Part 2 Imprisonment by way of full-time detention
Introductory note. This Part applies to those offenders who have been sentenced to imprisonment by way of full-time detention (referred to as inmates) and to other persons who are required to be held in custody. It deals with the following matters:(a) the general obligations of inmates (Division 1),(b) the circumstances in which an inmate can be kept in segregated or protective custody (Division 2),(c) the circumstances in which an inmate may be transferred to another correctional centre, or to hospital, or given leave of absence (Division 3),(d) the management of juvenile inmates (Division 3A),(e) the conveyance and detention of prisoners received from the Australian Capital Territory (Division 4),(f) the conveyance and detention of prisoners received from Norfolk Island (Division 5),(g) the prescription of correctional centre offences, the penalties they attract and the procedure for dealing with both correctional centre offences and other offences (Division 6),(h) the procedure to be followed in determining whether a serious offender is to be given a low security classification permitting unescorted leave of absence from a correctional centre (Division 7),(i) other miscellaneous matters (Division 8).
(1) This Part applies to:(a) any person the subject of a warrant under section 62 of the Crimes (Sentencing Procedure) Act 1999 by which a court has committed the person to a correctional centre to serve a sentence or the remainder of a sentence by way of full-time detention, other than a person who is on release on parole, and(b) any person the subject of a warrant under section 87 of the Fines Act 1996 by which the State Debt Recovery Office has committed the person to a correctional centre to serve a sentence by way of full-time detention, and(c) any person the subject of a warrant under section 181 of this Act by which the Parole Authority has committed the person to a correctional centre to serve the remainder of a sentence by way of full-time detention, and(c1) any person the subject of a warrant under section 20 of the Crimes (Serious Sex Offenders) Act 2006 by which the Supreme Court has committed the person to a correctional centre pursuant to a continuing detention order or interim detention order under that Act, and(d) any person the subject of a warrant or order by which a court has committed the person to a correctional centre on remand in connection with proceedings for an offence committed, or alleged to have been committed, by the person, and(d1) any person the subject of an order under section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987 by which the Children’s Court has committed the person to the control of the Minister administering this Act, and(d2) any person who is the subject of a warrant under section 170 (1) (a) of the Defence Force Discipline Act 1982 of the Commonwealth by which an authorised officer under that Act has committed the person to a correctional centre pursuant to a punishment of imprisonment imposed under that Act, and(d3) any person who is a detainee within the meaning of the Migration Act 1958 of the Commonwealth and who is held in a correctional centre as referred to in paragraph (b) (ii) of the definition of immigration detention in section 5 of that Act, and(e) any person the subject of a warrant or order by which a court or other competent authority has committed the person to a correctional centre otherwise than as referred to above, and(f) any person in custody who is given into the keeping of a correctional officer under section 250.(2) This Part does not apply to a person who is detained in a correctional centre in accordance with Part 16 of the Law Enforcement (Powers and Responsibilities) Act 2002.(3) In this Part, inmate means a person to whom this Part applies and convicted inmate means a person referred to in subsection (1) (a), (b), (c), (c1), (d1) or (d2).
The obligations of an inmate while serving a sentence by way of full-time detention are:(a) to comply with such requirements of this Part and the regulations as apply to the inmate, and(b) to comply with the requirements of any directions given to the inmate under this Part.
(1) The general manager of a correctional centre may make an order directing any convicted inmate in the correctional centre to carry out such work as the general manager considers suitable.(2) The general manager may direct a convicted inmate, or such classes or groups of convicted inmates as the Commissioner may from time to time determine, to carry out community service work, or any work for Corrective Services NSW or a public or local authority:(a) within the correctional centre in which the inmate is imprisoned, or(b) within the correctional complex in which the inmate is imprisoned but outside the correctional centre, or(c) outside the correctional complex in which the inmate is imprisoned.(3) An inmate is not required to carry out work that the inmate is not capable of carrying out.
(1) The Commissioner may, out of money provided by Parliament or otherwise legally available, make payments to inmates for any reason (including for work done).(2) Payment for work done by inmates of a managed correctional centre may not be made by the management company for the correctional centre otherwise than in accordance with a scheme approved by the Commissioner.(3) The payment of an inmate by the Commissioner under this section for work done (whether or not at the direction of the Commissioner) does not constitute employment of, or a contract of service with, the inmate by the Crown or any other person, and accordingly an inmate who undertakes any such paid work is not:(a) a worker for the purposes of the Workers Compensation Act 1987, the Workplace Injury Management and Workers Compensation Act 1998, the Annual Holidays Act 1944 or the Long Service Leave Act 1955, or(b) an employee (however described) for the purposes of the Industrial Relations Act 1996 or any Act or other law.
(1) Unless sooner released on parole, an inmate who is serving a sentence by way of full-time detention (the current sentence) is to be released from custody on the day the sentence expires (the release date), as determined in accordance with Division 1 of Part 4 of the Crimes (Sentencing Procedure) Act 1999 but subject to any variation of the term of that sentence under this or any other Act.(2) An inmate may be released from custody:(a) at any time on the release date for the current sentence, or(b) if the release date for the current sentence is a Saturday, Sunday or public holiday and the inmate so requests, at any time during the next day that is not a Saturday, Sunday or public holiday.(3) This section does not apply to an inmate who, as at the release date for the current sentence, is subject to another sentence that is being served by way of full-time detention:(a) where the other sentence commenced before, but will not end until after, the release date for the current sentence, or(b) where the other sentence commences immediately after the release date for the current sentence.
Division 2 Segregated and protective custody
In this Division:protective custody direction means a direction referred to in section 11.
segregated custody direction means a direction referred to in section 10.
suspension direction means a direction referred to in section 20 (1) (a).
10 Segregated custody of inmates
(1) The Commissioner may direct that an inmate be held in segregated custody if of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to:(a) the personal safety of any other person, or(b) the security of a correctional centre, or(c) good order and discipline within a correctional centre.(2) The general manager of a correctional centre may exercise the Commissioner’s functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the segregated custody direction was given.(3) A segregated custody direction given by the general manager of a correctional centre does not apply in relation to any other correctional centre.(4) Subsection (3) is subject to section 15.
