Brauer v Queensland Corrective Services Commission

R 477, Sholl J mentioned the following facts at 483:- "While Molinari was still at Pentridge under sentence, the Minister for Immigration on 18th January, 1961, signed an order, expressed to be made under s.13 of the Migration Act 1958, for his deportation. ... When the time for Molinari's release approached, he was, on 10th April, 1961, informed of the order. When his sentence expired in June, by reason of the usual remissions, he was retained in custody by the governor of the gaol, the respondent Souter, pending deportation." When the Administrative Appeals Tribunal commenced to review deportation decisions, many of the cases concerned deportation orders which had been made after the offender's release from prison. Such cases will be found in the first 2 volumes of the Administrative Law Decisions. Later, because reformed offenders tended to settle back into the community, take employment, marry and so on, it became the practice to make deportation orders shortly before the offender's release. More recently, the practice seems to have been to make the order in time to allow the review processes to be completed before an offender's release, but not to enforce the order until the offender has been released from prison. Consistently with this approach, the present policy, which is set out in Migrant Series Instruction No 79 issued 26 August 1994, provides inter alia:- "1.2 There is no intention of removing a person while that person is subject to a sentence imposed by a court. The changes that have been outlined above (and which are the subject of separate MSIs) have resulted in procedures being developed to serve the interests of the community - in having sentences served as properly determined by a court - and also taking account of the interests of inmates of gaols - in having the opportunity to benefit from various rehabilitative programs offered by institutions which they might otherwise be barred from as a result of their liability for enforced departure. 1.3 The policy objective is to ensure that liability for enforced departure should, wherever possible, not affect decisions concerning work release, rehabilitation or reclassification of prisoners. These decisions should rest solely in the hands of prison authorities. This is consistent with long-standing DIEA policy not to encroach upon the role of corrective service agencies to decide the terms and conditions of a prisoner's sentence. ..." The terms of this instruction fail to appreciate that an offender is subject to the sentence of the court until the sentence finally expires. But the significant point is that the instruction reflects Ministerial policy that deportation should not be effected until the offender has been released from prison. The reason for this practice has had much to do, I think, with the maintenance of proper Commonwealth/State relations. Most criminals have been held in State prisons as a result of the commission of State crimes. Even prisoners convicted under Federal laws have been held in State prisons. It has been thought that the deportation powers contained in the Migration Act 1958 (Cth) should not be exercised so as to override, by reason of s.109 of the Constitution, sentences of imprisonment being served under orders of State courts. None of the above matters is vital in itself but it is helpful to appreciate the context in which s.254 of the Migration Act, which was enacted in 1989 and to which I shall shortly turn, was passed. The applicant, Archibald Beattie McCafferty, has been held in a State prison pursuant to life sentences for murder which were imposed upon him by the Supreme Court of New South Wales on 26 April 1974. On 15 October 1991, the Supreme Court imposed a minimum term to date from 30 August 1973. Under those sentences Mr McCafferty became eligible on 29 August 1993 to be considered for parole. On 10 April 1991, the Minister for Immigration & Ethnic Affairs ordered that Mr McCafferty be deported. In the New South Wales system, it is usual that a prisoner who has been sentenced for a serious crime will, before being granted parole, be offered the opportunity of proving his or her ability to reenter the community by short term leave from prison under the provisions of s.29 of the Prisons Act 1952 (NSW) which provides inter alia:- "29. (1) Any prisoner may, by order of the Commissioner, be taken temporarily from any prison to any place in the State or be permitted to be absent temporarily from any prison, on such conditions as may be prescribed and such conditions as may be specified in the order, for any purpose in aid of the administration of justice, or for the purpose of: (a) attending the funeral or obsequies of any near relative; (b) visiting a near relative suffering serious illness or disability;