Attorney-General for the Australian Capital Territory v Heiss [2002] FCAFC 38; [2002] FCA 187 (8 March 2002)

Last Updated: 6 May 2002

Attorney-General for the Australian Capital Territory v Heiss [2002] FCAFC 38

Attorney-General for the Australian Capital Territory v Heiss [2002] FCA 187

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)

The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Attorney-General for the Australian Capital Territory v Heiss [2002] FCA 187

CRIMINAL LAW - transfer of prisoners - Prisoners (Interstate Transfer) Act 1993 (ACT) - Minister's discretion to consent to or refuse transfer - relevant and irrelevant considerations - whether Minister misconstrued power.

Transfer of Prisoners Act 1983 (Cth)

Prisoners (Interstate Transfer) Act 1993 (ACT)

Removal of Prisoners Act 1968 (ACT)

Administrative Decisions (Judicial Review) Act 1989 (ACT)

Prisoners (Interstate Transfer) Act (NT)

Prisoners (Interstate Transfer) Act 1982 (NSW)

Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 referred to

ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY v DANIEL LOTHAR HEISS

A72 of 2001

HIGGINS, FINN & WEINBERG JJ

CANBERRA

8 MARCH 2002

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A72 OF 2001

On appeal from the Supreme Court of the Australian Capital Territory

BETWEEN:	ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY APPELLANT
AND:	DANIEL LOTHAR HEISS RESPONDENT
JUDGE:	HIGGINS, FINN, WEINBERG JJ
DATE OF ORDER:	8 MARCH 2002
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The appeal be allowed in part.

2. Order 2 of the Orders of Miles CJ in the Supreme Court of the Australian Capital Territory dated 18 December 2001 be set aside.

3. The matter be referred to the Attorney-General for redetermination according to law.

4. There be no order as to the costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A72 OF 2001

On appeal from the Supreme Court of the Australian Capital Territory

BETWEEN:	ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY APPELLANT
AND:	DANIEL LOTHAR HEISS RESPONDENT

JUDGE:	HIGGINS, FINN, WEINBERG JJ
DATE:	8 MARCH 2002
PLACE:	CANBERRA

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from the judgment of the Chief Justice of the Supreme Court of the Australian Capital Territory setting aside a decision of the appellant, the Attorney-General for the Australian Capital Territory, and ordering that the Attorney-General exercise a discretion given to him by the Prisoners (Interstate Transfer) Act 1993 (ACT) s 9 in a particular way. The application to his Honour was made under provisions of the Administrative Decisions (Judicial Review) Act 1989 (ACT) ("the ADJR Act").

2 The circumstances giving rise to the appeal can be stated shortly. In the early 1980s the Standing Committee of Attorneys-General agreed to the introduction of a legislative scheme to permit the transfer of prisoners between the various Australian jurisdictions both for welfare purposes or for trial. State and Commonwealth legislation was passed to that end. The relevant Commonwealth Act which was the operative Act in respective of transfers to and from the Australian Capital Territory until 1993, was the Transfer of Prisoners Act 1983. In 1993 the Australian Capital Territory passed the Prisoners (Interstate Transfer) Act 1993. This Act mirrored complementary legislation in the participating States and the Northern Territory. The Northern Territory's Prisoners (Interstate Transfer) Act is in terms which correspond to those of the ACT legislation. In October 1997 the ACT recognised the Northern Territory as a participating "State" in accordance with the provisions of s 5(1) of the ACT Act.

3 The transfer scheme is such that a prisoner in one of the participating States or Territories can apply to the Minister of that State or Territory requesting a transfer to another participating State or Territory in which he or she will serve out the balance of his or her sentence. If the Minister is of the opinion that the transfer is in the interests of the prisoner's welfare, the Minister is then required to give to the corresponding Minister of the participating State in question a written request asking that Minister to accept the transfer of the prisoner. When the written notice of consent to the transfer has been given, the Minister who made the request is given a discretion to order the prisoner's transfer. The terms of the ACT's legislation insofar as presently relevant are set out below.

