Transfer of Prisoners Act 1983

Commonwealth prisoners serving sentences. Any federal or Territory prisoner who is currently imprisoned in a state or Territory may apply for a welfare transfer. They may also be the subject of trial, special, or security transfer orders at the initiative of the Attorney-General.

Commonwealth prosecutors and law enforcement. State prosecutors and the CDPP use trial transfers (Part III) to bring Commonwealth prisoners before courts in other jurisdictions to face new charges.

The Attorney-General (Cth) and State Attorneys-General. The Act confers substantial discretionary powers on the Commonwealth Attorney-General (welfare transfers, trial transfers, security transfers) and on State Attorneys-General (applications for state-based trial transfers, consent obligations).

Prison superintendents and correctional authorities. Section 17 requires superintendents to deliver prisoners into custody upon production of a valid transfer order. Local prisons authorities of receiving states play a role in authorising escorts.

Courts of summary jurisdiction. Courts in the prisoner's home jurisdiction hear applications for trial transfer orders and have jurisdiction to refuse if the transfer would be unjust or oppressive (section 10(4)(d)).

Attorney-General's obligations on welfare transfers (section 6):

• Must not make a welfare transfer order unless the appropriate Minister of the receiving state has consented in writing (section 6(4))
• Must have regard to the administration of justice and the prisoner's welfare when considering and when revoking orders (sections 6(3), 7(2))
• Need not consider a repeated application from the same prisoner for the same destination within 12 months (section 6(5))

Court of summary jurisdiction in trial transfers (section 10):

• Must not continue hearing without the prisoner present (section 10(2)(b)): must order the prisoner's production and then hear them
• Must have regard to the administration of justice and the prisoner's welfare (section 10(4)(a)/(b))
• Must not make the order if satisfied the transfer would be unjust or oppressive, including on double jeopardy grounds (section 10(4)(d))

Superintendent's obligations on transfer orders (section 17):

• Upon production of a transfer order, the superintendent must deliver the prisoner into the custody of the named escort (section 17(2))
• Must give the prisoner a copy of any court production order (section 10(3)(a))

Attorney-General's mandatory review of security transfers (section 16C):

• Must review each security transfer order within 3 months of making it, and every subsequent 3 months after the last review
• If the review satisfies the Attorney-General that the order would not be made today, must consider a return transfer

Welfare transfers -- Attorney-General's discretion (section 6): The Attorney-General may, in his or her discretion, make a welfare transfer order. The discretion is very broad: the Act does not require the Attorney-General to accept a prisoner's preference. In AG (ACT) v Heiss [2002] FCAFC 38, the Full Federal Court held that the absence of a prison in the Australian Capital Territory (at the time) was not an irrelevant consideration for the ACT Attorney-General acting under analogous territory legislation.

Trial transfers -- court discretion (section 10): Once the court is satisfied the applicant is entitled to make the application, it must generally make the order unless one of the grounds for refusal in section 10(4) is established. Section 10(4)(d) gives the court power to refuse where it would be "unjust or oppressive" to make the order, providing a substantive review power for prisoners who face double jeopardy or abuse of process concerns.

Revocation of welfare transfer orders (section 7): Before execution commences, the Attorney-General may revoke a welfare transfer order of his or her own motion, and must revoke it if the prisoner requests. This right to request revocation ceases once the execution of the transfer order has begun.

Security transfer power (section 16B): The Attorney-General may make a security transfer order if he or she believes on reasonable grounds that the transfer is necessary in the interests of security. Both the origin state's and the destination state's appropriate Minister must consent in writing.

Return transfers (section 16C): Following a review of a security transfer order, if the Attorney-General concludes the order would not be made if considered fresh, the Attorney-General may order a return transfer.

Court proceedings orders in connection with security transfers (section 16D): Where a security transfer order is in force, the Attorney-General may order temporary transfer for court appearances, with mandatory return provisions.

Declaration of state transfer laws (section 5): The Minister may declare laws of states and territories as the State transfer law by Gazette instrument, enabling the complementary order framework.

The Transfer of Prisoners Act does not create criminal offences or penalty units. Enforcement is through the administrative and supervisory obligations imposed on superintendents, prison officers, and escorts. Non-compliance with transfer orders is effectively enforceable through contempt of court and administrative disciplinary mechanisms rather than specific criminal penalties under this Act.

The Act does impose obligations with legal consequences:

Section 17(2): Upon production of a valid transfer order, the superintendent "shall" deliver the prisoner. This is a mandatory obligation, not a discretion.

Section 10(3): Upon service of a court production order, the superintendent "shall" produce the prisoner at the specified time and place. Again, this is a mandatory obligation.

Welfare transfer applications:

1. Prisoner applies in writing to the Attorney-General setting out welfare matters (section 6(2))
2. Attorney-General considers the application having regard to administration of justice and prisoner's welfare (section 6(3))
3. Attorney-General seeks consent of receiving state's appropriate Minister (section 6(4))
4. Attorney-General makes welfare transfer order (section 6(1))
5. Before execution begins, prisoner may request revocation and Attorney-General must comply (section 7(1)(b))
6. Note: no application need be considered if a same-destination application was made within the previous 12 months (section 6(5))

Trial transfer applications:

1. Warrant issued in a jurisdiction against a Commonwealth prisoner in another jurisdiction
2. Attorney-General certifies in writing that transfer is desirable for administration of justice (section 8(1)(c))
3. Attorney-General applies to court of summary jurisdiction in prisoner's current location (sections 8 and 9)
4. Court orders prisoner produced; hearing cannot continue without prisoner present (section 10(2))
5. Court makes trial transfer order if satisfied the applicant is entitled to make the application and grounds for refusal are not established (section 10)
6. Prisoner may seek review (section 11): by way of rehearing in a court of summary jurisdiction of another state or territory

Security transfers:

1. Attorney-General makes security transfer order with consent of both origin and destination state Ministers (section 16B)
2. Mandatory review within 3 months (section 16C(2))
3. Further reviews every 3 months after the last review
4. Return transfer available if review concludes the order would not be made today

State transfer laws (section 5). The Act works alongside state transfer laws declared under section 5. For joint prisoners (serving both Commonwealth and state sentences), both a Commonwealth transfer order and a complementary state order must generally be in force before a transfer can lawfully occur (section 17(5)).

