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Removal of Prisoners (Territories) Act 1923

  • - C2004C06404
  • In force - Superseded Version
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Act No. 14 of 1923 as amended, taking into account amendments up to Act No. 216 of 1973
Registered 07 Dec 2009
Start Date 31 Dec 1973
End Date 19 Sep 1976

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923
- Reprinted as at 19 December 1973 (HISTACT2 CHAP 312 #DATE 19:12:1973)

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - TABLE OF PROVISIONS

TABLE


REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973

TABLE OF PROVISIONS
Section
1. Short title
2. Interpretation
2A. Exercise of powers of Administrator where no office of Administrator
3. Removal of prisoners from Territories in certain cases
4. Warrant for removal of prisoner
5. Dealing with removed prisoner
6. Remission of portion of imprisonment
7. Escape of prisoner from custody
8. Return of removed prisoner
8A. Licences for prisoners to be at large
9. Application of Act to criminal lunatics
10. Application of Act to existing prisoners and criminal lunatics
10A. Release of criminal lunatics
11. Evidence of act of Government of State or Territory or of
Governor-General
12. Cost of removal
13. State or Territory laws for carrying Act into effect
14. Regulations

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REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - SECT. 1.
Short title.

SECT

of the Commonwealth.
Short title amended; No. 32, 1918, s. 2.
1. This Act may be cited as the Removal of Prisoners (Territories) Act 1923-1973.*

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - SECT. 2.
Interpretation.

SECT

Sub-section (1) amended by No. 80, 1950, s. 3; No. 69, 1962, s. 2; and No. 216, 1973, s. 3.
2. (1) In this Act, unless the contrary intention appears-

''Constable'' means a Commonwealth Police Officer or a member of the police force of a State or Territory;

''Criminal lunatic'' means a person detained in custody by reason of his having been charged with an offence, and either found to have been insane at the time of the commission of the offence, or found or certified or otherwise lawfully proved to be unfit, on the ground of his insanity, to be tried for the offence, and includes a person convicted of an offence and afterwards certified or otherwise lawfully proved to be insane, but does not include an aboriginal native of a Territory;

''Prisoner'' means any person sentenced to imprisonment in a Territory, but does not include an aboriginal native of a Territory;

''This Act'' includes the regulations made thereunder.
Added by No. 69, 1962, s. 2.

(2) For the purposes of this Act, where the sentence of a person who has been sentenced to death in a Territory has been commuted to a term of imprisonment, that person shall be deemed to have been sentenced to imprisonment in the Territory for that term.
Added by No. 69, 1962, s. 2.

(3) In this Act, unless the contrary intention appears, a reference to the sentence of a prisoner shall, in relation to a prisoner who, by reason of his having been declared to be a habitual criminal, may be or is being detained in prison after the expiration of the term of imprisonment imposed upon him, be read as including a reference to any detention that he is liable to undergo by reason of his having been so declared.

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - SECT. 2A.
Exercise of powers of Administrator where no office of Administrator.

SECT

Inserted by No. 2, 1957, s. 3.
2A. (1) Where there is no office of Administrator in respect of a Territory, the Governor-General may, by order published in the Gazette*-

(a) declare that an office specified in the order shall, for the purposes of the application of this Act in relation to that Territory, be substituted for the office of Administrator; or

(b) authorize a person named in the order to exercise and perform, in relation to that Territory, the powers and functions of an Administrator under this Act.

(2) A reference in this Act to the Administrator of a Territory shall, in relation to a Territory in respect of which an order is in force under the last preceding sub-section, be read as a reference to-

(a) the person occupying, or acting in, the office specified in the order; or

(b) the person named in the order,
as the case may be.

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - SECT. 3.
Removal of prisoners from Territories in certain cases.

SECT

47 & 48 Vict., c. 31, s. 2.
Sub-section (1) amended by No. 69, 1962, s. 3.
3. (1) Where it appears to the Administrator of a Territory-

(a) that, by reason of there being no prison in the Territory in which the prisoner can properly undergo his sentence, the removal of the prisoner is expedient for his safer custody or for the more efficient carriage of his sentence into effect; or

(b) that it is likely that the life of a prisoner undergoing his sentence in the Territory will be endangered or his health permanently impaired by further imprisonment in the Territory; or

(c) that the offence was committed wholly or partly beyond the limits of the Territory; or

(d) that the prisoner belongs to a class of persons who under the law of the Territory are subject to removal under this Act,
he may recommend to the Governor-General that the prisoner be removed to a State or another Territory, there to undergo his sentence or the residue thereof.

