Cabal and Pasini, Ex Parte; Re Secretary of Dept of Justice (Vic) and Anor M93/2000

[2000] HCATrans 726

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M91 of 2000

B e t w e e n -

CARLOS CABAL (Peniche) and MARCO PASINI (Bertran)

Applicants

and

THE SECRETARY OF THE DEPARTMENT OF JUSTICE (VICTORIA)

First Respondent

LISA HANNAN M.

Second Respondent

ATTORNEY-GENERAL (COMMONWEALTH)

Third Respondent

Application for special leave to appeal

Office of the Registry  
  Melbourne  No M93 of 2000

In the matter of -

An application for Writ of Habeas Corpus against SECRETARY OF THE DEPARTMENT OF JUSTICE (VICTORIA) and LISA HANNAN M.

Respondents

Ex parte:

CARLOS CABAL (Peniche) and MARCO PASINI (Bertran)

Applicants

GLEESON CJ
GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 28 NOVEMBER 2000, AT 2.15 PM

Copyright in the High Court of Australia

__________________

MR S.J. GAGELER, SC:   If the Court pleases, I appear for the applicants in each matter.  (instructed by Phillips Fox)

MR J.G. OLLE:   May it please the Court, I appear on behalf of the Department of Justice.  (instructed by the Victorian Government Solicitor)

MR H.C. BURMESTER, QC:   If it please the Court, I appear with MR M.K. MOSHINSKY, for the Attorney-General of the Commonwealth, the third respondent in the first matter and as intervener in the second matter.  (instructed by the Australian Government Solicitor)

GLEESON CJ:   There is a certificate from the Deputy Registrar to say that the Victorian Government Solicitor, who acts for the Secretary of the Department of Justice, the first respondent in each of these matters, has indicated that counsel will appear simply to inform the Court that the first respondent adopts the Attorney‑General’s submissions and does not seek to make any submissions.  Is that right, Mr Olle?

MR OLLE:   That is the case, your Honour.

GLEESON CJ:   Thank you.  Then there is a certificate from the Deputy Registrar that she has been informed by the Deputy Chief Magistrate of the Magistrates Court of Victoria that Lisa Hannan, Magistrate, who is named as the second respondent in each of these matters, is content to abide the decision of the Court.  Is it convenient to counsel that both these matters be heard together?

MR GAGELER:   Yes, it is, your Honours.

GLEESON CJ:   Yes, Mr Gageler?

MR GAGELER:   Your Honours, the special leave application raises a point of construction.  The application for an order nisi raises a point of validity.  The two are linked by the operation of section 15A of the Acts Interpretation Act. 

The construction point reduces to a single proposition and it is this:  that the word “prison” as used in section 19(9)(a) of the Extradition Act is limited to a “place of detention” for unconvicted persons and does not refer to a place that is or that is also a place of correction for convicted persons.  The distinction between a “place of detention” and a “place of correction” is one which the uncontested evidence shows exists in practice in every State and Territory in Australia with the exception of Victoria where, as his Honour found, at page 13 of the application book in paragraph 22, the position appears to have reverted.  Victoria once had the same practice of having segregation between persons in detention and persons in a “place of correction” but that practice has changed.

It is also a distinction that is mandated by the International Covenant on Civil and Political Rights, to which I will turn in a moment, and it is a distinction that, in my submission, is recognised by or at the very least consistent with the language of the Act in at least two places.  One is in the concluding words of the definition of “prison” in section 5 where there was a reference to “other place of detention”.  The other reference is in section 53(a) which seizes upon and makes applicable to a person in prison under the Act, “the conditions of imprisonment of persons imprisoned”, “to await trial for offences” in a State or Territory.

Now, Article 10 of the International Covenant on Civil and Political Rights your Honours will find conveniently set out in the application book at page 14 at the top right-hand corner.  That is page of 12 of the judgment of Justice Gray at first instance.  Your Honours will see Article 10 commences, in paragraph 1, by saying:

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

And paragraph 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.

There is a statement that follows that “Australia is a signatory” subject to a reservation.  Your Honours will note the reservation to Article 10, that is:

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

In my submission, your Honours can put to one side any limitation that might be seen to flow from that reservation for two reasons.  The first reason is that the reservation, in terms, constitutes an acceptance by the Commonwealth of the principle set out in paragraph 2(a), and the second reason is that the principle, according to his Honour’s finding that I have already referred to on the previous page, paragraph 22, is one that has been in practice already achieved in Australia.  As I have said, Victoria appears to have reverted.

GLEESON CJ:   Does the significance of that depend upon there being an ambiguity in the word “prison”?

MR GAGELER:   No, not at all, your Honour.  That is the error which lies at the heart of his Honour’s reasoning accepted by the Full Court and what his Honour said, at the bottom of page 15, paragraph 28, about the fourth‑last line, was that the Extradition Act had “a clear meaning” in this respect.  So, his Honour reasoned there is no ambiguity.  Absent an ambiguity, one does not seek to interpret the Act in accordance with Article 10.

