Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 949 (14 July 2000)

Last Updated: 19 July 2000

FEDERAL COURT OF AUSTRALIA

Cabal v Secretary, Department of Justice (Victoria) [2000] FCA 949

EXTRADITION - person eligible for surrender - commitment to prison - confinement with convicted prisoners under conditions appropriate to regime of correction - no segregation of convicted prisoners from prisoners awaiting trial in State prison system - whether institution a "prison" for purposes of Extradition Act - plain meaning of "prison" - whether plain meaning altered by purpose of Act - construction of legislation so as not to place Australia in breach of international obligations - obligation to segregate convicted and unconvicted prisoners - Art 10 of the International Covenant on Civil and Political Rights - effect of ratification with reservation by Australia - limited operation of Extradition Act by extradition treaty with particular country - whether clause in particular treaty preserving multilateral obligations incorporates by reference provisions of Art 10 - whether affects meaning of Extradition Act - remedies - whether excluded by statutory review mechanism - functions of magistrate - nature of review - whether adequate remedy available.

PREROGATIVE WRITS - writ of habeas corpus - effect of orders consequent upon writ of habeas corpus where valid warrant continues to exist - whether court may quash part of a warrant.

PRACTICE & PROCEDURE - final order - whether Court should make interlocutory order pending outcome of another proceeding.

WORDS & PHRASES - "prison"

Extradition Act 1988 (Cth) ss 5, 11, 19, 21, 53

Federal Court of Australia Act 1976 (Cth) s 21 and s 23

Extradition Regulations (Cth) Sch

Extradition (United Mexican States) Regulations 1991 (Cth) reg 5 and Sch

Corrections Act 1986 (Vic) s 17 and s 47

Hobert and Stroud's Case (1630) Cro Car 209, 79 ER 784 discussed

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 applied

Zoeller v Federal Republic of Germany (1989) 23 FCR 282 considered

Republic of South Africa v Dutton (1997) 77 FCR 128 at 136 considered

Bennett v Government of the United Kingdom [2000] FCA 916 considered

OIC Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36; (1994) 68 ALJR 668 considered

R v Marshall; Ex parte Baranor Nominees Pty Ltd [1986] VR 19 considered

R v Secretary of State for Transport; Ex parte Greater London Council [1986] QB 556 considered

CARLOS CABAL PENICHE AND MARCO PASINI BERTRAN v THE SECRETARY OF THE DEPARTMENT OF JUSTICE (VICTORIA) AND LISA HANNAN M

V 420 OF 2000

GRAY J

14 JULY 2000

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 420 OF 2000

BETWEEN:	CARLOS CABAL PENICHE FIRST APPLICANT MARCO PASINI BERTRAN SECOND APPLICANT
AND:	THE SECRETARY OF THE DEPARTMENT OF JUSTICE (VICTORIA) FIRST RESPONDENT LISA HANNAN M SECOND RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	14 JULY 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicants pay the costs of the first respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 420 OF 2000

BETWEEN:	CARLOS CABAL PENICHE FIRST APPLICANT MARCO PASINI BERTRAN SECOND APPLICANT
AND:	THE SECRETARY OF THE DEPARTMENT OF JUSTICE (VICTORIA) FIRST RESPONDENT LISA HANNAN M SECOND RESPONDENT

JUDGE:	GRAY J
DATE:	14 JULY 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The applicants in this proceeding, Carlos Cabal Peniche (who uses the surname "Cabal") and Marco Pasini Bertran (who uses the surname "Pasini") are citizens of the United Mexican States ("Mexico"). Mexico seeks the extradition of Mr Cabal on eleven charges relating to alleged fraud, tax fraud and money laundering. Mexico also seeks the extradition of Mr Pasini on two counts of wilfully helping Mr Cabal to commit offences and one count of concealment.

2 The process of extradition is governed by the Extradition Act 1988 (Cth) ("the Extradition Act"). The crucial section is s 19, which I set out in full:

(1) Where:

(a) a person is on remand under section 15;

(b) the Attorney-General has given a notice under subsection 16(1) in relation to the person;

(c) an application is made to a magistrate by or on behalf of the

person or the extradition country concerned for proceedings to

be conducted in relation to the person under this section; and

(d) the magistrate considers that the person and the extradition

country have had reasonable time in which to prepare for the

conduct of such proceedings;

the magistrate shall conduct proceedings to determine whether the

person is eligible for surrender in relation to the extradition offence or

extradition offences for which surrender of the person is sought by the

extradition country.

