Prisoners (Interstate Transfer) Act 1983 (Western Australia)

The Prisoners (Interstate Transfer) Act 1983 (WA) creates the legal framework for transferring prisoners between Western Australia and other Australian States and certain Territories. It sets out who may be transferred, who decides, the procedural steps, the information flows between jurisdictions, and the legal consequences of transfer for sentences and custody. Key mechanics in the Act are:

Declaration mechanism: The Governor may declare other States’ laws and specified Western Australian courts as the interstate laws and corresponding courts for the Act to operate with (s 4(1)-(2)). An interstate law must substantially correspond to this Act as a precondition (s 4(2)).
Prisoner‑initiated transfers: A State prisoner or a joint prisoner imprisoned in Western Australia may request transfer to a participating State or Territory. If the WA Minister is of the opinion the person should be transferred, the Minister forwards a written request to the corresponding Minister (participating State) or the Commonwealth Attorney‑General (Territory), and may issue an order once written consent is received (s 5(1)-(2), (3)-(5)). A prisoner’s repeat request within one year may be declined (s 7).
Transfers for trial: Where a person in WA is the subject of an arrest warrant issued elsewhere, the Attorney‑General or Minister handles requests and consents, with required written consents from relevant Attorneys‑General, and the Magistrates Court must hold a hearing before issuing a transfer order (s 10-13). The court can refuse if the transfer would be harsh, oppressive, not in the interests of justice, or the charge is trivial (s 13(b)). Supreme Court review is available from the Magistrates Court decision (s 14).

CrestWestern Australia

Prisoners (Interstate Transfer) Act 1983

Western Australia

Prisoners (Interstate Transfer) Act 1983

Contents

Part I — Preliminary

Short title 2
Commencement 2
Terms used 2
Corresponding courts and interstate laws 7

Part II — Transfer at request of prisoner

Requests for, and orders of, transfer 9
Effect of orders under this Part on joint prisoners 11
Repeated requests for transfer 12
Receipt of request for transfer to Western Australia 12

9A. Matters to which the Minister may have regard 12

Reports 13

Part III — Transfer for trial

Request for transfer of prisoner to participating State 14
Necessary consents 15
Prisoner to be brought before Magistrates Court 16
Order of transfer 16
Review of decision of Magistrates Court 17

14A. Effect of orders under this Part on joint prisoners 18

Prisoner brought to be returned to custody 18
Request for transfer of imprisoned person to Western Australia 18
Request for transfer to Western Australia by imprisoned person 19

Part IV — Transfer back to original State

Return of prisoner to participating State if no sentence or shorter sentence in Western Australia 20
Effect of orders under this Part on joint prisoners 21
Provisions ancillary to sections 18, 19 21

Part V — Effect of order of transfer

Transfer in custody of escort 24
Transfer of sentence with prisoner 25
Information to be sent to the participating State 25
Sentence deemed to have been imposed in Western Australia 26
Provisions relating to translated sentences 27
Translated sentence — default imprisonment 30

Part VI — Miscellaneous

Notification to certain prisoners of certain decisions 32
Lawful custody for transit through Western Australia 32
Escape from custody of person being transferred 33
Escape from custody — penalty 34
Revocation of order of transfer on escape from custody 35
Assistance by police officers 36
Regulations 36

Notes

Compilation table 37

Western Australia

Prisoners (Interstate Transfer) Act 1983

An Act relating to the transfer interstate of prisoners.

Part I — Preliminary

1. Short title

This Act may be cited as the Prisoners (Interstate Transfer) Act 1983 1.

2. Commencement

The provisions of this Act shall come into operation on such day or days as is or are respectively fixed by proclamation 1.

3. Terms used

(1) In this Act, unless the contrary intention appears —

arrest warrant means a warrant to apprehend, a warrant to arrest, or a warrant to commit a person to prison, but does not include —

(a) such a warrant, where the term of imprisonment which the person to be apprehended, arrested or committed under the warrant is liable to serve is default imprisonment; or

(b) a warrant to secure the attendance of a witness;

Attorney‑General, in relation to the Northern Territory, means the person holding Ministerial office under section 36 of the Northern Territory (Self‑Government) Act 1978 of the Commonwealth who is, under that Act, designated for the time being as the holder of the office of Attorney‑General;

chief executive officer means chief executive officer of the department principally assisting the Minister to whom the administration of the Prisons Act 1981 is for the time being committed by the Governor with that administration;

Commonwealth sentence of imprisonment means a sentence of imprisonment for an offence against a law of the Commonwealth or of a Territory;

corresponding court of Western Australia, in relation to a court of a participating State, means a court of Western Australia that is, under an order in force under section 4(1), declared to be a corresponding court in relation to the court of the participating State;

corresponding Minister, in relation to a participating State, means the Minister of that State who is responsible for the administration of the interstate law of that State;

default imprisonment means imprisonment in default of —

(a) payment of any fine, penalty, costs or other sum of money of any kind imposed or ordered to be paid by any court, judge or justice; or

(b) entering into a recognizance to keep the peace or to be of good behaviour;

indeterminate sentence means a sentence of or order or direction for imprisonment or detention for life or during the pleasure of Her Majesty or during the pleasure of the Governor‑General, the Governor or the Governor of a participating State, and includes such a sentence, order, or direction imposed, made or given by, or by the operation of, an Act or other law;

interstate law means a law that, under an order in force under section 4(1), is declared to be an interstate law for the purposes of this Act;

joint prisoner means a person upon whom both —

(a) any of the following —

(i) a State sentence of imprisonment; or

(ii) a State sentence of imprisonment as defined by an interstate law; or

(iii) an ACT sentence of imprisonment as defined by the Prisoners (Interstate Transfer) Act 1993 of the Australian Capital Territory; or

(iv) a Territory sentence of imprisonment as defined by the Prisoners (Interstate Transfer) Act of the Northern Territory;

and

(b) a Commonwealth sentence of imprisonment,

have been imposed;

Magistrates Court means the Magistrates Court constituted by a magistrate;

order of transfer means an order issued under section 5, 13, 14(6) or 18 for the transfer of a prisoner to a participating State;

participating State means a State in which an interstate law is in force;

prison means a prison as defined in section 3 of the Prisons Act 1981;

prison officer means a person who is a prison officer under the Prisons Act 1981;

prisoner means a State prisoner or a joint prisoner;

relevant security, in relation to a person, means a security given by the person, with or without sureties, recognizance or otherwise, that the person will comply with conditions relating to the person’s behaviour;

sentence of imprisonment means —

(a) a State sentence of imprisonment; or

(b) a State sentence of imprisonment as defined by an interstate law; or

(c) an ACT sentence of imprisonment as defined by the Prisoners (Interstate Transfer) Act 1993 of the Australian Capital Territory; or

(d) a Territory sentence of imprisonment as defined by the Prisoners (Interstate Transfer) Act of the Northern Territory; or

(e) where relevant, a Commonwealth sentence of imprisonment;

State includes the Australian Capital Territory and the Northern Territory;

State prisoner means a person upon whom a State sentence of imprisonment has been imposed, but does not include a person upon whom a Commonwealth sentence of imprisonment has been imposed;

State sentence of imprisonment means a sentence of imprisonment for an offence against a law of Western Australia, including a sentence of penal servitude, a sentence by which default imprisonment is ordered, an indeterminate sentence and a translated sentence, but does not include detention imposed under any Act relating to the punishment of persons who committed offences when they were under the age of 18 years;

superintendent, in relation to a prison, means the person who, under the Prisons Act 1981, is the superintendent of the prison;

Territory means the Territory of Norfolk Island, the Territory of Christmas Island, the Territory of the Cocos (Keeling) Islands or the Jervis Bay Territory;

translated sentence means a sentence of imprisonment deemed by section 25 to have been imposed on a person by a court of Western Australia.

(2) Where a justice of a participating State, in the exercise of his powers, issues a warrant of commitment while not constituting a court, the sentence of imprisonment imposed by the warrant shall, for the purposes of this Act, be deemed to have been imposed by a court.

(3) For the purposes of this Act, a sentence of imprisonment imposed, or originally imposed, by, or by the operation of, an Act or other law of a State or Territory shall, except as prescribed by regulations under this Act, be deemed to have been imposed, or originally imposed, by a court of that State or Territory.

(4) A reference in this Act to an Act of the Commonwealth includes a reference to an Act amending or replacing that Act.

(5) In the case of a State other than the Australian Capital Territory or the Northern Territory, a reference in this Act to the Governor of a participating State includes a reference to any person exercising and performing all the powers and functions of the Governor of that State.

(5a) In the case of the Australian Capital Territory —

(a) the reference in section 26(4) to the Governor of a participating State is a reference to the Governor‑General; and

(b) the references in section 26(5)(b) to the Governor of a participating State are references to the Governor‑General or to the Executive within the meaning of the Australian Capital Territory (Self‑Government) Act 1988 of the Commonwealth.

(5b) In the case of the Northern Territory, a reference in this Act to the Governor of a participating State is a reference to the Administrator of the Northern Territory, and includes a reference to any person exercising and performing all the powers and functions of the Administrator.

(5c) A reference in this Act to the Governor‑General includes a reference to any person exercising and performing all the powers and functions of the Governor‑General.

(6) A reference in this Act to a person upon whom a sentence of imprisonment has been imposed does not include a reference to a person who has completed serving that sentence.

(7) The following persons upon whom a sentence of imprisonment has been imposed shall be taken, for the purposes of this Act, to have completed serving that sentence —

(a) a person —

(i) who has been released from serving a part of that sentence on parole or upon licence to be at large; and

(ii) in respect of whom action can no longer be taken under a law of the Commonwealth, a State or a Territory by way of requiring the person to serve the whole or a part of the remainder of that sentence;

(b) a person —

(i) who has been released from serving the whole or a part of that sentence upon giving a relevant security; and

(ii) in relation to whom —

(A) action can no longer be taken under a law of the Commonwealth, a State or a Territory in respect of a breach of a condition of that security; or

(B) action cannot, by reason of the expiration of the security, be taken under a law of the Commonwealth, a State or a Territory by way of requiring the person to serve the whole or a part of that sentence;

(c) a person who, as the result of the exercise of the royal prerogative of mercy, is no longer required to serve the whole or a part of that sentence.

