13WArrangement for detainee to be held in prison

13W Arrangement for detainee to be held in prison S. 13W(1) amended by Nos 37/2014 s. 10(Sch. item 167.20(a)), 32/2018 s. 79(5), 47/2021 s. 22(15). (1) The police officer who is detaining a person under a preventative detention order may request the Secretary to authorise the transfer of that person to a prison. A person being detained under a preventative detention order may be received into a police gaol and thus be deemed to enter the legal custody of the Chief Commissioner of Police under section 6D(1) of the **Corrections Act 1986**. (2) A request under subsection (1) must be accompanied by a copy of— (a) the preventative detention order on which is endorsed the date on which, and time at which, the person was first taken into custody or detained under the order; and (b) any extension or further extension of the order under section 13I; and (c) any prohibited contact order in force in relation to the person's detention. (3) To avoid doubt, a request may be made under subsection (1) in respect of a person who is under 18 years of age if the preventative detention order provides for the person to be detained in a prison. See section 13ZBA for the rules as to how persons under 18 are to be detained. S. 13W(4) amended by Nos 32/2018 s. 79(5), 6/2023 s. 3(Sch. 1 item 6). (4) If requested to do so under subsection (1), the Secretary may, by instrument, authorise the transfer to a prison of a person being detained under a preventative detention order from a police gaol or other place where he or she is being detained. The Secretary may delegate this power under section 8(1) of the **Corrections Act 1986**. S. 13W(4A) inserted by No. 32/2018 s. 22. (4A) On the giving of an authorisation under subsection (4), a person at a prison acting under lawful authority on behalf of the Secretary may receive the person into the prison. See also sections 6(ca), 6A(1) and 6E(1)(cac) of the **Corrections Act 1986**. (5) If a person is being detained in a prison under a preventative detention order— (a) the preventative detention order is taken to authorise the Governor of the prison to detain the person at the prison while the order is in force in relation to the person; and (b) section 13ZB applies in relation to the person's detention under the order at the prison as if— (i) the Governor of that prison; or (ii) any other person involved in the person's detention at that prison— were a person exercising authority under the order or implementing or enforcing the order; and S. 13W(5)(c) amended by Nos 37/2014 s. 10(Sch. item 167.20(a)), 70/2015 s. 10(1). (c) the police officer who made the request under subsection (1) is taken, while the person is detained at the prison, to be the police officer detaining the person for the purposes of Divisions 4 and 5, subject to subsection (5A); and S. 13W(5)(d) amended by No. 37/2014 s. 10(Sch. item 167.20(a)). (d) a police officer may at any time enter the prison and visit the person being detained in the prison in connection with the exercise of powers under, and the performance of obligations in relation to, the order. S. 13W(5A) inserted by No. 70/2015 s. 10(2). (5A) Section 13ZB does not apply to the police officer referred to in subsection (5)(c) in respect of the person being detained at the prison to the extent that the police officer cannot reasonably perform any obligation under that section. (6) The **Corrections Act 1986** applies in respect of the detention of a person in a prison or police gaol under a preventative detention order or an order for his or her detention made under a corresponding preventative detention law as if the following provisions of that Act did not form part of it— (a) section 11(7A); (b) section 28; (c) section 31; (d) sections 37(1), 38(2) and (4), 40 and 41; (e) section 47; (f) sections 47A to 47D; (g) Division 5 of Part 6; (h) Part 7; (i) section 56AA; (j) section 56AB; (k) section 56AC; (l) paragraphs (b) and (c) of section 57(1) and paragraph (a) of that section to the extent that it relates to a purpose other than the purpose referred to in section 57A(1)(a); (m) sections 57(2), 57A(1)(b) to (e), 57A(3)(a), 57B and 57C; (n) section 84H. (7) The provisions of Division 2 of Part 6 of the **Corrections Act 1986** that apply in respect of the detention of a person in a prison under a preventative detention order or an order for his or her detention made under a corresponding preventative detention law apply as if— (a) in the definition of ***visitor*** in section 33— (i) paragraphs (i) and (j) were omitted; (ii) in paragraph (h) for the reference to section 37 there were substituted a reference to section 13ZD, 13ZF or 13ZH of this Act; S. 13W(7) (a)(iii) amended by No. 37/2014 s. 10(Sch. item 167.20(b)). (iii) in paragraph (k) after "officer" the words "visiting under section 13W(5)(d) of the **Terrorism (Community Protection) Act 2003**" were inserted; (iv) in paragraph (l) the words "or a residential visiting programme" were omitted; (b) in section 37(2)— (i) for the reference to a relative or friend who visits a prisoner there were substituted a reference to a person who visits a prisoner under section 13ZD, 13ZF or 13ZH of this Act; (ii) the words "or residential visiting programme" were omitted; (c) in section 37(3) for the word "under" there were substituted the words "referred to in"; (d) in section 38(1) for the reference to a prisoner's family and friends there were substituted a reference to persons who visit a prisoner under section 13ZD, 13ZF or 13ZH