Heiss v Attorney General for the Australian Capital Territory [2001] ACTSC 124 (18 December 2001)

Last Updated: 4 May 2002

Daniel Lothar Heiss v Attorney General for the Australian Capital Territory

[2001] ACTSC 124 (18 December 2001)

CATCHWORDS

PRISONERS - Australia-wide legislative scheme for the transfer of prisoners among States and Territories for the welfare of prisoners - prisoner serving life sentence in Northern Territory - family in Canberra - request under scheme by Northern Territory Minister for transfer to Australian Capital Territory - refusal by ACT Minister - grounds for refusal - no prison in the ACT, no control by ACT over ACT prisoners in New South Wales prisons, cost - whether grounds relevant to decision to refuse transfer.

ADMINISTRATIVE LAW - Administrative Decisions (Judicial Review) Act 1989 - decision to refuse transfer of prisoner from Northern Territory under Prisoners (Interstate Transfer) Act 1993 - whether irrelevant grounds taken into account - whether failure to take relevant ground (welfare of prisoner) into account.

Administrative Decisions (Judicial Review) Act 1989, ss 5(1), 5(2)

Prisoners (Interstate Transfer) Act 1993, s 9

Transfer of Prisoners Act 1983 (Cth),

Removal of Prisoners Act 1968

Prisoners (Interstate Transfer) Act 1983 (NT)

Constitution, ss 117, 118, 120

R v Turnbull; Ex parte Taylor (1968) 123 CLR 23

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985 - 1986) [1986] HCA 40; 162 CLR 24

John Pfeiffer Pty Limited v Rogerson [2000] HCA 36, (2000) 74 ALJR 1109, (2000) 172 ALR 625

Brisbane South Regional Health Austhority v Taylor [1996] HCA 25; (1996) 186 CLR 541

No. SC 718 of 2000

Judge: Miles CJ

Supreme Court of the ACT

Date: 18 December 2001

IN THE SUPREME COURT OF THE )

) No. SC 718 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DANIEL LOTHAR HEISS

Applicant

AND: ATTORNEY GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY

Respondent

ORDER

Judge: Miles CJ

Date: 18 December 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The decision of the Attorney-General of the Australian Capital Territory dated 9 June 2000 be set aside.

2. Consent be given to the request of the Minister for Corrective Services of the Northern Territory dated 18 April 2000 that the applicant be transferred to the Australian Capital Territory and that written notice of that consent be given to the said Minister pursuant to s 9 of the Prisoners (Interstate Transfer) Act 1993.

1. This is an application under s 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1989 (the ADJR Act) for review of a decision of the Minister made pursuant to the Prisoners (Interstate Transfer) Act 1993 (the ACT Transfer Act).

2. The applicant is a prisoner serving a sentence of life imprisonment in the Northern Territory following his conviction for murder in the Supreme Court of the Northern Territory on 22 December 1990.

3. The decision in question is that of the Attorney-General of the Australian Capital Territory, Mr Gary Humphries MLA (the ACT Minister), expressed in a letter to the Minister for Corrective Services of the Northern Territory (the Northern Territory Minister) dated 9 June 2000 in the following terms:

"Thank you for your letter of 18 April 2000 requesting my consent to the transfer of Daniel Luther Heiss on welfare grounds to the Australian Capital Territory under the Prisoners (Interstate Transfer) Act. I am aware of the statutory obligation upon yourself to forward me Mr Heiss' application and thank you for the documentation you have provided.

As you are aware the ACT does not currently contain a facility for convicted prisoners. The ACT Government, however, is committed to constructing a prison and recently announced a preferred site for the facility.

In accordance with advice provided to Mr Heiss and members of his family, I am prepared to sympathetically consider his request to transfer to the new ACT prison if:

* the new prison is designed to accommodate prisoners of Daniel's classification; and

* Mr Heiss' conduct record remains good in the interim between now and the prison's commissioning.

I have written to Mr Heiss to inform him of my decision."

4. The decision was expressed in similar terms in a letter to the applicant on the same date.

5. It may be noted that at the time of the decision the Attorney-General was the Minister responsible for matters concerning prisons and prisoners.

6. In response to a request from the applicant's solicitor, Ms Saunders, the ACT Minister furnished reasons for the decision in a letter dated 2 August 2000. After stating that the applicant was not entitled to a statement of the reasons, the letter continued:

"However, I can advise you that I took a number of factors into consideration when considering the above mentioned request for an interstate transfer. Potential benefits to Daniel Heiss and his family had to be weighed against other factors.