4 The respondent, Daniel Lothar Heiss, was convicted of murder and other associated charges in the Supreme Court of the Northern Territory at Darwin on 22 December 1990. He was sentenced on 31 January 1991 to life imprisonment to commence on 5 August 1989. He has been in custody since that date and is currently serving his sentence in the Alice Springs Gaol.

5 Beginning in 1998, Mr Heiss made enquiries of the Northern Territory Minister for Correctional Services for transfer to the ACT on welfare grounds. Being satisfied that it was in Mr Heiss' welfare interests to be so transferred the Minister wrote to the then Attorney-General for the Australian Capital Territory in April of 2000 asking the Attorney-General to accept Mr Heiss' transfer. On 9 June 2000 the Attorney-General replied to this request. Insofar as presently relevant the letter provided:

"Thank you for your letter of 18 April 2000 requesting my consent to the transfer of Daniel Luther [sic] 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.

Yours sincerely

Gary Humphries MLA

Attorney General"

The Attorney also communicated this decision to Mr Heiss. It is this decision that was the subject of the ADJR application in this matter.

6 A statement of reasons for the decision was subsequently communicated to Mr Heiss' solicitors on 23 November 2000. Insofar as presently relevant those reasons stated:

" 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."

7 Prior to the receipt of those reasons on 24 November 2000 an application for an order of review was made.

8 Before turning to his Honour's decision it is appropriate, first, to set out the provisions of the legislative scheme under which requests for, and consents to, transfers can be given.

The Statutory Setting

9 As there is no relevant difference between the legislation of the two territories it is sufficient to refer simply to the provisions of the ACT Act. Section 3(1) of the Act contains the following definition:

"ACT prisoner means a person on whom an ACT sentence of imprisonment has been imposed, but does not include a person on whom a Commonwealth sentence of imprisonment has been imposed."

Section 4 provides:

"In this Act, a reference to a sentence of imprisonment being served in the ACT includes a reference to a sentence of imprisonment being served in New South Wales under the Removal of Prisoners Act 1968, section 4."

Section 6 insofar as presently relevant provides:

"(1) Where the Minister -

(a) receives a written request made by an ACT prisoner serving a sentence of imprisonment in the Territory for the prisoner's transfer to a participating State, or to a non-participating Territory; and

(b) is of the opinion that the prisoner should be transferred to that State or Territory in the interests of his or her welfare;

the Minister shall -

(c) where the request is for transfer to a participating State - give to the corresponding Minister a written request asking that Minister to accept the transfer of the prisoner to the participating State; or ...

(2) Where the Minister -

(a) has, in respect of a request made by an ACT prisoner for transfer to a participating State -

(i) given to the corresponding Minister a written request under subsection (1)(c); and

(ii) received from that Minister written notice of consent to the transfer of the prisoner to the participating State; or

...

the Minister may issue an order for the transfer of the prisoner to the participating State, or to the non-participating Territory, as the case may be."

Section 9 provides:

"Where the Minister receives a written request made under the provision of an interstate law that corresponds to section 6, or a request made for, the Commonwealth Act, part 2, for the acceptance of the transfer of an imprisoned person to the ACT, the Minister shall -

(a) consent, or refuse to consent, to the transfer; and

(b) give to the corresponding Minister of the relevant participating State, or to the Attorney-General of the Commonwealth, as the case requires, written notice of that consent or refusal."

Finally s 26 insofar as presently relevant provides:

"This section applies where -

(a) an interstate sentence of imprisonment is imposed, ..., on a person by a court of a participating State; and

(b) that person is brought into the ACT in accordance with an order under an interstate law of that State for the person's transfer to the ACT.

(2) ...

(a) the sentence referred to in subsection (1)(a) is deemed to have been lawfully imposed on the person by a corresponding court of the Territory; and

...

(c) subject to this Act, the laws of the Territory apply as if such a sentence, direction or order were a lawful sentence, direction or order of the corresponding court of the Territory."

