Imprisonment and the rights of people in prison

Decisions about transfers between Victorian prisons are made with reference to Regulation 31 of the Corrections Regulations.

In some circumstances, a person can be transferred from a prison in Victoria to a prison in another Australian state or territory, and vice versa. The relevant legislation governing interstate transfers for adults is the Prisoners (Interstate Transfer) Act 1983 (Vic) (‘PIT Act’) for adults and Schedule 2 of the Children, Youth and Families Act 2005 (Vic) allows for the interstate transfer of children.

The legislation relating to the interstate transfer of people in prison is the same in each Australian state and territory.

Reason for transfer: Prosecution of outstanding criminal charges

Sections 12–19 of the PIT Act allow a person to be transferred interstate for the purpose of criminal proceedings. A person can be transferred at any time in criminal proceedings. Generally, the prosecutor or the person in prison requests the transfer.

The transfer process is usually slow and can take many months. This is because the Victorian and interstate attorneys-general must both approve the transfer. A transfer may not be possible if a person is nearing the end of their sentence.

Reason for transfer: a person’s welfare

A person in prison can request to be transferred to a prison in another state or territory by making a written request to the Victorian Minister for Corrections under section 7 of the PIT.

Welfare matters could include circumstances where a person in prison is serving a sentence in a jurisdiction where they have no friends or family and is seeking to transfer to a prison where they may have visits from friends and family.

When making a decision regarding a transfer request the Minister may have regard to a number of matters, including:

• the welfare of the person in prison
• the administration of justice, security and good order of any prison
• the safe custody of the person in prison and the protection of the community, and
• any other matter the minister considers to be relevant (s 10A PIT Act).

A decision by the Minister under this section is not reviewable by a court or tribunal.

Interstate transfer of people on parole

The Parole Orders (Transfer) Act 1983 (Vic) (‘Parole Orders Act’) allows Victoria to transfer parole arrangements to other Australian states and territories. Under the Parole Orders Act, authorities can deal with a person on parole as if they had been granted parole in the particular state or territory to which they are transferred. The state or territory that is receiving the person must be willing to accept them.

The Minister for Corrections makes the ultimate decision about whether or not a person on parole is to be transferred. The Adult Parole Board imposes appropriate parole conditions for those who have successfully applied to transfer to Victoria. People who wish to request for their future parole to be transferred interstate should ask their case manager. Those already on parole should ask their parole officer.

Parole laws vary across states and territories in Australia, and therefore a request for transfer of parole should take into account the laws, processes and conditions that may impact the person should their request for transfer be allowed.

The International Transfer of Prisoners Act 1997 (Cth) (‘ITP Act’) provides the legal framework for the international transfer of people in prison to and from Australia so they may serve their sentence of imprisonment in their home country (ss 7, 8). The Victorian Parliament has given effect to the ITP Act by passing the International Transfer of Prisoners (Victoria) Act 1998 (Vic).

A transfer can only occur to and from countries that have signed the relevant international bilateral treaties (e.g. the Council of Europe’s Convention on the Transfer of Sentenced Persons (1983)). Before a transfer takes place, it must be approved by the Australian Government and the government of the foreign country, and be consented to by the person in prison.

The following conditions need to be satisfied for an international transfer to take place:

• there must be at least six months of the person’s sentence remaining (or one year for some countries)
• the person’s sentence and/or conviction must not be subject to appeal, and
• the person’s offence is also an offence in the country to which they seek to be transferred.