FEDERAL COURT OF AUSTRALIA

Rivera v The Commonwealth of Australia [2007] FCA 1465

HABEAS CORPUS – application for writ of habeas corpus – whether writ available where applicant does not argue detention unlawful – no arguable case for writ

EXTRADITION – application for declaration that detention at correctional facility unlawful under Extradition Act 1988 (Cth) – whether Act imposes obligation to hold persons awaiting extradition in different manner to convicted persons – whether applicant can be moved from remand centre to correctional facility – whether NSW Act applies – definition of ‘prison’ for purposes of Act – no arguable case incarceration unlawful

ORDER 80 – application for referral for pro bono assistance – no arguable basis for matters relied on – applicant presented case competently – order not appropriate

Crimes (Administration of Sentences) Act 1999 (NSW), ss 3, 4(1), 23, 225, 226

Extradition Act 1988 (Cth), ss 5, 19, 19(9), 22, 53

Judiciary Act 1903 (Cth), s 39B

International Covenant on Civil and Political Rights, Arts 10, 14

Cabal v Secretary, Department of Justice (Victoria) (2000) 177 ALR 306 considered

Dietrich v R (1992) 177 CLR 292 cited

Re Officer in Charge of Cells, ACT Supreme Court; ex parte Eastman (1994) 123 ALR 478 cited

Re Stanbridge’s Application (1996) 70 ALJR 640 cited

LAWRENCE JOHN RIVERA v THE COMMONWEALTH OF AUSTRALIA AND THE STATE OF NEW SOUTH WALES

NSD 1307 OF 2007

BENNETT J

17 SEPTEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application is dismissed under Order 20 Rule 2 of the Federal Court Rules.

2.                  The application for an order under Order 80 of the Federal Court Rules is refused.

3.                  The applicant is to pay the respondents’ costs.

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

REASONS FOR JUDGMENT

Introduction

1                     Mr Rivera is presently incarcerated pursuant to the Extradition Act 1988 (Cth) (‘the Act’) at Parklea Correctional Centre (‘Parklea’).  Mr Rivera has been in custody since 19 September 2002, pending an extradition request by the United States of America (‘the USA’).  

2                     On 4 September 2002, a NSW magistrate issued a provisional arrest warrant under s 12 of the Act for Mr Rivera’s arrest.  On 12 November 2002, the USA presented a request to Australia for Mr Rivera’s extradition.  On 16 December 2002 Magistrate O’Shane (‘the Magistrate’) determined under s 19 of the Act that Mr Rivera was eligible to be surrendered to the USA in relation to the extradition offence of murder.  Section 19(9) of the Act provides that where a magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence, the magistrate shall, relevantly, by warrant order that ‘the person be committed to prison to await surrender’.  On the same day, the Magistrate issued a warrant under s 19(9) of the Act (‘the commitment warrant’) committing Mr Rivera to the Metropolitan Remand and Reception Centre (‘the Remand Centre’) to await surrender, or release under s 22(5) of the Act.  Mr Rivera sought, unsuccessfully, to review the Magistrate’s decision.

3                     In August 2006, the Minister for Justice and Customs determined under s 22 of the Act that Mr Rivera be surrendered to the USA.  A challenge by Mr Rivera to that decision was dismissed by a Judge of the Court.  An appeal to the Full Court was dismissed.  Mr Rivera has filed an application for special leave to appeal to the High Court from the Full Court decision.

4                     Mr Rivera was moved from the Remand Centre to Parklea in June 2007.

5                     Mr Rivera seeks a writ of Habeas Corpus.  He seeks a declaration that his detention at Parklea is unlawful within the meaning of s 53 of the Act, damages for unlawful imprisonment while in custody at Parklea and an order that he be transferred from Parklea back to the Remand Centre or, alternatively, to Villawood Detention Centre.  He also seeks an injunction restraining the respondents from removing him from custody at the Remand Centre if he is transferred there.

6                     Mr Rivera seeks pro bono assistance under Order 80 of the Federal Court Rules.

7                     Each of the respondents moves for dismissal of the proceedings under Order 20 Rule 2 of the Federal Court Rules.  The respondents do not challenge the jurisdiction of the Court, which is conferred by s 39B(1A)(c) of the Judiciary Act 1903 (Cth).

8                     Mr Rivera, in bringing these proceedings, asserts that the Commonwealth has ‘overall responsibility’ for the determination of his extradition case and that the State acts as its agent in facilitating his detention.  That is not disputed by the respondents for the purposes of these applications.  He has commenced proceedings in the Supreme Court of New South Wales and in the Human Rights & Equal Opportunity Commission (‘HREOC’) in connection with conditions of his custody.  He makes a number of allegations in his affidavit filed in these proceedings giving details of various matters, such as the lower standard of access to legal materials in Parklea than that made available at the Remand Centre and inability to gain access to all of his personal belongings on transfer.

9                     Mr Rivera asserts that being held in a “correctional” centre rather than a “remand” centre where prisoners are unconvicted is inconsistent with article 14 of the International Covenant on Civil and Political Rights (‘the Covenant’) which, he says, provides that unconvicted prisoners will be separated from convicted prisoners.  It is also, he submits, contrary to s 53 of the Act for him to be placed in a correctional centre.

