Corrections (Custody) Act 2001

i Corrections (Custody) Act 2001 Act No. 45/2001 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 PART 2—AMENDMENTS RELATING TO CUSTODY 3 3. Definitions 3 4. Repeal of section 4 3 5. New Part 1A inserted 3 PART 1A—LEGAL CUSTODY 3 6. Order of imprisonment 3 6A. When is a person in the legal custody of the Secretary? 4 6B. When does legal custody of the Secretary cease? 5 6C. Persons not regarded to be in the Secretary's legal custody 6 6D. When is a person in the legal custody of the Chief Commissioner of Police? 6 6E. When does legal custody of the Chief Commissioner cease? 8 6F. Powers of court or tribunal not to be affected 8 6. Agreements with the Chief Commissioner 9 7. Authorisation of certain staff 9 8. Further powers and functions for transport of persons 9 9. Status of staff 12 10. Transport functions 12 11. Use of reasonable force 12 12. Police gaols 12 13. Employment under Public Sector Management and Employment Act 13 14. Powers of Secretary 13 15. New Division 1A of Part 8 inserted 13 -- 1 of 44 -- Section Page ii Division 1A—Escort Officers 13 55A. Powers of Secretary in relation to escort officers 13 55B. Escort officers subject to direction of court or tribunal 13 55C. Functions and powers of escort officers in relation to prisoners 14 55D. Authorisation of instruments of restraint 16 55E. Use of reasonable force 16 55F. Report to Secretary 16 55G. Functions and powers of escort officers in relation to persons surrendering to court 17 55H. How are things seized by an escort officer to be dealt with? 18 55I. Powers of members of police force 19 55J. Additional powers of escort officers 20 16. New Division 2 of Part 8 substituted 20 Division 2—Transfer of Prisoners 20 56. Transfers between prisons 20 56AA. Transfers to and from police gaols 20 56AB. Legal custody of prisoners and detainees transferred to institutions and approved mental health services 20 17. Custodial community permits 22 18. Effect of permit 22 19. Insertion of section 108 23 108. Apprehension of escaped prisoners 23 20. Supreme Court—limitation of jurisdiction 23 21. Regulations 23 22. Insertion of new section 114 24 114. Transitional provisions—legal custody 24 PART 3—MISCELLANEOUS AMENDMENTS TO THE CORRECTIONS ACT 1986 25 23. Definitions 25 24. Extension of Secretary's delegation power 25 25. Commissioner to have automatic right of access 25 26. Status of staff 26 27. Insertion of section 22A 26 22A. Powers of Governor 26 28. Secrecy 26 29. Insertion of section 30A 27 30A. Victim may be given certain information about a prisoner 27 30. Information to be given by visitors 28 31. Search 29 32. Prisoners' rights 29 -- 2 of 44 -- Section Page iii 33. Insertion of sections 47A–47E 30 47A. Suspected dangerous letters may be disposed of 30 47B. Certain confidential letters may be inspected 30 47C. All other letters may be opened and read 32 47D. Threatening letters may be stopped and censored 32 47E. Letter register 33 34. Prison offences 33 35. Correction of typographical error 34 36. New section 70 substituted 34 70. Secretary to supply assistance to Board 34 37. Correction of outdated references 34 PART 4—AMENDMENT OF CUSTODY RELATED PROVISIONS IN OTHER ACTS 35 38. Children and Young Persons Act 1989 35 39. Coroners Act 1985 36 40. Crimes Act 1958 36 41. Evidence Act 1958 38 42. Intellectually Disabled Persons' Services Act 1986 38 43. Magistrates' Court Act 1989 40 44. Mental Health Act 1986 40 45. Sentencing Act 1991 40 ═══════════════ ENDNOTES 41 -- 3 of 44 -- 1 Corrections (Custody) Act 2001† [Assented to 27 June 2001] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The main purposes of this Act are— (a) to amend the Corrections Act 1986— (i) to make changes concerning the custody and transfer of prisoners and detainees; and (ii) to create and define the role of escort officers; and Victoria No. 45 of 2001 -- 4 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 2 (iii) to enable the release of information about prisoners to certain victims of crime; and (iv) to make changes concerning the checking of mail sent to, and received by, prisoners; and (b) to make consequential amendments to other Acts. 2. Commencement (1) Subject to sub-section (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 March 2002, it comes into operation on that day. _______________ s. 2 -- 5 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 3 PART 2—AMENDMENTS RELATING TO CUSTODY 3. Definitions (1) In section 3 of the Corrections Act 1986, for the definition of "prisoner" substitute— ' "prisoner" means a person who under Part 1A is deemed to be in the legal custody of the Secretary;'. (2) In section 3 of the Corrections Act 1986 insert the following definitions— ' "escort officer" means— (a) a prison officer; or (b) an escort officer employed under Part 4; "supervise", in relation to a prisoner or person, includes to take charge of and to hold the prisoner or person; "transport" includes escort, bring, transfer, convey, take and deliver;'. 4. Repeal of section 4 Section 4 of the Corrections Act 1986 is repealed. 5. New Part 1A inserted After Part 1 of the Corrections Act 1986 insert— "PART 1A—LEGAL CUSTODY 6. Order of imprisonment In this Part, an order of imprisonment is— (a) a sentence of imprisonment imposed by a court; or s. 3 -- 6 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 4 (b) an order or warrant issued by a court requiring or directing the imprisonment of a person or the detention of a person in a prison or in a place of detention on court premises; or (c) a direction, order or warrant or other instrument made or issued under an Act requiring or directing or authorising the imprisonment of a person or the detention of a person in a prison or the transfer of a person to or from a prison or the return of a person to a prison; or (d) an order issued under an interstate law of a participating State within the meaning of the Prisoners (Interstate Transfer) Act 1983 that corresponds with an order of transfer under that Act or an order issued under Part III of the Transfer of Prisoners Act 1985 of the Commonwealth. 