(2) For the purposes of subsection (1), the person is only eligible for

surrender in relation to an extradition offence for which surrender of

the person is sought by the extradition country if:

(a) the supporting documents in relation to the offence have been

produced to the magistrate;

(b) where this Act applies in relation to the extradition country

subject to any limitations, conditions, exceptions or

qualifications that require the production to the magistrate of

any other documents - those documents have been produced to

the magistrate;

(c) the magistrate is satisfied that, if the conduct of the person

constituting the offence in relation to the extradition country,

or equivalent conduct, had taken place in the part of Australia

where the proceedings are being conducted and at the time at

which the extradition request in relation to the person was

received, that conduct or that equivalent conduct would have

constituted an extradition offence in relation to that part of

Australia; and

(d) the person does not satisfy the magistrate that there are

substantial grounds for believing that there is an extradition

objection in relation to the offence.

(3) In paragraph (2)(a), supporting documents, in relation to an

extradition offence, means:

(a) if the offence is an offence of which the person is accused - a

duly authenticated warrant issued by the extradition country

for the arrest of the person for the offence, or a duly

authenticated copy of such a warrant;

(b) if the offence is an offence of which the person has been

convicted - such duly authenticated documents as provide

evidence of:

(i) the conviction;

(ii) the sentence imposed or the intention to impose a

sentence; and

(iii) the extent to which a sentence imposed has not been

carried out; and

(c) in any case:

(i) a duly authenticated statement in writing setting out a

description of, and the penalty applicable in respect of,

the offence; and

(ii) a duly authenticated statement in writing setting out the

conduct constituting the offence.

(4) Where, in the proceedings:

(a) a document or documents containing a deficiency or

deficiencies of relevance to the proceedings is or are

produced; and

(b) the magistrate considers the deficiency or deficiencies

to be of a minor nature;

the magistrate shall adjourn the proceedings for such period as

the magistrate considers reasonable to allow the deficiency or

deficiencies to be remedied.

(5) In the proceedings, the person to whom the proceedings relate is

not entitled to adduce, and the magistrate is not entitled to receive,

evidence to contradict an allegation that the person has engaged in

conduct constituting an extradition offence for which the surrender

of the person is sought.

(6) Subject to subsection (5), any document that is duly authenticated is

admissible in the proceedings.

(7) A document that is sought by or on behalf of an extradition country to

be admitted in the proceedings is duly authenticated for the purposes

of this section if:

(a) it purports to be signed or certified by a judge, magistrate or

officer in or of the extradition country; and

(b) it purports to be authenticated by the oath or affirmation of a

witness or to be sealed with an official or public seal:

(i) in any case - of the extradition country or of a Minister,

Department of State or Department or officer of the

Government, of the extradition country; or

(ii) where the extradition country is a colony, territory or

protectorate - of the person administering the

Government of that country or of any person

administering a Department of the Government of that

country.

(7A) Subsection (7) has effect in spite of any limitation, condition, exception

or qualification under subsection 11(1), (1A) or (3).

(8) Nothing in subsection (6) prevents the proof of any matter or the

admission of any document in the proceedings in accordance with

any other law of the Commonwealth or any law of a State or Territory.

(9) Where, in the proceedings, the magistrate determines that the person

is eligible for surrender to the extradition country in relation to the

extradition offence or one or more of the extradition offences, the

magistrate shall:

(a) by warrant in the statutory form, order that the person be

committed to prison to await surrender under a surrender

warrant or temporary surrender warrant or release

pursuant to an order under subsection 22(5);

(b) inform the person that he or she may, within 15 days after

the day on which the order in the warrant is made, seek a

review of the order under subsection 21(1); and

(c) record in writing the extradition offence or extradition

offences in relation to which the magistrate has determined

that the person is eligible for surrender and make a copy of

the record available to the person and the Attorney-General.

(10) Where, in the proceedings, the magistrate determines that the person

is not, in relation to any extradition offence, eligible for surrender to

the extradition country seeking surrender, the magistrate shall:

(a) order that the person be released; and

(b) advise the Attorney-General in writing of the order and of the

magistrate's reasons for determining that the person is not

eligible for surrender.

3 The word "magistrate" is defined in s 5. For purposes relevant to this application, par (b) of the definition refers to s 46. Under that section, by executive arrangement between the Commonwealth and a State, persons holding office as magistrates of the State may be designated to perform the functions of magistrates under the Extradition Act.

