Attorney-General for the Act v Heiss

[2001] FCA 1894

FEDERAL COURT OF AUSTRALIA

Attorney-General for the ACT v Heiss [2001] FCA 1894

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

A 72 OF 2001

LINDGREN J
21 DECEMBER 2001
SYDNEY (VIA VIDEO-LINK WITH CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 72 OF 2001

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY APPELLANT
AND:	DANIEL LOTHAR HEISS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	21 DECEMBER 2001
WHERE MADE:	SYDNEY (VIA VIDEO-LINK WITH CANBERRA)

THE COURT ORDERS THAT:

1.The order of the Supreme Court of the Australian Capital Territory made 18 December 2001, 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 Prisoners (Interstate Transfer) Act1993 (ACT), be stayed until further order.

2.The question of costs be reserved.

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	A 72 OF 2001

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY

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

JUDGE:	LINDGREN J
DATE:	21 DECEMBER 2001
PLACE:	SYDNEY (VIA VIDEO-LINK WITH CANBERRA)

REASONS FOR JUDGMENT

1. On 18 December 2001 in the Supreme Court of the Australian Capital Territory, Miles CJ made the following orders in proceeding SC 718 of 2000 in which the present respondent (“Mr Heiss”) was applicant and the present appellant (“the ACT Minister”) was the respondent:

   “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.”

2. In this proceeding, the ACT Minister appeals from those orders. He moves urgently by a notice of motion filed on 20 December 2001 for an order staying order 2 set out above until further order (par (1) of the notice of motion) and an order that the costs of the motion be reserved (par (2) of the notice of motion) (par (1) of the notice of motion states “set aside” instead of “stayed”, but this is an obvious slip or error).

3. It is necessary that I say something of the background facts, although I need refer to them only briefly.

4. Mr Heiss is imprisoned in the Northern Territory (“NT”).  He is serving a sentence of life imprisonment following his conviction for murder in the Supreme Court of the Northern Territory on 22 December 1990.

5. The proceeding before Miles CJ concerned the system of reciprocal legislation in Australia providing for the transfer of prisoners between States and Territories.  In general terms, it is possible for the Minister for Correctional Services of the Northern Territory (“the NT Minister”) to request, under Northern Territory legislation which corresponds to the Prisoners (Interstate Transfer) Act 1993 (ACT) (“the Act”), the ACT Minister to consent to the transfer of a prisoner from the NT to the Australian Capital Territory (“ACT”). The procedure is initiated by a written request made by the prisoner in the NT to the NT Minister who then requests the ACT Minister to consent to the transfer. The ground on which the NT Minister is to request a transfer is that the NT Minister is of the opinion that the prisoner should be transferred in the interests of the prisoner’s welfare. Under s 9 of the Act, the ACT Minister must give the NT Minister a written notice of consent or refuse to consent to the transfer.

6. Mr Heiss requested that he be transferred from the NT to the ACT. Apparently, Mr Heiss’s family resides in the ACT. The NT Minister requested the ACT Minister to consent to the transfer of Mr Heiss. The ACT Minister refused to consent. In general terms, the following were the three grounds given for his decision:

   ·that there was no prison in the ACT;

   ·that the ACT Government would have no control over Mr Heiss since he would have to be accommodated in a prison in New South Wales; and

   ·that there would be cost to the ACT Government in the acceptance of a transfer of Mr Heiss.

7. Mr Heiss applied to the ACT Supreme Court under s 5(1)(e) of the Administrative Decisions (Judicial Review) Act 1989 (ACT) for review of the decision of the ACT Minister refusing consent. In general terms, Miles CJ held that the considerations taken into account by the ACT Minister were not relevant ones. It will be submitted on the appeal that the grounds on which the ACT Minister is entitled to refuse consent are not limited by reference to the grounds on which a prisoner is entitled to request a transfer.

8. It is correct, as Mr Corr who appears on the present application for Mr Heiss, submits, that there is no affidavit evidence as to the prospects of success of the appeal but I think an arguable point is raised. It is also correct, as Mr Corr submits, that as a general rule a successful litigant at first instance is entitled to the benefit of the decision in his favour. Mr Walker, who appears for the ACT Minister, submits that if the ACT Minister were to obey the existing order by giving written consent to the transfer, it would not be possible for that position to be undone if the ACT Minister’s appeal were to succeed. In contrast, Mr Corr submits that it would be possible for it to be undone.

9. I do not need to decide this question finally because, even on the assumption that it would be possible for the prisoner to be transferred back to the NT, I think a stay should be granted. It seems to me that the expense and inconvenience of a transfer of the prisoner from the NT to the ACT for what may be, say, three months, in order that he should have the benefit of proximity to members of his family during that relatively short period is a significant consideration. I have asked counsel for the ACT Minister whether his client would undertake to prosecute the appeal if expedition were able to be granted and he has volunteered that undertaking on behalf of the ACT Minister.

10. The next Full Court sittings will take place in February. Although it may not be possible for the appeal to be accommodated in those sittings, I will recommend that the hearing be given expedition with a view to its taking place shortly after the February sittings before a specially convened Full Court. Ultimately, however, the question of the degree of expedition that can be granted will be a matter for the Judge in charge of the listing of appeals. I note also that counsel for the ACT Minister has indicated that, so far as his client is concerned, he would be content for the appeal to be heard elsewhere than in Canberra if that course resulted in an earlier hearing.

11. The Court makes orders in terms of pars (1) and (2) of the notice of motion, with the word “stayed” in place of the words “set aside” in order 1. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             7 January 2002

Counsel for the Applicant:	Mr P A Walker
Solicitors for the Applicant:	Australian Capital Territory Government Solicitor
Counsel for the Respondent:	Mr G C Corr
Solicitors for the Respondent:	Saunders and Company
Date of Hearing:	21 December 2001
Date of Judgment:	21 December 2001