11 Protective custody of inmates
(1) The Commissioner may direct that an inmate be held in protective custody if of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to the personal safety of the inmate.(2) The Commissioner may also direct that an inmate be held in protective custody if the inmate requests the Commissioner in writing to do so.(3) The general manager of a correctional centre may exercise the Commissioner’s functions under this section in relation to the correctional centre and, on each occasion he or she does so, must notify the Commissioner of that fact and of the grounds on which the protective custody direction was given.(4) A protective custody direction given by the general manager of a correctional centre does not apply in relation to any other correctional centre.(5) Subsection (4) is subject to section 15.
12 Effect of segregated or protective custody direction
(1) An inmate subject to a segregated or protective custody direction is to be detained:(a) in isolation from all other inmates, or(b) in association only with such other inmates as the Commissioner (or the general manager of the correctional centre in the exercise of the Commissioner’s functions under section 10 or 11) may determine.(2) An inmate who is held in segregated or protective custody:(a) is not to suffer any reduction of diet, and(b) is not to be deprived of any rights or privileges other than those determined by the Commissioner (or the general manager in the exercise of the Commissioner’s functions under section 10 or 11), either generally or in a particular case, and other than those the deprivation of which is necessarily incidental to the holding of the inmate in segregated or protective custody.
A segregated or protective custody direction must be in writing and must include the grounds on which it is given.
14 Information concerning review of segregated or protective custody direction
As soon as practicable after an inmate is directed:(a) to be held in segregated custody under section 10, or(b) to be held in protective custody under section 11 (other than at the inmate’s request),the general manager of the correctional centre is to provide the inmate with information concerning the inmate’s rights to a review of the segregated or protective custody direction.
15 Transfer of inmate held in segregated or protective custody
(1) If an inmate held in segregated or protective custody under a segregated or protective custody direction given by the general manager of a correctional centre is transferred to another correctional centre, the segregated or protective custody direction applies:(a) in relation to the correctional centre to which the inmate is transferred (the receiving correctional centre), and(b) in relation to the conveyance of the inmate to the receiving correctional centre, including custody of the inmate in any correctional centre in which the inmate is held during the course of being conveyed to the receiving correctional centre.(2) Within 72 hours after the arrival of the inmate at the receiving correctional centre, the general manager of the receiving correctional centre must review the segregated or protective custody direction, having regard to the grounds referred to in section 10 or 11, and give one of the following directions:(a) a direction revoking the segregated or protective custody direction,(b) a direction confirming the segregated or protective custody direction,(c) a direction confirming the segregated or protective custody direction but amending its terms.(3) A direction given under subsection (2) has effect according to its terms.(4) A segregated or protective custody direction that is subject to a direction under subsection (2) (b) or (c) is, on and after the giving of that direction, taken to be a segregated or protective custody direction given by the general manager of the receiving correctional centre.(5) A direction by the general manager of a receiving correctional centre revoking, confirming or amending a segregated or protective custody direction has effect even though it is given outside the period during which it is required to be given under this section.
16 Review of segregated or protective custody direction by Commissioner
(1) The general manager of a correctional centre where an inmate is held in segregated or protective custody must submit a report about the segregated or protective custody direction to the Commissioner within 14 days after the date on which the direction is given (the relevant date), regardless of whether the segregated or protective custody direction was given by the Commissioner or by the general manager of a correctional centre.(2) Within 7 days after receiving the report, the Commissioner must review the segregated or protective custody direction and give one of the following directions:(a) a direction revoking the segregated or protective custody direction,(b) a direction confirming the segregated or protective custody direction,(c) a direction confirming the segregated or protective custody direction but amending its terms.(3) If the direction is confirmed, the general manager of the correctional centre where the inmate is held in segregated or protective custody must submit a further report about the direction to the Commissioner within 3 months after the relevant date, and within each subsequent period of 3 months after that period.(4) Within 7 days after each occasion on which the Commissioner receives any such further report, the Commissioner must review the segregated or protective custody direction and give one of the directions referred to in subsection (2) (a)–(c).(5) The confirmation of a segregated or protective custody direction by the general manager of a correctional centre under section 15, or by the Review Council under section 22, does not affect the requirements for reporting about and reviewing a segregated or protective custody direction under this section.(6) A direction by the Commissioner revoking, confirming or amending a segregated or protective custody direction has effect even though it is given outside the period during which it is required to be given under this section.(7) In this section:report, in relation to a segregated or protective custody direction, means a report recommending whether or not the segregated or protective custody direction should be revoked, confirmed or amended.
17 Revocation of segregated or protective custody direction
(1) A segregated or protective custody direction remains in force until it is revoked.(2) The Commissioner may, at any time, revoke a segregated or protective custody direction or amend its terms.(3) The Commissioner must revoke a protective custody direction given at the request of an inmate if the inmate requests the Commissioner in writing to revoke it.(4) The general manager of a correctional centre may exercise the Commissioner’s functions under this section in relation to the correctional centre.
18 Report to Minister on segregated or protective custody direction
(1) As soon as practicable after confirming a segregated or protective custody direction, the Commissioner must give written notice of that fact to the Minister, giving reasons for the confirmation direction, if:(a) the confirmation direction will result in the inmate being subject to a total continuous period of segregated or protective custody exceeding 6 months, or(b) the inmate has already been subject to a total continuous period of segregated or protective custody exceeding 6 months.(2) This section does not apply to a direction confirming a protective custody direction that was given at the request of an inmate.
19 Review of segregated or protective custody direction by Review Council
(1) An inmate whose total continuous period of segregated or protective custody exceeds 14 days may apply to the Review Council for a review of the segregated or protective custody direction under which the inmate is held in segregated or protective custody.(2) The application is to be in writing and is to include the inmate’s reasons for making the application.(3) The Review Council must review the direction unless subsection (4) applies.(4) The Review Council may refuse to review the direction if:(a) the application does not, in the opinion of the Review Council, disclose substantial grounds for a review, or(b) the Review Council has previously determined a review of the same direction under this Division and the application does not, in the opinion of the Review Council, disclose substantially different grounds for review.(5) The Review Council may not refuse to review a direction under subsection (4) if a period of more than 3 months has elapsed since the Review Council determined a review of the segregated or protective custody direction.(6) This section applies regardless of whether the relevant segregated or protective custody direction was given by the Commissioner or by the general manager of a correctional centre.
