Ivana Bacik (Independent)

I also wanted to take issue, particularly with the proposed section 9(2). I have no problem with the general principle that a Minister may direct that a person be released because that is a function of the Executive. Returning to Ms Justice Laffoy's judgment, she said there is no rational basis for treating people differently if they are imprisoned for non-payment of a debt or facing a criminal charge, and in either situation it is the Executive's function to direct that they be released. There is a point about the need for remission for a person who is imprisoned for non-payment of a debt, but that is a separate issue.

My concern is the subsection Senator Regan has commented on. It is most improper and must be unconstitutional to provide that the Minister may consult with the judge who made the order for imprisonment of the person before releasing a person. We have been given these amendments and are speaking on the hoof, and I have not looked again at the two obvious cases that spring to mind.

One is the Gallagher case in which it was held to be an executive function to direct the release of a person who was detained in the Central Mental Hospital on foot of a special verdict of not guilty by reason of insanity. For a time it had been thought it was a judicial function to direct when a person could be released from that detention but the Gallagher case established that it was an executive function, a matter for the director of the Central Mental Hospital, and ultimately the Minister, to decide whether a person could be released from that detention following the special verdict.

I am also thinking of the Finn case some years ago in which the Supreme Court said review dates were in breach of the constitutional doctrine of separation of powers. Judges had been in the practice of providing for a sentence of seven years but a review date of three years and the person would be brought back to them after three years and could then be released by the judge. Again, the Supreme Court said once the judge has pronounced sentence, it is then a matter for the Executive to decide upon the release date of the person. That allows for the operation of remission and so forth.

We are not talking about imprisonment on foot of a criminal conviction here, but the Gallagher case did not concern criminal conviction but was detention on foot of a special verdict of an acquittal, albeit an acquittal and a finding that the person was insane. Here there is a real danger in inserting in legislation a provision that a Minister can consult with the judge who made the order for imprisonment before releasing a person. It seems to trespass on the judicial function even if we are not in the context of criminal convictions. I still do not see how it can be constitutional, nor do I see any practical necessity for it because section 9(1) provides that the Minister can "for any reason which appears to him or her sufficient, direct that the person be released". The matter is obviously within the Minister's discretion more properly.