(8) A reference in this Act to release on parole includes a reference to release on probation and to any other form of conditional release in the nature of parole.

[Section 3 amended: No. 72 of 1986 s. 4; No. 47 of 1987 s. 23; No. 113 of 1987 s. 32; No. 5 of 1994 s. 3; No. 59 of 2004 s. 141.]

4. Corresponding courts and interstate laws

(1) Subject to subsection (2), the Governor may, by order published in the Gazette, declare that —

(a) a law of a State (other than Western Australia) is an interstate law for the purposes of this Act; and

(b) a specified court of Western Australia or any court belonging to a specified class or description of courts of Western Australia is, for the purposes of this Act, a corresponding court in relation to a specified court of a participating State or in relation to any court belonging to a specified class or description of courts of a participating State.

(2) An order shall not be made under subsection (1) in respect of a law of another State unless the Governor is satisfied that that law substantially corresponds to the provisions of this Act and contains provisions that are referred to in this Act as provisions of an interstate law that correspond to specified provisions of this Act.

[Section 4 amended: No. 72 of 1986 s. 5.]

[5A. 1M Modifications to be applied in order to give effect to Cross-border Justice Act 2008: section inserted 1 Nov 2009. See endnote 1M.]

Part II — Transfer at request of prisoner

[Heading inserted: No. 1 of 2009 s. 4.]

[5B. 1M Modifications to be applied in order to give effect to Cross-border Justice Act 2008: section inserted 1 Nov 2009. See endnote 1M.]

5. Requests for, and orders of, transfer

(1) Where the Minister —

(a) receives a written request made by a State prisoner serving a sentence of imprisonment in Western Australia for the transfer of the prisoner to a participating State or to a Territory; and

(b) is of the opinion that the prisoner to whom the request relates should be transferred to the participating State or the Territory,

the Minister shall —

(c) where the request is for the transfer of the prisoner to a participating State — give to the corresponding Minister of the participating State a written request asking that Minister to accept the transfer of the prisoner to the participating State; and

(d) where the request is for the transfer of the prisoner to a Territory — give to the Attorney‑General of the Commonwealth a written request asking the Attorney‑General to consent to that transfer.

(2) Where the Minister —

(a) has —

(i) in respect of a request made by a State prisoner for a transfer to a participating State, given to the corresponding Minister of the participating State a written request under subsection (1)(c); and

(ii) received from that Minister written notice of consent to the transfer of the prisoner to the participating State;

(b) has —

(i) in respect of a request made by a State prisoner for a transfer to a Territory, given to the Attorney‑General of the Commonwealth a written request under subsection (1)(d); and

(ii) received from the Attorney‑General of the Commonwealth written notice of consent to the transfer of the prisoner to the Territory,

the Minister may issue an order for the transfer of the prisoner to the participating State or the Territory, as the case may be.

(3) Where the Minister —

(a) receives a written request made by a joint prisoner serving a sentence of imprisonment in Western Australia for the transfer of the prisoner to a participating State; and

(b) is of the opinion that the prisoner to whom the request relates should be transferred to the participating State,

the Minister shall give to the corresponding Minister of the participating State a written request asking that Minister to accept the transfer of the prisoner to that participating State.

(4) Where the Minister has —

(a) in respect of a request by a joint prisoner for a transfer to a participating State, given to the corresponding Minister of the participating State a written request under subsection (3); and

(b) received from that Minister written notice of consent to the transfer of the prisoner to the participating State,

the Minister may issue an order for the transfer of the prisoner to the participating State.

(5) Where a joint prisoner is serving a sentence of imprisonment in Western Australia and the Minister —

(a) receives a written request made by the prisoner for the transfer of the prisoner to a Territory; and

(b) is of the opinion that the prisoner to whom the request relates should be transferred to the Territory,

the Minister may issue an order for the transfer of the prisoner to the Territory.

(6) A decision to issue, or not to issue, an order under this section is not reviewable by a court or tribunal.

[Section 5 inserted: No. 72 of 1986 s. 6; amended: No. 1 of 2009 s. 5.]

6. Effect of orders under this Part on joint prisoners

An order of transfer issued under this Part in relation to a joint prisoner has no effect —

(a) to the extent that, but for this section, it authorises or requires the doing of an act or thing under this Act in relation to that person in the person’s capacity as a person upon whom a Commonwealth sentence of imprisonment has been imposed; and

(b) unless and until a transfer order corresponding to the order of transfer is in force under the Transfer of Prisoners Act 1983 of the Commonwealth in respect of the person or the transfer of the person is otherwise authorised under that Act.

[Section 6 inserted: No. 72 of 1986 s. 6.]

[7A. 1M Modifications to be applied in order to give effect to Cross-border Justice Act 2008: section inserted 1 Nov 2009. See endnote 1M.]

7. Repeated requests for transfer

A request made by a prisoner for his transfer to a participating State or to a Territory need not be entertained by the Minister if it is made within one year after a similar request was made by the prisoner.

[Section 7 amended: No. 72 of 1986 s. 7.]

8. Receipt of request for transfer to Western Australia

Where the Minister receives a written request given under the provision of an interstate law that corresponds to section 5, or a request made for the purposes of Part II of the Transfer of Prisoners Act 1983 of the Commonwealth, asking him to accept the transfer of an imprisoned person to Western Australia, the Minister shall either refuse to consent, or consent, to the transfer and shall give to the Minister by whom the written request was given or to the Attorney‑General of the Commonwealth, as the case may be, written notice of his refusal or consent.

[Section 8 amended: No. 72 of 1986 s. 8.]

9A. Matters to which the Minister may have regard

In forming an opinion or exercising a discretion under this Part, the Minister may have regard to any one or more of the following —

(a) the welfare of the prisoner or person concerned;

(b) the administration of justice in this or any other State;

(d) the safe custody of the prisoner or person concerned;

(e) the protection of the community in this or any other State;

(f) any other matter the Minister considers relevant.

[Section 9A inserted: No. 1 of 2009 s. 6.]

9. Reports

(1) For the purpose of forming an opinion or exercising any discretion under this Part, the Minister may inform himself as he thinks fit and, in particular, by reference to reports of parole and prison authorities of Western Australia and of any participating State.

(2) Reports of parole and prison authorities may be sent to a corresponding Minister for the purpose of assisting him to form an opinion or to exercise a discretion under the interstate law administered by him.

[Section 9 amended: No. 1 of 2009 s. 7.]

Part III — Transfer for trial

10. Request for transfer of prisoner to participating State

(1) Where a person the subject of an arrest warrant issued in accordance with the law of a participating State, the Commonwealth or a Territory is a prisoner serving a sentence of imprisonment in Western Australia and the Attorney General receives —

(a) from —

(i) in the case of an arrest warrant issued in accordance with the law of a participating State — the Attorney‑General of the participating State; or

(ii) in the case of an arrest warrant issued in accordance with the law of the Commonwealth or a Territory — the Attorney‑General of the Commonwealth,

a written request, accompanied by a copy of the warrant; or

(b) a written request made by the prisoner to the Minister and referred to the Attorney General,

being in any case a request for the transfer of the prisoner to a participating State or to a Territory to be dealt with according to law, the Attorney‑General shall either refuse to consent, or consent, to the transfer and shall give to the Attorney‑General of the participating State, the Attorney‑General of the Commonwealth or to the Minister, as the case may be, written notice of his refusal or consent.

(2) Where the Minister receives a written request made by a prisoner for the transfer of the prisoner to a participating State or to a Territory to be dealt with according to law, the Minister shall refer the written request to the Attorney‑General.

(3) A request made by a prisoner for his transfer to a participating State or to a Territory need not be referred by the Minister to the Attorney‑General if it is made within one year after a similar request was made by the prisoner.

[Section 10 amended: No. 72 of 1986 s. 9.]

11. Necessary consents

(1) An order of transfer shall be issued under this Part only if —

(a) the Attorney General has, in writing, consented to the transfer of the prisoner to whom the order relates to the participating State or to the Territory, as the case may be;

(b) in the case of a request for the transfer of a prisoner to a participating State (including a prisoner to whom paragraph (c)(ii) applies) — the Attorney‑General of the participating State has, in writing, either consented to or requested the transfer; and

(i) a request for the transfer of a prisoner to a Territory; or

(ii) a request for the transfer of a prisoner for the purpose of being dealt with in respect of an arrest warrant issued in accordance with the law of the Commonwealth,

the Attorney‑General of the Commonwealth has, in writing, either consented to or requested the transfer.

(2) A certificate signed by a prescribed officer certifying that any consent or request required under subsection (1) for the transfer of a prisoner to a participating State, or to a Territory, specified in the certificate, or to a Territory, has been given or made is, in the absence of evidence to the contrary, proof that the consent or request has been given or made.

[Section 11 amended: No. 72 of 1986 s. 10.]

12. Prisoner to be brought before Magistrates Court

(1) The Magistrates Court, upon proof to its satisfaction that the conditions precedent specified in section 11(1) have been complied with, shall by order direct the Superintendent of the prison where the prisoner to whom the certificate relates is then imprisoned to bring the prisoner before the court at the place specified in the order on a date and at a time so specified for determination as to whether an order of transfer shall be issued.

(2) Notice of an order made under subsection (1) shall be served on the Attorney‑General, the chief executive officer and on the prisoner to whom the order relates.

(3) At a hearing for the purpose of determining whether an order for the transfer of a prisoner shall be issued —

(a) the prisoner may be represented by a legal practitioner; and

(b) the Attorney‑General may appear or be represented.

[Section 12 amended: No. 47 of 1987 s. 24; No. 113 of 1987 s. 32; No. 59 of 2004 s. 141; No. 20 of 2013 s. 99.]

13. Order of transfer

When a prisoner is brought before the Magistrates Court pursuant to an order made under section 12(1), the court shall —

(a) issue an order for the transfer of the prisoner to the participating State, or to the Territory, specified in the certificate issued in accordance with section 11(2) in respect of the prisoner; or

(b) if the court, on the application of the prisoner, is satisfied that it would be harsh or oppressive or not in the interests of justice to transfer the prisoner to that participating State or Territory or that the trivial nature of the charge against the prisoner does not warrant the transfer, refuse to issue such an order.

