Prisons (1849) (WA)
WESTERN AUSTRALIA.
ANNO DUODECIMO
VICTORIA: REGINA:.
No. VII.
An. Ordinance for the Regulation of Gaols, Prisons, and Houses of Correction in the Colony of Western Australia, and for other purposes relating thereto.
WHEREAS it is expedient to make provision for the better re- Preamble.
gulating of gaols, prisons, and houses of correction in the
colony of Western Australia ;---Be it therefore enacted, by His Excel-
lency the Governor of Western Australia, with the advice and consent
of
| 12th Viet, No. 7. | 1849. |
What Buildings, tze„ to of the Legislative Council thereof, that all the houses, buildings, be deemed the public enclosures, and places now used, occupied and supported by theGaols and Houses of
Correction of the coloay.Government of the colony as public gaols or prisons at Perth, Fre-
mantle, Rottnest, and Albany, shall be, and are hereby declared to
be, and to have been, respectively, the legal public gaols and prisons
belonging to the said colony, and, except the said prison of Rottnest,
shall be subject to the several provisions hereinafter made for the
This Ordinance not to be reomlation man agement, care and discipline of the same, and of thedeemed to repeal any bo
| part of 4th & 5th Viet. prisoners therein respectively confined ;—Provided always, that no- | No. 21. thing in this Ordinance contained shall he deemed to repeal, wholly |
or in part, an Ordinance passed in a Session held in the fourth and fifth years of the reign of Her present Majesty, intituled "an Act to constitute the Island of Rottnest a legal prison.
| Governor may by pro- II. AND he it enacted, that all buildings, erections, houses, and | clanmtion appoint places premises which shall hereafter be erected, purchased, enlarged andto be used as public | ||
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all prisoners thin. declared to be such, or which shall hereafter be notified in manner
| of | ere |
aforesaid, within the said colony or its dependencies, shall be, and are hereby declared to be, under the charge, care and direction of the Sheriff of Western Australia, subject however to the control of the Governor of the said colony; and that all prisoners committed for any crimes, offences, or misconduct to such public gaols and prisons shall be deemed to be in the custody of the Sheriff; and that all the keepers and under keepers of the said public gaols and prisons, and the assistants of such keepers and under keepers, and all other per- sons required and employed for the safety and care of the said public gaols and prisons, and of the prisoners confined therein, shall be nominated and appointed by the said Sheriff, subject to the approba- tion of the Governor.
1849. 12th Viet. No. 7.
IV. AND be it enacted, that unless it shall be otherwise declared Gaols to be also Houses of
| Correction, unless | other- |
| or appointed by the said Governor in any proclamation to be made | under authority of this Ordinance as aforesaid, every public gaol or wise appointed. |
prison shall be, and be taken, for all purposes, as equally a house of
correction.
| V. | AND be it enacted, that all gaols and prisons throughout the An Gaols to be governed | b | t ve Regulations made by |
said. colony, shall be governed by such rules and regulations as shall II
from time to time be made for the good management of the same by
the said Governor, with the advice of the executive council.
| VI. | AND be it enacted, that it shall and may be lawful for the Governor | ernor may | appoint |
| said Governor to nominate and appoint some fit and proper person .sr !sit | Justices. |
or persons, being -a Magistrate or Magistrates of the said colony, to be the Visiting Justice or Justices of each gaol or prison, and the same to remove or displace and to appoint another or others in his or their stead ; and every Visiting Justice so appointed shall be re- Their duties.
| quired to visit such gaol or prison at least once in every week, unless prevented by illness, or other sufficient cause, and shall from time to time make such reports to the Colonial Secretary as may be required by order of the said Governor ;—Provided that nothing herein con- Not to affect power of | Jn | ugg werieto | n tviiisetyt .Gaay | olstthionz |
tained shall be taken to abridge or effect the power of any Judge of a the Civil Court to visit and examine any such gaol or prison at any fit. time when and how he may think fit.
