An Act to make provision for the establishment regulation and control of correctional centres and for the custody of inmates; to repeal the Prisons Act 1899, the Prisoners Detention Act 1908 and certain other Acts; to amend the Habitual Criminals Act 1905 and certain other Acts; and for purposes connected therewith.
long title: Am 1996 No 25, Sch 5 [1].
Part 1 Preliminary
1 Name of Act and commencement
(1) This Act is the Correctional Centres Act 1952.(2) This Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette.s 1: Am 1996 No 25, Sch 5 [2].
2 (Repealed)
s 2: Am 1968 No 42, sec 2 (a); 1983 No 132, Sch 1 (1). Rep 1986 No 188, Sch 3 (1).
3 Repeals and savings
(1) The enactments mentioned in Schedule 1 are to the extent therein expressed hereby repealed.(2)(a) All persons appointed or continued in office under or by virtue of the provisions of any enactment hereby repealed and holding office immediately before the commencement of this Act shall remain in office as if this Act had been in force at the date of their appointment and they had been appointed or employed hereunder, and this Act shall apply to them accordingly.(b) The period before the commencement of this Act during which any such person held office shall be counted as service for the purposes of the Public Service Act 1902 and of section 13 of the Public Service (Amendment) Act 1919. But this paragraph shall not be construed to entitle any such person to claim, in respect of the same period of service, benefits under the Public Service Act 1902 or the Public Service (Amendment) Act 1919 and also benefits under any other Act.(c) Nothing in this section shall affect any rights which at the commencement of this Act have accrued or are accruing under the Superannuation Act 1916 to any such person.(3) (Repealed)(4) All gaols, prisons and places of detention enumerated in Schedule 2 and used and occupied as such immediately before the commencement of this Act shall be deemed to be correctional centres under this Act.(5) Schedule 8 has effect.s 3: Am 1978 No 155, Schs 1 (1), 3 (1); 1986 No 188, Sch 3 (2); 1996 No 25, Sch 5 [3].
4 Definitions
(1) In this Act, unless the context or subject matter otherwise indicates or requires:Chief Executive Officer, Corrections Health Service means the person for the time being holding office as the Chief Executive Officer of the Corrections Health Service.Commissioner means the Commissioner of Corrective Services holding office as such under Part 2 of the Public Sector Management Act 1988.convicted inmate means:(a) a person under sentence of imprisonment imposed by any court, judge or justice or ordered to be detained in strict custody pursuant to section 25 or 39 of the Mental Health (Criminal Procedure) Act 1990, or(b) a person undergoing imprisonment in default of payment of any fine, penalty, costs or sum of money imposed on the person by any court, judge or justice, or in default of entering into a recognizance to be of good behaviour on the order of any court, judge or justice.correctional centre includes:(a) any premises or place declared to be a correctional centre by a proclamation made under section 5, andbut does not include a detention centre within the meaning of the Children (Detention Centres) Act 1987.(b) any gaol or place of detention, irrespective of the title by which it is known,correctional centre offence means a correctional centre offence declared under section 23.correctional complex means any premises or place declared to be a correctional complex by virtue of a proclamation in force under section 5.correctional officer means an officer appointed or employed in accordance with Part 6.Corrections Health Service means the Corrections Health Service specified in Schedule 2 to the Health Services Act 1997 and constituted as a statutory health corporation under that Act.Department means the Department of Corrective Services.Deputy Commissioner means a Deputy Commissioner of Corrective Services holding office as such under Part 2 of the Public Sector Management Act 1988.governor of a correctional centre means the superintendent, governor, gaoler or other officer or person for the time being in charge of the centre.ICAC means the Independent Commission Against Corruption constituted by the Independent Commission Against Corruption Act 1988.inmate means:(a) any convicted inmate, or(b) any person ordered to be imprisoned in or committed to a correctional centre, otherwise than as referred to in the definition of convicted inmate, by any court, judge or justice or other competent authority or otherwise than under the Intoxicated Persons Act 1979.Inspector-General means the Inspector-General appointed under section 11B.Management Committee means the Serious Offenders Management Committee established under section 63.management company has the meaning given by section 31B (1).medical officer means, in relation to a correctional centre, a person who pursuant to section 9 has been appointed or is acting as such.Parole Board means the Parole Board constituted by the Sentencing Act 1989.prescribed means prescribed by this Act or by the regulations made thereunder.Review Council means the Serious Offenders Review Council constituted by section 60.(2) In this Act:(a) a reference to a function includes a reference to a power, authority and duty, and(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.s 4: Am 1957 No 19, sec 11 (1); 1964 No 74, Sch 2; 1966 No 43, sec 2; 1970 No 6, sec 2 (1) (a); 1977 No 43, Sch 4 (1); 1978 No 155, Schs 1 (2), 2 (1), 3 (2); 1979 No 69, sec 3; 1983 No 132, Sch 1 (2); 1985 No 59, Sch 1; 1985 No 231, Sch 20 (1); 1986 No 188, Schs 2 (1), 3 (3); 1987 No 58, Sch 3; 1988 No 46, Schs 1 (1), 2 (1); 1988 No 131, Sch 18 (1); 1989 No 219, Sch 1 (1); 1990 No 11, Sch 2; 1990 No 107, Sch 1 (1); 1990 No 108, Sch 1; 1991 No 94, Sch 1; 1993 No 89, Sch 1 (1); 1993 No 108, Sch 2; 1994 No 32, Sch 1; 1995 No 36, Sch 6; 1996 No 25, Sch 5 [4]; 1997 No 18, Sch 1 [1]; 1997 No 154, Sch 6.7; 1999 No 94, Sch 4.94 [1].
Part 2 Establishment and control of correctional complexes and correctional centres
pt 2, hdg: Am 1997 No 55, Sch 2.3 [1].
5 Correctional complexes and correctional centres
(1) The Governor may, by proclamation, declare any premises or place specified or described in the proclamation to be a correctional complex for the purposes of this Act.(2) The Governor may, by the proclamation by which any premises or place is declared to be a correctional complex or by a subsequent proclamation, give a name to the correctional complex.(3) The Governor may, by the proclamation by which any premises or place is declared to be a correctional complex or by a subsequent proclamation, declare any part of the correctional complex to be a correctional centre for the purposes of this Act.(4) The Governor may, by proclamation, declare any premises or place specified or described in the proclamation, to be a correctional centre for the purposes of this Act.(5) The Governor may, by the proclamation by which any premises or place or any part of a correctional complex is declared to be a correctional centre or by a subsequent proclamation, give a name to the correctional centre.(6) The Governor may, by proclamation, vary or revoke any proclamation under this section.s 5: Am 1978 No 155, Sch 1 (3); 1980 No 88, sec 2 (a). Subst 1988 No 46, Sch 2 (2). Am 1996 No 25, Sch 5 [5]–[8]; 1998 No 54, Sch 2.5 [1].
5A (Repealed)
s 5A: Ins 1980 No 88, sec 2 (b). Am 1986 No 218, Sch 32. Rep 1988 No 46, Sch 2 (2).
6 Commissioner
(1) (Repealed)(2) The Commissioner has, subject to the direction and control of the Minister, the functions conferred or imposed on the Commissioner by or under this or any other Act.(3) The Commissioner has the care, direction, control and management of all correctional centres and correctional complexes.(4) The Commissioner may, either alone or in conjunction with other persons or organisations, make provision for the training, welfare and aftercare of inmates.s 6: Am 1970 No 6, sec 2 (1) (b). Subst 1978 No 155, Sch 1 (4); 1988 No 46, Sch 1 (2). Am 1995 No 36, Sch 6; 1996 No 25, Sch 5 [9].
7 Deputy Commissioners
(1) (Repealed)(2) A Deputy Commissioner has the functions conferred or imposed on a Deputy Commissioner by or under this or any other Act.(3) A Deputy Commissioner is responsible to the Commissioner for the due exercise of the Deputy Commissioner’s functions.s 7: Am 1966 No 43, sec 3 (a); 1970 No 6, sec 2 (2); 1978 No 155, sec 5 (a). Subst 1988 No 46, Sch 1 (2). Am 1995 No 36, Sch 6.
7A–7D (Repealed)
s 7A: Ins 1978 No 155, Sch 1 (5). Am 1986 No 188, Sch 3 (4). Subst 1988 No 46, Sch 1 (2). Rep 1995 No 36, Sch 6.
s 7B: Ins 1978 No 155, Sch 2 (2). Am 1984 No 153, Sch 16. Rep 1988 No 46, Sch 1 (2).
s 7C: Ins 1978 No 155, Sch 2 (2). Rep 1988 No 46, Sch 1 (2).
s 7D: Ins 1978 No 155, Sch 2 (2). Rep 1988 No 46, Sch 1 (2).
8 Savings as to powers of Sheriff
Nothing in this Act shall abridge or otherwise affect the powers, authorities, duties and functions vested in or imposed upon the Sheriff by or under any statute or at common law in relation to inmates.s 8: Am 1996 No 25, Sch 5 [10].
8A Official Visitors
(1) For each correctional centre, the Minister is to appoint at least one Official Visitor.(2) Any such appointment shall be notified in the Gazette.(3) The following persons are not eligible to be Official Visitors:(a) a person employed as an officer or temporary employee in the Department of Corrective Services, or(b) a person who is to any extent responsible for the management of, or who is employed at or in connection with, a correctional centre, or(c) a person having any interest in a contract under Part 6A, or(d) a person who has not made a declaration under clause 3A of Schedule 4A.(4) An Official Visitor:(a) shall visit the correctional centre in respect of which the Official Visitor is appointed at least once each month for the purpose of giving interviews to correctional officers and inmates and, unless prevented by illness or other sufficient cause, for the purpose of examining the correctional centre, and(b) may visit the correctional centre at any other time unless, in the opinion of the governor of the correctional centre, a visit would be undesirable for reasons of security, and(c) shall, in accordance with the regulations, receive and deal with complaints, and(d) shall, in accordance with the regulations, report at least once every 6 months to the Minister, and(e) shall have such other functions as may be prescribed.(4A) The Minister may refer a report received under this section to the Inspector-General for investigation or comment.(5) Schedule 4A has effect with respect to Official Visitors.s 8A: Ins 1988 No 46, Sch 2 (3). Am 1990 No 107, Sch 1 (2); 1993 No 89, Sch 4 (1); 1996 No 25, Sch 5 [10]–[13]; 1997 No 18, Sch 1 [2].
8B Disclosure of information
An Official Visitor shall not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made:(a) with the consent of the person from whom the information was obtained, or(b) in connection with the administration or execution of this Act, or(c) for the purposes of any legal proceedings arising out of this Act, or(d) in accordance with a requirement of the Ombudsman Act 1974, or(e) with other lawful excuse.Maximum penalty: 10 penalty units.s 8B: Ins 1988 No 46, Sch 2 (3). Am 1990 No 107, Sch 1 (2).
9 Medical officers
(1) The Governor may, upon the recommendation of the Minister for Health and with the concurrence of the Minister, appoint one or more medical officers for each correctional centre.(2) The provisions of the Public Sector Management Act 1988 shall not apply to or in respect of the appointment of medical officers to whom the right of private practice is reserved and any such medical officer shall not in his or her capacity as a medical officer be subject to the provisions of that Act during his or her tenure of office.(3) Where a medical officer is for any reason unable to act as such any person who is a legally qualified medical practitioner and is a partner with such medical officer in the practice of medicine or who is carrying on the medical practice of such medical officer as locum tenens may exercise and discharge the powers, authorities, duties and functions of the medical officer who is unable to act as such. Such person shall whilst so exercising and discharging such powers, authorities, duties and functions be deemed to be the medical officer.(4) Where no medical officer has been appointed to a correctional centre pursuant to subsection (1) the medical officer of health appointed under the Public Health Act 1991 for the medical district under that Act in which the correctional centre is situated, shall be the medical officer for that correctional centre.(5) Where the medical officer appointed under subsection (1) is for any reason unable to act as such and there is no person in partnership with such medical officer or acting as locum tenens as referred to in subsection (3), or where the person who may exercise and discharge the powers, authorities, duties and functions of the medical officer under subsection (3) fails or is unable to act as medical officer, the medical officer of health appointed under the Public Health Act 1991 for the medical district under that Act in which the correctional centre in respect of which the medical officer has been appointed is situated, shall exercise and discharge the powers, authorities, duties and functions of such medical officer and shall whilst so exercising and discharging such powers, authorities, duties and functions be deemed to be the medical officer for that correctional centre.(6) A medical officer is, in the exercise of his or her functions, subject to the control and direction of the Chief Executive Officer, Corrections Health Service. However, if the Chief Executive Officer is not a medical practitioner, the medical officer is subject to the control and direction of the most senior medical administrator in the Corrections Health Service.s 9: Am 1966 No 43, sec 3 (b); 1970 No 6, sec 4 (a); 1975 No 65, sec 9; 1978 No 155, Sch 3 (3); GG No 73 of 2.5.1986, p 1928; 1988 No 131, Sch 18 (2); 1990 No 108, Sch 1; 1990 No 123, Sch 2 (am 1991 No 94, Sch 2); 1994 No 32, Sch 1; 1996 No 25, Sch 5 [14].
10 Visiting Justices
(1) For each correctional centre there shall be a Visiting Justice, being a Magistrate appointed by the Chief Magistrate.(2) A Visiting Justice may visit the correctional centre at any time he or she thinks fit.(3) A Visiting Justice may and shall, when requested so to do by the Minister or the Commissioner, inquire into and report to the Minister or the Commissioner, as the case may be, upon any matter relating to the security, good order, control or management of the correctional centre in respect of which he or she is the Visiting Justice.s 10: Am 1970 No 6, sec 2 (2); 1978 No 155, sec 5 (a); 1988 No 46, Schs 1 (3), 2 (4); 1993 No 89, Sch 4 (2), 1996 No 25, Sch 5 [14].
11 Inspection by Judge or Magistrate
Any Judge of the Supreme Court or District Court, and any Magistrate, may visit and examine any correctional centre or correctional complex at any time he or she may think fit.s 11: Am 1978 No 155, Sch 3 (4); 1988 No 46, Sch 2 (5); 1996 No 25, Sch 5 [15].
11A Inquiries
(1) Without affecting section 10 (3), the Minister may appoint a person, having such qualifications and experience as may be determined by the Minister, to inquire into and report to the Minister upon any matter relating to the security, good order, control or management of a correctional centre.(2) For the purposes of an inquiry by a Visiting Justice under section 10 (3) or an inquiry by a person appointed under subsection (1), the Visiting Justice or person shall have the powers, authorities, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923 and the provisions of that Act, with the exception of section 13 and Division 2 of Part 2, shall, with any necessary adaptations, apply to and in respect of the inquiry and to or in respect of any witness or person summoned by or appearing before the Visiting Justice or person appointed under subsection (1).(3) It is a reasonable excuse for the purposes of section 11 (2) (a) of the Royal Commissions Act 1923 as applied by subsection (2) for a person:(a) to refuse or fail to answer a question put to the person at an inquiry, orthat the answer to the question, or the production of the document or other thing, as the case may be, might tend to incriminate the person.(b) to refuse or fail to produce a document or other thing that the person was required to produce at an inquiry,(4) A Visiting Justice or person appointed under subsection (1) in conducting an inquiry is not bound by the rules of evidence but may inform himself or herself on any matter in such manner as the Visiting Justice or person thinks appropriate.(5) A Visiting Justice or person appointed under subsection (1) in conducting an inquiry may, in respect of a matter not dealt with by or under this Act, give directions as to the procedure to be followed at or in connection with the inquiry.s 11A: Ins 1986 No 109, Sch 1 (1). Am 1987 No 48, Sch 31; 1996 No 25, Sch 5 [14].
