Prison Act 1977

Prison Act 1977

An Act to make provision for the establishment and control of prisons and the custody of prisoners and for related matters and to repeal the Prison Act 1868 and the Prison Act 1908

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART I - Preliminary

1.   Short title and commencement

(1)  This Act may be cited as the Prison Act 1977 .

(2)  This Act shall commence on a day to be fixed by proclamation.

2.   Repeal

The Acts that are specified in Schedule I are repealed.

3.   Interpretation

[Section 3 Amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 3 Amended by No. 4 of 1985, s. 4 ][Section 3 Amended by No. 51 of 1985, s. 4 and Sched. 2, Part II ][Section 3 Amended by No. 120 of 1985, s. 4 ][Section 3 Amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 3 Amended by No. 3 of 1993, s. 4 ][Section 3 Amended by No. 4 of 1994, s. 4 ]In this Act, unless the contrary intention appears –

Chief Superintendent means the Chief Superintendent of the Prison Service appointed pursuant to section 6 ;

custodian has the meaning assigned to that expression by section 26 (4) ;

Deputy Chief Superintendent means the Deputy Chief Superintendent of the Prison Service appointed pursuant to section 6 ;

detainee means a person, other than a prisoner, who is, for the time being, subject to an order of a court by which he is remanded or otherwise committed to prison;

Director means the Director of Corrective Services appointed pursuant to section 6 ;

gaoler means the prison officer or police officer in charge of a prison to which section 6 (6) applies;

hospital means a place approved as a hospital under section 19A ;

imprisonment means imprisonment imposed as a result of a lawful sentence;

institution means a place approved as an institution under section 19A ;

leave permit has the meaning assigned to that expression by section 26 (1) ;

medical officer means a legally-qualified medical practitioner who is engaged to examine, treat, or care for prisoners or detainees;

official visitor has the meaning assigned to that expression by section 10 (1) ;

prison includes a gaol or place of detention irrespective of the title by which it is known, and includes the whole area, whether or not walled or fenced, established as, or deemed to be, a prison;

prison officer means a person appointed under section 6 at any rank, other than a person appointed under section 6 (6A) (b) ;

prisoner means a person who is, for the time being, subject to an order of a court by which he is sentenced to a term of imprisonment;

Secretary means the Secretary of the Department;

superintendent means a superintendent appointed pursuant to section 6 (3) .

PART II - Establishment and Control of Prisons

Division I - Establishment of prisons

4.   Establishment of prisons

The Governor may, by proclamation –

(a) establish a prison and define the boundaries of the prison by metes and bounds or by reference to a building or part of a building;

(b) alter the boundaries of a prison established under paragraph (a) ; and

(c) declare that such a prison shall, as from the date specified in the proclamation, cease to be a prison.

5.   Power of Governor to declare prisons for certain exclusive uses

(1)  The Governor may, by proclamation, declare that a prison shall be for the exclusive use of the class or sex of prisoners or detainees specified in the proclamation.

(1A)  [Section 5 Subsection (1A) inserted by No. 120 of 1985, s. 5 ]The Governor may, by proclamation, declare that a prison shall be available for use for the detention in lawful custody of persons other than prisoners or detainees, and nothing in this Act shall apply to or in relation to the detention of such a person in that prison.

(2)  [Section 5 Subsection (2) amended by No. 120 of 1985, s. 5 ]A prison in respect of which no declaration is made under subsection (1) or (1A) , or so far as such a declaration does not extend to it, is a common public prison for the detention of all classes and both sexes of prisoners and detainees.

Division II - Officers

6.   Appointment of Director of Corrective Services and other persons

[Section 6 Substituted by No. 29 of 1984, s. 3 and Sched. 1 ]

(1)  [Section 6 Subsection (1) substituted by No. 5 of 1990, s. 3 and Sched. 1 ]The Governor may appoint a person employed under the Tasmanian State Service Act 1984 to be Director of Corrective Services, and that person shall hold that office in conjunction with a position or an office under that Act.

(2)  [Section 6 Subsection (2) substituted by No. 5 of 1990, s. 3 and Sched. 1 ]The Minister administering the Tasmanian State Service Act 1984 may appoint a person employed under that Act to be Chief Superintendent of the Prison Service, and a person employed under that Act to be Deputy Chief Superintendent of the Prison Service, and those persons shall hold office in conjunction with their positions or offices under that Act.

(3)  [Section 6 Subsection (3) substituted by No. 5 of 1990, s. 3 and Sched. 1 ]The Minister administering the Tasmanian State Service Act 1984 may appoint a person employed under that Act to be superintendent of a prison to which the Minister by order declares this subsection to apply, and a person employed under that Act to be deputy superintendent of such a prison, and those persons shall hold office in conjunction with their positions or offices under that Act.

(3A)  [Section 6 Subsection (3A) omitted by No. 4 of 1994, s. 5 ].  .  .  .  .  .  .  .  

(4)  The Chief Superintendent may hold the position of superintendent in conjunction with his position as Chief Superintendent.

(5)  The Deputy Chief Superintendent may hold the position of deputy superintendent in conjunction with his position as Deputy Chief Superintendent.

(6)  [Section 6 Subsection (6) substituted by No. 46 of 1991, s. 5 and Sched. 3 ]The Secretary may appoint –

(a) an employee employed in the Department; or

(b) with the approval of the Commissioner of Police, a police officer –

to be a gaoler for a prison other than one referred to in subsection (3) .

(6A)  [Section 6 Subsection (6A) inserted by No. 4 of 1994, s. 5 ]The Minister administering the Tasmanian State Service Act 1984 may appoint a person –

(a) as a prison officer for the purposes of this Act; or

(b) in any other capacity necessary for the administration of this Act.

(7)  [Section 6 Subsection (7) substituted by No. 4 of 1994, s. 5 ]An employee appointed under this section, other than under subsection (6A) (b) , while exercising his or her functions and duties, has the same powers, privileges and immunities as a police officer.