| PROVIDED also and be it enacted, that it shall be lawful for any and every Justice of the Peace for the said Colony, as often | Any Justice may visit |
| Gaol. | |
| as he may think fit, to enter and examine any gaol or prison within | |
| the said Colony ; and any gaoler, turnkey, or other person employ- | Penalty on Gaolers or |
| ed in any such gaol or prison, who shall refuse admittance to any such | others refusing admitt- |
| Justice of the peace, or offer to him any hindrace or obstruction, shall | ance. |
| be guilty of a Misdemeanor. |
VII.
| VIII. | AND whereas persons convcted of offences are sometimes | Convicted persons Sen.. |
| sentenced to imprisonment without being sentenced to hard labour, | eente cede ttot eimprisonment, | |
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| be it enacted, that it shall be lawful for the Sheriff or Visiting Justice | may be set to work, un: less they have means of | |
| of any gaol or prison, to order all such persons, except such as main- | maintaining themselves. | |
| tain themselves, to be set to some work or labor, provided the same be not severe ;—provided that no such prisoner who has the means of maintaining himself shall have any claim to be maintained at the public expense. |
IX.
| 12th Viet. No. 7. | 1849. |
In what cases Prisoners IX. and be it enacted, that it shall be lawful for the Sheriff or any committed for trial may Visitinu Justice or Justices of any gaol or prison to authorise by anbe employed.
order ibn writing the employment of any prisoner therein committed for trial in any such work or labor as can conveniently be executed or done within such gaol or prison, provided that the consent of such prisoner to such order he previously freely given without threat or other compulsion ; and that it shall be lawful for the keeper of such prison to employ such prisoner in such work or labor accordingly.
| Convicts under sentence X. AND be it enacted, that it shall be lawful to keep to hard | of transportation may be |
| kept to bard labor. labor every offender under sentence or order of transportation while |
he shall remain in any gaol or prison in the said colony, if his health shall permit, and if the Visiting Justice or Justices of such gaol shall give a written order to that effect; and the time during which any such offender shall continue in any gaol or prison as aforesaid, shall be taken and reckoned in discharge or part discharge of the term of his transportation or banishment.
| Convicts whose sentence | XI. | AND be it enacted, that every person sentenced to transpor- |
| of transportation has been |
| commuted to impsison- | tation, who shall accept a pardon from the Governor on condition of |
| ment and hard labor in | |
| the colony, to be treated | imprisonment and hard labor within the said colony, shall be em- |
| as if originally so semen- | ployed and otherwise treated in like manner as if such person had |
| cot | beers originally sentenced to such imprisonment and labor ; and a notification by the Colonial Secretary of such pardon to the keeper of the gaol or prison in which the person so pardoned shall be con- fined, shall be a sufficient warrant to such keeper for detaining and employing such person accordingly. |
AND he it enacted, that every prisoner sentenced to hard labor shall, unless prevented by sickness, be employed so many hours in every day, not exceeding ten, exclusive of time allowed for meals, as shall be directed by the rules and regulations to be made under this Ordinance, except on Sundays, Christmas Day, and Good Fri- day, and on any days appointed by public authority for fasting or thanksgiving.
XII.
Emirs of hard labor.
| Food of prisoners kept to | X/II. AND be it enacted, that every person maintained at the |
public expense, including prisoners committed for trial and consenting to work under the order of a Visiting Justice as aforesaid, shall be allowed a sufficient quantity of plain and wholesome food, to be fixed
by
1849. 12th Viet. No. 7.
| being had to the nature of the labor required from such prisoners ; Diet of sick prisoners. | by the rules and regulations to be made under this Ordinance, regard | |||||
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| soner, under such restrictions as shall be allowed by the rules and regulations aforesaid. |
| rood | to | d of prisoners | corn- |
XIV. AND be it enacted, that prisoners committed for trial shall mi tted for trial.
be allowed such food as may be sufficient for the support of health,
without being obliged to perform any kind of work or labor as the
| condition of such allowance; and shall be allowed to receive, at pro- Such Prisoners | . | to | he |
| per hours, any food, bedding, clothing or other necessaries, subject to blelienag, r■;:c1 rela | under certain | restrictions. |
| strict examination, and otherwise under such limitations and restric- tions as shall be prescribed by the rules and regulations to be made under this Ordinance. |
XV. AND be it enacted, that due provision shall be made, in the Admission of friends, &c.,
rules and regulations to be framed under this Ordinance, for the "rimers.
admission, at proper times, and under proper restrictions, of persons
with whom prisoners committed for trial may wish to communicate,
and also for the like admission of friends of convicted prisoners.
a; Divine
XVI. AND be it enacted, that as far as the circumstances of the 4tter.Idance
said colony shall from time to time admit, provision shall be made in berme.
the said rules and regulations for the attendance of all prisoners at
divine service on Sundays, or for the reading of prayers at stated
periods by a visiting Chaplain, or the keeper or some other person ; Admission of Ministers
and for the admission at all reasonable hours of any Minister o f of religion.