Part 2A Inspector-General of Corrective Services
Division 1 Appointment of Inspector-General and staff
pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
11B Inspector-General of Corrective Services
(1) The Governor may appoint an Inspector-General of Corrective Services.(2) The following persons are not eligible to be appointed as Inspector-General:(a) a person who is, or has been within the previous 3 years, employed as an officer or temporary employee of the Department,(b) a person who is to any extent responsible for the management of, or who is employed at or in connection with, a correctional centre,(c) a person who has, or who has had, any interest in an agreement under Part 6A.(3) Schedule 3 has effect with respect to the Inspector-General.pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
11C Staff of Inspector-General
(1) Such staff as may be necessary to assist the Inspector-General may be employed under Part 2 of the Public Sector Management Act 1988.(2) The Inspector-General may engage consultants for the purposes of giving expert advice.(3) The Inspector-General may arrange for the use of the services of any staff (by secondment or otherwise) or facilities of the Department, any other government department or a public or local authority.(4) For the purposes of this Act, a person who is a member of staff referred to in subsection (1) or whose services are made use of under this section is taken to be an officer of the Inspector-General.pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
Division 2 Functions of Inspector-General
pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
11D Definitions
In this Division:correctional centre includes a correctional centre that is being managed under an agreement in accordance with Part 6A.Department includes a correctional centre.officer of the Department includes a correctional officer or a person employed for the purposes of an agreement in accordance with Part 6A.pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
11E Principal functions of Inspector-General
(1) The principal functions of the Inspector-General are (subject to this Part):(a) to investigate any aspect of the operations of the Department or any conduct of officers of the Department, and(b) to investigate and attempt to resolve complaints made by any person relating to matters within the administration of the Department, and(c) to encourage the mediation and informal resolution of complaints relating to matters within the administration of the Department, and(d) to train Official Visitors appointed under section 8A, and(e) to examine reports of Official Visitors referred to the Inspector-General by the Minister and to investigate or comment on those reports, and(f) to examine reports received from monitors appointed under section 31E and to investigate or comment on those reports, and(g) to examine reports received from the Community Advisory Council appointed under section 31E and make recommendations to the Minister in relation to those reports, and(h) to investigate a matter within the administration of the Department if directed to do so by the Minister, and(i) to promote integrity and professionalism among officers of the Department, and(j) to assess the effectiveness and appropriateness of the procedures of the Department, and(k) to provide independent monitoring and auditing of contracts entered into by the Department with private contractors, and(l) to oversee contracts for community-based post-release services, and(m) to make recommendations to the Minister on ways in which the procedures of the Department could be improved, and(n) to facilitate a coroner’s inquiries into a death or suspected death in a correctional centre.(2) The functions of the Inspector-General relating to the investigation of complaints may be exercised on the Inspector-General’s own initiative, at the request of the Minister, in response to a complaint made to the Inspector-General or in response to a reference by the Ombudsman, the ICAC or any other agency.(3) The Inspector-General has such other functions as are conferred or imposed on the Inspector-General by or under this or any other Act.pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
11F Powers of Inspector-General
For the purpose of exercising the Inspector-General’s functions, the Inspector-General:(a) is entitled to full access to the records of the Department and to take or have copies made of any of them, and(b) may visit and examine any premises of the Department at any time the Inspector-General thinks fit, and(c) may require officers of the Department to supply information or produce documents or other things about any matter, or any class or kind of matters, relating to the Department’s operations or any conduct of officers of the Department, and(d) may require officers of the Department to attend before the Inspector-General to answer questions or produce documents or other things relating to the Department’s operations or any conduct of officers of the Department, and(e) may refer matters relating to the Department or officers of the Department to investigation units within the Department or to other appropriate agencies for consideration or action, and(f) may recommend disciplinary action or criminal prosecution against officers of the Department, and(g) is entitled to be given access to inmates of correctional centres for the purpose of questioning them and obtaining information from them, and(h) may undertake systematic inspections of correctional centres.pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
11G Incidental powers
The Inspector-General has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of the Inspector-General’s functions. Any specific powers conferred on the Inspector-General by this Act are not taken to limit by implication the generality of this section.pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
11H Limitations on Inspector-General’s functions
(1) The Inspector-General cannot exercise functions in relation to the following matters:(a) a matter that is the subject of an inquiry under section 10 (3) or 11A,(b) a complaint about the conduct of a public authority that is listed in Schedule 1 to the Ombudsman Act 1974 as being excluded from the operation of that Act,(c) a complaint about a decision, procedure or member of the Parole Board or the Review Council.(2) Subsection (1) (b) does not affect the powers of the Inspector-General in relation to the recommendation of disciplinary action or criminal prosecution against officers of the Department.(3) If the Inspector-General receives a complaint that would fall within the charter of an investigation unit within the Department, the Inspector-General must refer the complaint to the investigation unit unless directed to deal with the complaint by the Minister.(4) Nothing in subsection (3) prevents the Inspector-General from:(a) monitoring the way in which a complaint is dealt with by an investigation unit within the Department, or(b) recommending that the Minister direct investigation of a complaint by the Inspector-General or another investigative body, or(c) requiring a copy of any report by any investigation unit within the Department and making recommendations with respect to the report.(5) The Inspector-General must notify the Commissioner if the Inspector-General is directed to deal with a complaint under subsection (3).pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
11I Discretion of Inspector-General to investigate complaints
(1) The Inspector-General may decide not to investigate a complaint or to discontinue the investigation of a complaint for any reason that the Inspector-General considers appropriate.(2) Without limiting the generality of subsection (1), the Inspector-General may decide not to investigate a complaint or may discontinue the investigation of a complaint if the Inspector-General considers that:(a) the complaint is frivolous, vexatious or not in good faith, or(b) the subject-matter of the complaint is trivial, or(c) the conduct complained of occurred at too remote a time to justify investigation, or(d) there is or was available to the complainant an alternative and satisfactory means of redress, or(e) the complainant has no interest or an insufficient interest in the conduct complained of.(3) This section does not apply to any matter that is referred to the Inspector-General for investigation or other action under Part 5 of the Independent Commission Against Corruption Act 1988.pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
Division 3 Relationship of Inspector-General with other agencies
pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
11J Relationship with Ombudsman regarding investigations
(1) Functions of Inspector-General in relation to matters under Ombudsman Act 1974 The Inspector-General must not investigate a matter on complaint or on the Inspector-General’s own initiative if the matter could be the subject of a complaint under the Ombudsman Act 1974 until the Inspector-General has entered into arrangements with the Ombudsman under this section.(2) Arrangements may be entered into The Inspector-General and the Ombudsman may enter into arrangements regarding:(a) matters the subject of a complaint, inquiry, investigation or other action under the Ombudsman Act 1974 about which the Ombudsman will notify the Inspector-General, and(b) matters about which the Inspector-General will notify the Ombudsman that could be made the subject of such a complaint, inquiry, investigation or other action, and(c) the handling of such complaints, inquiries, investigations or other matters by the Inspector-General that could be dealt with by the Ombudsman under that Act.(3) Arrangements to be observed The Inspector-General and the Ombudsman are empowered and required to exercise their functions in conformity with any relevant arrangements entered into under this section.pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
11K Relationship with ICAC regarding investigations
(1) Duty of Inspector-General to report corrupt conduct to ICAC The Inspector-General has the same duty to report to the ICAC any matter that the Inspector-General suspects on reasonable grounds concerns or may concern corrupt conduct as the principal officer of an authority has under section 11 of the Independent Commission Against Corruption Act 1988.(2) Functions of Inspector-General in relation to matters under Independent Commission Against Corruption Act 1988 The Inspector-General must not exercise functions in relation to any such matter unless authorised to do so by arrangements entered into under this section.(3) Arrangements may be entered into The Inspector-General and the ICAC may enter into arrangements regarding:(a) matters about which the ICAC will notify the Inspector-General where the ICAC suspects misconduct of an officer of the Department exists, and(b) the handling of matters by the Inspector-General that may involve misconduct of an officer of the Department and that could be dealt with by the ICAC under that Act.(4) Arrangements to be observed The Inspector-General and the ICAC are empowered and required to exercise their functions in conformity with any relevant arrangements entered into under this section.pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
11L Functions of Inspector-General under Protected Disclosures Act 1994
A reference in the Protected Disclosures Act 1994 to the principal officer of a public authority includes, where the public authority concerned is the Department of Corrective Services, a reference to the Inspector-General.pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
Division 4 Miscellaneous
pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
11M Reports of Inspector-General
(1) The Inspector-General must make an annual report in writing to the Minister on the operations of the Inspector-General and must make such other reports to the Minister as the Minister requires.(2) The annual report of the Inspector-General is to be included in the annual report of the Department of Corrective Services next following the date that the Inspector-General’s report is submitted to the Minister.pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
11N Obstruction of Inspector-General
A person must not:(a) without reasonable excuse, wilfully obstruct, hinder, resist or threaten the Inspector-General or an officer of the Inspector-General in the exercise of functions under this Act, or(b) without reasonable excuse, refuse or wilfully fail to comply with any lawful requirement of the Inspector-General or an officer of the Inspector-General, or(c) wilfully make any false statement to or mislead, or attempt to mislead, the Inspector-General or an officer of the Inspector-General in the exercise of functions under this Act.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
11O Protection from liability
A matter or thing done or omitted to be done by the Inspector-General, an officer of the Inspector-General or a person acting under the direction of the Inspector-General does not, if the matter or thing was done or omitted in good faith for the purpose of executing this or any other Act, subject the Inspector-General, officer or person so acting personally to any action, liability, claim or demand.pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
11P Delegation
The Inspector-General may delegate the exercise of any of the Inspector-General’s functions to an officer of the Inspector-General.pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
11Q Review of Part
(1) The Minister is to review this Part to evaluate the Inspector-General’s contribution to the operation of the State’s correctional system.(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to the Correctional Centres Amendment (Inspector-General) Act 1997.(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
11R Expiration of position of Inspector-General
(1) A person must not be appointed to the position of Inspector-General after the period of 5 years from the commencement of section 11B.(2) A person who holds the office of Inspector-General on the day that is 5 years from the commencement of section 11B ceases to hold office on that day.(3) Subsections (1) and (2) do not operate if an Act of Parliament, or a resolution of both Houses of Parliament, so provides.pt 2A, divs 1–4 (ss 11B–11R): Ins 1997 No 18, Sch 1 [3].
Part 3 Treatment of inmates
pt 3, hdg: Am 1996 No 25, Sch 5 [16].
12 Exercise
(1) Every inmate shall be allowed so much exercise in the open air as is prescribed or where a medical officer in any particular case orders otherwise so much exercise as is so ordered.(2) Inmates may engage in such active sport or leisure activity as may be provided for them by the Commissioner (or, in the case of a correctional centre which is managed under an agreement in accordance with Part 6A, by the Commissioner or the management company) and may participate with or compete against civilians or other inmates in sport or leisure activities on correctional centre grounds or elsewhere as approved by the Commissioner and may:(a) with, ororders as required by that section, be permitted to be temporarily absent from the correctional centre for such purposes.(b) notwithstanding section 29, without,(3) An inmate shall not be taken to be absent from a correctional centre merely because the inmate is in some other part of a correctional complex of which the correctional centre forms part.s 12: Am 1966 No 43, sec 4 (a); 1970 No 6, sec 2 (2); 1988 No 46, Schs 1 (3), 2 (6); 1990 No 107, Sch 1 (3); 1990 No 108, Sch 1; 1996 No 25, Sch 5 [17]–[22].
13 Clothing
(1) Every inmate is to be clothed with sufficient clothing to maintain health and decency.(2) Sufficient clothing as required by this section for:(a) every convicted inmate, andis to be supplied (except to the extent that provision is otherwise made by an agreement in force under Part 6A) at the public expense.(b) every inmate who, although not a convicted inmate, is not permitted by the governor of the correctional centre in which the inmate is detained to wear the inmate’s own clothing,s 13: Subst 1990 No 107, Sch 1 (4). Am 1996 No 25, Sch 5 [23].
14 Diet
(1) Every inmate is to be supplied with sufficient food to maintain health.(2) Sufficient food as required by this section is to be supplied (except to the extent that provision is otherwise made by an agreement in force under Part 6A) at the public expense.s 14: Am 1985 No 26, Sch 1 (1). Subst 1990 No 107, Sch 1 (4). Am 1996 No 25, Sch 5 [24].
15 Separation of inmates
To the fullest extent reasonably practicable, convicted inmates shall be separated from other inmates, and different classes of convicted inmates and different classes of other inmates shall be separated as prescribed.s 15: Am 1996 No 25, Sch 5 [25].
16 Medical attention
(1) Every inmate shall be supplied with such medical attendance, treatment and medicine as in the opinion of a medical officer is necessary for the preservation of the health of the inmate and of other inmates and of correctional officers, and may be so supplied with such medical attendance, treatment and medicine as in the opinion of the Commissioner will alleviate or remedy any congenital or chronic condition which may be a hindrance to rehabilitation.(2) Where in the opinion of a medical officer the life or health of an inmate is likely to be endangered or seriously prejudiced by the failure of such inmate to undergo medical treatment or the life or health of any other inmate or correctional officer is likely to be endangered or seriously prejudiced by such failure, the inmate may be compelled to submit to such medical treatment as is ordered by a medical officer.(3) Medical attention as required by this section is to be supplied (except to the extent that provision is otherwise made by an agreement in force under Part 6A) at the public expense.s 16: Am 1966 No 43, sec 4 (b); 1970 No 6, sec 2 (2); 1978 No 155, sec 5 (a); 1988 No 46, Sch 1 (3); 1990 No 107, Sch 1 (5); 1991 No 17, Sch 1; 1996 No 25, Sch 5 [26]–[29].
17 (Repealed)
s 17: Am 1966 No 43, sec 4 (c); 1970 No 6, sec 2 (2). Rep 1978 No 155, Sch 1 (6).
18 Private property
(1) Every inmate upon the inmate’s reception into detention in a correctional centre shall surrender to the governor of the correctional centre all property in the inmate’s possession. The governor of the correctional centre may require an inmate to send away or to cause to be sent away from the correctional centre any or all of the inmate’s property surrendered as aforesaid. The property of an inmate not sent away as aforesaid shall be retained by the governor of the correctional centre and returned to the inmate immediately prior to the inmate’s release from detention in a correctional centre.(1A) At any time before an inmate is released from detention in a correctional centre, the governor may, in accordance with the regulations, permit the inmate to have possession of any property of the inmate retained by the governor under this section.(2) A record shall be kept of all such property surrendered as aforesaid and sent away as aforesaid and in respect of property retained as aforesaid the inmate may deal with such property only in such manner as is prescribed.(2A) Any money which is:(a) surrendered by an inmate upon the inmate’s reception into detention in a correctional centre and not sent away, orshall, while the inmate remains detained in a correctional centre, be deposited in a bank, building society or credit union in New South Wales.(b) received but not spent by an inmate while detained in a correctional centre,(2B) Until repaid, money deposited under subsection (2A) may be invested by the Treasurer in any form of investment approved by the Treasurer.(2C) Interest from any such investment shall be applied for the benefit of inmates in such manner as the Commissioner may determine.(3) Such part of any property surrendered by an inmate as has been retained by the governor of a correctional centre pursuant to subsection (1) and as remains unclaimed at the expiration of 6 months after:(a) where the inmate is released from detention in a correctional centre—the date on which the inmate was released,(b) where the inmate escapes from detention in a correctional centre—the date on which the inmate escaped, ormay be disposed of in accordance with the regulations.(c) where the inmate dies while detained in a correctional centre—the date on which the inmate died,(4) Subsection (3) does not enable property to be disposed of while the inmate concerned (having been readmitted to detention in a correctional centre before the property has been disposed of) remains detained in a correctional centre.(5) Any property which is confiscated from an inmate pursuant to this Act may be disposed of in accordance with the regulations.s 18: Am 1966 No 43, sec 4 (d); 1985 No 26, Sch 1 (2); 1988 No 46, Sch 2 (7); 1996 No 24, Sch 1; 1996 No 25, Sch 5 [30] [31].
19 Record of personal description of inmates
Every inmate shall be liable to be photographed, to have the impression of his or her fingers and palms taken, and to have such details of his or her personal description as may be prescribed recorded.s 19: Am 1996 No 25, Sch 5 [32].
20 Work to be performed by inmates
(1) Subject to the direction of the Commissioner, the governor of a correctional centre may order any convicted inmate in any such correctional centre to be set to some work considered suitable to the inmate’s physical capacity.(2) Such convicted inmates or such classes or groups of convicted inmates as the Commissioner may from time to time determine may be set to work beyond the precinct of the correctional centre in which they are imprisoned.(3) The Commissioner may, out of moneys provided by Parliament for the purpose and subject to the regulations, make payments to inmates for any reasons (including for work done).(4) While a correctional centre is being managed under an agreement in accordance with Part 6A:(a) subsections (1) and (2) apply only to work of a kind which the Commissioner has approved, and(b) payment may not be made by the management company to inmates for work done unless the payment is approved, or is made in accordance with a scheme approved, by the Commissioner.s 20: Am 1964 No 74, Sch 2; 1966 No 43, sec 4 (e); 1970 No 6, sec 2 (2); 1977 No 43, Sch 4 (2); 1978 No 155, sec 5 (a); 1988 No 46, Sch 1 (3); 1988 No 131, Sch 18 (3); 1990 No 107, Sch 1 (6); 1996 No 25, Sch 5 [33]; 1998 No 2, Sch 1 [1].
21 (Repealed)
s 21: Am 1960 No 21, sec 6; 1964 No 74, Sch 2; 1966 No 43, sec 4 (f); 1971 No 3, sec 4. Rep 1977 No 43, Sch 4 (3).
22 Segregation of inmates
The Commissioner or the governor of a correctional centre may direct the segregation of an inmate if the Commissioner or governor (as the case may be) is of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to:(a) the personal safety of any other person, or(b) the security of the correctional centre, or(c) good order and discipline within the correctional centre.s 22: Subst 1966 No 43, sec 4 (g). Am 1970 No 6, sec 2 (2); 1978 No 155, sec 5; 1985 No 26, Sch 1 (3); 1988 No 46, Sch 1 (3) (4); 1993 No 89, Sch 2 (1). Subst 1996 No 25, Sch 3 [1].
22AA Protective custody of inmates
(1) The Commissioner or the governor of a correctional centre may direct that an inmate be held in protective custody if the Commissioner or governor (as the case may be) is of the opinion that the association of the inmate with other inmates constitutes or is likely to constitute a threat to the personal safety of the inmate.(2) The Commissioner may also direct that an inmate be held in protective custody if the inmate requests the Commissioner in writing to do so.ss 22AA–22AG: Ins 1996 No 25, Sch 3 [1].
22AB Governor of correctional centre to notify Commissioner of segregation or protective custody direction
The governor of a correctional centre who gives a direction under section 22 or 22AA must report the fact to the Commissioner in writing as soon as practicable.ss 22AA–22AG: Ins 1996 No 25, Sch 3 [1].
22AC Effect of segregation or protective custody direction
(1) If the Commissioner or the governor of a correctional centre gives a direction under section 22 or 22AA, the inmate concerned is to be detained:(a) away from association with other inmates, or(b) if the Commissioner so approves, in association only with such other inmates as the Commissioner may determine.(2) An inmate who is segregated or held in protective custody is not to suffer any reduction of diet or be deprived of any rights or privileges (other than those that may be determined by the Commissioner either generally or in a particular case).ss 22AA–22AG: Ins 1996 No 25, Sch 3 [1].
22AD Period of segregation or protective custody
(1) An inmate segregated or held in protective custody as a result of a direction of the governor of a correctional centre is not to be so segregated or held for longer than 14 days unless the Commissioner otherwise directs.(2) The Commissioner must not direct that an inmate be segregated or held in protective custody for a continuous period of more than 3 months, except in accordance with section 22AE.ss 22AA–22AG: Ins 1996 No 25, Sch 3 [1].
22AE Extension of period of segregation or protective custody
(1) The Commissioner may direct, on one or more occasions, that the period of segregation or of holding in protective custody of an inmate be extended, but only if on each occasion the Commissioner has:(a) in the case of an extension of a period of segregation—formed an opinion as required under section 22, or(b) in the case of an extension of a period of holding in protective custody:(i) formed an opinion as required under section 22AA (1), or(ii) received a written request as required under section 22AA (2).(2) An extension must not exceed 3 months at a time.(3) A direction for an extension of a period of segregation, or of a period of holding in protective custody, may differ in its terms from any earlier direction for the segregation, or holding in protective custody, of the same inmate, or for any extension of that segregation or holding in protective custody.ss 22AA–22AG: Ins 1996 No 25, Sch 3 [1].
22AF Form of direction for segregation or protective custody
A direction under section 22, 22AA or 22AE must be in writing and must include the grounds on which it is given.ss 22AA–22AG: Ins 1996 No 25, Sch 3 [1].
22AG Revocation of direction for segregation or protective custody
(1) The Commissioner must revoke a direction under section 22AA (2), or a direction under section 22AE (1) that was given at the request of the inmate concerned, if that inmate requests the Commissioner in writing to revoke it.(2) The Commissioner may, at any time, revoke any other direction under section 22, 22AA or 22AE.ss 22AA–22AG: Ins 1996 No 25, Sch 3 [1].
22A Report to Minister on extension of segregation or protective custody
(1) The Commissioner is to forward a written report to the Minister if the Commissioner directs an extension of the period of segregation under section 22, or the period of holding in protective custody under section 22AA (1), of an inmate and:(a) the extension will result in the total continuous period of segregation or holding in protective custody of the inmate exceeding 6 months, or(b) the total continuous period of segregation or holding in protective custody of the inmate has already exceeded 6 months.(2) The report is to be forwarded as soon as reasonably practicable after the direction is given.(3) The report must give the reasons for the direction.(4) (Repealed)s 22A: Ins 1993 No 89, Sch 2 (2). Am 1996 No 25, Sch 3 [2]–[4].
22B Review of segregation or protective custody by Minister
(1) The Minister may review a direction for the extension of the segregation or holding in protective custody of an inmate at any time.(2) After reviewing such a direction, the Minister may confirm, amend or revoke it, or give a new direction instead.(3) This section applies in relation to a direction:(a) whether or not a report has been forwarded under section 22A to the Minister in relation to the direction, and(b) whether or not the direction was at the request of the inmate, and(c) whether the direction was given by the Commissioner under section 22 or 22AA, the Minister under this section or the Review Council under section 22F.s 22B: Ins 1993 No 89, Sch 2 (2). Am 1996 No 25, Sch 3 [5]–[7].
22C Review of segregation or protective custody by Review Council
(1) An inmate whose total continuous period of segregation or holding in protective custody exceeds 14 days may apply to the Review Council for a review of the direction for that segregation or holding in protective custody or any direction for an extension of it.(2) The application is to be in writing and to include the inmate’s reasons for making the application.(3) The Review Council must review the direction unless subsection (4) applies.(4) The Review Council may reject the application:(a) if the application does not, in the opinion of the Review Council, disclose substantial grounds for a review, or(b) if the Review Council has previously determined a review of the same direction under this Part and there has been no substantial change in the reasons given in the application for a review since the application was made for the previous review, or(c) if the direction was made at the request of the inmate.(5) This section applies in relation to a direction whether the direction was given by the Commissioner (or the governor of the correctional centre) under section 22 or 22AA, the Minister under section 22B or the Review Council under section 22F.s 22C: Ins 1993 No 89, Sch 2 (2). Am 1996 No 25, Sch 3 [8]–[10].
22D Interim directions by Review Council
(1) The Chairperson of the Review Council may give a direction for the suspension of the segregation or holding in protective custody of an inmate, or for the removal of an inmate to a different correctional centre.(2) Such a direction may be given at any time after application is made for a review and before the review is determined.(3) While a direction for such a suspension is in force, the inmate is not to be segregated or held in protective custody unless the relevant fresh direction for segregation or holding in protective custody is given under this Act.(4) The Chairperson may vary or revoke a direction for such a suspension.(5) A direction for such a suspension is not to be taken as a revocation of a direction for segregation or holding in protective custody, or of a direction for extension of segregation or holding in protective custody.(6) A direction for the removal of an inmate to a different correctional centre may be given in any case where the Chairperson thinks fit, including a case where such removal would facilitate the review of a direction for segregation or holding in protective custody, or of a direction for extension of segregation or holding in protective custody.s 22D: Ins 1993 No 89, Sch 2 (2). Am 1996 No 25, Sch 3 [11]–[15]; 1997 No 55, Sch 2.3 [2].
