Commonwealth Numbered Acts

INTERNATIONAL TRANSFER OF PRISONERS ACT 1997 No. 75 of 1997 - SECT 4

(1) In this Act, unless the contrary intention appears:
ACT means the Australian Capital Territory.
ACT Minister means the Minister for the ACT administering the law of the ACT
relating to the transfer of prisoners and includes any Minister acting for the
time being for or on behalf of that Minister.
appropriate Ministerial consent means Ministerial consent given as required by
section 5.
Attorney-General means the Attorney-General of the Commonwealth. Australian
court means a court or tribunal of the Commonwealth, a State or a Territory.
Australian law means a law of the Commonwealth, a State or a Territory.
community ties has the meaning given by subsections (4) and (5).
continued enforcement method, in relation to enforcement of a sentence of
imprisonment, has the meaning given by section 42.
converted enforcement method, in relation to enforcement of a sentence of
imprisonment, has the meaning given by section 42.
escort officer, in relation to a prisoner, means the police officer, prison
officer or other person specified in the warrant authorising the transfer of
the prisoner under this Act as the escort officer for the prisoner.
extradition country has the same meaning as in the Extradition Act  1988 .
federal prisoner:

   (a)  means a prisoner who is serving a sentence of imprisonment imposed
        under a law of the Commonwealth; and

   (b)  includes a prisoner who is serving a sentence of imprisonment imposed
        under a law of the Northern Territory and who was, before 12 June
        1985, removed to the State of South Australia under section 3 of the
        Removal of Prisoners (Territories) Act 1923.
foreign law means a law of a foreign country or of a part of, or in force in a
part of, a foreign country.
Former Yugoslavia Tribunal:

   (a)  means the International Tribunal for the Prosecution of Persons
        Responsible for Serious Violations of International Humanitarian Law
        Committed in the Territory of the Former Yugoslavia since 1991,
        established by Resolution 827 (1993) of the Security Council of the
        United Nations, a copy of the English text of which is set out in
        Schedule 1 to the International War Crimes Tribunals Act 1995; and

   (b)  includes any of the organs referred to in Article 11 of the Statute of
        the Tribunal.
joint prisoner means a prisoner who is:

   (a)  both a State prisoner or a Territory prisoner (or both) and a federal
        prisoner; or

   (b)  both a State prisoner and a Territory prisoner.
law of the Commonwealth, a State or a Territory, means a law (whether written
or unwritten) of the Commonwealth, that State or that Territory, and includes
a law (whether written or unwritten) in force in the Commonwealth, that State
or that Territory or in any part of the Commonwealth, that State or that
Territory.
mental illness means an underlying pathological infirmity of the mind, whether
of long or short duration and whether permanent or temporary, but does not
include a condition that results from the reaction of a healthy mind to
extraordinary stimuli.
mental impairment includes senility, intellectual disability, mental illness,
brain damage and severe personality disorder.
mentally impaired prisoner means:

   (a)  a person serving a sentence of imprisonment on the acquittal of the
        person for an offence on the ground of mental impairment; or

   (b)  a person serving a sentence of imprisonment because the person has
        been found mentally unfit to stand trial.
national of a country means a person who is a citizen of the country under the
law of the country.
non-parole period, in relation to a sentence of imprisonment, means that part
of the period of imprisonment for that sentence during which the person is not
to be released on parole, whether that part of the period is fixed or
recommended by a court or tribunal or fixed by operation of law.
police officer means:

   (a)  a member or special member of the Australian Federal Police; or

   (b)  a member of the police force of a State or Territory.
prison officer means a person appointed or employed to assist in the
management of a prison.
prisoner means a person (however described) who is serving a sentence of
imprisonment and includes:

   (a)  a mentally impaired prisoner; and

   (b)  a person who has been released on parole.
prisoner's representative means a person who may consent to the transfer of a
prisoner as referred to in section 6.
release on parole means any form of conditional release in the nature of
parole and includes:

   (a)  release on probation; and

   (b)  release on licence to be at large. Rwanda Tribunal:

   (a)  means the International Criminal Tribunal for the Prosecution of
        Persons Responsible for Genocide and Other Serious Violations of
        International Humanitarian Law Committed in the Territory of Rwanda
        and Rwandan citizens responsible for genocide and other such
        violations committed in the territory of neighbouring States, between
        1 January 1994 and 31 December 1994, established by Resolution 955
        (1994) of the Security Council of the United Nations, a copy of the
        English text of which is set out in Schedule 3 to the International 
        War Crimes Tribunals Act 1995 ; and

   (b)  includes any of the organs referred to in Article 10 of the Statute of
        the Tribunal.
sentence of imprisonment means any punishment or measure involving deprivation
of liberty ordered by a court or tribunal for a determinate or indeterminate
period in the exercise of its criminal jurisdiction and includes any direction
or order given or made by the court or tribunal with respect to the
commencement of the punishment or measure.
State includes the ACT and the Northern Territory.
State Minister means:

   (a)  in relation to a particular State other than the ACT or the Northern
        Territory-the Minister of the State administering the law of the State
        relating to the transfer of prisoners; and