20 Suspension directions by Review Council
(1) The Chairperson of the Review Council may give a direction for:(a) the suspension of an inmate’s segregated or protective custody direction, or(b) the transfer of an inmate to a different correctional centre.(2) A suspension direction may be given at any time after an application for a review is made and before it is determined.(3) While a suspension direction is in force, the inmate is not to be held in segregated or protective custody unless a new segregated or protective custody direction is given.(4) The Chairperson may at any time vary or revoke a suspension direction.(5) A suspension direction does not revoke a segregated or protective custody direction.(6) A direction for the transfer of an inmate to a different correctional centre may be given:(a) if the Chairperson considers that the inmate’s removal would facilitate the review of the segregated or protective custody direction, or(b) for any other reason that the Chairperson thinks fit.(7) The determination of a review of a segregated or protective custody direction by the Review Council under section 22 revokes any suspension direction applying to the segregated or protective custody direction.
21 Procedure for review of segregated or protective custody direction by Review Council
(1) In determining any matter relating to the segregated or protective custody of an inmate, the Review Council is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate.(2) The Review Council must cause notice of any hearing in relation to a review to be given to the inmate who applied for the review.(3) If the inmate so wishes, the Review Council must allow the inmate to be present, and to be heard, at the hearing.(4) The inmate may be represented by an Australian legal practitioner chosen by the inmate or, if the Review Council so approves, by some other person chosen by the inmate.(5) The Commissioner or the general manager of a correctional centre (or both) may be represented by an Australian legal practitioner or by some other person.(6) Division 2 of Part 9 applies to the conduct of a review by the Review Council under this Division.
22 Determination of review by Review Council
(1) In reviewing a segregated or protective custody direction, the Review Council must take the following matters into account:(a) whether the direction was given or reviewed in accordance with this Division,(b) whether the direction was reasonable in the circumstances,(c) whether the direction was necessary to secure the personal safety of the inmate or any other person,(d) the security of, and the preservation of good order and discipline within, the relevant correctional centre,(e) the interests of the public.(2) In determining an application for review, the Review Council may revoke, confirm or amend the segregated or protective custody direction to which the application relates.
Division 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 Corrective Services NSW 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 Corrective Services NSW 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.
In this Division:adult correctional centre means a correctional centre that is not a juvenile correctional centre.
juvenile inmate means an inmate who is under the age of 21 years.
section 28 juvenile inmate means a juvenile inmate under the age of 18 years who has been transferred to a juvenile correctional centre pursuant to an order under section 28 of the Children (Detention Centres) Act 1987.
41B Custody of section 28 juvenile inmates
Subject to this Act, a section 28 juvenile inmate is to be held in custody in a juvenile correctional centre.
41C Transfers to and from juvenile correctional centres
(1) The Commissioner may order that a juvenile inmate be transferred from an adult correctional centre to a juvenile correctional centre for any reason specified in the order.(2) The Minister may order that a juvenile inmate be transferred from a juvenile correctional centre to an adult correctional centre if:(a) the Commissioner, in the case of a juvenile inmate who is of or above the age of 18 years, or(b) the Review Council, in the case of a juvenile inmate who is under the age of 18 years,recommends to the Minister that the inmate should be transferred.(3) A recommendation for the transfer of a juvenile inmate from a juvenile correctional centre to an adult correctional centre may not be made unless the Commissioner or Review Council, as the case may be, is satisfied that:(a) the inmate wishes to be transferred, or(b) the inmate’s behaviour is or has been such that he or she should be transferred, or(c) it is in the inmate’s best interests that he or she be transferred, or(d) the association of the inmate with other juvenile inmates at the juvenile correctional centre constitutes, or is likely to constitute, a threat to:(i) the personal safety of any other person, or(ii) the security of the juvenile correctional centre, or(iii) good order and discipline within the juvenile correctional centre.(4) Subsection (2) does not limit the operation of section 23 (1) in relation to juvenile inmates who are of or above the age of 18 years.Note. Section 23 (2) limits the operation of section 23 (1) in relation to juvenile inmates who are under the age of 18 years.(5) Subsections (2), (3) and (4) do not apply to the transfer of a juvenile inmate to a hospital pursuant to an order by the Commissioner under section 24.(6) Such an order may not be made without prior consultation between the Commissioner and the Chief Executive Officer, Justice Health.
41D Procedure to be followed by Review Council as to transfer of juvenile inmate to adult correctional centre
(1) On the application of the Commissioner, the Review Council is to conduct an inquiry for the purpose of deciding whether or not to recommend the transfer of a juvenile inmate from a juvenile correctional centre to an adult correctional centre, as referred to in section 41C (2) (b).(2) In conducting an inquiry under this section, the Review Council is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate.(3) The Review Council must cause notice of any hearing in relation to an inquiry under this section to be given to the Commissioner and to the juvenile inmate to whom the inquiry relates.(4) If the inmate so wishes, the Review Council must allow the juvenile inmate to be present, and to be heard, at the hearing.(5) The juvenile inmate may be represented by an Australian legal practitioner chosen by the inmate or, if the Review Council so approves, by some other person chosen by the inmate.(6) The Commissioner may be represented by an Australian legal practitioner or by some other person.(7) For the purposes of an inquiry under this section, the Review Council must co-opt a person who is:(a) a Children’s Magistrate or former Children’s Magistrate, or(b) an Australian legal practitioner of at least 7 years’ standing who has experience as an advocate on behalf of children,unless such a person is already a member of the Review Council and is available for the inquiry.(8) A person who is co-opted to the Review Council under subsection (7):(a) may be co-opted:(i) as a community member, if the Review Council, as constituted for the purposes of the inquiry, includes a judicial member, or(ii) as a judicial member, if the Review Council, as constituted for the purposes of the inquiry, does not include some other judicial member, and(b) is taken, for the purposes of the inquiry, to be a judicial member or community member, as the case may be, and has, in relation to the inquiry, all of the powers and immunities of such a member.(9) Division 2 of Part 9 applies to the conduct of an inquiry by the Review Council under this section.
Division 4 Full-time detainees received from Australian Capital Territory
In this Division:Australian Capital Territory Act means the Crimes (Sentence Administration) Act 2005 of the Australian Capital Territory.