22E Procedure for review of segregation or holding in protective custody
(1) In determining any matter relating to the segregation or holding in protective custody of an inmate, the Review Council is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate and as the proper consideration of the matter before the Review Council permits.(2) The Review Council may obtain information in writing or by electronic means from any person in relation to a review of a direction.(3) The Review Council must give notice of any hearing in relation to a review to the inmate who applied for the review. The Review Council must allow the inmate to attend the hearing if the inmate so wishes and an opportunity to be heard at the hearing.(4) The inmate may be represented by a legal representative of the inmate’s choice or, if the Review Council so approves, by another person chosen by the inmate.(5) Schedule 5 applies to the conduct of a review by the Review Council for the purposes of this Part, subject to this Part.s 22E: Ins 1993 No 89, Sch 2 (2). Am 1996 No 25, Sch 3 [16] [17].
22F Determination of review by Review Council
(1) In determining a review of a direction for segregation or holding in protective custody, or a direction for the extension of segregation or holding in protective custody, the Review Council must take into account the following:(a) whether the relevant direction was made in accordance with this Part,(b) whether the direction was reasonable in the circumstances,(c) whether the direction was necessary to secure the personal safety of any correctional officer or other officer of the Department of Corrective Services or any inmate (including the inmate whose application is being determined) at the relevant correctional centre,(d) the security of, and preservation of good order and discipline within, the relevant correctional centre,(e) the interests of the public.(2) The Review Council may confirm, amend or revoke the direction or give a new direction instead.s 22F: Ins 1993 No 89, Sch 2 (2). Am 1996 No 25, Sch 3 [18] [19].
Part 4 Correctional centre discipline
pt 4, hdg: Subst 1986 No 188, Sch 2 (2). Am 1996 No 25, Sch 5 [34].
pt 4: Subst 1986 No 188, Sch 2 (2).
23 Correctional centre offences to be declared by regulations
(1) The regulations may declare as a correctional centre offence:(a) a contravention (whether by act or omission) of a specified provision of the regulations by an inmate, orif it occurs while the inmate is within a correctional centre or correctional complex or is deemed to be in the custody of the governor of a correctional centre.(b) any other act or omission by an inmate,(2) An act or omission may be declared to be a correctional centre offence even though it constitutes an offence against this or any other Act or any other law.(3) A correctional centre offence may be dealt with under this Part by the governor of a correctional centre or the Visiting Justice for a correctional centre, even though the offence was committed or was alleged to have been committed while the inmate was within another correctional centre or correctional complex or in the custody of the governor of another correctional centre.s 23: Am 1966 No 43, sec 5 (a); 1967 No 77, sec 8 (1); 1970 No 6, sec 2 (2); 1978 No 155, sec 5 (a), Sch 1 (7). Subst 1986 No 188, Sch 2 (2). Am 1988 No 46, Sch 2 (8); 1996 No 25, Sch 5 [35]–[38].
23A (Repealed)
s 23A: Ins 1966 No 43, sec 5 (b). Am 1978 No 155, Sch 3 (5). Rep 1986 No 188, Sch 2 (2).
24 Laying of charges and inquiries by governor of correctional centre
(1) If it is alleged that an inmate has committed a correctional centre offence, the governor of a correctional centre may charge the inmate with the offence and conduct an inquiry into the allegation.(2) Regulations may be made with respect to the making of any such charge and the conduct of any such inquiry.(3) The following provisions apply to any inquiry by the governor of a correctional centre into an alleged correctional centre offence:(a) The inquiry shall be conducted with as little formality and technicality, and with as much expedition, as fairness to the inmate charged, the requirements of this Act or the regulations and the proper consideration of the charge permit.(b) The governor of the correctional centre is not bound by the rules of evidence but may inform himself or herself of any matter in such manner as the governor thinks fit.(c) The inmate is entitled to be heard at any hearing during the inquiry and to examine and cross-examine witnesses.(d) Except as provided by paragraph (e), the inmate is not entitled to be represented by a barrister or solicitor or by any other person.(e) The governor of the correctional centre shall allow a person (other than a barrister or solicitor) to represent or assist the inmate if the governor is satisfied that the inmate does not sufficiently understand the nature of the inquiry or that the inmate does not understand English or is otherwise unable properly to represent himself or herself during the inquiry.(f) If the inmate refuses or fails to attend at any hearing during the inquiry, the governor of the correctional centre may hear and determine the matter in the inmate’s absence.(g) Evidence shall not be given on oath or affirmation or by affidavit at any hearing during the inquiry.(h) The governor of a correctional centre may allow such correctional officers or other persons to be present and be heard at any hearing during the inquiry as the governor thinks fit.(i) The governor of a correctional centre may transfer the conduct of an inquiry to the governor of another correctional centre to which the inmate has been transferred.s 24: Am 1966 No 43, sec 5 (c); 1978 No 155, Sch 3 (6). Subst 1986 No 188, Sch 2 (2). Am 1996 No 25, Sch 5 [39]–[41].
25 Governor of correctional centre may impose penalties for certain correctional centre offences
(1) In this section:minor correctional centre offence means a correctional centre offence declared by the regulations to be a minor correctional centre offence for the purposes of this section.(2) If, after conducting an inquiry into an alleged minor correctional centre offence, the governor of a correctional centre is satisfied beyond reasonable doubt that the allegation against the inmate has been proved, the governor may impose one (but not more than one) of the following penalties:(a) reprimand and caution,(b) deprivation of specified amenities or privileges for a period not exceeding 28 days (being amenities or privileges of a kind prescribed by the regulations for the purposes of this paragraph),(c) confinement to a cell for a period not exceeding 3 days, with or without deprivation of amenities or privileges as referred to in paragraph (b),(d) cancellation of any right to specified payments under section 20 (3) for a period not exceeding 14 days, but only where those payments are bonus or other payments additional to the payments made at the base rate to all or any class of inmates.(e) (Repealed)(3) If, after conducting an inquiry into an alleged minor correctional centre offence, the governor of a correctional centre is satisfied beyond reasonable doubt that the allegation has been proved but is of the opinion that a penalty should not be imposed:(a) the governor may dismiss the charge, or(b) the governor may defer imposing a penalty on condition that the inmate be of good behaviour for a specified period (not exceeding 2 months) and, if the condition is complied with, dismiss the charge after the end of that period.(4) If, after conducting an inquiry into an alleged minor correctional centre offence, the governor of a correctional centre is not satisfied beyond reasonable doubt that the allegation has been proved, the governor shall dismiss the charge.(4A) The governor of a correctional centre may order that an inmate be deprived of specified amenities or privileges (being amenities or privileges of a kind prescribed by the regulations) for a period not exceeding 6 months if:(a) the result of a urine test carried out in accordance with the regulations shows the presence of a drug in the inmate’s urine, or(b) the inmate refuses to provide a sample of his or her urine when required to do so by a correctional officer of or above the rank of Assistant Superintendent.(4B) The governor of a correctional centre is not to make an order under subsection (4A) if the inmate proves that the drug, the presence of which has been shown to be in the inmate’s urine:(a) was administered on and in accordance with the prescription of a registered medical practitioner, nurse practitioner or registered dentist, or(b) was lawfully supplied by, and taken in accordance with any instructions given by, a registered medical practitioner, registered dentist or registered nurse, or(c) was taken or administered in such form or preparation as may be exempted by the regulations in relation to the drug under this section, or(d) was present in a quantity that does not exceed the quantity (if any) prescribed in relation to the drug under this section, or(e) was not a drug within the meaning of this section at the time it was taken by the inmate or administered to the inmate.(5) A penalty imposed on an inmate by the governor of a correctional centre may be rescinded or remitted by the governor of the correctional centre or the Commissioner.(6) (Repealed)(7) In this section:drug means:(a) a prohibited drug or prohibited plant within the meaning of the Drug Misuse and Trafficking Act 1985, or(b) any other drug (including a substance prescribed for the purposes of section 16 of the Poisons Act 1966) prescribed by the regulations under this Act as a drug for the purposes of this definition.nurse practitioner means a person authorised under the Nurses Act 1991 to practise as a nurse practitioner.s 25: Am 1966 No 43, sec 5 (d); 1978 No 155, Sch 3 (7). Subst 1986 No 188, Sch 2 (2). Am 1988 No 46, Schs 1 (3), 2 (9); 1988 No 131, Sch 18 (4); 1989 No 87, Sch 3 (1); 1993 No 89, Sch 3; 1996 No 25, Sch 5 [42] [43]; 1998 No 102, Sch 3.1 [1] [2].
26 Reference of certain correctional centre offences to Visiting Justice
(1) The governor of a correctional centre who has charged an inmate with a correctional centre offence may refer the charge to a Visiting Justice for hearing and determination.(2) A charge must be referred to a Visiting Justice:(a) if the alleged offence is not a minor correctional centre offence within the meaning of section 25, or(b) if the alleged offence is such a minor correctional centre offence but the governor is satisfied that the seriousness of the matter is such that it should be referred to a Visiting Justice.(3) A charge may be referred to a Visiting Justice without any inquiry being conducted into the allegation by the governor of the correctional centre or may be so referred after or during the course of any such inquiry.s 26: Am 1966 No 43, sec 5 (e). Subst 1986 No 188, Sch 2 (2). Am 1996 No 25, Sch 5 [44].
26A Procedure at hearings before Visiting Justices
(1) In proceedings before a Visiting Justice under this Part, the procedures under the Justices Act 1902 in relation to the hearing and determination of an information laid under section 52 of that Act apply, subject to such modifications as are prescribed by the regulations and to such other modifications as the Visiting Justice considers appropriate.(2) In proceedings before a Visiting Justice under this Part, the inmate is entitled to be represented by a barrister or solicitor.(3) Any hearing in proceedings before a Visiting Justice shall be held in the correctional centre for which the Visiting Justice has been appointed.(4) A Visiting Justice may transfer proceedings to the Visiting Justice for another correctional centre to which the inmate has been transferred.s 26A: Ins 1986 No 188, Sch 2 (2). Am 1996 No 25, Sch 5 [45].
26B Imposition of penalty by Visiting Justice
(1) If, after hearing a charge referred under section 26, a Visiting Justice is satisfied beyond reasonable doubt that the allegation against the inmate has been proved, the Visiting Justice may impose one (but not more than one) of the following penalties:(a) reprimand and caution,(b) deprivation of specified amenities or privileges for a period not exceeding 56 days (being amenities or privileges of a kind prescribed by the regulations for the purposes of this paragraph),(c) confinement to a cell for a period not exceeding 28 days, with or without deprivation of amenities or privileges as referred to in paragraph (b),(d) cancellation of any rights to specified payments under section 20 (3) for a period not exceeding 14 days, but only where those payments are bonus or other payments additional to the payments made at the base rate to all or any class of inmates,(e) the extension, by a period that does not exceed 28 days, of each minimum or fixed term (within the meaning of the Sentencing Act 1989) to which the inmate is subject (other than a term which is cumulative and which has not commenced).(2) If, after hearing a charge referred under section 26, a Visiting Justice is satisfied beyond reasonable doubt that the allegation has been proved but is of the opinion that a penalty should not be imposed, the Visiting Justice may dismiss the charge.(3) If, after hearing a charge referred under section 26, a Visiting Justice is not satisfied beyond reasonable doubt that the allegation has been proved, the Visiting Justice shall dismiss the charge.(4) A penalty under subsection (1) (e) which extends an inmate’s minimum term reduces by a corresponding period the inmate’s additional term, but if the additional term is thereby extinguished, the inmate’s extended minimum term becomes a fixed term within the meaning of the Sentencing Act 1989.(5) A penalty under subsection (1) (e) may extend an inmate’s sentence of imprisonment beyond the end of the sentence imposed by the court or the maximum sentence which could lawfully be imposed by the court for the offence concerned.s 26B: Ins 1986 No 188, Sch 2 (2). Am 1988 No 131, Sch 18 (5); 1989 No 87, Sch 3 (2); 1989 No 132, Sch 1; 1996 No 25, Sch 5 [46].
26C Correctional centre offences may be dealt with summarily or on indictment
If, on the hearing of a charge against an inmate, the Visiting Justice is of the opinion that the act or omission constituting the alleged correctional centre offence is an offence which could be prosecuted summarily before a Local Court or on indictment and which should be so prosecuted, the Visiting Justice shall terminate the hearing and order that the inmate be conveyed to a Local Court to be dealt with according to law.s 26C: Ins 1986 No 188, Sch 2 (2). Am 1996 No 25, Sch 5 [47].
26D Payment of compensation by inmate for damage to property
(1) If an inmate causes any loss of or damage to property as a result of committing a correctional centre offence, the governor of the correctional centre or the Visiting Justice who deals with the charge may, whether or not a penalty is imposed for the offence, order that the inmate pay to the Crown or, if the property is owned by some other person, to that other person a specified amount as compensation for the loss or damage.(2) The maximum amount of compensation that an inmate may be ordered to pay by the governor of a correctional centre is $50.(3) Compensation that an inmate is ordered to pay under this section is payable out of any money held by the governor of a correctional centre on behalf of the inmate or out of any other money otherwise payable to the inmate under this Act or the regulations.s 26D: Ins 1986 No 188, Sch 2 (2). Am 1988 No 46, Sch 1 (5); 1996 No 25, Schs 2 [1], 5 [48].
26E Cumulative punishments
If:(a) an inmate is charged with 2 or more correctional centre offences, andany cumulative penalties imposed under this Act by the governor of a correctional centre or a Visiting Justice shall not, in respect of any particular kind of penalty, exceed the maximum extension, deprivation, confinement or cancellation that may be imposed for that penalty in the case of a single correctional centre offence.(b) those charges are determined together or arise out of a single incident,s 26E: Ins 1986 No 188, Sch 2 (2). Am 1989 No 87, Sch 3 (3); 1996 No 25, Sch 5 [49].
26F Record of punishments imposed for correctional centre offences
(1) If the governor of a correctional centre or a Visiting Justice imposes a penalty on an inmate for committing a correctional centre offence, the governor or Visiting Justice shall cause to be recorded:(a) a statement of the nature and date of the offence,(b) the name of the offender,(c) the date of sentence,(d) the punishment imposed, and(e) any order under section 26D for the payment of compensation.(2) Any such record shall be kept at the correctional centre concerned and may be made available for inspection to such persons as the Commissioner considers appropriate.(3) The regulations may make provision for or with respect to the disposal of any such record.s 26F: Ins 1986 No 188, Sch 2 (2). Am 1988 No 46, Sch 1 (3); 1996 No 25, Sch 5 [50].
26G Appeals against decisions of Visiting Justices
(1) An appeal lies to the District Court under section 122 of the Justices Act 1902 against the decision of a Visiting Justice to impose a penalty under section 26B (1) (e) on an inmate in proceedings under this Part as if the decision were a decision of a Local Court constituted by a Magistrate.(2) The provisions of the Justices Act 1902 relating to the determination of appeals against decisions of a Local Court apply to the determination of an appeal against a decision of a Visiting Justice, subject to such modifications as are prescribed by the regulations or as the District Court considers appropriate.(3) The regulations may make provision for or with respect to the lodging and determination of appeals under this section.(4) Except as otherwise provided by this section, a decision of a Visiting Justice to impose a penalty on an inmate in proceedings under this Part is final and is not liable to be challenged, appealed against, quashed or called into question by any court.(5) (Repealed)s 26G: Ins 1986 No 188, Sch 2 (2). Am 1989 No 87, Sch 3 (4); 1996 No 25, Sch 5 [51].
26H Other criminal proceedings for same offence
(1) The decision of a Visiting Justice in proceedings under this Part in relation to a correctional centre offence shall be deemed to be the decision of a court in relation to a criminal offence for the purpose of determining whether criminal proceedings may be brought for the same act or omission that constituted the correctional centre offence.(2) Proceedings shall not be taken or continued under this Part in relation to a correctional centre offence if criminal proceedings are brought in the court for the same act or omission that constitutes the correctional centre offence.s 26H: Ins 1986 No 188, Sch 2 (2). Am 1996 No 25, Sch 5 [52].
26I Offence of making false or misleading statements
(1) A person shall not make a statement that is false or misleading in a material particular at or in connection with an inquiry by, or hearing before, the governor of a correctional centre or a Visiting Justice under this Part.(2) This section does not apply to evidence given on oath or affirmation or by affidavit before a Visiting Justice or a statement verified by statutory declaration.Penalty: 5 penalty units.s 26I: Ins 1986 No 188, Sch 2 (2). Am 1988 No 131, Sch 18 (6); 1996 No 25, Sch 5 [53].
Part 5 Transfer of inmates
pt 5, hdg: Am 1996 No 25, Sch 5 [54].
Division 1 Transfer and leave of absence within the State
pt 5, div 1, hdg: Ins 1996 No 25, Sch 4 [1].
27 Orders for removal of inmates from one correctional centre to another
Any inmate may be removed from one correctional centre to another correctional centre by order of the Commissioner:(a) where the correctional centre in which such inmate is detained is to be repaired, altered, enlarged or rebuilt,(b) in case of an outbreak or threatened outbreak of contagious or infectious disease in a correctional centre,(c) when any correctional centre has ceased to be a correctional centre pursuant to section 5,(d) when any correctional centre is overcrowded,(e) for the purpose of carrying the provisions of section 15 into effect, or(f) for any other cause specified in such order.s 27: Am 1970 No 6, sec 2 (2); 1978 No 155, sec 5 (a); 1988 No 46, Sch 1 (3); 1996 No 25, Sch 5 [55].
28 Removal of inmates to hospital
(1) Any inmate may, by order of the Commissioner or the governor of the correctional centre in which the inmate is detained, where it appears to the Commissioner or the governor of the correctional centre, as the case may be, that medical attendance and treatment for the inmate is necessary or desirable, be removed from a correctional centre to a hospital or other place specified in the order for medical attendance and treatment.(2) Any inmate so removed shall, while in hospital or at such other place, be deemed to be in the custody of the governor of the correctional centre from which the inmate was removed, and the governor of such correctional centre may, if the governor thinks fit, direct any correctional officer to take charge of the inmate whilst so in hospital or at such other place.(3) On the certificate of the medical superintendent or other person in charge of a hospital (which certificate such medical superintendent or person is hereby authorised and required to give when the circumstances justify it) that an inmate removed to such hospital pursuant to subsection (1) may be discharged therefrom, such inmate shall forthwith be returned to the correctional centre from which the inmate was removed or such other correctional centre as the Commissioner may direct.(4) An inmate may, under this section, be removed to a hospital which is a correctional centre.s 28: Am 1966 No 43, sec 6 (a); 1970 No 6, sec 2 (2); 1978 No 155, sec 5 (a); 1988 No 46, Schs 1 (3), 2 (10); 1990 No 108, Sch 1; 1993 No 89, Sch 4 (3); 1996 No 25, Sch 5 [56]–[58].
29 Absence from a correctional centre in certain circumstances permitted
(1) Any inmate may, by order of the Commissioner, be taken temporarily from any correctional centre to any place in the State or be permitted to be absent temporarily from any correctional centre, on such conditions as may be prescribed and such conditions as may be specified in the order, for any purpose in aid of the administration of justice, or for the purpose of:(a) attending the funeral or obsequies of any near relative,(b) visiting a near relative suffering serious illness or disability,(c) applying for work or interviewing an employer or prospective employer,(d) attending a place of education or training in connection with any course of education or training,(e) engaging in employment specified in the order, oror for any other purpose which the Commissioner deems to be justified.(f) being interviewed by any member of the police force in connection with the commission of any crime or offence in any correctional centre, whether or not committed or suspected of having been committed by the inmate,(2) Any inmate may, in accordance with a permit granted to the inmate by the Commissioner, be permitted to be absent from a correctional centre, on such conditions as may be prescribed and such conditions as may be specified in the permit, for a period, being:(a) for the purpose of weekend leave—such period not exceeding 3 consecutive days as may be specified in the permit,(b) for the purpose of attending tuition or performing work in connection with a course of education or training being undertaken by the inmate—such period not exceeding 7 consecutive days as may be specified in the permit, or(c) in the case of a female inmate who is the mother of a young child or young children, for the purpose of enabling the inmate to serve her sentence with her child or children in an appropriate environment determined by the Commissioner—such period as may be specified in the permit.(3) The Commissioner may, at any time:(a) vary or omit any condition of a permit or order under subsection (1) (being a condition which is prescribed or specified in the permit or order) or substitute or add a new condition or conditions, or(b) revoke a permit or order under subsection (1).(4) Where:(a) it appears to the Commissioner that an inmate has contravened or failed to comply with a condition of a permit or order under subsection (1), being a condition:(i) which is prescribed,(ii) which is specified in the permit or order under subsection (1), or(iii) which is a varied, substituted or added condition, notice of the variation, substitution or addition of which has been given to the inmate before the contravention of or failure to comply with the condition,(b) a permit or order under subsection (1) is revoked, orthe Commissioner may issue a warrant to a member of the police force directing that the inmate be apprehended and returned to a correctional centre.(c) an inmate has not returned to a correctional centre on the expiration of the period specified in the permit or order under subsection (1) granted to the inmate,(5) An inmate shall not be taken to be absent from a correctional centre merely because the inmate is in some other part of a correctional complex of which the correctional centre forms part.s 29: Subst 1966 No 43, sec 6 (b). Am 1970 No 6, sec 2 (2); 1977 No 64, sec 2 (a); 1978 No 155, Sch 1 (8), 1983 No 132, Sch 1 (3); 1985 No 26, Sch 1 (4); 1986 No 109, Sch 1 (2); 1988 No 46, Schs 1 (3) (6), 2 (11); 1993 No 89, Sch 4 (4); 1996 No 25, Sch 5 [59]–[63].