Religion of any Sect, from whom any prisoner may wish and re-secular instruction.
quest to receive religious consolation and instruction ; and also for
the instruction of prisoners of both sexes in reading and writing.
XVII. AND be it enacted, that in order to prevent the contami- Separate confinement of
nation arising from the association of prisoners, any prisoner may, prisoners.
by order of the Sheriff, or Visiting Justice, be separately confined
during the whole or any part of his imprisonment ; and such separate confinement shall not be deemed solitary confinement within the mean-
ing of any Act forbidding-the continuance of solitary confinement for
more than a limited time;-Provided always that no cell shall be used for such separate confinement which is not of such a size, and
so
| 12th Viet. No. 7. | 1849. |
so ventilated and lighted, that a prisoner may be confined therein without injury to health ; and every prisoner so confined shall have the means of taking air and exercise at such times as shall be deemed necessary by the Surgeon.
Keeper not to put Pri-
| soner in irons without | XVIII. AND be it enacted, that no prisoner shall be put in irons necessity ; and the particulars of every such case shall be forthwith en- tered in the keeper's journal, and notice thereof forthwith given to the Sheriff or one of the Visiting Justices; and the keeper shall not con- tinue the use of irons on any prisoner longer than four days without an order in writing from a Visiting Justice, specifying the cause there- of; which order shall be preserved by the keeper as his warrant for the same. |
| visiting Justice's order ; | |
| except in eases of urgent | by the keeper of any prison except in case of urgent and absolute |
| necessity. |
summarily to investigatePower of Visiting Justices XIX. AND be it enacted, that the Sheriff or the Visiting Justice and punish offences of or Justices shall have power to hear and determine all complaints Prisoners. touching any of the following offences, that is to say, disobedience of
the rules of the prison ; assaults by one prisoner upon another, where no dangerous wound or bruise is given ; profane cursing or swearing, any indecent behaviour ; and any irreverent behaviour during divine service or rayers; all which are hereby declared to be offences under thisOrdinance if committed by any description of prisoners whatsoever; idleness or negligence in work or wilful mismanagement of it, which are also declared to be offences under this Ordinance, if committed by any prisoner under charge or conviction of any offence; and the said Justice or Justices may examine any persons touching such 'offences, and may summarily determine thereupon, and may punish all such offences by ordering any offender to close confinement in the refractory or solitary cell, in or without irons, and by keeping such offender on bread and water only, for any term not exceeding three days ;--Provided that every complaint in respect of any of the said offences shall be made within fourteen days after commission there- of.
Punishment for repented XX. AND be it enacted, that in case any prisoner under charge or more serious offence,. or conviction of any crime shall be guilty of any repeated offence
against the rules of the prison, or shall be guilty of any greater of- fence than any offence hereinbefore made punishable by imprisonment with bread and water, the keeper shall forthwith report the same to the Visiting Justice or Justices, and any one such Justice, or any
other
1849. 12th Viet, No. 7.
other Justice acting in and for the district or town in which such prison is situate, shall have power to enquire upon oath, and to de- termine in a summary manner concerning any such matter, and to order the offender to be punished by close confinement, in or without irons, for any time not exceeding one calendar month, and to be kept on bread and water for any portion of that time not exceeding seven days, or in case of male prisoners sentenced to hard labor by personal correction not exceeding three dozen lashes.