7.   Powers and duties of Director

[Section 7 Substituted by No. 4 of 1985, s. 6 ]

(1)  [Section 7 Subsection (1) amended by No. 120 of 1985, s. 6 ]Subject to sections 5 (1A) and 8 , the Director is responsible to the Secretary –

(a) for the care and direction of all prisons, prisoners, and detainees and the control of all prisons;

(b) for the order and control of all prison officers, prisoners, and detainees.

(2)  The Director has the other powers, functions, and duties vested in or conferred or imposed on him by this Act, the Probation of Offenders Act 1973 , the Parole Act 1975 , and the Mental Health Act 1963 .

8.   Duties of prison officers, &c.

[Section 8 Amended by No. 88 of 1987, s. 3 ]

(1)  [Section 8 Subsection (1) substituted by No. 4 of 1985, s. 7 ]The Director is responsible to the Secretary for determining the duties of a prison officer.

(2)  A police officer is, by virtue of this subsection and without any other authority, vested with all the powers of a prison officer under this Act.

(3)  [Section 8 Subsection (3) inserted by No. 120 of 1985, s. 7 ]Where a police officer holds office, pursuant to an appointment made under section 6 (6) , as a gaoler of a prison, he may, with the approval of the Director, by instrument in writing signed by him, delegate to another police officer the performance or exercise of such of his functions and powers (other than this power of delegation) as a gaoler as are specified in the instrument of delegation, and may, by like instrument, revoke wholly or in part any such delegation.

(4)  [Section 8 Subsection (4) inserted by No. 120 of 1985, s. 7 ]A function or power the performance or exercise of which has been delegated under subsection (3) may, while the delegation remains unrevoked, be performed or exercised from time to time in accordance with the terms of the delegation.

(5)  [Section 8 Subsection (5) inserted by No. 120 of 1985, s. 7 ]A delegation under subsection (3) may be made subject to such conditions or limitations as to the performance or exercise of any of the functions or powers delegated, or as to time or circumstance, as are specified in the instrument of delegation.

(6)  [Section 8 Subsection (6) inserted by No. 120 of 1985, s. 7 ]Notwithstanding any delegation by him under subsection (3) , a gaoler may continue to perform or exercise all or any of the functions or powers delegated.

(7)  [Section 8 Subsection (7) inserted by No. 120 of 1985, s. 7 ]Any act or thing done by or to a delegate while acting in the exercise of a delegation under this section shall have the same force and effect as if the act or thing had been done by or to the gaoler and shall be deemed to have been done by or to the gaoler.

(8)  [Section 8 Subsection (8) added by No. 120 of 1985, s. 7 ]An instrument purporting to be signed by a delegate of a gaoler in his capacity as such a delegate shall in all courts and before all persons acting judicially be received in evidence as if it were an instrument signed by the gaoler and, until the contrary is proved, shall be deemed to be an instrument signed by a delegate of the gaoler under subsection (3) .

9.   Exercise of functions of Director and other officers

[Section 9 Substituted by No. 4 of 1985, s. 8 ]

(1)  The Chief Superintendent shall exercise –

(a) all the powers, functions, and duties of the Director that the Director directs him to exercise; and

(b) all the powers, functions, and duties of the Director under this or any other Act, if the Director is absent, incapacitated, or otherwise unable to act –

unless otherwise determined by the Secretary.

(2)  Anything done by the Chief Superintendent in pursuance of subsection (1) has the same force and effect as if it had been done by the Director.

(3)  The Deputy Chief Superintendent shall exercise –

(a) all the powers, functions, and duties of the Chief Superintendent that the Chief Superintendent directs him to exercise; and

(b) all the powers, functions, and duties of the Chief Superintendent if the Chief Superintendent is absent, incapacitated, or otherwise unable to act.

(4)  Anything done by the Deputy Chief Superintendent in pursuance of subsection (3) has the same force and effect as if it had been done by the Chief Superintendent.

(5)  The superintendent of a prison shall be responsible to the Chief Superintendent for the management and direction of prison officers, prisoners, and detainees placed under his authority.

(6)  The deputy superintendent of a prison shall exercise –

(a) all the powers, functions, and duties of the superintendent of the prison that the Chief Superintendent directs him to exercise; and

(b) all the powers, functions, and duties of that superintendent, if the superintendent is absent, incapacitated, or otherwise unable to act.

(7)  Anything done by the deputy superintendent of a prison in pursuance of subsection (6) has the same force and effect as if it had been done by the superintendent of the prison.

(8)  The Director may, by a written direction, require an officer appointed under section 6 (2) or (3) to exercise, during the period or in the circumstances specified in the direction, the functions of the Chief Superintendent or the Deputy Chief Superintendent and those functions are so exercisable as long as the direction remains in force.

(9)  A reference in any other Act to the gaoler of a prison shall, in relation to a prison referred to in section 6 (3) , be construed as a reference to the superintendent of that prison or any other person who, under this section, is for the time being exercising the functions of the superintendent of that prison.

Division III - Visitors

10.   Official visitors

(1)  The Governor may appoint persons (in this Act referred to as "official visitors") as visitors to each prison in accordance with this section.

(2)  The term of office of an official visitor shall be two years.

(3)  A prison shall have –

(a) two official visitors; and

(b) two additional official visitors who are females, if the prison is partly for the detention of female prisoners or detainees.

(4)  An official visitor shall visit every prison that he is authorized to visit by his instrument of appointment at least once a month, either alone or with another official visitor who is so authorized to visit that prison, and shall inquire into the treatment, behaviour, and conditions of the prisoners and detainees in that prison.

(5)  [Section 10 Subsection (5) amended by No. 4 of 1985, s. 9 and Sched. 1 ]While he is visiting a prison pursuant to subsection (4) an official visitor shall not directly interfere with, or give instructions with regard to, the management or disciplining of a prisoner or detainee, or deal with any case affecting the conduct of prison officers, but he may report to the Director or the Minister on –

(a) any such matter;

(b) any matter relating to the treatment or condition of prisoners or detainees; or

(c) the state of the prison.