6A. When is a person in the legal custody of the Secretary? (1) A person is deemed to enter the legal custody of the Secretary when— (a) an order of imprisonment is made in relation to the person; and (b) either of the following events occurs— (i) a person acting under lawful authority on behalf of the Secretary takes physical custody of the person; or (ii) a person at a prison acting under lawful authority on behalf of the Secretary receives the person into the prison. s. 5 -- 7 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 5 (2) A person who enters the legal custody of the Secretary under sub-section (1) is deemed to remain in that custody until that custody ceases under this Part. (3) This section applies to a person regardless of the person's age. 6B. When does legal custody of the Secretary cease? A person ceases to be in the legal custody of the Secretary— (a) on the expiration of the person's sentence of imprisonment, or if the person is serving more than one sentence of imprisonment, on the expiration of all of those sentences of imprisonment, unless the person is also in that custody for some other reason; or (b) when the Secretary acting under lawful direction or authority releases the person from the Secretary's legal custody; or (c) when the legal custody of the person is lawfully transferred from the Secretary to the Chief Commissioner of Police or another person; or (d) if the person is in a prison or is in the physical custody of an officer within the meaning of Part 5 or an escort officer or of a person acting under lawful authority on behalf of the Secretary, when the person escapes from that prison or physical custody; or s. 5 -- 8 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 6 (e) if the person is in the community in the legal custody of the Secretary, when the person does anything that constitutes an offence under section 479C(2) or (3) of the Crimes Act 1958. 6C. Persons not regarded to be in the Secretary's legal custody (1) Despite section 6A, the following persons are not to be regarded as being in the Secretary's legal custody— (a) a person who is on parole; (b) a person who is serving a combined custody and treatment order and who is in the community under that order; (c) a person who is serving a sentence of imprisonment by way of intensive correction in the community; (d) a person who is serving a sentence of imprisonment that was wholly or partly suspended and who is in the community in accordance with that sentence. (2) A person is on parole if there is in force a parole order relating to the person and the person is serving a sentence of imprisonment but is not detained in a prison. 6D. When is a person in the legal custody of the Chief Commissioner of Police? (1) A person is deemed to enter the legal custody of the Chief Commissioner of Police for the purposes of this Act when— (a) an order of imprisonment is made in relation to the person, or an order is made by a court requiring the person to be held in police custody, or there is s. 5 -- 9 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 7 other lawful authority to detain the person in a police gaol; and (b) either of the following events occurs— (i) a member of the police force or a person acting under lawful authority on behalf of the Chief Commissioner takes physical custody of the person; or (ii) a person at a police gaol acting under lawful authority on behalf of the Chief Commissioner receives the person into the police gaol. (2) A person is also deemed to enter into the legal custody of the Chief Commissioner when— (a) the person is remanded in custody by a court or a bail justice under the Children and Young Persons Act 1989; and (b) a member of the police force or a person acting under lawful authority on behalf of the Chief Commissioner takes physical custody of the person. (3) A person who enters the legal custody of the Chief Commissioner of Police under sub- section (1) or (2) is deemed to remain in that custody until that custody ceases under this Part. (4) This section applies to a person regardless of the person's age. s. 5 -- 10 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 8 6E. When does legal custody of the Chief Commissioner cease? A person who is deemed by this Act to enter the legal custody of the Chief Commissioner of Police ceases to be in the legal custody of the Chief Commissioner— (a) on the expiration of the person's sentence of imprisonment, or if the person is serving more than one sentence of imprisonment, on the expiration of all of those sentences of imprisonment, unless the person is also in that custody for some other reason; or (b) when the Chief Commissioner acting under lawful direction or authority releases the person from the Chief Commissioner's legal custody; or (c) when the legal custody of the person is lawfully transferred from the Chief Commissioner to the Secretary or another person; or (d) if the person is in a police gaol or is in the physical custody of a member of the police force or of a person acting under lawful authority on behalf of the Chief Commissioner, when the person escapes from that police gaol or physical custody. 6F. Powers of court or tribunal not to be affected (1) Every person in the legal custody of the Secretary under this Part who is brought before a court or tribunal remains in the legal custody of the Secretary, subject to any s. 5 -- 11 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 9 lawful order or direction of the court or tribunal. (2) Every person in the legal custody of the Chief Commissioner of Police under this Part who is brought before a court or tribunal remains in the legal custody of the Chief Commissioner, subject to any lawful order or direction of the court or tribunal. (3) The fact that a person appearing before a court or tribunal is in the legal custody of the Secretary or the Chief Commissioner of Police does not affect any power or authority of the court or tribunal to make orders or directions in relation to the person in respect of the proceedings before the court or tribunal.". 6. Agreements with the Chief Commissioner In section 9AA of the Corrections Act 1986, sub- section (2) is repealed. 7. Authorisation of certain staff In section 9A(1) of the Corrections Act 1986— (a) in paragraph (c), for "Part 9." substitute "Part 9; or"; (b) after paragraph (c) insert— "(d) an escort officer.". 