Division 2 Interstate leave of absence for inmates
pt 5, div 2 (ss 29AA–29AJ): Ins 1996 No 25, Sch 4 [2].
29AA Definitions
In this Division:corresponding interstate law means a law that is declared to be a corresponding interstate law for the purposes of this Division by an order published under section 29AB.corresponding Commissioner, in relation to a participating State, means the officer responsible for the administration of correctional centres in the participating State.interstate leave permit means a permit granted by the Commissioner under section 29AC.participating State means any State in which a corresponding interstate law is in force.State includes the Australian Capital Territory and the Northern Territory.pt 5, div 2 (ss 29AA–29AJ): Ins 1996 No 25, Sch 4 [2].
29AB Corresponding interstate law
(1) The Governor may, by an order published in the Gazette, declare that a law of a State other than New South Wales is a corresponding interstate law for the purposes of this Division.(2) Such an order is to be made only if the Governor is satisfied that the law substantially corresponds with the provisions of this Division.pt 5, div 2 (ss 29AA–29AJ): Ins 1996 No 25, Sch 4 [2].
29AC Issue of interstate leave permits
(1) The Commissioner may issue an interstate leave permit to an inmate of a correctional centre for leave to travel to and from, and remain in, a participating State for a specified period:(a) if the inmate does not have a high security classification—on any grounds that the Commissioner considers appropriate, or(b) if the inmate has a high security classification—only if the leave is for medical treatment or any other compassionate purpose.(2) In particular, the Commissioner may issue an interstate leave permit to an inmate who is an aboriginal person if satisfied that the purpose of the leave is:(a) to attend a funeral service or burial of any member of the inmate’s immediate or extended family, or(b) to attend any occasion of special significance to the inmate’s immediate or extended family.(3) The period specified in an interstate leave permit must not exceed 7 days.(4) An interstate leave permit is subject to such conditions (including conditions relating to escort of the inmate) as the Commissioner specifies in the permit or as may be prescribed by the regulations.(5) The Commissioner may, by instrument in writing, appoint any correctional officer to be an escort for the purposes of this Division.(6) For the purposes of this section, an inmate has a high security classification if the inmate is within a class of inmates prescribed by the regulations as a high security classification for the purposes of this section.pt 5, div 2 (ss 29AA–29AJ): Ins 1996 No 25, Sch 4 [2].
29AD Effect of interstate leave permit
(1) If it is a condition of an interstate leave permit that an inmate be escorted to a participating State, the permit:(a) authorises the inmate concerned to be absent from the correctional centre in the custody of an escort for the purpose and period specified in the permit, and(b) authorises the escort to take and keep custody of the inmate for the purpose of escorting the inmate to (whether or not across any other State) and within the participating State in accordance with the permit, and(c) authorises the escort to take and keep custody of the inmate for the purpose of returning the inmate to the correctional centre from which leave of absence was given.(2) However, if it is not a condition of an interstate leave permit that an inmate be escorted to a participating State, the permit authorises the inmate concerned to be absent from the correctional centre for the purpose and period specified in the permit.pt 5, div 2 (ss 29AA–29AJ): Ins 1996 No 25, Sch 4 [2].
29AE Variation or revocation of permit
The Commissioner may at any time:(a) vary or omit any condition of an interstate leave permit (whether specified in the permit or prescribed by the regulations) or substitute or add any new condition, or(b) revoke the permit.pt 5, div 2 (ss 29AA–29AJ): Ins 1996 No 25, Sch 4 [2].
29AF Offence: breach of interstate leave permit
An inmate must not fail, without reasonable excuse, to comply with any condition of an interstate leave permit.Maximum penalty: 10 penalty units.pt 5, div 2 (ss 29AA–29AJ): Ins 1996 No 25, Sch 4 [2].
29AG Notice to participating State and transit jurisdiction
On the granting of an interstate leave permit, the Commissioner must:(a) give notice to the corresponding Commissioner and the chief officer of police of the participating State concerned of the issue and period of the permit authorising the inmate concerned to travel to that State, and(b) give notice to the chief officer of police of any other jurisdiction through which the inmate is to travel to reach the participating State of the issue and period of the permit.pt 5, div 2 (ss 29AA–29AJ): Ins 1996 No 25, Sch 4 [2].
29AH Effect of leave permit issued under corresponding interstate law
A person (being a police officer or correctional officer (however described) of a participating State) who is authorised under a permit issued under a corresponding interstate law to escort a person imprisoned in a participating State to or through this State is authorised while in this State:(a) to hold, take and keep custody of the person for the purposes and period set out in the permit, and(b) to hold, take and keep custody of the person for the purpose of returning the person to the participating State.pt 5, div 2 (ss 29AA–29AJ): Ins 1996 No 25, Sch 4 [2].
29AI Escape from custody of interstate inmates on leave of absence
(1) A person:(a) who, while in escorted custody in this State, escapes from that custody, ormay be apprehended without warrant by the person’s escort (if any), a police officer or any other person.(b) who, while in unescorted custody in this State, escapes from that custody,(2) If a person in escorted or unescorted custody:(a) has escaped and been apprehended, orthe person may be taken before a Magistrate.(b) has attempted to escape,(3) The Magistrate may by warrant (and despite the terms of any permit issued under a corresponding interstate law):(a) order the return of the person to the participating State in which the permit was issued, and(b) order the person to be delivered to an interstate escort for the purpose of such a return.(4) A warrant issued under subsection (3) may be executed according to its tenor.(5) A person who is the subject of a warrant issued under subsection (3) may be detained in custody as an inmate of this State until the person is delivered into the custody of an interstate escort in accordance with that warrant or until the expiration of a period of 14 days from the issue of the warrant, whichever first occurs.(6) If a person who is the subject of a warrant issued under subsection (3) is not, in accordance with the warrant, delivered into the custody of an interstate escort within a period of 14 days from the issue of the warrant, the warrant ceases to have effect.(7) In this section:escorted custody means in the custody of an escort under section 29AH.interstate escort means:(a) a person who is authorised to have the custody of another person under a permit issued in a participating State, or(b) a correctional officer (however described) or a member of the police force of the participating State, oror any 2 or more of them.(c) a person appointed by the corresponding Commissioner of the participating State by an instrument in writing to be an escort for the purpose of escorting another person to the participating State,unescorted custody means leave within this State in circumstances where:(a) the leave is authorised by a permit issued under a corresponding interstate law, and(b) no interstate escort has been appointed to escort the inmate concerned while within this State, and(c) the corresponding interstate law provides that the inmate concerned is taken to be in the custody of the corresponding Commissioner or another official of the participating State while in this State.pt 5, div 2 (ss 29AA–29AJ): Ins 1996 No 25, Sch 4 [2].
29AJ Liability of Crown for damage caused by inmate or escort
(1) The Crown in right of the State is liable for any damage or loss sustained by any person in a participating State that is caused by the acts or omissions of any inmate or an escort while in a participating State because of an interstate leave permit.(2) Nothing in this section affects any right of action the Crown may have against the inmate or escort for the damage or loss concerned.pt 5, div 2 (ss 29AA–29AJ): Ins 1996 No 25, Sch 4 [2].
Division 3 Miscellaneous
pt 5, div 3, hdg: Ins 1996 No 25, Sch 4 [3].
29A Absent inmates taken to be in custody
(1) An inmate is, while absent from a correctional centre and not being escorted by a correctional officer, taken to be in the custody of the governor of the correctional centre.(2) An inmate is, while absent from a correctional centre and being escorted by a correctional officer, taken to be in the custody of:(a) the governor of the correctional centre in which the correctional officer is employed, or(b) the designated officer, if the correctional officer is not employed in a particular correctional centre.(3) Any failure by an inmate who is absent from a correctional centre to return to lawful custody:(a) at the end of the period authorised for the absence, oris taken to be an escape within the meaning of section 34.(b) on the revocation of the order or permission authorising the absence,(4) In this section, a reference to an inmate being absent from a correctional centre is a reference to an inmate:(a) while permitted to be temporarily absent from a correctional centre as referred to in section 12 (2), or(b) while at work beyond the precinct of a correctional centre as referred to in section 20 (2), or(c) while being transferred from a correctional centre to another correctional centre under section 27, or(d) while removed from a correctional centre to a hospital as referred to in section 28, or(e) while taken temporarily from a correctional centre, or permitted to be temporarily absent from a correctional centre, as referred to in section 29 (1) or (2), or(f) while absent in accordance with a permit issued under section 29AC, or(g) while being transferred from one part of a correctional centre to another part of the correctional centre that is located on separate premises.(5) In this section:correctional officer means:(a) a correctional officer engaged in court security or escort duties, or(b) a person employed on a temporary basis within the Department of Corrective Services to perform court security or escort duties, or(c) a person holding an authority under section 31C authorising the person to perform escort duties.designated officer means a person designated by the Commissioner for the purposes of this section, whether designated generally or for a particular case.s 29A: Ins 1966 No 43, sec 6 (b). Am 1978 No 155, Schs 1 (9), 3 (8); 1986 No 109, Sch 1 (3); 1996 No 25, Schs 4 [4], 5 [64]. Subst 1998 No 2, Sch 1 [2].
29B Certain absences not to affect length of sentence
While an inmate is absent from a correctional centre:(a) otherwise than by reason of having escaped from lawful custody, andthe inmate shall, for the purpose only of calculating the length of time for which the inmate has served any sentence of imprisonment or detention to which the inmate is subject during that period of absence, be deemed to be serving in a correctional centre so much of any such sentence as corresponds to that period of absence.(b) whether or not the inmate is, pursuant to any provision of this Act, deemed to be in the custody of the governor of the correctional centre during the period of absence,s 29B: Ins 1985 No 26, Sch 1 (5). Am 1996 No 25, Sch 5 [65]; 1999 No 94, Sch 4.94 [2].
29D Places where persons in custody may be kept during transfer
(1) This section applies to a person who is in lawful custody:(a) before being brought before a Justice or court in connection with the alleged commission of an offence, or(b) during proceedings to determine whether the person has committed an offence or while such proceedings are pending, or(c) following a grant of bail but before the person has fulfilled the necessary requirements entitling the person to be released, or(d) during any period for which the person is on remand, or(e) while awaiting sentencing for an offence or during sentencing proceedings, or(f) after the person is sentenced for an offence, or(g) as referred to in section 7 (2) of the Periodic Detention of Prisoners Act 1981, orand who is being transferred from premises to other premises.(h) in accordance with a warrant of commitment or other warrant, or an order of a court,(2) A person to whom this section applies may be accommodated in a court cell, lock-up or police station if it is necessary or convenient to do so.(3) This section is subject to the Children (Detention Centres) Act 1987.s 29D: Ins 1998 No 2, Sch 1 [3].
Part 6 Correctional officers
pt 6, hdg: Am 1996 No 25, Sch 5 [67].
30 Appointment of correctional officers
All persons employed in the Department of Corrective Services and all correctional officers shall be appointed or employed under and subject to the provisions of the Public Sector Management Act 1988.s 30: Am 1978 No 155, Schs 1 (10), 3 (9); 1988 No 46, Sch 2 (13); 1988 No 131, Sch 18 (2); 1996 No 25, Sch 5 [68].
30A Commissioned and non-commissioned correctional officers
(1) There shall be two classifications of correctional officers, as follows:(a) commissioned correctional officers,(b) non-commissioned correctional officers.(2) Correctional officers of or above the rank of Assistant Superintendent are commissioned correctional officers.(3) Correctional officers below the rank of Assistant Superintendent are non-commissioned correctional officers.(4) The Governor may issue commissions to commissioned correctional officers.(4A) A commission is taken to have been resigned by a commissioned officer on his or her dismissal, resignation or termination of service.(5) A correctional officer of or above the rank of Assistant Superintendent shall, whether or not the officer has been issued with a commission, be deemed to have been commissioned as an officer of the relevant rank at the date of appointment of the officer to that rank.s 30A: Ins 1984 No 63, Sch 1 (1). Am 1988 No 46, Sch 2 (14); 1996 No 25, Sch 5 [69].
31 Duties of correctional officers
(1) Subject to section 30 the duties of correctional officers of the various classes shall be as determined from time to time by the Commissioner.(2) It is the responsibility of commissioned correctional officers to exercise and perform their powers, authorities, duties and functions in connection with the administration and management of correctional centres at all such times as the Commissioner, having regard to exigencies then existing, may from time to time direct.s 31: Am 1970 No 6, sec 2 (2); 1978 No 155, sec 5 (a); 1984 No 63, Sch 1 (2); 1988 No 46, Sch 1 (3); 1996 No 25, Sch 5 [70].
31AA Acquisition or use of assumed identity
Nothing in this or any other Act authorises a person employed in the Department of Corrective Services or a correctional officer to acquire or use an assumed identity that would represent him or her to be any of the following:(a) a social worker,(b) a medical practitioner or medical researcher,(c) a psychologist,(d) a drug and alcohol counsellor,(e) any other health worker,(f) a legal practitioner,(g) a member of the clergy,(h) an Official Visitor appointed under section 8A.s 31AA: Ins 1999 No 57, Sch 1.
Part 6A Engagement of contractors
pt 6A: Ins 1990 No 107, Sch 1 (7).
31A Purpose for which contractors may be engaged
(1) To assist the Commissioner in the exercise of the functions of the Commissioner under this Act with respect to the management of correctional centres and the transfer of inmates between correctional centres, the Commissioner may make use of the services of one or more contractors.(2) The engagement of a contractor for the management of a correctional centre, and its management by the contractor, may not be undertaken otherwise than in accordance with this Part.s 31A: Ins 1990 No 107, Sch 1 (7). Am 1996 No 25, Sch 5 [71].
31B Management of correctional centre under agreement
(1) The Commissioner may enter into an agreement (the management agreement) with a corporation (the management company) providing for the management of one or more correctional centres.(2) The management agreement must provide for:(a) compliance by the management company with the provisions of this Act and the regulations, and of any other Act or law, so far as they affect the correctional centre and the welfare of its inmates, and(b) objectives and performance standards for the contractor in relation to the management of the correctional centre, and(c) employment by the management company of a person competent to exercise the functions of the governor of the correctional centre and of sufficient and competent custodial and paramedical and other staff to enable it to discharge its obligations under the agreement, and(d) remuneration of the management company, and(e) submission to the Commissioner of periodic reports and audited accounts in relation to the management of the correctional centre, and(f) prohibition of subcontracting by the management company, except as provided by subsections (3A) and (3B) or to the extent otherwise approved by the Commissioner, and(g) indemnity by the management company of the Crown and the Commissioner for damage to the correctional centre and any associated public property in the possession or under the control of the management company, and(h) notification of any variation of the controlling interests in the management company or of its management structure, and(i) such other matters as may be prescribed by the regulations.(3) The management agreement may make such other provision, not inconsistent with this Act or the regulations, as may be agreed for or with respect to the management of the correctional centre by the management company.(3A) The management company may, with the approval of the Commissioner, enter an agreement (the submanagement agreement) with respect to the management of the correctional centre on its behalf and in accordance with the management agreement by another corporation (the submanagement company).(3B) The submanagement agreement may make such other provision, not inconsistent with this Act or the regulations, as may be agreed for or with respect to the management of the correctional centre by the submanagement company.(4) For the purposes of subsections (3) and (3B), a provision of an agreement is not inconsistent with this Act or the regulations in so far as it prescribes a standard that exceeds the standard provided by this Act or the regulations in relation to the health, diet or exercise of inmates or any other matter affecting their welfare.s 31B: Ins 1990 No 107, Sch 1 (7). Am 1993 No 89, Sch 4 (5); 1996 No 25, Sch 5 [72].
31C Authorisation of correctional centre staff
(1) A person must not be or continue to be employed, at a correctional centre managed under an agreement in accordance with this Part, to perform any of the duties of:(a) the governor of the correctional centre, or(b) a custodian of inmates, orunless the person is the holder of an authority issued by the Commissioner authorising the person to perform the duties concerned.(c) employment in any other capacity prescribed by the regulations,(2) The Commissioner may refuse to issue an authority under this section to a person:(a) if the person has not undertaken an accredited course of training or instruction relevant to the employment concerned, or(b) if, because of a criminal record, insufficient education, aspects of character or other matters, the Commissioner does not consider the person to be a fit and proper person to be so employed, or(c) for any other reason which the Commissioner thinks is a sufficient reason, in the public interest, for refusal.(3) An authority issued under this section to a person may be revoked by the Commissioner:(a) if, in the opinion of the Commissioner, having regard to the provisions of subsection (2), the authority ought not to have been issued, or(b) if the person has failed to comply with any of the provisions of this Act or the regulations or with any direction given to the person under this Act, orbut no such authority is to be revoked without affording the person concerned a reasonable opportunity to be heard.(c) for any other reason which the Commissioner thinks is a sufficient reason, in the public interest, for revocation of the authority,(4) The Commissioner may from time to time accredit courses of training or instruction for the purposes of this Part.s 31C: Ins 1990 No 107, Sch 1 (7). Am 1996 No 25, Sch 5 [73].
31D Status of staff at correctional centre managed under an agreement
(1) A person who, in accordance with this Part and any agreement in force under this Part with respect to the management of a correctional centre, is appointed by the management company or submanagement company under the agreement to exercise the functions of the governor of the correctional centre is, for the purposes of this Act and for all other purposes, the governor of the correctional centre.(2) A person employed for the purposes of an agreement in accordance with this Part is, in the performance of the duties of his or her employment, subject to:(a) the provisions of the regulations, and(b) any directions, not inconsistent with the regulations, given by the Commissioner either generally or in a particular case.(3) Subsection (2) does not limit the operation of section 6 (3), or any power conferred on the Commissioner, in relation to any correctional centre.(4) Despite any power or authority conferred by an agreement in accordance with this Part, or by the regulations, on any person employed by the management company or submanagement company in connection with the correctional centre concerned, a person so employed is not, for the purposes of this Act, a correctional officer, nor does the Public Sector Management Act 1988 apply to any such person on account of that employment.s 31D: Ins 1990 No 107, Sch 1 (7). Am 1993 No 89, Sch 4 (6); 1996 No 25, Sch 5 [74] [75].
31E Monitoring
(1) A person (in this section referred to as the monitor) is to be appointed under the Public Sector Management Act 1988 for the purposes of this section in respect of each correctional centre that is being managed under an agreement in accordance with this Part.(2) The monitor is to be appointed for a term of not more than 2 years, but is eligible for re-appointment from time to time.(3) The monitor is responsible to the Commissioner for the assessment and review of the management by the management company or submanagement company of the correctional centre concerned.(4) A monitor must make an annual report in writing to the Commissioner of his or her findings regarding the management of a correctional centre and any activity undertaken in accordance with a contract under this Part that affects the correctional centre (including any transportation of inmates to or from the correctional centre). That report is to form part of the annual report of the Department of Corrective Services prepared for the purposes of the Annual Reports (Departments) Act 1985.(4A) When making a report to the Commissioner under subsection (4), a monitor must give a copy of the report to the Inspector-General.(5) The monitor has such other functions as may be specified in the regulations and such additional functions as may be specified by the Commissioner from time to time.(6) The monitor is to have free and unfettered access at all times to every part of the correctional centre, to all correctional centre records and to all inmates and persons employed at the correctional centre.(7) To assist in the monitoring of such a correctional centre, and to encourage community involvement in the oversight of its management, the Minister is required to appoint a Community Advisory Council for the correctional centre. The Council is to consist of persons the Minister considers to be suitably qualified to serve on the committee and to be suitably representative of the interests of the local community.(8) The Community Advisory Council must make quarterly reports in writing to the Minister of its findings regarding the management of the correctional centre.(9) When making a report to the Minister under subsection (8), the Community Advisory Council must give a copy of the report to the Inspector-General.s 31E: Ins 1990 No 107, Sch 1 (7). Am 1993 No 89, Sch 4 (7); 1996 No 25, Sch 5 [76]; 1997 No 18, Sch 1 [4] [5].