(6)  An official visitor shall, at least once in every 12 months, make a report to the Minister on the inquiries made by him pursuant to subsection (4) .

(7)  Every prison officer shall give full assistance and co-operation to the official visitors.

11.   Other visitors

(1)  Any of the following persons may visit a prison at any reasonable time:

(a) A judge;

(b) A magistrate; and

(c) A person authorized in writing by the Minister.

(2)  Every prison officer shall give full assistance and co-operation to a person referred to in subsection (1) .

PART III - Custody and Treatment of Prisoners and Detainees

12.   Prisoners and detainees deemed to be in the legal custody of the Director

[Section 12 Amended by No. 4 of 1985, s. 9 and Sched. 1 ]A prisoner or detainee shall be deemed to be in the legal custody of the Director, notwithstanding that at the time he is being taken to or from a prison or that he is working outside the precincts of a prison pursuant to section 18 or is otherwise outside those precincts.

13.   Removal of prisoners and detainees into control of Director

[Section 13 Subsection (1) amended by No. 120 of 1985, s. 8 ]

(1)  [Section 13 Subsection (1) amended by No. 4 of 1985, s. 9 and Sched. 1 ]Subject to subsection (3) and to any order of a court to the contrary, a prisoner or detainee shall, immediately after the making of the order by reason of which he is a prisoner or detainee, be taken into custody and control by any prison officer or police officer present and be removed as soon as practicable into the custody and control of the Director.

(2)  [Section 13 Subsection (2) amended by No. 4 of 1985, s. 9 and Sched. 1 ]A police officer who has the custody and control of a prisoner or detainee referred to in subsection (1) shall assist in removing the prisoner or detainee into the custody and control of the Director.

(3)  Where it is impracticable to remove a prisoner or detainee immediately to a prison, the prison officer, police officer or other person having the custody and control of the prisoner or detainee may temporarily keep him at some other suitable place.

14.   Provisions relating to religious practices

(1)  On his admission into a prison, a prisoner or detainee shall be given an opportunity to state his religion or religious denomination (if any).

(2)  [Section 14 Subsection (2) amended by No. 4 of 1985, s. 9 and Sched. 1 ]The Chief Superintendent shall cause a record to be made of a statement made by a prisoner or detainee for the purposes of subsection (1) .

(3)  [Section 14 Subsection (3) amended by No. 4 of 1985, s. 9 and Sched. 1 ]A prisoner or detainee is entitled at all reasonable times –

(a) to practise the rites of his religion or religious denomination; and

(b) to receive religious guidance from a chaplain or other responsible member of that religion or denomination, being a person approved, in either case, by the Director –

subject to such reasonable restrictions (if any) as the Director imposes.

15.   Food

A prisoner or detainee shall be supplied at the public expense with food that is sufficient in quality and quantity to maintain health.

16.   Exercise

A prisoner or detainee shall be allowed so much exercise in the open air as may be prescribed or, where a medical officer in a particular case orders otherwise, so much or such exercise as is so ordered.

17.   Medical attention

(1)  [Section 17 Subsection (1) amended by No. 4 of 1985, s. 9 and Sched. 1 ]The Director shall ensure that every prisoner or detainee has such access to medical consultation and treatment as is reasonably necessary and that every reasonable request of a medical officer for the health of a prisoner or detainee is complied with.

(2)  A prisoner or detainee shall be supplied at the public expense with such medical attendance and treatment and such medicine as is necessary for the preservation of health.

(3)  [Section 17 Subsection (3) substituted by No. 88 of 1987, s. 4 ]Where, in the opinion of a medical officer –

(a) the life or health of a prisoner or detainee is likely to be endangered or seriously prejudiced by the failure of the prisoner or detainee to undergo medical treatment or medical tests; or

(b) the life or health of any other prisoner or other detainee or a prison officer is likely to be endangered or seriously prejudiced by the failure of a prisoner or detainee to undergo medical treatment or medical tests –

the Director may, on receipt of such an opinion, order the prisoner or detainee to undergo such medical treatment or medical tests as the medical officer may determine.

(4)  [Section 17 Subsection (4) inserted by No. 88 of 1987, s. 4 ]A person who is appointed to a position under this Act or the Tasmanian State Service Act 1984 shall not record, disclose, communicate, or make use of information relating to medical treatment or medical tests carried out under this section without the prior authority in writing of the Minister or the person to whom that information relates, except to the extent that is necessary to perform the official duties and functions, or to exercise the official powers, of that position.

(5)  [Section 17 Subsection (5) inserted by No. 88 of 1987, s. 4 ]A person who contravenes subsection (4) is guilty of an offence and is liable on summary conviction to a penalty not exceeding 5 penalty units.

(6)  [Section 17 Subsection (6) added by No. 88 of 1987, s. 4 ]In this section, medical tests means medical examinations or tests (including the taking of samples of breath, blood, and other bodily secretions) to assess the physical and mental health of a person.

17A.   Medical tests for HIV

[Section 17A Inserted by No. 25 of 1993, s. 46 ]

(1)  [Section 17A Subsection (1) amended by No. 23 of 1994, s. 4 ]The Director is to require each prisoner and detainee to undergo an HIV test by a medical officer or a nurse registered under the Nursing Act 1995 –

(a) as soon as practicable on admission to a prison; and

(b) at such regular intervals as the Director may consider appropriate or necessary in the circumstances.

(c) .  .  .  .  .  .  .  .  

(2)  If a prisoner or detainee refuses to undergo an HIV test, an approved counsellor nominated by the Director for the purpose is to counsel the prisoner or detainee in respect of the necessity or desirability of undergoing the test.

(3)  If a prisoner or detainee refuses to undergo an HIV test after being counselled, the Director may take such steps as are necessary to ensure –

(a) that the prisoner or detainee undergoes an HIV test; and

(b) that any other prisoner or detainee is not placed at risk of becoming infected with HIV.

(4)  In this section, approved counsellor means a person approved by the Secretary of the Department responsible for the administration of the HIV/AIDS Preventive Measures Act 1993 for the purposes of this section.

