Prisoners (Release for Deportation) Act 1989

Prisoner is defined broadly in s 3(1) to include any person serving a term of imprisonment, or being detained during the Governor’s pleasure, in a prison for an offence against the law of the State, another State, or a Territory, as well as any person being detained in safe custody. “Safe custody” is defined in s 3(3) by reference to specific provisions of The Criminal Code. This means the Act can apply to persons held for offences in other Australian jurisdictions if they are in a Western Australian prison, though in practice the Commonwealth deportation order is the trigger.

Deportation order is given the meaning from section 4 of the Commonwealth Migration Act 1958. The Act does not define the term further, so its content depends entirely on Commonwealth law. A prisoner becomes a subject of the Act only when such an order is made in respect of that prisoner.

Order for release is the Governor’s written direction under s 4(4). It must specify the period for deportation (s 4(5)(a)) and may contain conditions (s 4(5)(b)). The order is revocable or variable at any time before deportation (s 5(1)). Critically, the Governor’s power to make the order is conditionally dependent on the PRB having furnished a report containing a positive recommendation. If the PRB recommends against release, the Governor appears to have no power to make an order under s 4(4).

Prison is defined to include not only prisons as defined in the Prisons Act 1981 but also any place where a person is detained in safe custody and a detention centre as defined in the Young Offenders Act 1994. This ensures that the Act covers young offenders and persons held in non-traditional custodial settings.

Prisoners Review Board is the body established under the Sentence Administration Act 2003. Its role under this Act is to prepare a report and recommendation to the Minister, subject to the parole eligibility condition in s 4(2). The PRB is not the decision-maker; the Governor decides. Section 4(6) clarifies that the PRB is not required to make a parole order if a release for deportation order is in force, preventing duplication.

Deemed service is a key legal fiction. Section 6 provides that if deportation is effected within the specified period, the prisoner is regarded as having served his or her term or detention and is wholly discharged. The habitual criminal status also ceases. This means the State has no further hold over the prisoner, and no residual supervision or reporting obligations exist. The prisoner is treated as having completed the sentence in full, even if the period of actual incarceration was shorter than the original sentence.

Exclusion of natural justice (s 7) removes any duty of procedural fairness from the Governor when doing or omitting any act, matter or thing under the Act. This prevents challenges based on failure to give a hearing, bias, or other natural justice grounds, although it does not necessarily exclude review for jurisdictional error or bad faith.

CLMI Act persons (s 6A) expand the Act’s reach to those detained under custody orders under the Criminal Law (Mental Impairment) Act 2023, who are not otherwise prisoners under this Act. The section modifies key definitions: references to “prisoner” include such persons, “prison” becomes the place of detention under the custody order, “Prisoners Review Board” becomes the Mental Impairment Review Tribunal, and “detention during the Governor’s pleasure” becomes detention under the custody order. This extension brings persons acquitted on grounds of mental impairment or found unfit to stand trial into the deportation release regime.

The primary group affected is foreign-national prisoners in Western Australian prisons who are subject to a Commonwealth deportation order. This includes sentenced prisoners (whether serving fixed terms or life imprisonment) and persons detained during the Governor’s pleasure, as well as, since 2024, persons held under custody orders for mental impairment if a deportation order exists. The Act can apply to prisoners serving sentences for offences against the law of another State or Territory, provided they are in a WA prison. In practice, most subjects will be non-citizens who have committed crimes in WA and are liable for deportation at the conclusion of their sentences.

The Prisoners Review Board is directly affected: upon notification of a deportation order, it must assess parole eligibility and prepare a recommendation. If the prisoner is not parole eligible, it cannot proceed. The PRB’s time and resources are expended on assessments that may be duplicative with parole processes, but s 4(6) removes the requirement to make a parole order if a release order is in force.

The Minister receives the PRB’s report, though the Act does not specify any further ministerial duty. The Governor is the decision-maker but acts without any duty to give reasons or hear from the prisoner. The Governor’s role is formal but the exclusion of natural justice means no procedural fairness is required, which might affect how advice is tendered.

Commonwealth deportation authorities are indirectly affected: they must act within the period specified in the release order to ensure the deportation is effected. If they fail, the order ceases and the prisoner returns to prison, potentially undermining the Commonwealth’s removal objective. The Act creates a time pressure that may benefit those authorities by encouraging prompt removal.

State corrections authorities are affected operationally. Prisons must release prisoners into the custody of persons specified in the order, and accept them back upon revocation or expiry. Police may be required to execute warrants for apprehension under s 5(4).

