International Transfer of Prisoners (Victoria) Act 1998

The Act defines or adopts several key terms, most of which derive from the Commonwealth Act. “Commonwealth Act” is defined in s 3(1) as the International Transfer of Prisoners Act 1997 of the Commonwealth. Importantly, s 3(3) provides that a reference to the Commonwealth Act includes that Act as amended from time to time or any Act enacted in substitution for it, meaning the Victorian Act automatically tracks changes at the federal level without requiring a Victorian amendment. “This jurisdiction” simply means Victoria. A “corresponding law” is a law of another State that provides for the international transfer of prisoners. This allows interstate cooperation: a prison officer in Victoria may exercise functions under a corresponding law (s 5(1)(a)), and enforcement laws of another State are expressly included in the definition of “enforcement law” in s 7(5). The Act thus presupposes a degree of uniformity across Australian jurisdictions.

“Prison officer” has the same meaning as in the Corrections Act 1986, and “police officer” the same meaning as in the Victoria Police Act 2013 (both definitions in s 3(1)). The definition of “police officer” was inserted in 2014 to replace the earlier term “member of the police force”, aligning terminology with modern Victorian legislation. “Secretary to the Department of Health” was added in 2010 (No. 29/2010 s 61(1)) to reflect the transfer of health responsibilities; s 4(3) includes that Secretary and the chief psychiatrist as authorised delegates of the Minister.

“Function” is defined expansively in s 3(1) to include “power, authority or duty”. This means that when the Act says a person may “exercise and perform any function”, that includes the power to make decisions, issue directions, and carry out obligations. It is not limited to purely administrative tasks. The definition is important for understanding the scope of ministerial delegation: the Minister can delegate not just powers but also duties and authorities, and the delegate steps into the Minister’s shoes for those purposes (subject to any limitations in the instrument of delegation).

“Enforcement law” is defined in s 7(5) to mean any law of this jurisdiction, any law of the Commonwealth or another State, or any lawfully observed practice or procedure concerning the detention of prisoners. This is deliberately broad. It means that when a prisoner is transferred into Victoria, they become subject not only to Victorian statutes but also to practices and procedures that are lawfully observed in Victorian prisons - for example, internal prison rules and protocols that have force under the Corrections Act, even if they are not legislated in primary form. The non-exhaustive list in s 7(2) illustrates the scope: conditions of imprisonment, treatment, parole, classification, separation, removal, medical and mental health treatment, pre-release permits, temporary absence, and interstate transfer. The reference to “release on parole” is particularly important because it means the transferred prisoner becomes eligible for parole under Victorian law, including the Adult Parole Board’s jurisdiction, regardless of what the sending country’s parole rules might have been.

The Act also references the “War Crimes Tribunal”, defined in s 3(1) to mean the Former Yugoslavia Tribunal or Rwanda Tribunal within the meaning of the Commonwealth Act. This means the transfer scheme covers prisoners convicted by those international tribunals, not only by national courts of a transfer country. The inclusion was likely forward-looking; the Act was enacted in 1998, while the tribunals were still active.

“Transfer country” is not defined in the Victorian Act but is defined in the Commonwealth Act; s 3(2) provides that expressions defined in the Commonwealth Act and used in this Act have the same meaning unless a contrary intention appears. This drafting technique avoids duplication but requires the reader to cross-reference the Commonwealth Act. The concepts of “transferred prisoner” and “federal prisoner” are likewise imported from the Commonwealth Act, which is essential for understanding s 7(1)’s direction that enforcement laws apply “in the same way as … to a federal prisoner”.

The Act directly affects a narrow class of persons. Primarily, it affects prisoners who are transferred to or from Australia under the Commonwealth Act and who will serve their sentence in Victoria. For an incoming prisoner, the Act makes them subject to Victorian enforcement laws as if they were a federal prisoner (s 7(1)). That means they will be housed in Victorian prisons, subject to Victorian prison rules, eligible for Victorian parole, and subject to Victorian practices regarding classification, removal, temporary absence, and mental health treatment. They become part of the Victorian corrections population, with all the attendant rights and obligations, including the right to make complaints under the Corrections Act and to seek internal and external review of custodial decisions.