17B.   Report of test

[Section 17B Substituted by No. 23 of 1994, s. 5 ]A medical officer or nurse registered under the Nursing Act 1995 who, under section 17A , carries out an HIV test the result of which is positive, is to submit a report of the result to the Director as soon as practicable after the result is obtained.

17C.   Separation and treatment of HIV positive prisoners

[Section 17C Inserted by No. 25 of 1993, s. 46 ]If, as the result of an HIV test carried out under section 17A , a prisoner or detainee is found to be or suspected of being infected with HIV or carrying HIV antibodies, the Director –

(a) may order that the prisoner or detainee –

(i) be kept separate from other prisoners or detainees who are not so infected; or

(ii) be kept in an area where access is restricted; or

(iii) is to be otherwise dealt with in a manner the Director considers suitable or in the best interests of the prisoner or detainee; and

(b) is to order that the prisoner or detainee undergo such medical treatment as may be necessary.

17D.   Application of HIV/AIDS Preventive Measures Act 1993

[Section 17D Inserted by No. 25 of 1993, s. 46 ][Section 17D Amended by No. 100 of 1995, s. 97 and Sched. 7 ]

(1)  [Section 17D Subsection (1) amended by No. 23 of 1994, s. 6 ]The provisions of sections 6 to 19 inclusive, other than section 14 , of the HIV/AIDS Preventive Measures Act 1993 apply to the HIV testing of prisoners and detainees.

(2)  [Section 17D Subsection (2) inserted by No. 23 of 1994, s. 6 ] Section 15 of the HIV/AIDS Preventive Measures Act 1993 applies as if a reference to an approved health care worker authorized by a medical practitioner is a reference to a nurse registered under the Nursing Act 1995 .

18.   Work

(1)  Subject to this section, the superintendent or gaoler of a prison in which a prisoner is detained shall cause him to be set to some work that is considered suitable to the prisoner's physical and intellectual capacity.

(2)  [Section 18 Subsection (2) amended by No. 4 of 1985, s. 9 and Sched. 1 ]A prisoner may, with the approval of the Chief Superintendent, be set to work outside the precincts of the prison in which he is detained.

19.   Payment for prisoners' work, &c.

(1)  A prisoner who works in pursuance of section 18 is entitled to be paid the prescribed amount for his work.

(2)  [Section 19 Subsection (2) amended by No. 4 of 1985, s. 9 and Sched. 1 ]The Director shall hold on behalf of a prisoner the moneys that he is entitled to be paid under subsection (1) and shall pay those moneys to the prisoner on his release or as otherwise provided by regulation.

(3)  [Section 19 Subsection (3) amended by No. 4 of 1985, s. 9 and Sched. 1 ]Notwithstanding subsection (2) , before a prisoner is released from prison, the Director or a court of competent jurisdiction may order that the whole or any part of the moneys that he is entitled to be paid shall be paid towards the maintenance of his dependants or in settlement of a judgment debt of that court.

PART IV - Transfers and Other Removals of Prisoners and Detainees

19A.   Approval of hospitals and institutions

[Section 19A Inserted by No. 3 of 1993, s. 5 ]The Minister may approve a place as a hospital or an institution for the purposes of this Act.

20.   Removal of prisoners and detainees to other prisons and to hospitals, &c.

[Section 20 Subsection (1) amended by No. 3 of 1993, s. 6 ]

(1)  [Section 20 Subsection (1) amended by No. 4 of 1985, s. 9 and Sched. 1 ]The Chief Superintendent may, if he considers it necessary, direct a prisoner or detainee to be removed from a prison to another prison or to a hospital or an institution.

(2)  [Section 20 Subsection (2) amended by No. 4 of 1985, s. 9 and Sched. 1 ]The Chief Superintendent may, if he thinks fit, appoint a person to take charge of a prisoner or detainee while he is in a hospital or institution pursuant to subsection (1) .

(3)  A person appointed under subsection (2) has the powers of a prison officer and shall be paid such remuneration as is prescribed.

21.   Bringing of prisoners and detainees before courts

(1)  Where a prisoner or detainee is charged with an offence that is not the offence or cause for which he is detained, a justice may, by written order, direct the superintendent or gaoler of the prison in which the prisoner or detainee is detained to bring him before the court specified in the order or the judge or magistrate who is then present to be dealt with according to law.

(2)  A superintendent or gaoler to whom an order is given under subsection (1) shall, as soon as practicable, comply with that order.

22.   Removal of prisoners and detainees in aid of administration of justice

[Section 22 Amended by No. 4 of 1985, s. 9 and Sched. 1 ]The Director may in his discretion direct a prisoner or detainee to be removed temporarily from the prison or other place to which he has been removed pursuant to this Part to another place in this State for any purpose in aid of the administration of justice or for any other like purpose that, in the opinion of the Director, requires that such a temporary removal should be made.

23.   Effect of directions and orders under sections 20, 21, and 22

A direction or order for the removal of a prisoner or detainee for the purposes of section 20 , section 21 , or section 22 is sufficient authority to every prison officer, police officer, or other person who is entrusted with the conveyance of the prisoner or detainee to keep and convey him accordingly and to every prison officer, police officer, or other person to keep and detain the prisoner or detainee in the course of his removal and for as long as is required for the purpose for which he is so removed.

24.   Custody of prisoners and detainees removed pursuant to sections 20, 21 and 22, &c.

[Section 24 Subsection (1) amended by No. 3 of 1993, s. 7 ]

(1)  [Section 24 Subsection (1) amended by No. 4 of 1985, s. 9 and Sched. 1 ]A prisoner or detainee who is removed from a prison for the purposes of section 20 , section 21 , or section 22 shall be deemed to be in the legal custody of the Director during the time that –

(a) he is being removed from the prison;

(b) he is in a court, a hospital or an institution or another place; and

(c) he is being removed from a place referred to in paragraph (b) to a prison –

unless, during that time, his sentence is completed.