(2) Upon the receipt of a recommendation in pursuance of the last preceding sub-section the Governor-General may, with the concurrence of the Government of the State or Territory to which it is proposed to remove the prisoner, order the prisoner to be removed to that State or Territory, there to undergo his sentence or the residue thereof.

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - SECT. 4.
Warrant for removal of prisoner.

SECT

47 & 48 Vict., c. 31, s. 7.
4. (1) Where the removal of a prisoner from a Territory is ordered in pursuance of this Act, the Governor-General, or the Administrator of the Territory may, by warrant under his hand, direct the prisoner to be removed to the State or Territory mentioned in the order, and for that purpose to be delivered into the custody of the person named or described in the warrant, and to be held in custody and conveyed to that State or Territory, there to undergo his sentence or the residue thereof, until returned in pursuance of this Act or discharged.

(2) Where a prisoner is ordered or required to be returned to the Territory from which he was removed, the Governor-General or the Governor of the State or the Administrator of the Territory in which he is undergoing his sentence may, by warrant under his hand, direct the prisoner to be returned to the Territory from which he was removed, and for that purpose to be delivered into the custody of the person named or described in the warrant, and to be held in custody and conveyed to the Territory from which he was removed, there to undergo the residue of his sentence, or to be discharged or to be tried for an offence, as the case requires.

(3) Every warrant issued in pursuance of this section shall be forthwith executed according to the tenor thereof.

(4) Every warrant purporting to be issued in pursuance of this section, and to be under the hand of the Governor-General or the Governor of a State or the Administrator of a Territory, shall be received in evidence in any Court of a State or Territory without further proof, and shall be evidence of the facts therein stated, and all acts done in pursuance of any such warrant shall be deemed to have been authorized by law.

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - SECT. 5.
Dealing with removed prisoner.

SECT

47 & 48 Vict., c. 31, s. 8.
5. (1) Every prisoner removed in pursuance of this Act shall, until he is returned in pursuance of this Act, be dealt with in the State or Territory to which he is removed, in like manner as if his sentence (with such variation of the conditions thereof as is prescribed by regulations made under paragraph (b) of section fourteen of this Act) had been duly awarded in that State or Territory, and shall be subject accordingly to all laws in force in that State or Territory.

(2) Notwithstanding anything contained in the last preceding sub-section, the conviction, judgment, and sentence of a prisoner may be questioned in the Territory from which he has been removed in the same manner as if he had not been removed, and his sentence may be remitted, and his discharge ordered, in the same manner and by the same authority as if he had not been removed.

(3) The officer in charge of any prison, on request by any person having the custody of a prisoner under a warrant issued in pursuance of this Act, and on payment or tender of such amount for expenses as the Government of the State or Territory in which the prison is situated determines, shall receive the prisoner and detain him for such time as is requested by the person for the purpose of the proper execution of the warrant.

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - SECT. 6.
Remission of portion of imprisonment.

SECT

47 & 48 Vict., c. 31, s. 4(2).
6. Where, in pursuance of this Act, the conditions of a sentence of imprisonment appear to the Governor-General to be more severe in the State or Territory to which a prisoner is removed than in the Territory from which he was removed, the Governor-General may remit a portion of the sentence so that the punishment undergone by the prisoner may not, in the opinion of the Governor-General, be more severe than the punishment to which the prisoner was originally sentenced, and the sentence of imprisonment shall, so long as the prisoner remains in the State or Territory to which he is removed, be carried into effect as if the conditions thereof, as so varied, were the conditions of the original sentence.

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - SECT. 7.
Escape of prisoner from custody.

SECT

47 & 48 Vict., c. 31, s. 9.
7. (1) If a prisoner, while in custody in pursuance of this Act or of a warrant issued in pursuance of this Act, escapes from custody, he may be retaken in the same manner as a person convicted of an offence against the laws of the State or Territory in or to which he escapes may be retaken upon an escape.

(2) A person who so escapes or aids, abets, counsels, or procures, any such escape shall be guilty of an offence.

Penalty: Imprisonment for two years.

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - SECT. 8.
Return of removed prisoner.

SECT

47 & 48 Vict., c. 31, s. 3.
8. (1) Where a prisoner has been removed in pursuance of this Act, the Governor-General, or the Government of the State or Territory to which the prisoner has been so removed, may order the prisoner, for the purpose of undergoing the residue of his sentence, to be returned to the Territory from which he was removed.
Amended by No. 11, 1936, s. 2; and No. 69, 1962, s. 4.