4 The phrase "statutory form", used in s 19(9)(a) is also defined in s 5, to refer to the relevant form set out in the regulations. The Extradition Regulations (Cth), made pursuant to the Extradition Act, contain a statutory form of warrant, ordering that a person be committed to prison to await surrender or release. That form contains provision for the magistrate to designate the prison to which the person whose extradition is sought is to be committed.

5 The second respondent, Ms Lisa Hannan, holds the office of magistrate in the State of Victoria. She is a person in respect of whom an arrangement under s 46 of the Extradition Act exists. On 17 December 1999, Ms Hannan signed two warrants under s 19(9) of the Extradition Act in respect of Mr Cabal and one in respect of Mr Pasini. The first of the warrants relating to Mr Cabal referred to seven of the charges against him and the second to the remaining four. The warrant relating to Mr Pasini referred to the three charges against him. In each case, the warrant contained the following paragraph:

NOW THEREFORE I, Lisa Anne Hannan, Magistrate, a magistrate within the meaning of the Extradition Act 1988, under subsection 19(9) of that Act, hereby order you to commit CARLOS CABAL PENICHE to the Melbourne Assessment Prison or Port Phillip Prison to await, in relation to those offences, surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5) of that Act.

The warrant relating to Mr Pasini bore his name instead of the name of Mr Cabal.

6 Pursuant to these warrants, Mr Cabal and Mr Pasini have been and are presently held in Port Phillip Prison. They were arrested and placed in custody some months before the warrants were signed. Since August 1999, they have been held in a unit of the prison called Sirius East. I was informed by counsel for the applicants that Sirius East is designated for the holding of prisoners who are in need of protection from other prisoners, and that Mr Cabal and Mr Pasini have been placed there because they had been targeted for extortion in another part of the prison. They have made two applications to the Court seeking release on bail, both of which have been rejected. See the judgments of Goldberg J in Cabal v United Mexican States [2000] FCA 7, Cabal v United Mexican States (No 2) [2000] FCA 295 and Cabal v United Mexican States (No 5) [2000] FCA 525.

7 The applicants have sought the aid of the Court on several occasions because of the conditions in which they are forced to live in Sirius East. Each is held in a cell two metres by three with little natural light or air. Each cell has a shower, a toilet, a hand basin, a single bed and a small desk and chair. There is a common area which can be used by prisoners when the cells are open. Access to a yard eight metres by five, and to a small workroom where paid work can be performed, is also available. There is also optional employment in the stores section of the prison.

8 In Sirius East, each prisoner is locked in his cell from 7.30 pm until about 8.30 am every day. Within the common area outside the cells are recreational facilities, including a table tennis table, a pool table and some fixed weights equipment. Prisoners in Sirius East have access to a large exercise yard for approximately two hours a day. This area is also used by prisoners from other units, so its use is on a variable roster. All prisoners, including the applicants, are required to wear prison uniform, described as a "jumpsuit", in either green or pale blue, except when appearing before a court either in person or by videolink. Mr Cabal's wife has attempted to deliver clothing for him to wear, but her attempts have been rejected. He has been prevented from wearing his own shoes and shoes that had been lent to him by another inmate. All prisoners are restricted to food provided by the prison and are not allowed to arrange for their own meals, or for any food to be brought or sent to them by friends or relatives.

9 The applicants, in common with prisoners on remand, are entitled to five visits per week, each of an hour and a half on weekdays or an hour on weekends. They receive visitors in an open plan visitors' centre, where visitors sit with prisoners on stools arranged around low tables. The furniture is fixed to the floor. Prisoners are only permitted to embrace or kiss their wives at the beginning and end of each visit. Mr Cabal and Mr Pasini are compelled to receive their visitors (including Mr Cabal's four children, aged between sixteen and nine) in their prison uniforms.

10 Immediately after seeing a visitor, a prisoner is stripped and searched. The search includes all cavities. The strip search regime also applies in relation to visits from legal advisers, so that the applicants have had multiple strip searches on some days.