of this Act; (e) in section 38(3) the words "or a residential visiting programme" were omitted; (f) in section 39(1) or (2) for the reference to a relative or friend or person wishing to visit, or visiting, a prisoner under section 37 or 38 there were substituted a reference to a person wishing to visit, or visiting, a prisoner under section 13ZD, 13ZF or 13ZH of this Act; (g) section 43 prevented a senior police officer nominated under section 13P(4) in relation to the order being made the subject of an order under that section. (8) If a provision of the **Corrections Act 1986** applies (with or without modification) in respect of the detention of a person in a prison or police gaol under a preventative detention order or an order for his or her detention made under a corresponding preventative detention law, any provision of the regulations made under that provision, or under that Act for or with respect to that provision, also applies in respect of that detention with any necessary modifications. S. 13W(9) amended by No. 30/2006 s. 17(1). (9) The **Corrections Act 1986**, in its application in respect of the detention of a person in a prison or police gaol under a preventative detention order or an order for his or her detention made under a corresponding preventative detention law, has effect subject to this Part and to the terms of the order under which the person is detained and, in the event of any inconsistency between that Act and this Part or the order, this Part or the order (as the case requires) prevails over that Act. (10) Nothing in this section prevents an AFP member entering a prison and visiting a person being detained in the prison in connection with the exercise of powers under, and the performance of obligations in relation to, an order for the person's detention made under a corresponding preventative detention law. S. 13WA (Heading) amended by No. 48/2006 s. 42(Sch. item 35.5(a)). S. 13WA inserted by No. 5/2006 s. 4. 13WA Arrangement for detainee to be held in youth justice facility S. 13WA(1) amended by Nos 48/2006 s. 42(Sch. item 35.5(b)), 37/2014 s. 10(Sch. item 167.21), 32/2018 s. 79(6), 47/2021 s. 22(16). (1) If the preventative detention order in relation to a person who is under 18 years of age provides for him or her to be detained in a youth justice facility, the police officer who is detaining the person under the order must request the Secretary to authorise the transfer of that person to a youth justice facility. (2) A request under subsection (1) must be accompanied by a copy of— (a) the preventative detention order on which is endorsed the date on which, and time at which, the person was first taken into custody or detained under the order; and (b) any extension or further extension of the order under section 13I; and (c) any prohibited contact order in force in relation to the person's detention. S. 13WA(3) amended by Nos 48/2006 s. 42(Sch. item 35.5(b)), 32/2018 s. 79(6), 47/2021 s. 22(16). (3) If requested to do so under subsection (1), the Secretary may, by instrument, authorise the transfer to a youth justice facility of a person being detained under a preventative detention order from any place where he or she is being detained. S. 13WA(3A) inserted by No. 32/2018 s. 23(1). (3A) On the giving of an authorisation under subsection (3), a person at a youth justice facility acting under lawful authority on behalf of the Secretary may receive the person into the facility. See also section 483(1) and (1A) of the **Children, Youth and Families Act 2005** and section 6E(1)(cac) of the **Corrections Act 1986**. S. 13WA(4) amended by No. 48/2006 s. 42(Sch. item 35.5(b)). (4) If a person is being detained in a youth justice facility under a preventative detention order— (a) the preventative detention order is taken to authorise the officer in charge of the facility to detain the person at the facility while the order is in force in relation to the person; and (b) section 13ZB applies in relation to the person's detention under the order at the facility as if— (i) the officer in charge of that facility; or (ii) any other person involved in the person's detention at that facility— were a person exercising authority under the order or implementing or enforcing the order; and S. 13WA(4)(c) amended by No. 37/2014 s. 10(Sch. item 167.21). (c) the police officer who made the request under subsection (1) is taken, while the person is detained at the facility, to be the police officer detaining the person for the purposes of Divisions 4 and 5; and S. 13WA(4)(d) amended by No. 37/2014 s. 10(Sch. item 167.21). (d) a police officer may at any time enter the facility and visit the person being detained in the facility in connection with the exercise of powers under, and the performance of obligations in relation to, the order. S. 13WA(5) amended by No. 48/2006 s. 42(Sch. items 35.5(b)(c)). (5) No provision of the **Children, Youth and Families Act 2005** applies in respect of the detention of a person in a youth justice facility under a preventative detention order or an order for his or her detention made under a corresponding preventative detention law other than— S. 13WA(5)(a) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)). (a) section 17(1) and, to the extent that it relates to section 597(3) or 597(4), section 17(2); S. 13WA(5)(b) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)). (b) section 482(1) other than paragraphs (b) to (d); S. 13WA(5)(c) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)). (c) section 482(2) other than