Corrections (Custody) Act 2001 (Vic)

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

i

Section Page

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

ii

Section Page

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

iii

Victoria

No. 45 of 2001

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 detainees; and

(ii)  to create and define the role of escort officers; and

Corrections (Custody) Act 2001

s. 2 Act No. 45/2001

(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.

_______________
Corrections (Custody) Act 2001

Act No. 45/2001 s. 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

Corrections (Custody) Act 2001

s. 5 Act No. 45/2001

(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) authority on behalf of the

a person acting under lawful 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.

Corrections (Custody) Act 2001

Act No. 45/2001 s. 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)	direction or authority releases the

when the Secretary acting under lawful 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

Corrections (Custody) Act 2001

s. 5 Act No. 45/2001

(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

Corrections (Custody) Act 2001

Act No. 45/2001	s. 5
other lawful authority to detain the person in a police gaol; and

(b) either of the following events occurs—

(i) person acting under lawful
authority on behalf of the Chief

a member of the police force or a custody of the person; or

(ii) under lawful authority on behalf
of the Chief Commissioner

a person at a police gaol acting 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.

Corrections (Custody) Act 2001

s. 5 Act No. 45/2001

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)	under lawful direction or authority

when the Chief Commissioner acting 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)	the physical custody of a member of the

if the person is in a police gaol or is in 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

Corrections (Custody) Act 2001

Act No. 45/2001 s. 6

lawful order or direction of the court or

tribunal.

(2) Every person in the legal custody of the	Chief Commissioner of Police under this 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 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

Corrections (Custody) Act 2001

s. 8	Act No. 45/2001
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 (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

Corrections (Custody) Act 2001

Act No. 45/2001 s. 8

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)	authorised instrument of restraint to a person being transported if the authorised person believes on reasonable grounds that the application

subject to sub-section (2A), to apply an necessary to prevent the escape of the

Corrections (Custody) Act 2001

s. 9	Act No. 45/2001
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 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.

Corrections (Custody) Act 2001

Act No. 45/2001 s. 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

Corrections (Custody) Act 2001

s. 15 Act No. 45/2001

(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 the Secretary; or

Corrections (Custody) Act 2001

Act No. 45/2001 s. 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

Corrections (Custody) Act 2001

s. 15	Act No. 45/2001
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—

Corrections (Custody) Act 2001

Act No. 45/2001 s. 15

(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

Corrections (Custody) Act 2001

s. 15 Act No. 45/2001

(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.

Corrections (Custody) Act 2001

Act No. 45/2001 s. 15

(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.

Corrections (Custody) Act 2001

s. 16 Act No. 45/2001

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 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—

Corrections (Custody) Act 2001

Act No. 45/2001 s. 16

(a) an approved mental health service within the meaning of the Mental Health Act 1986 in accordance with

that Act;

(b) meaning of the Intellectually Disabled

a residential institution within the 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)	sub-section (1)(b) or (1)(c), if no person is specified under the Intellectually

in the case of a transfer referred to in the chief executive of the place to which the prisoner or person is transferred.

Corrections (Custody) Act 2001

s. 17

s. 18 Act No. 45/2001

(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

Corrections (Custody) Act 2001

Act No. 45/2001 s. 21

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

Corrections (Custody) Act 2001
Act No. 45/2001

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 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.".

_______________
Corrections (Custody) Act 2001

s. 23
s. 25

Act No. 45/2001

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
Corrections (Custody) Act 2001

Act No. 45/2001

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—

Corrections (Custody) Act 2001

Act No. 45/2001 s. 29

(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

Corrections (Custody) Act 2001

s. 30 Act No. 45/2001

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;

Corrections (Custody) Act 2001

Act No. 45/2001 s. 31

(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) "(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) "(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 visitor;

(ii) a member of Parliament;

Corrections (Custody) Act 2001

s. 33	Act No. 45/2001
(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

Corrections (Custody) Act 2001

Act No. 45/2001 s. 33

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) a representative of the legal

in the presence of the prisoner and 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—

Corrections (Custody) Act 2001

s. 33 Act No. 45/2001

(a)

may inspect the envelope, and any 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—

Corrections (Custody) Act 2001

Act No. 45/2001 s. 34

(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 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—

Corrections (Custody) Act 2001

s. 35 Act No. 45/2001

(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 ".

_______________
Corrections (Custody) Act 2001

Act No. 45/2001 s. 38

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

escort officer within the meaning of the

transferring a child under this section is an transferred is deemed under that Act to be in

Corrections (Custody) Act 2001

s. 39 Act No. 45/2001

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 substitute "by the Secretary";

(b) sub-section (2) is repealed;
Corrections (Custody) Act 2001

Act No. 45/2001 s. 40

(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.'.

Corrections (Custody) Act 2001

s. 41 Act No. 45/2001

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".

Corrections (Custody) Act 2001

Act No. 45/2001 s. 42

(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) Justice has received a declaration of
eligibility and an individual program

the Secretary to the Department of 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

Secretary to the Department of Human

may make an interim order to enable 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.".

Corrections (Custody) Act 2001

s. 43 Act No. 45/2001

(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.

═══════════════
Corrections (Custody) Act 2001

Act No. 45/2001 Endnotes

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