[Section 13 amended: No. 72 of 1986 s. 11; No. 59 of 2004 s. 141; No. 84 of 2004 s. 80.]

14. Review of decision of Magistrates Court

(1) Where the Attorney‑General or the prisoner, or any other person who has requested or consented to the transfer of the prisoner, is dissatisfied with the decision of the Magistrates Court under section 13, the Attorney‑General, the prisoner or that person, as the case may be, may, within 14 days of the decision, apply to the Supreme Court for a review of the decision and the Supreme Court may review the decision.

(2) The prisoner shall be entitled to be present and may be represented by a legal practitioner at the review and for that purpose any court or a person authorised by the rules of the Supreme Court may, by order, direct the superintendent of the prison where the prisoner is then imprisoned to bring the prisoner to the place of the review specified in the order on a date and at a time so specified.

(3) The Attorney‑General and any other person who has requested or consented to the transfer of the prisoner shall be entitled to appear or be represented at the review.

(4) The review of the decision shall be by way of rehearing on the evidence, if any, given before the Magistrates Court and on any evidence in addition to the evidence so given.

(5) Upon the review of a decision, the Supreme Court may confirm the decision or quash the decision and substitute a new decision in its stead.

(6) For the purpose of giving effect to any such substituted decision, the Supreme Court may issue an order for the transfer of the prisoner to the appropriate participating State or Territory.

[Section 14 amended: No. 72 of 1986 s. 12; No. 59 of 2004 s. 141; No. 20 of 2013 s. 100.]

14A. Effect of orders under this Part on joint prisoners

An order of transfer made under this Part in relation to a joint prisoner has no effect —

[Section 14A inserted: No. 72 of 1986 s. 13.]

15. Prisoner brought to be returned to custody

Where an order is made under section 12(1) or 14(2) —

(a) the Superintendent to whom it is directed shall execute the order or may charge any prison officer or, subject to section 33, member of the police force with the execution of the order; and

(b) the prisoner shall, while the order is being executed, be kept in the charge of the superintendent, prison officer or member of the police force acting under or in execution of the order, who shall in due course return the prisoner to the custody from which he has been brought.

16. Request for transfer of imprisoned person to Western Australia

Where a person who is the subject of an arrest warrant issued in accordance with the laws of Western Australia is imprisoned in a participating State, the Attorney‑General may give to the Attorney‑General of the participating State a written request, accompanied by a copy of the warrant, for the transfer of the person to Western Australia to be dealt with according to law.

17. Request for transfer to Western Australia by imprisoned person

Where —

(a) a person is imprisoned in a participating State;

(b) he is the subject of an arrest warrant issued in accordance with the laws of Western Australia; and

(c) the Attorney‑General of the participating State has given a notice, in writing, to the Attorney‑General that he has consented to a request made by the person to be transferred to Western Australia to enable him to be dealt with according to law,

the Attorney‑General shall either refuse to consent, or consent, to the transfer and shall give to the Attorney‑General of the participating State notice, in writing, of his refusal or consent.

Part IV — Transfer back to original State

18. Return of prisoner to participating State if no sentence or shorter sentence in Western Australia

Where —

(a) a person is transferred to Western Australia from a participating State or a Territory pursuant to an order issued under the provision of the interstate law of that participating State that corresponds to section 13 or 14(6), or under Part III of the Transfer of Prisoners Act 1983 of the Commonwealth, or both;

(b) so far as the Minister is aware, every charge against the person of an offence against the law of Western Australia or the Commonwealth has been finally dealt with according to law and as a result —

(i) the person did not become liable to serve any sentence of imprisonment in Western Australia; or

(ii) the person did become liable to serve in Western Australia one or more sentences of imprisonment under which the period of imprisonment remaining to be served is shorter than the period of imprisonment remaining to be served by the person under any translated sentence or translated sentences or any sentence of imprisonment that has been imposed upon the person for any other offence against a law of the Commonwealth or a Territory;

and

the Minister shall, subject to section 21, issue an order for the transfer of the person to the participating State or to the Territory, as the case may require.

[Section 18 inserted: No. 72 of 1986 s. 14; amended: No. 84 of 2004 s. 80.]

19. Effect of orders under this Part on joint prisoners

An order of transfer made under this Part in relation to a joint prisoner has no effect —

[Section 19 inserted: No. 72 of 1986 s. 14.]

[20. Deleted: No. 72 of 1986 s. 14.]

21. Provisions ancillary to sections 18, 19

(1) The provisions of section 18 do not apply in respect of a person if —

(a) the Minister receives a written request made by the person, being a request for the person to serve the person’s imprisonment in Western Australia, and the Minister and —

(i) in the case of a person transferred from a participating State (being a person who is a State prisoner) — the corresponding Minister of the participating State;

(ii) in the case of a person transferred from a participating State (being a person who is a joint prisoner) — the corresponding Minister of the participating State and the Attorney‑General of the Commonwealth; or

(iii) in the case of a person transferred from a Territory (being a person who is a joint prisoner) — the Attorney‑General of the Commonwealth,

agree in writing that the person should serve the imprisonment in Western Australia; or

(b) an indeterminate sentence (not being a translated sentence) is imposed upon the person by a court of Western Australia.

(2A) In forming an opinion or exercising a discretion under this Part, the Minister may have regard to any one or more of the following —

(a) the welfare of the person concerned;

(b) the administration of justice in this or any other State;

(d) the safe custody of the person concerned;

(e) the protection of the community in this or any other State;

(f) any other matter the Minister considers relevant.

(2) For the purpose of section 18, a charge against a person of an offence is finally dealt with if —

(a) the person is tried for the offence and —

(i) the time or extended time, if any, fixed by or under any Act, within which an appeal against, or an application for the review of, the decision given on the trial may be lodged, or within which a retrial may be ordered, has expired; and

(ii) any appeal or application for review in respect of the decision given on the trial has been determined or withdrawn and proceedings in respect of any retrial and any decision given on the retrial have been concluded;

(b) the prosecution of the charge is discontinued.

(3) For the purpose of determining which of the periods referred to in section 18(b) is the shorter or longer —

(a) any entitlement to remissions shall be disregarded;

(b) a finite period of imprisonment shall be treated as being shorter than a period to be served under an indeterminate sentence;

(c) the expression sentences of imprisonment in section 18(b) includes a translated sentence that was originally imposed by a court of Western Australia;

(d) the expression translated sentence or sentences in section 18(b) does not include a translated sentence that was originally imposed by a court of Western Australia; and

(e) where a State sentence of imprisonment which a person became liable to serve in Western Australia (not being a translated sentence) is cumulative with a translated sentence or translated sentences originally imposed by a court other than a court of Western Australia, that translated sentence or those translated sentences shall be deemed —

(i) not to be a translated sentence or translated sentences, as the case may be; and

(ii) to be a sentence or sentences, as the case may be, which the person is liable to serve in Western Australia.

[Section 21 amended: No. 72 of 1986 s. 15; No. 84 of 2004 s. 80; No. 2 of 2008 s. 68; No. 1 of 2009 s. 8.]

Part V — Effect of order of transfer

22. Transfer in custody of escort

(1) An order of transfer —

(a) shall direct the chief executive officer to deliver the prisoner into the custody of an escort and shall be sufficient authority to the chief executive officer so to deliver the prisoner; and

(b) authorises the escort to take and keep custody of the prisoner for the purpose of conveying him from Western Australia to such prison in a participating State or a Territory as is specified in the order and there delivering him into the custody of the gaoler or superintendent of that prison.

(2) A reference in subsection (1) to an escort is a reference to a prison officer, a member of the police force or a person appointed by the Minister by an instrument in writing to be an escort for the purposes of this Act, or any 2 or more of them.

(3) Where —

(a) under an interstate law or under the Transfer of Prisoners Act 1983 of the Commonwealth, or both, an order is issued for the transfer to Western Australia of a person imprisoned in a participating State or a Territory; and

(b) pursuant to the order an escort brings the person into Western Australia,

the escort, while in Western Australia, is authorised to hold, take and keep custody of the person for the purpose of conveying him to such prison in Western Australia as is specified in the order and there delivering him into the custody of the chief executive officer.

[Section 22 amended: No. 72 of 1986 s. 16; No. 47 of 1987 s. 24; No. 113 of 1987 s. 32.]

23. Transfer of sentence with prisoner

(1) Where pursuant to an order of transfer a prisoner is conveyed to a participating State or a Territory specified in the order, then from the time the prisoner arrives in the participating State or the Territory every State sentence of imprisonment imposed upon the prisoner, including a translated sentence, ceases to have effect in Western Australia except —

(a) for the purpose of any appeal against or review of any conviction, judgment or sentence made, imposed or fixed by a court of Western Australia;

(b) in relation to any period of imprisonment served by the prisoner in Western Australia; or

(c) in relation to the remittance of money to the Minister which is paid in discharge or partial discharge of a sentence of default imprisonment originally imposed upon the prisoner by a court of Western Australia.

(2) Subsection (1) does not apply to a sentence of imprisonment imposed upon a person where the person has completed serving that sentence.

[Section 23 amended: No. 72 of 1986 s. 17.]

24. Information to be sent to the participating State

(1) Where pursuant to an order of transfer a prisoner is conveyed to a participating State, the Minister shall cause to be sent to the corresponding Minister of the participating State or to some person for the time being designated by him —

(a) the order of transfer;

(b) the warrant of, or other authority for, commitment for any sentence of imprisonment which the prisoner was, immediately before he left Western Australia, serving or liable to serve;

(c) a report relating to the prisoner, which shall contain such information and be accompanied by such documents available in Western Australia as appear to be likely to be of assistance to any court, authority or officer in the participating State and shall include details of convictions, sentences of imprisonment, minimum terms of imprisonment, periods of imprisonment served, entitlements to remissions and grants of parole and a copy of any record relating to the prisoner’s conduct; and

(d) details, accompanied by any relevant orders or other documents, of any subsequent variations to the information provided in accordance with this subsection, whether arising from any appeal or review or otherwise.

(2) A reference in subsection (1) to an order or other document is a reference to either the original or a copy certified in the prescribed manner.