For an outgoing prisoner - a person sentenced by a Victorian court who is transferred abroad to serve the remainder of their sentence - the Act provides that Victorian enforcement laws cease to apply (s 8(1)). That person will no longer be subject to Victorian prison conditions, parole, or removal powers. However, the Crown and Victorian courts retain the power to pardon, grant amnesty, or commute the sentence (s 8(2)). This means that even if the prisoner is physically in another country, Victoria could theoretically reduce or extinguish their sentence. That power could create conflicts with the receiving country’s enforcement regime, but the Act does not address how such a power would be exercised in practice, nor does it require consultation with the Commonwealth or the receiving country.

The Act affects Victorian Ministers (s 4), prison officers, police officers, and other officials of this jurisdiction (s 5). These officials are given statutory authority to exercise functions under the Commonwealth Act and to hold and deal with prisoners in accordance with warrants issued under that Act. The Act ensures they have a clear legal basis for actions that might otherwise be outside their ordinary powers - for example, taking custody of a person brought from overseas, or executing a warrant that originates from a foreign court confirmed by the Commonwealth Attorney-General. Without s 5(2), holding a prisoner under a foreign warrant might raise questions about lawful custody.

The Act also affects the Governor in Council (s 6), who may make arrangements for administration of the Commonwealth Act under s 50 of that Act. The Department of Justice and the Department of Health are affected because their Secretaries and certain officers are potential delegates of the Minister (s 4(3)). The chief psychiatrist under the Mental Health and Wellbeing Act 2022 is a named delegate; this reflects the reality that transferred prisoners may require mental health assessment and treatment, and that clinical decisions may need to be made under the Minister’s authority.

Indirectly, the Act affects the families and legal representatives of transferred prisoners, who must navigate the interaction between Victorian enforcement laws and the terms of the transfer, including any directions from the Commonwealth Attorney-General under s 44 or s 49 of the Commonwealth Act (s 7(3)-(4)). It also affects other States via the definition of “corresponding law” and the inclusion of other States’ enforcement laws in s 7(5). The Act does not create any new rights or obligations for private contractors operating prisons, though such contractors (if they exist in Victoria) would be bound by the same enforcement laws that apply to transferred prisoners. The compliance burden on private enterprise is effectively nil, as the Act deals exclusively with governmental functions.

The Act imposes few explicit duties on any person; it is primarily an empowerment statute. The principal duty (though not stated in mandatory language) is the duty of Victorian officials to give effect to warrants and directions issued under the Commonwealth Act. Section 5(2) makes it lawful for a prison officer, police officer, or other official to hold and deal with a prisoner in accordance with the terms of a warrant issued under the Commonwealth Act. This implies a corresponding authority to act, but not a positive duty to transfer or receive a prisoner - the transfer decision itself is made at the Commonwealth level. However, once a warrant is issued and a prisoner is physically in Victoria, the officials must comply with its terms. Section 7(3) provides that any direction by the Commonwealth Attorney-General under s 44 of the Commonwealth Act concerning enforcement is “to be given effect to in this jurisdiction”. That language is prescriptive: it commands Victoria to implement the direction, presumably through its prison authorities.

The Minister has the duty (or at least the power) to exercise any function conferred on “the Minister” by the Commonwealth Act (s 4(1)). This is cast as an ability rather than an obligation, but in practice the Minister must act if the Commonwealth framework requires a state ministerial decision - for example, consenting to a transfer or designating a prison. The Minister may delegate (s 4(2)), and the range of authorised persons is wide, including the Secretary of the Department of Justice, the Commissioner of Corrections, Health Department officials, and prescribed persons. The ability to delegate is permissive, not mandatory, but it is the mechanism by which the Act operates day-to-day.