The primary reason Mr Heiss' application was declined at this stage is that the ACT currently does not have within its borders a custodial facility for sentenced prisoners. The national scheme for the transfer of prisoners between jurisdictions for welfare reasons assumes that the receiving jurisdiction has an appropriate facility to hold the transferred prisoner.

As you will note from my letter sent to Daniel Heiss dated 9 June 2000, I have given him an undertaking to sympathetically reconsider his request for transfer once the ACT builds a prison. This is something which the ACT Government is currently preparing to do."

7. On 23 November 2000 the ACT Minister again wrote to Ms Saunders as follows:

"Please find attached the statement of reasons, as requested, regarding my decision not to grant Daniel Heiss an interstate transfer from the Northern Territory into the Australian Capital Territory at this stage.

As you will see, I took a number of relevant factors into consideration when considering the above mentioned request for an interstate transfer. The potential benefits to Daniel Heiss and his family had to be weighed against other factors."

8. The reasons attached to the letter of 23 November 2000 were as follows:

"Reasons for Refusal

Applications by the above-named prisoner to transfer to the ACT under the provisions of the above-named Act have been refused for the reasons set out below.

The ACT's lack of a prison

The prisoner's request to transfer to the ACT cannot be granted as there is not a facility in the ACT to which he can be transferred. The ACT does not operate any facility for the imprisonment of sentenced offenders. Pursuant to the Removal of Prisoners Act 1968 all persons sentenced to imprisonment in the ACT are transferred to the custody of the NSW Department of Corrective Services and are held in the NSW prison system.

As the ACT does not presently have a prison, the ACT is not able to fully participate in the transfer scheme for which the Prisoners (Interstate Transfer) Act 1993 was enacted.

The ACT is presently considering the establishment of a prison. When a prison is established in the ACT the Territory will reconsider the prisoner's application.

The ACT's lack of control over the management of prisoners in NSW

If the ACT was to accept the prisoner without having a prison, and the prisoner was sent to NSW, the ACT would simply be accepting the costs of the prisoner's imprisonment without being able to guarantee that such a move was within the prisoner's welfare interests. The ACT is not able to exercise a duty of care once prisoners are accepted into the custody of NSW authorities and therefore cannot influence the type of education or other programs that prisoners receive. Further, while the ACT has an agreement with NSW that prisoners will be placed as close to the ACT as possible, the ACT is not able to guarantee where a prisoner is placed.

Cost to the ACT

The cost to the ACT of such a transfer would not be insubstantial. The estimated cost incurred by the ACT for the maintenance of Mr Heiss in the NSW system, at the time of Mr Heiss' transfer application, was estimated to be in the vicinity of between $925,344 and $1,587,514, based on Mr Heiss serving another 10 to 15 years in the maximum security section of a receiving NSW correctional institution. The cost projections these figures are based on is attached."

9. The attachment showed the following:

"ACT PRISONERS COSTS PROJECTIONS:

Estimated @ 5% per annum increase

Max p.a.

1998/99 $182.82 $66,729

1999/00 $191.96 $70,066

1 2000/01 $201.56 $73,569

2 2001/02 $211.64 $77,248

3 2002/03 $222.22 $81,110

4 2003/04 $233.33 $85,165

5 2004/05 $245.00 $89,424

6 2005/06 $257.25 $93,895

7 2006/07 $270.11 $98,590

8 2007/08 $283.61 $103,519

9 2008/09 $297.79 $108,695

10 2009/10 $312.68 $114,130

10 year cost 2000/01 - 2009/10: $925,344

11 2010/11 $328.32 $119,836

12 2011/12 $344.73 $125,828

13 2012/13 $361.97 $132,119

14 2013/14 $380.07 $138,725

15 2014/15 $399.07 $145,662

________

15 year cost 2000/01 - 2014/15: $1,587,514"

10. On 16 April 2001 Mr Moore MLA, Minister for Health, Housing and Community Services who had become the responsible Minister, wrote to Ms Saunders confirming the ACT Minister's decision not to grant the applicant an interstate transfer to the ACT "at this stage".

GROUNDS FOR REVIEW OF DECISION

11. The grounds for review of the decision are as follows:

"(1) The Respondent took irrelevant considerations into account in the making of the decision.

(2) The Respondent did not take relevant considerations into account in the making of the decision.

(3) The Respondent exercised his discretion in accordance with policy and without regard to the merits of the particular case."