8. Further powers and functions for transport of persons (1) In section 9A(1B) of the Corrections Act 1986, for paragraph (b) substitute— "(b) to have and exercise all or any of the following functions— (i) to take all reasonable steps to ensure a person being transported remains in the s. 6 -- 12 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 10 physical custody of the authorised person; (ii) to take all reasonable steps to ensure that the safety and welfare of a person being transported are maintained; (iii) to take all reasonable steps to prevent and detect the commission by a person being transported of any unlawful act or any attempt to commit an unlawful act; (iv) to report to the Chief Commissioner of Police on the commission by a person being transported of any unlawful act or any attempt to commit an unlawful act; (v) to take all reasonable steps to ensure the good order and discipline of a person being transported; (vi) to take all reasonable steps to attend to the security of any property that is in the possession of a person being transported; (vii) to take all reasonable steps to ensure the person is transported to or from the appropriate place as required by the Chief Commissioner of Police; (viii) to take all reasonable steps to ensure that the person is transferred— (A) into the physical custody of another person acting on behalf of the Chief Commissioner of Police; or (B) if legal custody of the person is authorised to be transferred to a person other than the Chief Commissioner, into the physical custody of a person acting on s. 8 -- 13 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 11 behalf of the person to whom legal custody is to be transferred; (c) to exercise all or any of the following powers in relation to the functions set out in paragraph (b)— (i) to order a person being transported to do or not to do anything which the authorised person believes on reasonable grounds is necessary for the safety of the authorised person, the person being transported or any other person; (ii) to search and examine a person being transported or any thing in the person's possession or under the person's control if the authorised person believes on reasonable grounds that this is necessary for the safety of the authorised person, the person being transported or any other person; (iii) to seize any thing found on a person being transported or in that person's possession or under that person's control if the authorised person believes on reasonable grounds that this is necessary for the safety of the authorised person, the person being transported or any other person; (iv) subject to sub-section (2A), to apply an authorised instrument of restraint to a person being transported if the authorised person believes on reasonable grounds that the application of the instrument of restraint is necessary to prevent the escape of the s. 8 -- 14 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 12 person being transported or the assault of, or injury to, any person.". (2) After section 9A(2) of the Corrections Act 1986 insert— "(2A) A person authorised under sub-section (1B)(c)(iv) may apply an instrument of restraint to a person being transported only if— (a) the instrument, or type of instrument, is approved by the Chief Commissioner of Police; and (b) the instrument is used in the manner determined by the Chief Commissioner of Police.". (3) In section 9A of the Corrections Act 1986, sub- section (8) is repealed. 9. Status of staff In section 9C of the Corrections Act 1986, for "or community corrections officer" (wherever occurring) substitute ", community corrections officer or escort officer". 10. Transport functions In section 9CAA of the Corrections Act 1986, sub-section (4) is repealed. 11. Use of reasonable force In section 9CB of the Corrections Act 1986, for "section 11(7)" substitute "Part 1A". 12. Police gaols In section 11 of the Corrections Act 1986, sub- sections (7), (8) and (9) are repealed. s. 9 -- 15 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 13 13. Employment under Public Sector Management and Employment Act In section 12(1) of the Corrections Act 1986, after "prison officers," insert "escort officers,". 14. Powers of Secretary In section 17 of the Corrections Act 1986, after "prison officer" (wherever occurring) insert "or escort officer". 15. New Division 1A of Part 8 inserted After Division 1 of Part 8 of the Corrections Act 1986 insert— "Division 1A—Escort Officers 55A. Powers of Secretary in relation to escort officers (1) The Secretary may direct an escort officer to transport or supervise a prisoner. (2) An escort officer must comply with a direction of the Secretary. 55B. Escort officers subject to direction of court or tribunal (1) An escort officer must, if directed by the court, supervise a person who has surrendered himself or herself into the custody of the court in answer to his or her bail. (2) An escort officer must comply with any lawful direction of the court or tribunal when supervising— (a) a prisoner appearing before the court or tribunal; or s. 13 -- 16 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 14 (b) a person who has surrendered himself or herself into the custody of a court in answer to his or her bail. 55C. Functions and powers of escort officers in relation to prisoners (1) An escort officer has the following functions in relation to a prisoner he or she is transporting or supervising— (a) to take all reasonable steps to prevent the escape or attempted escape of the prisoner from the physical custody of the escort officer; (b) to take all reasonable steps to ensure that the prisoner's safety and welfare are maintained; (c) to take all reasonable steps to prevent and detect the commission by the prisoner of any unlawful act or any attempt to commit an unlawful act; (d) to take all reasonable steps to ensure the good order and discipline of the prisoner; (e) to take all reasonable steps to ensure the security of any property that is in the prisoner's possession; (f) to take all reasonable steps to ensure that the prisoner is transported to or from the appropriate place as required by the Secretary; (g) to take all reasonable steps to ensure that the prisoner is transferred— (i) into the physical custody of another person acting on behalf of the Secretary; or s. 15 -- 17 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 15 (ii) if legal custody of the prisoner is authorised to be transferred to a person other than the Secretary, into the physical custody of a person acting on behalf of the person to whom legal custody is to be transferred. (2) An escort officer has the following powers in relation to a prisoner he or she is