11 The telephone calls of all prisoners are monitored and taped by prison authorities and the tapes are retained. In order to make a telephone call, it is necessary to lodge a written request with prison authorities to be allowed to telephone a particular person at a particular number. The prison authorities telephone that person and ask whether he or she is prepared to accept telephone calls from the prisoner. If so, the prison telephone system is programmed with that number and the prisoner can make a telephone call to that person at that number by dialling on the prison telephone an identification number allocated to that prisoner. Ordinarily a prisoner is allowed to place ten telephone numbers on the system. It is not part of standard procedure to monitor or tape telephone calls to legal advisers, but Mr Cabal alleges that some of his telephone calls to his Mexican and Australian lawyers have been monitored and taped, as well as all of his personal calls. No telephone calls can be made while prisoners are locked in their cells.

12 Sirius East currently houses some twenty prisoners, including the applicants. Some information as to the identity of these prisoners, the offences of which they have been convicted, their health status and other relevant details was contained in an affidavit sworn by Mr Cabal. The information is sensitive because Sirius East holds prisoners who are placed there for their own protection. I therefore gave directions designed to prevent it becoming public without the respondent having an opportunity to be heard on that question. In summary form, the information reveals that the majority of the prisoners in Sirius East at the present time have been convicted of offences involving violence and are serving long sentences. Most of them have significant portions of their long sentences yet to serve, so do not have the hope or expectation of release in the near future. Many are said to suffer from one or more contagious, blood-borne diseases.

13 On 30 May 2000, Mr Pasini called out to the occupant of the cell next to his to lower the volume of the music he was playing. After the cells were opened, Mr Pasini and Mr Cabal were threatened by the occupant of that cell. The threat involved the production of a weapon with a narrow blade about twenty centimetres long. That prisoner was also found to have had another weapon in his cell and has been moved from Sirius East. The applicants fear for their personal safety in Sirius East.

14 The applicants contend that they are being held unlawfully in Sirius East and that they would be held unlawfully if they were to be imprisoned anywhere in Port Phillip Prison or the Melbourne Assessment Prison. The essence of their case is that they are imprisoned in the same manner as those who have been convicted of offences and are undergoing imprisonment for correctional purposes. The applicants point out that they have never been convicted of any offence. They say that the Extradition Act does not permit them to be held under a regime of correction, but only under a regime of detention.

15 Essentially, this argument is about the construction of the word "prison" in s 19(9)(a) of the Extradition Act. The word "prison" is defined in s 5 of the Extradition Act in the following terms:

prison includes a gaol, lock-up or other place of detention.

16 In its original form, the application named the first respondent, the Secretary of the Department of Justice (Victoria) as the only respondent. I was informed that the occupant of that office had been chosen as the respondent because, pursuant to s 17 of the Corrections Act 1986 (Vic), the Secretary of the Department of Justice has and may exercise all of the powers and functions of the governor of a prison, and an exercise by the Secretary of any power or function prevails over the exercise by the governor of that power or function in relation to the particular matter. The application in its original form sought orders in the nature of orders consequent upon a writ of habeas corpus, directing the release of the applicants from Port Phillip Prison, and a declaration that the Melbourne Assessment Prison is not a prison within the meaning of the Extradition Act. The jurisdiction of the Court pursuant to s 39B(1A) of the Judiciary Act 1903 (Cth), its accrued jurisdiction, and its pendent jurisdiction pursuant to s 32 of the Federal Court of Australia Act 1976 (Cth) were invoked. The range of orders that the Court may make in relation to matters within its jurisdiction pursuant to s 21 and s 23 of the Federal Court of Australia Act 1976 (Cth) was relied upon.

17 At a directions hearing on 20 June 2000, I raised the question of the adequacy of the parties. In particular, I was concerned that an order simply releasing the applicants from Port Phillip Prison might give rise to a state of doubt as to what could be done in relation to the custody of the applicants under s 19 of the Extradition Act, in that the warrants which had been issued would remain in force. I directed that the second respondent, Ms Hannan, the magistrate who signed the warrants, be added as a respondent.

18 The applicants also chose to amend the application before the proceeding came on for trial. Alternatively to a declaration that the Melbourne Assessment Prison is not a prison within the meaning of the Extradition Act, they now seek a declaration that the Melbourne Assessment Prison is not a prison to which a person can be committed under s 19(9) of the Extradition Act where the extradition country is Mexico.

19 Because the application raised serious issues of the liberty of the applicants, who are entitled to the protection of Australian law whilst in Australia, and serious issues of the manner in which they are being treated, it came on for trial as a matter of urgency on 23 June 2000. The second respondent did not file a notice of appearance and was not represented at the trial. By a facsimile message from the Deputy Chief Magistrate of the Magistrates' Court of Victoria, I was informed that the second respondent submitted to any order the Court might make. The Attorney-General for the Commonwealth intervened and made helpful submissions through counsel.

