance with a corresponding interstate law, a Magistrate may by warrant (a return warrant):(a) order the return of the interstate prisoner to the participating State in which the permit was issued, and(b) order the interstate prisoner to be delivered to an interstate escort for the purpose of such a return.(3) A return warrant may be executed in accordance with its terms.(4) An interstate prisoner who is the subject of a return warrant may be held in custody as an inmate until the person is delivered into the custody of an interstate escort in accordance with that warrant, or until the expiry of a period of 14 days from the issue of the warrant, whichever first occurs.(5) A return warrant ceases to have effect if the interstate prisoner who is the subject of the warrant is not delivered into the custody of an interstate escort, in accordance with the terms of the warrant, within 14 days after the warrant is issued.
37 Liability of Crown for damage caused by inmate or escort
(1) The Crown in right of the State is liable for any damage or loss sustained by any person in a participating State that is caused by the acts or omissions of an inmate or escort while in a participating State because of an interstate leave permit.(2) Nothing in this section affects any right of action the Crown may have against the inmate or escort for the damage or loss concerned.
38 Absent inmates taken to be in custody
(1) This section applies to an inmate who is absent from a correctional centre in any of the following circumstances:(a) while performing community service work or other work outside a correctional centre, as referred to in section 6 (2),(b) while being transferred from one correctional centre to another, as referred to in section 23 or 41C,(c) while at a hospital or other place referred to in section 24, or while being transferred between a correctional centre and such a hospital or place,(d) while absent from a correctional centre in accordance with a local leave order,(e) while absent from a correctional centre in accordance with a local leave permit,(f) while absent from a correctional centre in accordance with an interstate leave permit,(f1) while absent from a correctional centre in accordance with an approval granted under section 255A,(g) while being transferred from one part of a correctional centre to another part of the correctional centre located on separate premises.(2) An inmate who is absent from a correctional centre in any of the circumstances referred to in subsection (1) is taken to be in custody as follows:(a) if not escorted by a correctional officer, the inmate is taken to be in the custody of the general manager of the correctional centre from which he or she is absent,(b) if escorted by a correctional officer employed in a correctional centre, the inmate is taken to be in the custody of the general manager of the correctional centre in which the correctional officer is employed,(c) if escorted by a correctional officer not employed in a correctional centre, the inmate is taken to be in the custody of the designated officer.(3) An inmate is not taken to be absent from a correctional centre merely because the inmate is in some other part of a correctional complex of which the correctional centre forms part.(4) In this section:correctional officer includes:
(a) a person employed on a temporary basis within the Department to perform some or all of the duties of a correctional officer, and(b) a person holding an authority under section 240 to perform escort duties.designated officer means the person for the time being holding or acting in the position within the Department designated by the Commissioner for the purposes of this section.
(1) A police officer or correctional officer may, with or without a warrant, arrest an inmate:(a) who has contravened, or has manifested an intention to contravene, a condition of a local leave order, local leave permit, interstate leave permit or approval granted under section 255A, or(b) whose local leave order, local leave permit, interstate leave permit or approval granted under section 255A has been revoked, or(c) who has not returned to a correctional centre at the expiry of the period specified in a local leave order, local leave permit, interstate leave permit or approval granted under section 255A, or(d) who has escaped from custody.(2) A police officer who arrests an inmate under subsection (1):(a) in the case of an inmate who has escaped from custody—is to take the inmate before an authorised officer to be dealt with according to law, or(b) in any other case—is to convey the inmate to the nearest appropriate correctional centre.(3) A correctional officer who arrests an inmate under subsection (1):(a) in the case of an inmate who has escaped from custody—is to take the inmate to a police officer, or before an authorised officer to be dealt with according to law, or(b) in any other case—is to convey the inmate to the nearest appropriate correctional centre.(4) If an inmate is taken before an authorised officer under subsection (2) (a) or (3) (a), the authorised officer may, by warrant, commit the inmate to the custody of:(a) the person from whose custody the inmate escaped, or(b) a correctional centre to be held pending the return of the inmate to the custody of that person, or(c) any other person with lawful authority to hold the inmate in custody.(5) Subsection (4) does not limit the powers of an authorised officer to deal with an inmate according to law.(6) A warrant under subsection (4) is sufficient authority:(a) for any police officer or correctional officer to convey the inmate to the person specified in the warrant, or to the correctional centre specified in the warrant, and to deliver the inmate into the custody of that person or the general manager of that correctional centre, and(b) for the general manager of the correctional centre to keep the inmate in his or her custody pending the person’s return to the custody of the person from whose custody the inmate escaped.(7) In this section:authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.
40 Certain unlawful absences not to affect length of sentence
(1) This section applies to an inmate who is unlawfully absent from a correctional centre during the term of a sentence:(a) otherwise than by reason of having escaped from lawful custody, and(b) otherwise than by reason of having failed to return to a correctional centre at the expiry of the period specified in a local leave permit, interstate leave permit or approval granted under section 255A, and(c) otherwise than by reason of having failed to return to a correctional centre following the revocation of a periodic detention order, home detention order or parole order,and so applies whether or not the inmate is taken, while absent, to be in the custody of the general manager of the correctional centre.(2) For the purpose only of calculating how much of the sentence the inmate has served, the inmate is taken to have been in lawful custody for the whole of that absence.
41 Transfer of inmates to or through ACT
An inmate who is in the Australian Capital Territory:(a) while being transferred from one correctional centre to another under this Act, or(b) while being transferred to a hospital or other place for medical attention, or(c) while absent from a correctional centre in accordance with a local leave order or local leave permit,remains in the lawful custody of the general manager of the correctional centre from which the inmate is transferred or absent.