Prisoners (Interstate Transfer) Act 1982

The Act contains several key definitions that are essential to its operation. A “prisoner” is defined as either a State prisoner or a joint prisoner (s 5(1)). A “State prisoner” is a person on whom a State sentence of imprisonment has been imposed but does not include a person on whom a Commonwealth sentence of imprisonment has been imposed. A “joint prisoner” is a person on whom both a State sentence of imprisonment (as defined by South Australian law or an interstate law) and a Commonwealth sentence of imprisonment have been imposed (s 5(1)). This distinction is critical because orders of transfer made in respect of joint prisoners have no effect to the extent they purport to authorise acts relating to the Commonwealth sentence, and they only become effective once a corresponding transfer order is in force under the Commonwealth Act (s 8, s 16A, s 21). A “sentence of imprisonment” is broadly defined to include State sentences, interstate law sentences, ACT and Northern Territory sentences, and, where relevant, Commonwealth sentences (s 5(1)). A “translated sentence” is a sentence of imprisonment that, by virtue of section 27, is deemed to have been imposed on a person by a court of South Australia when a prisoner is transferred into this State. This deeming mechanism ensures that the receiving jurisdiction can enforce the sentence as if it were a local sentence. An “indeterminate sentence” includes life sentences, detention during pleasure, or until further order of a court (s 5(1)). “Default imprisonment” refers to imprisonment imposed in default of paying a fine or other sum, or for failing to enter a recognizance (s 5(1)). An “order of transfer” is the formal document issued under sections 7, 15, 16(6), or 20 that authorises the physical transfer of a prisoner to a participating State (s 5(1)). A “participating State” is a State in which an interstate law is in force; the Governor may declare a law of another State to be an interstate law if satisfied that it substantially corresponds to this Act (s 6). “Corresponding courts” are designated by proclamation; for example, the Supreme Court of South Australia may be the corresponding court to the Supreme Court of another State for the purposes of receiving translated sentences (s 6(1)(b)). The “relevant security” concept captures bonds given with or without sureties to comply with behavioural conditions (s 5(1)). The Act also defines when a person is taken to have “completed serving” a sentence, including after release on parole (if no further action can be taken), after expiration of a security, or by exercise of the royal prerogative of mercy (s 5(7)). These definitions are not merely semantic; they determine the scope of the Act’s application and the rights and obligations of all parties involved.

The Act directly affects several categories of individuals and institutions. First and foremost, it affects prisoners serving sentences of imprisonment in South Australia: both State prisoners (those serving only State sentences) and joint prisoners (those serving both State and Commonwealth sentences). It also affects prisoners serving sentences in other participating States or Territories who may be transferred into South Australia. The Act gives these prisoners a statutory right to request a transfer to another jurisdiction, subject to the Minister’s opinion and the consent of the receiving jurisdiction (s 7). Prisoners who are the subject of an arrest warrant issued in another State or Territory may also be transferred for the purpose of being dealt with according to law under Part 3. The Act affects the Minister, who is the central decision-maker under Part 2 (transfer at request of prisoner) and Part 4 (transfer back). The Minister has discretion to form an opinion on whether a prisoner should be transferred and may have regard to factors including the welfare of the prisoner, the administration of justice, prison security, safe custody, community protection, and any other relevant matter (s 10A). The Attorney-General is the key decision-maker under Part 3 (transfer for trial); the Attorney-General must consent to a transfer before an order can be issued, and also receives requests from other jurisdictions for the transfer of persons into South Australia (s 12, s 13, s 18, s 19). Courts of summary jurisdiction (constituted by a magistrate) are required to hold a hearing to determine whether to issue an order of transfer for a prisoner brought before them under Part 3 (s 14, s 15). The Supreme Court may review decisions of a court of summary jurisdiction under section 15, on application by the Attorney-General, the prisoner, or any person who requested or consented to the transfer (s 16). Prison officers, members of the police force, and appointed escorts are affected as they are responsible for executing orders of transfer, conveying prisoners, and maintaining custody (s 24, s 17). Managers of prisons are required to deliver prisoners into the custody of escorts upon receipt of an order of transfer (s 24). Corresponding Ministers and Attorneys-General of other States and Territories are affected because they must receive requests and give or withhold consent. The Commonwealth Attorney-General is involved where transfers involve Territories or Commonwealth sentences (s 7(1)(d), s 12, s 13). The Act also affects justices of the peace who may issue warrants for the arrest or return of escaped prisoners (s 32).