(2)  [Section 24 Subsection (2) amended by No. 3 of 1993, s. 7 ]A prisoner or detainee who escapes or attempts to escape during the time that –

(a) he is being removed from a prison for the purposes of section 20 , section 21 , or section 22 ;

(b) he is in a court, a hospital or an institution or another place for those purposes; or

(c) he is being removed from a place referred to in paragraph (b) to a prison –

shall be deemed to have escaped or attempted to escape from lawful custody, as the case requires.

25.   Licences to undergo medical treatment outside this State

(1)  Where the Minister is satisfied that it is necessary or desirable for a prisoner to undergo medical treatment outside this State he may, subject to this section, grant to that prisoner a licence authorizing him to be absent from this State for the purpose of undergoing that treatment.

(2)  A licence under this section shall specify the period for which it is to remain in force and shall specify the conditions and restrictions with which the person to whom it is granted is to comply while he is away from prison during the currency of the licence.

(3)  [Section 25 Subsection (3) amended by No. 4 of 1985, s. 9 and Sched. 1 ]Without prejudice to the generality of the provisions of subsection (2) , the conditions and restrictions referred to in that subsection may be conditions and restrictions requiring the person to whom the licence is granted –

(a) to comply with any directions or instructions from time to time given by the Director or any other specified person; and

(b) to report, from time to time, to any specified person or at any specified place, or, from time to time, to give information to any specified person.

(4)  [Section 25 Subsection (4) amended by No. 4 of 1985, s. 9 and Sched. 1 ]A person may be specified for the purposes of subsection (3) by name or by reference to an office held by him (whether in this State or elsewhere) or by reference to his appointment or nomination by the Director to undertake any duties in relation to the purposes of the licence.

(5)  The Minister, by writing under his hand, may revoke a licence granted under this section and may, from time to time, extend the period for which such a licence is to remain in force.

(6)  The conviction and sentence of a person to whom a licence has been granted under this section continues in force notwithstanding that that licence has been granted, although the execution of the sentence is suspended; but so long as the licence continues in force that person is not liable to be imprisoned by reason of that sentence, but shall be allowed to go and remain at large according to the terms of the licence.

(7)  A person to whom a licence has been granted under this section who, whether in this State or elsewhere, contravenes or fails to comply with any of the conditions or restrictions specified in the licence is guilty of an offence.

Penalty:  12 months' imprisonment.

(8)  [Section 25 Subsection (8) amended by No. 4 of 1985, s. 9 and Sched. 1 ]Where a licence granted to a person under this section is revoked or has otherwise ceased to be in force, a justice shall, on application being made by the Director or some person authorized by him in that behalf, issue a warrant for the apprehension of that person, and that warrant may be executed by a police officer according to its tenor.

(9)  A person apprehended under a warrant issued under subsection (8) shall be brought as soon as practicable before a justice and that justice shall thereupon issue a warrant for the recommitment of that person to prison to serve that portion of his sentence that remained unexpired when the licence was granted.

26.   Grant of leave permits

[Section 26 Subsection (3) amended by No. 4 of 1994, s. 6 ]

(1)  [Section 26 Subsection (1) amended by No. 4 of 1985, s. 9 and Sched. 1 ]Subject to this section, the Director may grant to a prisoner or detainee a permit (in this Act referred to as "a leave permit") authorizing him to be absent from a prison for such of the following purposes as may be specified in the permit:

(a) Visiting a near relative who the Director has reason to believe is dangerously ill;

(b) Attending the funeral of a near relative;

(c) Interviews and discussions in relation to the prisoner's or detainee's proposed employment;

(d) Attending a place of education or training in connection with a course of education or training; or

(e) With the Minister's approval, any other purpose deemed by the Director to be proper.

(2)  [Section 26 Subsection (2) amended by No. 4 of 1985, s. 9 and Sched. 1 ]For the purposes of subsection (1) (a) and (b) , the question whether a person is a near relative of a prisoner or detainee shall be determined by the Director.

(3)  [Section 26 Subsection (3) amended by No. 4 of 1985, s. 9 and Sched. 1 ]A leave permit –

(a) shall specify the period during which a prisoner or detainee may be absent from a gaol in pursuance of a permit; and

(b) is subject to such conditions and restrictions as the Director may think fit and as are specified in the permit.

(4)  [Section 26 Subsection (4) amended by No. 4 of 1985, s. 9 and Sched. 1 ]Without limiting the generality of subsection (3) (b) , the conditions and restrictions to which a leave permit may be subject may include a condition that the prisoner or detainee to whom the permit is granted shall, while he is absent from prison during the currency of the permit, be in the custody of –

(a) a prison officer;

(b) a parole officer within the meaning of the Parole Act 1975 ;

(c) a probation officer appointed under the Probation of Offenders Act 1973 ; or

(d) any other person authorized by the Director for that purpose –

in this Act referred to as "a custodian".

(4A)  [Section 26 Subsection (4A) inserted by No. 4 of 1994, s. 6 ]A leave permit may authorize the absence of –

(a) a prisoner or detainee on one occasion or a number of occasions; or

(b) a prisoner or detainee for one purpose or a number of purposes; or

(c) a number of prisoners or detainees for the same purpose on one occasion or a number of occasions.

(4B)  [Section 26 Subsection (4B) inserted by No. 4 of 1994, s. 6 ]A leave permit may authorize a number of absences within the period of 31 days from its granting but no one absence is to be for more than 72 hours.

(5)  [Section 26 Subsection (5) amended by No. 4 of 1985, s. 9 and Sched. 1 ]Forthwith after granting a leave permit, the Director shall cause a copy of the permit to be furnished to both the person to whom it is granted and his custodian (if any).

(6)  Where the custodian of a person to whom a leave permit is granted is of the opinion that that person has failed to comply with a condition or restriction to which the permit is subject or that he is likely to so fail to comply, he may forthwith return that person to a prison.

(7)  For the purposes of facilitating the exercise of his powers under subsection (6) , a custodian may request any person to afford him such assistance as he may require.

