Leonard Anthony Subritzky, Clifford John Anthony Stone, Quang Tran, Willie Lo and Dien Van Le v Sheriff Jill Circosta and Australian Capital Territory [1996] ACTSC 112 (1 November 1996)

SUPREME COURT OF THE ACT

LEONARD ANTHONY SUBRITZKY, CLIFFORD JOHN ANTHONY STONE, QUANG TRAN,
WILLIE LO AND DIEN VAN LE v. SHERIFF JILL CIRCOSTA AND AUSTRALIAN
CAPITAL TERRITORY
Nos. SC772-774, 778 and 781 of 1996
Number of pages - 18
Practice and Procedure - Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Practice and Procedure - application to set aside warrants issued by the Sheriff at the request of the Administrator to transfer detainees interstate - grounds to have warrant set aside - no lawful justification - denial of natural justice.

Criminal Law - transfer of prisoners - historical development of the office of Sheriff - functions of the Sheriff - powers of the Supreme Court in relation to the custody of a person - powers of the Magistrates Court in relation to the custody of a person - powers and duties of the Sheriff of the Australian Capital Territory - duty of the Marshal of the High Court - distinction between judicial and executive functions of government in relation to the custody of a person - power to transfer prisoners between States - whether the Administrator has the power to request the Sheriff to transfer detainees to an interstate institution pursuant to Remand Centres Act 1976 (ACT) - whether the Sheriff is empowered to transfer interstate, unconvicted prisoners, who are detained in the custody of the Superintendent of a remand centre, without an order of the Court - duty of Administrator to inform the Minister of the need to declare a temporary remand centre - powers conferred upon the Sheriff pursuant to the Removal of Prisoners Act 1968 (ACT) - powers of the Sheriff once a prisoner has been committed to his or her custody - doctrine of separation of powers - Sheriff's role to exercise the judicial arm of government - role of the Administrative Decisions (Judicial Review) Act 1989 to review the exercise of executive power.

Words and Phrases - "remand centre" - "institution" - "authorised persons".

Remand Centres Act 1976 (ACT), ss3, 5, 6AA, 7, 15

Milson, "Historical Foundations of the Common Law"
"The English Legal System" 4th Ed Cross and Hall
Taswell-Langmead's English Constitutional History 11th Ed
Magna Carta 1215
4 B1 Comm 29-70
Vol 42 Halsbury 4th Ed 1130
Charter of Justices 1828
Sheriff Act 1843 (NSW)
Sheriff Act 1900 (NSW), s8
Seat of Government (Acceptance) Act 1909 (Cth), ss6, 9
Judiciary Act 1904, s30B
Seat of Government Supreme Court Act 1933 (Cth), ss36, 37
Australian Capital Territory Supreme Court Act 1933 (Cth), s50
Magistrates Court Act 1930 (ACT), ss70, 94
Crimes Act 1900, s476
Petition of Right 1688
Bill of Rights 1688
Prisons Act 1952 (NSW), ss8, 27, 53-58
Prisoners (Interstate Transfer) Act 1982 (NSW)
Transfer of Prisoners Act 1983 (Cth)
Removal of Prisoners Act 1968 (ACT), ss3, 4, 5
Administrative Decisions (Judicial Review) Act 1989

R v Hutchinson (1893) 32 LR 1r 142
R v Turnbull and Ors; exp Taylor [1968] HCA 88; (1968) 123 CLR 28

HEARING

CANBERRA, 16 September 1996
1:11:1996

Counsel for the Plaintiff Subritzky: Mr G Brady

Instructing solicitors: Pappas J Attorney

Counsel for the Plaintiff Stone: Mr C Everson

Instructing solicitors: Graeme C Nettle
and Associates

Counsel for the Plaintiff Tran: Mr G Brady

Instructing solicitors: Pappas J Attorney

Counsel for the Plaintiff Lo: Ms A Tonkin

Instructing solicitors: McGuiness Eley

Counsel for the Plaintiff Le: Mr C Everson

Instructing solicitors: Graeme C Nettle
and Associates

Counsel for the Crown: Mr P Walker

Instructing solicitors: Australian Government
Solicitor

ORDER

THE COURT ORDERS THAT:

1. The warrants issued by the Sheriff at the request of the
Administrator be set aside.

2. The Australian Capital Territory be added as second
defendant.

3. The second defendant pay the applicants' costs of and
incidental to these proceedings.

DECISION

HIGGINS J These applications, on behalf of the five abovenamed persons, are in identical terms. The essential facts are the same.

