Cabal v Secretary, Department of Justice

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.

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:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
(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) 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:

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