20 The applicants' argument, that neither the Melbourne Assessment Prison nor Port Phillip Prison is a "prison" for the purposes of s 19(9)(a) of the Extradition Act, was put in three ways. The first was an argument based on the terms of the Act. The words "or other place of detention" in the definition of "prison" in s 5 are said to indicate that the entire definition of the word "prison" is to be construed as relating only to places of detention and not to places of correction. In this respect, s 53 of the Extradition Act is relevant:

The laws of a State or Territory with respect to:

(a) the conditions of imprisonment of persons imprisoned in that State or

Territory to await trial for offences against the law of that State or

Territory;

(b) the treatment of such persons during imprisonment; and

(c) the transfer of such persons from prison to prison;

apply, so far as they are capable of application, in relation to persons who have been committed to prison in that State or Territory under this Act.

Counsel for the applicants contended that this provision shows the intention of parliament that persons committed to prison under the Extradition Act should not be treated as if they are convicted persons.

21 The difficulty with this argument is the breadth of the definition of the word "prison". Parliament has chosen to make the definition as broad as can be imagined. It has made the definition inclusive. That is to say, the word "prison" is used in its ordinary meaning and is broadened to the extent that the words "gaol", "lock-up" or "other place of detention" add to the meaning. The word "prison" is defined in the Macquarie Dictionary as meaning "a public building for the confinement or safe custody of criminals and others committed by law" or "a place of confinement or involuntary restraint". The word also has a common law meaning of great breadth, going back to Hobert and Stroud's Case (1630) Cro Car 209 at 210, 79 ER 784, where the Court of King's Bench expressed the view "that every place where any person is restrained of his liberty is a prison". In that case, two members of parliament had been committed to prison by the King's command. They were entertained by the prison keeper in his house, which was not considered to be part of the prison, but made use of a toilet which was. Having been in any part of the prison, they were considered to have escaped. The Macquarie Dictionary defines "gaol" as meaning a prison. The use of the word does not therefore appear to add anything to the ordinary meaning of the word "prison". The Macquarie Dictionary defines "detention" as "a keeping in custody; confinement". As the dictionary definition of "prison" encompasses both confinement and custody, the reference to "other place of detention" again does not appear to add significantly to the ordinary meaning of the word "prison". The conclusion to be drawn from the use of these synonyms is that the broadest meaning of the word "prison" was intended. That meaning clearly carries with it the notion of a place wherein there might be confinement without punishment, confinement with punishment, or both. The intention of s 53 of the Act is to ensure that, so far as practicable, those detained under the Extradition Act will not be treated as convicted criminals, but will be treated according to whatever regime exists in the particular State or Territory for persons held in prison awaiting trial.

22 It happens that, at the present time, both internal Territories and every State in Australia, except Victoria, have regimes under which separate facilities exist for the housing of prisoners awaiting trial and convicted prisoners respectively. In the past, and particularly at the time when the Extradition Act was passed, Victoria also had a regime of separation. It now does not. The Corrections Act 1986 (Vic) appears to make no distinction between convicted and unconvicted prisoners, with the exception that s 47(1)(e) gives to a prisoner not serving a sentence of imprisonment the right to wear suitable clothing owned by the prisoner. This right is apparently not being afforded to the applicants. The way in which the applicants are being treated in Port Phillip Prison is a matter of serious concern. It is not, however, inconsistent with the terms of the Extradition Act, when those terms are viewed without the assistance of any extrinsic material.

23 Even if s 15AA of the Acts Interpretation Act 1901 (Cth) is applied, it is difficult to see how the definition of "prison" in the Extradition Act can be read down. The purpose or object underlying the Extradition Act is plainly the implementation of various extradition treaties entered into by the Commonwealth of Australia with other countries. Consistent with those extradition treaties is the notion that persons detained for the purposes of extradition should be treated as humanely as possible, having regard to the need to prevent their escape. The parliament has sought to achieve this object by providing for commitment to prison, according to the same regime of treatment as that used for prisoners awaiting trial. There is no occasion for reading down the definition of "prison" to promote the underlying object or purpose.