(2) If the Governor-General, or the Government of the State or Territory to which a prisoner is removed under this Act, requires the prisoner to be returned for discharge to the Territory from which he was removed, the prisoner shall, as prescribed, be returned to that Territory for the purpose of being there discharged at the expiration of his sentence.
Added by No. 69, 1962, s. 4.

(3) Where-

(a) a person has been removed to a State or Territory in pursuance of this Act;

(b) he is discharged in that State or Territory at the expiration of his sentence or he is released from custody in that State or Territory in pursuance of a licence granted under section eight A of this Act or an order made under section ten A of this Act;

(c) his return to the Territory from which he was removed would not result, or be likely to result, in a failure by him to comply with a condition applicable to such a licence or to such an order; and

(d) his return to the Territory from which he was removed would not be unlawful,
he is entitled, on making application in such manner and within such time as is prescribed, to be sent free of cost from the place at which he was discharged or released from custody to the Territory from which he was removed.

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - SECT. 8A.
Licences for prisoners to be at large.

SECT

Inserted by No. 69, 1962, s. 5.
8A. (1) In this section-

''licence'' means a licence to be at large granted under the next succeeding sub-section;

''prescribed authority'' means-

(a) a person who holds office as a Chief, Police, Stipendiary, Resident or Special Magistrate of a State and in respect of whom an arrangement in force under sub-section (15) of this section is applicable; or

(b) a person who holds office as a Chief, Police, Stipendiary, Resident or Special Magistrate, or a District Officer or Assistant District Officer, of a Territory;

''the prescribed period'', in relation to a licence, means-

(a) if the prisoner to whom the licence was granted was, at the time when the licence was granted, serving a term of imprisonment-the period commencing on the day on which the licence was granted and ending on the day which, if no remissions of his sentence were granted, would be the last day of that term; or

(b) if the prisoner to whom the licence was granted was, at the time when the licence was granted, being detained in prison by reason of his having been declared to be a habitual criminal-the period of three years commencing on the day on which the licence was granted.

(2) Where a prisoner has been removed to a State or Territory in pursuance of this Act (not being a person referred to in paragraph (a) or (b) of sub-section (2) of section nineteen A of the Crimes Act 1914-1960), the Governor-General may, if he thinks it proper so to do in the circumstances, grant to the prisoner by writing under his hand, a licence to be at large.

(3) A licence is sufficient authority for the release from prison of the person to whom it is granted.

(4) A licence is subject to such conditions, if any, as are specified in the licence.

(5) The Governor-General may, at any time before the expiration of the prescribed period, by writing under his hand-

(a) vary or revoke a condition of a licence or impose additional conditions; or

(b) revoke a licence.

(6) The varying of a condition, or the imposing of an additional condition, under the last preceding sub-section does not have effect until notice thereof has been given to the person to whom the licence was granted, being notice given before the expiration of the prescribed period.

(7) Where-

(a) a licence granted to a person is revoked; or

(b) the person to whom a licence has been granted has, during the prescribed period, failed to comply with a condition of the licence or there are reasonable grounds for suspecting that he has, during that period, failed to comply with a condition of the licence,
a constable may, without warrant, arrest the person.

(8) Where a constable arrests a person in pursuance of the last preceding sub-section on a ground specified in paragraph (b) of that sub-section, the constable shall, as soon as practicable, take that person before a prescribed authority and, if the prescribed authority is satisfied that that person without lawful excuse failed to comply with a condition of the licence granted to him, the prescribed authority shall cancel the licence.

(9) A person brought before a prescribed authority under the last preceding sub-section shall, unless the prescribed authority otherwise directs, be kept in custody until the prescribed authority has determined the matter.

(10) Subject to sub-section (12) of this section, where a licence granted to a person who, at the time of the grant, was serving a term of imprisonment is revoked or cancelled, the person may be detained in prison, as if the licence had not been granted, to undergo imprisonment for a period equal to the part of the term that he had not served at the time when he was released from prison in pursuance of the licence and, in the case of a person who has been declared to be a habitual criminal, he may, on the expiration of that term, be further detained in prison as if the licence had not been granted.

(11) Subject to the next succeeding sub-section, where a licence granted to a person who, at the time of the grant, was being detained in prison by reason of his having been declared to be a habitual criminal is revoked or cancelled, the person may be detained in prison as if the licence had not been granted.

(12) Where a prescribed authority cancels a licence under sub- section (8) of this section, the person to whom the licence was granted may appeal to the Supreme Court of a Territory or to a prescribed Federal Court against the cancellation and the Court shall-

(a) if it is satisfied that the ground on which the licence was cancelled has been established-confirm the cancellation; or

(b) if it is not so satisfied-order that the cancellation cease to have effect.