State prison laws. Section 17(7) permits the Commonwealth to arrange for state prison officers to carry out functions in connection with executing transfer orders. The Act displaces any inconsistent state laws to the extent of the inconsistency.

Administrative law -- judicial review. Transfer order decisions are administrative decisions. In AG (ACT) v Heiss, the Full Federal Court applied standard administrative law principles about relevant and irrelevant considerations to the discretion to refuse a welfare transfer. Any transfer order made on irrelevant considerations or failing to consider relevant ones may be quashed.

Double jeopardy and autrefois convict. In Muir v CDPP [2004] NSWSC 983, Adams J held that a court of summary jurisdiction considering a trial transfer application under section 10 must consider whether double jeopardy or abuse of process principles mean that the transfer would be unjust or oppressive (section 10(4)(d)). However, the Court distinguished autrefois convict (which requires the charges to be for the same offence) from abuse of process (which may apply where the conduct substantially overlaps), and declined to refuse the transfer in that case because the Western Australian charges involved different conduct and different victims.

Interpretation Act 1901 (Cth). Standard Commonwealth interpretation principles apply.

"To stand trial" includes preliminary steps. In Muir v CDPP, Adams J held that the words "to stand trial" in section 8(1) are a generic term covering "all necessary preliminary steps to the prisoner standing trial, including, as necessary, charging, service of Crown witness statements, committal and arraignment" (paragraph 34). This means a trial transfer order can be made even where a committal hearing has not yet occurred in the destination jurisdiction.

A welfare transfer application for the same destination within 12 months need not be considered. Section 6(5) provides a bright-line rule: if the prisoner has previously applied for transfer to the same destination within the previous 12 months, the Attorney-General is not required to even consider the fresh application. Prisoners should understand this limitation before timing applications.

Revocation right ceases on execution. Under section 7(1)(b), the prisoner's right to request revocation of a welfare transfer order ends once the execution of the transfer begins. Once the prisoner is in the escort's custody, the request is too late.

Security transfers require consent of both states' Ministers. Section 16B(3) requires written consent from both the origin state's appropriate Minister and the destination state's appropriate Minister. The Attorney-General cannot unilaterally impose a security transfer, even in genuine security emergencies.

Joint prisoners need complementary state orders. Section 17(5) provides that a transfer order has no effect in relation to a joint prisoner's state sentence unless a complementary state order is also in force. This means the Commonwealth and the state must both act; a Commonwealth-only order cannot transfer a joint prisoner.

State prisoners cannot be transferred by Commonwealth order alone. Section 17(6) provides that a transfer order (other than under Part IV) has no effect to the extent it purports to authorise the transfer of a state prisoner between states or to a territory. This confirms the Act's limited operation: it only covers Commonwealth prisoners directly.

Example 1: Prisoner seeking welfare transfer. A federal prisoner serving time in Queensland maximum security wants to be closer to their family in Victoria. They apply in writing to the Attorney-General setting out welfare grounds (section 6(1)-(2)). The Attorney-General seeks consent from Victoria's appropriate Minister (section 6(4)). If consent is given, the Attorney-General may make a welfare transfer order. The prisoner cannot request a fresh transfer to Victoria for another 12 months if this application is refused.

Example 2: Trial transfer for prosecution. A Commonwealth prisoner serving time in New South Wales is charged with Corporations Act offences allegedly committed in Western Australia. The Western Australian Attorney-General certifies that transfer is desirable and applies to a court of summary jurisdiction in New South Wales under section 9. The court must order the prisoner produced before it (section 10(2)(a)) and may not continue without the prisoner present. If the prisoner raises double jeopardy concerns under section 10(4)(d), the court must assess whether the WA charges are substantially the same as charges already dealt with.

Example 3: Security transfer. A high-security prisoner believed to be coordinating criminal activities from inside a particular prison is to be moved to a different state's facility. The Attorney-General must believe on reasonable grounds that the transfer is necessary for security (section 16B(1)), and must obtain written consent from both the current state's Minister and the receiving state's Minister (section 16B(3)). Three months after the transfer, the Attorney-General must review the order (section 16C(2)) and consider whether a return transfer is warranted.

Example 4: Joint prisoner transfer. A prisoner serving both a federal sentence for a Crimes Act offence and a state sentence for an assault conviction is to be transferred from New South Wales to Queensland on welfare grounds. The Commonwealth must make a welfare transfer order under Part II, and the state of New South Wales must make a complementary state transfer order under the NSW State transfer law (section 17(5)). Without both orders, the transfer cannot lawfully proceed.

Example 5: Revocation of welfare transfer. After an Attorney-General makes a welfare transfer order but before the prisoner is placed in the escort's custody, the prisoner changes their mind and requests revocation in writing. Under section 7(1)(b), the Attorney-General must revoke the order. This right ceases as soon as the prisoner is delivered into the escort's custody under section 17(2).