25. Sentence deemed to have been imposed in Western Australia

(1) Where under an interstate law an order is issued for the transfer to Western Australia of a person imprisoned in a participating State and the person is brought into Western Australia pursuant to the order, then from the time the person arrives in Western Australia —

(a) any State sentence of imprisonment (as defined in the interstate law of the participating State) imposed upon the person by a court of the participating State and any sentence of imprisonment deemed by the provision of an interstate law that corresponds to this section to have been imposed by a court of the participating State shall be deemed to have been imposed upon the person; and

(b) any direction or order given or made by a court of the participating State with respect to when any such State sentence of imprisonment shall commence shall, so far as practicable, be deemed to have been given or made,

by a corresponding court of Western Australia and, except as otherwise provided in this Act, shall be given effect to in Western Australia, and the laws of Western Australia shall apply, as if such a court had had power to impose the sentence and give or make the direction or order, if any, and did in fact impose the sentence and give or make the direction or order, if any.

(2) Subsection (1) does not apply to or in respect of a sentence of imprisonment imposed upon a person where the person has completed serving that sentence.

[Section 25 amended: No. 72 of 1986 s. 18.]

26. Provisions relating to translated sentences

(1) Where under a law of a participating State there has been fixed by a court in respect of a translated sentence a minimum term of imprisonment (being a shorter term than the translated sentence), during which minimum term the person subject to the sentence is not eligible to be released on parole, then, except as otherwise provided in this Act, that minimum term shall be deemed likewise to have been fixed by the corresponding court of Western Australia.

(2) Where a translated sentence or a minimum term deemed under subsection (1) to have been fixed by a corresponding court of Western Australia —

(a) is varied or quashed on a review by or appeal to a court of the participating State where the sentence or minimum term was imposed or fixed, the sentence or minimum term shall be deemed to have been varied to the same extent, or to have been quashed, by a corresponding court of Western Australia; or

(b) otherwise is varied or ceases to have effect as a result of action taken by any person or authority in that participating State, the sentence shall be deemed to have been varied to the same extent, or to have ceased to have effect, as a result of action taken by an appropriate person or authority in Western Australia.

(3) Nothing in this Act operates to permit in Western 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.

(4) Where a translated sentence is an indeterminate sentence requiring that the person who is the subject of the sentence be detained during the pleasure of Her Majesty or during the pleasure of the Governor of the participating State in which the sentence was imposed, the person shall be detained during the Governor’s pleasure.

(5) The Governor —

(a) may exercise the royal prerogative of mercy in favour of a person who is subject to a translated sentence as if the person were —

(i) an offender convicted in a court of Western Australia; or

(ii) an offender convicted within Western Australia before a judge or magistrate of Western Australia;

and

(b) in exercising that prerogative, may give effect to any indication given by the Governor of the participating State in which the sentence of imprisonment was imposed upon that person as to what the Governor of the participating State may have done had the person not been transferred to Western Australia.

(6) A person who is subject to a translated sentence —

(a) shall be deemed to have served in Western Australia such period of the translated sentence as, up to the time of his transfer to Western Australia, he had served in respect of that sentence in a participating State (including any period deemed by the provision of an interstate law that corresponds to this paragraph to have been served in a participating State and any period spent in custody while being transferred to a prison in Western Australia);

(b) shall be deemed to be entitled under the Prisons Act 1981 to any remission of his translated sentence for which, up to the time of his transfer to Western Australia, he was eligible in respect of that translated sentence in the participating State (including any remission of sentence deemed by an interstate law to have been earned in a participating State), except that if the remission of sentence to which a person would otherwise be deemed to be eligible under this paragraph relates to or is conferred or calculated by reference to a period of his sentence greater than that which he has served prior to the time of his transfer to Western Australia, he shall be deemed to be entitled under the Prisons Act 1981 to such proportionate amount of that period of remission of sentence as the period of sentence served by him prior to his transfer to Western Australia bears to the period by reference to which the remission to which he would otherwise have been deemed to be eligible was calculated; and

(c) shall be entitled, in addition to the remission to which he is deemed to be entitled under paragraph (b) of this subsection, to further remission of sentence under the Prisons Act 1981 which shall be calculated with reference to the balance of the term of his sentence remaining to be served from the time of the arrival of that person in Western Australia.

(7) Subsection (5) does not apply in relation to a conviction or transferred sentence referred to in section 24(2)(a) or (b) of the Transfer of Prisoners Act 1983 of the Commonwealth, but nothing in this subsection shall be construed as preventing the Queen or the Governor from exercising the royal prerogative of mercy as referred to in section 24(2) of that Act.

[Section 26 amended: No. 72 of 1986 s. 19.]

27. Translated sentence — default imprisonment

(1) Where a translated sentence is a sentence by which default imprisonment was ordered and any portion of the amount in default of payment of which the default imprisonment was ordered is paid by or on behalf of the prisoner who is the subject of the sentence to the superintendent of the prison in which he is imprisoned —

(a) the term of default imprisonment shall be reduced by a period which bears to the term of default imprisonment the same proportion as the portion paid bears to the total amount that was payable and, subject to any other sentence of imprisonment, the prisoner shall be entitled to be released on the expiry of the reduced period; and

(b) the portion so paid shall be remitted by the superintendent to the corresponding Minister of the participating State where the sentence, by which default imprisonment was ordered, was originally imposed.

(2) Where a translated sentence is a sentence by which default imprisonment was ordered and, on a review by or an appeal to a court of the participating State where the sentence was imposed or as a result of any other action taken by any person or authority in that participating State, the amount in default of payment of which the default imprisonment was ordered is reduced or the obligation to pay that amount is quashed —

(a) the term of default imprisonment shall where the amount is reduced, be reduced by a period which bears to the term of default imprisonment the same proportion as the amount of the reduction bears to the total amount that was payable and, subject to any other sentence of imprisonment that may be imposed on him, the prisoner shall be entitled to be released on the expiry of that reduced period; or

(b) the prisoner shall, where the obligation to pay the amount is quashed, thereupon, subject to any other sentence of imprisonment that may be imposed on him, be entitled to be released.

[Section 27 amended: No. 72 of 1986 s. 20.]

Part VI — Miscellaneous

28. Notification to certain prisoners of certain decisions

The Attorney‑General shall, when he makes a decision in respect of a prisoner for the purposes of this Act advise that prisoner of that decision.

29. Lawful custody for transit through Western Australia

(1) Where, in relation to a person imprisoned in a participating State or a Territory, an order is made under an interstate law or under the Transfer of Prisoners Act 1983 of the Commonwealth, or both, for the transfer of that person to a participating State or Territory and in the course of conveying the person to the participating State or Territory pursuant to the order an escort brings the person into Western Australia, then —

(a) while in Western Australia the escort is authorised to hold, take and keep custody of the person for the purpose of conveying him from Western Australia to such prison in the participating State or Territory as is specified in the order and there delivering him into the custody of the gaoler or superintendent; and

(b) any superintendent is authorised upon —

(i) the request of the escort;

(ii) delivery to the superintendent by the escort of a copy of the order of transfer certified by the escort to be such a copy; and

(iii) subject to the approval of the chief executive officer,

to receive the person and to detain him in custody as though he were a State prisoner for such time as the escort requests and is reasonably necessary for the purpose of executing the order.

(2) Where a superintendent has the charge of a person under subsection (1)(b), the superintendent is authorised, upon the request of an escort and production by the escort of the order of transfer relating to the person, to deliver the person into the custody of the escort.

[Section 29 amended: No. 72 of 1986 s. 21; No. 47 of 1987 s. 24; No. 113 of 1987 s. 32.]

30. Escape from custody of person being transferred

(1) A person in the custody of an escort pursuant to section 29 who escapes from that custody may be apprehended without warrant by the escort, any member of the police force or any other person.

(2) Where a person in custody pursuant to section 29 —

(a) has escaped and been apprehended; or

(b) has attempted to escape,

that person may be taken before a justice who may, notwithstanding the terms of any order of transfer issued under an interstate law, by warrant —

(c) order the person to be returned to the participating State in which the order of transfer under which that person was being conveyed at the time of the escape or attempt to escape was issued; and

(d) for that purpose, order the person to be delivered to an escort.

(2a) Subsections (1) and (2) do not apply to a person to whom section 47 of the Crimes Act 1914 of the Commonwealth applies by virtue of section 26(2) of the Transfer of Prisoners Act 1983 of the Commonwealth.

(3) A warrant issued under subsection (2) may be executed according to its tenor.

(4) A person who is the subject of a warrant issued under subsection (2) may be detained in custody as a State prisoner until he is delivered into the custody of an escort in accordance with that warrant or until the expiration of a period of 7 days from the issuing of the warrant, whichever first occurs.

(5) If a person who is the subject of a warrant issued under subsection (2) is not, in accordance with the warrant, delivered into the custody of an escort within a period of 7 days from the issuing of the warrant, the warrant shall have no further effect.

(6) A reference in subsection (2), (4) or (5) to an escort in relation to a person who was, at the time of his escape or attempt to escape, being conveyed under an order of transfer issued in a participating State is a reference to —

(a) the escort who had the custody of that person pursuant to that order;

(b) a prison officer or a member of the police force of the participating State; or

(c) a person appointed by the corresponding Minister of the participating State by an instrument in writing to be an escort for the purpose of conveying that person to the participating State,

or any 2 or more of them.

[Section 30 amended: No. 72 of 1986 s. 22; No. 20 of 2013 s. 101.]

31. Escape from custody — penalty

(1) Any person who, being a person in custody under an order of transfer, escapes or attempts to escape from that custody while he is not within Western Australia or the participating State or the Territory to which he was being conveyed under that order is guilty of a crime and is liable to imprisonment for a term not exceeding 3 years, to be served after the expiration of any term of imprisonment, penal servitude or detention to which he was subject at the time of his escape or attempt to escape.

(2) Without limiting the generality of section 146 of The Criminal Code, that section applies to a person —

(a) who is in custody under an order of transfer; and

(b) who escapes from that custody while he is not within Western Australia or the participating State or the Territory to which he was being conveyed under that order,

in the same way as it applies to a person who escapes from lawful custody while undergoing a sentence involving deprivation of liberty in Western Australia.