24 The second argument on behalf of the applicants is that the definition of "prison" in the Extradition Act should be construed so as to be consistent with Australia's obligations under the International Covenant on Civil and Political Rights ("the ICCPR"). Counsel for the applicants submitted that such a construction would lead to the conclusion that neither Port Phillip Prison nor the Melbourne Assessment Prison is a "prison" for the purposes of

s 19(9) of the Extradition Act.

25 Article 10 of the ICCPR provides as follows:

1. All persons deprived of their liberty shall be treated with humanity and

with respect for the inherent dignity of the human person.

2. (a) Accused persons shall, save in exceptional circumstances, be

segregated from convicted persons and shall be subject to

separate treatment appropriate to their status as unconvicted

persons;

...

26 Australia is a signatory to the ICCPR and has ratified it, subject to certain reservations. One of those reservations is relevant to the present case. It is:

Article 10

... In relation to paragraph 2(a) the principle of segregation is accepted as an objective to be achieved progressively ...

The reservation is still maintained.

27 Counsel for the applicants accepted that the ICCPR, in common with other treaties and conventions entered into by Australia, is not part of the domestic law of Australia in the absence of legislation implementing it. Counsel for the applicants also accepted the proposition that it is open to parliament to legislate in defiance of Australia's international obligations. It is clear, however, that an international convention can affect the construction of legislation. As Mason CJ and Deane J said in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287 - 288:

Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law.

It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.

At 304, Gaudron J expressed agreement with Mason CJ and Deane J as to the status of a convention in Australian law. McHugh J at 315 expressed similar views.

28 In the case of the Extradition Act, the parliament has legislated in accordance with Australia's international obligation under Art 10 of the ICCPR. At the time when the Extradition Act was passed, Australia did not have an absolute international obligation to ensure the segregation of unconvicted prisoners from convicted prisoners. Because of its expressed reservation, at all relevant times, Australia has not had such an absolute obligation. In providing for the treatment of prisoners awaiting extradition according to the regime for dealing with prisoners awaiting trial, parliament has complied with Australia's obligations. It has enacted the Extradition Act with a clear meaning in that respect. The meaning cannot have changed simply because one State has changed the manner in which it deals with prisoners awaiting trial. Even if the actions of one State were such as to place Australia in breach of its international obligations, that would not change the meaning of the Extradition Act.

29 The third argument put on behalf of the applicants was that the Extradition Act, by means of its own self-limiting provision, must be construed in accordance with the ICCPR. Section 11(1) of the Extradition Act provides:

The regulations may:

(a) state that this Act applies in relation to a specified extradition country

subject to such limitations, conditions, exceptions or qualifications as

are necessary to give effect to a bilateral extradition treaty in relation

to the country, being a treaty a copy of which is set out in the

regulations; or

(b) make provision instead to the effect that this Act applies in relation to

a specified extradition country subject to other limitations, conditions,

exceptions or qualifications, other than such limitations, conditions,

exceptions or qualifications as are necessary to give effect to a

multilateral extradition treaty in relation to the country.

30 Section 55 provides for the making of regulations. The Extradition (United Mexican States) Regulations 1991 (Cth) have been made under the Extradition Act. Regulation 5 provides:

The Act applies in relation to Mexico subject to the Treaty on Extradition between Australia and Mexico done at Canberra on 22 June 1990 (being the treaty a copy of the English text of which is set out in the Schedule).

31 Article 25 of the Treaty on Extradition between Australia and The United Mexican States provides:

Nothing in this Treaty shall affect any obligations which have been or shall in the future be assumed by both Parties under any multilateral convention.

32 Both Mexico and Australia are parties to the ICCPR, which is a multilateral convention. Counsel for the applicants therefore argued that Art 10 of the ICCPR is an obligation assumed by both Australia and Mexico, for the purposes of Art 25 of the extradition treaty between Australia and Mexico. He contended that the Extradition Act must be read as limited by Art 10 of the ICCPR, in the application of the Act to the extradition of persons to Mexico, by a combination of s 11(1) of the Extradition Act, reg 5 of the Extradition Regulations, Art 25 of the specific extradition treaty with Mexico and Art 10 of the ICCPR. Again, this argument suffers from the weakness that Australia's obligation under Art 10 of the ICCPR is not absolute, because of the reservation to which I have referred in par 26. The argument suffers from the further weakness that it seeks to convert a negative provision, designed to preserve an existing state of affairs, into a positive provision, enacting the terms of the ICCPR. Article 25 of the extradition treaty between Australia and Mexico does not incorporate into that treaty all obligations under multilateral conventions. It merely makes it clear that those obligations remain unaffected by the particular extradition treaty. Its task is not incorporation by reference and does not import into the Extradition Act as express limitations all of the provisions of all multilateral agreements to which Australia and Mexico are parties. Parliament cannot be taken to have intended to legislate into effect the terms of the ICCPR by such indirect means.

