Case: Cabal v Secretary, Department of Justice (Victoria) (2000) 177 ALR 306
Outcome: considered
In Cabal v Secretary, Department of Justice (Victoria) (2000) 177 ALR 306 Gray J considered a claim similar to Mr Rivera's concerning treatment and the asserted right by persons awaiting extradition not to be held in the same manner as convicted persons (at [14] [15]). There it was argued that the Act does not permit a person to be held under a regime of correction but only under a regime of detention and that the term "prison" should be read this way. The submission was that the prison in which the applicants were held, a correctional prison, was not a prison within the meaning of the Act (at [16]). There, too, the applicants sought habeas corpus. 19 As noted by Gray J in Cabal (at [21]), "prison" is a term of broad definition. It 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 common law has accorded the term similar breadth. It encompasses both confinement and custody. Justice Gray concluded that Parliament intended, by s 53, to give the term "the broadest meaning". His Honour concluded that ' 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 ' (at [21]). In Victoria, there was no distinction between convicted and unconvicted prisoners. Where that was the case, the way in which a person was held under s 53 was not inconsistent with the terms of the Act (at [22]). His Honour concluded (at [23]) that even though Parliament sought to achieve the object of treating persons awaiting extradition as humanely as possible, there was no occasion for reading down the definition of "prison" to promote that underlying object or purpose. 20 In Cabal , Gray J concluded (at [33]) that there was no valid argument available to reduce the meaning of the term "prison" in s 19(9) of the Act so as to render it inapplicable to different classes of prison. Similarly, I am of the view that no arguable case for any breach of the Act on this basis has been made out. The term "prison" applies to the Remand Centre and to Parklea. 21 The relevant NSW Act with respect to the administration of sentences is the Crimes (Administration of Sentences) Act 1999 (NSW) ('the Administration Act'). There is nothing in the Administration Act or the Act which imposes any obligation on the NSW correctional authorities or the Commonwealth to accord to Mr Rivera segregation from convicted persons. 22 The Remand Centre is a maximum security correctional facility, one of three correctional facilities which make up the Silverwater Correctional Complex. It operates for prisoners on remand, or awaiting transfer, or attending Court. Most inmates leave the Remand Centre within the first few months of arrival. This is either because they obtain bail and are released or they are classified and transferred to the centre of classification. Parklea is a correctional centre that houses remand and sentenced maximum and minimum-security prisoners. Each of Parklea and the Remand Centre has, since 2001, been declared a correctional centre pursuant to ss 225 and 226 of the Administration Act. That is, they have the same prison classification under the Administration Act. 26 In Cabal (at [26]) Gray J noted that Australia is a signatory to the Covenant and has ratified it, subject to certain conditions. One of those reservations is in Article 10 which provides: ...in relation to paragraph 2(a) the principle of segregation is accepted as an objective to achieved progressively. 27 That reservation was in effect at the time of the decision in Cabal . There is no suggestion that it has been withdrawn and the parties accept that the reservation is still in force. After considering the Covenant and Australia's obligations in the light of the reservation and the Act in some detail, Gray J concluded (at [28]) that the Act has a clear meaning which cannot be changed simply because one State has changed the manner in which it deals with prisoners awaiting trial. His Honour also held that, 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 Act. Neither the Act nor the Administration Act impose any obligation on the NSW correctional authorities to accord Mr Rivera, or any other prisoner, segregation from convicted persons. Even if Mr Rivera's imprisonment at Parklea were a contravention of Australia's obligations under the Covenant, it would be of no assistance to him. The terms of the Covenant form no part of the law of Australia ( Dietrich v R [1992] HCA 57 ; (1992) 177 CLR 292 per Mason CJ and McHugh J at 305; per Brennan J at 321; per Dawson J at 348; per Toohey J at 359-360).