(13) An appeal under the last preceding sub-section shall be by way of re-hearing, but the Court may have regard to any evidence given before the prescribed authority.
Amended by No. 9, 1968, s. 3.

(14) For the purposes of the preceding provisions of this section, ''the Governor-General'' means the Governor-General of the Commonwealth, or the person for the time being administering the government of the Commonwealth, acting-

(a) in the case of a prisoner sentenced in the Australian Capital Territory or in the Northern Territory of Australia-with the advice of the Attorney-General; or

(b) in any other case-with the advice of the Minister of State for External Territories.

(15) The Governor-General may arrange with the Governor of a State for the performance by persons who hold office as Chief, Police, Stipendiary, Resident or Special Magistrates in that State of the functions of a prescribed authority under this section.

(16) Notice of an arrangement under the last preceding sub-section shall be published in the Gazette.

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - SECT. 9.
Application of Act to criminal lunatics.

SECT

47 & 48 Vict., c. 31, s. 10.
Sub-section (1) amended by No. 69, 1962, s. 6.
9. (1) The preceding provisions of this Act, other than the last preceding section, shall, so far as applicable, apply to a person in custody as a criminal lunatic in like manner as they apply to a prisoner undergoing sentence of imprisonment, and, subject to this Act, all laws in force in the State or Territory in which a criminal lunatic, who is removed or returned, is for the time being in custody under a warrant issued in pursuance of this Act, shall apply to the criminal lunatic as if he had become a criminal lunatic in that State or Territory.

(2) Where a person, who is a criminal lunatic and is unfit to be tried for an offence, is removed in pursuance of this Act, and the Governor-General or the Government of the State or Territory to which the person was removed, or the Government of the Territory from which he was removed, considers that the person has become sufficiently sane to be tried for the offence, and requires him to be returned for trial to the Territory from which he was removed, he shall in accordance with this Act be returned as a prisoner to that Territory for the purpose of being there tried for that offence.

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - SECT. 10.
Application of Act to existing prisoners and criminal lunatics.

SECT

47 & 48 Vict., c. 31, s. 17.
10. This Act shall apply to a prisoner who has been convicted, and to a criminal lunatic who has become a criminal lunatic before the commencement of this Act, as if he had been convicted or become a criminal lunatic after the commencement of this Act.

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - SECT. 10A.
Release of criminal lunatics.

SECT

Inserted by No. 69, 1962, s. 7.
10A. (1) Where a criminal lunatic (being a person who was found to be insane at the time of the commission of the offence with which he was charged but not being a person to whom sub-section (1) of section twenty B of the Crimes Act 1914-1960 applies) has been removed to a State or Territory in pursuance of this Act, the Governor-General may, by writing under his hand, order that he be released from custody either unconditionally or subject to such conditions as are specified in the order.

(2) Where, under the last preceding sub-section, the Governor-General orders that a person be released from custody subject to conditions, the Governor-General may, at any time, by writing under his hand-

(a) vary or revoke all or any of the conditions or impose additional conditions; or

(b) except where the Governor-General has revoked all the conditions-revoke the order.

(3) Where an order made in respect of a person under sub-section (1) of this section is revoked or the person fails to comply with a condition of such an order, the person may, without warrant, be arrested by any constable and may be detained in custody as if the order under sub-section (1) of this section had not been made.

(4) Upon the Governor-General making an order under sub-section (1) of this section that a person be released from custody unconditionally or upon the Governor-General revoking all the conditions applicable to an order under which a person has been released from custody, this Act, and any law of the Territory from which he was removed that authorizes his detention in custody by reason of his having been found to be insane at the time of the commission of the offence with which he was charged, ceases to apply to him in relation to that offence.
Amended by No. 9, 1968, s. 4.

(5) For the purposes of this section, ''the Governor-General'' means the Governor-General of the Commonwealth, or the person for the time being administering the government of the Commonwealth, acting-

(a) in the case of a criminal lunatic removed from the Australian Capital Territory or from the Northern Territory of Australia-with the advice of the Attorney-General; or

(b) in any other case-with the advice of the Minister of State for External Territories.

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - SECT. 11.
Evidence of act of Government of State or Territory or of Governor-General.

SECT

11. (1) The concurrence of and any requirement by the Government of a State or Territory may be given or made-

(a) in the case of a State, by the Governor in Council;

(b) in the case of a Territory, by the Administrator; or

(c) in either case, by such other authority as is from time to time provided by the law of the State or Territory.