33 I am therefore of the view that there is no valid argument available to the applicants to reduce the meaning of the term "prison" in s 19(9) of the Extradition Act so as to render it inapplicable to the Port Phillip Prison or the Melbourne Assessment Prison. This conclusion makes it unnecessary to discuss other questions that were argued in the proceeding. In case I am found on appeal to have reached an incorrect conclusion, and in deference to the arguments put, I state shortly my conclusions in relation to those questions.

34 It was argued on behalf of the first respondent that the right to apply for remedies of the kinds sought by the applicants was excluded by implication because s 21 of the Extradition Act provides for a statutory review of the order of a magistrate made under

s 19(9). Section 21(1) makes provision for a person whose surrender is sought by an extradition country to apply to the Federal Court of Australia, or to the Supreme Court of a State or Territory, for a review of the order. By subs (2), the court may either confirm the order of the magistrate or quash the order and direct the magistrate to order the release of a person imprisoned under s 19(9). Further, by s 21(6)(d), the court is required to have regard only to the material that was before the magistrate.

35 In Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 303 - 304, the Full Court said of the task of a magistrate under s 19(9) of the Extradition Act:

Subject to s 11 which preserves any particular treaty reservation it is clear that the issues before the magistrate are very limited. The ultimate issue to be decided is whether the person in respect of whom the extradition request is made is "eligible for surrender". To determine that issue the magistrate will be required to determine the following constituent matters:

1. Is the offence one which qualifies as an extradition offence? (see s 5)

2. Is the requesting country an extradition country? (see s 5)

3. Are the documents produced to him as "supporting documents" under

s 19(2)(a) within the definition of that expression in s 19(3) having

regard to the following questions:

(a) is there a duly authenticated warrant of the kind described by

s 19(3);

(b) if the extradition is in respect of a conviction, are there duly

authenticated documents which provide evidence of the matters

in s 19(3)(b);

(c) is there a duly authenticated statement in writing setting out

the matters in s 19(3)(c)(i);

(d) is there a duly authenticated statement in writing setting out

the conduct constituting the offence (see s 19(3)(c)(ii))?

36 In Republic of South Africa v Dutton (1997) 77 FCR 128 at 136, Hill J said of the process of review under s 21 of the Extradition Act:

[I]t seems to me clear that the review contemplated by s 21 is not a species of judicial review in the sense of a review limited to correcting legal error. It is a rehearing in which the court undertaking the review is authorised to reach its own conclusions on eligibility for surrender, but a rehearing which is limited statutorily to the material before the magistrate. Fresh evidence it would seem would not be admissible. This is hardly likely to cause difficulty since the hearing before the magistrate, the subject of the review, is, in any event, largely a hearing on documentary material.

In Bennett v Government of the United Kingdom [2000] FCA 916 at [7]- [9], Katz J expressed some doubt about whether the function of the court on a review is to rehear the matter. It is clear from Zoeller at 290, that the function of the magistrate is administrative, and not part of the judicial power of the Commonwealth. The court's function must be judicial, whether it be to rehear the proceeding on the material before the magistrate, or to review the correctness of the magistrate's decision. The essential point, however, is that, to the extent that the magistrate's function is limited, so must be the function of the court exercising the power to review. It should be noted that, in dealing with such a review, the court has no power to amend the order of the magistrate, and in particular no power to change the nominated prison to which the person concerned has been committed.

37 It would not have been possible for the court on a review in the present case to have before it the material which the applicants have placed before me in relation to the question whether the prison to which they were committed was a "prison" for the purposes of s 19(9) of the Extradition Act. The review is directed solely to the question whether a particular applicant is eligible for surrender in relation to the offence or offences for which surrender is sought. It is not intended to deal with the selection of the particular prison to which that person has been committed. If I had found in favour of the applicants on the principal question in this proceeding, I should not have refrained from granting them a remedy on the basis that there existed a statutory review procedure.