paragraphs (a) and (b); S. 13WA(5)(d) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)). (d) section 482(3); S. 13WA(5)(e) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)). (e) section 483(1) and 483(1A); S. 13WA(5)(f) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)), repealed by No. 32/2018 s. 23(2). S. 13WA(5)(g) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)). (g) section 487 other than paragraph (f) to the extent that that paragraph applies to discriminatory treatment that is reasonable and necessary having regard to the nature of the person's detention; S. 13WA(5)(h) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)). (h) sections 488A to 488G; S. 13WA(5)(i) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)). (i) section 501; S. 13WA(5)(j) substituted by No. 48/2006 s. 42(Sch. item 35.5(d)). (j) section 597. S. 13WA(6) amended by No. 48/2006 s. 42(Sch. items 35.5(b)(c)). (6) If a provision of the **Children, Youth and Families Act 2005** applies (with or without modification) in respect of the detention of a person in a youth justice facility under a preventative detention order or an order for his or her detention made under a corresponding preventative detention law, any provision of the regulations made under that provision, or under that Act for or with respect to that provision, also applies in respect of that detention with any necessary modifications. S. 13WA(7) amended by No. 48/2006 s. 42(Sch. items 35.5(b)(c)). (7) The **Children, Youth and Families Act 2005**, in its application in respect of the detention of a person in a youth justice facility under a preventative detention order or an order for his or her detention made under a corresponding preventative detention law, has effect subject to this Part and to the terms of the order under which the person is detained and, in the event of any inconsistency between that Act and this Part or the order, this Part or the order (as the case requires) prevails over that Act. S. 13WA(8) amended by No. 48/2006 s. 42(Sch. item 35.5(b)). (8) Nothing in this section prevents an AFP member entering a youth justice facility and visiting a person being detained in the facility in connection with the exercise of powers under, and the performance of obligations in relation to, an order for the person's detention made under a corresponding preventative detention law. S. 13WA(9) amended by Nos 32/2018 s. 79(7), 47/2021 s. 22(17). (9) The Secretary may, by instrument, delegate any function or power of the Secretary under this section (except this power of delegation) to any person, or class of person, employed in the Department of Justice and Community Safety under Part 3 of the **Public Administration Act 2004**. S. 13WB inserted by No. 32/2018 s. 24. 13WB Transfer of detained person into legal custody of Chief Commissioner for questioning (a) a person is being detained in a prison or youth justice facility under a preventative detention order; and (b) a police officer wants to question the person under Division 5A. S. 13WB(2) amended by No. 47/2021 s. 22(18). (2) An authorised police officer may request the Secretary to release the person from detention in the prison or youth justice facility into the custody of a police officer. (3) A request under subsection (2) must be accompanied by a copy of— (a) the preventative detention order on which is endorsed the date on which, and time at which, the person was first taken into custody or detained under the order; and (b) any extension or further extension of the order under section 13I. S. 13WB(4) amended by No. 47/2021 s. 22(18). (4) If requested to do so under subsection (2), the Secretary, by instrument, may authorise the release of the person from detention in the prison or youth justice facility into the custody of a police officer. (5) On the giving of an authorisation under subsection (4), a police officer may take physical custody of the person. 1 In the case of a person detained in a prison, see also sections 6B(3) and 6D(2AA) of the **Corrections Act 1986**. 2 In the case of a person detained in a youth justice facility, see also section 483(1) and (1A) of the **Children, Youth and Families Act 2005** and section 6D(2AA) of the **Corrections Act 1986**. S. 13WC inserted by No. 32/2018 s. 24. 13WC Return of person to place of detention at end of questioning (1) This section applies if a police officer has taken custody of a person under section 13WB(5) for the purpose of questioning that person under Division 5A. (2) At the cessation of the questioning, the police officer who is detaining the person under a preventative detention order must deliver the person back to the prison or youth justice facility at which the person was detained at the time of the request under section 13WB(2). 1 In the case of a person detained in a prison, see also sections 6(ca), 6A(1) and 6E(1)(cac) of the **Corrections Act 1986**. 2 In the case of a person detained in a youth justice facility, see also section 483(1) and (1A) of the **Children, Youth and Families Act 2005** and section 6E(1)(cac) of the **Corrections Act 1986**. S. 13WD inserted by No. 32/2018 s. 24. 13WD Effect on period of detention of transfers of custody of persons for questioning purposes To avoid doubt, the transfer of the custody of a person under section 13WB or 13WC does not extend the period for which the preventative detention order remains in force in relation to the person. Division 4—Informing person detained about preventative detention order S. 13X inserted by No. 5/2006 s. 4.