Any one of these grounds would render the decision amenable to judicial review, ADJR Act, ss 5(1)(e), 5(2)(a),(b) and (f). In the present case the three grounds overlap each other. They demand a knowledge of the background to the decision.

AUSTRALIAN SCHEME FOR TRANSFER OF PRISONERS AMONGST STATES AND TERRITORIES

12. The Australian States and mainland Territories are parties to a nationwide legislative scheme which authorises the transfer of prisoners amongst jurisdictions in the interests of the welfare of those prisoners. This scheme is to be distinguished from statute based arrangements amongst States and Territories for the temporary transfer of prisoners for the purpose of legal proceedings (as under Part III of the ACT Transfer Act) and from provisions to like effect in the Transfer of Prisoners Act 1983 (Cth), and also, in the case of the Australian Capital Territory, for the removal of prisoners from the Territory into New South Wales for the purpose of serving sentences imposed by courts of the Territory and by the Federal Court (see Removal of Prisoners Act 1968). The implications of s 120 of the Constitution which obliges States to receive prisoners accused or convicted of offences against laws of the Commonwealth in accordance with Commonwealth legislation was not addressed in the present case: see R v Turnbull; Ex parte Taylor (1968) 123 CLR 23.

13. This scheme is implemented by complementary legislation amongst "the participating states". The Prisoners (Interstate Transfer) Act 1983 of the Northern Territory (the NT Transfer Act) is recognised in this Territory pursuant to s 5(1) of the ACT Transfer Act and relevant gazettal on 30 October 1997.

FACTS

14. The applicant was born on 29 May 1965. He stood trial together with a co-accused, Peter Michael Kamm, in the Supreme Court of the Northern Territory at Darwin on a charge of murder and other associated charges. He was found guilty on 22 December 1990. On the conviction for murder, he was sentenced by Nader J on 31 January 1991 to life imprisonment to commence on 5 August 1989. On each of the other three charges he was sentenced to various finite sentences. The applicant has been in custody ever since. The sentences for the offences other than murder have expired, the last on 22 December 1998. He continues to serve the life sentence for murder. In the early years it appears that he was serving his sentences in the Darwin Correctional Centre. He escaped from that institution on one occasion. He escaped on another occasion whilst an in-patient at the Royal Darwin Hospital. Since 27 November 1996 he has been confined to the Alice Springs Gaol, apparently in maximum security, and has not come under adverse notice.

15. The applicant applied under the interstate scheme on several occasions to be transferred to New South Wales on welfare grounds, among which is the wish to be near his family who reside in Canberra. Those applications have been rejected. According to a memorandum to the ACT Minister from Mr James Ryan, Director, ACT Corrective Services, dated 22 May 1998, the NSW authorities rejected the application on the ground that it was not in the applicant's "best interests" since in that State a life sentence "would mean for the term of his life and in order to receive a determinate sentence he would need to apply to the NSW Supreme Court".

16. On 11 December 1997, the applicant applied under the NT Transfer Act for a transfer to the Australian Capital Territory in order to serve the balance of his life sentence. On 23 December 1997, a prison welfare officer recommended to the Northern Territory authorities that a transfer to the ACT Correctional Services would be in the interests of the applicant's welfare, having regard to the distance between the Alice Springs Gaol and the family of the applicant in Canberra and having regard also to his wish to enrol for a degree in fine arts to pursue his developing skills as a painter.

17. A previous request received by the ACT Minister from the Northern Territory Minister for transfer of the applicant to the Australian Capital Territory on welfare grounds was refused by letter dated 28 May 1998. No reasons were given for that refusal. On 19 January 2000, the applicant made application to the Northern Territory Minister for a transfer to the Australian Capital Territory. On 18 April 2000, the Northern Territory Minister wrote to the ACT Minister in the following terms:

"Northern Territory prisoner Daniel Heiss has again applied to me for a transfer to the Australian Capital Territory on welfare grounds under the Prisoners (Interstate Transfer) Act. The application and all supporting documents are enclosed.

After consideration of the application, I am of the opinion that the transfer is in the interests of the welfare of prisoner Heiss.

I am aware of prior correspondence from yourself that you would give consideration to a renewed application if an ACT prisoner serving a similar term requested a transfer to the Northern Territory or in the event that the ACT has its own correctional facility for convicted prisoners.

Pursuant to section 5 of the Act, which poses a statutory obligation upon myself, I forward the application for transfer for your consideration."