The Trial Judge's Decision

10 His Honour dealt individually with the three reasons given in the Attorney-General's reasons. He characterised the Attorney's reference to there being no prison in the Territory as not being a relevant factor for the Minister to take into account in considering a request for transfer on welfare grounds. He took the view that the participation of the Australian Capital Territory in the scheme was 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. The scheme was not dependent upon the ACT establishing a prison for persons to serve terms of imprisonment within its borders. His Honour concluded that if the Minister thought he might refuse the request for a transfer so long as there was an absence of such a prison that would be an error of law. He characterised the Minister's decision as encompassing a general policy that no interstate transfer would be accepted until there was such a prison. He seems to have assumed that that policy would be applied inexorably regardless of any consideration of the welfare of the prisoner. The Minister had committed a reviewable error on that ground alone.

11 Likewise his Honour considered there was no basis in the legislation for the ACT Minister to refuse a transfer on the ground that the ACT Government had no control over persons serving sentences outside the territory in accordance with the law of the Territory. The Minister's decision was found to be reviewable on this ground.

12 Thirdly, in relation to cost, his Honour observed that there was no provision in the legislation for any Minister to refuse an interstate prisoner on the ground of cost. His Honour thought the scheme assumed that the overall cost of imprisonment in Australia was not significantly increased by the implementation of the scheme and whatever extra cost was involved was to be shared by the various states and territories in the interests of the welfare of prisoners.

13 His Honour characterised the Act as being directed at the welfare of prisoners. Having concluded that irrelevant considerations had been taken into account, he set aside the Minister's decision of 9 June 2000 and proceeded to order that consent be given to the request of the Northern Territory Minister that Mr Heiss be transferred to the ACT and that written notice of that consent be given to the Northern Territory Minister pursuant to s 9 of the ACT Act.

The Present Appeal

14 The appellant's submissions put shortly are that in respect of each of the matters found to constitute irrelevant considerations, his Honour erred. It equally is said that there was no evidence upon which it could be found that the Minister had adopted a general policy that transfers would not be accepted until such time as the ACT had its own prison. Finally the appellant contends that his Honour erred by directing that the relevant consent be given as opposed to remitting the matter back to the Attorney-General for redetermination according to law.

15 The essence of the appellant's submissions insofar as they relate to the finding that irrelevant considerations were taken into account is that his Honour misconceived the nature of the discretion given the Minister by s 9 of the Act. It is contended that that discretion is extremely wide. First, simply from the fact that the scheme has been so structured that a prisoner can have no right or expectation that he or she will be able to be transferred, it is suggested that the architects of the interstate scheme intended a considerable latitude be conferred upon the Minister of the jurisdiction to which a transfer is sought when considering whether to assume the burdens and responsibilities associated with a transfer. Likewise it is contended that the fact that the scheme is an interstate one is indicative of it permitting relevant Ministers to take account of the wide range of circumstances which might confront them within their several states and territories. These matters would extend to the very types of matters upon which the Attorney relied in this case. The view that the discretion conferred is a wide one is consistent with the Presentation Speech for the bill for the then Territory's legislation. In describing the giving of a consent to a transfer, the Attorney-General observed that when it was the ACT that was seeking a consent that consent "may be affected by considerations relating to prison capacity and the nature of offences for which a prisoner is serving a sentence". It is contended, further that the Attorney's consideration both of the absence of a prison and of the absence of control over the prisoner were he to be in NSW, were in fact part of the consideration of welfare matters and therefore validly considered. Given the expected duration of the sentence with the prisoner necessarily being in NSW, it is likewise contended that it would be irresponsible for the Minister not to consider the costs consequences of consenting to the transfer. Finally it is said that the case was not one in which in the circumstances it was proper for his Honour to direct that a consent be given. It was not a case in which there was only one conclusion which could be reached consistently with the court's determination of the law. It was likewise not a case in which it could be assumed that there was no residual function for the Minister.

16 Enlarging on these contentions in oral submissions counsel for the Attorney-General invited us to construe the Minister's statement of reasons as not containing a refusal simply because there was no prison in the ACT, but rather as indicating that because there was no prison, the other reasons advanced came into play as justifying the refusal. In other words the three reasons enumerated had to be considered conjunctively.