Australian Capital Territory direction means a direction issued under section 26 of the Australian Capital Territory Act.
chief executive, escort officer and full-time detainee have the same meanings as they have in the Australian Capital Territory Act.
This Division does not apply to a full-time detainee who is in custody in a correctional centre in New South Wales pursuant to a transfer effected under the Prisoners (Interstate Transfer) Act 1982.
44 Conveyance and detention of full-time detainees from ACT
(1) If an escort officer has a full-time detainee in custody in accordance with the terms of an Australian Capital Territory direction, it is lawful for the escort officer to hold and deal with the detainee in accordance with those terms.(2) It is the duty of the general manager of a correctional centre or any other officer doing duty at a correctional centre to accept custody of any full-time detainee the subject of an Australian Capital Territory direction.(3) The full-time detainee is to be held in custody in a correctional centre for so long as is necessary for the detainee’s sentence referred to in the Australian Capital Territory direction to be executed in accordance with that direction.(4) Nothing in this section prevents the early release of a full-time detainee by reason of the operation of any law of the Commonwealth, or of the Australian Capital Territory, relating to the release of full-time detainees.(5) Until released from custody or delivered into the custody of an escort officer under an Australian Capital Territory direction, a full-time detainee may be dealt with as if the detainee’s sentence were a sentence passed under a law of New South Wales.(6) Subsection (5) is subject to the provisions of the Australian Capital Territory Act.
45 Return of full-time detainees to ACT
(1) If an escort officer presents to a general manager of a correctional centre an Australian Capital Territory direction in respect of a full-time detainee held in custody in the correctional centre under this Division:(a) for the delivery of the full-time detainee into the custody of the escort officer, and(b) for the conveyance of the full-time detainee to the Australian Capital Territory,the general manager of the correctional centre must deliver the full-time detainee into the custody of the escort officer.(2) The direction is sufficient authority for the escort officer to convey the full-time detainee in custody to the Australian Capital Territory.
A document purporting to be an Australian Capital Territory direction and to be under the hand of the chief executive is admissible in any proceedings and is in all courts exercising jurisdiction in New South Wales and on all occasions evidence of the particulars stated in the document.
Division 5 Prisoners received from Norfolk Island
(1) In this Division:authorised person, constable, court, magistrate and order have the same meanings as they have in the Norfolk Island Act.
Norfolk Island Act means the Removal of Prisoners Act 2004 of Norfolk Island.
Norfolk Island warrant means a warrant issued under the Norfolk Island Act.
prisoner means a person who is liable to undergo imprisonment or other detention in custody under a law in force in Norfolk Island.
(2) For the purposes of this Division, a reference to an order of a court or magistrate includes a reference to a warrant issued by a court or magistrate, other than a Norfolk Island warrant.
This Division does not apply to a person who is the subject of a direction under section 9 of the Norfolk Island Act.
48 Conveyance and detention of prisoners from Norfolk Island
(1) If a constable has a prisoner in custody in accordance with the terms of a Norfolk Island warrant, it is lawful for the constable to hold and deal with the prisoner in accordance with those terms.(2) It is the duty of the general manager of a correctional centre or any other officer doing duty at a correctional centre to accept custody of any prisoner the subject of a Norfolk Island warrant.(3) The prisoner is to be held in custody in a correctional centre for so long as is necessary for the order of the court or magistrate referred to in the Norfolk Island warrant to be executed in accordance with that warrant.(4) Nothing in this section prevents the early release of a prisoner by reason of the operation of any law of the Commonwealth, or of any law in force in Norfolk Island, relating to the release of prisoners.(5) Until released from custody or delivered into the custody of a constable under a Norfolk Island warrant, a prisoner may be dealt with as if the prisoner’s sentence were a sentence passed under a law of New South Wales.(6) Subsection (5) is subject to the provisions of the Norfolk Island Act, the Sentencing Act 2007 of Norfolk Island and Division 4A of Part 6 of this Act.
49 Return of prisoners to Norfolk Island
(1) If a constable presents to a general manager of a correctional centre a Norfolk Island warrant in respect of a prisoner held in custody in the correctional centre under this Division:(a) for the delivery of the prisoner into the custody of the constable, and(b) for the conveyance of the prisoner to Norfolk Island,the general manager of the correctional centre must deliver the prisoner into the custody of the constable.(2) The warrant is sufficient authority for the constable to convey the prisoner in custody to Norfolk Island.
A document purporting to be a Norfolk Island warrant and to be signed by an authorised person is admissible in any proceedings and is in all courts exercising jurisdiction in New South Wales and on all occasions evidence of the particulars stated in the document.
Division 6 Correctional centre discipline
In this Division:correctional centre offence means any act or omission by an inmate (whether or not it is also a criminal offence):
(a) that occurs while the inmate is within a correctional centre or correctional complex or is taken to be in the custody of the general manager of a correctional centre, and(b) that is declared by the regulations to be a correctional centre offence for the purposes of this Division.criminal offence means an act or omission that constitutes an offence otherwise than as a consequence of its having been declared by the regulations to be a correctional centre offence for the purposes of this Division.
withdrawable privilege means a privilege or amenity that is declared by the regulations to be a withdrawable privilege for the purposes of this Division.
52 Hearing of charges by general manager
(1) If it is alleged that an inmate of a correctional centre has committed a correctional centre offence, the general manager of the correctional centre may charge the inmate with the offence and conduct an inquiry into the allegation.(2) The following provisions apply to any such inquiry:(a) the inquiry must be conducted with as little formality and technicality, and with as much expedition, as fairness to the inmate charged, the requirements of this Act and the regulations and the proper consideration of the charge permit,(b) the general manager is not bound by the rules of evidence, but may inform himself or herself of any matter in such manner as the general manager thinks fit,(c) the inmate is entitled to be heard at any hearing during the inquiry and to examine and cross-examine witnesses,(d) except as provided by paragraph (e), the inmate is not entitled to be represented by an Australian legal practitioner or by any other person,(e) the general manager must allow a person (other than an Australian legal practitioner) to represent or assist the inmate if the general manager is satisfied:(i) that the inmate does not sufficiently understand the nature of the inquiry, or(ii) that the inmate does not understand English or is otherwise unable to properly represent himself or herself during the inquiry,(f) if the inmate refuses or fails to attend at any hearing during the inquiry, the general manager may hear and determine the matter in the inmate’s absence,(g) evidence is not to be given on oath or by affidavit at any hearing during the inquiry,(h) the general manager may allow any correctional officer or other person to be present, and to be heard, at any hearing during the inquiry,(i) the general manager may transfer the conduct of an inquiry to the general manager of another correctional centre to which the inmate has been transferred.(3) The regulations may make further provision for or with respect to the making of any such charge and the conduct of any such inquiry.
