Transfers
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Decisions about transfers between Victorian prisons are made with reference to regulation 31 of the Corrections Regulations.
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In some circumstances, a person can be transferred from a prison in Victoria to a prison in another Australian state or territory, and vice versa. The relevant legislation governing interstate transfers for adults is the Prisoners (Interstate Transfer) Act 1983 (Vic) (‘PIT Act’) and schedule 2 of the Children, Youth and Families Act 2005 (Vic) allows for the interstate transfer of children.
The legislation relating to the interstate transfer of people in prison is the same in each Australian state and territory.
The PIT Act provides for:
a person to be transferred interstate for the purpose of criminal proceedings (ss 12–19); and
a person to request to be transferred to a prison in another state or due to their welfare; the administration of justice, security and good order of any prison; the safe custody of the person in prison and the protection of the community, and any other ma er the minister considers to be relevant (s 7).
The Parole Orders (Transfer) Act 1983 (Vic) (‘Parole Orders Act’) also allows Victoria to transfer parole arrangements to other states and territories in certain circumstances. The state or territory that is receiving the person must be willing to accept them.
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The International Transfer of Prisoners Act 1997 (Cth) (‘ITP Act’) provides the legal framework for the international transfer of people in prison to and from Australia so they may serve their sentence of imprisonment in their home country (ss 7, 8). The Victorian Parliament has given effect to the ITP Act by passing the International Transfer of Prisoners (Victoria) Act 1998 (Vic).
A transfer can only occur to and from countries that have signed the relevant international bilateral treaties (e.g. the Council of Europe’s Convention on the Transfer of Sentenced Persons (1983)). Before a transfer takes place, it must be approved by the Australian Government and the government of the foreign country and be consented to by the person in prison.
The following conditions need to be satisfied for an international transfer to take place:
there must be at least six months of the person’s sentence remaining (or one year for some countries);
the person’s sentence and/or conviction must not be subject to appeal; and
the person’s offence is also an offence in the country to which they seek to be transferred.
Transfers
Chapter: 3.8: Imprisonment and the rights of people in prison
Contributor: Amity Mara, Manager – Policy, Advocacy and Projects Fitzroy Legal Service and Monique Hurley, Associate Legal Director, Human Rights Law Centre
Current as of: 1 September 2024
Law Handbook Page: 202
Next Section: Temporary leave of absence