2. Each applicant was committed to this Court, either for sentence or for trial, and refused bail. Each is, or was when the applications were heard, currently held at the Belconnen Remand Centre (BRC) or a temporary remand centre, as the case may be, pursuant to a warrant issued by the Sheriff of the Australian Capital Territory and in accordance with the terms of those warrants.

3. In the case of each applicant, for various reasons to which I will later allude, the Administrator of the remand centre or centres, as the case may be, applied to the Sheriff for a warrant authorising the transfer of the applicants to "an interstate institution as defined under this Act". The Act referred to is the Remand Centres Act 1976 (ACT) (RC Act). The institution was specified as "Goulburn Correctional Centre".

4. The Sheriff, without inviting or hearing representations from the applicants or any of them, indicated that she would issue such warrants. It is agreed that a form of warrant was issued and signed accordingly. The Administrator made his decision to request those warrants without inviting or hearing any representations from or on behalf of the applicants. Nor was any application made to any Court or Judge in pursuance of whose order the Sheriff had issued the original warrants committing the applicants to the custody of the Superintendent of BRC.

5. The applicants have sought to set aside the warrants either on the ground that there was no lawful justification for them or upon the ground of denial of natural justice.

6. On 13 September 1996, four of those applications came before me. After preliminary argument, I stayed the execution of the warrants until further order.

7. On 16 September 1996, I received further evidence and had the benefit of further argument. The fifth applicant was added. His situation was no different from the other four. The Territory was, by consent, added as a further defendant. I then made orders quashing the warrants with costs. I stated that I would later give reasons. These are those reasons.

8. The warrants in question in relation to the first four applicants had been requested by Mr John Malouf by a memorandum to the Sheriff dated 12 September 1996. Mr Malouf was the Acting Director, ACT Corrective Services, an agency of the Australian Capital Territory. He was designated as the Administrator for the purposes of the RC Act.

9. His memorandum stated as follows,

As the Administrator responsible for the conduct of all remand
centres in the ACT, and upon receiving relevant advice from the
Superintendent, I am satisfied that the number of detainees in
the Belconnen Remand Centre exceeds the number that can be
conveniently held.

Legal advice from Departmental lawyers is that, pursuant to sub
section 5(1) of the Remand Centres Act 1976, I have the power to
authorise transfer to an interstate institution as defined under
this Act. A copy of this advice has been previously provided to
you.

I now seek warrants for the transfer of the following detainees
to Goulburn Correctional Centre as soon as is practicable on or
after 13 September 1996:

Name Charge Status Return Date
W. Lo Murder Awaiting trial in the Supreme Court
DTBA
L. Subritzky Aggravated. Assault
Supreme Court Sentence 18/10/96
11/10/96
C. Stone Aggravated Burglary
Supreme Court Sentence 18/10/96
11/10/96
Q. Tran Sale/Possess/Supply
Supreme Court Sentence 18/10/96
11/10/96

A date for the return to the Belconnen Remand Centre of three of
the above detainees is specified. A separate return warrant will
be required for the remaining detainee once a court hearing date
becomes available.

Further transfers under similar circumstances may be required in
future. The Superintendent will maintain regular contact with
you in relation to this matter.

Thank you for your assistance.

10. It will be apparent that Mr Malouf, as Administrator, claimed to have the power to authorise the transfer of prisoners pursuant to the RC Act.

11. Annexed to the request was a minute from the Superintendent of the BRC dated 6 September 1996 and a further minute from Mr Malouf in response thereto dated 9 September 1996. The reference to legal advice was to an undated memorandum attributed to Mr Jack Daniels of the Justice Section of the Attorney-General's Department. That memorandum was annexed to the minute of 9 September 1996 and addressed to the Attorney-General, the Chief Executive of the Attorney-General's Department and the Director, Justice Section, Attorney-General's Department.

12. The factual statements contained in the abovementioned material I accept as both truthful and accurate for the purpose of these applications.

13. Those facts were summarised by the Administrator as follows,

1. On 8 September 1996, there were 42 inmates in the Belconnen
Remand Centre which was designed to accommodate 34 inmates.
During the period 1 April to 9 September 1996 inmate numbers
have exceeded 40 on a total of 46 days. Excess inmates are
currently housed in the Civic Watch House under an interim
agreement with Australian Federal Police. During the day however
these inmates are returned to the BRC to participate in normal
programs.

2. Because of the need to separate a number of inmate
categories, when all inmates are in the BRC during the day, it
has become increasingly difficult for staff to meet inmate care
and security requirements, and to ensure observation routines
for "at risk" inmates are met, given other demands on staff
time. At present 14 inmates are on observation regimes and seven
are on protection (two of these seven are on protection from
other protection inmates). Seven inmates are also considered to
have mental health issues, and their management demands more
than usual staff time.