18. The supporting documents mentioned in the letter of 18 April 2000 included a report from the superintendent, Alice Springs Correctional Centre, a report of a Northern Territory Welfare Officer, a statement of the applicant, letters from the applicant's parents, sister and prospective employers and other persons. All documents supported the proposition that the welfare of the applicant would be promoted by his transfer to the ACT.

19. On 9 June 2000, the ACT Minister wrote to the Northern Territory Minister in the terms set out above at [3].

20. It is submitted generally on behalf of the applicant that the interstate scheme is intended primarily for the welfare of prisoners and that none of the reasons advanced by the ACT Minister takes that consideration into account. I deal with each in turn.

GROUNDS FOR REVIEW: NO PRISON IN THE ACT

21. The fact, which is well known, that there is no prison in the Territory for persons to serve terms of imprisonment to which they have been sentenced is, in my view, not a relevant factor for the ACT Minister to take into account in considering a request for transfer on welfare grounds from an interstate Minister. The Minister's attitude, ultimately reflected in the decision under challenge, appears to have been based on the belief expressed in the letter of 2 August 2000 that the national scheme assumes that the receiving jurisdiction has an appropriate facility to hold the prisoner. However even if true it does not follow from that assumption that the scheme also assumes that there is a prison within the borders of the Australian Capital Territory. It may be arguable that the scheme assumes where there is a prison in the receiving jurisdiction the Minister of that jurisdiction may refuse the transfer of the prisoner if, having regard to the prisoner's welfare, the prison is unsuitable, but that is not the case here.

22. There is no evidence that the participation by the Australian Capital Territory in the scheme, and the acceptance by the States and the Northern Territory of the Australian Capital Territory as a participant, was based on an assumption that a prisoner transferred to the Australian Capital Territory pursuant to the scheme would serve the remainder, or any part, of the balance of the sentence within the borders of the Territory. The participation of the Australian Capital Territory scheme is rationally explicable only upon a shared knowledge of all participants that persons sentenced to imprisonment by a court in the Australian Capital Territory serve their sentences outside the Territory, and notably at the present time, in New South Wales. An interstate Minister requesting a transfer of a prisoner to the Australian Capital Territory pursuant to the scheme would do so in the knowledge that the prisoner would serve the ensuing part of the sentence according to the law of the Territory and that, so long as there continued to be an absence within the Territory of a prison for a prisoner serving a sentence of imprisonment, a prisoner subject to such request would, if the request were granted by the ACT Minister, according to the law of the Australian Capital Territory, serve the balance of the sentence in New South Wales. The interstate scheme is not dependent upon the Australian Capital Territory establishing a prison for persons to serve terms of imprisonment within its borders. There is nothing in the legislation which entitles an interstate Minister to decline to request or to defer requesting a transfer to the Australian Capital Territory until an appropriate prison is constructed within the Territory. If the ACT Minister thought he might refuse a request for a transfer so long as there was an absence of such a prison, that would be an error of law. In the present case the ACT Minister's decision encompasses a general policy that no interstate transfer will be accepted until there is a prison for sentenced prisoners within the Territory. Whilst that situation continues no request from an interstate Minister will be granted, regardless of any consideration of the welfare of the prisoner. The decision therefore, in my view, is reviewable on that ground alone.

GROUNDS FOR REVIEW: NO CONTROL BY AUSTRALIAN CAPITAL TERRITORY OF PRISONERS IN NEW SOUTH WALES PRISONS

23. Similarly, there is no basis in the legislation for the ACT Minister to refuse a transfer on the ground that the ACT Government has no control over persons serving sentences outside the Territory, notably in New South Wales, in accordance with the law of the Territory. If the ACT Minister thought that the welfare of the applicant would not be advanced by his serving the balance of his sentence within New South Wales, at any one time being in one of the several prisons within New South Wales to which prisoners sentenced by ACT courts are sent, then he has not said so. In any event, it is well known that the nearest prison in New South Wales to the Territory is at Goulburn, less than one hundred kilometres distance, about one hours drive by car and accessible several times a day by public transport. The welfare of the applicant would be no more and no less capable of promotion by his incarceration in Goulburn gaol than would the welfare of any other person sentenced to imprisonment by an ACT court. It is well known also that there is another prison at Junee and another at Berrima, as well as prisons within the metropolitan area of Sydney, all of which are as accessible to families and friends of prisoners sentenced by ACT courts as they are to residents of southern New South Wales who wish to visit prisoners in New South Wales prisons.