53 Penalties general manager may impose
(1) If, after conducting an inquiry, the general manager is satisfied beyond reasonable doubt that the inmate is guilty of a correctional centre offence, the general manager may impose one (but not more than one) of the following penalties:(a) reprimand and caution,(b) deprivation, for up to 56 days, of such withdrawable privileges as the general manager may determine,(c) confinement to a cell for up to 7 days, with or without deprivation of withdrawable privileges,(d) cancellation of any right to receive payments under section 7 for up to 14 days, but to the extent only to which those payments are additional to the payments made at the base rate to inmates generally or to inmates of a class to which the inmate belongs.(2) If, after conducting an inquiry, the general manager is satisfied beyond reasonable doubt that the inmate is guilty of a correctional centre offence, but is of the opinion that a penalty should not be imposed:(a) the general manager may dismiss the charge, or(b) the general manager may defer imposing a penalty on condition that the inmate be of good behaviour for a specified period (not exceeding 2 months) and, if the condition is complied with, dismiss the charge after the end of that period.(3) If, after conducting an inquiry, the general manager is not satisfied beyond reasonable doubt that the inmate is guilty of a correctional centre offence, the general manager must dismiss the charge.(4) A penalty imposed on an inmate by the general manager may be revoked by the general manager or by the Commissioner.
54 Reference of offences to Visiting Magistrate
(1) The general manager may refer a correctional centre offence with which an inmate is charged to a Visiting Magistrate for hearing and determination if the general manager considers that, because of the serious nature of the offence, it should be referred to a Visiting Magistrate.(2) A charge may be referred to a Visiting Magistrate without any inquiry being conducted by the general manager, or may be so referred during or after any such inquiry.
55 Hearing of charges by Visiting Magistrate
(1) This section applies to proceedings on a charge that is referred to a Visiting Magistrate under this Division.(2) Subject to this section:(a) the Criminal Procedure Act 1986 applies to and in respect of the proceedings in the same way as it applies to and in respect of proceedings on a court attendance notice issued for a summary offence before the Local Court, and(b) any order or decision that is made by the Visiting Magistrate in or in connection with any such proceedings is taken to have been made under that Act.(3) In its application to the proceedings, the Criminal Procedure Act 1986 is subject to such modifications as are prescribed by the regulations and to such other modifications as the Visiting Magistrate considers appropriate.(4) An inmate is entitled to be represented by an Australian legal practitioner in the proceedings.(5) Any hearing in the proceedings is to be held:(a) in the correctional centre at which the inmate is in custody, or(b) if the Visiting Magistrate is satisfied that it is in the interests of the administration of justice for it to be held elsewhere—at any other place appointed by the Visiting Magistrate (an appointed place).(5A) If a Visiting Magistrate appoints an appointed place for the holding of any hearing in the proceedings, the Visiting Magistrate may do any of the following:(a) direct that the inmate must appear before the Visiting Magistrate by way of audio visual link from the correctional centre at which the inmate is in custody,(b) direct that any other inmate who gives evidence or makes a submission in the hearing is to do so by way of audio visual link from the correctional centre at which that inmate is in custody,(c) direct that any person other than an inmate who gives evidence or makes a submission is to do so by way of audio visual link from any place within New South Wales nominated by the Visiting Magistrate.(5B) The Visiting Magistrate must not make a direction referred to in subsection (5A) if:(a) the necessary audio visual facilities are unavailable or cannot reasonably be made available, or(b) the Visiting Magistrate is satisfied that the direction would be unfair to a party to the proceedings.(5C) Facilities are to be made available for private communication between an inmate appearing by way of audio visual link under this section and the inmate’s representative in the proceedings if the inmate’s representative attends the hearing at the appointed place.(5D) Any place at which a person appears, gives evidence or makes a submission by way of audio visual link under this section is taken to be part of the appointed place.(5E) Subsection (5D) has effect, for example, for the purposes of the laws relating to evidence, procedure, contempt of court or perjury.(5F) Subsection (5D) also has the effect that any offence committed at the place at which a person appears, gives evidence or makes a submission under this section by way of audio visual link is to be taken to have been committed at the appointed place.(5G) Sections 5D, 20A, 20B and 20D–20F of the Evidence (Audio and Audio Visual Links) Act 1998 apply, with such modifications as the Visiting Magistrate may direct, to proceedings in which a person appears, gives evidence or makes a submission by way of audio visual link under this section as they apply to the appearance, giving evidence or making of a submission by way of audio visual link in a proceeding before a NSW court under that Act.(5H) Nothing in this section prevents a direction under section 5BA (1) of the Evidence (Audio and Audio Visual Links) Act 1998being made in the proceedings.(6) If the inmate is transferred to another correctional centre, the Visiting Magistrate may transfer the proceedings to the Visiting Magistrate for the other correctional centre.
56 Penalties Visiting Magistrate may impose
(1) If, after hearing the charge, the Visiting Magistrate is satisfied beyond reasonable doubt that the inmate is guilty of the correctional centre offence, the Visiting Magistrate may make an order imposing one (but not more than one) of the following penalties:(a) reprimand and caution,(b) deprivation, for up to 90 days, of such withdrawable privileges as the Visiting Magistrate may determine,(c) confinement to a cell for up to 28 days, with or without deprivation of withdrawable privileges,(d) cancellation of any right to receive payments under section 7 for up to 14 days, but to the extent only to which those payments are additional to the payments made at the base rate to inmates generally or to inmates of a class to which the inmate belongs,(e) extension, by up to 6 months at a time, of:(i) the term of the inmate’s sentence, and(ii) in the case of an offence occurring during a non-parole period of the inmate’s sentence, the non-parole period of the sentence,(f) imposition of a sentence of imprisonment for a period not exceeding 6 months.(2) If, after hearing the charge, the Visiting Magistrate is satisfied beyond reasonable doubt that the inmate is guilty of the correctional centre offence, but is of the opinion that a penalty should not be imposed, the Visiting Magistrate may dismiss the charge.(3) If, after hearing the charge, the Visiting Magistrate is not satisfied beyond reasonable doubt that the inmate is guilty of the correctional centre offence, the Visiting Magistrate must dismiss the charge.(4) To avoid doubt, a Visiting Magistrate making an order referred to in subsection (1) (f) is a person exercising criminal jurisdiction for the purposes of the definition of court in section 3 (1) of the Crimes (Sentencing Procedure) Act 1999.