31F Corrections Health Service
(1) For the purpose of ensuring that the provisions of this Act and the regulations, in so far as they relate to medical treatment and the health of inmates, are being complied with at a correctional centre that is being managed under an agreement in accordance with this Part, the Chief Executive Officer, Corrections Health Service is to have free and unfettered access at all times to every part of the correctional centre, to all medical records and to all inmates.(2) Nothing in this section:(a) affects the operation of section 9 or 16 or any power conferred on the Chief Executive Officer with respect to any correctional centre, or(b) affects any duty of the management company, the submanagement company or of a correctional centre medical officer under this Act or the regulations or any agreement.s 31F: Ins 1990 No 107, Sch 1 (7). Am 1993 No 89, Sch 4 (8); 1996 No 25, Sch 5 [77].
31G Investigation of corruption
While a correctional centre is being managed under an agreement in accordance with this Part, the Independent Commission Against Corruption Act 1988 and the regulations under that Act, with any necessary modifications:(a) apply to and in respect of the management company or submanagement company as if, in so far as it has functions under this Act or the agreement, it were a public authority within the meaning of that Act, and(b) apply to and in respect of every director or other officer of the management company or submanagement company, and any employee of the management company or submanagement company who under this Part requires an authority from the Commissioner in order to be such an employee, as if:(i) the director, officer or employee were, by virtue of his or her office or employment, a public official within the meaning of that Act, and(ii) any functions exercisable in the course of his or her office or employment were public official functions.ss 31G–31I: Ins 1990 No 107, Sch 1 (7). Am 1993 No 89, Sch 4 (9); 1996 No 25, Sch 5 [78].
31H Administrative complaints
While a correctional centre is being managed under an agreement in accordance with this Part, the Ombudsman Act 1974 and the regulations under that Act, with any necessary modifications:(a) apply to and in respect of the management company or submanagement company and the governor of the correctional centre as if, in so far as they have functions under this Act or the agreement, they were public authorities within the meaning of that Act, and(b) apply to and in respect of every director or other officer of the management company or submanagement company, and any employee of the management company or submanagement company who under this Part requires an authority from the Commissioner in order to be such an employee, as if he or she were, by virtue of his or her office or employment, a statutory employee within the meaning of that Act.ss 31G–31I: Ins 1990 No 107, Sch 1 (7). Am 1993 No 89, Sch 4 (9); 1996 No 25, Sch 5 [78].
31I Freedom of information
While a correctional centre is being managed under an agreement in accordance with this Part, the Freedom of Information Act 1989 and the regulations under that Act apply, with any necessary modifications, to and in respect of the management company or submanagement company and its members and employees:(a) as if the management company or submanagement company, in so far as it has functions under this Act or the agreement, were a local authority within the meaning of that Act, and(b) as if the managing director of the management company or submanagement company were its principal officer within the meaning of that Act, and(c) as if the Minister were its responsible Minister within the meaning of that Act.ss 31G–31I: Ins 1990 No 107, Sch 1 (7). Am 1993 No 89, Sch 4 (9); 1996 No 25, Sch 5 [78].
31J Minimum standards
(1) The Commissioner must cause to be prepared a written statement setting out minimum standards in relation to the exercise of any functions by a management company or submanagement company in accordance with this Part.(2) The Minister is required to cause the statement to be laid before each House of Parliament within 10 sitting days of that House after the execution of an agreement providing for the exercise of those functions by a management company or submanagement company.(3) The Commissioner may amend such a statement from time to time.(4) The Minister is required to cause the amended statement to be laid before each House of Parliament within 10 sitting days of that House after the statement is amended.(5) Nothing in this section requires a statement (including an amended statement) to be laid before a House of Parliament if such a statement in substantially the same terms has already been laid before that House.s 31J: Ins 1990 No 107, Sch 1 (7). Am 1993 No 89, Sch 4 (9).
Part 7 Offences
31K Definition
In this Part, place of detention means a place where a person is kept in lawful custody:(a) before being brought before a Justice or court in connection with the alleged commission of an offence, or(b) during proceedings to determine whether the person has committed an offence or while such proceedings are pending, or(c) following a grant of bail but before the person has fulfilled the necessary requirements entitling the person to be released, or(d) during any period for which the person is on remand, or(e) while awaiting sentencing for an offence or during sentencing proceedings, or(f) after the person is sentenced for an offence, or(g) as referred to in section 7 (2) of the Periodic Detention of Prisoners Act 1981, orand includes any vehicle or vessel in which the person is being conveyed in any of the circumstances referred to in the preceding paragraphs, but does not include a detention centre within the meaning of the Children (Detention Centres) Act 1987.(h) in accordance with a warrant of commitment or other warrant, or an order of a court,s 31K: Ins 1998 No 2, Sch 1 [4].
32 Rescuing person from lawful custody
Any person who, by force, rescues or attempts to rescue from lawful custody any inmate is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.s 32: Am 1996 No 25, Sch 5 [79]; 1999 No 94, Sch 4.94 [3].
33 Aiding escape
Any person who:(a) aids an inmate in escaping or attempting to escape from lawful custody, oris guilty of an indictable offence and liable to imprisonment for a term not exceeding seven years.(b) conveys anything or causes anything to be conveyed into a place of detention or to an inmate with intent to facilitate the escape of any inmate,s 33: Am 1988 No 46, Sch 2 (15); 1996 No 25, Sch 5 [80]; 1998 No 2, Sch 1 [5]; 1999 No 94, Sch 4.94 [3].
34 Escaping
(1) Any inmate in lawful custody who escapes or attempts to escape from that custody is guilty of an offence and liable to imprisonment for a term not exceeding 10 years.(2) A sentence of imprisonment imposed by a court under this section is to be imposed as a sentence that is cumulative on all previous sentences imposed by the court or to which the inmate is subject.s 34: Subst 1991 No 26, Sch 1 (1). Am 1996 No 25, Sch 5 [81]; 1999 No 94, Sch 4.94 [4].
34A Tunnels to facilitate escape
(1) An inmate in lawful custody who constructs, or takes part in the construction of, a tunnel which could reasonably be thought likely to be intended for use in facilitating the escape from lawful custody of any inmate is guilty of an offence and liable to imprisonment for a term not exceeding 10 years.(2) It is not necessary for the prosecution to prove that the tunnel was actually intended for use in facilitating such an escape, but it is a defence for the accused to establish that he or she did not intend it to be so used.(3) A sentence of imprisonment imposed by a court under this section is to be imposed as a sentence that is cumulative on all previous sentences imposed by the court or to which the inmate is subject.(4) In this section:tunnel includes any partially completed tunnel and any excavation.s 34A: Ins 1991 No 86, sec 3. Am 1996 No 25, Sch 5 [82]; 1999 No 94, Sch 4.94 [4].
35 Permitting escape
(1) Any person, who being an officer of a place of detention or a member of the Police Force, and having, for the time being, the actual custody of an inmate:(a) wilfully permits the inmate to escape from custody, is guilty of an indictable offence and liable to imprisonment for a term not exceeding seven years, or(b) negligently permits the inmate to escape from custody, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.(2) While a correctional centre is being managed under an agreement in accordance with Part 6A, a person employed by the management company as a custodian of inmates at, or travelling to or from, the correctional centre is, for the purposes of this section, an officer of the correctional centre.s 35: Am 1966 No 43, sec 7 (a); 1990 No 107, Sch 1 (8); 1996 No 25, Sch 5 [83]; 1998 No 2, Sch 1 [6]; 1999 No 94, Sch 4.94 [3].
36 Harbouring escapee
Any person who knowingly harbours, maintains or employs an escaped inmate shall be guilty of an offence and shall be liable:(a) if convicted on indictment—to imprisonment for a term not exceeding three years,(b) if convicted summarily—to a penalty not exceeding 50 penalty units.s 36: Am 1986 No 109, Sch 1 (4); 1988 No 131, Sch 18 (7); 1996 No 25, Sch 5 [84]; 1999 No 94, Sch 4.94 [4].
37 Trafficking
(1) A person must not, without lawful authority, bring or attempt by any means whatever to introduce into any place of detention any spiritous or fermented liquor.Maximum penalty: 6 months imprisonment or 10 penalty units, or both.(1A) A person must not, without lawful authority, bring or attempt by any means whatever to introduce into any place of detention any poison listed in Appendix D of Schedule Four, or in Schedule Eight, of the Poisons List in force under the Poisons Act 1966.Maximum penalty: 2 years imprisonment or 20 penalty units, or both.(1B) Section 40 of the Poisons Act 1966 applies to proceedings for an offence under subsection (1A) in the same way as it applies to legal proceedings under that Act.(1C) A person must not, without lawful authority, bring or attempt by any means whatever to introduce into any place of detention a number or amount of any prohibited drug or prohibited plant within the meaning of the Drug Misuse and Trafficking Act 1985 that is a number or amount (or less than a number or amount) constituting a small quantity of the drug or plant concerned within the meaning of that Act.Maximum penalty: 2 years imprisonment or 50 penalty units, or both.(1D) Section 43 of the Drug Misuse and Trafficking Act 1985 applies to proceedings for an offence under subsection (1C) in the same way as it applies to legal proceedings under that Act.(2) A person who enters or attempts to enter a place of detention and who is found to have any spirituous or fermented liquor or any prohibited drug, prohibited plant or poison in his or her possession may be arrested by a correctional officer who, for the purpose, shall have the same powers of arrest as a member of the Police Force.s 37: Am 1986 No 109, Sch 1 (5); 1988 No 46, Sch 2 (16); 1988 No 131, Sch 18 (8); 1996 No 25, Schs 1.1 [1]–[3], 5 [85]; 1997 No 55, Sch 2.3 [3]; 1998 No 2, Sch 1 [5].
37A Introduction or supply of syringes
(1) A person:(a) who introduces a syringe into a place of detention or attempts to introduce a syringe into a place of detention, oris guilty of an offence and liable to imprisonment for a term not exceeding 2 years.(b) who supplies a syringe to an inmate who is in lawful custody or attempts to supply a syringe to an inmate who is in lawful custody,(2) A person is not guilty of an offence of introducing or attempting to introduce a syringe into a place of detention if the person satisfies the court that the officer in charge of the place of detention had consented to the person’s introducing the syringe into the place of detention.(3) A person is not guilty of an offence of supplying or attempting to supply a syringe to an inmate in lawful custody if the person satisfies the court:(a) that the supply was authorised on medical grounds by a registered medical practitioner, and(b) if the inmate is in lawful custody in a place of detention, that the officer in charge of the place of detention had consented in writing to the supply.(4) In respect of an offence under this section, the powers of arrest of a police officer may be exercised:(a) by a correctional officer, or(b) in connection with an inmate (or any other person) at a correctional centre which is managed under an agreement in accordance with Part 6A—by a person employed by the management company as a custodian of inmates.(5) While absent from a correctional centre in any of the circumstances referred to in section 29A (Absent inmates deemed to be in custody), an inmate is taken to be in lawful custody for the purposes of an offence under this section only if the inmate is being escorted by a correctional officer (within the meaning of that section) or a police officer.(6) In this section, syringe means a hypodermic syringe and includes anything designed for use or intended to be used as part of such a syringe and a needle designed for use or intended to be used in connection with such a syringe.s 37A: Ins 1991 No 87, sec 3. Am 1996 No 25, Sch 5 [86] [87] (am 1996 No 121, Sch 2.19 [1]); 1998 No 2, Sch 1 [7]–[9]; 1998 No 120, Sch 2.7.
38 Miscellaneous offences
(1) Any person who without lawful authority:(a) enters or attempts to enter any place of detention,(b) communicates, or attempts to communicate with any inmate,(c) conveys or delivers, or causes to be conveyed or delivered, or in any manner whatsoever attempts to convey or deliver, or to cause to be conveyed or delivered to any inmate, or introduces or attempts to introduce into any place of detention, any money, letter or other document, clothing, or other article or thing,(d) conveys or receives for conveyance or causes to be conveyed or received for conveyance any letter or other document, clothing or any article or thing out of any place of detention,(e) loiters about or near any place of detention, oris guilty of an offence.(f) secretes or leaves at any place any money, letter, document, clothing, article or thing, for the purpose of being found or received by any inmate,Maximum penalty:(a) in relation to an offence referred to in subsection (1) (c), (d) or (f)—2 years imprisonment or 20 penalty units, or both, or(b) in all other cases—6 months imprisonment or 10 penalty units, or both.(2) In respect of any offence referred to in subsection (1), the powers of arrest of a police officer may be exercised:(a) by a correctional officer, or(b) in connection with a correctional centre which is managed under an agreement in accordance with Part 6A—by a person employed by the management company as a custodian of inmates.s 38: Am 1986 No 109, Sch 1 (6); 1988 No 46, Sch 2 (17); 1988 No 131, Sch 18 (8); 1990 No 107, Sch 1 (9); 1996 No 25, Schs 2 [2], 5 [88]; 1998 No 2, Sch 1 [5].
38A Prosecutions under sections 37 and 38
Proceedings for an offence against section 37 or 38 may be commenced within six months from the time when the facts first came to the knowledge of the Commissioner.s 38A: Ins 1966 No 43, sec 7 (b). Am 1970 No 6, sec 2 (2); 1978 No 155, sec 5 (a); 1988 No 46, Sch 1 (3).
38B Impersonating a correctional officer
A person who impersonates a correctional officer is guilty of an offence.Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.s 38B: Ins 1993 No 89, Sch 4 (10). Am 1996 No 25, Sch 5 [89].
Part 8 General
39 Custody of inmates
(1) Every inmate shall whilst detained in a correctional centre be deemed to be in the custody of the governor of the correctional centre to which the inmate has been committed or removed and the liability of the Sheriff or other person delivering such inmate shall cease on delivery of such inmate to the governor of the correctional centre.(2) An inmate does not cease to be in the custody of the governor of a correctional centre merely because the inmate is for the time being detained in some other part of a correctional complex (other than another correctional centre) of which the correctional centre forms part.s 39: Am 1988 No 46, Sch 2 (18); 1996 No 25, Sch 5 [90]–[93].
40 Responsibility of governors of correctional centres
Every governor of a correctional centre shall have the charge and superintendence of the correctional centre for which he or she is appointed and he or she shall be liable to answer for the escape of any inmate from his or her custody whenever such escape shall happen by or through his or her neglect or default, but not otherwise.s 40: Am 1996 No 25, Sch 5 [94].
40A Correctional centre delivery
(1) The Commissioner shall, at the times prescribed by regulations made under this Act, make returns in writing to the Supreme Court as to all persons detained in each correctional centre, otherwise than in pursuance of a sentence, for more than 3 months (or such lesser period as may be prescribed), giving the particulars prescribed by such regulations.(2) (Repealed)(3) After the receipt of such returns with respect to a correctional centre, the Court, sitting in open court in the exercise of the criminal jurisdiction of the Court, shall deliver such correctional centre.(4) Except as aforesaid, it shall not be obligatory on the Court to deliver any correctional centre, or for the Commissioner, unless so directed by the Court, to make any such returns.(5) For any of the purposes aforesaid the Court shall be constituted by any one Judge of the Court.s 40A: Ins 1970 No 52, Second Sch. Am 1990 No 108, Sch 1; 1993 No 89, Sch 4 (11); 1996 No 25, Sch 5 [95].
40B Evidence of imprisonment in correctional centre
In proceedings for an offence against this Act or the regulations, a certificate purporting to be signed by the Commissioner and to certify that a person specified in the certificate was detained in the custody of the governor of a correctional centre specified in the certificate on a date so specified or during any period so specified, shall, without proof of the signature or of the official character or authority of the person purporting to have signed the certificate, be prima facie evidence that the person specified in the certificate was an inmate in lawful custody on the date so specified or during the period so specified.s 40B: Ins 1986 No 109, Sch 1 (7). Am 1988 No 46, Sch 1 (7); 1996 No 25, Sch 5 [96].
40C Delegations by governors of correctional centres
The governor of a correctional centre may (with the approval of the Commissioner) delegate to a person any of the governor’s functions, other than this power of delegation or functions delegated to the governor by the Commissioner.s 40C: Ins 1993 No 89, Sch 4 (12); 1996 No 25, Sch 5 [97].
41 Expiration of sentence
(1) An inmate may be discharged from detention in a correctional centre at any time during the 24 hours before the time at which the inmate would otherwise be due to be discharged from detention in a correctional centre.(2) The discharge of any inmate from detention in a correctional centre may, with the inmate’s consent, be delayed during any Saturday, Sunday or public holiday to the first day following that is not a Saturday, Sunday or public holiday.(3) (Repealed)s 41: Am 1966 No 43, sec 8 (a) (am 1968 No 8, sec 2); 1970 No 6, sec 2 (2); 1978 No 155, sec 5 (a), Sch 1 (11); 1983 No 132, Sch 1 (4); 1986 No 45, sec 3; 1986 No 188, Sch 1 (1); 1988 No 46, Sch 1 (3). Subst 1989 No 87, Sch 3 (5); 1993 No 89, Sch 4 (13). Am 1994 No 30, Sch 5; 1996 No 25, Sch 5 [98].
41A Royal prerogative of mercy preserved
Nothing in this Act shall be so construed as to limit or affect in any manner the Royal prerogative of mercy.s 41A: Ins 1966 No 43, sec 8 (b). Am 1986 No 188, Sch 1 (2); 1989 No 132, Sch 1.
42 Address of warrant
(1) Any writ, warrant or other instrument addressed to the governor of a correctional centre describing the correctional centre by its situation or other definite description shall be valid by whatever title such correctional centre is usually known or whatever be the formal description of the correctional centre.A warrant of commitment addressed to the governor or keeper of any correctional centre may be received by the governor or keeper of any other correctional centre or, subject to subsection (2), by the person in charge of any lock-up or police station.A warrant of commitment addressed to the person in charge of a lock-up or police station may be received by the person in charge of any other lock-up or police station or by the governor or keeper of any correctional centre.(2) Nothing in this section authorises the detention of an inmate for the whole or part of a term of imprisonment in one or more lock-ups or police stations for any period that exceeds one month.s 42: Am 1966 No 43, sec 8 (c); 1970 No 6, sec 4 (b); 1996 No 25, Sch 5 [99].
42A Transport and custody of persons in connection with proceedings
(1) A person who is in lawful custody:(a) before being brought before a Justice or court in connection with the alleged commission of an offence, or(b) during proceedings to determine whether the person has committed an offence or while such proceedings are pending, or(c) following a grant of bail but before the person has fulfilled the necessary requirements entitling the person to be released, or(d) during any period for which the person is on remand or awaiting sentencing for an offence, during sentencing proceedings, or during any period after the person is sentenced for an offence, but before the person is delivered to the governor of a correctional centre, or(e) as referred to in section 7 (2) of the Periodic Detention of Prisoners Act 1981, ormay be given into the keeping of a correctional officer.(f) in accordance with a warrant of commitment or other warrant, or an order of a court,(2) A correctional officer into whose keeping a person has been given under this section:(a) may convey the person to any correctional centre, lock-up, police station or court cell, or to any other place in accordance with a direction of a court, and(b) may detain the person in the correctional centre, lock-up, police station, court cell or other place.(3) While a person is in the keeping of a correctional officer in accordance with this section, the person is taken to be in the custody of the designated officer.(4) Subject to the regulations:(a) the designated officer has, in relation to a person taken to be in the officer’s custody by virtue of this section, all the powers and duties that the governor of a correctional centre has in relation to an inmate, and(b) a person taken to be in the designated officer’s custody by virtue of this section has all the rights of an inmate.(5) Subsection (4) (b) does not affect any other right that the person in custody may have apart from that paragraph.(6) The regulations may:(a) limit the powers and duties of the designated officer in relation to persons taken to be in the custody of the designated officer by virtue of this section, and(b) limit the rights that a person in custody has under subsection (4) (b).(7) A warrant of commitment or other warrant, or an order of a court, authorising the detention of a person or the conveyance of a person to a place of detention authorises a correctional officer to convey the person to the place of detention referred to in the warrant or order.(8) In this section:correctional officer means:(a) a correctional officer engaged in court security or escort duties, or(b) a person employed on a temporary basis within the Department of Corrective Services to perform court security or escort duties, or(c) a person holding an authority under section 31C authorising the person to perform escort duties.designated officer means a person designated by the Commissioner for the purposes of this section, whether designated generally or for a particular case.(9) This section is subject to the Children (Detention Centres) Act 1987.s 42A: Ins 1998 No 2, Sch 1 [10].