transporting or supervising— (a) to order the prisoner to do or not to do anything which the escort officer believes on reasonable grounds is necessary for the safety of the escort officer, the prisoner or any other person; (b) to search and examine the prisoner or any thing in the prisoner's possession or under the prisoner's control if the escort officer believes on reasonable grounds that this is necessary for the safety of the escort officer, the prisoner or any other person; (c) to seize any thing found on the prisoner or in the prisoner's possession or under the prisoner's control if the escort officer believes on reasonable grounds that this is necessary for the safety of the escort officer, the prisoner or any other person; (d) to apply an authorised instrument of restraint to the prisoner for the duration of the transport or supervision of the prisoner if the Secretary believes on reasonable grounds that the application of the instrument of restraint is s. 15 -- 18 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 16 necessary to prevent the escape of the prisoner or the assault of, or injury to, any person; (e) to apply an authorised instrument of restraint to the prisoner during the transport or supervision of a prisoner if the conduct of the prisoner during that transport or supervision has been such that it is reasonable to believe that the application of the instrument of restraint is necessary to prevent the escape of the prisoner or the assault of, or injury to, any person. 55D. Authorisation of instruments of restraint An escort officer may apply an instrument of restraint to a person being transported only if— (a) the instrument, or type of instrument, is approved by the Secretary; and (b) the instrument is used in the manner determined by the Secretary. 55E. Use of reasonable force (1) An escort officer may, where necessary, use reasonable force to compel a prisoner to obey an order given by the escort officer in the exercise of a function or power. (2) An escort officer who uses force in accordance with this section is not liable for injury or damage caused by that use of force. 55F. Report to Secretary (1) An escort officer must immediately report to the Secretary the escape or suspected escape of a prisoner— s. 15 -- 19 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 17 (a) from the physical custody of the escort officer; or (b) from the physical custody of another person who is transporting or supervising the prisoner, if the escape or suspected escape comes to the escort officer's notice. (2) An escort officer must report to the Secretary without delay— (a) anything which might reasonably be thought to jeopardise the welfare of a prisoner the escort officer is transporting or supervising; (b) the exercise of any of the powers the escort officer has under sections 55C(2)(b) to 55C(2)(e) in relation to the prisoner; (c) on the commission by the prisoner of an act that is, in the opinion of the escort officer, an unlawful act or an attempt to commit an unlawful act; (d) on an omission by a prisoner that is, in the opinion of the escort officer, an unlawful omission; (e) if the escort officer uses force to compel a prisoner to obey an order. 55G. Functions and powers of escort officers in relation to persons surrendering to court (1) This section applies if an escort officer is directed by a court to supervise a person who— (a) has surrendered himself or herself into the custody of the court in answer to his or her bail; or s. 15 -- 20 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 18 (b) has been ordered by the court to be detained in custody on the court premises. (2) The escort officer, in relation to the supervision of the person, has the functions set out in sections 55C(1) and 55F, and may exercise the powers set out in sections 55C(2) and 55E. (3) For the purposes of sub-section (2), sections 55C, 55E and 55F apply as if— (a) any reference to a prisoner were a reference to the person being supervised; and (b) any reference to the Secretary were a reference to the court. (4) The court may direct the escort officer to exercise one or more of the powers set out in sections 55C(2) and 55E. (5) For the purposes of sub-section (4), if the escort officer is directed by the court to exercise a power under section 55C(2), that section applies as if it did not require the escort officer to form a belief on reasonable grounds before exercising the power. 55H. How are things seized by an escort officer to be dealt with? (1) An escort officer who is transporting or supervising a prisoner and who seizes a thing under section 55C(2), must, as soon as is practicable, give the thing to the Secretary. (2) The Secretary must deal with or dispose of the seized thing in accordance with the regulations. s. 15 -- 21 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 19 (3) An escort officer who is supervising a person at the direction of a court under section 55B and who seizes a thing under section 55C(2), must, as soon as is practicable, give the thing to the court to be dealt with or disposed of as the court thinks appropriate. 55I. Powers of members of police force (1) If an escort officer is authorised to transport a person to or from a prison or police gaol or other place, then, unless the court otherwise determines, a member of the police force may, at the request of the Secretary, transport the person to or from that place in place of the escort officer, or may assist the escort officer to transport the person. (2) A member of the police force who is transporting, or assisting in the transport of, a person under this section may do anything in relation to that person that an escort officer transporting the person may do. (3) A person who is being transported only by members of the police force under sub- section (1) is deemed to be in the legal custody of the Chief Commissioner of Police while being so transported. (4) If one or more members of the police force assist an escort officer to transport a person under this section, the person is deemed to be in the legal custody of the Secretary while being so transported. s. 15 -- 22 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 20 55J. Additional powers of escort officers (1) An escort officer may execute a warrant to imprison, or a remand warrant, as if the escort officer was a prison officer. (2) A warrant to imprison or a remand warrant may be directed to an escort officer.". 