The Act confers no express rights on the prisoner. Section 7(1) ensures that a transferred prisoner is treated no worse than a federal prisoner, but it does not confer any additional rights, such as a right to challenge the application of particular enforcement laws. The prisoner’s rights are found in the underlying enforcement laws of Victoria - the Corrections Act, the Mental Health and Wellbeing Act 2022, the Charter of Human Rights and Responsibilities Act 2006 - and in the Commonwealth Act (e.g., the right to consent to transfer). The Victorian Act is silent on whether a prisoner can contest the application of a specific Victorian law if it conflicts with a term of the transfer agreement or with the law of the sending country. That gap could create uncertainty: for example, if the sending country’s sentence does not include parole, but Victorian law makes parole available, does the prisoner have a right to be considered for parole? The Act says the enforcement law applies “in the same way as to a federal prisoner”, which suggests the full Victorian parole regime applies, but the Commonwealth Attorney-General’s direction under s 44 (which must be given effect) could specify otherwise. The relationship between the direction and the general application of enforcement laws is not spelt out.

For outgoing prisoners, the Act imposes no duties on them; it merely provides that Victorian enforcement laws cease to apply (s 8(1)). The exception is that the Crown and courts retain the power to pardon, grant amnesty, or commute the sentence (s 8(2)). That power is a right in the sense that it preserves the State’s prerogative, but it is not a right that the prisoner can enforce. The Act does not give the prisoner a right to apply for pardon or commutation; that would depend on other laws.

The Act also imposes no duties on private citizens, businesses, or non-government organisations. It is solely concerned with the operation of the criminal justice system.

The Act itself contains no direct penalty provisions for non-compliance by officials or prisoners. The only penalty-creation mechanism is the regulation-making power in s 9. Subsection (2)(d) provides that regulations may impose a penalty not exceeding 10 penalty units for a contravention of the regulations. Ten penalty units at the current value (approximately $1,923 as of 2023) is a modest fine, consistent with administrative or regulatory offences rather than criminal penalties. No regulations have been published under this Act (at least none are cited in the endnotes), so no such penalties are currently in force.

Enforcement of the Act’s provisions is achieved indirectly. If a prison officer or police officer fails to give effect to a Commonwealth warrant or direction, they may be acting outside their authority - but the Act does not create an offence for such failure. Instead, the consequence would be that the detention of the prisoner becomes unlawful, exposing the officer and the State to habeas corpus proceedings and potentially to civil claims for false imprisonment. The Act’s purpose is to make such detention lawful (s 5(2) says it “is lawful for” an official to act under a warrant). Without s 5(2), the common law might not recognise a foreign warrant as authority for detention in Victoria. So the Act’s enforcement mechanism is essentially that it provides a legal defence: an officer who acts within the scope of the Act cannot be sued or prosecuted for that action.

For prisoners transferred into Victoria, the substantive enforcement of their sentence is governed by the enforcement laws themselves, not by this Act. If a prisoner escapes or breaches prison rules, they face penalties under the Corrections Act or the Crimes Act 1958, not under this Act. The Act merely makes those laws applicable to the transferred prisoner. Similarly, if the Minister or a delegate exercises a function under the Commonwealth Act, any review or challenge to that decision would be under the Commonwealth Act or under general administrative law, not under this Act.

The Act also provides for the Governor in Council to make arrangements for administration (s 6). Non-compliance with an arrangement is not penalised; the arrangement is an administrative document, not a legislative instrument. But the arrangement could specify procedures that, if not followed, might affect the lawfulness of an officer’s action under s 5(1)(b), which refers to functions exercised “in accordance with any arrangements referred to in section 6”.

In summary, the Act does not create its own enforcement apparatus. It relies on the existing criminal and civil law of Victoria and on the Commonwealth Act. The only penalty provision is the regulation power, which is a future possibility. The Act’s practical enforcement comes from the need for officials to ensure they have lawful authority for taking custody of transferred prisoners. A failure to comply with the Act’s empowerment requirements could render a detention unlawful, which is a powerful disincentive to non-compliance but is enforced through the courts rather than through a specific offence.