17 The respondent in supporting the findings of his Honour submits that the language of s 9 does not give rise to any broad interpretation and that the context and intention of the legislation are referable to the welfare of the prisoner seeking to be transferred and that any discretion is to be bounded by considerations of welfare. Such considerations were absent from the Attorney-General's reasons. Otherwise the respondent contended for the correctness of his Honour's reasons, conclusions and orders.

Conclusion

18 It is well accepted in this country that the grounds of review, variously, of failing to take into account a relevant consideration, or of taking into account an irrelevant consideration, can only be made out where the decision maker was bound to take the omitted consideration into account or forbidden to consider the included consideration: see Aronson & Dyer Judicial Review of Administrative Action, 220 ff (Second Edition, 2000). Whether or not a decision maker is so bound or forbidden is a question to be answered by construing the relevant legislation: see Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39-40. For the purposes of this appeal, it is appropriate to emphasise what Mason J said in Peko-Wallsend of the irrelevant considerations ground of review (at 40):

"In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard."

19 It is well recognised that that process of statutory construction is by no means always an easy one, particularly where, as in the case of s 9 of the Prisoners (Interstate Transfer) Act 1993, no explicit reference is made to the considerations which the Minister must or must not take account. It was doubtless for this reason that both parties drew attention to the provenance of the ACT's legislation and the extent to which it was designed to secure the welfare of the prisoner who makes a transfer request.

20 In looking at the legislation it is helpful to have regard to the antecedents of the present Territory legislation. As both parties acknowledge the scheme admitting of transfers of prisoners resulted from an agreement by the Standing Committee of Attorneys-General. The purpose of that scheme as described in the Second Reading Speech on the Transfer of Prisoners' Bill 1983 (Cth) was "to permit the transfer of prisoners between the various Australian jurisdictions for welfare purposes or trial": Hansard, House of Representatives 19 October 1983, 1897. That part of the scheme concerned with transfers for welfare purposes was, as stated for example by the New South Wales Attorney General on the second reading speech of that State's legislation, a measure that would, in some cases and on "humanitarian grounds", allow prisoners to serve their sentences "nearer to where they may have family, social or other ties": Hansard, Legislative Assembly, 14 September 1982, 709 (NSW).

21 The original scheme envisaged complementary legislation by the Commonwealth (in relation to what were defined as "Commonwealth prisoners"), the States and the Northern Territory. Prior to the enactment of the Territory Act in 1993 persons in the ACT upon whom a sentence had been passed by an ACT court were treated as Commonwealth prisoners under the Commonwealth Act and the transfer of such prisoners was a matter for the Commonwealth Attorney-General. The terms of the Commonwealth legislation insofar as presently relevant are set out in s 6. It provides:

"6(1) Subject to this section, upon application made in writing to the Attorney-General by a Commonwealth prisoner serving a federal, Territory or State sentence of imprisonment in a prison of a State or Territory, the Attorney-General may, in his discretion, make an order in writing for the transfer of the prisoner from that State or Territory to another State or Territory.

(2) An application made by a Commonwealth prisoner under subsection (1) shall set out such matters with respect to the welfare of the prisoner as the prisoner considers relevant.

(3) In exercising his powers under subsection (1) to make an order for the transfer of a prisoner, the Attorney-General shall have regard to all matters that he considers relevant, including, but without limiting the generality of the foregoing:

(a) the administration of justice; and

(b) the welfare of the prisoner.

(4) The Attorney-General shall not make an order under sub-section (1) for the transfer of a prisoner to a State unless the appropriate Minister of that State has consented in writing to the transfer."

22 The matter we would emphasise in passing about this provision is the unrestrained scope of the considerations of which the Attorney-General could take account, a matter emphasised again in the Second Reading Speech on the Bill for this Act, see Hansard above, 1897.