16. New Division 2 of Part 8 substituted For Division 2 of Part 8 of the Corrections Act 1986 substitute— 'Division 2—Transfer of Prisoners 56. Transfers between prisons The Secretary may, by instrument, direct the transfer of a prisoner or a class of prisoner from one prison to another or from one part of a prison to another part of a prison. 56AA. Transfers to and from police gaols (1) The Secretary may, by instrument, direct the transfer of a prisoner from a prison to a police gaol. (2) The Secretary may, by instrument, authorise the transfer from a police gaol to a prison of a person who is in the legal custody of the Chief Commissioner of Police under Part 1A. 56AB. Legal custody of prisoners and detainees transferred to institutions and approved mental health services (1) This section applies if a prisoner in a prison or a person detained in a police gaol is transferred from the prison or police gaol to— s. 16 -- 23 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 21 (a) an approved mental health service within the meaning of the Mental Health Act 1986 in accordance with that Act; (b) a residential institution within the meaning of the Intellectually Disabled Persons' Services Act 1986 in accordance with that Act; (c) a residential service within the meaning of the Intellectually Disabled Persons' Services Act 1986 in accordance with that Act. (2) On a transfer referred to in sub-section (1) of a prisoner or person, the prisoner or person is deemed to be in the legal custody of— (a) the person specified as the person who is to have the custody of the prisoner or person under the Mental Health Act 1986, the Intellectually Disabled Persons' Services Act 1986 or the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; (b) in the case of a transfer referred to in sub-section (1)(a), if no person is specified under the Mental Health Act 1986, the authorised psychiatrist of the approved mental health service; (c) in the case of a transfer referred to in sub-section (1)(b) or (1)(c), if no person is specified under the Intellectually Disabled Persons' Services Act 1986, the chief executive of the place to which the prisoner or person is transferred. s. 16 -- 24 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 22 (3) A transfer referred to in sub-section (1) of a prisoner or person occurs when the person who is to have legal custody of the prisoner or person, or a person acting under lawful authority on behalf of the person who is to have legal custody, accepts physical custody of the prisoner or person. Note: Specific provision for the transfer or return of prisoners and other people can be found in sections 16, 17, 36, 37, 44 and 45 of the Mental Health Act 1986, in sections 21, 21A, 37 and 39 of the Intellectually Disabled Persons' Services Act 1986 and in Division 10 of Part 4 of the Children and Young Persons Act 1989 (this list is not exhaustive).". 17. Custodial community permits (1) After section 57(4)(a) of the Corrections Act 1986 insert— "(aa) a purpose relating to the health or physical fitness of a prisoner; or". (2) In section 57(6) of the Corrections Act 1986— (a) for "A prisoner" substitute "Subject to section 6B, a prisoner"; (b) before "custody" insert "legal". (3) After section 57(6) of the Corrections Act 1986 insert— "(7) The Secretary may issue a custodial community permit in accordance with this section to a prisoner who is not in a prison. (8) If the Secretary issues a custodial community permit in accordance with sub-section (7), the Secretary must nominate a prison as the prison from which the prisoner is authorised to be absent.". 18. Effect of permit s. 17 s. 18 -- 25 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 23 In section 83 of the Corrections Act 1986— (a) in sub-sections (1)(a) and (1)(b), before "custody" insert "physical"; (b) in sub-section (3)— (i) for "A prisoner" substitute "Subject to section 6B, a prisoner"; (ii) before "custody" insert "legal". 19. Insertion of section 108 After section 107 of the Corrections Act 1986 insert— "108. Apprehension of escaped prisoners A prison officer or any member of the police force— (a) may arrest a person who has escaped from the legal custody of the Secretary or the Chief Commissioner of Police; and (b) must deliver the person to a prison or police gaol as soon as possible after the arrest.". 20. Supreme Court—limitation of jurisdiction After section 111A(2) of the Corrections Act 1986 insert— "(3) It is the intention of section 9CB as amended by the Corrections (Custody) Act 2001 to alter or vary section 85 of the Constitution Act 1975. (4) It is the intention of section 55E to alter or vary section 85 of the Constitution Act 1975.". 21. Regulations s. 21 -- 26 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 24 In section 112(1)(k) of the Corrections Act 1986, after "prison officers" insert "or escort officers". 22. Insertion of new section 114 After section 113 of the Corrections Act 1986 insert— "114. Transitional provisions—legal custody (1) Any person who immediately before the commencement of section 4 of the Corrections (Custody) Act 2001 was deemed under section 4 to be in the custody of the Secretary, is, on and after that commencement, deemed to be in the legal custody of the Secretary under Part 1A until custody ceases in accordance with that Part. (2) Any person who immediately before the commencement of section 12 of the Corrections (Custody) Act 2001 was deemed under section 11 to be in the custody of the Chief Commissioner of Police, is, on and after that commencement, deemed to be in the legal custody of the Chief Commissioner of Police under Part 1A until custody ceases in accordance with that Part.". _______________ -- 27 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 25 PART 3—MISCELLANEOUS AMENDMENTS TO THE CORRECTIONS ACT 1986 23. Definitions (1) In section 3 of the Corrections Act 1986, in the definition of "correctional order", after paragraph (f) insert— "(g) a combined custody and treatment order;". (2) In section 3 of the Corrections Act 1986 insert the following definitions— ' "Commissioner" means the person employed as Commissioner for the purposes of this Act; "Health Services Commissioner" means the Commissioner as defined in the Health Services (Conciliation and Review) Act 1987; "Human Rights Commissioner" means the Human Rights Commissioner appointed under the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth; "letter", in relation to a prisoner, means a document containing a communication to, or from, the prisoner, and includes any article accompanying the document;'. 