56A Penalty for use or possession of a mobile phone
(1) The general manager or Visiting Magistrate dealing with a charge relating to a correctional centre offence arising out of the use or possession of a mobile phone or any part of it, a mobile phone SIM card or any part of it, or a mobile phone charger or any part of it may order that an inmate be deprived, for up to 6 months, of such withdrawable privileges as the general manager or Visiting Magistrate may determine if satisfied beyond reasonable doubt that the inmate is guilty of the offence.(2) To avoid doubt, if a penalty is imposed under this section in respect of a correctional centre offence, a general manager or Visiting Magistrate must not also impose a penalty referred to in section 53 or 56, as the case may be, in respect of the same correctional centre offence.
(1) This section applies to a correctional centre offence arising out of:(a) the result of a test showing the presence of a drug in a non-invasive sample taken from or provided by an inmate, or(b) an inmate refusing or failing to provide, or enable to be taken, from the inmate a non-invasive sample when required to do so by a correctional officer of or above the rank of Assistant Superintendent.(2) The general manager or Visiting Magistrate dealing with a charge relating to an offence to which this section applies may order that an inmate be deprived, for up to 6 months, of such withdrawable privileges as the general manager or Visiting Magistrate may determine if satisfied beyond reasonable doubt that the inmate is guilty of the offence.(3) The general manager or Visiting Magistrate is not to make such an order if the inmate establishes that the drug:(a) was administered on and in accordance with the prescription of a registered medical practitioner or registered dentist, or(b) was lawfully supplied by, and taken in accordance with the instructions of, a registered medical practitioner, registered dentist or registered nurse, or(c) was taken or administered in such form or preparation as may be allowed by the regulations, or(d) was present in a quantity that does not exceed the quantity (if any) prescribed by the regulations, or(e) was not a drug within the meaning of this Act at the time it was taken by or administered to the inmate.
58 Certain offences may be dealt with by Local Court
If, during proceedings on a charge relating to a correctional centre offence, the Visiting Magistrate is of the opinion that the act or omission giving rise to the offence constitutes a criminal offence for which proceedings should be taken before a court, the Visiting Magistrate must terminate the proceedings and order that the inmate be brought before the Local Court to be dealt with according to law.
59 Compensation for property damage
(1) If an inmate causes any loss of or damage to property as a result of committing a correctional centre offence, the general manager or Visiting Magistrate may, whether or not a penalty is imposed for the offence, order that the inmate pay to the Crown (or, if the property is owned by some other person, to that other person) a specified amount as compensation for the loss or damage.(2) The maximum amount of compensation that the general manager may order an inmate to pay is $500.(3) Compensation that an inmate is ordered to pay under this section is payable out of any money held by the general manager on behalf of the inmate or out of any other money otherwise payable to the inmate under this Act or the regulations.
If:(a) an inmate is charged with 2 or more correctional centre offences, and(b) the charges are determined together or arise out of a single incident,any cumulative penalties imposed for those offences must not, in respect of any particular kind of penalty, exceed the maximum penalty that may be imposed in relation to a single correctional centre offence.
61 Record of punishments for correctional centre offences
(1) If a penalty is imposed on an inmate in relation to a correctional centre offence, the general manager must cause the following particulars to be recorded:(a) the nature and date of the offence,(b) the name of the inmate,(c) the date of sentence,(d) the penalty imposed,(e) any order for the payment of compensation.(2) The record must be kept at the correctional centre concerned and made available for inspection by such persons as the Commissioner considers appropriate.(3) The regulations may make provision for or with respect to the disposal of any such record.
62 Appeals against decisions of Visiting Magistrates
(1) An appeal against a penalty imposed by a Visiting Magistrate under section 56 (1) (e) or (f) may be made to the District Court under Part 3 of the Crimes (Local Courts Appeal and Review) Act 2001 as if that penalty were a sentence arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986.(2) The Crimes (Local Courts Appeal and Review) Act 2001 applies to an appeal arising under subsection (1) with such modifications as are made by or in accordance with the regulations under that Act.(3) The regulations may make provision for or with respect to the lodging and determination of appeals under this section.(4) Except as otherwise provided by this section, a decision of a Visiting Magistrate to impose a penalty on an inmate in proceedings under this Division is final and is not liable to be challenged, appealed against, quashed or called into question by any court.
(1) For the purpose of determining whether proceedings for a criminal offence may be brought for the act or omission giving rise to a correctional centre offence, the decision of a Visiting Magistrate in proceedings for the correctional centre offence is taken to be the decision of a court in proceedings for a criminal offence.(2) Proceedings for a correctional centre offence are not to be commenced or continued under this Division if proceedings for a criminal offence have been commenced in a court for the act or omission giving rise to the correctional centre offence.
64 False or misleading statements
(1) A person must not, in or in connection with any proceedings under this Division, make any statement that the person knows to be false or misleading in a material particular.Maximum penalty: 5 penalty units.
(2) This section does not apply to a statement verified by statutory declaration.
65 Offences may be dealt with by general manager of any correctional centre
A correctional centre offence may be dealt with under this Division by the general manager of a correctional centre, or by the Visiting Magistrate for a correctional centre, even though the offence was committed, or is alleged to have been committed, while the inmate was in another correctional centre or correctional complex or in the custody of the general manager of another correctional centre.
Division 7 Classification of serious offenders
This Division applies to any proposal for a recommendation by the Review Council under section 197 that a serious offender be given a security classification that would allow the offender to become eligible for unescorted leave of absence under a local leave permit or interstate leave permit (a low security classification).