3. The Superintendent, Mr van Hinthum, advised me on
6 September 1996, that tensions in the BRC have been high due to
large numbers of inmates mixing in cramped conditions with
restricted access to exercise or other activities. He requested
that action be taken to alleviate current pressures ...

4. Tensions within the BRC increase the potential for acts of
violence against staff or other inmates as a way of dealing with
frustration. Last week a nurse was assaulted by an inmate and
required several stitches (charges will be laid at the
detainee's next court appearance). In addition, on 5 September
1996, an inmate's nose was broken by a fellow inmate. Police
were unable to lay charges in relation to this incident because
the victim would not identify (the) perpetrator. While the
incidents themselves may not be considered serious,
Mr van Hinthum commented that "... when assaults occur
management must act ...". His concern was that failing to be
pro-active at this time may lead to a co-joining of industrial
action between Quamby Youth Centre and BRC custodial staff as an
act of solidarity in the face of perceived adversity (the Quamby
dispute is currently before the Industrial Relations
Commission).

5. It is expected that cells recently "refitted" at the
Belconnen Police Station will be handed over to the BRC on
Wednesday 11 September 1996. This will provide up to 7 more
beds, thus potentially enabling 41 inmates to be accommodated at
the BRC day and night. It will not however remove the need for
the Civic Watch House for some inmates.

6. Overcrowding can prevent the Superintendent placing inmates
in appropriate zones and opens the way for criticism, in the
event of "self injury" or inmate/inmate assault. In particular,
there are currently no areas available for inmates to be
separated for disciplinary reasons, such as assaulting other
inmates.

14. Clearly, this situation is both unsatisfactory and alarming. The solution proposed by the Administrator was to select certain detainees for transfer to a NSW prison. The criteria for selection was expressed to include,

... factors such as the expected length of remand, the
seriousness of the offence, the level of expected disruption to
family visits, criminal history and behaviour whilst in custody.

15. How and by whom such factors were to be evaluated and why they were relevant was not adverted to. In particular, there was no indication as to why the initial four applicants and, subsequently, the fifth applicant, were chosen for transfer rather than others. Certainly, if it was to be a decision made by the Sheriff rather than the Administrator, she was provided with no information which would have enabled her to decide to grant or refuse the Administrator's request.

16. As the decision purported, in truth, to be that of the Administrator, it seemed to me that the correct respondent was really the Territory acting through the Administrator unless the latter was exercising a statutory power independently of his role as an officer of the Executive Government. That was not suggested.

17. It is, therefore, necessary to examine the power of the Administrator, as well as that of the Sheriff in respect of prisoners whether sentenced or not but with particular reference to those being held pending trial or sentence.

The role of the Sheriff
18. Historically, the Sheriff was a most significant officer. He was the governor of a shire directly responsible to the King. The term "Sheriff" derives from the original title "Shire Reeve". All no doubt are familiar with the role and power attributed to the Sheriff of Nottingham in the tale of "Robin Hood" set in the reign of Richard I. At that time, to quote Milson, "Historical Foundations of the Common Law", at 4,

... The sheriff was understood as the King's reeve (or governor)
in the shire, and was accountable to the King.

19. Prior to Magna Carta 1215, the Sheriff not only governed in the King's name but had the right to try crime and impose punishment. He controlled the lesser courts in his shire, the hundred courts. There were some private hundred courts, but the Sheriff, to cite "The English Legal System" 4th Ed Cross and Hall, at 5,

... represented the immediate interests of the King in the
shire, tended the royal estates in it, collected and accounted
for the taxes and fines due from it and executed the royal
commands within its borders.

20. That included the exercise of civil and criminal jurisdiction in the Sheriff's court and tourn. The Sheriff also had responsibility for each "hundred" in the Shire other than those privately controlled by individual barons. That was the body required to raise "hue and cry" after a suspected offender and to provide the "posse comitatus" to pursue suspected persons.

21. Clause 24 of Magna Carta 1215 curtailed the Sheriff's powers. It provided (in translation),

No sheriff, constable, coroner, or bailiff of the king shall
hold pleas of the Crown.

That meant, as Taswell-Langmead's English Constitutional History 11th Ed, states, at 15,

Henceforth he could take indictments and keep prisoners accused
or suspected, but only royal justices could try them.

22. As Milson (supra) points out, after 1215, the royal justices solely able to try prisoners were those to whom were given by royal commission, the general power of oyer and terminer and gaol delivery.

