38Form and execution of surrender warrants and temporary surrender warrants

#### 38 Form and execution of surrender warrants and temporary surrender warrants (1) A surrender warrant or a temporary surrender warrant in relation to a person (in this subsection called the eligible person) shall: (a) authorise the eligible person to be taken into custody, transported in custody and, if necessary or convenient, detained in custody, by any police officer, for the purpose of enabling the eligible person to be placed in the custody of a specified person or a person included in a specified class (in this subsection called the escort officer) and transported out of Australia; (b) authorise the escort officer to transport the eligible person in custody out of Australia to a place in New Zealand for the purpose of surrendering the eligible person to a person appointed by New Zealand to receive the eligible person; and (c) be in writing in the statutory form. (1A) To avoid doubt, subject to this section and subsection 33(3) of the Acts Interpretation Act 1901, a surrender warrant or a temporary surrender remains in force until the eligible person is surrendered, at a place in New Zealand, to a person appointed by New Zealand to receive the eligible person. (2) Subject to this section, a surrender warrant or a temporary surrender warrant shall be executed according to its tenor. (3) A surrender warrant issued under paragraph 34(1)(c) shall not be executed while any proceedings under section 35 in relation to the order of the magistrate or Judge set out in the warrant are being conducted or are available. (4) A surrender warrant issued in compliance with an order of a court under subparagraph 35(2)(b)(ii) shall not be executed while any proceedings under section 35 in relation to the order are being conducted or are available. (5) Where a surrender warrant is issued in respect of a person: (a) who is in custody; or (b) to whom bail has been granted; in respect of an offence that is alleged to have been committed, or of which the person has been convicted, in Australia, the warrant shall not be executed before the person has been released from custody in respect of that offence or any recognizances on which the person has been granted bail in respect of that offence have been discharged, as the case requires. (6) For the purposes of subsection (5), a person who is serving a sentence of imprisonment shall be taken not to be in custody if the person has been released on parole or licence, or has been otherwise conditionally released, for the remainder of the sentence. (7) Where: (a) a surrender warrant or a temporary surrender warrant is issued in relation to a person; (b) the person is in custody in Australia under the warrant, or otherwise under this Act, more than 1 month after the day on which the warrant was first liable to be executed; (c) the person applies to the Federal Court; and (d) reasonable notice of the intention to make the application has been given to the Attorney‑General; the Federal Court shall, subject to subsection (8), order that the person be released from that custody. (8) Where the Federal Court is satisfied that the person has not been conveyed out of Australia under the warrant within the period of 1 month or since the person last made an application under subsection (7), as the case may be: (a) because to do so would have been dangerous to the life or prejudicial to the health of the person; or (b) for any other reasonable cause; the Federal Court shall not order that the person be released from custody.