The Act’s primary interaction is with the International Transfer of Prisoners Act 1997 (Cth) . Indeed, this Victorian Act has no independent operative effect; it exists solely to support the Commonwealth scheme. Section 3(2) imports definitions from the Commonwealth Act, and s 3(3) allows the reference to the Commonwealth Act to automatically include amendments or replacements. This means that if the Commonwealth Act is amended - for example, to add new transfer countries or change consent requirements - the Victorian Act picks up those changes without needing a Victorian amendment. This legislative approach reduces the risk of inconsistency but places a burden on practitioners to check the current version of the Commonwealth Act.

The Act interacts with the Corrections Act 1986 (Vic) heavily. “Prison officer” is defined by reference to that Act, and the enforcement laws that apply to transferred prisoners under s 7 are largely the Corrections Act and the regulations made under it. Conditions of imprisonment, classification, parole, removal, and temporary absence are all covered by the Corrections Act regime. The Adult Parole Board’s jurisdiction under the Corrections Act would extend to a transferred prisoner. The Act does not modify the Corrections Act; it simply makes it applicable to a new category of prisoner.

The Victoria Police Act 2013 is relevant for the definition of “police officer”. Police officers may be required to execute warrants or transport prisoners. The Act does not confer any new policing powers; it merely confirms that existing powers can be used in relation to warrants issued under the Commonwealth Act.

The Mental Health and Wellbeing Act 2022 is referenced in s 4(3)(b) through the inclusion of the Secretary to the Department of Health and the chief psychiatrist as authorised delegates of the Minister. The Act likely anticipates that transferred prisoners may require psychiatric assessment or treatment, and that such decisions may need to be made under the Minister’s authority. The 2022 Act replaced the earlier Mental Health Act 2014, and the amendment updating the reference (No. 39/2022 s 841) came into effect on 1 September 2023, demonstrating the need to keep the Act current with health portfolio changes.

The Act also interacts with the laws of other States through the definition of “corresponding law” in s 3(1) and the inclusion of “any law of the Commonwealth or another State” in the definition of “enforcement law” in s 7(5). This means that a transferred prisoner in Victoria could be subject to another State’s law if it concerns detention - for example, if a prisoner is transferred interstate under s 7(2)(i). The corresponding law concept also allows Victorian officials to assist other States in giving effect to the Commonwealth scheme. The Act does not create a uniform national scheme but facilitates cooperation.

The Act does not interact with the Charter of Human Rights and Responsibilities Act 2006 (Vic) in any express way. The Charter was enacted after this Act (2006) and is not mentioned in the Act’s text. However, s 7’s application of all Victorian enforcement laws would import the Charter as part of those laws. This means that transferred prisoners enjoy Charter protections, such as the right to humane treatment when deprived of liberty (s 22), the right to privacy (s 13), and cultural rights (s 19). The Act does not provide any override of those rights. A transferred prisoner could bring a Charter claim if their treatment under Victorian enforcement laws breached Charter rights.

Finally, the Act interacts with the regulations that may be made under s 9. Those regulations could add to the list of authorised persons, prescribe matters for which fees are payable, or impose penalties. They may incorporate documents by reference (s 9(2)(e)). No such regulations appear to have been made, but the power exists. If regulations are made, they become part of the Act’s legal framework and must be complied with.

The Act received Royal Assent on 4 November 1998. Part 1 (ss 1-3) commenced the same day; Parts 2-5 commenced on 8 August 2002 by proclamation (Government Gazette 8 August 2002 p 2162). Part 5 (ss 10-16) was later repealed entirely by the Statute Law Revision Act 2011 (No. 29/2011), effective 22 June 2011. The content of the repealed Part 5 is not specified in the source, but it was likely transitional or obsolete provisions.

Five amendment Acts are recorded in the Table of Amendments:

1. Health and Human Services Legislation Amendment Act 2010 (No. 29/2010), s 61, effective 1 July 2010. This amendment inserted the definition of “Secretary to the Department of Health” into s 3(1) and amended the definition of “authorised person” in s 4(3) to include that Secretary and the chief psychiatrist (then under the Mental Health Act 1986, later updated). This reflects the reorganisation of health departments and the need to give health officials authority to participate in the transfer scheme, particularly for prisoners with mental health issues.