23. Thus,

From presiding over what was, for all ordinary purposes, the
most important kind of court in the land, (the Sheriff) slowly
became the executive addressee of commands from higher central
bodies.

24. Bailiffs were appointed to serve the Sheriff. The reference in cl 24 Magna Carta to "constables" is a reference to a "castellan" or lord of a castle with the means to keep prisoners securely. The Sheriff, as Plucknett notes, frequently committed prisoners to the charge of these private prisons or gaols.

25. Only the judges of assize had the power to "try and deliver every prisoner who shall be in gaol when they arrive at the circuit town" (4 Bl Comm 270 (iii)). Oyer and terminer conferred upon the relevant commissioner the power to hear and determine causes (4 Bl Comm 269-70).

26. Volume 42 Halsbury 4th Ed 1130, (Sheriffs) notes that,

The Sheriff's original civil and criminal jurisdictions, which
were exercised by him in the Sheriff's court and Sheriff's tourn
respectively, are now merged in the jurisdictions of the county
court, the High Court and the Crown Court. Further, the Sheriff
has ceased to have responsibility in the collection of fines
(from 1967), the summoning of jurors (from 1971) and for the
execution of judgment of death (also from 1971).

The Sheriff's functions are now concerned solely with the
execution of writs of execution and warrants ... (together with
some other parliamentary and ceremonial functions not presently
relevant).

That is a brief and far from complete explanation of the role of the Sheriff in the Westminster system of government in England down to the present time.

27. In Australia, the office of Sheriff was first established under the Charter of Justice of 1828. That Charter by Articles XI - XIII empowered the Governor of the Colony of New South Wales to appoint a person to be "Sheriff of the Colony of New South Wales".

28. The Charter further ordained that the Supreme Court should fix the geographical limits beyond which the Sheriff need not go for the execution of the process of the Court.

29. That provision was necessary because a person appointed Sheriff was liable to a criminal information or to be indicted if he refused to serve, see R v Hutchinson (1893) 32 LR 1r 142.

30. The Sheriff Act 1843 (NSW) provided that the office of Sheriff should be at the Governor's pleasure rather than annually renewable. The Court was empowered to authorise other persons than the Sheriff to execute process. The Sheriff was empowered to grant replevin (order for the return of goods unlawfully taken) and was required to account to the Governor for all fines collected.

31. Those provisions were consolidated with others by the Sheriff Act 1900 (NSW). Of interest is s8,

The sheriff shall by himself or his deputy be in attendance upon
the Supreme Court, Circuit Courts and Courts of Quarter Sessions
during every sitting of the said Courts.

A penalty of 50 pounds was fixed for non-attendance, at the Court's discretion.

32. The Sheriff Act 1900 was part of the law of New South Wales as at 1 January 1911 and so then became part of the law of this Territory subject to s6(1) of the Seat of Government (Acceptance) Act 1909 (Cth), that is,

Subject to this Act, all laws in force in the Territory
immediately before the proclaimed day shall, so far as
applicable, continue in force until other provision is made.

33. Section 9 empowered the Governor-General to appoint,

... such Magistrates and officers as are necessary to execute
the laws of the Territory and provide for the administration of
justice thereunder.

34. Under that power or, more likely, under s6(2), the power of the Governor of New South Wales to appoint a sheriff for or including the area of the Australian Capital Territory, became vested in the Governor-General, pending "other provision".

35. In 1927, the Commonwealth Parliament enacted s30B of the Judiciary Act 1904. That amendment conferred upon the High Court of Australia, in its original jurisdiction, the powers and jurisdiction of the Supreme Court of New South Wales in respect of the Territory. However, the practice and procedure to be followed, and provision for the service, execution and enforcement of process and orders, was to be as prescribed by the rules and practice of the High Court.

36. As a result, the Marshal of the High Court had responsibility for the service and execution of all process and orders including warrants.

37. In particular, the Marshal had the duty,

... to take, receive and detain all persons who are committed to
his custody by the Court, and shall discharge all such persons
when directed by the Court or otherwise required by law.

38. With the enactment of the Seat of Government Supreme Court Act 1933 (Cth) (ACT Supreme Court Act), the jurisdiction so conferred was terminated by the repeal of s30B. The judicial power in respect of the Territory was conferred by that Act upon the newly created Supreme Court of the Territory.