67 Formulation of Review Council’s initial intention
(1) As soon as practicable after a proposal is made that the Review Council recommend a low security classification for a serious offender, the Review Council is (subject to and in accordance with the regulations) required to give a preliminary notice of its intention to any victim of the offender whose name is recorded in the Victims Register.(2) The preliminary notice:(a) must state that a proposal for such a recommendation has been made, and(b) must state that there will be an opportunity for victims to make submissions to the Review Council about the making of such a recommendation, and(c) must specify a period of at least 14 days during which a victim may lodge with the Executive Officer and Registrar of the Review Council a notice of intention to make submissions to the Review Council.
A victim who receives a notice under section 67 may make a written submission to the Review Council about the proposed recommendation referred to in the notice.
69 Review Council to consider all submissions
The Review Council must consider all submissions made in accordance with this Division and must disregard all other submissions.
(1) After reviewing all the reports, documents, submissions and other information placed before it in relation to a serious offender, the Review Council must decide whether or not to recommend a low security classification for the offender.(2) If the Review Council decides not to recommend a low security classification, the Review Council must cause the reasons for its decision to be recorded in its minutes.
(1) The State may at any time make submissions to the Review Council concerning the making of a low security classification for a serious offender.(2) If the State does so, the Review Council is not to make a final decision concerning the classification of the offender until it has taken any such submission into account.(3) The regulations may make provision for or with respect to submissions by the State under this section, including provisions relating to the application of this Division in connection with any such submission.(4) The powers of the State under this section may be exercised, subject to the regulations, by any agent of the State.(5) The power exercisable by the State under this section may also be exercised by the Australian Capital Territory in relation to a prisoner within the meaning of Division 4 and, for that purpose, references in this section to the State are taken to extend to the Australian Capital Territory.
(1) While held in custody in a correctional centre, an inmate is taken to be in the custody of the general manager of the correctional centre to which the inmate has been committed or (if the inmate has been transferred to another correctional centre in accordance with section 23 or 41C) the correctional centre to which the inmate has been transferred.(2) An inmate does not cease to be in the custody of the general manager of a correctional centre merely because the inmate is for the time being held in custody in some other part of a correctional complex (other than another correctional centre) of which the correctional centre forms part.(3) Despite any other provision of this Act, an inmate is not to be held in a police station or court cell complex for more than 7 days at a time.
An inmate must be supplied with such medical attendance, treatment and medicine as in the opinion of a medical officer is necessary for the preservation of the health of the inmate, of other inmates and of any other person.
73 Compulsory medical treatment
(1) A medical practitioner (whether that practitioner is a medical officer or not) may carry out medical treatment on an inmate without the inmate’s consent if the Chief Executive Officer, Justice Health is of the opinion, having taken into account the cultural background and religious views of the inmate, that it is necessary to do so in order to save the inmate’s life or to prevent serious damage to the inmate’s health.(2) Medical treatment carried out on an inmate under this section is, for all purposes, taken to have been carried out with the inmate’s consent.(3) Nothing in this section relieves a medical practitioner from liability in respect of the carrying out of medical treatment on an inmate, being a liability to which the medical practitioner would have been subject had the treatment been carried out with the inmate’s consent.(4) If the Chief Executive Officer, Justice Health is not a medical practitioner, the reference to the Chief Executive Officer, Justice Health in subsection (1) is taken to be a reference to a person, designated by the Chief Executive Officer for the purposes of that subsection, who is a medical practitioner.
74 Notice to coroner of inmate’s death
(1) The general manager of a correctional centre must give written notice to a coroner immediately after becoming aware of the death of any inmate who is in the custody of the general manager.(2) For the purposes of the Coroners Act 2009, the receipt of such a notice from the general manager has the same effect as the receipt of information of a death from a police officer.
(1) The Commissioner may confiscate any property (including any money) that is unlawfully in the possession of an inmate.(2) Property that is confiscated under this section becomes the property of the State, to be destroyed or otherwise disposed of as the Commissioner may direct.(3) The regulations may provide for the circumstances in which property is taken to be unlawfully in the possession of an inmate.
(1) The Commissioner may direct that any unclaimed property found within a correctional centre be sold or otherwise disposed of as the Commissioner may direct.(2) The proceeds of sale of unclaimed property are to be dealt with as if they were unclaimed money held by the Commissioner.
(1) Any money:(a) that is surrendered by an inmate on being taken into custody at a correctional centre, or(b) that is paid to an inmate pursuant to section 7, or(c) that is received by a correctional officer or other member of staff of Corrective Services NSW on an inmate’s behalf (other than money that it is unlawful for the inmate to acquire or retain possession of while in custody),is to be deposited in an authorised deposit-taking institution.(2) Until repaid, money so deposited may be invested by the Treasurer in any form of investment approved by the Treasurer.(3) Interest from any such investment may be applied for the benefit of inmates and their families in such manner as the Commissioner may determine.
77 Attendance of inmates before courts and court officers
(1) If an appropriate authority is satisfied that:(a) it is necessary that an inmate should attend before it for the purposes of any legal proceeding, inquest or inquiry, and(b) the absence of the inmate may prejudice the rights of a party,the authority may make an order directing the Commissioner to cause the inmate to be produced at the court or other place at which the proceeding, inquest or inquiry is being, or is to be, held.(2) Such an order is sufficient authority for the general manager of the correctional centre in which the inmate is held to cause the inmate to be produced in accordance with the order.(3) An inmate produced in accordance with such an order is taken to be in lawful custody while in the actual custody of the general manager, a correctional officer, a sheriff’s officer or a police officer.(4) It is the duty of the person having actual custody of the inmate to return the inmate to the correctional centre from which the inmate was produced as soon as the appropriate authority permits.(5) In this section:appropriate authority means:
(a) a court, or(b) a coroner, or(c) the Independent Commission Against Corruption, or(d) a Royal Commission, or(e) the Victims Compensation Tribunal, or(f) the senior administrative officer (such as the clerk or registrar) of a court, or(g) a person prescribed by the regulations for the purposes of this definition.correctional officer includes:
(a) a person employed on a temporary basis within Corrective Services NSW 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.court includes the following:
(a) the Children’s Court,(b) the Federal Court of Australia,(c) the Family Court of Australia,(d) the Federal Magistrates Court of Australia,(e) the Dust Diseases Tribunal,(f) any other court or body prescribed by the regulations for the purposes of this definition.