2. Statute Law Revision Act 2011 (No. 29/2011), s 3(Sch 1 item 47), effective 22 June 2011. This repealed Part 5 (ss 10-16) and any associated headings. The source does not specify the original content of Part 5, but such revision Acts typically remove spent provisions, duplication, or obsolete references. The repeal cleaned up the Act.

3. Mental Health Act 2014 (No. 26/2014), s 455(Sch item 16), effective 1 July 2014. This replaced the reference to the former Mental Health Act 1986 with updated references to the new Mental Health Act 2014, with regard to the role of the chief psychiatrist. This is a consequential amendment to keep the Act aligned with new primary mental health legislation.

4. Victoria Police Amendment (Consequential and Other Matters) Act 2014 (No. 37/2014), s 10(Sch item 88), effective 1 July 2014. This amendment repealed the definition of “member of the police force” in s 3(1) and inserted a new definition of “police officer” with the same meaning as in the Victoria Police Act 2013. It also amended the heading of s 5 to include “police officers” and updated s 5(1) and (2) to refer to police officers instead of the earlier formulation. This was part of a broader update to align Victorian legislation with the new police governance framework.

5. Mental Health and Wellbeing Act 2022 (No. 39/2022), s 841, effective 1 September 2023. This replaced the reference to the chief psychiatrist under the Mental Health Act 2014 with a reference to the chief psychiatrist under the new Mental Health and Wellbeing Act 2022, in the definition of “authorised person” in s 4(3). It also updated the reference to that Act in the definition of “Secretary to the Department of Health”. This is a technical updating amendment.

The amendment history shows that the Act has been amended infrequently and only for housekeeping purposes - updating definitions to reflect new Acts, repealing spent provisions, and adjusting terminology. There have been no substantive changes to the core transfer or enforcement provisions. This suggests that the Act has operated largely as intended since its commencement. However, it also means that the Act has not been reviewed in light of developments such as the Victorian Charter of Human Rights, changes in international transfer practice (e.g., increased numbers of transfers), or the rise of private prisons. The lack of substantive amendment does not indicate the Act is perfect; it may simply be a low-priority statute with minimal controversy.

The source does not reference any cases that have interpreted this Act. The Explanatory Details endnote (section 3 of the endnotes) states “No entries at date of publication”, meaning no litigation or tribunal decisions are recorded in the official annotations. This is not surprising given the Act’s narrow scope and its role as enabling rather than rights-creating. Most legal challenges concerning international prisoner transfers are likely to arise under the Commonwealth Act, which governs the substantive criteria for transfer, consent, and the effect of the transfer on the original sentence. The Victorian Act would be relevant only if a dispute arises about the application of Victorian enforcement laws to a specific transferred prisoner, or about the lawfulness of an officer’s action under a Commonwealth warrant.

Potential areas for litigation include:

• The scope of “enforcement law”: The definition in s 7(5) includes “any practice or procedure lawfully observed” concerning detention. A prisoner might argue that a particular practice is not lawfully observed or that it is not a practice concerning detention. A court would need to interpret what “lawfully observed” means - does it require statutory backing, or can it include unwritten administrative practices? The breadth of this definition could be tested.

• The application of s 7(1) to specific laws: Does “in the same way as … to a federal prisoner” mean that all Commonwealth laws applicable to federal prisoners also apply to transferred prisoners? Or does it mean that Victorian enforcement laws apply as they would if the prisoner were a federal prisoner (i.e., as if the Commonwealth were the sending entity)? The drafting is ambiguous. A federal prisoner serving a Commonwealth sentence in a Victorian prison is generally subject to Victorian prison rules under an agreement between the Commonwealth and the State. A transferred prisoner from a foreign country is not a Commonwealth prisoner in substance, but the Act deems them to be treated as one.

• Interaction with Commonwealth Attorney-General directions: Section 7(3) requires that directions under s 44 of the Commonwealth Act be given effect. If a direction contradicts a specific Victorian enforcement law (e.g., a direction that parole is not available), there could be a conflict. The Act does not specify which prevails. A court would likely hold that the Commonwealth direction must be given effect, but the Victorian law remains on the books, creating potential tension.