(3) Subsections (1) and (2) do not apply to a person to whom section 47 of the Crimes Act 1914 of the Commonwealth applies by virtue of section 26(1) or (2) of the Transfer of Prisoners Act 1983 of the Commonwealth.

[Section 31 amended: No. 72 of 1986 s. 23.]

32. Revocation of order of transfer on escape from custody

The Magistrates Court may revoke an order of transfer if it appears to the court, on application made to it under this section by the holder of a prescribed office or position or by a person who belongs to a prescribed class of persons, that the person in respect of whom the order was issued has, in the course of his being conveyed in accordance with that order, committed —

(a) the offence of escaping or attempting to escape; or

(b) any other offence,

whether —

(c) the offence was an offence against the law of Western Australia, the Commonwealth, a participating State or a Territory; or

(d) a charge has been laid or a conviction secured in respect of the offence or not.

[Section 32 amended: No. 72 of 1986 s. 24; No. 59 of 2004 s. 141.]

33. Assistance by police officers

Subject to the directions of the Commissioner of Police, a police officer may, upon the request of the chief executive officer or a prison officer, assist in the exercise or performance of any power or duty conferred or imposed by this Act and when so acting a police officer, in addition to the powers and duties conferred and imposed on him by or under any other law, shall have the powers and be subject to the responsibilities and shall receive the protection from liability which in like circumstances would be conferred or imposed on a prison officer.

[Section 33 amended: No. 47 of 1987 s. 24; No. 113 of 1987 s. 32.]

34. Regulations

The Governor may make regulations for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

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Notes

1 This is a compilation of the Prisoners (Interstate Transfer) Act 1983 and includes the amendments made by the other written laws referred to in the following table 1M. The table also contains information about any reprint.

Compilation table

Short title	Number and year		Assent		Commencement
Prisoners (Interstate Transfer) Act 1983	75 of 1983		22 Dec 1983		1 Jul 1984 (see s. 2 and Gazette 1 Jun 1984 p. 1753)
Prisoners (Interstate Transfer) Amendment Act 1986	72 of 1986		4 Dec 1986		s. 1 and 2: 4 Dec 1986; Act other than s. 1 and 2: 2 Sep 1988 (see s. 2 and Gazette 2 Sep 1988 p. 3393)
Acts Amendment (Corrective Services) Act 1987 Pt. IV	47 of 1987		3 Oct 1987		11 Dec 1987 (see s. 2 and Gazette 11 Dec 1987 p. 4363)
Acts Amendment (Public Service) Act 1987 s. 32	113 of 1987		31 Dec 1987		16 Mar 1988 (see s. 2 and Gazette 16 Mar 1988 p. 813)
Prisoners (Interstate Transfer) Amendment Act 1994	5 of 1994		11 Apr 1994		s. 1 and 2: 11 Apr 1994; Act other than s. 1 and 2: 4 Nov 1995 (see s. 2 and Gazette 3 Nov 1995 p. 5163)
*Reprint of the Prisoners (Interstate Transfer) Act 1983* as at 6 Dec 2002** (includes amendments listed above)
Courts Legislation Amendment and Repeal Act 2004 s. 141	59 of 2004		23 Nov 2004		1 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7128)
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 s. 80	84 of 2004		16 Dec 2004		2 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7129 (correction in Gazette 7 Jan 2005 p. 53))
Criminal Law and Evidence Amendment Act 2008 s. 68	2 of 2008		12 Mar 2008		27 Apr 2008 (see s. 2 and Gazette 24 Apr 2008 p. 1559)
Prisoners (Interstate Transfer) Amendment Act 2009	1 of 2009		17 Apr 2009		s. 1 and 2: 17 Apr 2009 (see s. 2(a)); Act other than s. 1 and 2: 18 Apr 2009 (see s. 2(b))
*Reprint 2: The Prisoners (Interstate Transfer) Act 1983* as at 24 Jul 2009** (includes amendments listed above)
Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Pt. 3 Div. 14		20 of 2013		4 Nov 2013		25 Nov 2013 (see s. 2(b) and Gazette 22 Nov 2013 p. 5391)

1M Under the Cross-border Justice Act 2008 section 14, in order to give effect to that Act, this Act must be applied with the modifications prescribed by the Cross-border Justice Regulations 2009 Part 3 Division 15 as if this Act had been altered in that way. If a modification is to replace or insert a numbered provision, the new provision is identified by the superscript 1M appearing after the provision number. If a modification is to replace or insert a definition, the new definition is identified by the superscript 1M appearing after the defined term.

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

arrest warrant 3(1)

Attorney‑General 3(1)

chief executive officer 3(1)

Commonwealth sentence of imprisonment 3(1)

corresponding court of Western Australia 3(1)

corresponding Minister 3(1)

default imprisonment 3(1)

indeterminate sentence 3(1)

interstate law 3(1)

joint prisoner 3(1)

Magistrates Court 3(1)

order of transfer 3(1)

participating State 3(1)

prison 3(1)

prison officer 3(1)

prisoner 3(1)

relevant security 3(1)

sentence of imprisonment 3(1)

sentences of imprisonment 21(3)

State 3(1)

State prisoner 3(1)

State sentence of imprisonment 3(1)

superintendent 3(1)

Territory 3(1)

translated sentence 3(1)

translated sentence or sentences 21(3)

Western Australia

Prisoners (Interstate Transfer) Act 1983

Western Australia

Prisoners (Interstate Transfer) Act 1983

Contents

Part I — Preliminary

Short title 2
Commencement 2
Terms used 2
Corresponding courts and interstate laws 7

Part II — Transfer at request of prisoner

Requests for, and orders of, transfer 9
Effect of orders under this Part on joint prisoners 11
Repeated requests for transfer 12
Receipt of request for transfer to Western Australia 12

9A. Matters to which the Minister may have regard 12

Reports 13

Part III — Transfer for trial

Request for transfer of prisoner to participating State 14
Necessary consents 15
Prisoner to be brought before Magistrates Court 16
Order of transfer 16
Review of decision of Magistrates Court 17

14A. Effect of orders under this Part on joint prisoners 18

Prisoner brought to be returned to custody 18
Request for transfer of imprisoned person to Western Australia 18
Request for transfer to Western Australia by imprisoned person 19

Part IV — Transfer back to original State

Return of prisoner to participating State if no sentence or shorter sentence in Western Australia 20
Effect of orders under this Part on joint prisoners 21
Provisions ancillary to sections 18, 19 21

Part V — Effect of order of transfer

Transfer in custody of escort 24
Transfer of sentence with prisoner 25
Information to be sent to the participating State 25

The Act operates through a small set of recurring legal concepts; understanding these definitions and their interplay is necessary to apply the statutory mechanism.

Participating State and interstate law (s 3(1), s 4): “Participating State” means a State in which an interstate law is declared to be in force under s 4(1). The Governor’s order in the Gazette both identifies which external law is treated as an interstate law for WA purposes and designates which WA courts correspond to specified foreign courts for the purpose of giving effect to foreign sentences and directions (s 4(1)). The Governor must be satisfied that the foreign law substantially corresponds to this Act’s provisions (s 4(2)). This creates a formal intergovernmental recognition device: the Act does not operate automatically with every other State; it requires a positive proclamation.
Prisoner categories and “joint prisoner” (s 3): The Act distinguishes State prisoners (persons with State sentences) from joint prisoners (persons with both State and Commonwealth sentences). The statutory definition of “prisoner” excludes persons who have completed sentences (s 3(6)-(7)). “State sentence” includes indeterminate sentences, sentences imposing default imprisonment, and translated sentences, but excludes detention under laws for offenders who committed offences under 18 (s 3(1)).
Transfer types: The Act contemplates transfers at the request of the prisoner (Part II; s 5), transfers for trial (Part III; s 10-17), and transfers back to the original State where no sentence or a shorter sentence exists in WA (Part IV; s 18-21). The Act further prescribes the legal effects of transfer for custody and sentence operation (Part V; s 22-27).
Orders, consents and certificates (s 5, s 11, s 24(1)(a)-(b)): Orders of transfer may be made by the Minister (Part II) or emanate after a Magistrates Court decision or Supreme Court review (Part III). Section 11 conditions an order under Part III on written consents from specified Attorneys‑General; s 11(2) allows prescribed‑officer certificates to be evidence of consents.
Translated sentences and “deeming” (s 25-27): When a person is brought into WA under an interstate law, that person’s foreign State sentences and associated commencement directions are “deemed” to have been imposed by a corresponding WA court and are given effect in WA (s 25(1)). The Act reproduces minimum terms fixed in the originating State (s 26(1)), provides how appeals or variations in the originating State are to be reflected in WA (s 26(2)), and sets rules for remissions, credit for time served and further remissions under WA law (s 26(6)). For translated default imprisonment, payments are to reduce default imprisonment proportionally and remitted to the original State’s corresponding Minister (s 27).
Procedural safeguards and limits: The prisoner has rights to legal representation at Magistrates Court hearings (s 12(3)(a)); the Attorney‑General may appear (s 12(3)(b)). Decisions by the Minister under s 5 to issue or not issue a transfer order are expressly non‑reviewable (s 5(6)). By contrast, a Magistrates Court’s transfer decision under s 13 is reviewable by the Supreme Court within 14 days (s 14). The Act requires the Attorney‑General to notify the prisoner of decisions made under the Act (s 28).
Custody and escort arrangements (s 22, s 29): An order of transfer directs the chief executive officer to deliver the prisoner to an “escort” , defined to include prison officers, police members, or a person appointed by the Minister in writing (s 22(1)-(2)). Transit provisions authorise escorts to hold custody while in WA and permit superintendents to receive and detain incoming persons temporarily for executing an interstate order (s 29).

These concepts structure who decides (Governor, Ministers, Attorneys‑General, Magistrates, Supreme Court), who executes (chief executive officer, superintendent, escorts), and what happens to sentences and custody rights when persons cross State borders. The Act’s “deeming” provisions convert foreign State court directions into corresponding WA instruments (s 25), while other provisions suspend WA sentence operation when a prisoner departs WA (s 23). The Act also builds in practical interfaces , information transfer (s 24), reports (s 9, s 9A), and statutory discretion with enumerated matters ministers may consider (s 9A, s 21(2A)).