(8)  A request made by a custodian to a person pursuant to subsection (7) is sufficient warrant to that person to assist the custodian in accordance with the terms of the request.

27.   Revocation of leave permits

(1)  [Section 27 Subsection (1) amended by No. 4 of 1985, s. 9 and Sched. 1 ]The Director may revoke a leave permit by writing under his hand.

(2)  [Section 27 Subsection (2) amended by No. 4 of 1985, s. 9 and Sched. 1 ]Forthwith after revoking a leave permit as provided in subsection (1) , the Director shall give notice of the revocation to the custodian (if any) of the person to whom the permit was granted.

(3)  Where the custodian of a person is given notice under subsection (2) that the leave permit granted to that person has been revoked, the custodian shall forthwith return that person to a prison.

(4)  For the purposes of facilitating his compliance with subsection (3) , a custodian may request any person to afford him such assistance as he may require.

(5)  A request made by a custodian to a person pursuant to subsection (4) is sufficient warrant to that person to assist the custodian in accordance with the terms of the request.

28.   Alteration of leave permits

(1)  [Section 28 Subsection (1) amended by No. 4 of 1985, s. 9 and Sched. 1 ]The Director may, by writing under his hand, with the approval of the Minister, alter a leave permit –

(a) by extending the period for which the permit is to remain in force; or

(b) by varying the conditions or restrictions to which the permit is subject.

(2)  [Section 28 Subsection (2) amended by No. 4 of 1985, s. 9 and Sched. 1 ]Forthwith after altering a leave permit as provided in subsection (1) , the Director shall give notice of the alteration to both the person to whom the permit is granted and his custodian (if any).

(3)  For the purposes of subsection (2) , the giving to any person of a copy of a leave permit as altered shall be deemed to be sufficient notice of the alteration.

29.   Provisions applicable to persons holding leave permits

(1)  The granting of a leave permit to a person does not affect the sentence that he is serving and that person shall, while he is away from prison during the currency of the permit, be deemed to be in prison and under lawful custody and control within the meaning of this Act.

(2)  A person to whom a leave permit is granted –

(a) shall not use the permit otherwise than for the purpose for which it is granted;

(b) shall comply strictly with the conditions and restrictions to which the permit is subject; and

(c) while he is away from prison during the currency of the permit, shall carry with him a copy of the permit and of any notice given to him under section 28 (2) .

(3)  A person to whom a leave permit is granted who fails to comply with the provisions of subsection (2) is guilty of an offence and liable to 6 months' imprisonment.

(4)  A police officer who has reasonable grounds for believing that a person to whom a leave permit is granted –

(a) has failed to return, in accordance with the terms of the permit, to the prison from which he has been granted leave to be absent, upon the expiry of the period of his grant of leave under the permit; or

(b) has failed to comply with a condition or restriction to which the permit is subject –

may apprehend that person.

(5)  [Section 29 Subsection (5) amended by No. 4 of 1985, s. 9 and Sched. 1 ]Where a leave permit granted to a person is revoked or has otherwise ceased to be in force, a justice shall, on application being made by the Director or some person authorized by him in that behalf, issue a warrant for the apprehension of that person and his conveyance to a prison, and that warrant may be executed by a police officer according to its tenor.

(6)  Where a person is apprehended under this section, whether pursuant to a warrant or otherwise, a police officer may return that person to a prison.

PART V - Offences by Prisoners and Detainees

30.   Offences

No prisoner or detainee shall commit any of the offences specified in Schedule II .

31.   Making and hearing of complaints of offences

(1)  A complaint alleging the commission of an offence specified in Schedule II may be made by a prison officer.

(2)  A complaint alleging the commission by a prisoner or detainee of any of the offences specified in paragraphs 1 to 7 of Schedule II shall be heard by a magistrate.

(3)  [Section 31 Subsection (3) amended by No. 4 of 1985, s. 9 and Sched. 1 ]A complaint alleging the commission by a prisoner or detainee of any of the offences specified in paragraphs 8 to 34 of Schedule II shall, subject to subsection (4) , be heard by the Chief Superintendent, except in the case of a complaint made by him.

(4)  [Section 31 Subsection (4) amended by No. 4 of 1985, s. 9 and Sched. 1 ]The Chief Superintendent shall refer, through the Director, to a magistrate a complaint that, apart from this subsection, he is required to hear himself pursuant to subsection (3) , if the Chief Superintendent believes that the alleged facts are sufficiently serious or if there are other considerations that lead him to believe that such a reference is warranted, and a magistrate to whom such a complaint is referred shall hear the complaint.

(5)  A prisoner or detainee who is charged before a magistrate with the commission of any of the offences specified in Schedule II –

(a) is entitled to have at least 3 days to prepare a defence; and

(b) shall be assisted to make reasonable efforts to seek legal representation or advice.

32.   Proof in proceedings that offender has been previously convicted

In any proceedings, whether summary or otherwise, against a person for an offence specified in Schedule II it is sufficient to charge and allege that the person by or in respect of whom the offence was committed was at the time a prisoner or detainee, without charging or alleging any proceedings, or any indictment, trial, conviction, judgment, or sentence, or any pardon or intention of mercy, or signification thereof, of or against or in any manner relating to that person, and the onus of proving the contrary is on the opposite party.

33.   Proof in summary proceedings that offender has been previously convicted

(1)  [Section 33 Subsection (1) amended by No. 4 of 1985, s. 9 and Sched. 1 ]Where it is necessary to prove that a prisoner or detainee charged before a magistrate with the commission of an offence specified in Schedule II has been previously convicted, whether under this Act or otherwise, it is sufficient to produce a certificate signed by the Director and containing particulars of –

(a) the name of the prisoner or detainee;

(b) the offence for which he is then under sentence, in the case of a prisoner, or the reason for his detention, in the case of a detainee;

(c) the date of each sentence to which he is subject, in the case of a prisoner, and the nature and term of each of those sentences; and

(d) the date of the commencement of his detention, in the case of a detainee.