Legal practitioners advising prisoners must understand that the Act provides no right to a hearing before the Governor. The prisoner cannot compel a recommendation or challenge its absence. Habitual criminals subject to deportation have the possibility of having that status extinguished under s 6.

The extension to CLMI persons brings in a vulnerable group that may lack capacity to challenge decisions. The substitution of the Mental Impairment Review Tribunal for the PRB means a different body engages in the recommendation process, with likely different procedural standards, but the Governor’s exclusion of natural justice still applies.

The Prisoners Review Board has a duty under s 4(1) to furnish a written report to the Minister containing a recommendation as to whether an order for release should be made, provided the prisoner is parole eligible under s 4(2). The duty is not absolute; it only arises when a deportation order is made. In preparing the report, the PRB must give express attention to the factors in s 4(3): the nature and circumstances of the offence, the degree of risk to the community if the prisoner had been released, and any other matters it thinks fit. The PRB must consider whether the prisoner would have been considered suitable for release absent the deportation order. This duty is substantive and requires an independent assessment, not merely a rubber stamp.

The Governor has a power, not a duty, to make an order for release under s 4(4). The power is conditional on a positive PRB recommendation. The Governor also has the power to vary or revoke an order at any time before deportation (s 5(1)). No criteria guide that power, giving very broad discretion. The Governor has no duty to give reasons.

The prisoner has no right under the Act to be heard, to be informed of reasons, or to challenge any decision. Section 7 expressly excludes the rules of natural justice. However, if a release order is made, the prisoner gains a conditional right to be released and to have time in custody count as time served (s 5(5)). If deportation is effected, the prisoner is deemed to have served the sentence and is wholly discharged (s 6). That discharge includes, for habitual criminals, cessation of that status.

If the order is revoked or ceases, the prisoner has no right to remain at liberty; he or she must be returned to prison (s 5(3)). A judge may issue a warrant for apprehension (s 5(4)). The prisoner’s only benefit is that the period spent in custody under the release order counts as time served.

For CLMI persons, the duties of the PRB are replaced by those of the Mental Impairment Review Tribunal. That tribunal must assess the person under the same criteria, but the nature of the custody order may raise additional considerations about fitness for release and deportation.

The Act imposes no duties on the Commonwealth or on deportation authorities. They operate under their own legislation. However, the deeming provisions of s 6 and the cessation provisions of s 5 create consequences that affect their practical choices.

The Act does not create any specific criminal offences or penalties. Enforcement mechanisms are limited to the consequence of revocation or cessation of the release order and the power to apprehend the prisoner. If a prisoner fails to comply with a condition of the release order, the Governor may vary or revoke the order (s 5(1)), leading to return to prison. There is no separate penalty for breach of condition, but the consequence may be severe.

If the order for release is revoked or ceases to have effect because the period for deportation expires or the deportation order is revoked, the prisoner must be returned to prison “unless the prisoner is otherwise released” (s 5(3)). The phrase “otherwise released” would cover release on parole or by court order, but if no other release applies, return is mandatory. To enforce return, s 5(4) provides that a Judge or District Court Judge may, whenever necessary, by warrant authorise a member of the Police Force to apprehend the prisoner and return to a specified prison. The warrant is sufficient authority for apprehension. This is an administrative rather than penal mechanism.

There is no penalty for the failure of deportation authorities to deport within the specified period. The consequence is that the release order lapses, and the Commissioner of Corrective Services must take steps to have the prisoner returned to prison. That may impose logistical costs but no sanction.

The Act does not provide for any penalty against a person specified in the order who fails to ensure deportation. The order merely places the prisoner in their custody for the purpose of deportation. If deportation is not effected, the order ceases and the prisoner must be returned. There is no indication that the custodian becomes liable for the prisoner’s escape or failure to deport.

For CLMI persons, enforcement is similar. The Mental Impairment Review Tribunal’s role does not affect the enforcement machinery. The same warrant provisions apply.

The absence of penalties reflects that the Act is permissive and facilitative, not punitive. The State’s interest is in having the prisoner removed from the country; if that fails, the status quo ante resumes. The incentive for compliance lies in the benefit to the Commonwealth and the State, not in coercion of any party. However, the prisoner has strong incentives to comply with conditions and ensure deportation proceeds, because failure means return to prison and no discharge of sentence.

The Act is closely tied to the Commonwealth Migration Act 1958, as the definition of “deportation order” incorporates section 4 of that Act. Without a valid deportation order under Commonwealth law, the Act cannot operate. The State Act does not control the Commonwealth’s decision to make or revoke a deportation order. The interaction is one of dependence: State law provides a mechanism to facilitate Commonwealth removal, but the Commonwealth’s actions directly affect the operation of the order (e.g., revocation of the deportation order causes the release order to cease under s 5(2)(b)).