The Act identifies multiple private and public actors and sets out who bears decision‑making power, duties of provision, and operational costs.

Prisoners: The principal private effect falls on State prisoners and joint prisoners (s 3(1)). Prisoners can request transfers both to and from Western Australia (Part II, Part III, Part IV; e.g. s 5, s 10, s 17, s 18). The Act sets time limits on repeat prisoner requests (s 7). Prisoners whose sentences are “translated” upon transfer will have those sentences treated as if imposed by a corresponding WA court (s 25), and rights such as remissions and parole entitlements are carried over and adjusted (s 26(6)). Prisoners who escape in transit face a criminal penalty (s 31) and revocation of transfer orders (s 32).
Commonwealth and State Attorneys‑General and Ministers: The WA Minister and Attorney‑General make key decisions. Under Part II, the WA Minister receives prisoner requests and forwards them to corresponding Ministers or the Commonwealth Attorney‑General and may issue orders once consent is obtained (s 5(1)-(2)). Under Part III, the Attorney‑General receives, consents or refuses transfer requests tied to arrest warrants and refers prisoner requests from the Minister (s 10). Required written consents from correspondents are prerequisites under s 11(1). The Governor’s role under s 4 is to declare participating interstate laws and corresponding courts.
Prison administration and corrections executives: The chief executive officer of the Department that principally assists the Minister for the administration of the Prisons Act holds operational responsibility for delivering prisoners to escorts on an order (s 22(1)(a)). Superintendents are directed by Courts to produce prisoners for hearings (s 12(1)) and have duties in receiving, detaining, and returning prisoners during transit pursuant to s 15 and s 29. Superintendents remitting payments for default imprisonment must send sums to the corresponding Minister of the original State (s 27(1)(b)).
Police: Police members may act as escorts (s 22(2)) and are empowered to assist in powers and duties conferred by the Act, subject to Commissioner directions (s 33). A police officer can apprehend an escaped person without warrant (s 30(1)).
Courts: The Magistrates Court holds a gatekeeping role for transfers for trial: upon proof of requisite consents the Magistrates Court orders the prisoner to be brought before the court (s 12(1)), hears applications and may refuse if unfair (s 13), and can revoke transfer orders where offences are committed in transit (s 32). The Supreme Court has a statutory rehearing and substitution power to review Magistrates’ transfer decisions within 14 days (s 14). Courts are also relevant for giving effect to appeal or variation outcomes in originating States, which the Act prescribes (s 26(2)).
Receiving State authorities: Corresponding ministers and prison authorities in participating States receive the order of transfer, documents and reports about the prisoner (s 24), and exercise custody and sentence administration in accordance with the Act’s deeming provisions (s 25-26). They bear the burden of integrating translated sentences and remissions into their local sentence administration.
The Governor: The Governor decides which external laws are “interstate laws” and which WA courts are “corresponding courts” for application of the Act (s 4(1)-(2)), thereby shaping the scope of reciprocity and which foreign sentencing directions can be deemed in WA.

Financial and administrative burdens fall on the corrections department (chief executive officer, superintendents) for escorting, document preparation and transmission (s 24), and tracking remissions and default payments for translated sentences (s 26(6), s 27). Participating States’ corresponding Ministers and Attorneys‑General bear the cost of processing consents and receiving transfers. Prisoners face behavioural incentives (request or not, attempt escape discouraged by s 31) and changes to sentence computation upon transfer (s 23, s 25-27). The Act also requires intergovernmental coordination: the Governor’s declarations (s 4) effectively limit the Act’s reach to jurisdictions with substantially corresponding laws.

The Act allocates specific duties to public officers and rights to prisoners and interested parties. Below are the principal statutory duties and the statutory rights that attach.

Duties imposed by the Act

Minister’s duties on prisoner requests: If the WA Minister receives a written prisoner request and is of the opinion the prisoner should be transferred, the Minister must forward a written request to the corresponding Minister of the participating State (for State transfers) or to the Commonwealth Attorney‑General (for Territories) (s 5(1)(c)-(d)). Following receipt of written consent from the corresponding Minister or Attorney‑General, the Minister may issue a transfer order (s 5(2)). The Minister has to issue or refuse consent for requests received under an interstate law corresponding to s 5 (s 8).
Attorney‑General responsibilities: Under Part III the Attorney‑General receives written requests tied to arrest warrants issued in other jurisdictions and must consent or refuse and notify the requesting Attorney‑General or Minister (s 10(1)). The Attorney‑General’s consent is a precondition to an order under Part III (s 11(1)(a)).
Chief executive officer and superintendent duties: An order of transfer directs the chief executive officer to deliver the prisoner into the custody of an escort (s 22(1)(a)). The Superintendent must execute court orders to bring a prisoner before court (s 12(1)) and, after an order under s 12(1) or s 14(2), execute the order by charging a prison officer or member of the police to return the prisoner to custody (s 15). Under s 29 a superintendent may receive and detain incoming prisoners for the time reasonably necessary to execute an interstate transfer order.
Information‑sharing duty: Where a transfer occurs, the WA Minister must cause specified documents and reports to be sent to the corresponding Minister or designated person in the receiving State, including the order of transfer, warrants of commitment, and a report containing convictions, sentences, minimum terms, credits, remissions, parole grants, and conduct records (s 24(1)(a)-(c)). Subsequent variations must be notified (s 24(1)(d)).
Notification duty: The Attorney‑General is required to advise a prisoner when he makes a decision in respect of that prisoner for the purposes of the Act (s 28).

Rights and procedural protections

Right to request transfer: A State prisoner and certain joint prisoners may make written requests for transfer both to participating States and to Territories (s 5, s 17). The Act prescribes a one‑year interval in which repeat requests need not be entertained (s 7).
Right to be heard at Magistrates Court: Where a transfer for trial is proposed, the Magistrates Court must direct the superintendent to bring the prisoner before the court and give notice to the Attorney‑General, the chief executive officer and the prisoner (s 12(1)-(2)). The prisoner may be represented by a legal practitioner and the Attorney‑General may appear (s 12(3)).
Judicial review limited and available: Decisions by the Minister under s 5 to issue or not issue an order are expressly non‑reviewable (s 5(6)). By contrast, a Magistrates Court decision under s 13 is reviewable by the Supreme Court within 14 days (s 14(1)-(6)), and the Supreme Court may rehear the matter on evidence and substitute a new decision, including issuing the transfer order (s 14(4)-(6)).
Protection for joint prisoners: The Act limits the effect of WA transfer orders on the Commonwealth sentence components of joint prisoners. Sections 6, 14A and 19 state that any transfer order has no effect to the extent it authorises act or thing in relation to the person as a Commonwealth sentenced person, unless a corresponding transfer order is in force under the Commonwealth Transfer of Prisoners Act 1983 or otherwise authorised (s 6(a)-(b), s 14A, s 19). This preserves the Commonwealth statutory scheme’s primacy over interstate transfer of Commonwealth sentences.
Rights attached to translated sentences: Where a translated sentence is deemed to be imposed in WA, statutory provisions preserve a person’s entitlement to remissions earned up to transfer, provide for proportional adjustment where remissions are calculated against greater periods, and allow further remissions under WA law for the balance of the term (s 26(6)(a)-(c)). Minimum terms fixed by the foreign court are deemed fixed by a corresponding WA court (s 26(1)). The Governor may exercise the royal prerogative of mercy in favour of a person subject to a translated sentence (s 26(5)).

The Act therefore creates a mix of administrative duties (information transmission, custody and escort execution, notification) and procedural protections for prisoners (representation, review by the Supreme Court). It also limits judicial scrutiny of certain executive decisions (s 5(6)), while preserving the need for interjurisdictional consents (s 11) and establishing the mechanics for carrying over sentence entitlements (s 26-27).

The Act combines custodial enforcement powers, criminal liability for escape in transit, and court powers to revoke orders. Enforcement responsibilities are distributed across prison officers, police, superintendents and courts.

Authority to detain and escort (s 22, s 29): An order of transfer directs the chief executive officer to deliver the prisoner into the custody of an escort; that direction is statutory authority for the CEO and for the appointed escort to take custody for the purpose of conveying the prisoner to the receiving State (s 22(1)(a)-(b)). An escort may be a prison officer, a police member or a person appointed by the Minister by instrument in writing (s 22(2)). When escorts bring persons into WA under an interstate order, the escort is authorised to hold custody while in WA and a superintendent, with the CEO’s approval, may receive and detain the person temporarily (s 29(1)-(2)). These provisions create lawful custody and procedural authority to detain for the statutory purpose of executing transfer orders.
Apprehension on escape in transit (s 30): A person in the custody of an escort pursuant to s 29 who escapes may be apprehended without warrant by the escort, any member of the police force or any other person (s 30(1)). If the person escapes or attempts escape while in transit, they may be taken before a justice and the justice may issue a warrant ordering the person returned to the participating State and delivered to an escort (s 30(2)(c)-(d)). The warrant can be executed according to its tenor, and the person may be detained as a State prisoner until delivered into an escort’s custody or for up to seven days (s 30(3)-(5)).
Criminal penalty for escape outside specified jurisdictions (s 31): A person in custody under an order of transfer who escapes or attempts escape while not within WA or the receiving participating State or Territory commits a crime punishable by up to three years’ imprisonment, to be served after any sentence they were subject to at the time of escape (s 31(1)). Section 31(2) extends section 146 of The Criminal Code to apply in the same way as it applies to escape from lawful custody in WA. There is an express exception for persons to whom s 47 of the Commonwealth Crimes Act 1914 applies by virtue of the Commonwealth Transfer of Prisoners Act (s 31(3)).
Revocation of orders (s 32): The Magistrates Court may revoke an order of transfer where the person being conveyed committed escape or any other offence during transfer, whether or not a charge or conviction has been laid (s 32). Revocation may be sought by the holder of a prescribed office or a person in a prescribed class.
Assistance by police and immunity/protections (s 33): Police officers, subject to the Commissioner’s directions, may assist the chief executive officer or prison officers in executing the Act’s powers. When so acting, police officers have the powers, responsibilities and protections equivalent to those of a prison officer (s 33). The Act therefore extends certain operational immunities and duties to police when assisting corrections.
Procedural enforcement through courts (s 12-15): The Magistrates Court enforces compliance by ordering the superintendent to bring prisoners for hearing (s 12(1)), directing execution of orders and custody return (s 15), and revoking orders under s 32. The Supreme Court can enforce procedural fairness by rehearing Magistrates Court decisions and issuing appropriate orders on review (s 14).
Financial remittance obligations (s 27): For translated default imprisonment sentences, any payments by or on behalf of the prisoner to the WA superintendent reduce the term proportionately and the superintendent must remit those payments to the corresponding Minister of the participating State where the sentence was originally imposed (s 27(1)(a)-(b)). This creates an administrative duty and an enforcement route for monetary obligations.