43 Notice to coroner of inmate’s death
Upon the death of an inmate the governor of the correctional centre in whose custody the inmate was when the inmate died shall forthwith give notice of the death to a coroner who upon receipt of the notice shall for the purposes of the Coroners Act 1980 be deemed to have been informed of the death by a member of the police force.s 43: Subst 1980 No 34, sec 3. Am 1996 No 25, Sch 5 [100].
44 Attendance of inmates before courts and court officers
(1) If an appropriate person or body is satisfied that it is necessary that an inmate should attend before it, him or her for the purposes of any legal proceeding, inquest or inquiry then pending and that the absence of the inmate may prejudice the rights of a party, the person or body may make an order directing the governor of the correctional centre in which the inmate is imprisoned to cause the inmate to be produced at the court or other place at which the proceeding, inquest or inquiry is being held.(2) Such an order is sufficient authority for the governor to cause the inmate to be produced in accordance with the terms of the order.(3) An inmate produced in accordance with such an order is taken to be in lawful custody while in the actual custody of the governor of the correctional centre, an officer or a police officer.(4) It is the duty of the governor, officer or police officer having actual custody of the inmate to return the inmate to the correctional centre from which the inmate was produced as soon as the appropriate person or body permits.(5) In this section, appropriate person or body means:(a) a court of record, a judge of such a court or a person constituting such a court, or(b) the Victims Compensation Tribunal, or(c) a coroner, or(d) a Clerk of a Local Court, a Registrar of the Children’s Court, a Registrar or assistant Registrar of the District Court, a Registrar or Deputy Registrar of the Supreme Court or the Registrar of the Court of Criminal Appeal, or(e) a person prescribed by the regulations for the purposes of this definition.s 44: Am 1993 No 89, Sch 4 (14) (am 1994 No 32, Sch 2); 1994 No 32, Sch 1; 1996 No 25, Schs 5 [101] [102], 6 [1]; 1996 No 115, Sch 4.2. Subst 1996 No 111, Sch 1.7. Am 1998 No 54, Sch 2.5 [2]–[6].
45 Sentences to be served in lock-up
(1) Whenever a court of summary jurisdiction:(a) awards imprisonment, orand in any such case the term of imprisonment is for a period not exceeding one month, it may order such imprisonment to be served in the lock-up or police station specified in the order.(b) commits a person to a correctional centre in default of payment of any fine, penalty, costs or sum of money imposed on or ordered to be paid by such person by any court of summary jurisdiction, or in default of entering into a recognizance to be of good behaviour upon the order of any court of summary jurisdiction,(2) Where an inmate is serving the whole or any part of a term of imprisonment in a lock-up or police station, whether by virtue of the operation of this section or section 42, any justice may by direction under his or her hand order that the inmate work within the precincts of such lock-up or police station in accordance with instructions given by any member of the Police Force on duty at such lock-up or police station.(3) Any inmate who refuses to obey any order given under subsection (2) or who is guilty of idleness or negligence in his or her work under such order, shall be guilty of an offence and on summary conviction shall be liable to imprisonment for a period not exceeding one month.s 45: Am 1970 No 6, sec 4 (c); 1996 No 25, Sch 5 [103]; 1998 No 54, Sch 2.5 [7].
45A Use of dogs in maintaining good order and security
(1) A correctional officer may, with the approval of the governor of a correctional centre, use a dog to assist in maintaining the good order and security of the correctional centre.(2) Without limiting the generality of subsection (1), the approval of the governor of a correctional centre may be given to any of the following:(a) the carrying out of searches within a correctional centre or correctional complex for any reason,(b) the tracking of an escaped inmate,(c) the escorting of inmates while they are being moved from one place to another,(d) the disarming of inmates,(e) the patrolling of correctional centres and correctional complexes,(f) the assisting of a member of the Police Force in the execution of the member’s functions.(2A) At the request of the Director-General of the Department of Juvenile Justice, a correctional officer may use a dog to assist in the detection of drugs in a detention centre within the meaning of the Children (Detention Centres) Act 1987.(3) Without limiting the generality of section 46, a correctional officer is not personally liable for injury or damage caused by the use of a dog under the correctional officer’s control if that use was in accordance with the governor’s approval.(4) Subsection (3) does not apply if injury or damage occurs as a result of anything commanded to be done by a correctional officer maliciously and without reasonable and probable cause.(5) While a correctional centre is being managed under an agreement in accordance with Part 6A, this section applies to a person employed by the management company as a custodian of inmates in the same way as it applies to a correctional officer.s 45A: Ins 1988 No 46, Sch 2 (19). Am 1990 No 107, Sch 1 (10); 1996 No 25, Sch 5 [104] [105] (am 1996 No 121, Sch 2.19 [2]) [106] [107]; 1999 No 67, Sch 3.2.
46 Civil and criminal liability
(1) No action or claim for damages shall lie against any person for or on account of anything done or commanded to be done by the person and purporting to be done for the purpose of carrying out the provisions of this Act, unless it is proved that such act was done or commanded to be done maliciously and without reasonable and probable cause.(2) No civil or criminal liability is incurred by a person in respect of:(a) anything properly and necessarily done by the person in the course of carrying out a medical examination or medical test if the person believed on reasonable grounds that the examination or test was authorised or required to be carried out by this Act or the regulations, or(b) the disclosure, in accordance with the regulations, of information obtained in the course of any such examination or test.s 46: Am 1990 No 40, Sch 1 (1).
47 Proceedings for offences
(1) Subject to Part 4, proceedings for offences against this Act or the regulations (not being offences arising under sections 32–36) shall be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.(2) Part 9A of the Criminal Procedure Act 1986 (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an offence against this Act (other than an offence under section 32) for which a sentence of imprisonment may be imposed.s 47: Rep 1977 No 19, Sch 1. Ins 1988 No 188, Sch 3 (5). Am 1995 No 22, Sch 2; 1999 No 94, Sch 4.94 [5] [6].
48 Penalties
All penalties imposed by or under this Act shall be paid into the Consolidated Revenue Fund.
48A Research work—records and information
(1) Any person or organisation, who or which satisfies the Commissioner that the person or the organisation is undertaking investigations or research work in connection with the administration of correctional centres, the rehabilitation of inmates and the circumstances relating to their convictions and terms of imprisonment, or some other aspect of penology, may be supplied by the Commissioner with such records and information relating to inmates and persons who have been imprisoned or the administration of correctional centres as the Commissioner may direct. Any such records or information shall not be used otherwise than in accordance with such directions and shall not be used in a manner which would disclose the identity of the persons to whom such records relate or information relates.(2) The Department of Corrective Services may either alone or in conjunction with a University body or other persons or organisations undertake the like investigations or research work as is referred to in subsection (1).(3) Any person or organisation who or which uses or discloses any records or information supplied to the person or the organisation in contravention of any direction of the Commissioner or of subsection (1) shall be liable to a penalty not exceeding 2 penalty units.s 48A: Ins 1966 No 43, sec 8 (d). Am 1970 No 6, sec 2 (1) (c) (2); 1978 No 155, sec 5 (a), Sch 1 (12); 1988 No 46, Sch 1 (3); 1993 No 47, Sch 1; 1996 No 25, Sch 5 [108].
48B Funds payable to certain organisations
The Minister may, out of moneys provided by Parliament for the purpose, make payments to such bodies or organisations undertaking the provision of aid and assistance to discharged inmates and the relatives of inmates as the Minister may approve. Any such payments shall be subject to such terms and conditions as the Minister may impose.s 48B: Ins 1966 No 43, sec 8 (d). Am 1996 No 25, Sch 5 [109].
48C (Repealed)
s 48C: Ins 1970 No 6, sec 4 (d). Am 1978 No 155, sec 5 (a), Sch 1 (13). Rep 1986 No 188, Sch 3 (6).
48D Delegation by Commissioner
The Commissioner may delegate to a person any of the Commissioner’s functions, other than this power of delegation.s 48D: Ins 1977 No 64, sec 2 (b). Subst 1978 No 155, Sch 1 (14). Am 1986 No 35, Sch 2. Subst 1988 No 46, Sch 1 (8).
48E Oath or affirmation of office
(1) The Commissioner, a Deputy Commissioner or a correctional officer may take the oath set out in Schedule 6 or make the affirmation set out in Schedule 7.(2) A person who, having been appointed as the Commissioner, a Deputy Commissioner or a correctional officer, neglects to take the oath or make the affirmation for the period of one month after the appointment is made shall, unless the person has previously taken or made the relevant oath or affirmation, be deemed to have declined the appointment, and:(a) in the case of the Commissioner or a Deputy Commissioner, shall be deemed to have vacated the office, and(b) in the case of a correctional officer, shall be deemed to revert to the rank (if any) previously held by the person.(3) Subsection (2) does not apply to an appointment as a commissioned correctional officer held by a person at the commencement of this section, but does apply to a subsequent appointment (including a subsequent re-appointment) of the person to another rank as commissioned correctional officer.(3A) Subsection (2) does not apply to an appointment as a non-commissioned correctional officer held by a person at the commencement of the Prisons (Amendment) Act 1985, but does apply to a subsequent appointment (including a subsequent re-appointment) of the person as a commissioned correctional officer or to another rank as non-commissioned correctional officer.(4) Subsections (2), (3) and (3A) do not apply to an acting or temporary appointment.(5) The oath or affirmation shall:(a) be administered or received by a Justice of the Peace,(b) be subscribed by the person by whom it is taken or made, and(c) be forwarded by the Justice of the Peace before whom it is taken or made to the Minister or such person as may be prescribed.s 48E: Ins 1984 No 63, Sch 2 (1). Am 1985 No 26, Sch 1 (6); 1988 No 46, Sch 1 (9); 1996 No 25, Sch 5 [110].
49 (Repealed)
s 49: Am 1970 No 6, sec 2 (2); 1978 No 155, sec 5 (a). Rep 1986 No 188, Sch 3 (7).
50 Regulations
(1) The Governor may make regulations prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and in particular and without prejudice to the generality of the foregoing, may make regulations for and with respect to:(a) the management, control, good government, supervision and inspection of correctional centres and correctional complexes,(a1) the visits and examinations of correctional centres by Official Visitors and the holding of inquiries and the making of reports by Visiting Justices and persons appointed under section 11A (1),(a2) the functions of Official Visitors, including inquiries by Official Visitors, the receiving of and dealing with complaints by Official Visitors and the furnishing of reports by Official Visitors,(b) the exercise and diet of inmates,(c) the classification and separation of inmates,(d) the manner in which inmates may deal with property held in the custody of the governor of a correctional centre,(d1) the confiscation of property unlawfully in the possession of inmates,(d2) the disposal of unclaimed property and confiscated property,(d3) the expenditure of money within correctional centres and correctional complexes by inmates,(e) the recording of the personal description of inmates,(f) the payments to inmates for work performed or for other reasons,(g) visits to or inspection of correctional centres and correctional complexes by persons other than officers engaged in the administration of this Act and admission generally to correctional centres,(h) the religious ministrations to inmates and Divine service within correctional centres,(i) visits to and correspondence by and with inmates,(j) the education and vocational training of inmates,(j1) requiring inmates to undergo breath tests, to supply specimens of urine and to undergo other tests and provide other specimens in connection with the good order, discipline and health of inmates,(j2) the analysis of any such test or specimen and the admission as prima facie evidence in any proceedings of certificates relating to the results of any such analysis,(j3) the distribution and use of condoms in correctional centres and correctional complexes,(j4) requiring inmates to undergo examinations and tests and provide specimens for the purpose of testing for evidence of exposure to or infection by Human Immunodeficiency Virus,(j5) authorising the disclosure of information obtained in the course of testing referred to in paragraph (j4) (including regulations restricting the persons to whom any such information can be disclosed),(k) all matters necessary or expedient for the good order, discipline and health of inmates,(k1) the use of dogs for the purposes of this Act,(k2) the use of firearms for the purposes of this Act,(l) the times for the making of returns to the Supreme Court for correctional centre delivery,(m) the particulars to be given in returns to the Supreme Court for correctional centre delivery,(m1) the form of documents to be used for the purposes of this Act,(m2) the eligibility of inmates to apply for permits pursuant to section 29 (2), applications for permits, the frequency of issue of permits, the conditions of permits and the giving of notices to inmates to whom permits have been granted,(m3) the eligibility of inmates to apply for orders pursuant to section 29 (1), applications for orders, the frequency of the making of orders, the conditions of orders and the giving of notices to inmates to whom an order relates,(n) the determining of the order of ranking of the various ranks of correctional officers or the order of ranking of particular ranks of correctional officers in relation to other ranks of correctional officers,(o) the conduct and functions of correctional officers and other persons employed in or about a correctional centre or correctional complex,(p) the striking, awarding and wearing of medallions and the conferring of awards for bravery, good conduct and long service of officers of the Department of Corrective Services.(1A) A provision of a regulation may:(a) apply generally or be limited in its application by reference to specified exceptions or factors,(b) apply differently according to different factors of a specified kind, oror may do any combination of those things.(c) authorise any matter or thing to be from time to time determined, applied or regulated by any person or body specified or described in the regulation,(1B) Without prejudice to the generality of subsection (1) (d2), a regulation with respect to the disposal of unclaimed property or confiscated property may:(a) provide that such property becomes the property of the Crown, to be disposed of as the Commissioner thinks fit, oror may do both of those things.(b) provide that such property may be sold by the Commissioner, the proceeds of any such sale to be dealt with as if those proceeds were unclaimed money held by the Commissioner,(2) The regulations may impose (except in the case of a correctional centre offence) a penalty not exceeding 20 penalty units for any breach thereof.(3) The generality of any power conferred by subsection (1) to make regulations is not to be construed as being limited by the specificity of any other power conferred by that subsection.s 50: Am 1966 No 43, sec 8 (e); 1970 No 52, Second Sch; 1978 No 155, Sch 3 (10); 1984 No 63, Sch 1 (3); 1985 No 26, Sch 1 (7); 1986 No 109, Sch 1 (8); 1986 No 188, Sch 2 (3); 1987 No 48, Sch 32; 1988 No 46, Schs 1 (3), 2 (20); 1988 No 131, Sch 18 (8); 1990 No 40, Sch 1 (2); 1990 No 108, Sch 1; 1993 No 89, Sch 4 (15); 1996 No 25, Sch 5 [111]–[114] [115] (am 1996 No 121, Sch 2.19 [3]); 1997 No 55, Sch 2.3 [4]; 1998 No 2, Sch 1 [11].
51, 52 (Repealed)
s 51: Rep 1957 No 19, Sch.
s 52: Rep 1964 No 74, Sch 2.
Part 9 Inmates received from the Australian Capital Territory
pt 9, hdg: Ins 1968 No 42, sec 2 (b). Am 1996 No 25, Sch 5 [116].
pt 9: Ins 1968 No 42, sec 2 (b). Am 1994 No 32, Sch 1 (“Commonwealth Act” omitted wherever occurring, “ACT Act” inserted instead).
53 Definitions
(1) In this Part, unless the contrary intention appears:, constable, court, magistrate and order have the same respective meanings as in section 3 (1) of the ACT Act.correctional centre has the same meaning as prison does in section 3 (1) of the ACT Act.Territory means the Australian Capital Territory.the Governor-General has the meaning ascribed to that expression by the Acts Interpretation Act 1901 of the Parliament of the Commonwealth.warrant means a warrant issued in accordance with the provisions of the ACT Act.(2) A reference in this Part to the ACT Act is a reference to the Removal of Prisoners Act 1968 of the Territory.(3) Where the Governor-General has commuted a sentence of death pronounced on a person to a term of imprisonment, this Part applies to and in relation to the person as if the sentence of death had been a sentence of imprisonment for that term.(4) For the purposes of this Part, a reference to an order of a court or magistrate includes a reference to a warrant issued by a court or a magistrate, other than a warrant as defined by subsection (1).s 53: Ins 1968 No 42, sec 2 (b). Am 1978 No 155, Sch 3 (11); 1988 No 46, Sch 2 (21); 1994 No 32, Sch 1; 1996 No 25, Sch 5 [117].
53A Application of this Part
This Part does not apply to a person who is the subject of a direction by the Attorney-General of the Territory under section 6A of the ACT Act.s 53A: Ins 1994 No 32, Sch 1.
54 Conveyance and detention of inmates from the Territory
(1) Where a constable has a person in custody in accordance with the terms of a warrant, it is lawful for the constable to hold and deal with the person in accordance with those terms.(2) The governor of a correctional centre or any other officer doing duty at a correctional centre shall accept custody of any person delivered into his or her custody by a constable in accordance with a warrant and the person shall thereafter, subject to this Part, be detained in that correctional centre or any other correctional centre in this State for the period, as referred to in the warrant, necessary for the execution of the order or sentence of the court or magistrate so referred to, unless the person’s earlier release is authorized by the exercise of the Royal prerogative of mercy or by reason of the operation of any law of the Commonwealth, or of any law in force in the Territory, relating to the release of offenders.(3) Subject to the provisions of the ACT Act, a person referred to in subsection (2), until the person is released from custody or delivered into the custody of a constable in accordance with a warrant, may be dealt with in the like manner, and is subject to the like laws, as if the order or sentence of the court or magistrate in respect of the person had been a like order or sentence made or pronounced under a law in force in this State.s 54: Ins 1968 No 42, sec 2 (b). Am 1978 No 155, Sch 3 (12); 1996 No 25, Sch 5 [118].
55 Returns of persons to the Territory
Where a person (in this section referred to as the inmate) is being detained in a correctional centre under this Part and a constable has presented to the governor of the correctional centre a warrant requiring the person in charge of the correctional centre to deliver the inmate into the custody of the constable and requiring the constable into whose custody the inmate is delivered to convey the inmate in custody to the Territory, the governor of the correctional centre shall deliver the inmate into the custody of the constable and the warrant shall be sufficient authority for the constable to convey the inmate in custody to the Territory.s 55: Ins 1968 No 42, sec 2 (b). Am 1996 No 25, Sch 5 [119].
56 Application of this Part to inmates in custody at commencement of this Part
This Part applies to and in relation to a person who was, before the commencement of this Part, placed in custody in a correctional centre for the purpose of giving effect to an order or sentence of a court or magistrate and has not been released before that commencement, as if:(a) the ACT Act and this Part had been in force at the time the person was placed in custody,(b) the person had been delivered into the custody of the governor of that correctional centre in accordance with the terms of a warrant issued in relation to that order or sentence, and(c) the detention of the person before the commencement of this Part had been detention in accordance with this Part.s 56: Ins 1968 No 42, sec 2 (b). Am 1996 No 25, Sch 5 [120].
57 Validation
(1) Where, before the commencement of this Part, a person has undergone a period of imprisonment in a correctional centre by way of execution or purported execution of a sentence of imprisonment imposed under a law as in force in the Territory, whether or not the person is in a correctional centre at the commencement of this Part, the person shall be deemed to have duly served that period of imprisonment in accordance with that sentence or law.(2) (Repealed)s 57: Ins 1968 No 42, sec 2 (b). Am 1994 No 32, Sch 1; 1996 No 25, Sch 5 [121].
58 Evidentiary provision
A document purporting to be a warrant and to be under the hand of an authorized person shall be admissible in any proceedings and shall, in all courts exercising jurisdiction in this State and upon all occasions, be prima facie evidence of the particulars stated in the document.s 58: Ins 1968 No 42, sec 2 (b).
Part 10 Serious Offenders Review Council
pt 10: Ins 1989 No 219, Sch 1 (2). Subst 1993 No 89, Sch 1 (2). For information concerning this Part before the commencement of 1989 No 219, Sch 1 (2), see the historical table of amendments in the Legislative history.