39. That Act also empowered the Governor-General to appoint a person to be "Sheriff of the Territory".

40. The powers and duties of the Sheriff were defined in ss36 and 37. That is,

36. The Sheriff shall be charged with the service and execution
of all writs, summonses, orders, warrants, precepts, process,
and commands of the Supreme Court which are directed to him, and
shall make such return thereof to the Court, together with the
manner of the execution thereof, as he is thereby required, and
shall take receive and detain all persons who are committed to
his custody by the Court, and shall discharge all such persons
whereunto directed by the court or by law.

37. All powers and functions exercisable by, and all rights,
privileges, immunities, duties and liabilities belonging to, the
Sheriff of New South Wales under any law of that State which is
continued in force in the Territory as a law of the Territory,
shall, in the Territory, be exercisable by and belong to the
Sheriff of the Territory.

41. The Sheriff of the Territory has never had the parliamentary and ceremonial functions of the English High Sheriffs. It is apparent from the historical development of the office of Sheriff that from being a direct representative in a shire of the entire power of the King, it has become an office acting in aid of and enforcing the judgments and orders of the King's justices in that Shire or Territory. The jurisdiction of the King's justices is now conferred on this Court so far as this Territory is concerned.

42. That position is confirmed by more recent amendments to the ACT Supreme Court Act. By Act No. 91 of 1993, the power to appoint the Sheriff is now vested in the Attorney-General for the Territory. The Sheriff's functions are defined in s50,

The Sheriff shall -
(a) serve or execute any process of the Court directed to him
or her;
(b) make due return to the Court of such process;
(c) take due charge of any person committed to his or her
custody by the Court; and
(d) discharge any such person as directed by the Court or as
required under a law of the Territory.

43. From those provisions it is necessarily to be implied that it is only where this Court has committed a person into custody or made an order requiring execution that the Sheriff and his or her officers are required to take responsibility for the custody or disposition of that person.

44. The powers of the Supreme Court in relation to the custody of a person ordered by it to be so held may be defined by reference to the powers of the Royal Courts of Justice, there being no specific statutory provision.

45. The powers of the Magistrates are defined by statute. It is, I think, instructive to refer to them. Where a person has been charged before the Magistrates Court with an indictable offence then, by virtue of s70 Magistrates Court Act 1930 (ACT), (MC Act),

... the Court may adjourn the hearing to the same or some other
place, and may by its warrant from time to time remand the
defendant to some gaol, lock-up or other place of security, for
such period as the Court, in its discretion, deems reasonable,
but not exceeding fifteen clear days at any one time, to be
there kept, and to be brought before the Court at the time or
place appointed for continuing the hearing.

46. It is clear from this, and s71, that the person into whose custody the defendant is committed holds that person on behalf of and at the direction of the Magistrates Court. Further, that court is empowered to specify the "gaol, lock-up or other place of security" to which the person is to be remanded. In keeping with historical precedent, the custody of that person is committed by warrant to the person in charge of such secure place.

47. The Magistrates Court, in the case of some indictable offences, may, subject to s477 Crimes Act 1900, deal finally with them. In other cases, the Magistrate seized of the matter may decide to, or must, as the case may be, commit the person to the Supreme Court for trial or sentence.

48. Section 94 MC Act then applies, or is deemed to apply, to a person so committed. Once a committal order is made, the Magistrates Court shall (not "may"),

... by warrant commit him or her to gaol, a lock-up or a remand
centre, to be there safely kept until the sittings of the Court
before which he or she is to be tried, or until he or she is
delivered by due course of law or admitted to bail as provided
in this Act or at once admit him or her to bail as hereinafter
provided.

49. The Executive Government may, of course, whether through the Director of Public Prosecutions, or even the Royal prerogative of mercy or pardon, end such custody without judicial order. However, since Magna Carta, the Petition of Right and the Bill of Rights 1688, it is accepted that the power to hold persons pending trial or sentence is a Judicial, not Executive, function. Section 94 also confers a discretion upon the committing Magistrate to choose the place of security in which the committed person is to be held.

50. The provisions of the MC Act preserve and respect the distinction between the judicial function and powers in aid of it and the powers and function of the Executive Government. It is not for an officer of the Executive Government to command a Magistrate to commit or not a person to a gaol rather than to a remand centre or lock-up, although the government may, in practice, limit such choice by failing to provide sufficient facilities.

51. A fortiori, it seems to me, it would be entirely inappropriate for the Sheriff of the Territory to be at the command of the Territory Executive rather than of this Court.

52. As this Territory is linked with the New South Wales prison system, it is of interest to note that s8 of the Prisons Act 1952 (NSW) (Prisons Act) provides,

Nothing in this Act shall abridge or otherwise affect the
powers, authorities, duties and functions vested in or imposed
upon the Sheriff by or under any statute or at common law in
relation to prisoners.