The Sentence Administration Act 2003 is the other major State law that interacts with this Act. The Prisoners Review Board is established under that Act, and the parole eligibility condition in s 4(2) refers to release on parole under that Act. Section 4(6) provides that if a release for deportation order is in force, the PRB is not required to make a parole order. This avoids conflicting orders but also means that the prisoner may not be subject to parole supervision, which is a different regime with conditions and reporting.

The Prisons Act 1981 is incorporated by reference for the definition of “prison”. The Young Offenders Act 1994 similarly supplies the definition of “detention centre”. The Criminal Code supplies the definition of “safe custody” in s 3(3). These cross-references mean that changes to those Acts may indirectly affect the scope of this Act.

The Criminal Law (Mental Impairment) Act 2023 is the most recent interaction, via s 6A. That Act creates custody orders for persons acquitted on grounds of mental impairment or found unfit. Section 6A extends the operation of this Act to such persons with modifications. The Mental Impairment Review Tribunal under the 2023 Act takes over the PRB’s role. This interaction raises the question of whether a person who is not criminally responsible should be subject to a mechanism designed for convicted prisoners; but the Act does not address that policy tension.

The exclusion of natural justice in s 7 may interact with common law judicial review. While the Governor is exempted from procedural fairness, the PRB is not. The PRB’s recommendation process could be challenged if it fails to afford natural justice, even though the ultimate decision cannot be. The Act does not exclude judicial review of the PRB’s actions, only the Governor’s.

No other State or Commonwealth laws are expressly mentioned, but the Act’s operation may affect the interaction of Commonwealth migration law with State corrections law. For example, conditions of release under this Act are not the same as parole conditions, and a prisoner deported before sentence expiry would not be subject to post-release supervision, potentially affecting the parole authority’s jurisdiction.

The Act was originally passed in 1989 as No. 15 of 1989 and commenced on 6 December 1991, as proclaimed. The original version appears to have been simpler, but the first and most significant amendment came immediately with the Prisoners (Release for Deportation) Amendment Act 1991 (No. 17 of 1991), which commenced on the same day. That amendment inserted a new section 4 (the current core provision) and amended sections 5 and 6. The original section 4 may have differed; the current version was inserted by the 1991 Act.

The Sentencing (Consequential Provisions) Act 1995 (No. 78 of 1995) amended sections 3 and 4, updating references to the Prisons Act 1981, the Young Offenders Act 1994, and the Prisoners Review Board (previously known by a different body?). This amendment came into force on 4 November 1996.

The Statutes (Repeals and Minor Amendments) Act (No. 2) 1998 (No. 10 of 1998) section 60 made a minor amendment to section 3 on 30 April 1998, likely updating a reference to “safe custody” or similar.

The Sentencing Legislation Amendment and Repeal Act 2003 (No. 50 of 2003) section 29(3) amended sections 3 and 4 again, as part of a broader reform of sentencing law that established the Prisoners Review Board under the Sentence Administration Act 2003. This came into effect on 31 August 2003. After that, a reprint (Reprint 1) was issued as at 3 October 2003, consolidating amendments.

The Parole and Sentencing Legislation Amendment Act 2006 (No. 41 of 2006) section 93 amended sections 3 and 4, effective 28 January 2007. The specific changes are not detailed in the Act text but likely involved updating references further.

The most recent amendment is from the Criminal Law (Mental Impairment) Act 2023 (No. 10 of 2023) section 394, which inserted section 6A with effect from 1 September 2024. This is a substantive expansion of the Act’s scope to cover persons under custody orders for mental impairment, a significant change given the different legal status of such persons.

The amendment history shows that the Act has remained relatively stable in core structure, with amendments primarily updating references to other legislation and expanding scope to new categories (mental impairment). The 1991 amendment was the most transformative, inserting the current conditional Governor’s power and the PRB recommendation mechanism.

The text of the Act as provided does not refer to any specific litigation or court decisions. This is not unusual for a compilation of this nature. However, the silence does not mean the Act has never been litigated. There may be unreported or reported decisions concerning the interpretation of provisions, particularly around the meaning of “prisoner”, the scope of “deportation order”, the effect of the natural justice exclusion, and the interaction with parole laws.

The exclusion of natural justice in s 7 is a provision that may have been tested in judicial review proceedings. The High Court of Australia and the Supreme Court of Western Australia might have considered whether the exclusion is valid, or whether it leaves room for review on grounds not based in the rules of natural justice, such as jurisdictional error, irrationality, or improper purpose. A prisoner could argue that the Governor acted beyond power, or that the PRB’s report was tainted by error, even if the Governor’s decision itself is not subject to procedural fairness. The PRB’s functions are not covered by s 7, so its report might be challenged on administrative law grounds. No such cases are named in the source.

