Victorian Current Acts Victorian Current ActsS. 13W(1) amended by Nos 37/2014 s. 10(Sch. item 167.20(a)), 32/2018 s. 79(5), 47/2021 s. 22(15).
(1) The police officer who is detaining a person under a preventative detention order may request the Secretary to authorise the transfer of that person to a prison.
Note
A person being detained under a preventative detention order may be received into a police gaol and thus be deemed to enter the legal custody of the Chief Commissioner of Police under section 6D(1) of the Corrections Act 1986 .
(2) A request under subsection (1) must be accompanied by a copy of—
(a) the preventative detention order on which is endorsed the date on which, and time at which, the person was first taken into custody or detained under the order; and
(b) any extension or further extension of the order under section 13I; and
(c) any prohibited contact order in force in relation to the person's detention.
(3) To avoid doubt, a request may be made under subsection (1) in respect of a person who is under 18 years of age if the preventative detention order provides for the person to be detained in a prison.
Note
See section 13ZBA for the rules as to how persons under 18 are to be detained.
S. 13W(4) amended by Nos 32/2018 s. 79(5), 6/2023 s. 3(Sch. 1 item 6).
(4) If requested to do so under subsection (1), the Secretary may, by instrument, authorise the transfer to a prison of a person being detained under a preventative detention order from a police gaol or other place where he or she is being detained.
Note
The Secretary may delegate this power under section 8(1) of the Corrections Act 1986 .
S. 13W(4A) inserted by No. 32/2018 s. 22.
(4A) On the giving of an authorisation under subsection (4), a person at a prison acting under lawful authority on behalf of the Secretary may receive the person into the prison.
Note
See also sections 6(ca), 6A(1) and 6E(1)(cac) of the Corrections Act 1986 .
(5) If a person is being detained in a prison under a preventative detention order—
(a) the preventative detention order is taken to authorise the Governor of the prison to detain the person at the prison while the order is in force in relation to the person; and
(b) section 13ZB applies in relation to the person's detention under the order at the prison as if—
(i) the Governor of that prison; or
(ii) any other person involved in the person's detention at that prison—
were a person exercising authority under the order or implementing or enforcing the order; and
S. 13W(5)(c) amended by Nos 37/2014 s. 10(Sch. item 167.20(a)), 70/2015 s. 10(1).
(c) the police officer who made the request under subsection (1) is taken, while the person is detained at the prison, to be the police officer detaining the person for the purposes of Divisions 4 and 5, subject to subsection (5A); and
S. 13W(5)(d) amended by No. 37/2014 s. 10(Sch. item 167.20(a)).
(d) a police officer may at any time enter the prison and visit the person being detained in the prison in connection with the exercise of powers under, and the performance of obligations in relation to, the order.
S. 13W(5A) inserted by No. 70/2015 s. 10(2).
(5A) Section 13ZB does not apply to the police officer referred to in subsection (5)(c) in respect of the person being detained at the prison to the extent that the police officer cannot reasonably perform any obligation under that section.
(6) The Corrections Act 1986 applies in respect of the detention of a person in a prison or police gaol under a preventative detention order or an order for his or her detention made under a corresponding preventative detention law as if the following provisions of that Act did not form part of it—
(a) section 11(7A);
(b) section 28;
(c) section 31;
(d) sections 37(1), 38(2) and (4), 40 and 41;
(e) section 47;
(f) sections 47A to 47D;
(g) Division 5 of Part 6;
(h) Part 7;
(i) section 56AA;
(j) section 56AB;
(k) section 56AC;
(l) paragraphs (b) and (c) of section 57(1) and paragraph (a) of that section to the extent that it relates to a purpose other than the purpose referred to in section 57A(1)(a);
(m) sections 57(2), 57A(1)(b) to (e), 57A(3)(a), 57B and 57C;
(n) section 84H.
(7) The provisions of Division 2 of Part 6 of the Corrections Act 1986 that apply in respect of the detention of a person in a prison under a preventative detention order or an order for his or her detention made under a corresponding preventative detention law apply as if—
(a) in the definition of visitor in section 33—
(i) paragraphs (i) and (j) were omitted;
(ii) in paragraph (h) for the reference to section 37 there were substituted a reference to section 13ZD, 13ZF or 13ZH of this Act;
S. 13W(7)
(a)(iii) amended by No. 37/2014 s. 10(Sch. item
167.20(b)).
(iii) in paragraph (k) after "officer" the words "visiting under section 13W(5)(d) of the Terrorism (Community Protection) Act 2003 " were inserted;
(iv) in paragraph (l) the words "or a residential visiting programme" were omitted;
(b) in section 37(2)—
(i) for the reference to a relative or friend who visits a prisoner there were substituted a reference to a person who visits a prisoner under section 13ZD , 13ZF or 13ZH of this Act;
(ii) the words "or residential visiting programme" were omitted;
(c) in section 37(3) for the word "under" there were substituted the words "referred to in";
(d) in section 38(1) for the reference to a prisoner's family and friends there were substituted a reference to persons who visit a prisoner under section 13ZD , 13ZF or 13ZH of this Act;
(e) in section 38(3) the words "or a residential visiting programme" were omitted;
(f) in section 39(1) or (2) for the reference to a relative or friend or person wishing to visit, or visiting, a prisoner under section 37 or 38 there were substituted a reference to a person wishing to visit, or visiting, a prisoner under section 13ZD, 13ZF or 13ZH of this Act;
(g) section 43 prevented a senior police officer nominated under section 13P(4) in relation to the order being made the subject of an order under that section.
(8) If a provision of the Corrections Act 1986 applies (with or without modification) in respect of the detention of a person in a prison or police gaol under a preventative detention order or an order for his or her detention made under a corresponding preventative detention law, any provision of the regulations made under that provision, or under that Act for or with respect to that provision, also applies in respect of that detention with any necessary modifications.
S. 13W(9) amended by No. 30/2006 s. 17(1).
(9) The Corrections Act 1986 , in its application in respect of the detention of a person in a prison or police gaol under a preventative detention order or an order for his or her detention made under a corresponding preventative detention law, has effect subject to this Part and to the terms of the order under which the person is detained and, in the event of any inconsistency between that Act and this Part or the order, this Part or the order (as the case requires) prevails over that Act.
(10) Nothing in this section prevents an AFP member entering a prison and visiting a person being detained in the prison in connection with the exercise of powers under, and the performance of obligations in relation to, an order for the person's detention made under a corresponding preventative detention law.
S. 13WA (Heading) amended by No. 48/2006 s. 42(Sch. item 35.5(a)).
S. 13WA inserted by No. 5/2006 s. 4.