   (b)  in relation to the ACT-the ACT Minister; and

   (c)  in relation to the Northern Territory-the Minister for the Northern
        Territory administering the law of the Northern Territory relating to
        the transfer of prisoners;
and includes any Minister acting for the time being for or on behalf of that
Minister and any person to whom the Minister has delegated any of the
Minister's functions under this Act.
State prisoner means a prisoner who is serving a sentence of imprisonment
imposed under a law of a State.
Statute of the Tribunal means:

   (a)  in the case of the Former Yugoslavia Tribunal-the Statute of the
        Tribunal (a copy of the English text of which is set out in Schedule 2
        to the International War Crimes Tribunals Act 1995) adopted by
        Resolution 827 (1993) of the Security Council of the United Nations (a
        copy of the English text of which is set out in Schedule 1 to that
        Act); and

   (b)  in the case of the Rwanda Tribunal-the Statute of the Tribunal (a copy
        of the English text of which is set out in Schedule 4 to the
        International War Crimes Tribunals Act 1995) adopted by Resolution 955
        (1994) of the Security Council of the United Nations (a copy of the
        English text of which is set out in Schedule 3 to that Act).
superintendent of a prison means the person for the time being in charge of
the prison.
Territory means the Jervis Bay Territory, Norfolk Island, the Territory of
Christmas Island and the Territory of Cocos (Keeling) Islands, but does not
include the ACT and the Northern Territory.
Territory Minister means:

   (a)  in relation to a particular Territory (other than Norfolk Island)-the
        Minister administering the law of the Territory relating to the
        transfer of prisoners; and

   (b)  in relation to Norfolk Island-the executive member (within the meaning
        of the Norfolk Island Act 1979) administering the law of Norfolk
        Island relating to the transfer of prisoners; and includes any
        Minister or executive member acting for the time being for or on
        behalf of that Minister or executive member and any person to whom the
        Minister or executive member has delegated any of the Minister's or
        executive member's functions under this Act.
Territory prisoner means a prisoner who is serving a sentence of imprisonment
imposed under a law of a Territory.
transfer country means a foreign country that is declared by the regulations
under section 8 to be a transfer country.
treaty includes a convention, protocol, agreement or arrangement.
Tribunal means:

   (a)  the Former Yugoslavia Tribunal; or

   (b)  the Rwanda Tribunal.
Tribunal country means a foreign country in which a Tribunal prisoner is
serving, or is to serve, a sentence of imprisonment imposed by the Tribunal.
Tribunal offence means:

   (a)  an offence in relation to which the Former Yugoslavia Tribunal has the
        power to prosecute persons under Article 2, 3, 4 or 5 of the Statute
        of the Tribunal; or

   (b)  an offence in relation to which the Rwanda Tribunal has the power to
        prosecute persons under Article 2, 3 or 4 of the Statute of the
        Tribunal.
Tribunal prisoner means a prisoner who is serving a sentence of imprisonment
imposed by a Tribunal for a Tribunal offence.

(2) For the purposes of this Act, the following persons are taken not to be
serving a sentence of imprisonment:

   (a)  a person who has been released by a court from serving the whole or a
        part of a sentence of imprisonment on the person giving a security
        (with or without sureties) by recognisance or otherwise, that the
        person will comply with conditions relating to the person's behaviour
        and in relation to whom action can no longer be taken because of a
        breach of a condition of the security or because of the expiration of
        the security;

   (b)  a person who, through exercise of the Royal prerogative of mercy or
        other executive prerogative or discretion given by law, is no longer
        required to serve the whole or part of a sentence of imprisonment;

   (c)  a person on whom a sentence of imprisonment has been imposed that has
        not yet commenced.

(3) If a sentence of death imposed on a person has been commuted to a term of
imprisonment or to imprisonment for life, this Act applies to and in relation
to the person as if the sentence of death had been a sentence of imprisonment
for that term or for life.

(4) For the purposes of this Act, a prisoner has community ties with a
transfer country if:

   (a)  the prisoner's principal place of residence immediately before being
        sentenced to imprisonment in Australia was in the transfer country; or

   (b)  the prisoner's parent, grandparent or child has a principal place of
        residence in the transfer country; or

   (c)  the prisoner is married to or has a de facto relationship with anyone
        whose principal place of residence is in the transfer country; or

   (d)  the prisoner has a close continuing relationship (involving frequent
        personal contact and a personal interest in the other person's
        welfare) with anyone whose principal place of residence is in the
        transfer country.

(5) For the purposes of this Act, a prisoner has community ties with a State
or a Territory if:

   (a)  the prisoner's principal place of residence immediately before being
        sentenced to imprisonment in the transfer country was in that State or
        Territory; or

   (b)  the prisoner's parent, grandparent or child has a principal place of
        residence in that State or Territory; or

   (c)  the prisoner is married to or has a de facto relationship with anyone
        whose principal place of residence is in that State or Territory; or

   (d)  the prisoner has a close continuing relationship (involving frequent
        personal contact and a personal interest in the other person's
        welfare) with anyone whose principal place of residence is in that
        State or Territory.