Enforcement therefore operates through a combination of custodial powers (statutory authority to detain and hand over prisoners), statutory criminal sanctions for escape in transit, court powers to revoke transfer orders, and administrative duties to account for monetary payments tied to default imprisonment. The Act makes clear which statutory provisions do not apply to persons covered by certain Commonwealth provisions, e.g. exceptions in s 31(3) referencing s 47 of the Crimes Act 1914 by way of the Commonwealth Transfer of Prisoners Act 1983; these carve outs affect applicability of criminal sanctions and procedures in some Commonwealth contexts.

The Act expressly creates interdependencies with Commonwealth and other State laws and with the WA Prisons Act. The interactions are structural and practical.

Dependence on interstate law declarations (s 4): The Act only applies to other jurisdictions where the Governor publishes an order in the Gazette declaring an interstate law in force for the Act’s purposes and declaring corresponding WA courts (s 4(1)). The Governor must be satisfied that the foreign law substantially corresponds to this Act (s 4(2)). Thus, the Act’s reach is contingent upon formal executive recognition and reciprocity.
Interface with the Commonwealth Transfer of Prisoners Act 1983: For joint prisoners (persons with both State and Commonwealth sentences), transfer orders under this Act have no effect to the extent they attempt to deal with the Commonwealth sentence component unless a corresponding transfer order under the Commonwealth Transfer of Prisoners Act 1983 is in force or the transfer is otherwise authorised under that Commonwealth Act (s 6, s 14A, s 19). The Act therefore preserves the Commonwealth statutory framework’s primacy in relation to Commonwealth sentences.
Relationship with the Prisons Act 1981: The Act references roles and definitions from the Prisons Act 1981: “prison”, “prison officer”, “superintendent”, and the chief executive officer are defined in s 3(1) by reference to the Prisons Act (s 3(1) definitions). Section 26(6) also directs that remissions and further remission entitlements are to be determined under the Prisons Act 1981 when a translated sentence is served in WA.
Criminal Code and Crimes Act cross‑references: Section 31(2) explicitly extends s 146 of The Criminal Code (escape from custody offence) to apply to persons who escape while in custody under a transfer order. Section 31(3) and s 30(2a) carve out persons to whom s 47 of the Commonwealth Crimes Act 1914 applies by virtue of the Commonwealth Transfer of Prisoners Act , these references mean certain Commonwealth escape provisions may supersede or exclude the WA Act’s escape rules for particular categories of transferred persons.
Cross‑jurisdictional deeming and enforcement (s 23-26): The Act instructs how foreign State sentences become operative in WA. When a person is brought into WA under an interstate law, foreign State sentences and any directions as to commencement are deemed to have been imposed by a corresponding WA court and to be given effect under WA law (s 25(1)). Conversely, when a WA prisoner is transferred out, WA State sentences cease to have effect in WA (s 23(1)). This deeming mechanism creates a legal bridge for sentence administration across jurisdictions. It also imposes information transfers (s 24) so that receiving authorities can implement sentence administration consistent with the Act.
Administrative law and review: The Act limits review of certain administrative decisions: s 5(6) makes the Minister’s decision to issue or refuse an order under Part II non‑reviewable by a court or tribunal. For other decisions, judicial review remains available through the courts: s 14 expressly provides a right of review by the Supreme Court of Magistrates Court decisions under s 13. General principles of administrative law (not set out in the Act) may still apply to other ministerial or executive actions, subject to statutory bars.
Regulations and Cross‑Border Justice modifications: The Governor may make regulations for matters required or convenient for giving effect to the Act (s 34). The compilation notes include that modifications required by the Cross‑border Justice Act 2008 are to be applied by regulation (endnote 1M), indicating that cross‑jurisdictional administrative interfaces and procedural modifications may be implemented by subordinate instruments.
Remission and monetary interactions: For translated default imprisonment, sums paid to the WA superintendent must be remitted to the corresponding Minister of the original State (s 27(1)(b)), which imposes a financial transfer duty and interacts with the original State’s enforcement of monetary penalties.

Overall, the Act is designed to be read and applied in a multi‑legislative environment: it depends on coordination with other State laws, the Commonwealth Transfer of Prisoners Act, the Prisons Act 1981 (WA), criminal statutes, and subordinate regulations. The Governor’s s 4 role and the requirement for corresponding consents from Attorneys‑General (s 11) highlight that transfer operations are formal, reciprocal administrative actions requiring legal harmonisation across jurisdictions.

The Act incorporates a history of legislative amendments and reprints. The compilation information in the Act provides the following chronological changes and commencement information (directly cited from the compilation table and notes):

Original Act: Prisoners (Interstate Transfer) Act 1983 (No. 75 of 1983), assent 22 December 1983, commencement 1 July 1984 (see s 2 and Gazette 1 June 1984 p. 1753).
Prisoners (Interstate Transfer) Amendment Act 1986 (No. 72 of 1986), assent 4 December 1986. Part of the Act commenced 4 December 1986; other provisions commenced 2 September 1988 (see Gazette 2 Sep 1988 p. 3393).
Acts Amendment (Corrective Services) Act 1987 (Pt. IV) (No. 47 of 1987), assent 3 October 1987, commencement 11 December 1987 (Gazette 11 Dec 1987 p. 4363).
Acts Amendment (Public Service) Act 1987 (s 32) (No. 113 of 1987), assent 31 December 1987, commencement 16 March 1988 (Gazette 16 Mar 1988 p. 813).
Prisoners (Interstate Transfer) Amendment Act 1994 (No. 5 of 1994), assent 11 April 1994; the operative parts commenced 4 November 1995 (Gazette 3 Nov 1995 p. 5163).
A reprint of the Act as at 6 December 2002 incorporates amendments up to that date.
Courts Legislation Amendment and Repeal Act 2004 (s 141) (No. 59 of 2004), assent 23 November 2004, commencement 1 May 2005 (Gazette 31 Dec 2004 p. 7128).
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (s 80) (No. 84 of 2004), assent 16 December 2004, commencement 2 May 2005 (Gazette 31 Dec 2004 p. 7129 with correction Gaz 7 Jan 2005 p. 53).
Criminal Law and Evidence Amendment Act 2008 (s 68) (No. 2 of 2008), assent 12 March 2008, commencement 27 April 2008 (Gazette 24 Apr 2008 p. 1559).
Prisoners (Interstate Transfer) Amendment Act 2009 (No. 1 of 2009), assent 17 April 2009, with most operative provisions commencing 18 April 2009.
A reprint as at 24 July 2009 contains amendments up to that date.
Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (Pt. 3 Div. 14) (No. 20 of 2013), with commencement 25 November 2013.

Notable textual insertions and modifications indicated in the statutory text include provisions linked to the Cross‑border Justice Act 2008. The compilation endnote 1M states that under the Cross‑border Justice Act 2008 s 14, this Act must be applied with modifications prescribed by the Cross‑border Justice Regulations 2009 Part 3 Division 15 “as if this Act had been altered in that way.” The text marks with the superscript 1M any inserted provision or modification applied to give effect to that regime (for example, annotations for s 5A, 5B, 7A). The compilation table and the insertion notes identify where amendments were made and when.

When advising on the statutory regime it is necessary to consult the consolidated Act and any regulations (including the Cross‑border Justice Regulations 2009) to ensure the applicable modified text is applied. The Act’s compilation notes document the major legislative interventions through 2013, and the Act itself contains marginal notes indicating where provisions have been inserted or amended and their amending instruments (for example, s 5 and s 9A were inserted or amended by No. 1 of 2009; s 14 received amendments in 2004 and 2013).

The Act as provided does not contain case citations or judicial decisions. The statutory text preserves judicial routes for resolving disputes created by the Act, but it also constrains review in some areas.

Judicial pathways created by the Act: The Magistrates Court performs a statutory function to determine whether to issue a transfer order for trial (s 12-13). A person dissatisfied with a Magistrates Court decision under s 13 , whether the Attorney‑General, the prisoner, or any other person who requested or consented to the transfer , may apply to the Supreme Court within 14 days for a rehearing and review; the Supreme Court hears the matter by way of rehearing on the evidence, including additional evidence, and may substitute a new decision and issue an order to give effect to that decision (s 14(1)-(6)). The Act therefore establishes a statutory, time‑limited appeal/rehearing route for Magistrates Court transfer decisions.
Non‑reviewable administrative decisions: The Act expressly removes judicial review of certain ministerial decisions. Section 5(6) states that a decision by the Minister to issue, or not to issue, an order under Part II is not reviewable by a court or tribunal. That statutory bar is explicit and limits the availability of judicial challenge to Ministerial decisions under Part II (requests by prisoners for transfer at their own request). Other administrative decisions are not expressly immunised in the Act.
Absence of case names in the Act: The text of the Act supplied here contains no named cases or reported judicial decisions. For litigation history in practice, a researcher or practitioner must search databases of WA and federal courts and tribunal decisions for reported rulings applying the Act, including any judicial review litigation concerning Ministerial non‑reviewability, interpretation of “translated sentence” rules, remissions calculations under s 26(6)-(7) and s 27, and revocation of orders under s 32. The Act’s archive annotations and compilation table do not list judicial decisions.
Practical implications for litigation: The Act’s structure identifies the procedural nodes where litigation is likely to arise. These include (1) challenges to Magistrates Court refusals to order transfers (s 13) which are expressly appealable to the Supreme Court under s 14; (2) disputes about the operation of translated sentences, remissions and parole entitlements under s 25-27; (3) disputes concerning revocation of transfer orders under s 32; and (4) potential constitutional or administrative law challenges where the Minister’s decision‑making powers are engaged but limited by s 5(6). The Act also interacts with Commonwealth legislation in respect of joint prisoners; litigation may therefore involve constitutional or federal‑state interface arguments where Commonwealth transfer machinery alters applicability of WA provisions (see s 6, s 14A, s 19).