Another potential area of litigation is the interpretation of the “period of time” specified in the order. If the period is ambiguous or if the deportation is effected just barely within the period, there could be disputes about whether “effected” means physical removal or arrival in the destination country. The Act does not define “effected”. Similarly, the phrase “into the custody of a person or persons” might give rise to issues if the custodian fails to take proper control.

The provision that a person under a CLMI Act custody order is included (s 6A) is new as of 2024, so no litigation has yet been reported. Potential challenges could arise concerning the compatibility of the deportation release mechanism with the rehabilitative or therapeutic purposes of custody orders under the mental impairment legislation.

Because the Act provides strong incentives for non-citizen prisoners to cooperate in their own deportation, litigation by prisoners may be limited; if deportation is successful, they are discharged in a foreign country and would have difficulty pursuing Australian proceedings. If deportation fails, they return to prison and may then challenge the decision. However, s 7 would block natural justice claims.

Given the absence of named cases in the source, it is not possible to cite specific litigation. Practitioners should be aware that the Act has likely been considered in the context of broader deportation and parole case law, but the source does not provide any.

Several provisions contain traps for the unwary. The first is the condition in s 4(2): the Prisoners Review Board cannot even furnish a report unless the prisoner could be released on parole under the Sentence Administration Act 2003. This means the Act cannot be used for prisoners who are not yet eligible for parole, even if they are subject to a deportation order. A practitioner advising a client must first check parole eligibility; if the non-parole period has not expired, the Act is a dead letter until that point. The PRB has no discretion to bypass this. This condition also means that prisoners serving life sentences with long or indefinite non-parole periods may never qualify, unless they become eligible for parole.

Second, the Governor’s power to order release is conditional on the PRB’s report containing a positive recommendation. Section 4(4) says “Where a report … contains a recommendation that an order for release be made … the Governor may by order … direct”. If the PRB recommends against release, there is no power for the Governor to make an order. The Governor cannot override the PRB’s negative recommendation. This gives the PRB an effective veto over the process. The Minister or Governor cannot direct the PRB to change its recommendation. This may be overlooked by immigration authorities who expect the executive to have the final say.

Third, the natural justice exclusion in s 7 applies only to the Governor’s acts or omissions. It does not apply to the PRB’s processes. Therefore, a prisoner could potentially challenge the PRB’s report on procedural fairness grounds, even though the Governor’s ultimate decision cannot be challenged on those grounds. The PRB, in making its recommendation, must still afford procedural fairness unless another statute excludes it. The Sentence Administration Act 2003 may have its own provisions, but this Act does not exclude natural justice for the PRB. A failure to notify the prisoner or to consider relevant matters could be judicially reviewable.

Fourth, s 5(2)(a) provides that if the deportation is not effected within the period specified in the order, the release order ceases to have effect. This means that the Commonwealth must act within the period or the whole arrangement collapses. The period is set by the Governor, but it may be quite short. If the Commonwealth cannot arrange transport, visas, or acceptance by the receiving country in time, the prisoner returns to prison. The period is not extendable by the Governor? The Governor can vary the order under s 5(1) before deportation, which could extend the period, but that requires a fresh decision. Nothing in the Act prevents extension, but it is not automatic.

Fifth, s 5(6) provides that for a sentence of strict security life imprisonment or life imprisonment, a reference to serving the unexpired portion of the term is a reference to resuming service of the sentence. This means that if a life-sentence prisoner is released for deportation and the order is revoked, he or she returns to the life sentence with no reduction in the non-parole period beyond the time spent in custody under the order (counted under s 5(5)). However, the Act does not specify whether the non-parole period is recalculated. This could lead to confusion.

Sixth, s 6 says that if deportation is effected, the prisoner is “wholly discharged” from that imprisonment or detention and, in the case of an habitual criminal, ceases to be an habitual criminal. This is an absolute discharge, not a conditional release. There is no supervision after deportation. This could be a benefit or a risk from a community safety perspective, but it is a fixed outcome. If the deportation is later found invalid, the Commonwealth might have difficulty, but the State has no further hold.

Seventh, the definition of “prisoner” includes persons detained in safe custody under specific Criminal Code provisions. Such persons may not be serving a fixed sentence; they are held during pleasure. The Act still applies, but the PRB must still consider parole eligibility - a potentially odd fit for non-sentence detention.