• Challenge to an outgoing transfer: A Victorian prisoner due to be transferred overseas might challenge the cessation of Victorian enforcement laws under s 8. The prisoner could argue that s 8(1) does not extinguish all rights, particularly if the receiving country’s prison conditions are inferior or if the prisoner loses access to Victorian parole. However, s 8(2) preserves the Crown’s power to pardon, amnesty, or commute, which could be used to address hardship.

Given the lack of recorded cases, it appears that the Act has not been the subject of any reported judicial interpretation. This could change if the number of international transfers increases or if a prisoner challenges some aspect of their treatment on the basis that the Act does not properly authorise their detention. For now, the Act exists in a litigation vacuum, which may reflect its careful drafting or simply the small volume of transfers involving Victoria.

Several features of the Act could trap an unwary practitioner or official.

1. The broad definition of “enforcement law” includes practices and procedures. Section 7(5)(c) includes “any practice or procedure lawfully observed” concerning detention. This is not limited to statutes or regulations. It could encompass internal prison policies, operational guidelines, and even unwritten conventions that are “lawfully observed”. For a prisoner transferred from a country with a civil law system or from a common law country with different correctional practices, they may be subject to Victorian practices they had no notice of. For officials, it means that a wide range of internal documents may have the force of law for transferred prisoners.

2. The Minister can delegate to a very broad class of persons. The authorised persons in s 4(3) include any officer or employee of the Department of Justice, the Secretary of the Department of Health, the chief psychiatrist, and any other person or body having functions under the Mental Health and Wellbeing Act 2022, plus any prescribed person or class. This means the Minister could delegate the power to consent to a transfer (if the Commonwealth Act gives the Minister a consent role) to a relatively junior official. The Act does not require the delegation to be in writing or published, as long as it is made - though the instrument of delegation would typically be documented.

3. The Act does not require notice to prisoners of the application of Victorian enforcement laws. There is no provision in the Act requiring that a transferred prisoner be informed of the specific Victorian laws that will apply to them. The Commonwealth Act may require some notice, but the Victorian Act does not. A prisoner arriving from a foreign country may be unaware of parole eligibility, temporary absence schemes, or rules about mental health treatment. This could lead to practical difficulties and potential human rights challenges.

4. The interaction between s 7(1) and Commonwealth Attorney-General directions. Section 7(3) says a direction under s 44 of the Commonwealth Act “is to be given effect to”. Section 7(4) says the same for a direction under s 49 (pardon, amnesty, commutation). What if a s 44 direction says that a particular prisoner is not eligible for parole, but Victorian parole law would otherwise apply? The Act gives no hierarchy. The phrase “is to be given effect to” suggests compliance is mandatory, but the underlying enforcement law still says parole applies. Prison authorities must resolve this conflict. A practitioner advising a prisoner would need to examine the Commonwealth direction carefully.

5. The definition of “corresponding law” includes a Territory. Section 3(1) says “State includes a Territory”. This means that if the Northern Territory or the Australian Capital Territory has a law providing for international transfer of prisoners, it may be a corresponding law. Officials in Victoria could exercise functions under that law, and enforcement laws of those Territories could be applicable under s 7(5). This is a reminder that the Act is not just about Victoria and the Commonwealth; it creates a national web.

6. The regulations power is broad. Section 9(2)(e) allows regulations to “apply adopt or incorporate any matter contained in any document” whether wholly or partially, as amended, and as in force from time to time. This means that a future regulation could incorporate a document that the public cannot easily access (e.g., a bilateral treaty or an operational manual) and give it legal force. If a regulation does that, non-compliance could attract a penalty of up to 10 penalty units. No such regulations are currently known, but the power exists.

7. The Act does not sunset or provide for review. It has been in operation since 2002 with only minor amendments. There is no requirement for the Minister to review the Act’s operation or to report on the number of transfers. This means that any unintended practical effects - for example, a transferred prisoner being subject to laws that are inconsistent with the terms of their transfer - may not be systematically identified or corrected.