24. Extension of Secretary's delegation power After section 8(1)(a) of the Corrections Act 1986 insert— "(ab) under regulations made under any Act other than the Public Sector Management and Employment Act 1998; or". 25. Commissioner to have automatic right of access s. 23 s. 25 -- 28 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 26 In section 8E of the Corrections Act 1986— (a) in sub-section (1)— (i) after "the Minister, the Secretary" (wherever occurring) insert ", the Commissioner"; (ii) after "by the Secretary" insert "or the Commissioner"; (b) in sub-section (3), after "that the Secretary" insert "or Commissioner (as the case may be)". 26. Status of staff In section 9C of the Corrections Act 1986, after "prison officer," (wherever occurring) insert "disciplinary officer,". 27. Insertion of section 22A After section 22 of the Corrections Act 1986 insert— "22A. Powers of Governor (1) A Governor has and may exercise all or any of the powers or functions of a prison officer or escort officer under this Act. (2) An exercise by a Governor of any power or function under sub-section (1) in relation to a matter prevails over the exercise by a prison officer or escort officer of that power or function in relation to that matter.". 28. Secrecy (1) In section 30(1) of the Corrections Act 1986, in the definition of "confidential information", for paragraph (g) substitute— "(g) information concerning the investigation of a breach or possible breach of the law by— -- 29 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 27 (i) a prisoner; or (ii) an officer within the meaning of Part 5; or (iii) a person authorised under section 9A to exercise a function or power; or". (2) In section 30(1) of the Corrections Act 1986, after the definition of "information" insert— ' "information relating to the personal affairs of a prisoner" includes information— (a) that identifies the prisoner or discloses his or her address or location; or (b) from which any other person's identity, address or location can reasonably be determined— but does not include information that is in the public domain;'. (3) After section 30(3)(d) of the Corrections Act 1986 insert— "(da) disclosing information under section 30A; or". 29. Insertion of section 30A After section 30 of the Corrections Act 1986 insert— '30A. Victim may be given certain information about a prisoner (1) In this section "primary victim" has the same meaning as it has in section 7 of the Victims of Crime Assistance Act 1996. (2) The Secretary may, on the written request of a person who was the primary victim of an offence for which a prisoner is serving a sentence of imprisonment, give the person s. 29 -- 30 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 28 making the request some or all of the following information— (a) details about the length of the prisoner's sentence for the offence and of any other sentences of imprisonment that the prisoner is liable to serve; (b) the date on which, and the circumstances in which, the prisoner was, is to be or is likely to be released for any reason (including release on bail, custodial community permit or parole); (c) details of any escape by the prisoner from the legal custody of the Secretary or any other person. (3) The Secretary must not disclose the information if the Secretary reasonably believes the disclosure of the information might endanger the security of any prison or the safe custody and welfare of the prisoner or any other prisoner or the safety or welfare of any other person.". 30. Information to be given by visitors (1) In section 42 of the Corrections Act 1986, for sub-section (1) substitute— "(1) A prison officer may require any person who wishes to enter, or who has entered, a prison as a visitor to give the prison officer information as to— (a) the purpose of the visit or intended visit; (b) the person's identity, address, occupation and age; s. 30 -- 31 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 29 (c) the person's relationship (if any) to any prisoner the person wishes to visit.". (2) In section 42(3) of the Corrections Act 1986, for "prescribed" substitute "required". 31. Search In section 45(1) of the Corrections Act 1986, for paragraph (b) substitute— "(b) search and examine any person in the prison other than a judge of the Supreme Court or County Court, or a magistrate; or". 32. Prisoners' rights In section 47 of the Corrections Act 1986— (a) in sub-section (1), for paragraph (j) substitute— "(j) the right to make complaints concerning prison management to the Minister, the Secretary, the Commissioner, the Governor, an official visitor, the Ombudsman, the Health Services Commissioner and the Human Rights Commissioner;"; (b) in sub-section (1), for paragraphs (m) and (n) substitute— "(m) subject to sections 47A and 47B, the right to send letters to, and receive letters from, the following people without those letters being opened by prison staff— (i) the Minister, the Secretary, the Commissioner or an official visitor; (ii) a member of Parliament; s. 31 -- 32 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 30 (iii) a legal practitioner representing the prisoner, or from whom the prisoner is seeking legal advice; (iv) the Ombudsman; (v) the Health Services Commissioner; (vi) the Human Rights Commissioner; (vii) any person authorised to act on behalf of a person listed in sub- paragraph (iv), (v) or (vi); (n) subject to section 47D, the right to send and receive other letters uncensored by prison staff;"; (c) sub-section (4) is repealed. 33. Insertion of sections 47A–47E After section 47 of the Corrections Act 1986 insert— "47A. Suspected dangerous letters may be disposed of If the Governor reasonably suspects that any letter to, or from, a prisoner contains an unauthorised article or substance that could pose an immediate danger to any person, the Governor may dispose of the letter in any manner he or she considers to be appropriate. 