23 State legislation at the time took a somewhat different form. The Prisoners (Interstate Transfer) Act 1982 (NSW) s 7, for example, in dealing with the request by a prisoner for transfer was for present purposes in a form identical to that contained in s 6 of the ACT Act. The opinion that the Minister was required to form was whether or not the prisoner should be transferred to another State or Territory in the interests of his or her welfare. Insofar as the consent requirement of the relevant Minister or Attorney-General of the State or Territory to which the transfer is sought was concerned, the NSW legislation like its Commonwealth counterpart merely indicated such a consent was required before the transfer was made. It did not specify in any way considerations that qualified or channelled the discretion of that Minister or Attorney-General. Likewise, once a consent had been received, the Minister was authorised to order a transfer but again the legislation did not circumscribe his or her discretion in express terms.

24 When the ACT legislation was enacted in 1993 the Presentation Speech to which we have referred made plain that as a result of self-government the Territory Government had responsibility for its criminal justice system and it was appropriate for the ACT to have its own legislation to regulate the transfer of prisoners. The Attorney-General described the legislation as permitting not only an ACT prisoner to make a request to be transferred interstate for welfare reasons but also allowed a prisoner of another state to request to be transferred to the ACT. The Explanatory Memorandum contained a statement to like effect.

25 Turning to the terms of the territory statute itself, it cannot properly be contended that the legislation is premised upon there being a prison in the ACT. It may be possible on a literal reading of s 6(1) in isolation to suggest that a reference to "transfer to a participating State or ... Territory" refers to a transfer to a prison within that State or Territory. But that construction is unavailable when account is taken of the legislation as a whole. It clearly contemplates that in respect of an ACT prisoner seeking transfer to a State or Territory, or of a prisoner in another State or Territory seeking a transfer to the ACT, the prisoner in the first case may be a prisoner who has been serving his or her sentence in NSW under the Removal of Prisoners Act 1968 s 4: see Prisoners (Interstate Transfer) Act, s 4; or may become such a prisoner by virtue of the operation of s 26 of the Prisoners (Interstate Transfer) Act and s 4(1) of the Removal of Prisoners Act 1968. In other words the Territory legislation merely continued this characteristic of the scheme which had existed under the Commonwealth legislation. This construction of the statute is consistent with the apparent purpose of the transfer scheme and with the view expressed by the ACT Attorney-General in his Presentation Speech. While countenancing transfers to or from the ACT, the Act does not presuppose that there is a prison in the Territory. Rather it allows a prisoner who wishes to be transferred to the ACT to be treated, if transferred, as an "ACT prisoner": cf s 3(1) "ACT prisoner"; see also s 26 of the Act.

26 In his reasons the Attorney-General stated that as it did not have a prison, the ACT was not able to fully participate in the transfer scheme for which the 1993 statute was enacted. He went on to indicate that when a prison was established in the ACT, Mr Heiss' application would be reconsidered.

27 On a fair reading of the statement of reasons, this particular reason encapsulated the primary reason for refusing the request, the other two reasons being properly characterised as additional and subsidiary. The primary reason conditions the power to grant a transfer request on there being a prison in the ACT. Absent such a prison, the ACT cannot put its own legislation into effect insofar as it relates to transfers to the ACT.

28 In our view, the Attorney has clearly misconstrued the power entrusted to him and hence the responsibility it imposed on him when requested by the Northern Territory's Minister to consent to Mr Heiss' transfer. Contrary to his view, the ACT did "fully participate in the transfer scheme" and being such a participant he was obliged to consider the request made notwithstanding that the ACT was without a prison.

29 We do not consider the refusal can be saved by the additional reasons given for it. The first reason can properly be said in its context to stand alone as the reason for the refusal. The remaining reasons, as we have said, are additional and subsidiary ones.

30 His Honour was correct in setting aside the decision, for the reasons we have given. For reasons given below, the matter must be remitted to the Attorney-General for reconsideration. In these circumstances it is necessary to consider the other grounds upon which his Honour found the Attorney-General's decision to be reviewable.

31 The second reason for decision given by the Attorney-General was that the ACT lacked control over the management of prisoners in New South Wales. The third reason related to costs to the ACT. His Honour was of the view that there was no basis in the legislation for refusing a transfer on either ground. In light of his Honour's later reference to irrelevant factors being taken into account, we consider that he regarded these reasons as involving irrelevant considerations. We do not consider, and it has not been contended, that he engaged impermissibly in merits review.