10                  He also asserts in his affidavit, without any supporting factual material, that the transfer is an abuse of process designed to disrupt his various legal proceedings.  Mr Rivera remained at the Remand Centre until June 2007, despite 5 years of constant legal proceedings commenced by him.  This assertion is made without a foundation and I see no basis for it.

11                  Mr Rivera does not seek to be released from custody but wishes to be transferred back to the Remand Centre.

Habeas corpus

12                  The Commonwealth and the State note that there is no challenge to the legality of the warrant and contend that an order in the nature of habeas corpus will only issue if the detention is shown to be unlawful.  That is correct.  There is no arguable case that Mr Rivera’s incarceration is unlawful and Mr Rivera does not suggest that it is.  His challenge to the Magistrate’s decision has been exhausted. 

13                  Habeas corpus is not available to remedy perceived inadequacies in the conditions of custody.  Habeas corpus is not available to impeach collaterally the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity (Re Officer in Charge of Cells, ACT Supreme Court; ex parte Eastman (1994) 123 ALR 478 at 480 per Deane J; Re Stanbridge’s Application (1996) 70 ALJR 640 at 642-3 per Kirby J).

14                  There is no arguable case for a writ of habeas corpus.

The holding of Mr Rivera under a regime of correction

The Act

15                  Section 53 of the Act provides:

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.

16                  Section 53 makes specific provision for the transfer of persons from prison to prison.

17                  Mr Rivera has not been able to point to a deficiency in the statutory authority to imprison him at Parklea.  As s 53 provides, it is the laws of NSW with respect to the conditions of imprisonment of persons on remand awaiting trial which regulate Mr Rivera’s imprisonment.  Section 53 and s 19(9) of the Act, under which the commitment warrant was issued, refer to “prison”.  Prison is defined in s 5 of the Act to ‘include a gaol, lock-up or other place of detention’.

18                  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.

The NSW Act

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.

23                  Section 3 of the Administration Act defines “inmate” as a person to whom Part 2 of that Act applies.  Part 2 applies, as provided, in s 4(1).  Relevantly, as Mr Rivera does not come within the description of s 4(1)(a) – (d); Part 2 applies, under ss (e) and (f) to:

(e)        any person the subject of a warrant or order by which a court or other competent authority has committed the person to a correctional centre otherwise than as referred to in paragraph (a), (b), (c) or (d), and

(f)                any person in custody who is given into the keeping of a correctional officer under section 250.

24                  Section 23 of the Administration Act provides for transfers from one correctional centre to another, inter alia in s 23(1)(f): ‘because of any other reason specified in the order’.  It is not suggested s 23 does not apply.  While, in practice, Parklea and the Remand Centre house different categories of prisoners, there is no breach of the Administration Act or the Act by moving Mr Rivera from one correctional centre to the other.

The International Covenant on Civil and Political Rights

25                  Article 10 of the Covenant provides relevantly:

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;

(b)        Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.

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) 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).

28                  Justice Gray also considered whether the Act must be construed in accordance with the Covenant.  He concluded that there was no valid argument available to the applicants in that case, who were legally represented, to reduce the meaning of the term “prison” in s 19(9) of the Act so as to render it inapplicable to prisons for correctional purposes in circumstances where the applicants were imprisoned in the same manner as people convicted for offences (at [33]).

29                  It follows that this ground is not made out.

30                  Mr Rivera asserts that, in the Extradition Treaty between Australia and the USA there is an implied condition that persons awaiting extradition be kept in gaols conducive to their states as unconvicted prisoners.  However, he could point to no article in the Treaty or the Protocol on which to base such an implication, which would be contrary to the Australian statutory regime.

31                  Mr Rivera also submits that it was an implied condition of his imprisonment that he be able to have access to material available in the Remand Centre but not in Parklea, to prepare for his various legal proceedings.  No basis for such an implication has been identified.  Nor is it apparent that he is unable to prepare his cases from Parklea.

32                  Mr Rivera also asserts that the Commonwealth cannot delegate conditions of imprisonment to the States.  Section 120 of the Constitution and s 53 of the Act are sufficient answer to that submission.

Order 80

33                  Mr Rivera seeks pro bono legal assistance to argue this case.  First, I should say that Mr Rivera presented his case, both in writing and orally, articulately and with some skill.  Mr Rivera has been engaged in extensive litigation since his arrest in this country in 2002 in this Court, the Supreme Court of NSW, the High Court and HREOC in over a dozen separate proceedings, many of them of some complexity and conducted by him without the benefit of legal assistance. 

34                  I have considered whether it would be in the interests of justice to refer Mr Rivera’s present application for pro bono assistance.  I have considered whether there is an arguable basis for any of the matters relied on and have concluded that there is not.  In the circumstances it is not appropriate to make an order under Order 80 of the Federal Court Rules with respect to Mr Rivera’s application for a writ of habeas corpus or the orders sought by him for transfer from Parklea.  It follows that the claim for damages for unlawful imprisonment at Parklea and for an injunction to restrain the respondents from removing him from the Remand Centre would also fail.

Conclusion

35                  No arguable case has been made out, or is apparent, to support the orders sought by Mr Rivera.  The proceedings should be dismissed under Order 20 Rule 2 of the Federal Court Rules.  The application for an order under Order 80 of the Federal Court Rules should be refused.  Mr Rivera should pay the respondents’ costs.

Associate:

Dated:         21 September 2007