47B. Certain confidential letters may be inspected (1) This section applies if the Governor reasonably suspects that a letter to, or from, a prisoner contains any unauthorised article or substance, but section 47A does not apply. (2) If the letter is to, or from, a legal practitioner, the Health Services Commissioner or the s. 33 -- 33 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 31 Human Rights and Equal Opportunity Commissioner or any person authorised to act on behalf of either of those Commissioners, the Governor— (a) may hold the letter and notify the prisoner and the legal practitioner, or the relevant Commissioner, of his or her suspicions; and (b) may open and inspect the letter— (i) in the presence of the prisoner and a representative of the legal practitioner or relevant Commissioner; or (ii) in accordance with any alternative arrangement agreed with the legal practitioner or relevant Commissioner— but must not read or censor the letter. (3) If the Governor has not received a response from the relevant Commissioner or legal practitioner within 7 days after notice is given under sub-section (2), the Governor may require the prisoner to open the letter to enable the Governor to inspect it. (4) If the letter is to, or from, the Minister, a member of Parliament, the Secretary, the Commissioner or an official visitor, the Governor may require the prisoner to open the letter to enable the Governor to inspect it. (5) If a prisoner refuses a request to open a letter under sub-section (3) or (4), the Governor may open the letter. (6) In opening or inspecting a letter under this section, the Governor— s. 33 -- 34 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 32 (a) may inspect the envelope, and any associated packet, parcel, container or wrapper; but (b) must not read or censor the letter. 47C. All other letters may be opened and read A prison officer may open, inspect and read a letter sent to, or received by, a prisoner by or from any person who is not listed in section 47(1)(m) to determine whether or not the contents of the letter may jeopardise the safety and security of the prison, the safe custody and welfare of any prisoner or the safety of the community. 47D. Threatening letters may be stopped and censored (1) This section applies if the Governor reasonably believes that any letter sent to, or received from, a prisoner by any person who is not listed in section 47(1)(m)— (a) is a threat to prison security; or (b) may be of a threatening or harassing nature; or (c) may be being used to further an unlawful activity or purpose; or (d) contains indecent, abusive, threatening or offensive written or pictorial matter, or an indecent, obscene or offensive article or substance. (2) The Governor may— s. 33 -- 35 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 33 (a) if the belief concerns the whole letter, stop the letter from being sent or received by the prisoner; or (b) if the belief concerns only part of a letter, cause the relevant part of the letter to be censored. 47E. Letter register The Governor must establish and maintain a register containing— (a) details of every letter disposed of under section 47A; and (b) details of every letter opened under— (i) section 47B(2), (3), (4) or (5); or (ii) section 28(3) of the Ombudsman Act 1973; or (iii) section 86L(7) of the Police Regulation Act 1958; and (c) the reasons for opening any letter referred to in paragraph (b); and (d) details of any unauthorised article or substance found in conducting an inspection in relation to a letter; and (e) details of any other action taken in relation to a letter or anything found in or with a letter.". 34. Prison offences (1) In section 50(1) of the Corrections Act 1986, after "an officer" insert "within the meaning of Part 5 or an escort officer". (2) In section 50(5) of the Corrections Act 1986— s. 34 -- 36 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 34 (a) in paragraph (d), for "offence; or" substitute "offence."; (b) paragraph (e) is repealed. (3) After section 50(5) of the Corrections Act 1986 insert— "(5A) In addition to any action the disciplinary officer may take under sub-section (5)(a), (b) or (d), the disciplinary officer may also take steps to have the matter dealt with under the criminal law.". 35. Correction of typographical error In section 58B(5) of the Corrections Act 1986, for "prisoner officer" substitute "prison officer". 36. New section 70 substituted For section 70 of the Corrections Act 1986 substitute— "70. Secretary to supply assistance to Board The Secretary must provide such employees of the Department of Justice and such other assistance to the Board as is necessary to assist the Board— (a) in supervising persons released on parole; and (b) to perform any other of the Board's functions.". 37. Correction of outdated references In section 72(7) of the Corrections Act 1986, for "an officer in the Office of Corrections" substitute "the Secretary ". _______________ s. 35 -- 37 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 35 PART 4—AMENDMENT OF CUSTODY RELATED PROVISIONS IN OTHER ACTS 38. Children and Young Persons Act 1989 (1) In section 242 of the Children and Young Persons Act 1989— (a) in sub-section (2), for "custody of the officer in charge of the prison" substitute "legal custody of the Secretary to the Department of Justice"; (b) in sub-section (3), for "the member of the police force" substitute "the Chief Commissioner of Police". (2) In sections 243(4), 244(4), 244A(5) and 244B(5) of the Children and Young Persons Act 1989, for "the member of the police force" substitute "the Chief Commissioner of Police". (3) After section 244(4) of the Children and Young Persons Act 1989 insert— "(4A) Sub-section (3) does not apply if the officer transferring a person under this section is an escort officer within the meaning of the Corrections Act 1986 and the person being transferred is deemed under that Act to be in the legal custody of the Secretary to the Department of Justice.". (4) After section 244A(5) of the Children and Young Persons Act 1989 insert— "(5A) Sub-section (4) does not apply if the officer transferring a child under this section is an escort officer within the meaning of the Corrections Act 1986 and the child being transferred is deemed under that Act to be in s. 38 -- 38 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 36 the legal custody of the Secretary to the Department of Justice.". (5) In section 244B(4) of the Children and Young Persons Act 1989, for "custody of the officer in charge of the prison" substitute "legal custody of the Secretary to the Department of Justice". 