(2)  [Section 33 Subsection (2) amended by No. 4 of 1985, s. 9 and Sched. 1 ]A certificate by the Director under subsection (1) may be produced before or after the trial of the prisoner or detainee to whom it relates and, on its production, shall, without proof of the signature or office of the Director, be received as sufficient evidence of the matter specified in it without any further or other proof, and the onus of proving the contrary is on the opposite party.

34.   Penalties

(1)  A prisoner or detainee who is found guilty by a magistrate of an offence specified in Schedule II is liable to two years' imprisonment and the withdrawal of any privileges earned by him.

(2)  [Section 34 Subsection (2) amended by No. 4 of 1985, s. 9 and Sched. 1 ]A prisoner or detainee who is found guilty by the Chief Superintendent of any of the offences specified in paragraphs 8 to 34 of Schedule II is liable to the withdrawal of any privileges earned by him.

(3)  A sentence of imprisonment passed on a prisoner under this section is cumulative on any sentence being served by the prisoner.

PART VI - Miscellaneous

Division I - Evidentiary provisions and other matters relating to legal proceedings

35.   Proof of offender's previous conviction and sentence in summary proceedings

(1)  Where, on the trial of a person for an offence not punishable summarily under this Act, it becomes necessary to prove the conviction of a person, the registrar or clerk of the court, or other officer having the custody of the records of the court in which that person was convicted, shall give a certificate, signed by him, containing the effect and substance only (omitting the formal part) of every indictment and conviction for the offence of which that person has been convicted and of his sentence.

(2)  A certificate under subsection (1) is sufficient evidence of the conviction and sentence of the person to which it relates, and the court in which that person is being tried shall take judicial notice of the signature of the person giving the certificate.

36.   Proof that person a prisoner or detainee

Where a question arises in a case under this Act or otherwise whether a person is, or was, at any particular time, a prisoner or detainee within the meaning of this Act, it is sufficient to prove that that person is, or was, at the time in question, a person in fact ordinarily dealt with as a prisoner or detainee under this Act without any further or other proof, and the onus of proving the contrary is on the opposite party.

37.   Convictions, &c., not to be quashed for want of form

(1)  Where it is alleged in a conviction, order, warrant, or other proceeding made or purporting to be made under the provisions of this Act that a person has been convicted and there is a good and valid conviction to sustain the allegation, the proceeding shall not be quashed for want of form or be removed by certiorari or otherwise into the Supreme Court.

(2)  No warrant of commitment shall be held void by reason of a formal defect in it.

Division II - General

38.   Escaping from lawful custody, &c.

(1)  Where a prisoner or detainee escapes from lawful custody or control, the period of the sentence, if any, under which he was detained shall be deemed not to run during the time that he is absent from lawful custody.

(2)  Any sentence imposed on a prisoner for the offence of escaping from lawful custody or control or for any other offence committed while he is at large shall be cumulative on the sentence or sentences for which he was imprisoned at the time of his escape.

39.   Prohibition against bringing unauthorized articles and things into prisons

[Section 39 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ]

(1)  [Section 39 Subsection (1) amended by No. 4 of 1985, s. 9 and Sched. 1 ]A person who brings into a prison an article or thing that the Director has not authorized to be brought into the prison is guilty of an offence.

Penalty:  Fine not exceeding 20 penalty units or imprisonment for a term not exceeding 12 months.

(2)  A police officer or prison officer who finds a person contravening the provisions of subsection (1) may apprehend that person without warrant.

(3)  A person apprehended under subsection (2) shall be brought as soon as practicable before a court.

(4)  In addition to any other penalty that may be imposed on him, a prison officer who is convicted of an offence against this section forfeits his office.

39A.   Random testing and searching of prisoners and detainees

[Section 39A Inserted by No. 4 of 1994, s. 7 ]

(1)  If the appropriate prison officer as specified in the Standing Orders made under the Prison Regulations 1985 considers it necessary to do so in the interests of the management and good order of a prison, the prison officer may order a prisoner or detainee at any time to undergo a test or search for the use or possession of any of the following:

(a) alcohol;

(b) a drug which has not been prescribed by a medical practitioner for the use of the prisoner or detainee;

(c) a prohibited substance within the meaning of section 3 (1) of the Poisons Act 1971 ;

(d) a substance included in Schedule 2, 3, 4 or 8 of the Poisons List set out in Schedule 1 to the Poisons List Order 1984 ;

(e) a substance included in the Australian Register of Therapeutic Goods established under the Therapeutic Goods Act 1989 of the Commonwealth;

(f) a metabolite of a substance mentioned in paragraph (b) , (c) , (d) or (e) .

(2)  A test may include the taking of a urine, blood or breath sample.

(3)  A test –

(a) in the case of a blood sample, is to be carried out by a medical officer; and

(b) in the case of a urine or breath sample, may be carried out by a prison officer or a medical officer.

(4)  A prison officer must order a prisoner or detainee to undergo a test or search under this section as and when required by the Standing Orders made under the Prison Regulations 1985 .

40.   Remissions

(1)  [Section 40 Subsection (1) amended by No. 4 of 1985, s. 9 and Sched. 1 ]Subject to this section, the Director may grant to a prisoner a remission of the whole or any part of his sentence pursuant to regulations made under section 43 (2) (e) .

(2)  A remission under subsection (1) may be subject to the condition that the prisoner concerned gives such security, by recognizance, for his good behaviour as is prescribed.

41.   Pardons by Governor

(1)  Subject to this section, the Governor may, by written instrument under his hand and the seal of this State, pardon a prisoner convicted in this State.

(2)  A pardon under subsection (1) may be absolute or subject to the conditions specified in the instrument of pardon.

(3)  Nothing in this section affects or prejudices the operation of the Parole Act 1975 .

42.   Preservation of Royal prerogative

Nothing in this Act shall be construed so as to limit or affect the Royal prerogative of mercy.