59 Definition
In this Part:serious offender means:(a) a person serving a sentence of imprisonment for life, or(b) a person serving any sentence for which a minimum term and an additional term have been set by the Supreme Court under section 13A of the Sentencing Act 1989, or(c) an offender who is serving a minimum term of imprisonment of 12 years or more, or(d) a person who is to be managed as a serious offender in accordance with a decision of the Commissioner until such time as the Commissioner revokes that decision, or(e) a person who is being managed as a serious offender in accordance with a decision made by a sentencing court or the Parole Board, or(f) a person convicted of murder and who is subject to a minimum term and an additional term of imprisonment, or a fixed term of imprisonment, in respect of the conviction, or(g) an offender who belongs to a class of offenders prescribed by the regulations as serious offenders.s 59: Ins 1989 No 219, Sch 1 (2). Subst 1993 No 89, Sch 1 (2). Am 1996 No 144, Sch 2 [1] [2]; 1997 No 18, Sch 1 [6]; 1999 No 94, Sch 4.94 [7].
60 Constitution of the Review Council
There is constituted by this Act the Serious Offenders Review Council.s 60: Ins 1989 No 219, Sch 1 (2). Subst 1993 No 89, Sch 1 (2).
61 Membership of the Review Council
(1) The Review Council is to consist of:(a) 6 members appointed by the Governor, and(b) 2 official members, being officers of the Department of Corrective Services nominated for the time being by the Commissioner.(2) Of the members appointed by the Governor:(a) 3 are to be judicially qualified persons, and(b) 3 are to be community members (not being officers of the Department of Corrective Services) appointed to represent the community or any significant portion of the community.(3) For the purposes of subsection (2) (a), judicially qualified persons are:(a) Judges or retired Judges of a New South Wales Court or the Federal Court, or(b) Magistrates or retired Magistrates, or(c) persons qualified to be appointed as a Judge of a New South Wales Court.s 61: Ins 1989 No 219, Sch 1 (2). Subst 1993 No 89, Sch 1 (2). Am 1996 No 144, Sch 2 [3] [4]; 1997 No 57, Sch 1 [1] [2].
62 Functions of the Review Council
(1) The functions of the Review Council are as follows:(a) to provide advice and make recommendations to the Commissioner with respect to the following:• the security classification of serious offenders,• the placement of serious offenders,• developmental programs provided for serious offenders,(b) to provide reports and advice to the Parole Board concerning the release on parole of serious offenders,(c) to prepare and submit reports to the Supreme Court with respect to applications under section 13A of the Sentencing Act 1989,(d) to exercise the functions conferred on it by sections 22C–22F in relation to the review of directions for the segregation or holding in protective custody of inmates, or of directions for the extension of segregation or holding in protective custody of inmates,(e) to provide reports and advice to the Minister,(f) to provide reports and advice to such other persons or bodies as may be prescribed by the regulations,(g) to perform such other functions as may be prescribed by the regulations in relation to the management of serious offenders and other inmates.(2) When exercising its functions under subsection (1) (a) in relation to a serious offender, the Review Council is to consider the public interest and any other relevant matters.(3) Without limiting the generality of the meaning of public interest in subsection (2), the Review Council is to take into account the following matters when considering the public interest:(a) the protection of the public, which is to be paramount,(b) the nature and circumstances of the crime,(c) the reasons and recommendations of the sentencing court,(d) the criminal history and family background of the offender,(e) the time served in custody and the time to be served,(f) the conduct of the offender while in custody, including conduct during previous imprisonment, if applicable,(g) the attitude of the offender,(h) the position of and consequences to the victim, including the victim’s family,(i) the need to maintain public confidence in the administration of criminal justice,(j) the need to reassure the community that serious offenders are in secure custody as long as it is appropriate,(k) the rehabilitation of the offender and the re-entry of the person into the community as a law-abiding citizen,(l) the availability of family, departmental and other support,(m) such other factors as are prescribed by the regulations.s 62: Ins 1989 No 219, Sch 1 (2). Subst 1993 No 89, Sch 1 (2). Am 1996 No 25, Schs 3 [20], 5 [125]; 1996 No 144, Sch 2 [5] [6].
62AA Matters to be considered concerning certain serious offenders
(1) This section applies to a person serving an existing life sentence (as referred to in section 13A of the Sentencing Act 1989) or a sentence in respect of which a determination has been made under section 13A (4) of that Act.(2) The Review Council, in exercising its functions under section 62 (1) (b) and (c), and under any other prescribed provisions of this Act or the regulations, in relation to a person to whom this section applies:(a) must have regard to and give substantial weight to any relevant recommendations, observations and comments made by the original sentencing court when imposing the sentence concerned, and(b) must give consideration to adopting or giving effect to their substance and the intention of the original sentencing court when making them, and(c) must, to the extent that it declines to adopt or give effect to those matters, state its reasons for doing so.(3) The Review Council, in exercising its functions under section 62 (1) (b) and (c), and under any other prescribed provisions of this Act or the regulation, in relation to a person to whom this section applies, must in particular have regard to the need to preserve the safety of the community.s 62AA: Ins 1997 No 6, Sch 2.
62A Victim submissions and State submissions involving serious offenders
(1) This section applies to a recommendation of the Review Council to the Commissioner for a change in the security classification of a serious offender, where the change, if approved by the Commissioner, would make the offender eligible for consideration for unescorted leave of absence under section 29.(2) The Review Council cannot make such a recommendation unless it has given notice, in accordance with the regulations, that it proposes to give an opportunity for submissions about the offender to be made by victims.(3) The notice must specify a period of at least 14 days during which any such submissions may be lodged with the Review Council.(4) If such a submission is lodged within that 14-day period, the Review Council must give notice of that fact to the offender and indicate in the notice that the offender may lodge submissions with the Review Council within a specified period of 14 days.(5) Submissions made by victims can be in writing only.(6) The Review Council is required to consider all relevant submissions lodged within the relevant 14-day period before deciding whether to make such a recommendation.(7) The State may also make submissions to the Review Council concerning a recommendation to which this section applies and, if it does so, the Review Council is not to make a final decision concerning the matter until it has taken any such submission into account. The powers of the State under this subsection may be exercised, subject to the regulations, by any agent of the State.(8) In this section:victim of a serious offender, means a person whose name is recorded in the Victims Register under section 22M of the Sentencing Act 1989 as a victim of that offender.s 62A: Ins 1996 No 144, Sch 2 [7].
63 Establishment of a Serious Offenders Management Committee
(1) The Review Council may establish, and appoint the members of, a Serious Offenders Management Committee and, subject to this section, delegate to that Management Committee such of its functions as the Review Council determines.(2) The Management Committee is to be constituted by a Chairperson and such number of officers of the Department of Corrective Services as may be determined by the Review Council. The Review Council is to determine the quorum for a meeting of the Management Committee.(3) An official member of the Review Council is to be the Chairperson of the Management Committee.(4) The Chairperson of the Management Committee may establish subcommittees of the Management Committee for the purpose of assisting it in the exercise of its functions.(5) The Chairperson of the Management Committee is to determine the procedure for the calling of meetings of the Management Committee and for the conduct of business at those meetings.(6) The procedure for the calling of meetings of a subcommittee and for the conduct of business at those meetings is to be determined by the Chairperson of the Management Committee or (subject to any determination of the Chairperson) by the subcommittee.(7) The functions of the Review Council that may be delegated to the Management Committee include (but are not limited to) the following:(a) the functions relating to the security classification and management of serious offenders,(b) the functions relating to the review of developmental programs provided for such offenders.(8) The Review Council may not delegate to the Management Committee its functions relating to:(a) the submission of reports to the Supreme Court with respect to applications under section 13A of the Sentencing Act 1989, or(b) the submission of reports to, or representation before, the Parole Board.s 63: Ins 1989 No 219, Sch 1 (2). Subst 1993 No 89, Sch 1 (2). Am 1996 No 144, Sch 2 [8].
64 Security of certain information
Nothing in this Part requires a person to be provided with a copy of a report or another document (or any part of the report or document) if, in the opinion of a judicial member of the Review Council, its provision to the person might:(a) adversely affect the security, discipline or good order of a correctional centre, or(b) endanger the person or any other person, or(c) jeopardise the conduct of any lawful investigation, or(d) be against the public interest.s 64: Ins 1989 No 219, Sch 1 (2). Subst 1993 No 89, Sch 1 (2). Am 1996 No 25, Sch 5 [126].
65 Annual reports
The Review Council must, as soon as practicable after 31 December in each year, supply to the Minister for presentation to Parliament a report giving information as to the Review Council’s activities during that year.s 65: Ins 1989 No 219, Sch 1 (2). Subst 1993 No 89, Sch 1 (2).
66 Provisions relating to members, Divisions and procedure of the Review Council
Schedule 5 has effect with respect to the Review Council.s 66: Ins 1989 No 219, Sch 1 (2). Subst 1993 No 89, Sch 1 (2). Am 1997 No 57, Sch 1 [3].
67–72 (Repealed)
ss 67–72: Ins 1989 No 219, Sch 1 (2). Rep 1993 No 89, Sch 1 (2).
Part 11
(Repealed)
pt 11: Rep 1989 No 87, Sch 3 (8). For information concerning this Part before the commencement of 1989 No 87, Sch 3 (8), see the historical table of amendments in the Legislative history.
Schedule 1
(Section 3 (1))
Reference to Act | Title or short title | Extent of repeal |
No 27, 1899 | The whole Act. | |
No 11, 1908 | The whole Act. | |
No 12, 1908 | Section 16. | |
No 9, 1913 | Section 2. | |
No 20, 1918 | The whole Act. | |
No 34, 1918 | The whole Act. | |
No 33, 1931 | Section 10 (2). | |
No 19, 1944 | Section 2. |
sch 1, hdg: Subst 1978 No 155, Sch 1 (15).
Schedule 2
(Section 3 (4))
The State Penitentiary at MalabarThe State Reformatory for Women at Malabar
Parramatta Gaol
Bathurst Gaol
Maitland Gaol
Goulburn Training Centre
Dubbo Gaol
Grafton Gaol
Broken Hill Gaol
Narrabri Gaol
Emu Plains Training Centre
Berrima Training Centre
Brookfield Afforestation Camp, Mannus
Glen Innes Afforestation Camp
Oberon Afforestation Camp
sch 2, hdg: Subst 1978 No 155, Sch 1 (16).
Schedule 3 Provisions relating to Inspector-General
(Section 11B)
1 Acting Inspector-General
(1) The Minister may, from time to time, appoint a person to act in the office of Inspector-General during the illness or absence of the Inspector-General. The person, while so acting, has all the functions of the Inspector-General and is taken to be the Inspector-General.(2) The Minister may, at any time, remove a person from the office to which the person was appointed under this clause.(3) A person while acting under this clause is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine.(4) For the purposes of this clause, a vacancy in the office of Inspector-General is taken to be an absence from the office of Inspector-General.
2 Basis of office
The office of Inspector-General may be a full-time or part-time office, according to the terms of appointment.
3 Terms of office
Subject to this Schedule, the Inspector-General holds office for such term not exceeding 3 years as may be specified in the instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
4 Remuneration
(1) The Inspector-General is entitled to be paid:(a) while holding office on a full-time basis, remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, or(b) while holding office on a part-time basis, remuneration as determined by the Minister.(2) The Inspector-General is also entitled to be paid such travelling and subsistence allowances as the Minister may from time to time determine in respect of the Inspector-General.
5 Vacancy in office
(1) The office of Inspector-General becomes vacant if the holder:(a) dies, or(b) completes a term of office and is not re-appointed, or(c) resigns the office by instrument in writing addressed to the Minister, or(d) is removed from office by the Governor under subclause (2).(2) The Governor may remove a person from the office of the Inspector-General:(a) for incapacity, incompetence, misbehaviour or unsatisfactory performance, or(b) if the person becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(c) if the person becomes a mentally incapacitated person, or(d) if the person is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable.
6 Filling of vacancy
If the office of Inspector-General becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
The Public Sector Management Act 1988 does not apply to the appointment of the Inspector-General, and the holder of that office is not, as holder, subject to that Act.
sch 3: Ins 1978 No 155, Sch 1 (17). Am 1980 No 187, Sch 1; 1981 No 19, sec 3. Subst 1988 No 46, Sch 1 (12). Am 1988 No 131, Sch 18 (10); 1989 No 105, Sch 1. Rep 1995 No 36, Sch 6. Ins 1997 No 18, Sch 1 [7]. Am 1999 No 94, Sch 4.94 [8].
Schedule 4 (Repealed)
sch 4: Ins 1978 No 155, Sch 2 (3). Rep 1988 No 46, Sch 1 (12).
Schedule 4A Provisions relating to Official Visitors
(Section 8A (5))
1 Term of office
Subject to this Schedule, an Official Visitor shall hold office for such period not exceeding 2 years as may be specified in the Official Visitor’s instrument of appointment, but is eligible (if otherwise qualified) for reappointment.
2 Acting Official Visitors
(1) The Minister may, from time to time, appoint a person to act in the office of an Official Visitor during the illness or absence of the Official Visitor, and the person, while so acting, has all the functions of (and shall be taken to be) an Official Visitor.(2) The Minister may, at any time, remove a person from any office to which the person was appointed under this clause.(3) A person while acting in the office of an Official Visitor is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the person.(4) For the purposes of this clause, a vacancy in the office of an Official Visitor shall be taken to be an absence from office of the Official Visitor.
3 Remuneration
An Official Visitor is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine.
3A Declaration of interest
(1) Before being appointed as an Official Visitor or as an acting Official Visitor to a correctional centre that is being managed under an agreement in accordance with Part 6A, a person is required to make a declaration of his or her interest (if any) in the agreement or in the management company.(2) For the purposes of a declaration under this clause, a reference in subclause (1) to an interest in the management company includes a reference to:(a) shareholding in the management company or in any related corporation within the meaning of the Companies (New South Wales) Code, and(b) any interest in business dealings that are taking place or that have taken place with the management company or any director or officer of the management company.(3) A person is not to be appointed as an Official Visitor or acting Official Visitor if, in the opinion of the Minister, the person has such an interest in the management agreement or the management company that the person should not be so appointed.
4 Vacancy in office of Official Visitor
(1) The office of an Official Visitor becomes vacant if the Official Visitor:(a) dies, or(b) completes a term of office and is not re-appointed, or(c) resigns the office by instrument in writing addressed to the Minister, or(d) is removed from office by the Minister under this clause, or(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(f) becomes a temporary patient or a continued treatment patient within the meaning of the Mental Health Act 1958, a forensic patient within the meaning of the Mental Health Act 1983 or a protected person within the meaning of the Protected Estates Act 1983, or(g) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable.(2) The Minister may remove an Official Visitor from office at any time for such cause as to the Minister seems sufficient.(3) Without affecting the generality of subclause (2), the Minister may remove from office an Official Visitor who contravenes section 8B or who, in the case of a correctional centre that is managed under an agreement in accordance with Part 6A, is found:(a) to have such an interest in the agreement or the management company that the person ought not, in the opinion of the Minister, to continue to be an Official Visitor to the correctional centre, or(b) to have made a declaration under clause 3A that was false or misleading in a material particular.
5 Filling of vacancy in office of Official Visitor
If the office of an Official Visitor becomes vacant, a person may, subject to this Act, be appointed to fill the vacancy.
sch 4A: Ins 1988 No 46, Sch 2 (25). Am 1990 No 107, Sch 1 (11); 1996 No 25, Sch 5 [127]; 1999 No 94, Sch 4.94 [8].
Schedule 5 Provisions relating to the members, Divisions and procedure of the Review Council
(Section 66)
sch 5, hdg: Subst 1997 No 57, Sch 1 [4].
1 Definitions
In this Schedule:Alternate Chairperson means the Alternate Chairperson of the Review Council.appointed member means a member appointed under section 61 (1) (a).Chairperson means the Chairperson of the Review Council.community member means a member, not being an officer of the Department of Corrective Services, appointed to represent the community or a significant portion of the community.Deputy Chairperson means the Deputy Chairperson of the Review Council.Judge includes Magistrate.judicial member means a Judge or retired Judge who is appointed as the Chairperson or Deputy Chairperson of the Review Council.official member means an official member of the Review Council.
2 Chairperson and Deputy Chairperson of the Review Council
(1) The members referred to in section 61 (2) (a) are to be respectively appointed, in and by the instruments by which the members are appointed (or in and by another instrument executed by the Governor), as:(a) Chairperson of the Review Council, and(a1) Alternate Chairperson of the Review Council, and(b) Deputy Chairperson of the Review Council.(2) The appointment of a person who is a Judge as the Chairperson, Alternate Chairperson or Deputy Chairperson does not, nor does the person’s service as the Chairperson, Alternate Chairperson or Deputy Chairperson, affect the person’s tenure of the office of a Judge or the person’s rank, title, status, precedence, salary or other rights or privileges as a holder of that office.(3) A person who is a Judge may, even though the person is the Chairperson, Alternate Chairperson or Deputy Chairperson, exercise the powers of a Judge.(4) The service of a Judge as the Chairperson, Alternate Chairperson or Deputy Chairperson is taken, for all purposes, to be service as a Judge.
3 Acting appointed members
(1) The Alternate Chairperson, during the illness or absence of the Chairperson, is to act in the office of the Chairperson and, while so acting, has all the functions of the Chairperson and is taken to be the Chairperson.(1A) The Deputy Chairperson, during the illness or absence of the Alternate Chairperson, is to act in the office of the Alternate Chairperson and, while so acting, has all the functions of the Alternate Chairperson (including the function of acting in the office of the Chairperson, during the illness or absence of the Chairperson as well) and is taken to be the Alternate Chairperson.(2) The Governor may, from time to time, appoint a person, being a judicially qualified person (as referred to in section 61), to act in the office of the Deputy Chairperson, and the person, while so acting, has all the functions of the Deputy Chairperson and is taken to be the Deputy Chairperson.(3) If a community member has been granted leave of absence by the Minister for a period, the Governor may appoint a person to act in the office of the community member during that period, and the person, while so acting, has all the functions of the member and is taken to be a member.(4) The Governor may, at any time, remove a person from an office to which the person was appointed under subclause (2) or (3).(5) For the purposes of this clause:(a) a vacancy in the office of the Chairperson, Alternate Chairperson or Deputy Chairperson is taken to be an absence from the office of the Chairperson, Alternate Chairperson or Deputy Chairperson, and(b) the Alternate Chairperson or Deputy Chairperson is taken to be absent from the office of Alternate Chairperson or Deputy Chairperson during any period of acting in another office pursuant to subclause (1) or (1A).
4 Deputies of official members
(1) An official member may, from time to time, appoint in writing an officer of the Department of Corrective Services to be the member’s deputy, and the member or the Commissioner may revoke any such appointment.(2) In the absence of an official member, the member’s deputy may, if available, act in the place of the member and, while so acting, has all the functions of the member and is taken to be a member.
5 Terms of office of appointed members
Subject to this Schedule, an appointed member holds office for such period (not exceeding 3 years) as is specified in the member’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
6 Remuneration of appointed members
An appointed member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.
7 Vacancy in office of appointed member
(1) The office of an appointed member becomes vacant if the member:(a) dies, or(b) completes a term of office and is not re-appointed, or(c) resigns the office by instrument in writing addressed to the Minister, or(d) is removed from office by the Governor, or(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(f) becomes a mentally incapacitated person, or(g) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be so punishable, or(h) being a judicial member, ceases to be a judicially qualified person (as referred to in section 61).(2) The Governor may remove an appointed member from office at any time.
8 Filling of vacancy in office of appointed member
If the office of an appointed member becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
9 Effect of certain other Acts
(1) Part 2 of the Public Sector Management Act 1988 does not apply to or in respect of the appointment of an appointed member.(2) The office of an appointed member is not, for the purposes of any Act, an office or place of profit under the Crown.
10 Establishment of committees and appointment of other persons
(1) The Review Council may establish committees, or appoint any person or persons, to assist it in connection with the exercise of any of its functions.(2) If a committee is established:(a) the members of that committee may be members of the Review Council, and(b) the procedure for the calling of meetings of a committee and for the conduct of business at those meetings is to be determined by the chairperson of the committee (subject to any determination of the Review Council), and(c) the Review Council may delegate to that committee such of its functions as may be prescribed.