53. That is, of course, a reference to the Sheriff of New South Wales. It is intended to ensure no conflict between the role of the Sheriff as an officer of the Judicial system and that of the Executive Government administering prisons.

54. Removal of prisoners from one prison to another is permitted under s27 Prisons Act, to be "by order of the Commissioner", that is, Commissioner of Corrective Services. It may be noted that the Courts are not involved in such removal but it does not authorise removal out of the State and is subject to the powers of the Sheriff in s8. Only the Prisoners (Interstate Transfer) Act 1982 (NSW) authorises such a transfer in respect of prisoners generally, that is, prisoners sentenced in New South Wales. See also Transfer of Prisoners Act 1983 (Cth).

55. Part 9 (ss53 - 58) Prisons Act makes provision in respect of prisoners sentenced in the Territory and removed to New South Wales pursuant to the Removal of Prisoners Act 1968 (ACT) (ROP Act).

56. Section 54 obliges the governor of, or officer doing duty at a prison, to receive a Territory prisoner "in accordance with a warrant", that is a warrant issued pursuant to the ROP Act. Whilst that person is in such custody, he or she,

... may be dealt with in the like manner, and is subject to the
like laws, as if the order or sentence of the court or
magistrate in respect of the person had been a like order or
sentence made or pronounced under a law in force in this State.

57. Two matters are clear from these provisions. First, a prisoner may only be received pursuant to a valid warrant issued under the ROP Act, see R v Turnbull and Ors; exp Taylor [1968] HCA 88; (1968) 123 CLR 28. Second, the powers of transfer vested in the Commissioner under the Prisons Act remain subject to the reservation of the Sheriff's powers pursuant to s8. If the Sheriff of New South Wales, by his or her warrant, was to specify that a particular prisoner be held at a particular prison that warrant, if validly executing a judicial order, would limit that power of transfer in relation to that prisoner, at least once the warrant has been executed.

58. It follows, therefore, that the power to command the Sheriff to issue a warrant changing the custody of a prisoner held pursuant to a valid warrant properly executed is a power vested in this Court and not the Executive Government of the Territory.

59. The question then is whether, by authorising the Sheriff to commit a person to the custody of the Superintendent of the BRC, the Administrator became empowered to transfer prisoners to some other place of security in New South Wales.

The power of the Administrator to transfer prisoners
60. The RC Act is the Territory's nearest equivalent to the Prisons Act.

61. The Administrator referred to in the RC Act is an officer of the ACT public service so assigned by the Chief Executive of the Australian Capital Territory Government Service. The powers and duties of the Administrator are provided for in s7, in the following very general terms,

Subject to this Act, the Administrator is responsible for the
conduct of all remand centres in the Territory.

The term "remand centre" is defined by s3 to be "an area declared by the Minister to be a remand centre or a temporary remand centre".

62. The evidence before me was that "the Minister" (that is, the ACT Attorney-General) has declared the BRC to be a remand centre for the purposes of the RC Act. Belconnen Police Station lock-up and the City Police Station lock-up have been declared to be temporary remand centres pursuant to s5(3) RC Act. I was not informed of the terms of those declarations but I assume, in favour of regularity, that the persons referred to in s6AA, particularly the Superintendent, have been duly designated by the Chief Executive. I have assumed that the person designated as Superintendent at BRC is also so designated in respect of the temporary remand centres, though, of course, different persons than those serving at BRC might be designated custodial or medical officers.

63. Section 5(1) of the RC Act provides,

Where -
(a) the number of detainees in a remand centre is, or is likely
to be, greater than the number that can be held conveniently in
the centre; and
(b) it is not convenient to transfer some detainees to another
institution, within or outside the Territory,
the Administrator shall inform the Minister of the fact.

64. In the matters before me, the evidence is that the situation contemplated by s5(1)(a) has existed for some considerable time and is likely to continue notwithstanding current plans to incorporate part of the Belconnen Police lock-up, after suitable renovation, into BRC. I understand that such incorporation has now occurred.

65. It will be observed that the purpose of so informing the Minister is to enliven the Minister's power, pursuant to s5(3), to declare an area to be a temporary remand centre.

66. It is not necessary to inform the Minister if the overcrowding can conveniently be relieved by the transfer of some detainees to another "institution".

67. The term "institution" is not defined. "New South Wales institution" is defined as "an institution in New South Wales where convicted persons are detained". The purpose of defining that term is unclear as it is not otherwise used in the RC Act.