(2) The concurrence or requirement shall be signified by writing under the hand of the Governor of a State or the Administrator of a Territory, as the case may be, or any other officer appointed in that behalf by the law of the State or Territory.

(3) Any writing purporting to signify the concurrence or requirement and to be signed by the Governor or Administrator or other officer for the time being, shall be conclusive evidence that the concurrence or requirement has been duly given or made.
Amended by No. 69, 1962, s. 8.

(4) Any writing purporting to be under the hand of the Governor-General and to order the removal of a prisoner or criminal lunatic from a Territory shall be conclusive evidence that the order has been duly given by the Governor-General.

(5) Every writing mentioned in this section shall be admissible in evidence in any Court of a State or Territory.

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - SECT. 12.
Cost of removal.

SECT

47 & 48 Vict., c. 31, s. 11. Sub-section (1) amended by No. 69, 1962, s. 9.
12. (1) The cost of the removal of any prisoner or criminal lunatic under this Act and of his maintenance while in confinement and of his return and of his being sent, after discharge or release from custody, to any place, shall be borne by the Commonwealth or, where the expenditure of the Territory from which the prisoner or criminal lunatic is removed is defrayed from the revenues of that Territory, by the Territory from which he is removed, and shall be paid in such manner as is arranged between the Governor-General and the Governments of the States and Territories concerned.

(2) Nothing in this Act shall affect any power to recover the whole or any part of the cost from the property of the prisoner or criminal lunatic.

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - SECT. 13.
State or Territory laws for carrying Act into effect.

SECT

47 & 48 Vict., c. 31, s. 12.
Amended by No. 69, 1962, s. 10.
13. If any law is made in any State or Territory-

(a) for determining the authority by whom and the manner in which any power or concurrence under this Act is to be exercised or given;

(b) for the payment of the costs incurred in the removal, maintenance, return, or sending back, after discharge, of a prisoner or criminal lunatic;

(c) for dealing in the State or Territory with prisoners or criminal lunatics removed thereto in pursuance of this Act;

(d) for making any class of prisoners or criminal lunatics subject to removal under this Act; or

(e) otherwise in any manner for the carrying of this Act or any part thereof into effect as regards the State or Territory,
the Governor-General may, for the purposes of this Act, direct that the law shall with or without modification or alteration be recognized and given effect to throughout the Commonwealth and the Territories as if it were part of this Act.

REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - SECT. 14.
Regulations.

SECT

47 & 48 Vict., c. 31, s. 4.
14. The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for giving effect to this Act, and in particular for providing for-

(a) the removal, return and discharge of prisoners and criminal lunatics under this Act; and

(b) varying the conditions of a sentence of imprisonment passed in a Territory, where those conditions differ from the conditions of a sentence of imprisonment in the State or Territory to which the prisoner is removed, with a view to bringing them into conformity with the latter conditions:

Provided that no such variation shall increase the term of the sentence of imprisonment.
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REMOVAL OF PRISONERS (TERRITORIES) ACT 1923-1973 - NOTES


NOTES
1. The Removal of Prisoners (Territories) Act 1923-1973 comprises the Removal of Prisoners (Territories) Act 1923 as amended by the other Acts specified in the following table:
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Number Date of
Act and year Date of
Assent commencement
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Removal of Prisoners
(Territories) Act 1923 No. 14, 1923 1 Sept 1923 1 Sept 1923
Removal of Prisoners
(Territories) Act 1935 No. 11, 1936 27 May 1936 27 May 1936
Statute Law Revision Act
1950 No. 80, 1950 16 Dec 1950 31 Dec 1950
Removal of Prisoners
(Territories) Act 1957 No. 2, 1957 15 April 1957 15 April 1957
Removal of Prisoners
(Territories) Act 1962 No. 69, 1962 24 Nov 1962 22 Dec 1962
Removal of Prisoners
(Territories) Act 1968 No. 9, 1968 8 May 1968 8 May 1968
Statute Law Revision Act
1973 No. 216, 1973 19 Dec 1973 31 Dec 1973
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See, in connexion with the removal of prisoners from Christmas Island and the application of this Act to Christmas Island, section 18 of the Christmas Island Act 1958-1973.
2.-S.2A-By order published in the Gazette on 25 July 1957 it was declared that, for the purposes of the application of this Act in relation to the Territory of Cocos (Keeling) Islands, the office of Official Representative in that Territory be substituted for the office of Administrator.

By order published in the Gazette on 23 October 1958 it was declared that, for the purposes of the application of this Act in relation to the Territory of Christmas Island, the office of Official Representative in that Territory be substituted for the office of Administrator.