39. Coroners Act 1985 In section 3 of the Coroners Act 1985, in the definition of "person held in care", for paragraph (ab) substitute— "(ab) a person— (i) in the legal custody of the Secretary to the Department of Justice or the Chief Commissioner of Police; or (ii) in the custody of a member of the police force; or (iii) in the custody of a protective services officer appointed under the Police Regulation Act 1958; or". 40. Crimes Act 1958 (1) In section 361 of the Crimes Act 1958— (a) in sub-section (1)— (i) for "the custody of the officer in charge of any prison" substitute "in the legal custody of the Secretary to the Department of Justice in a prison"; (ii) for the phrase beginning "by the officer" and ending "and detainer" substitute "by the Secretary"; (b) sub-section (2) is repealed; s. 39 -- 39 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 37 (c) in sub-sections (4)(a)(ii), 4(b)(ii) and 4(c)(ii), after "any reference to" insert "the Secretary to the Department of Justice or to". (2) In section 390(1) of the Crimes Act 1958, for "in his custody" substitute "detained at the prison in the legal custody of the Secretary to the Department of Justice". (3) In section 479C of the Crimes Act 1958, for sub- section (1) substitute— "(1) A person who, whether by force or not, escapes or attempts to escape— (a) from a prison or police gaol; or (b) if the person is in the legal custody of the Secretary to the Department of Justice or the Chief Commissioner of Police, from the physical custody of— (i) an officer within the meaning of Part 5 of the Corrections Act 1986 or an escort officer under that Act; or (ii) a member of the police force; or (iii) a person acting on lawful authority on behalf of the Secretary or the Chief Commissioner— is guilty of an indictable offence punishable on conviction by level 6 imprisonment (5 years maximum).". (4) In section 479C of the Crimes Act 1958, for sub- section (4) substitute— '(4) For the purposes of sub-section (3), "prisoner" includes a person who is in the custody of a court.'. s. 40 -- 40 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 38 41. Evidence Act 1958 (1) In section 12 of the Evidence Act 1958, in the first paragraph of that section, for "shall be deemed to be in the legal custody of the gaoler or other officer having the temporary custody of such person and acting under such order, and such officer shall in due course return such person into the custody from which he was brought" substitute "is to be returned in due course to the place from which he or she was brought, unless released from custody according to law". (2) In the Second Schedule to the Evidence Act 1958— (a) after "a person now in your" insert "physical"; (b) omit "19"; (c) after "testify what he" insert "or she"; (d) for ", and the said [here repeat name of prisoner] is to remain in the custody of the officers local gaolers and members of the police force acting under this order until the said [name of prisoner]" substitute "and he or she is to remain at that place until he or she". 42. Intellectually Disabled Persons' Services Act 1986 (1) In sections 21(1), 21(7) and 21(8) of the Intellectually Disabled Persons' Services Act 1986, for "Minister administering the Corrections Act 1986" substitute "Secretary to the Department of Justice". s. 41 -- 41 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 39 (2) In section 21 of the Intellectually Disabled Persons' Services Act 1986, for sub-sections (2) and (3) substitute— "(2) The Secretary to the Department of Justice must not make a security order unless— (a) the Secretary to the Department of Justice has received a declaration of eligibility and an individual program plan from the Secretary to the Department of Human Services; and (b) the Secretary to the Department of Justice is satisfied as to the matters specified in sub-section (7); and (c) the Secretary to the Department of Human Services has agreed to accept the person as a security resident in the residential institution specified in the order. (3) The Secretary to the Department of Justice may make an interim order to enable the Secretary to the Department of Human Services to assess the eligibility of the person specified in the order.". (3) In section 21 of the Intellectually Disabled Persons' Services Act 1986, for sub-section (5) substitute— "(5) On the application of the Secretary to the Department of Human Services, the Secretary to the Department of Justice may extend the duration of an interim order for a further period not exceeding 28 days.". s. 42 -- 42 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 40 (4) In section 21(6) of the Intellectually Disabled Persons' Services Act 1986 for "Where the Secretary" substitute "If the Secretary to the Department of Human Services". (5) In section 21(7)(d) of the Intellectually Disabled Persons' Services Act 1986 for "Minister" substitute "Secretary to the Department of Justice". (6) In section 39(2) of the Intellectually Disabled Persons' Services Act 1986, for "in the custody of officers of the Department of Justice" substitute "in the legal custody of the Secretary to the Department of Justice under the Corrections Act 1986". 43. Magistrates' Court Act 1989 In the Magistrates' Court Act 1989— (a) in section 59(5)— (i) after "whose " insert "legal"; (ii) omit "in custody"; (b) in section 67(3)(a), before "custody" insert "legal". 44. Mental Health Act 1986 In sections 38 and 46 of the Mental Health Act 1986, for "being placed in the custody of employees in the Department of Justice" substitute "entering the legal custody of the Secretary to the Department of Justice under the Corrections Act 1986.". 45. Sentencing Act 1991 In section 101 of the Sentencing Act 1991, sub- section (4) is repealed. ═══════════════ s. 43 -- 43 of 44 -- Act No. 45/2001 Corrections (Custody) Act 2001 41 ENDNOTES † Minister's second reading speech— Legislative Assembly: 3 May 2001 Legislative Council: 6 June 2001 The long title for the Bill for this Act was "to amend the Corrections Act 1986 and other Acts in relation to the custody and transfer of prisoners and detainees and for other purposes." Constitution Act 1975: Section 85(5) statement: Legislative Assembly: 3 May 2001 Legislative Council: 6 June 2001 Absolute majorities: Legislative Assembly: 31 May 2001 Legislative Council: 19 June 2001 Endnotes -- 44 of 44 --