The Act imposes specific duties and confers certain rights on the various actors. The Minister has a duty, upon receiving a written request from a State prisoner for transfer to a participating State, to give a written request to the corresponding Minister of that State asking that Minister to accept the transfer, provided the Minister is of the opinion that the prisoner should be transferred (s 7(1)(c)). For requests to a Territory, the Minister must request the Commonwealth Attorney-General’s consent (s 7(1)(d)). The Minister must also consider requests from joint prisoners and take similar steps (s 7(3)). Once consent is received, the Minister may (but is not required to) issue an order of transfer (s 7(2), s 7(4)). The Minister has a duty under section 23(1) to issue an order for the return of a prisoner to the original State or Territory after the prisoner has been dealt with in South Australia, unless the prisoner requests to remain and the relevant authorities agree, or unless an indeterminate sentence (not a translated sentence) has been imposed. The Minister may inform himself or herself as thought fit, including by reference to reports from parole and prison authorities (s 11). The Attorney-General has duties under Part 3: upon receiving a request for transfer of a prisoner for trial, the Attorney-General must either refuse or consent and give written notice (s 12(1)). The Attorney-General also has duties under sections 18 and 19 regarding requests to bring prisoners into South Australia. A court of summary jurisdiction before which a prisoner is brought must issue an order of transfer unless the prisoner satisfies the court that it would be harsh or oppressive or not in the interests of justice to transfer, or that the charge is trivial (s 15). The Supreme Court has a duty to review decisions of the court of summary jurisdiction on application and may confirm or quash the decision and substitute a new one (s 16). Prisoners have the right to make a written request for transfer under Part 2, and to be represented by a legal practitioner at hearings under Part 3 (s 14(3)(a)). Prisoners also have the right to apply to the Supreme Court for review of a court of summary jurisdiction’s decision, and to be present or represented at that review (s 16(2)). The Act imposes a duty on the Minister or the Attorney-General to advise a prisoner of any decision made in respect of that prisoner for the purposes of the Act (s 30). The Minister may refuse to entertain repeated requests made within one year of a similar request (s 9). Under Part 5, after a prisoner is transferred out of South Australia, every State sentence of imprisonment ceases to have effect in South Australia except for purposes of appeal, review, or with respect to time served or remittance of money (s 25(1)). For prisoners transferred into South Australia, their sentence becomes a translated sentence deemed imposed by a corresponding South Australian court (s 27(1)), and that sentence is given effect under South Australian law.

The Act creates a specific offence of escape from custody while in transit for a prisoner who is not within South Australia or the destination State or Territory. Section 33(1) provides that any person in custody under an order of transfer who escapes or attempts to escape while not within South Australia or the participating State or Territory to which they were being conveyed is guilty of an offence and liable to imprisonment for a term not exceeding seven years. This term is to be served after the expiration of any term of imprisonment or detention to which the person was subject at the time of the escape or attempt. Section 33(2) provides that a person who escapes is not serving their sentence during any time they are unlawfully at large. These provisions do not apply to persons to whom section 47 of the Crimes Act 1914 (Cth) applies by virtue of section 26(2) of the Commonwealth Act (s 33(3)). Enforcement of custody is supported by section 32, which allows any member of the police force, the escort, or any other person to apprehend without warrant a person who escapes from custody while in transit under section 31. After apprehension, the person may be taken before a justice who may issue a warrant ordering the person to be returned to the participating State in which the original order of transfer was issued, and to be delivered to an escort (s 32(2)). The warrant may be executed according to its tenor. The person may be detained in custody as a State prisoner until delivered to an escort or until the expiration of seven days, whichever first occurs; if not delivered within seven days, the warrant ceases to have effect (s 32(4), s 32(5)). Additionally, any court of summary jurisdiction may revoke an order of transfer if it appears that the person has committed an offence of escaping or attempting to escape, or any other offence, whether or not a charge has been laid or a conviction secured (s 34). The application for revocation may be made by the holder of a prescribed office or position, or by a person belonging to a prescribed class (s 34). The Act does not create any other specific penalties for non-compliance by officials; rather, it relies on the existing criminal law and disciplinary processes. The Act also makes provision for the lawful custody of prisoners during transit through South Australia under section 31, authorising escorts to hold custody and prison managers to detain prisoners on request. Importantly, section 7(6) provides that a decision to issue or not to issue an order under Part 2 is not reviewable by a court or tribunal, which limits the enforcement mechanisms available to a prisoner who is dissatisfied with a refusal of transfer under that Part.

