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SENTENCE ADMINISTRATION (INTERSTATE TRANSFER OF COMMUNITY BASED SENTENCES) BILL 2009

Second Reading
MR C.C. PORTER (Bateman . Attorney General) [3.04 pm]: I move .
That the bill be now read a second time.
This bill provides for Western Australia.s participation in the formal transfer and enforcement of communitybased
sentences between Australian jurisdictions. Community-based sentences are sentences which are served
within the community as an alternative to imprisonment and which can be supervised and administered in the
local jurisdiction. Community-based sentences in Western Australia are defined as community-based orders,
intensive supervision orders and conditional suspended imprisonment orders.
Currently, if an offender breaches a community-based sentence while in a new jurisdiction, he or she remains
accountable to the original sentencing jurisdiction. This situation is less than ideal because it limits the
opportunities for enforcement action in the case of offenders who do not comply with their sentences.
Extradition procedures are required to return offenders to their original jurisdictions if they do not return of their
own volition, which can involve the expenditure of significant time, money and effort.
In 2000 the Australian Capital Territory Corrective Services was given the task of drafting model legislation for
this purpose, and the Community Based Sentences (Transfer) Act 2003 was passed by the Australian Capital
Territory Legislative Assembly in February 2003. This act provides model legislation for implementation in all
Australian states and territories. It was trialled between New South Wales and the Australian Capital Territory in
order to establish suitable administrative processes for the efficient running of the formal arrangements.
Following an evaluation of the new arrangements and subsequent discussion and agreement by the jurisdictions,
similar legislation is being enacted in each Australian state and territory.
I move now to the detail of the bill. The provisions in the bill will apply to sentences imposed on adults. This is
because many jurisdictions, including Western Australia, have separate legislative, administrative and judicial
regimes for adults and juveniles. It would be administratively inefficient to provide for a single piece of
legislation covering both distinct regimes. Under the formal arrangements created by the bill, an offender with a
community-based sentence in Western Australia will be able to transfer the supervision and administration of the
sentence to a new jurisdiction on a voluntary basis, provided that certain requirements are satisfied. The offender
will then be managed in the new jurisdiction as though a court of the new jurisdiction had imposed the sentence,
except for the purposes of appeal or review, which will remain the responsibility of the originating jurisdiction.
The formal arrangements will operate in much the same way as established by the Prisoners (Interstate Transfer)
Act 1983 and related interstate legislation. The bill will not apply to certain types of sentences that may be
served in the community; namely, parole orders, sentences to the extent that they impose fines or other financial
penalties, and sentences to the extent that they require the making of reparations. The bill also does not apply to
orders that have no requirement for supervision, such as good behaviour orders.
Interstate authorities that will administer the legislation will have a designated local authority for that
jurisdiction. Having one local authority for each jurisdiction will ensure that there is a single communication
point between an offender and a supervising authority, enabling clear communication procedures and practices to
be established. The bill provides that the local authority is to be the Commissioner of the Department of
Corrective Services, who will process requests for the transfer of sentences into and out of Western Australia.
Details of the transferred sentences will be recorded and maintained on a register. The local authority will make
decisions on the basis of information sent by the relevant interstate authority about the offender and sentence,
provided that specific criteria are satisfied. The criteria that the local authority will apply when deciding whether
to accept a request for transfer are: that the offender has consented to the order and has not withdrawn that
consent; that there is a sentence in Western Australia that corresponds to the sentence imposed in the interstate
jurisdiction; that the offender can comply with the sentence in Western Australia; and that the sentence can be
safely, efficiently and effectively administered in Western Australia.
The local authority will be able to refuse a request for transfer if the criteria are not met, or otherwise at the local
authority.s discretion. This will be particularly relevant in a case in which the local authority becomes aware of
concerns by an individual for his or her safety if the offender were to reside in Western Australia. Discretion
may also be exercised in a case in which the offender poses an unacceptable administrative burden on Western
Australia because the offender has a history of not complying with directions issued by a supervising officer. If
the local authority decides to accept a request for transfer, the local authority may choose to register the
sentence, decline to register the sentence or require the offender to meet certain preconditions before registering
the sentence. Imposing preconditions provides a means for the local authority to confirm the offender.s ability
and willingness to comply with the sentence in Western Australia before registration and formal transfer occur. A precondition may include the offender satisfying the local authority before a stated time that the offender is
living in Western Australia or that the offender is reporting to a stated person in Western Australia at a stated
time and place. If the local authority decides to accept a request for transfer and registers the sentence, the
offender will be supervised and administered by the Department of Corrective Services, as though the sentence
had been imposed in Western Australia.
The administration of a sentence includes administering a breach of the sentence. Therefore, if the offender does
not comply with the conditions of the transfer order, he or she may be re-sentenced by a Western Australian
court according to the laws of this state. The Western Australian court may, however, refer to the penalty range
and type that would have been applicable in the original jurisdiction so as to ensure that the transfer does not
serve to avoid the sentencing intentions of the original jurisdiction.
Registration of the sentence does not affect an offender.s right to seek an appeal or review of the conviction or
finding of guilt, or the imposition of a sentence in the original jurisdiction. As a matter of practicality, if the
offender seeks an appeal or amendment of the conviction or the sentence relating to the conviction, the appeal
will be made to the original jurisdiction and not to a Western Australian court, even though Western Australia is
the jurisdiction supervising and administering the transferred sentence. In the case that an appeal or request for
amendment of sentence is successful, the amended sentence will be administered and supervised in Western
Australia as though a Western Australian court had upheld the appeal or made the amendment. It would be
contrary to natural justice to prevent an offender from seeking an appeal or review of his conviction or sentence
by virtue of registration in a jurisdiction other than the original jurisdiction.
There are many reasons that offenders may wish to transfer to a new jurisdiction. These include proximity to
improved family and community support, or the prospect of increased opportunity for employment or study.
Allowing a transfer to a new area in which the offender has good support increases the probability of the
offender fulfilling the order, being positively re-integrated back into the community and being diverted from
returning to the prison system.
The government encourages the early passage of the bill to ensure the prompt and efficient implementation of
the formal arrangements in Western Australia. I commend the bill to the house.
Debate adjourned, on motion by Mr D.A. Templeman.