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

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) 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) 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