The Act explicitly interacts with several other statutes. The most significant interaction is with the Commonwealth Transfer of Prisoners Act 1983 (the Commonwealth Act). The definition of “Commonwealth Act” is inserted in section 5(1) and the Act contains multiple provisions that condition the effect of orders of transfer on the existence of a corresponding order under the Commonwealth Act. For joint prisoners, orders under Part 2 (s 8), Part 3 (s 16A), and Part 4 (s 21) have no effect unless and until a transfer order corresponding to the order of transfer is in force under the Commonwealth Act, or the transfer is otherwise authorised under that Act. This ensures that Commonwealth sentences are not inadvertently affected by State transfer orders. The Act also interacts with interstate laws of other States. Section 6 provides that the Governor may, by proclamation, declare a law of another State to be an interstate law for the purposes of this Act if satisfied that it substantially corresponds to this Act. This creates a scheme of mutual recognition of transfer mechanisms among participating States. The Act references the Correctional Services Act 1982 for the definition of “prison” and “prison officer” (s 5(1)). The Sentencing Act 2017 is referenced in section 28(4), which provides that a person subject to a translated indeterminate sentence may be released on licence in accordance with that Act. The Children’s Protection and Young Offenders Act 1979 is referenced in the exclusion of sentences served in training centres from the definition of State sentence of imprisonment (s 5(1)). The Crimes Act 1914 (Cth) is referenced in section 32(2a) and section 33(3), which provide that sections 32 and 33 do not apply to persons to whom section 47 of the Crimes Act applies by virtue of the Commonwealth Act. The Northern Territory (Self-Government) Act 1978 and the Australian Capital Territory (Self-Government) Act 1988 are referenced for the designation of the Attorney-General and the Executive respectively (s 5(1), s 5(5a)). The Act also interacts with the common law and prerogative powers: section 28(5) preserves the royal prerogative of mercy in favour of persons subject to translated sentences, and section 5(7)(c) deems a sentence completed if the person is no longer required to serve it as a result of the exercise of the royal prerogative of mercy. The Act does not operate to permit any appeal against or review of any conviction, judgment, sentence or minimum term imposed by a court of a participating State (s 28(3)). This ensures that a transfer does not create new appellate rights in South Australia. Finally, the Act gives the Governor power to make regulations as contemplated by the Act or as necessary or expedient for its purposes (s 35).

The Prisoners (Interstate Transfer) Act 1982 was assented to on 7 October 1982 and commenced on 1 July 1984. It has been amended by several subsequent Acts. The Prisoners (Interstate Transfer) Act Amendment Act 1984 (No 54 of 1984) made early amendments, including changes to definitions (s 4), and amendments to sections 23, 26, 28, and 29, all commencing on 1 July 1984. The Prisoners (Interstate Transfer) Act Amendment Act 1989 (No 49 of 1989) was a major amending Act that commenced on 1 November 1989. It restructured significant parts of the Act: it substituted the definitions of “Attorney-General”, “indeterminate sentence”, “participating State”, “prisoner”, “sentence of imprisonment”, and “translated sentence”; inserted new definitions for “Commonwealth Act”, “Commonwealth sentence of imprisonment”, “joint prisoner”, “relevant security”, “State”, “State prisoner”, “State sentence of imprisonment”, and “Territory”; and deleted old definitions such as “conditional release”, “governor”, and “section 27 sentence”. The 1989 Act also substituted sections 7, 8, 20, 21, and 22 (the latter being deleted), and inserted sections 16A, 5(6)-(8), and 5(5a)-(5c). The Statutes Amendment (Attorney-General’s Portfolio) Act 1991 (No 33 of 1991) amended section 5(4) from 6 June 1991. The Statutes Amendment (Attorney-General’s Portfolio) Act 1996 (No 67 of 1996) substituted definitions including “corresponding Minister”, “joint prisoner”, “order of transfer”, “participating State”, and “sentence of imprisonment”, and amended definitions of “State” and “Territory”, commencing 17 October 1996. The Statutes Amendment (Justice Portfolio) Act 2006 (No 44 of 2006) substituted the heading of Part 2, amended section 7(1), (3), and (5), inserted section 10A (matters to which Minister may have regard), amended section 11(1), and amended section 23(1) and inserted section 23(1a), commencing 18 January 2007. The Statutes Amendment (Public Sector Consequential Amendments) Act 2009 (No 84 of 2009) substituted the definition of “prison officer” and deleted section 4, commencing 1 February 2010. The Statutes Amendment (Sentencing) Act 2017 (No 53 of 2017) amended section 28(4) to replace a reference to the Criminal Law (Sentencing) Act 1988 with the Sentencing Act 2017, commencing 30 April 2018. The Act also notes that sections 2 and 3 were omitted under the Legislation Revision and Publication Act 2002. The legislative history indicates that the Act has been updated periodically to reflect changes in sentencing laws, public sector governance, and to refine the transfer scheme, particularly in relation to joint prisoners and Commonwealth involvement.