8. The meaning of “any relevant enforcement law” in s 7(1) is not defined. The word “relevant” might imply that not all enforcement laws apply; only those that are relevant to the particular prisoner or sentence. But the Act gives no test for relevance. In the absence of guidance, the default is likely that all enforcement laws apply. This could lead to over-application or under-application. A cautious official would apply the full suite of enforcement laws, but a prisoner might argue that some laws are not “relevant” and should not be imposed.

Compliance with this Act is primarily an administrative matter for Victorian government officials, not for private parties. For a prison officer, police officer, or other official who may be required to deal with a transferred prisoner, the key steps are:

• Verify the warrant: Section 5(2) makes it lawful to hold and deal with a prisoner in accordance with the terms of a warrant issued under the Commonwealth Act. The officer should ensure they have sight of a valid warrant that appears to be issued under the Commonwealth Act and that matches the prisoner in custody. If the warrant is not produced, the officer should not assume authority; they should contact the Minister or the Commonwealth Attorney-General’s department for confirmation.

• Follow the terms of any Commonwealth direction: If the Commonwealth Attorney-General has issued a direction under s 44 or s 49 of the Commonwealth Act, that direction must be given effect in Victoria (s 7(3)-(4)). This could specify that the prisoner is not eligible for certain programs or that their sentence is to be enforced in a particular way. The officer should ensure that prison records and management systems reflect any such direction.

• Apply Victorian enforcement laws as to a federal prisoner: Section 7(1) requires that the prisoner be treated in the same way as a federal prisoner serving a sentence in Victoria. This means the officer should apply the Corrections Act, regulations, and prison rules without discrimination. The prisoner is entitled to the same conditions, classification, parole consideration, medical care, and temporary absence opportunities as a federal prisoner. Any deviation could be challenged as unlawful.

• Deal with outgoing prisoners: When a prisoner is transferred from Victoria to a foreign country, the officer should cease applying Victorian enforcement laws to that prisoner (s 8(1)). However, the officer should note that the Crown and courts retain power to pardon, amnesty, or commute the sentence (s 8(2)). If the officer receives a subsequent direction from the Victorian government regarding a pardon, they should give effect to it, but otherwise they have no further responsibilities toward that prisoner.

• Understand delegation arrangements: The Minister may delegate functions to authorised persons (s 4(2)-(3)). An official who believes they have been delegated a function should verify their instrument of delegation and act within its scope. If a prisoner or other party challenges an action, the official should be able to produce the delegation.

For a practitioner advising a transferred prisoner, compliance means:

• Identify applicable enforcement laws: The prisoner is subject to all Victorian laws concerning detention, plus Commonwealth and other State laws that apply under s 7(5). This includes parole laws, temporary absence schemes, and health laws. The practitioner should review the prisoner’s individual circumstances and any Commonwealth directions that may limit or modify the application of those laws.

• Check for Commonwealth Attorney-General directions: Under s 7(3)-(4), a direction may override or supplement Victorian enforcement laws. The practitioner should request copies of any directions from the relevant authorities.

• Advise on rights: While the Act itself does not create specific rights, the enforcement laws that apply (e.g., the Corrections Act, the Charter) do confer rights. The prisoner has the right to humane treatment, to be considered for parole, to access medical care, and to make complaints. Transferred prisoners should not be treated less favourably than other prisoners.

• Monitor changes: Because the Act tracks the Commonwealth Act (s 3(3)), any amendment to the Commonwealth Act automatically affects the Victorian framework. Practitioners should stay informed of amendments to both Acts.

For the Minister and departmental heads, compliance involves:

• Making delegations in writing and maintaining a register.
• Giving effect to Commonwealth directions (s 7(3)-(4)).
• Making arrangements with the Commonwealth under s 6, if not already done.
• Considering whether regulations are needed under s 9, particularly if operational details require prescription.

Non-compliance with any of these steps may not attract a direct penalty, but could render a prisoner’s detention unlawful, expose the State to liability, or cause the prisoner to be subject to the wrong legal regime. Given the small number of international transfers likely involving Victoria, the practical compliance burden is low, but the stakes for individual prisoners and the legal system are high.