43.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  [Section 43 Subsection (2) amended by No. 29 of 1984, s. 3 and Sched. 1 ]Without affecting the generality of subsection (1) , the regulations may make provision for or with respect to –

(a) the management of prisons;

(b) .  .  .  .  .  .  .  .  

(c) the regulation and control of prisoners and detainees and the preservation of order;

(d) the diet, clothing, health, exercise, and welfare of prisoners and detainees;

(e) the mitigation or remission, conditional or otherwise, of the sentence of a prisoner as an incentive to, or reward for, good conduct while he is undergoing his sentence;

(f) the visits and inquiries by official visitors;

(g) the recording of the name, age, height, and weight of a prisoner or detainee, the photographing of a prisoner or detainee, and the recording of the impressions of the fingers, palms, and such other details as may be prescribed of a prisoner or detainee;

(h) the administration of punishment authorized by the Act or the regulations;

(i) the payment of money to prisoners and detainees for work performed by them or for other prescribed reasons and the manner of holding that money;

(j) admissions generally, inspections of prisons, and visits to prisons by relatives or friends;

(k) the classification and separation of prisoners and detainees;

(l) the retention in the custody of a superintendent of prisoners' and detainees' personal property and the manner in which prisoners and detainees may deal with property so held in custody;

(m) correspondence by and with prisoners and detainees;

(n) the educational and vocational training of prisoners and detainees;

(o) the mode of sale and disposal of the products of prisoners' and detainees' work and the disposal of the proceeds of those sales and disposals;

(p) the procedure on the hearing of complaints of offences specified in Schedule II ; and

(q) all other matters necessary or expedient for the good order, discipline, and safe custody of prisoners and detainees.

(3)  Regulations under this section may be of general or specially limited application according to time, place, or circumstances, and may be general or restricted to any specified class of subject-matter.

44.   Expenses of Act

The expenses of this Act shall be defrayed out of moneys provided by Parliament for the purpose.

45.   Transitional provisions

The provisions set out in Schedule III have effect for the purposes of the transition to the provisions of this Act from the law in force before the commencement of this Act.

SCHEDULE I - Acts Repealed

Section 2

SCHEDULE II - Offences by a Prisoner or Detainee

Section 30

1.   Mutiny.

2.   Open incitement to mutiny.

3.   Assaulting a police officer or a member of the public with whom the prisoner or detainee comes into contact.

4.   Stealing, unlawfully receiving, or embezzling any article or thing.

5.   Preferring a complaint against a prison officer, knowing the complaint to be false.

6.   Engaging in riotous behaviour.

7.   Instigating or encouraging another prisoner or detainee to riot.

8.   Assaulting a prison officer.

9.   Treating disrespectfully a prison officer, a person who visits or is employed in a prison, or any other person with whom the prisoner or detainee comes into contact.

10.   Assaulting another prisoner or detainee.

11.   Committing a breach of the regulations under this Act or failing to obey an order lawfully given by a person having authority in a prison.

12.   Leaving or attempting to leave without permission the place at which he is directed or authorized to be.

13.   Being idle or negligent at work.

14.   Mismanaging any work.

15.   Damaging or destroying any prison property.

16.   Setting alight to any inflammable article without authority.

17.   Having in his cell or possession an article or thing not furnished by the prison authorities or allowed to be in his possession.

18.   Trafficking with another prisoner or detainee or any other person.

19.   Disfiguring the walls or other part of a prison in any way or defacing, destroying, or pulling down a paper or notice hung up by the prison authorities in or about any part of a prison.

20.   Behaving indecently.

21.   Using insulting or threatening language.

22.   Cursing or swearing profanely.

22A.   Being in possession of, or consuming, alcohol or a drug that the Director has not authorized to be brought into the prison.

23.   Being drunk or under the influence of an illegal drug.

24.   Behaving irreverently at or during a religious service.

25.   Committing a nuisance.

26.   Preferring a frivolous complaint.

27.   Making or attempting to make a wound or sore on himself.

28.   Maiming, injuring, or tattooing himself or any other prisoner or detainee.

29.   Feigning illness.

30.   Giving or lending to, or borrowing from, another prisoner or detainee any food or other article or thing without leave.

31.   Conversing or holding intercourse with another prisoner or detainee, except as authorized by the regulations under this Act.

32.   Engaging in disorderly conduct.

33.   Instigating or encouraging another prisoner or detainee to engage in disorderly conduct.

34.   Committing any act contrary to the good order or maintenance of prison discipline or security.

SCHEDULE III - Transitional Provisions

Section 45

1.   Interpretation

In this Schedule, former Act means the Prisons Act 1868 .

2.   Transitional provisions relating to gaols

(1) A place of confinement that, immediately before the commencement of this Act, is a gaol within the meaning of the former Act , shall, on that commencement, be deemed to be a prison within the meaning of this Act.

(2) A reference in an Act to a gaol shall, on the commencement of this Act, be construed as a reference to a prison within the meaning of this Act.

3.   Transitional provision relating to the Deputy Controller of Prisons

Where, immediately before the commencement of this Act, the Deputy Controller of Prisons holds office under the former Act as the governor of a gaol referred to in section 4A (2) of that Act , he shall, on that commencement, be deemed to hold office as the superintendent of a prison referred to in section 6 (2) of this Act.

4.   Transitional provision relating to governors and deputy governors of certain gaols

A person who, immediately before the commencement of this Act is the governor or deputy governor of a gaol referred to in section 4A (2) of the former Act , shall, on that commencement, be deemed to be the superintendent or deputy superintendent, as the case may be, of a prison referred to in section 6 (2) .

5.   Transitional provisions in relation to prisoners absent from gaol pursuant to certain licences granted by the Minister

Where, immediately before the commencement of this Act, a person is a prisoner who is absent from a gaol under the authority of a licence granted to him by the Minister under the provisions of section 18B of the former Act –

(a) that person shall, on that commencement, be deemed to be a prisoner who is absent from a prison under the authority of a leave permit within the meaning of this Act; and

(b) any conditions and restrictions to which that licence is subject shall be deemed to be the conditions and restrictions to which that leave permit is subject.