The Act itself does not record any litigation history. However, the Act contains several provisions that explicitly limit or exclude review by courts, which is a relevant legal feature. Section 7(6) provides that a decision to issue or not to issue an order under Part 2 is not reviewable by a court or tribunal. This ouster clause suggests that the legislature intended to protect such decisions from judicial review, which could affect the scope of any litigation challenging a Minister’s decision under that Part. Section 28(3) provides that nothing in the Act operates to permit in South Australia any appeal against or review of any conviction, judgment, sentence or minimum term made, imposed or fixed in relation to a person by a court of a participating State. This provision may prevent a transferred prisoner from using South Australian courts to challenge the underlying sentence from another jurisdiction. Section 16 provides a statutory right of review to the Supreme Court in relation to decisions of a court of summary jurisdiction under section 15 (transfer for trial). This review is by way of rehearing on evidence, and the Supreme Court may confirm or quash the decision and substitute a new one (s 16(4), s 16(5)). This creates a defined avenue for litigation in the context of Part 3 transfers. Section 28(7) allows the appropriate South Australian court to fix, extend, or reduce a non-parole period for a person subject to a translated sentence, on application by the person or the Crown. This could give rise to litigation about the appropriate non-parole period. Section 13(2) provides that a certificate signed by a prescribed officer certifying that consent or request has been given is proof in the absence of evidence to the contrary, which may affect evidentiary burdens in any proceedings concerning the validity of a transfer. Section 34 allows a court of summary jurisdiction to revoke an order of transfer on application, which could lead to litigation if the court’s decision is contested (though the Act does not provide for appeal from such a revocation). The Act does not specify any limitation period for applications under section 34. There is no reference to any case law within the text of the Act. Litigation under this Act would likely arise in contexts such as a prisoner challenging a refusal of transfer (but for the s 7(6) bar), a challenge to the conditions of custody during transfer, or an application to revoke a transfer order after an escape.