78 Use of dogs in maintaining good order and security
(1) With the approval of the general manager of a correctional centre, a correctional officer may use a dog to assist in maintaining the good order and security of the correctional centre and any correctional complex of which the correctional centre forms part.(2) Without limiting subsection (1), such an approval may be given to the use of a dog for any of the following purposes:(a) the carrying out of searches within a correctional centre or correctional complex for any reason,(b) the tracking of an escaped inmate,(c) the escorting of inmates while they are being moved from one place to another,(d) the disarming of inmates,(e) the patrolling of correctional centres and correctional complexes,(f) the assisting of a police officer in the execution of the police officer’s functions.(3) At the request of the Director-General of the Department of Juvenile Justice, a correctional officer may use a dog to assist in the detection of drugs in a detention centre within the meaning of the Children (Detention Centres) Act 1987.(4) A correctional officer is not personally liable for injury or damage caused by the use of a dog that is under the correctional officer’s control if that use was in accordance with the general manager’s approval.(5) Subsection (4) does not apply if injury or damage occurs as a result of anything commanded to be done by a correctional officer maliciously and without reasonable and probable cause.(6) This section applies to a person employed as a custodian of inmates by the management company for a managed correctional centre in the same way as it applies to a correctional officer.(7) Nothing in this section limits the power of a correctional officer to use a dog under any other Act or law.
78A Separation and other variations in conditions of custody of inmates
(1) Nothing in this Act requires the conditions of custody of inmates to be the same for all inmates or for all inmates in the same correctional centre or of the same classification or designation, including conditions with respect to association with other inmates.(2) An inmate or group of inmates in a correctional centre may be held separately from other inmates in the correctional centre for the purposes of the care, control or management of the inmate or group of inmates.(3) In particular, inmates may be separated because of a requirement of this Act or the regulations, because of the classification or designation of the inmates, because of the nature of any program being undertaken by the inmates or because of any intensive monitoring that is required of the inmates.(4) The making of a segregated custody direction under Division 2 is not required to authorise a separation of inmates.(5) Anything done or omitted that could have been validly done or omitted if this section (and section 79 (c1)) had been in force when it was done or omitted is taken to be, and always to have been, validly done or omitted.
The regulations may make provision for or with respect to the following matters:(a) the management, control, administration, supervision and inspection of correctional centres and correctional complexes,(b) the procedure to be followed when admitting an inmate into a correctional centre, including the procedure for accepting or refusing custody of property in an inmate’s possession when the inmate is admitted,(c) the classification of inmates into different categories and the separation of inmates by reference to the categories into which they have been classified,(c1) the designation of inmates for the purposes of or in connection with the management of security and other risks,(d) the procedure to be followed when releasing an inmate from a correctional centre, including the procedure for returning property accepted from an inmate when the inmate was admitted into the correctional centre,(e) the physical, psychological and spiritual welfare of inmates while in custody and following their release,(f) the kind of work that a convicted inmate may be directed to carry out under section 6 and the circumstances in which such a direction may be given,(g) the expenditure of money (or money’s worth) by inmates,(h) the circumstances in which an inmate may lawfully acquire or retain possession of property (including money) within a correctional centre,(h1) the forfeiture and disposal of an inmate’s abandoned or unclaimed property (including money), or of unhygienic or otherwise dangerous property (including money) received from, or sent to, an inmate,(h2) the seizure, forfeiture and destruction or other disposal of any property (including money):(i) brought into a correctional centre or correctional complex by any person in contravention of this Act, the regulations or any other law, or(ii) found within, sent to or delivered to a correctional centre or correctional complex and that it is unlawful for an inmate to acquire or retain possession of under this Act, the regulations or any other law,(h3) the seizure, forfeiture and destruction or other disposal of any drug, or any thing reasonably suspected of being a drug:(i) in the possession of an inmate, or(ii) in the possession of any other person in a correctional centre or correctional complex, or(iii) found within a correctional centre or correctional complex, or(iv) sent to or delivered to a correctional centre or correctional complex,(i) visits to inmates, including:(i) the days and times that visits may be allowed, and(ii) the maximum number of persons who may visit an inmate at the same time, and(iii) the classes of persons who may be prohibited from visiting inmates, and(iv) the conditions that must be observed by persons intending to visit an inmate before such a visit will be allowed, and(v) the procedures to be observed by visitors and inmates during visits,(j) the making and receiving of telephone calls by inmates,(k) the sending and receiving of letters and parcels by inmates, including the circumstances in which letters and parcels may be opened for inspection or confiscated,(l) the procedures to be followed by an inmate when applying for a local leave permit or interstate leave permit, and the circumstances under which such a permit may be issued,(m) the procedures to be followed by an inmate, and the facilities to be provided to an inmate, for the purpose of enabling the inmate to make a complaint to the general manager of the correctional centre or to any other person or body,(n) the observance by inmates of religious rites and obligations,(o) the acquisition by inmates of education and vocational training,(p) the provision to inmates of medical, surgical and dental treatment,(q) the distribution of condoms to inmates,(r) the circumstances in which a body search may be conducted on an inmate, the procedures to be followed in conducting a body search and the persons by whom, or in whose presence, a body search is to be conducted,(s) the circumstances in which a correctional officer may use force against an inmate, and the keeping of records of the occasions on which force is so used,(t) the circumstances in which a correctional officer may use firearms, and the keeping of records of the occasions on which firearms are so used,(u) the equipment that may be used to restrain an inmate, and the circumstances in which, and the maximum periods for which, an inmate may be restrained by means of such equipment,(v) the circumstances in which an inmate may be tested for drugs or alcohol, the use of a non-invasive sample provided by, or taken from, an inmate for the purposes of a test for drugs or alcohol and the nature of the tests to be used,(v1) analyses in connection with any such tests and the admission of certificates relating to the results of any such analyses as prima facie evidence in any proceedings for a correctional centre offence (within the meaning of section 51) being dealt with under this Act by a general manager or Visiting Magistrate,(w) (Repealed)(x) the appointment of medical officers for correctional centres,(x1) the appointment of ministers of religion and other spiritual advisors for correctional centres,(y) the functions of correctional officers and other staff employed within a correctional centre or correctional complex,(z) the form of any warrants issued for the purposes of this Part.