68. Despite the reference to the "transfer of some detainees to another institution" there is no power in the Superintendent and no power expressly vested in the Administrator, of their own motion, to effect such a transfer. It would be contrary to all previous principle and practice for a custodian to be able to effect such a transfer without either an order of a committing court evidenced by a valid warrant or a valid statutory power.

69. It may be that the Administrator or the Superintendent can transfer detainees within and between the remand centres under their control. That is not a transfer to "another institution". Nor does it change the identity of the custodian specified in the committing warrant. I leave aside the provisions for compassionate or emergency release or relocation of detainees, which is not only expressly authorised but does not constitute transfer to another institution.

70. There are means for the Superintendent to effect the transfer of a detainee to "another institution, within or outside the Territory", but no such means are provided for under the RC Act. However, it clearly is open for the Administrator to seek to have orders made relieving the Superintendent of his or her duty to detain all or some prisoners committed to his or her custody. There is no provision in the RC Act which obliges the Superintendent, if unable properly to accept them, to receive persons who "may be detained in a remand centre" (s15(1) RC Act) into his or her custody if he or she cannot carry out the terms of the warrant authorising him or her to receive them. He or she must, of course, refuse to accept a person not within the categories of persons referred to in s15(1) RC Act. A discretionary power to refuse to accept new detainees, of course, will not necessarily avoid "overcrowding". "Overcrowding" could emerge from a subsequently realised need to separate certain detainees.

71. However, in my view, neither the Administrator nor the Superintendent has the power to transfer a detainee accepted into his or her custody by the Superintendent out of the custody of the Superintendent save as expressly provided by the RC Act. Those powers do not extend to transferring prisoners to a New South Wales prison or, indeed, to any "other institution".

Can the Sheriff remove unconvicted prisoners to New South Wales gaols whilst those persons are detained in the custody of the Superintendent in a remand centre without an order of the Court?
72. The respondent submitted that if the Administrator lacked such a power then the Sheriff had such a power, pursuant to the ROP Act, which she could exercise independently of any Court order.

73. Section 5(1) of the ROP Act provides,

Where, under a law as in force in the Territory, a person is
liable to undergo imprisonment or other detention in custody, an
authorised person may, by warrant directed to all constables,
require them to convey that person in custody from the Territory
to such prison in the State as is specified in the warrant and
there to deliver him into the custody of the officer in charge
of the prison or some other officer doing duty at the prison,
and the warrant may be executed by any constable.

74. Section 5(2) expressly refers to and authorises the transfer of such prisoners within the New South Wales prison system. It provides,

Where a person is delivered into custody at a prison in the
State in pursuance of a warrant under subsection (1), the person
may, subject to this Act, be detained in that prison or any
other prison in the State for so long as his detention or
custody is necessary for the execution of the order or sentence
by reason of which the warrant was issued.

75. The "authorised person" may also issue a warrant directed to the custodian of a prisoner in New South Wales requiring the custodian to deliver the prisoner to a constable for return to the Territory. There is no reference to the basis upon which such a person might decide to issue such a warrant.

76. Section 4 of the ROP Act subjects a person who, under Territory law, becomes liable to "undergo imprisonment or other detention in custody" to the further liability to undergo that imprisonment or detention either in the Territory or "in accordance with this Act, in the State", that is, New South Wales.

77. The term "imprisonment" is capable only of referring to a convicted prisoner. However, s3(3) provides,

For the purposes of this Act, a reference to the making of an
order by a court includes a reference to the issue by a court or
a magistrate of a warrant remanding or committing a person to
prison or to some gaol, lock-up or other place of security, and
a reference in this Act to an order shall be construed
accordingly.

78. That clearly contemplates that the issue of a warrant will follow a magisterial or judicial order committing a person to custody pending trial or sentence. That construction is confirmed by a consideration of the usual role and function of the persons specified as "authorised" persons.

79. The definition of "authorised person", per s3(1), is,

... the Sheriff, or a Deputy Sheriff, of the Territory, a
magistrate, the Clerk or a Deputy Clerk of the Magistrates Court
established under the law of the Territory or the Sheriff, a
Registrar, a Deputy Registrar, a District Registrar or other
like officer of a federal court."

80. Save for Magistrates, each of the officers mentioned is a person whose function it is to ensure the execution of the orders of a Court. A Magistrate may himself or herself cause such an order to be executed. Judges may themselves issue certain warrants in execution of their orders. Otherwise, insofar as they sign warrants having the effect of detaining persons, sentenced or otherwise, the officers referred to do so in execution of orders made by a Judge or Magistrate.

