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Legislative Assembly for the ACT: 1996 Week 14 Hansard (10 December) . . Page.. 4584 ..

MR HUMPHRIES (continuing):

It seems to me that the only adequate basis for dealing with those problems is to consider the New South Wales system. The remand centre at Goulburn is the appropriate alternative in circumstances where we find ourselves unable to adequately and humanely accommodate people in the centre at Belconnen. The question that arises from that is: In what circumstances should a person be transferred from the ACT into the New South Wales system? I should make it clear to members of this place that those decisions about what is best for the total inmate population of the Remand Centre and what is best for particular inmates who are proposed for transfer are issues that I believe very firmly ought to be in the hands of the administrator of the ACT correctional system. I do not believe it is a process in which politicians should get involved. I do not believe it is a process in which the courts ought to be involved either. I remind the Assembly that there is no system elsewhere in Australia where the courts have a role in determining the movement of prisoners between centres, except on an administrative review basis, that is, when a decision is made with mala fides or something of that kind.

What is in the best interests of the system as a whole and who should move to cater for that need are decisions made by those who administer the system, and I propose the same in this case. The complication for the ACT is that our movement of prisoners is across the border between the ACT and New South Wales. I would suggest to members that it is appropriate that we nonetheless provide for some discretion to those who administer our system, to the administrator of the system in particular, to exercise that judgment in appropriate circumstances. I indicate that in that sense I intend to accept Ms Follett's amendment to the effect that that power not be delegated below the administrator in the case of interstate transfers.

Mr Speaker, how we deal with those things is very difficult. This legislation has arisen from a view taken by the Supreme Court that because the legislation was unclear on the subject of who decided on this issue it had an inherent jurisdiction to make a decision about whether particular prisoners might be transferred to New South Wales. I do not comment on the law as applied by His Honour in that case, but I think that, if there is an omission from the legislation that makes it unclear whether there is a power for the system to make decisions in that area, this legislation should be carried today to make it clear that that omission is not intended and that there ought to be a power to make a decision about those things.

Ms Tucker said that she was concerned about appeal rights. I suggest to her that it is very difficult to build in appeal rights against transfer between centres when those are decisions which customarily are made around this country by administrators of systems, not by judges and magistrates. In my view, there is a great danger in transferring those things into the hands of judges and magistrates. It is not done elsewhere, and it is a process that inevitably involves a great deal of cost and time.

The matter that was before Justice Higgins in the Supreme Court took a total of five days to resolve. If the system is overcrowded and there is an immediate problem because people have been sent by the courts into the Remand Centre, five days of appearances before the court and discussion and debate before a court, particularly the Supreme Court, are not an appropriate way of dealing with those problems. That fails to meet the objective of the legislation. I believe that prisoners have rights. There are processes to protect those rights, and I am quite happy to enhance those rights in an

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