11 Divisions of the Review Council
(1) The Chairperson may constitute Divisions of the Review Council by nominating the members of each Division.(2) The Chairperson may, at any time, dissolve a Division.(3) A Division is to consist of a judicial member, a community member and an official member.
12 General procedure
(1) Except as otherwise provided by this Act or the regulations:(a) meetings of the Review Council are to be held at such times and places as are fixed by the Chairperson, and(b) the procedure for the convening of meetings of the Review Council and for the conduct of business at those meetings is to be determined by the Chairperson.(2) The Review Council may from time to time adjourn its proceedings to such times, dates and places and for such reasons as it thinks fit.(3) Proceedings before the Review Council:(a) are not to be open to the public unless the Chairperson determines that, in a particular case, it is in the interest of the community that the proceedings be conducted in public, and(b) are not to be conducted in an adversarial manner, and(c) are to be conducted with as little formality and technicality, and with as much expedition, as fairness to any affected person and the requirements of this Act permit.(4) A decision of the Review Council is not vitiated merely because of any informality or want of form.(5) The Review Council is not bound by the rules of evidence and may inform itself as it sees fit.
13 Quorum
The quorum for a meeting of the Review Council is 1 judicial member, 1 community member and 1 official member.
14 Presiding members
(1) The Chairperson is to preside at a meeting of the Review Council.(2) At a meeting of a Division, the judicial member is to preside.
15 Attendance and voting at meetings of the Review Council
(1) If the Chairperson attends a meeting of the Review Council, neither the Alternate Chairperson nor the Deputy Chairperson is entitled to attend the same meeting unless the Chairperson authorises either or both of them to do so.(2) If the Chairperson and the Alternate Chairperson or Deputy Chairperson, or both, are present at a meeting of the Review Council, only the Chairperson is entitled to vote with respect to any decision.
16 Decisions
A decision supported by a majority of the votes cast at a meeting of the Review Council at which a quorum is present, including the vote cast by a judicial member entitled to vote at the meeting, is the decision of the Review Council. In the case of a tied vote, the judicial member has the casting vote.
17 Authentication of documents
Each document requiring authentication by the Review Council may be sufficiently authenticated if signed by a person purporting to be the member who presided at the meeting of the Review Council when the proceedings with respect to which the document was prepared took place.
18 Proof of certain matters not required
In any legal proceedings, proof is not required, until evidence is given to the contrary, of:(a) the constitution of the Review Council, or(b) any determination, recommendation or decision of the Review Council, or(c) the appointment of, or holding of office by, any member of the Review Council, or(d) the presence or nature of a quorum at any meeting of the Review Council.
19 Power to summon witnesses and take evidence
(1) A judicial member may, by instrument in writing, require any person on whom the instrument is served personally or by post:(a) to appear before the Review Council for the purpose of giving evidence at a meeting of the Review Council, orat a time, date and place specified in the instrument.(b) to produce to the Review Council any document (including a document in the custody or under the control of the person and in the possession of or the property of the Crown) that is relevant to the meeting,(2) A judicial member may require a person who appears before the Review Council at a meeting to be sworn for the purpose of giving evidence on oath and may administer an oath accordingly.(3) If a document is produced to the Review Council at a meeting, the Review Council may take possession of the document for such period as it considers necessary for the purposes of the meeting.(4) This clause does not require a person to produce to the Review Council at a meeting any document the production of which the Minister certifies in writing may:(a) endanger any person, or(b) be otherwise contrary to the public interest.
20 Examination by judicial member
(1) A judicial member may require a person (including an officer or employee of the Crown) who appears before the Review Council at a meeting to answer a question that is reasonably related to the proceedings.(2) A person is not excused from answering a question put by a judicial member on the ground that the answer tends to incriminate the person.(3) If a person claims, before answering such a question, that the answer might tend to incriminate the person, neither the question nor the answer is admissible in evidence against the person in criminal proceedings (other than proceedings for an offence against clause 21 (c) or in relation to a charge of perjury in respect of that answer).
21 Offences
A person must not:(a) refuse, fail or neglect to comply with a requirement under clause 19 or 20 except to the extent to which the person is lawfully excused from complying with the requirement, or(b) in purported compliance with a requirement under clause 19, produce any document knowing it to be false or misleading in a material particular, or(c) not having been sworn, make a statement knowing it to be false or misleading in a material particular when appearing before the Review Council at a meeting.Maximum penalty: 5 penalty units.
22 Representation etc
(1) At a meeting of the Review Council at which a person is entitled or allowed to make submissions to the Review Council, the person may:(a) be represented by a barrister or solicitor or, with the consent of the Review Council, by any other person, and(b) call and examine any witness who attends the meeting, including any witness called by the Review Council, and(c) give evidence on oath, and(d) produce documents and exhibits to the Review Council, and(e) otherwise adduce, orally or in writing, to the Review Council such matters, and address the Review Council on such matters, as are relevant to the proceedings.(2) However, victims of serious offenders or their representatives are not entitled:(a) to call or examine witnesses at a meeting for the purposes of section 62A, or(b) to give evidence on oath, address the Review Council or otherwise orally adduce any matter to the Review Council.
23 Witnesses’ expenses
A person who is required to appear or to give evidence before the Review Council at a meeting is entitled to be paid such allowances and expenses (if any) as the Minister may determine in respect of the person.
24 Record of proceedings
(1) The person presiding at a meeting of the Review Council is to cause a record (whether in writing or in electronic form) of the proceedings to be made.(2) Any such records may be destroyed after the expiration of the period of 5 years after they were made.
sch 5: Ins 1983 No 132, Sch 1 (6). Am 1985 No 231, Sch 20 (4)–(8); 1986 No 35, Sch 1 (3); 1986 No 188, Sch 3 (10); 1987 No 138, Sch 1 (3); 1987 No 209, Sch 44; 1988 No 104, Sch 1. Subst 1989 No 219, Sch 1 (3); 1993 No 89, Sch 1 (3). Am 1996 No 144, Sch 2 [9]–[12]; 1997 No 55, Sch 2.3 [5]; 1997 No 57, Sch 1 [5]–[12]; 1999 No 94, Sch 4.94 [8].
Schedule 6 Oath of office
(Section 48E)
I ............... do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors according to law. I do swear that I will well and truly serve our Sovereign Lady Queen Elizabeth II in the office of Commissioner of Corrective Services or Deputy Commissioner of Corrective Services or Correctional Officer [as the case may be] and I will do right to all manner of people after the laws and usages of the State of New South Wales without fear or favour, affection or ill will.
SO HELP ME GOD.
Sworn and subscribed at this day of 19 | } | ............... Signature |
before me— ...............Justice of the Peace |
sch 6: Ins 1984 No 63, Sch 2 (2). Am 1985 No 26, Sch 1 (8); 1988 No 46, Sch 1 (13); 1996 No 25, Sch 5 [128].
Schedule 7 Affirmation of office
(Section 48E)
I ............... do solemnly, sincerely and truly declare and affirm that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, her heirs and successors according to law. I do solemnly, sincerely and truly declare and affirm that I will well and truly serve our Sovereign Lady Queen Elizabeth II in the office of Commissioner of Corrective Services or Deputy Commissioner of Corrective Services or Correctional Officer [as the case may be], and I will do right to all manner of people after the laws and usages of the State of New South Wales without fear or favour, affection or ill will.
Subscribed at this day of 19 | } | ............... Signature |
before me— ...............Justice of the Peace |
sch 7: Ins 1984 No 63, Sch 2 (2). Am 1985 No 26, Sch 1 (8); 1988 No 46, Sch 1 (13); 1996 No 25, Sch 5 [128].
Schedule 8 Savings and transitional provisions
(Section 3 (5))
Part 1 Savings and transitional regulations consequent on enactment of certain Acts
1 Regulations
(1) The regulations may make provision of a savings or transitional nature consequent on the enactment of the following Acts:(2) A provision made under subclause (1) may, if the regulations under this clause so provide, take effect as from the date of assent to the Act concerned or a later day.(3) To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.(4) A provision made under subclause (1) shall, if the regulations under this clause so provide, have effect notwithstanding any other clause of this Schedule.
Part 2 Provisions consequent on enactment of Prisons (Further Amendment) Act 1986
2 Definition
In this Part:Amending Act means the Prisons (Further Amendment) Act 1986.
3–6 (Repealed)
7 Previous prison offences not affected
(1) In this clause:previous prison offence means an offence against prison discipline within the meaning of section 23 (as in force before the commencement of Schedule 2 (2) to the Amending Act) which was committed before that commencement.(2) A previous prison offence shall be dealt with, and any pending proceedings in respect of such an offence shall be disposed of, as if this Act had not been amended by the Amending Act.(3) The Amending Act does not affect any penalty duly imposed for a previous prison offence.
8 Previous record of punishments to be kept
Any book kept under section 26 (as in force immediately before the commencement of Schedule 2 (2) to the Amending Act) shall be deemed to be a record made under section 26F.
Part 3 Provisions consequent on enactment of Prisons (Amendment) Act 1988
9 Definitions
In this Part:amending Act means the Prisons (Amendment) Act 1988.Commission means the Corrective Services Commission as constituted in accordance with this Act immediately before the relevant commencement.Commissioner means a person who held office as a member of the Commission immediately before the relevant commencement.Council means the Corrective Services Advisory Council as constituted in accordance with this Act immediately before the relevant commencement.relevant commencement means the commencement of Schedule 1 (2) to the amending Act.
10 Abolition of the Commission and the Council
On the relevant commencement, the Commission and the Council are abolished.
11 Commissioners and members of the Council
(1) A person who, immediately before the relevant commencement, held office as a Commissioner or a member of the Council ceases to hold office as such on that commencement.(2) Nothing in this clause affects any arrangement for the appointment of any such person to a position in the service of the Government.
12 References to Department of Prisons
On and from the relevant commencement, a reference in any other Act, or in any instrument made under any Act, to:(a) (Repealed)(b) the Department of Prisons shall be read as a reference to the Department of Corrective Services.
13 Transfer of assets, liabilities etc of Commission
On and from the relevant commencement, any assets, liabilities or obligations of the Commission shall become assets, liabilities or obligations of the Crown.
14 Private property
Section 18, as amended by the amending Act, applies to money referred to in subsection (2A) (a) or (b) of that section which is held on behalf of an inmate as at the commencement of Schedule 2 (7) to the amending Act.
15 Application of Part 9A
(1) Expressions used in this clause and clause 16 have the same meanings as in Part 9A.(2) Part 9A applies to an inmate who was, before the commencement of that Part, placed in custody in a correctional centre for the purpose of giving effect to an order or sentence of a court or Magistrate and has not been released before that commencement, as if:(a) the Commonwealth Act and that Part had been in force at the time the inmate was placed in custody, and(b) the inmate had been delivered into the custody of the governor of that correctional centre in accordance with the terms of a warrant issued in relation to that order or sentence, and(c) the detention of the inmate before the commencement of that Part had been detention in accordance with that Part.
16 Validation—Part 9A
(1) If, before the commencement of Part 9A, an inmate has undergone a period of imprisonment in a correctional centre by way of execution or purported execution of a sentence of imprisonment imposed under a law in force in Norfolk Island, whether or not the inmate is detained in a correctional centre at that commencement, the inmate shall be taken to have duly served that period of imprisonment in accordance with that sentence and that law.(2) If, before the commencement of Part 9A, an inmate has been detained in custody in this State for the purpose of giving effect to an order or sentence of a court or Magistrate, that detention shall for all purposes (including the purposes of any action or proceedings, whether instituted before or after the commencement of that Part) be taken to be as lawful as it would have been if the Commonwealth Act and that Part had been in force at the time of the detention and the detention had been in accordance with that Part.
Part 4 Provisions consequent on enactment of Prisons (Serious Offenders Review Board) Amendment Act 1989
17 Release on Licence Board
(1) The members of the Release on Licence Board who held office immediately before the commencement of this clause cease to hold office on that commencement, but are eligible to be appointed to the Serious Offenders Review Board.(2) Anything done by or in relation to the Release on Licence Board is to be taken to have been done by or in relation to the Serious Offenders Review Board.(3) A reference in any other Act, or in any instrument made under any Act or in any other document of any kind, to the Release on Licence Board or a member of the Release on Licence Board is to be read as a reference to the Serious Offenders Review Board or a member of the Serious Offenders Review Board.
Part 5 Provision consequent on the enactment of the Prisons (Escape) Amendment Act 1991
18 Cumulative sentences for escape
Section 34 (2) does not apply in respect of a sentence imposed under section 34 before that section was substituted by the Prisons (Escape) Amendment Act 1991 and that section (as in force before its substitution) continues to apply in respect of such a sentence.
Part 6 Provisions consequent on enactment of Statute Law (Miscellaneous Provisions) Act (No 2) 1991
19 References to Director-General etc
On and from the commencement of this clause, a reference in any other Act, or in any instrument made under any Act, or in any other document of any kind, to the Director-General of Corrective Services or to a Deputy Director-General of Corrective Services is to be read as a reference to the Commissioner of Corrective Services or to a Deputy Commissioner of Corrective Services respectively.
Part 7 Provisions consequent on enactment of Prisons (Amendment) Act 1993
20 Serious Offenders Review Board
(1) In this Part:abolished Board means the Serious Offenders Review Board as constituted by this Act immediately before the commencement of Schedule 1 (2) to the Prisons (Amendment) Act 1993.existing licence means a licence to be at large:(a) granted under section 463 of the Crimes Act 1900 before 12 January 1990 (being the day on which that section was repealed), and(b) which was still in force immediately before the commencement of Schedule 1 (2) to the Prisons (Amendment) Act 1993.licensee means a person holding an existing licence.Offenders Review Board means the Offenders Review Board constituted by section 44 of the Sentencing Act 1989.(2) The members of the abolished Board who held office immediately before the commencement of this clause cease to hold office on that commencement, but are eligible to be appointed to the Review Council.(3) A member of the abolished Board who ceases to hold office under subclause (2) is not entitled to any remuneration or compensation because of that loss of office.(4) Anything done by or in relation to the abolished Board is taken to have been done by or in relation to:(a) the Offenders Review Board—in respect of revocations or variations of existing licences of licensees, or(b) the Review Council—in all other cases.(5) A reference in any other Act, in an instrument made under any Act or in any document of any kind, to the abolished Board or a member of the abolished Board is, to the extent the reference relates to a function of the abolished Board or of a member transferred to the Offenders Review Board by the Prisons (Amendment) Act 1993, to be read as a reference to the Offenders Review Board or a member of the Offenders Review Board.(6) A reference in any other Act, in an instrument made under any Act or in any document of any kind, to the abolished Board or a member of the abolished Board is, to the extent the reference relates to a function of the abolished Board or of a member transferred to the Review Council by the Prisons (Amendment) Act 1993, to be read as a reference to the Review Council or a member of the Review Council.
21 Application of amendment to present inmates
Section 22 (as amended by Schedule 2 (1) to the Prisons (Amendment) Act 1993) and sections 22A–22F extend to:(a) persons who are inmates, andimmediately before the commencement of Schedule 2 (1) and (2), respectively, to the Prisons (Amendment) Act 1993.(b) inmates who are segregated,
22 Decision to be made on existing segregations
As soon as practicable after the commencement of Schedule 2 (1) to the Prisons (Amendment) Act 1993, the Commissioner must decide whether to extend, in accordance with section 22 (as amended by that item), the period of segregation of each inmate whose total continuous period of segregation, as at that commencement, exceeds 3 months.
23 Application of amendments to Official Visitors
A person holding office as an Official Visitor immediately before the amendment made to section 8A (1) by Schedule 4 (1) to the Prisons (Amendment) Act 1993 is taken to have been appointed under that subsection as amended subject to the same terms and conditions as applied to the appointment immediately before the amendment.
24 Application of amendments to Part 6A
A management agreement in force immediately before the amendment of Part 6A by the Prisons (Amendment) Act 1993 is taken to be an agreement made under that Part, as amended.
25 Part 6A—validation
Any act, matter or thing done or purporting to be done on or after 7 August 1991 in relation to the Junee Correctional Centre that would have been validly done if Part 6A, as amended by Schedule 4 to the Prisons (Amendment) Act 1993, had been in force is validated.
Part 8 Provisions consequent on enactment of Prisons Amendment Act 1996
26 Definitions
In this Part:amending Act means the Prisons Amendment Act 1996.the appointed day means the day on which Schedule 3 to the amending Act commences.terminology amendment means an amendment made by the amending Act replacing a reference to a prison, prison complex, prison offence, prisoner or prison officer.
27 Inmates held in protective custody
(1) Any inmate who, immediately before the appointed day, is segregated pursuant to:(a) a direction given by the Commissioner or governor under section 22 (1) (as in force immediately before the appointed day) because of his or her opinion that the association of the inmate with other inmates constituted or was likely to constitute a threat to the personal safety of that inmate, oris taken to be held in protective custody pursuant to a direction under section 22AA.(b) a direction given under section 22 (1A) (as in force immediately before the appointed day),(2) Any other inmate who, immediately before the appointed day, is segregated pursuant to a direction under section 22 (as in force immediately before the appointed day) is taken to be segregated pursuant to a direction made under section 22 (as re-enacted by the amending Act).(3) Any period of segregation of an inmate before the appointed day pursuant to a direction referred to in subclause (1) (a) or (b) is taken to be a period of protective custody for the purposes of sections 22A–22G.(4) A period of segregation of an inmate before the appointed day pursuant to a direction other than a direction referred to in subclause (1) (a) or (b) is taken to be a period of segregation for the purposes of sections 22A–22G.
28 Effect of terminology amendments
(1) Any terminology amendment made to this Act by the amending Act is made for the purpose of replacing outdated penal terminology with current terminology.(2) Accordingly, any such amendment:(a) does not affect the construction or meaning of any provision of any Act or instrument, and(b) does not affect the status, rights, liabilities or immunities of any person or body.
29 Inmates having high security classifications for the purposes of section 29AC
Until a regulation is made under section 29AC (6), an inmate classified by the Commissioner:(a) in Category A1, A2 or B under clause 10 (1) of the Prisons (General) Regulation 1995, oris taken to be an inmate having a high security classification for the purposes of section 29AC.(b) in Category E1 or E2 under clause 11 (3) of the Prisons (General) Regulation 1995,
30 References to prisons, prison complexes, prisoners, prison officers and prison offences
(1) A reference in any other Act, or any instrument made under any Act, or any document of any kind to a prison (within the meaning of this Act before the commencement of Schedule 5 [4] to the amending Act) is to be read as a reference to a correctional centre.(2) A reference in any other Act, or any instrument made under any Act, or any document of any kind to a prison complex (within the meaning of this Act before the commencement of Schedule 5 [4] to the amending Act) is to be read as a reference to a correctional complex.(3) A reference in any other Act, or any instrument made under any Act, or any document of any kind to a prisoner (within the meaning of this Act before the commencement of Schedule 5 [4] to the amending Act) is to be read as a reference to an inmate.(4) A reference in any other Act, or any instrument made under any Act, or any document of any kind to a prison officer (within the meaning of this Act before the commencement of Schedule 5 [4] to the amending Act) is to be read as a reference to a correctional officer.(5) A reference in any other Act, or any instrument made under any Act, or any document of any kind to a prison offence (within the meaning of this Act before the commencement of Schedule 5 [4] to the amending Act) is to be read as a reference to a correctional centre offence.
Part 9 Provision consequent on enactment of Correctional Centres Amendment (Alternate Chairperson) Act 1997
31 Saving of appointments of members of Review Council
Amendments made to this Act by the Correctional Centres Amendment (Alternate Chairperson) Act 1997 do not affect the appointment or term of office of a member of the Review Council who held office as such a member immediately before the commencement of that Act.
sch 8: Ins 1986 No 188, Sch 3 (11). Am 1988 No 46, Sch 2 (26); 1989 No 87, Sch 3 (9); 1989 No 219, Sch 1 (4); 1991 No 26, Sch 1 (2); 1991 No 94, Sch 1; 1993 No 89, Schs 1 (4), 2 (3), 4 (16); 1996 No 25, Schs 5 [129]–[134], 6 [2] [3]; 1997 No 57, Sch 1 [13]; 1998 No 2, Sch 1 [12]; 1998 No 54, Sch 2.5 [8] [9].