38 In one respect, however, the existence of the review procedure causes difficulty. In the present case, the applicants have sought a review under s 21 of the Extradition Act in relation to the decisions of the second respondent on their eligibility for extradition. The application for review has been heard by French J, whose judgment is reserved. It would not be possible for me to grant the applicants a remedy that would involve quashing the decisions of the second respondent without undermining the basis of that statutory review.

39 The traditional means of challenging the lawfulness of detention of a person has been by means of a writ of habeas corpus. The writ calls upon a named person, allegedly detaining another unlawfully, to produce the detained person before the court, so that the court can investigate the lawfulness of the detention. If the court finds that the detention is unlawful, then it will order the release of the detained person. This is why the applicants sought orders in the nature of orders consequent upon a writ of habeas corpus. They did not seek the writ itself. This Court has no express statutory power to issue the writ, although the breadth of the range of remedies available under s 23 of the Federal Court of Australia Act 1976 (Cth) in matters within the Court's jurisdiction probably encompasses orders of the kinds that would be made consequent upon it.

40 As I have already said in par 38, one difficulty arising from an order that the applicants be released would be that there would remain in existence an apparently valid warrant committing them to the Melbourne Assessment Prison or the Port Phillip Prison. In OIC Cells, ACT Supreme Court; Ex parte Eastman [1994] HCA 36; (1994) 68 ALJR 668 at 669, Deane J said:

The writ of habeas corpus is an important safeguard of liberty in circumstances where a person is being detained in custody without lawful warrant or authority. It is not, however, available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity.

In order to grant the applicants a remedy, if they had succeeded on their principal argument, I should have had to find that so much of the warrants signed by the second respondent as involved the choice of prison was a nullity. There is authority that a court may quash part of a decision, but only if that part is severable from the rest of the decision. See R v Marshall; Ex parte Baranor Nominees Pty Ltd [1986] VR 19 at 34 per Brooking J and R v Secretary of State for Transport; Ex parte Greater London Council [1986] QB 556 at 578 - 579. In the present case the question of the severability of those parts of the warrants designating the prisons from those parts directing that the applicants be committed to prison was not argued.

41 Even if it were possible to sever those parts of the warrants, there would still be a question as to what should be done with the applicants if they had succeeded in relation to their principal argument. Partial quashing of each of the warrants would properly have led to the signing by a magistrate of new warrants, perhaps committing the applicants to a place where prisoners are held on remand in another State or Territory. New warrants of that kind would undermine the statutory review process to which I have referred in par 34. The alternative would be to allow the applicants to go free, which might itself put Australia in breach of its obligations to Mexico under the extradition treaty between Mexico and Australia. Counsel for the applicants did suggest that, if they were released, they would be arrested immediately by officials of the Department of Immigration and Multicultural Affairs and conveyed to the Migration Detention Centre at Maribyrnong. If that were to occur, undoubtedly the conditions of their detention would be more in line with those to be expected in respect of persons not convicted of any offence. On the other hand, it might be thought that the Migration Detention Centre was insufficiently secure to house persons who have a substantial incentive to escape. It may be, therefore, that no adequate remedy would have been available to the applicants, or that discretionary considerations would have caused the Court to decline to grant a remedy otherwise available.

42 In a supplementary written submission, after the hearing had concluded, counsel for the applicants for the first time invited me to make an interim order, pursuant to s 21(6)(f)(iii) of the Extradition Act, changing the custody of the applicants pending the completion of the review by French J. The power given to the court, pending the hearing of a review is to order that the person concerned be kept in "such custody as the court directs". It would have been open to the Court under that provision to deal with the issue of the identity of the prison in which the applicants were to be kept pending the conduct of the review for which they have applied. Instead, the applicants sought an urgent hearing of the application the subject of these reasons for judgment. In view of the fact that I have determined that application against the applicants after an urgent hearing, it would be entirely inappropriate to grant what would be in effect an interim order in another proceeding that is before another judge.

43 For these reasons, the application must be dismissed. The applicants must pay the costs of the first respondent.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated:

Counsel for the Applicants:	J. Manetta
Solicitor for the Applicants:	Phillips Fox
Counsel for the First Respondent:	A. Albert
Solicitor for the First Respondent:	Victorian Government Solicitor
Counsel for the Second Respondent	No appearance
Counsel for the Attorney-General for the Commonwealth (intervening)	H. Burmester QC
Solicitor for the Attorney-General for the Commonwealth (intervening)	Australian Government Solicitor
Date of Hearing:	23 June 2000
Date of Judgment:	14 July 2000