Several provisions in the Act contain traps for the unwary. First, section 7(6) provides that a decision to issue or not to issue an order under Part 2 is not reviewable by a court or tribunal. This ouster clause means that a prisoner who is refused a transfer at the Minister’s discretion under Part 2 has no avenue for judicial review, unlike decisions under Part 3 which are reviewable by the Supreme Court. Second, for joint prisoners (persons serving both State and Commonwealth sentences), orders of transfer under Parts 2, 3, and 4 have no effect unless and until a corresponding order is in force under the Commonwealth Act (s 8, s 16A, s 21). This means that a State order alone is insufficient to effect a transfer of a joint prisoner; the Commonwealth Act must also be engaged, which may require additional steps and consents. Third, section 9 provides that the Minister need not entertain a request for transfer if it is made within one year of a similar request. This means that a prisoner cannot simply reapply immediately after a refusal; they must wait at least twelve months. Fourth, under section 23(1), the Minister must issue an order for the return of a prisoner to the original State or Territory after proceedings in South Australia are concluded, unless the prisoner requests to remain and the relevant authorities agree, or unless an indeterminate sentence (not a translated sentence) has been imposed. This mandatory return provision can catch a prisoner who might prefer to stay in South Australia but does not make a written request in time. Fifth, section 28(3) prohibits any appeal or review in South Australia of a conviction or sentence imposed by a court of a participating State. A prisoner transferred to South Australia cannot use South Australian courts to challenge the merits of their original sentence. Sixth, section 28(6a) provides that remission attributable to a part of the sentence not served or not to be served in the transferring State cannot be taken into account when crediting remission in South Australia. This could affect the calculation of the prisoner’s total time to be served. Seventh, section 32(4) and (5) impose a strict seven-day limit on detention under a warrant issued after an escape; if the person is not delivered to an escort within seven days, the warrant ceases to have effect, which could create an unintended release scenario. Eighth, section 34 allows any court of summary jurisdiction to revoke an order of transfer if the prisoner has committed an escape or other offence, even if no charge or conviction exists. This gives a broad discretion that could be exercised on minimal evidence. Ninth, section 25(1) provides that upon transfer out of South Australia, State sentences cease to have effect except for limited purposes (appeal, review, time served, remittance). This means the receiving State’s law will govern the sentence, and any future changes to the South Australian sentence (e.g., a successful appeal) may be complex. Tenth, the definition of “default imprisonment” in section 5(1) excludes arrest warrants where the term is default imprisonment, which means that Part 3 transfers for trial may not be available for default imprisonment warrants.

Compliance with the Act requires careful adherence to procedural steps. For the Minister considering a transfer under Part 2, the first step is to receive a written request from a State prisoner or joint prisoner. The Minister must then form an opinion on whether the prisoner should be transferred, having regard to the matters in section 10A (welfare, administration of justice, prison security, safe custody, community protection, any other relevant matter). The Minister may inform himself or herself by reference to reports from parole and prison authorities (s 11). If the Minister forms a favourable opinion, the Minister must give a written request to the corresponding Minister of the participating State (or the Commonwealth Attorney-General for a Territory request) asking that Minister to accept the transfer (s 7(1), s 7(3)). For joint prisoners transferring to a Territory, the Minister may issue an order without requiring consent from the Commonwealth Attorney-General, but must still comply with section 8 (s 7(5)). If consent is received, the Minister may issue an order of transfer. The Minister must also consider section 9: if a similar request was made within the last year, the Minister need not entertain it. The Minister must advise the prisoner of the decision (s 30). For the Attorney-General under Part 3, upon receiving a request for transfer of a prisoner for trial, the Attorney-General must either refuse consent or consent in writing (s 12(1)). Before an order can be issued, the conditions precedent in section 13(1) must be satisfied: the Attorney-General of South Australia must consent, and the Attorney-General of the participating State (or Commonwealth) must have either consented to or requested the transfer. A certificate signed by a prescribed officer certifying consent is prima facie evidence (s 13(2)). Once consents are obtained, the court of summary jurisdiction must make an order directing the prison manager to bring the prisoner before it, and upon hearing, must issue an order of transfer unless the prisoner shows hardship, oppression, injustice, or triviality (s 14, s 15). The Attorney-General is entitled to appear or be represented at the hearing (s 14(3)). If the court refuses to transfer, the Attorney-General, the prisoner, or any person who requested or consented to the transfer may apply to the Supreme Court for review (s 16(1)). The Supreme Court may confirm, quash, or substitute a decision and issue an order (s 16(5), s 16(6)). For the prison manager, upon receiving an order of transfer, the manager must deliver the prisoner into the custody of an escort (s 24(1)). The manager may charge a prison officer or police officer with execution of orders under sections 14(1) or 16(2) to bring a prisoner before a court (s 17). For an escort, the order authorises taking and keeping custody and conveying the prisoner to the specified prison (s 24(1)). The escort must comply with the terms of the order. For the Minister under Part 4, after proceedings in South Australia conclude, the Minister must issue an order for transfer back to the original State or Territory, unless the prisoner requests to remain and the relevant authorities agree, or unless an indeterminate sentence (not translated) has been imposed (s 23(1)). The Minister must consider the same discretionary factors as in section 10A (s 23(1a)). Regulation-making power under section 35 may prescribe forms, certificates, and other procedural matters. All decision-makers must ensure that prisoners are advised of decisions (s 30).