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- 3 May 2005
Prisoners (Interstate Transfer) Amendment Bill
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Page: 15460
Second Reading
Debate resumed from 23 March 2005.
Mr ANDREW HUMPHERSON (Davidson) [9.03 p.m.]: The object of this bill is to amend the Prisoners (Interstate Transfer) Act to broaden the range of matters to which the Minister may have regard when considering a request by a prisoner to be transferred to or from another State or Territory. At present the national co-operative legislative scheme permits the transfer of prisoners between participating jurisdictions for the purposes of standing trial or for welfare purposes. A transfer for welfare purposes may be made at the request of the prisoner concerned.
The current Act allows the Minister to consider welfare transfers only in a relatively narrow and unclarified manner. The bill increases the Minister's discretion to consider matters such as the prisoner's safety and the safety of the community in general. The bill provides that, when considering a request by a prisoner to be transferred to or from another State or Territory, the Minister may have regard to any of the following matters: first, the welfare of the prisoner; second, the administration of justice in New South Wales or any other State; third, the security and good order of any prison in New South Wales or any other State; fourth, the safe custody of the prisoner; fifth, the protection of the community in New South Wales or any other State; and, sixth, any other matter the Minister considers relevant.
When forming an opinion or exercising any discretion the Minister should consider any reports of parole and prison authorities of New South Wales or any participating State. There are arguments in favour of these proposals. They provide more flexibility and they enable prisoners to make applications. They might also improve opportunities for inmates and their families to develop and foster relationships. The arguments against these proposals are that they potentially provide the Minister with excessive discretion. The bill appears to be consistent with rehabilitation objectives and the Opposition does not oppose it.
Ms NOREEN HAY (Wollongong) [9.05 p.m.]: I support the Prisoners (Interstate Transfer) Amendment Bill, which amends the provisions covering transfers for welfare purposes. A national co-operative legislative scheme permits the transfer of prisoners between participating Australian jurisdictions for trial and welfare purposes. Applications for transfers for welfare purposes involve a decision by the Minister in the State or Territory from which the prisoner wants to transfer, as well as a decision by the Minister in the State or Territory to which the prisoner wants to transfer.
The impetus to consider amendments to the provisions that cover the welfare transfers came from the Federal Court decision in Heiss. In Attorney General for the Australian Capital Territory v Heiss—a 2002 Federal Court of Australia decision—the court considered the scope of the discretion exercised by the Minister in the receiving jurisdiction in relation to welfare transfers. In brief, Heiss concerned a decision by the Attorney General of the Australian Capital Territory, who at that time was the Minister responsible for prisons and prisoners, to refuse a transfer for welfare purposes. The Full Court found that the Minister's discretion was:
not confined in express terms ... [and it] is a matter of implication from the subject-matter, scope and the purpose of the Act whether discretion given was one which obliged the ACT Attorney-General to take a particular consideration (or considerations) into account and whether it precluded him from taking another or other considerations into account (at paragraph 32).
The Full Court also found that section 91 of the Australian Capital Territory Prisoners (Interstate Transfer) Act 1993 required the Attorney General to take the prisoner's welfare into account, but the Full Court went on to state that this was not the only consideration and that the weight to be given to that consideration was, within limits, a matter for him. It cited the case of the Minister for Aboriginal Affairs v Peko-Wallsend Ltd 1986 162 Commonwealth Law Reports 24 at page 41. This bill clearly states the range of factors to which the Minister may have regard when considering a request by a prisoner to be transferred to or from another State or Territory.
The Federal Court decision in Heiss related to the Minister in the Australian Capital Territory. However, it is relevant to New South Wales because of the fact that the scheme permitting the transfer of prisoners is a national co-operative scheme. On 29 June 2004 the Ministerial Council on the Administration of Justice met at the Corrective Services Ministers conference in Hobart, Tasmania. On that day the Corrective Services Ministers conference agreed to request the Standing Committee of Attorneys-General to progress an amendment to the uniform interstate prisoner transfer legislation in relation to the transfer of prisoners in the interests of welfare.
The national Parliamentary Counsel's committee was subsequently instructed to draft a model bill—the Prisoners (Interstate Transfer) Amendment Bill 2004, which is now the 2005 bill. The model bill took the form of an Act of New South Wales, so other States may need to make minor amendments to take into account local circumstances. Between 4 and 5 November 2004 the Standing Committee of Attorneys-General met in Queenstown, New Zealand, and on 5 November 2004 it approved the model bill for amendments to the national scheme for the transfer of prisoners for welfare purposes between Australian jurisdictions. I commend the Government for being the first jurisdiction to enact this important legislation. Once again New South Wales is leading the way. I commend the bill to the House.
Ms VIRGINIA JUDGE (Strathfield) [9.09 p.m.]: I support the Prisoners (Interstate Transfer) Amendment Bill. The honourable member for Wollongong spoke eloquently about many aspects of the bill, which is concerned primarily with provisions governing the transfer of prisoners for welfare purposes. The bill forms part of a national co-operative legislative scheme that permits the transfer of prisoners between participating Australian jurisdictions for trial and welfare purposes. A number of specific cases were mentioned during the debate. I believe that the bill goes a long way towards ensuring that the transfer of prisoners is conducted humanely and that it will fulfil its stated aims. The Standing Committee on Attorneys-General approved the model bill to amend the national transfer scheme and, once again, the great State of New South Wales—the premier State—is leading the way. I commend the bill to the House.
Mr DAVID CAMPBELL (Keira—Minister for Regional Development, Minister for the Illawarra, and Minister for Small Business) [9.11 p.m.], in reply: I thank all honourable members who contributed to the debate on the Prisoners (Interstate Transfer) Amendment Bill. The Prisoners (Interstate Transfer) Act 1982 forms part of a scheme of complementary legislation across Australia dealing with the interstate transfer of inmates. As the honourable member for Lismore said, it is part of a strong and detailed approach to this issue. The scheme permits the transfer of prisoners between participating Australian jurisdictions for trial and welfare purposes. A recent Federal Court of Australia case highlighted the need to clarify the current provisions with respect to welfare transfers.
The purpose of the Prisoners (Interstate Transfer) Amendment Bill is to amend the Prisoners (Interstate Transfer) Act 1982 to broaden the scope of the matters that Ministers may have regard to in relation to the welfare transfers of prisoners under the national co-operative legislative scheme. The model bill received the approval of the Standing Committee of Attorneys-General and the State and Territory Corrective Services Ministers. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
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