In my submission, that is inconsistent with the statement of principle in Teoh which his Honour set out at the top of the page.

GAUDRON J:   Is there a principle in Teoh?

MR GAGELER:   Your Honour, there is a statement of principle by Chief Justice Mason and Justice Deane which I invoke and which his Honour saw as a statement of the law that your Honour expressed agreement with and was at least consistent with what Justice McHugh had said, that the principle, your Honours, that I seek to rely upon in particular is that which is expressed at about line 18 where it is said that:

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. 

And that is the case in relation to the word “prison” as it appears in this Act.  What I sought to do by drawing your Honours’ attention to the language of the definition, which is inclusive but is inclusive in a way that says it includes another place of detention, and drawing your Honours’ attention to section 53, is to show that the construction that one would get by applying Article 10 of the ICCPR is a construction that fits consistently with the language and the substantive provisions of the Act.

GLEESON CJ:   This distinction between “convicted” and “unconvicted” persons, as I understand it, proceeds on the basis that by “convicted person” is meant a person who is serving a current term of imprisonment as a result of a conviction.

MR GAGELER:   Yes.

GLEESON CJ:   There are lot of convicted persons who are not serving current terms of imprisonment.

MR GAGELER:   Yes.  I meant it in the latter sense, your Honour.

GLEESON CJ:   And you could find yourself on remand with them in New South Wales.

MR GAGELER:   Well, the evidence is not any more.  If that was once the case, that is no longer the case.

GLEESON CJ:   No, I mean people who have been convicted 10 years ago and served their sentences and are up on a new charge.

MR GAGELER:   Your Honour is absolutely right, yes.

GLEESON CJ:   A lot of convicted people in that sense are not necessarily good company.

MR GAGELER:   One could readily accept that.

GLEESON CJ:   But you would treat them, relevantly, as unconvicted persons?

MR GAGELER:   Yes, and it is a very simple distinction.  Your Honours, that, really, is the construction point.  As I said, the - - -

GAUDRON J:   Can I take you back to what appears at page 15.  There was a qualification about situations of ambiguity and then it says:

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.

Now, what is the relevant history in this case?

MR GAGELER:   The relevant history is the International Covenant on Civil and Political Rights was done, which is international language, in 1966.  I cannot tell your Honours precisely when Australia became a signatory.

GAUDRON J:   It was not until late 70s, was it?

MR GAGELER:   I think that is right.  The covenant appears as a schedule to the Human Rights and Equal Opportunity Commission Act 1986. So, it was before that. The Act with which we are currently concerned - - -

GAUDRON J:   I am sorry, it was in the early 80s, I think, if my recollection is - - -

MR GAGELER:   Your Honour is probably right.  By 1986 it was well and truly adopted and, in a very limited sense, enshrined in Australian domestic law in the Human Rights and Equal Opportunity Commission Act and the Act with which we are currently concerned was an Act enacted in 1988.  That is the Extradition Act.

GAUDRON J:   You say one should simply construe “includes” in the definition to mean “means”, in effect, do you not?

MR GAGELER:   No, I say that the word “prison” should be read as meaning a “place of detention” and - - -

GAUDRON J:   But there is a definition, is there not?

MR GAGELER:   Yes, there is, but it is an inclusive definition.

GAUDRON J:   Well, exactly.  That is why I am saying do we not have to read – we cannot ignore the fact that there is a definition there, can we?

MR GAGELER:   No.

GAUDRON J:   As a general rule, statutory definitions are to be construed according to their ordinary terms, their ordinary meaning.

MR GAGELER:   Yes.

GAUDRON J:   So, what you are really doing, are you - - -

MR GAGELER:   Your Honour, I can read it in two ways and get there the same way.  I can read it as “prison”, reading in the words “means a place of detention and includes a gaol, lock-up or other place of detention” or I can simply read the word “includes” as being “means”.  I can get there the same way.  Both of them are legitimate approaches to statutory construction, given that the word “prison” there does not - - -

GAUDRON J:   No, you have to read more words in than that, do you not?

MR GAGELER:   No.

GAUDRON J:   The way you read it, “prison means a place of detention for persons awaiting trial”.

MR GAGELER:   Giving content to the meaning of “place of detention”, yes, consistently with section 53(a), yes.

GAUDRON J:   How does that then relate to section 53?  I would have thought it did not sit comfortably with section 53.

MR GAGELER:   No, in my submission it does sit comfortably with the section because the section shows that the way in which persons are to be treated ‑ ‑ ‑

GAUDRON J:   But it says, “so far as they are capable of application”.

MR GAGELER:   Yes. 