To establish the existing litigation landscape, practitioners must consult legal databases and case law repositories for WA Supreme Court, Court of Appeal and High Court decisions that reference the Act or its predecessor regimes, including any matters concerning the Cross‑border Justice Act modifications. The Act itself sets out the statutory rights of appeal and review that a litigant would use as procedural grounds.

The statutory text contains several potential operational pitfalls and legal limits that practitioners and administrators must explicitly address to avoid adverse outcomes.

Non‑reviewability of Minister’s decision in Part II (s 5(6)): The Act makes prisoner‑request decisions by the Minister under Part II non‑reviewable by a court or tribunal. That removes a judicial check for prisoner‑initiated transfer refusals. Practitioners advising prisoners must flag this statutory bar and consider alternative administrative avenues or political remedies.
Joint prisoners and Commonwealth sentence constraint (s 6, s 14A, s 19): Transfer orders have no effect in relation to a prisoner’s Commonwealth sentence component unless a corresponding transfer order exists under the Commonwealth Transfer of Prisoners Act 1983 or the transfer is authorised under that Act. Failure to secure corresponding Commonwealth mechanisms will mean the Commonwealth sentence component is not transferred, potentially fragmenting sentence administration and complicating parole and remissions calculations.
Governor declaration prerequisite (s 4): The Act’s operation with respect to another State depends on a Gazette order under s 4(1) declaring an interstate law and corresponding WA courts. If a jurisdiction has not been declared, transfer mechanics under this Act do not automatically apply. Administrative reliance on interstate reciprocity must confirm the existence of the s 4 declaration for the relevant interstate law and court matching.
One‑year bar for repeat requests (s 7): Prisoners who repeatedly request transfer within 12 months may have their requests not entertained. This is an administratively favourable rule for the state but restricts prisoner options; practitioners must time requests and plan appeals or political representations accordingly.
Discrepancy rules for sentence comparison (s 21(3)): When deciding whether to return a transferred prisoner to the original State under s 18, the Act prescribes rules for comparing periods (s 21(3)). Important technical points include: remissions are to be disregarded in comparisons (s 21(3)(a)); a finite sentence is treated as shorter than an indeterminate sentence (s 21(3)(b)); and special rules apply to translated sentences and cumulative sentencing (s 21(3)(c)-(e)). Incorrect calculation of remaining periods may lead to wrongful transfer orders or disputes.
Deemed sentences and limited review (s 25-26): When foreign sentences are deemed imposed in WA, s 26(3) expressly provides that nothing in the Act permits in WA any appeal or review of convictions, judgments, sentences or minimum terms made by a court of a participating State. This limits legal remedies in WA for those contesting the original State’s sentencing decisions. Practitioners must pursue appeals in the originating jurisdiction.
Remission proportionality and accounting duties (s 26(6), s 27): The Act preserves remissions earned up to the time of transfer but requires proportional adjustment where remissions relate to periods greater than actually served (s 26(6)(b)). Superintendents must remit payments for translated default imprisonment to the corresponding Minister of the original State (s 27(1)(b)). Administrative failure to correctly calculate remissions or to remit funds will create compliance liabilities.
Information transmission burden (s 24): The Minister must cause detailed reports and documents to be sent to the receiving State (s 24(1)). The specified content is broad , convictions, sentences, minimum terms, periods served, entitlement to remissions, parole grants, conduct records. Failure to provide accurate or complete materials may hamper the receiving State’s capacity to lawfully enforce and compute the translated sentence.
Escapes and criminal liability cross‑references (s 30-31): A person who escapes in transit faces up to three years’ imprisonment (s 31(1)). However, exceptions apply where Commonwealth provisions control (s 31(3)), and s 30(2a) excludes persons to whom s 47 of the Crimes Act applies via the Commonwealth Transfer of Prisoners Act. Operational staff must assess which statutory regime governs a particular transferred person.
Ministerial discretion and unspecified factors (s 9A, s 21(2A)): The Act lists matters the Minister may have regard to (s 9A; s 21(2A)). These include prisoner welfare, administration of justice, prison security, safe custody and community protection. These are open‑ended and may produce inconsistent application absent internal policies and transparent criteria.
Practical constraint: timing and consents (s 11): Orders for trial transfer require written consents from the WA Attorney‑General and, in the case of transfers to a participating State, the Attorney‑General of that State, and possibly the Commonwealth Attorney‑General for Territory or Commonwealth arrest warrant cases (s 11(1)). Delays in obtaining written consents can materially delay transfers, court hearings and custody logistics.

Each of these “gotchas” is an operational or legal trap available directly from the Act’s text. Practitioners should build checklists, timelines, and intergovernmental confirmation steps into their workflows to manage these statutory constraints.

To operate within the Act’s requirements and minimise legal and administrative risk, agencies and practitioners should follow a stepwise compliance checklist and establish documentation and governance processes.

Confirm applicability and participating status
- Verify whether the target jurisdiction is a “participating State” for WA’s purposes by checking for a Governor’s order under s 4(1) that declares the relevant interstate law and corresponding WA courts. If such an order does not exist, the Act’s interstate mechanisms for that State do not operate.
Determine prisoner category and sentence status
- Ascertain whether the person is a State prisoner, joint prisoner, or excluded because they have completed their sentence (s 3(1), s 3(6)-(7)).
- Identify whether any sentence components are Commonwealth sentences; if so, coordinate with the Commonwealth Transfer of Prisoners Act, because the Act’s transfer effect for joint prisoners is limited until corresponding Commonwealth transfer orders are in force (s 6, s 14A, s 19).
For prisoner‑initiated transfers (Part II)
- Receive the prisoner’s written request and ensure it is not within one year of a previous similar request (s 5(1), s 7).
- The Minister should form a reasoned opinion, considering matters listed in s 9A (prisoner welfare, justice administration, prison security, safe custody, community protection, and other relevant matters).
- If the Minister decides to proceed, prepare and send a written request to the corresponding Minister in the participating State (s 5(1)(c)) or to the Commonwealth Attorney‑General for Territories (s 5(1)(d)).
- Await written consent. Use s 11(2) evidentiary certificates where prescribed officers certify required consents have been given.
- If consent is received, the Minister may issue an order of transfer; note s 5(6) that the Minister’s decision to issue or not is non‑reviewable.
For transfers for trial (Part III)
- Ensure required written consents are obtained before issuing an order (s 11(1)). The Attorney‑General’s consent is essential.
- When consents and conditions of s 11(1) are proved, the Magistrates Court must order the superintendent to bring the prisoner before it for determination (s 12(1)).
- Provide notice of the Magistrates Court order to the Attorney‑General, chief executive officer and the prisoner (s 12(2)).
- Ensure the prisoner is aware of the right to legal representation at the hearing (s 12(3)(a)).
- If the Magistrates Court refuses under s 13(b), consider the 14‑day Supreme Court review procedure (s 14).
Document and provide required information on transfer (s 24)
- Prepare the order of transfer and certified copies of warrants or other authority for commitment for any sentences served or liable to be served (s 24(1)(a)-(b)).
- Compile a comprehensive report containing convictions, sentences, minimum terms, periods served, remissions entitlements, parole grants, and conduct records (s 24(1)(c)). Update the receiving State in writing of any subsequent variations (s 24(1)(d)).
- Use certified copies where the Act requires certification (s 24(2)).
Custody and escort arrangements (s 22, s 29)
- Ensure the chief executive officer issues directions to deliver the prisoner to an authorised escort (s 22(1)(a)).
- Confirm the escort’s legal authority: prison officer, police member, or Minister‑appointed person in writing (s 22(2)).
- For transit through WA under an interstate order, ensure the escort produces a certified copy of the order if requesting the superintendent to receive and detain the person temporarily (s 29(1)(b)). Ensure chief executive officer approval for superintendent action (s 29(1)(b)(iii)).
Manage remissions and translated sentence calculations (s 26-27)
- Where translated sentences apply, record time served in originating State and treat those periods as served in WA (s 26(6)(a)).
- Calculate remissions carefully: remissions earned up to transfer are preserved but proportional adjustments may be required where remissions relate to a greater period than actually served (s 26(6)(b)). Apply further WA remissions for the balance of the term (s 26(6)(c)).
- For translated default imprisonment, apply proportional reductions on any payments received and remit funds to the corresponding Minister of the original State (s 27(1)(a)-(b)). If a reduction or quashing of the debt occurs in the originating State, adjust the term accordingly under s 27(2).
Notification and prisoner rights (s 28)
- The Attorney‑General must advise a prisoner of decisions made for the purposes of the Act (s 28). Ensure written notifications are timely and recorded.
Escape risk mitigation and enforcement readiness (s 30-32)
- Implement protocols to prevent escape during transit and to ensure immediate apprehension procedures are followed where escape occurs. Ensure readiness for warrant applications to a justice and for potential revocation of transfer orders by the Magistrates Court (s 30(1)-(4); s 32).
- Advise escorts and police of evidence‑preserving steps and of statutory powers to apprehend without warrant (s 30(1)).
Recordkeeping, audit and intergovernmental coordination
- Maintain auditable records of requests, consent documents, certificates, orders, reports, remissions calculations, payments remitted, notifications to prisoners, and communications with corresponding Ministers and Attorneys‑General, as required by s 24 and s 27.
- Coordinate with the Commonwealth and other States to ensure corresponding transfer orders for joint prisoners and compliance with Cross‑border Justice modifications (see compilation note 1M).
Policy and criteria documentation
- Because the Minister’s discretion may take into account broad matters (s 9A, s 21(2A)), agencies should document consistent policy criteria to apply the statutory factors and to create transparent decision records.
Regulatory compliance
- Review any regulations made under s 34 and Cross‑border Justice Regulations 2009 modifications to ensure statutory compliance and application of any procedural modifications.

Following these steps, with careful documentation, intergovernmental confirmations, and rigorous remissions accounting, will materially reduce legal risk and operational error when implementing transfers under the Act.

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