| XXI. .AND be it enacted, that if' any person shall convey or cause to be conveyed into any gaol or prison, any mask, visor, or | into any prison any dis-Punishment for conveying |
| guise, instrument o rarrus, | |
| other disguise, or any instrument or arms proper to facilitate the | to assist or for otherwiseassisting the escape of |
| escape of any prisoner, and the same shall deliver or cause to be de- | any Prisoners. |
| livered to any prisoner in such gaol or prison, or to any other person therein, for the use of such prisoner, without the consent of the keeper of such gaol or prison, every such person shall be deemed to have delivered such visor or disguise, instrument or arms, with intent to aid and assist such prisoner to escape, or in attempting to escape ; and if any person shall by any means whatsoever aid and assist any prisoner to escape, or in attempting to escape, from any gaol or prison, every person so offending, whether . an escape be actually made or not, shall be guilty of Felony, and, being convicted thereof, shall be transported beyond the seas for any term not exceeding fourteen years. |
| XXII. | AND be it enacted, that if any prisoner who shall have punishment for harbour. | cealing |
effected his escape from any gaol or prison in the said colony, or o.rocmon ePsZspaani from any road gang or working party, shall be knowingly harboured from a Ga°1 ""td Pug, or concealed by any person with a view to prevent or impede the
recapture of such prisoner, or to aid such prisoner in departing from the said colony, every person so harbouring or concealing shall be guilty of a misdemeanour.
XXIII. AND be it enacted, that male and female prisoners shall separation of male and
| be kept as Much as possible in separate buildings or parts of the pri- female prisoners, son, so as to prevent them from seeing, conversing, or holding inter- | Females. to at | tend on | re- |
| course with each other; and that female prisoners.shall be attended male prisoners. | ma |
| by female officers or assistants where practicable. |
| XXIV. | AND be it enacted, that all male prisoners sentenced to Male convicts sentenced | v |
| hard labor, may, by order of the Governor, | notified by the ColoniaI,io hard labor may be worked on the roads by |
Secretary, Governor's order.
| 12th Viet. No. 7. | 1849. |
Secretary, be set to work on the roads, or on any public work out of
prison, and as to such of the said prisoners as have been convicted of Felony, or who shall have been detected in any attempt to escape, may be kept at such work in chains or otherwise secured, as May be deemed expedient.
Governor in enin eases X X V. AND be it enacted, that for the purpose of repairing, en-may order removal of
prisoners from one Prison larging, or improving any gaol or prison in the said colony, or on
to another. account of any contagious or infectious disease therein, or of the over- crowded state thereof, or for the purpose of removal to any newly erected and proclaimed prison within the same district, or for the purpose of setting persons sentenced to hard labor upon any public work, or for the more conveinent shipment of any person sentenced to transportation, it shall be lawful for the Sheriff, by any order of
| remove any person in prison withinga b said colony from the prison | the Governor, to be notified in writino. by the Colonial Secretary, towritin |
| in which he is confined to any other prison within the said colony, there to be imprisoned for and during his term or then unexpired residue of his term of imprisonment, or until such repairs or improve- ments be effected, or during the continuance of such disease, or until such shipment, as the case may require: and when the purpose for which any such prisoner shall have been so removed shall have been answered, to remove such prisoner, if still lawfully subject to impri- sonment, back to the prison from whence he came, |
| In cases of contagious | XXVI. | AND be it enacted, that whenever any contagious or |
| disease or other emergen- |
| cy where Governor's or- | infections disease, or other emergency, shall render necessary the |
| der cannot previously be | immediate removal of the prisoners, or any of them, confined in any |
| obtained, prisoners remo- | |
| val may be ordered by | gaol or prison, and it shall be impossible to obtain for that purpose |
| Visiting Justice, Ste. | the previous order from the Governor, it shall be lawful for the Visit- ing Justice of such gaol or prison, or in his absence for the nearest Government Resident, or any two Justices of the Peace, and he and they are hereby respectively empowered to issue an order to the keeper of such gaol or prison to remove such prisoners, or any of them, to the nearest other prison or place of confinement., or to such place of security as shall be specified in such order, during the con- tinuance of such disease or emergency ;—Provided that every such |
| order, together with the causes thereof, shall be forthwith notified to | |
| the Governor, and also to the Sheriff. |
XXVII. AND be it enacted, that in case the Surgeon or Me-
1849. 12th Viet. No. 7.