GAUDRON J:   We know here in Victoria they are simply not capable of application because they do not exist.

MR GAGELER:   Yes.  I am not suggesting, your Honour, that section 53 compels the construction for which I contend but section 53 is consistent with the construction for which I contend because one is concerned, in my submission, with persons who are, first of all, detained in places which are dedicated to the detention of unconvicted persons.  That is the definition of “prison”.  Then they are to be dealt with in those places consistently with the laws of the State or Territory that apply to unconvicted, detained persons:  section 53(a).

Your Honours, the point of validity is, in a sense, another way of arriving at the same construction and it can be equally simply stated, and the statement of the argument is this, that section 19(9)(a) provides for the imprisonment of an unconvicted person by an administrative or executive order.  The imprisonment is pending the making of a further executive determination by the Minister as to whether or not the person is to be surrendered to the extradition country concerned. 

To be consistent with Chapter III, and arising from the formulation of principle in Lim’s Case, the form of detention authorised by section 19(9)(a) must be reasonably capable of being seen as necessary to achieve the non-punitive purposes of the Act.  Now, in determining what is reasonably capable of being seen as necessary to achieve a non-punitive purpose, one can look, in this case, but perhaps unusually in a context such as this, to a number of objective contemporary standards.  One can find the contemporary practice in prisons throughout Australia but uniquely not in Victoria; one can find the International Covenant on Civil and Political Rights and one can find a reference at page 140 of the application book in the very informative affidavit of Mr Hamburger to a United Nations document.  He refers to, in paragraph 8 of that page:

The United Nations Minimum Standards for the Detention of Prisoners prescribes that unconvicted people ordered into custody should be held apart from convicted persons.

When one looks at the circumstances in which the applicants are being held in the present case, which flow directly from the Commonwealth legislation on the alternative construction simply picking up the Victorian regime, one can see that the system within which they are held is one which provides for mandatory body searches, that provides for a keeping of a track of, and tapes of their telephone calls; that provides for them to be locked in a cell two metres by three metres for 13 hours a day.

GLEESON CJ:   Mr Gageler, could you just repeat the proposition that you put which included a reference to necessity?

MR GAGELER:   Yes.  The proposition is that the form of the detention authorised must be reasonably capable of being seen as necessary to achieve the non‑punitive purposes of the Act.

GLEESON CJ:   It is necessary in Victoria, is it not?

MR GAGELER:   No.  One is here concerned with a piece of Commonwealth legislation and the practice that exists in every other State and Territory shows that it is not necessary to achieve the purpose of the Commonwealth legislation for this form of detention to exist.  There is obviously no requirement for the Commonwealth to pick up a State legislative regime.  It has chosen to do so as a matter of convenience.  The formulation of principle, I should say, your Honour, comes from Lim’s Case 176 CLR at page 33.

GLEESON CJ:   What paragraph is that?  I have the documents you have provided.

MR GAGELER:   Yes.  I am sorry that your Honour has that in that form.  It is paragraph 32, which is behind tab 5 of the materials your Honours have.

GLEESON CJ:   Yes.  It is headed “Sections 54L and 54N”.

MR GAGELER:   That is correct.  At the top of the next page, page 16 of 42, your Honours will see a passage that begins, “In the light of what has been said”, and continuing through to the end of that paragraph there is a summary of the principles upon which I rely.  Your Honour, that is really the validity point.  In accordance with section 15A of the Acts Interpretation Act, if possible, the provisions of the Extradition Act should be read down in a way to bring it within constitutional power.  In my submission, that can be done simply by adopting a construction point.  If not, then, in my submission, those provisions are invalid.  If your Honours please.

GLEESON CJ:   Thank you, Mr Gageler.  We will adjourn for a short time to consider the course we will take.

AT 2.37 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.40 PM:

GLEESON CJ:   We do not need to hear you, Mr Burmester.

In relation to the application for special leave to appeal from the decision of the Full Court of the Federal Court, we are of the view that the decision of the Full Court was correct and for that reason the application is dismissed with costs.

In relation to the application for habeas corpus, we consider that in light of the undisputed facts as to the nature of the prison facilities which exist in Victoria, the constitutional principle invoked on behalf of the applicants does not result in the invalidity of the relevant legislation, and that application, also, is dismissed with costs.

MR GAGELER:   Would your Honour hear me on costs.  I think the position is that nobody is seeking costs.

GLEESON CJ:   In relation to - - -?

MR GAGELER:   In relation to either application.

GLEESON CJ:   Is that so, Mr Burmester?

MR BURMESTER:   Yes, your Honour, we do not seek costs in the special leave.  We just regard ourselves - - -

GLEESON CJ:   All right then, I will withdraw what I said about costs.  Both applications are dismissed.

We will adjourn to reconstitute.

AT 2.44 PM THE MATTERS WERE CONCLUDED