24. The ACT Minister's decision is, in my view, reviewable on this ground also.

GROUND FOR REVIEW: COST

25. There is no provision in the legislation for any Minister to refuse to accept an interstate prisoner on the ground of cost. As Mr Corr for the applicant put it, the scheme as a whole is presumably cost neutral. For the purposes of public revenue, and in particular the peace of mind of the Australian taxpayer, the scheme assumes that the overall cost of imprisonment in Australia is not significantly increased by the implementation of the scheme, and whatever extra cost is involved is to be shared by the various States and Territories in the interests of the welfare of prisoners. The relevance of the amounts set out in the attachment to the reasons for decision of 23 November 2000 is not immediately obvious nor is it apparent why the costs are projected over a period of 15 years into the future.

OUTCOME

26. It is well accepted, for the reasons referred to by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985 - 1986) [1986] HCA 40; 162 CLR 24, and other authorities, that the limited role of a court reviewing exercise in an administrative discretion must not be overlooked and that allowance should always be made for taking into account broader policy discretions particularly when the decision is made by a Minister.

27. However, in the present matter I can see nothing, either by taking a narrow view based on the legislation itself or the broader view of the policy which the legislation and the scheme as a whole necessarily seek to effect, to convince me that the Court should refrain from exercising the proper supervisory role conferred on it by the ADJR Act. The Act is directed at the welfare of prisoners. The Minister, in my view, has taken irrelevant factors into account. Contrast the decisions that were made in New South Wales that it was not in the "best interests" of the applicant to be transferred to that State, for reasons which may not apply to a prisoner sent from the Australian Capital Territory to serve a sentence in a New South Wales prison. Further, as far as the supervisory role of the Court is concerned the present matter is close to the heart of the administration of justice and the liberty of the person. It should always be remembered that the administration of justice does not stop at the prison gate.

28. There are several other matters which were touched on during the course of argument on which I do not think it necessary to deliver a considered view. However, I should acknowledge their potential importance. As the High Court judgment in John Pfeiffer Pty Limited v Rogerson [2000] HCA 36, (2000) 74 ALJR 1109, (2000) 172 ALR 625 emphasised, the importance of s  118 of the Constitution should not be overlooked, although it often is, in so far as the section requires full faith and credit to be given throughout the Commonwealth to the laws of every State. The ACT Minister in the present matter may have overlooked the importance of giving effect to the decision of his Northern Territory counterpart under the NT Transfer Act. Furthermore, the applicant is a resident of the Northern Territory and the decision of the ACT Minister not to approve his transfer is arguably a matter which has the effect of resulting in a disability or discrimination which would not be equally applicable to him if he were resident in the Australian Capital Territory and would deny to the applicant his constitutional right under s 117 of the Constitution. Lastly, there is the matter that the Minister, according to the correspondence, appears to have approached the making of his decision on the basis that it involved "weighing up" the matters affecting the welfare of the prisoner against the matters which the Minister thought went towards justifying refusing approval to the transfer. It is arguable that this "weighing up" process is as a matter of law contrary to the legislation, as was submitted on the applicant's behalf: see Brisbane South Regional Health Austhority v Taylor [1996] HCA 25; (1996) 186 CLR 541. It is not necessary for me to make a decision in relation to any of these matters.

29. Other difficulties about implementing any transfer were mentioned in passing at the hearing. For instance, it appears that if he stayed in the Northern Territory the applicant might have to serve at least 20 years in prison before he is eligible for release on licence or on parole. It appears that if he were transferred direct to New South Wales pursuant to a request that he be transferred to that State, he might have to serve the sentence for the term of his natural life without early release on licence or otherwise. It is far from clear what the position is in relation to release on licence if he is transferred to the Australian Capital Territory and then goes to serve the term in New South Wales. However, these difficulties are part and parcel of the scheme. The Minister does not appear to have taken any of them into account and has not relied upon any of them as a ground for refusing the transfer. The Court's role is not to offer advice as to how best to implement the transfer.

30. The ACT Minister's decision dated 9 June 2000 is set aside and it is ordered that consent be given to the request of the Northern Territory Minister dated 18 April 2000 that the applicant be transferred to the Australian Capital Territory and that written notice of that consent be given to the said Minister pursuant to s 9 of the ACT Transfer Act.

31. Unless the parties wish to be heard I order that the respondent pay the applicant's costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles

Associate:

Date: 18 December 2001

Counsel for the applicant: Mr G Corr

Solicitor for the applicant: Saunders and Company

Counsel for the respondent: Mr P A Walker

Solicitor for the respondent: ACT Government Solicitor

Date of hearing: 22 November 2001

Date of judgment: 18 December 2001