32 The discretion conferred by s 9(1) of the Act is not confined in express terms. It is, as we indicated earlier, a matter of implication from the subject-matter, scope and purpose of the Act whether the discretion given was one which obliged the Attorney-General to take a particular consideration (or considerations) into account and whether it precluded him from taking another or other considerations into account.

33 We are prepared for present purposes to assume that s 9(1) required the Attorney-General to take into account the prisoner's welfare as an element in his decision-making. Given the purpose of this form of transfer, that intent could properly be ascribed to the Legislature. We would, though, go on to say that the prisoner's welfare is not the only consideration the Attorney is entitled to take into account and that the weight to be attributed to that consideration is, within limits, a matter for him: Minister for Aboriginal Affairs v Peko-Wallsend Ltd, at 41.

34 Textual considerations suggest that, if the legislature intended that the Attorney's discretion was to be limited to what in his opinion was in the interests of the prisoner's welfare, it would have done so explicitly - the more so as the discretion so limited would then reflect the opinion to be entertained by the requesting Minister which is expressly limited: s 6(1)(b). Likewise, elsewhere in the Act where the Territory Minister is required to take a decision in the interests of the prisoner's welfare, this is indicated in express terms: s 21(1).

35 When one turns to the scheme itself in its federal setting, there is in our view a ready explanation for why the legislation has not expressly and does not impliedly limit the Attorney's consent discretion to considerations bearing on the prisoner's welfare. While the prisoner's welfare is itself a relevant consideration, there clearly is a significant number of matters of which, potentially, an Attorney-General might wish reasonably to take account in determining whether or not to accede to a transfer request. These could relate, variously, to the suitability of the prisoner to be brought to the ACT, the ACT's capacity or willingness to assume responsibility for the prisoner, the cost of maintaining the prisoner (eg if he or she required on-going and expensive medical care), the effect on the administration of justice in the Territory, etc. We can see nothing in the subject matter, scope and purpose of the Act that would impliedly exclude such factors from those to which the decision-maker could legitimately have regard. This view accords with that in the Presentation Speech for the 1993 ACT Bill where the then Attorney-General instanced "considerations relating to prison capacity and the nature of [the prisoner's] offences" as considerations that might affect the giving of a consent to a transfer.

36 We would add that indirect support for the view that it was not the purpose of the scheme to limit the relevant Ministers to consideration of the interests of a prisoner's welfare, can be drawn from the provisions of s 6 of the Commonwealth's Transfer of Prisoners Act 1983. That section, while requiring the Attorney-General to have regard (inter alia) to the welfare of the prisoner in deciding to make a transfer order, expressly preserves the right of the Attorney to "have regard to all matters that he considers relevant": s 6(3).

37 Accordingly we are unable to agree with his Honour's characterisation of the vice in the second and third reasons given by the Attorney-General. We do not consider that either is a matter that s 9(1) excludes by implication from consideration.

38 Accepting that the weight to be given to such matters is generally for the Attorney-General, we do not wish to be taken as suggesting that, because the two additional reasons given do not involve the taking into account of irrelevant considerations, they are for that reason immune from possible challenge on other grounds and, in particular, on grounds of unreasonableness or of improper purpose. We are not required to consider those grounds and refrain from so doing.

39 The final matter challenged in the appeal is the order made that the Attorney-General consent to the transfer of Mr Heiss. In light of our conclusions, and in particular on the scope of the s 9(1) discretion, this order cannot stand. The Attorney has not as yet considered the request as the Act requires he should. The matter should be remitted to him for redetermination according to law.

40 Accordingly the appeal will be allowed in part; Order 2 of the orders appealed against will be set aside; the matter will be referred to the Attorney-General for redetermination according to law; and there will be no order as to the costs of the appeal.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 5 March 2002

Counsel for the Appellant:	Mr P Walker
Solicitor for the Appellant:	ACT Government Solicitor
Counsel for the Respondent:	Mr G Corr
Solicitor for the Respondent:	Saunders & Company
Date of Hearing:	14 February 2002
Date of Judgment:	8 March 2002