dical Officer attendant on any prison shall certify his opinion in Sick, erc:, prisoners may
writing that it is necessary or expedient that any sick, diseased or be removed to Hospita Surgeon's cirtifi cute.
wounded prisoner therein should be removed to any hospital or infirmary, it shall be lawful for the Governor by order, to be notified in writing by the Colonial Secretary, and for the Visiting Justice
of any prison distant more than fifty miles from Perth, by or.
der by him entered in the Visiting Justices' book, to direct the removal of such prisoner accordingly for such time as in such order shall be specified, and to cause such prisoner, if still - law- fully subject to imprisonment, to be reconveyed to such prison as soon as he shall be declared by the Surgeon to be sufficiently convalescent.
| XXVIII. | AND be it, enacted, that the keeper of every prison vAisl | Journall an |
| iC | t9ner Justices' | Book | t |
shall keep a journal, in which he shall record all punishment be kept in every Prison.
inflicted by his authority, or by that of the Visiting Justice, and the date and cause thereof, and all other occurrences of importance within the prison ; and there shall. also be kept in every prison a book to be called the Visiting Justices' book, in which shall be inserted every order, and the date of every visit, made by the Vi- siting Justice, and such remarks as may be thought necessary; and every such entry shall be signed by such Justice; and every keeper of a prison shall be responsible for the safe custody of such book, whole, unmutilated, and unaltered, and shall, at all times, when required so to do, produce such book to the Sheriff, and to the Visiting Justice, and to any Justice of the Peace for the town, place, or district wherein such prison shall be situate.
| XXIX. | AND be it enacted, that upon the death of a prisoner | dealt of a prisoner to |
| Notice to be given of the |
| notice thereof shall be given by the keeper forthwith to the | Visiting Justice 84c. - |
| Sheriff and Visiting Justice, and to the Coroner of the district, | |
| if any, and to the nearest relative of' the deceased, where prac- | No prisoner to sit on an |
| ticable; and that in case an Inquest shall be held on the body | Inquest. |
| of any deceased prisoner, none of the prisoners confined in the prison - in which the deceased died shall be a Juror on such Inquest. |
| XXX. AND be it enacted, that every person confined in an | any where | term of imprison- | Impson | li |
| Tent expires on | i | - | : Sun |
| prison whose term of imprisonment would, according to his sentence, | li |
| have | xpired on any Lord's Day, shall be entitled to his discharue | o | e | son tporeceeddiasi |
| o |
| from prison on the Saturday next preceding such L | rd's Day; and every |
| 12th Viet. No. 7. | 1849. |
every keeper of a prison is hereby authorised and required to dis-
charge any such prisoner accordingly.
| Sentence of convicted XXXI. AND be it enacted, that it shall not be lawful for any | Murderer need not direct n | |||
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| within two months after to be commenced against any person for any tiling done in pursu- | ||||
| fact committed. ance of this Ordinance, shall be commenced within two calendar |
months after the fact was committed, and not otherwise; and notice in writing of such action, and of the cause thereof, shall be
| Notice of action. | given to the defendant one calendar month at least before the com- |
| General issue. | mencement of the action; and in any such action the defendant may plead the General Issue, and give this Ordinance and the Special |
Tender of amends. Matter in evidence at any trial to be had thereupon; and no Plaintiff
shall recover in any such action if tender of sufficient amends shall
have been made before such action brought; or if a sufficient sum
of money shall have been paid into Court after such action brought
| Payment of Money into by or on behalf of the defendant, together with the costs up to that | Court. |
time; and if a Verdict shall pass for the defendant, or if the
If verdict for defendant plaintiff become Nonsuit, or discontinue his action, or if upon De-
| full costs ; Verdict for de-nt shall be given ag he plaintiffiainst t | ,?ce „ defendant to have muter or otherwise, judgme | |
| fendant not to carry costs the defendant shall recover his full costs as between attorney and | ||
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CHARLES FITZGERALD,
GOVERNOR AND COMMANDER-IN-CHIEF.
Passed the Council
Q th may, 1849.
THOMAS N. YULE,
Acting Clerk of the Councils.
Printed by authority of the Government, by E. Stirling, Path.
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