81. Magistrates occupy an ambivalent place in the judicial hierarchy in the sense that their role is not wholly judicial. They may and do carry out ministerial or administrative functions in causing suspected persons to be arrested, detained and committed for trial, functions previously exercised by the Sheriff and the grand jury. That function is, in this Territory, regulated by the MC Act which also confers upon the Magistrates Court summary criminal jurisdiction over all summary offences and some indictable offences.

82. That dichotomy is recognised by the terms of s3(3) ROP Act.

83. Prisoners ordered by this Court to be held in custody are, unless otherwise ordered, committed to the custody of the Sheriff.

84. She has the duty then to issue her warrant delivering the person to an appropriate custodian in execution of the order so made. The Court may specify the gaol, lock-up or other place of security to which that person is to be committed. Such a person is liable to be committed to such an institution whether in or out of the Territory.

85. Usually, the expectation is that a person to be held pending trial or sentence will be held at BRC. Prior to 1976, before that facility was available, such a person could only be held at a police lock-up or Goulburn gaol. Sometimes orders were made that the prisoner, usually if on short remand, be held in a local lock-up rather than transported to Goulburn gaol.

86. In the case of prisoners serving more than a few days imprisonment, it would usually be expected that they would be removed to the NSW prison system rather than detained in a police lock-up, though that might be ordered by the committing or sentencing court. If the Sheriff or other authorised person executing an order of a Judge or Magistrate was uncertain as to the terms of the order or the scope of authority thereby conferred or if the anticipated disposition of the person cannot conveniently be made, the Judge or Magistrate in question might be requested to clarify or supplement his or her order.

87. Of course, the custodian, whether in or out of the Territory, will have certain powers over a prisoner once that person is committed to his or her custody. For example, s54 Prisons Act enables some, though limited, alteration in the nature of the custody of a prisoner.

88. It follows that, where a warrant has issued committing a person to the custody of a named official, in this case the Superintendent BRC, then that custody can be varied, subject to powers vested otherwise in the Superintendent under the RC Act, only by a further warrant which, if not currently authorised by "an order", would need to be so authorised. That power should, if the doctrine of the separation of powers is to be observed, be subject to other order by the committing Court where that person is held, not as a sentenced prisoner, but as a person awaiting trial or sentence.

89. In the present case, each of these applicants was remanded by warrant into the custody of the Superintendent. If the Superintendent found himself unable to continue responsibly to detain the persons committed to his custody, it was proper for him, or the Administrator on his advice, to seek, by another order, the effective transfer of those persons to the custody of another person, being a person able to accept the custody of prisoners.

90. It seems to me that any other view would have serious adverse consequences for the administration of justice and the independence of the judiciary.

91. If the transfer decision was to be that of the Administrator, or any other member of the Executive Government, whether a Minister or public official, then it would be inconsistent with the independence of the Court from the Executive, as that has now evolved, to empower the Administrator to command the Sheriff to issue a warrant to detain a person or to transfer the custody of that person to another custodian.

92. If the transfer decision was to be that of the Sheriff at the request of the Administrator and/or the Superintendent, then the development of the role of the Sheriff since Magna Carta would have been reversed. It is no longer any part of the role of the Sheriff to exercise judicial or administrative power or to act in aid of the Executive. The Sheriff's role is to execute judicial judgments and orders and otherwise to act in furtherance of and to facilitate the exercise of the powers of the Judiciary.

93. Further, even if the decision was to be that of any of the officers referred to above, it is at least arguable that it was a decision made under an enactment attracting review under the Administrative Decisions (Judicial Review) Act 1989.

94. It seems to me entirely inappropriate for the Sheriff to be obliged to receive submissions from detainees protesting about the Administrator's desire to transfer them, either for reasons personal to them or for reasons of general application.

95. I consider it more appropriate that, if the BRC can accommodate no more prisoners, that those empowered to commit prisoners thereto, or proposing their committal thereto, be so advised. Then the committing court, magistrate or other authority has the opportunity to determine whether alternative custody or bail is more appropriate.

96. If a situation emerges whereby the Superintendent considers it inappropriate to continue to be the custodian of a prisoner, whether due to unforeseen circumstances, misbehaviour of a detainee or detainees or otherwise, it seems to me that the Superintendent or the Administrator should request an order alternative to the original order made by the committing Court or Magistrate. Of course, that does not affect the power for the removal of detainees from BRC pursuant to the express powers of the Superintendent (see, for example, s14) or of the Minister (see s28) or to a temporary remand centre (see s5).

97. For the foregoing reasons, I determined on 16 September 1996, that the warrants issued by the Sheriff at the request of the Administrator were issued without authority and should be set aside. I so ordered with costs in each matter.