Page 3127 - Week 10 - Wednesday, 15 September 1993
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just been put before us will deal with it. I do not know; I have not had time to read it. Certainly, as far as the Bill as presented is concerned, the power to release such prisoners depends on the Commonwealth Governor-General consenting to such a course of action. Presumably in these circumstances in respect of an ACT prisoner, that is, a person who has offended against an ACT law and has been sentenced in an ACT court, the Government would apply for the release of that prisoner and would make an application to the relevant Commonwealth Minister, the Attorney-General, and he or she would in turn recommend to the Governor-General that this particular course of action be adopted or otherwise.
We have a problem here, I think, due to the fact that we do not have any viceregal representative in the ACT; we have nobody to exercise those powers. I take it that the Government intends to confer on the ACT Executive the full powers of State Governors or Administrators at some point in the future, to overcome this problem. It might even consider appointing an Administrator for the Territory, but I have my doubts.
Mr Cornwell: Another ALP job for the boys.
MR HUMPHRIES: It could be. I think there is a danger, Madam Speaker, in dispensing with the capacity of a body or a person such as an Administrator to be involved in this process. Let me illustrate that. If you create in the Executive the power to exercise this royal prerogative of mercy, then, effectively, you are politicising the process to some extent. Politicians could be expected to be lobbied about whether particular individual prisoners - - -
Mr Connolly: But they are now.
MR HUMPHRIES: They are, but they do not make the final decision.
Mr Connolly: The Executive Council does.
MR HUMPHRIES: No, they do not make the final decision. There is a final step from which they can take a step back. There is a process whereby you can say legitimately that there is another person involved who cannot be lobbied and whose role is slightly different from that of the politicians who serve a political interest. It is a person who serves a community interest, an interest beyond that of a politician. I think that other States have preserved their capacity to have that role conducted by the Administrator or the Governor, as the case might be, because they see value in that, and I think we would find value in such a process in the ACT as well.
Subclause 31(1) deals with the interesting situation of a citizen being able to apprehend a person who is escaping from lawful custody. When I read that clause I wondered whether there was a general power, a common law power, for a citizen of the ACT to apprehend a person escaping from custody. Of course, an invidious situation would arise if it were to be the case that there was not such a general power. A person who might see, for example, someone knock over a policeman and run from a paddy-wagon would have to ask themselves, if they were familiar with the law - the Attorney-General, for example - "Is this a prisoner escaping pursuant to some provision of the Prisoners (Interstate Transfer) Act or is it a prisoner escaping pursuant to some process of incarceration involving some other Act?". He would be undecided as to whether to run after the prisoner and tackle him or whether to lay off.
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