Eighth, for CLMI persons, the substitution of the Mental Impairment Review Tribunal for the PRB may create procedural mismatches. The Tribunal may have different rules about natural justice, and the concept of “parole eligibility” does not apply to persons under custody orders. How the Tribunal applies the condition in s 4(2) is unclear; perhaps it is not directly applicable, but the section is not modified for such persons. The definition of “prisoner” in s 6A includes them, but the parole eligibility condition refers to release on parole under the Sentence Administration Act, which likely does not apply to CLMI persons. There may be a legal gap.

Ninth, the Act does not provide for any appeal from the Governor’s decision. The only recourse is judicial review on non-natural-justice grounds. The Governor’s decision is not subject to merits review.

Tenth, the period in custody under the release order counts as time served (s 5(5)), but only if the order is revoked or ceases. If the order is active and deportation is effected, s 6 deems the whole sentence served. There is no double-counting. However, if the order is varied to reduce the period, the prisoner may lose the benefit of earlier time.

For the Prisoners Review Board, compliance begins when a deportation order is made in respect of a prisoner. The PRB must first verify that the prisoner is a “prisoner” within s 3(1) and that the deportation order is valid. It must then determine whether the prisoner could be released on parole under the Sentence Administration Act 2003. If not, it cannot proceed; it should inform the Minister accordingly. If yes, it must prepare a written report containing a recommendation as to whether an order for release should be made. In doing so, it must consider the three factors in s 4(3) and give express attention to whether the prisoner would have been considered suitable for release had there been no deportation order. This is a counterfactual analysis that requires the PRB to assess the prisoner’s release suitability on its own merits, ignoring the deportation order. The PRB should gather relevant information: the nature and circumstances of the offence, risk assessment reports, and any other matters it thinks fit. It must record its reasoning and deliver the report to the Minister. It may also, but is not required to, make a parole order if a release for deportation order is in force (s 4(6)). To avoid duplication, the PRB should decide whether to exercise that discretion, but if a release order is expected, it may be efficient to refrain.

For the Minister, upon receiving the report, the Minister should forward it to the Governor with any advice, though the Act does not prescribe a role. The Minister should ensure the report complies with s 4(2) and (3). If the report recommends against release, the process stops; there is no power for the Governor to act.

For the Governor, if the PRB recommends release, the Governor may make an order for release under s 4(4). The order must specify the period of time within which the prisoner is to be deported (s 4(5)(a)). The period should be realistic, considering flight availability, visa processing, and receiving country acceptance. The Governor may also specify conditions in the order (s 4(5)(b)), such as reporting, residence, or travel requirements. Conditions must be reasonable and capable of compliance. The Governor must act in writing. The Governor may later vary or revoke the order at any time before deportation (s 5(1)). If the order is varied, the new period or conditions must still be specified.

For the persons specified in the order as custodians, they must take the prisoner into custody and arrange for deportation within the period. They should ensure they have the legal authority to hold the prisoner and to effect deportation. They must comply with any conditions in the order.

For the prisoner, there is no requirement under the Act to cooperate, but failure to do so may lead to revocation, return to prison, and loss of the deemed service benefit. The prisoner should comply with conditions and facilitate deportation. If the prisoner believes the PRB’s report is flawed, he or she may seek judicial review of the report (not the Governor’s decision) given that s 7 does not apply to the PRB. However, the prisoner has no right to be heard by the Governor.

For the Commissioner of Corrective Services, upon receiving a copy of the release order, the prisoner must be released from prison into the custody of the specified persons. If the order expires or is revoked, the Commissioner must accept the prisoner back into prison. If a warrant is issued under s 5(4), the Commissioner must facilitate apprehension and return.

For judges, if an application is made for a warrant under s 5(4), the judge must be satisfied that it is “necessary” for the prisoner’s apprehension and return. The warrant authorises a police officer to apprehend and return the prisoner to a specified prison. The judge should specify the prison.

For the Mental Impairment Review Tribunal, when applying the Act to CLMI persons, it must follow the same steps as the PRB, but the reference to parole eligibility (s 4(2)) may be inapplicable. The Tribunal should seek legal advice on how to treat that condition. It should assess the person under the same s 4(3) factors, considering the nature of the mental impairment, the risk presented, and any other matters. The report goes to the Minister as usual.

For the Commonwealth deportation authorities, they should liaise with the Governor’s office to ensure the period specified is feasible. They must complete deportation within that period or risk the order lapsing.

No regulations have been made under s 8, but if they are, compliance with them would also be required. Currently, the Act provides no additional regulatory guidance, so each party must follow the plain text of the statute.