Ali v Commonwealth of Australia
[2004] VSC 6
•23 January 2004
Sta
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 9301 of 2003
| HUSSAIN ALI & OTHERS | Plaintiffs |
| V | |
| COMMONWEALTH OF AUSTRALIA | Defendant |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 January 2004 | |
DATE OF JUDGMENT: | 23 January 2004 | |
CASE MAY BE CITED AS: | Ali v The Commonwealth | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 6 | |
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Constitutional law – “act of state” doctrine – actions of a foreign government - actions of Crown in right of the Commonwealth in external affairs - proceeding by alien against the Crown for acts performed outside the jurisdiction - justiciability of act of state issues – federal jurisdiction – “matter” – Ch III Constitution – s 56 Judiciary Act 1903 (Cth).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. W. K. Burnside QC and Mr Chris Horan | Vadarlis & Associates |
| For the Defendant | Mr H. Burmester QC | Australian Government Solicitor |
HIS HONOUR:
By a writ issued on 16 December 2003 one Hussain Ali and some 325 other plaintiffs claimed that since unspecified dates in 2001 and 2002 they have been held in detention in the Republic of Nauru at the request of and/or by agents of the Commonwealth in circumstances such that the Commonwealth is guilty of the tort of false imprisonment. They seek a declaration as to such guilt, injunctions restraining the Commonwealth from continuing their detention and damages.
The matter came before this Court as an urgent matter for directions on 17 December 2003 when the plaintiffs foreshadowed the seeking of a number of interlocutory orders particularly as to discovery and as to a mechanism to enable them to give evidence at a trial of the proceeding. It was clear on that date that, having regard to the very short notice which the defendant had of the plaintiffs’ applications, the matter could not proceed. It was adjourned to 22 December.
On 22 December when the matter returned to court the defendant opposed all of the orders sought by the plaintiffs and foreshadowed the seeking of orders dismissing or staying the proceeding on the ground that this Court lacked jurisdiction to deal with it. The Commonwealth had, in fact, entered only a conditional appearance to the plaintiffs’ writ and had through its counsel at the directions hearing on 17 December, appeared “under protest”. However, whether it was appropriate to characterise the defendant’s position as challenging the jurisdiction of the Court to hear the plaintiffs’ claims or as arguing that the plaintiffs could not succeed because the Court could not, as a matter of law, adjudicate upon certain essential elements of those claims would depend upon which of its several meanings is given, in this instance, to the word “jurisdiction”. Certainly, I did not understand the Commonwealth to dispute that the plaintiffs' claims were claims in tort against the Commonwealth where the tort was alleged to have been committed outside a State or Territory so as to satisfy the jurisdictional requirements of s 56(1)(c) of the Judiciary Act 1903 (Cth). Its argument does not turn upon any technicality of service or amenability to the jurisdiction of this Court in the circumstances contemplated by the Judiciary Act but rather upon a fundamental principle of constitutional law which deprives this Court of jurisdiction, not in the sense relevant to the entry of a conditional appearance, but in a more fundamental constitutional sense concerned with the conferral of federal jurisdiction pursuant to Chapter III of the Constitution. If it could ever be appropriate for the Commonwealth to enter a conditional appearance to an action brought against it in a State Supreme Court the occasion for doing so does not arise in this case. The effect of the orders the Court will make will render that appearance unconditional.
In any event, on 22 December, it became clear that the challenge by the Commonwealth to the jurisdiction of the Court to adjudicate upon the plaintiffs’ claims would have to be determined before the matter proceeded further. As the defendant also contended that its challenge would raise constitutional issues such that notices pursuant to s 78B of the Judiciary Act 1903 (Cth) would be required to be served upon Attorneys-General the matter was adjourned to 15 January 2004 and directions were given as to the filing and serving of affidavits, written submissions and the service of s 78B notices.
On 7 January 2004 the defendant filed a summons specifying in some detail the relief which it would seek on 15 January. That summons sought declarations in the following terms:-
“. . . that the claims made in the (plaintiffs’) statement of claim:-
(a)require for their determination the adjudication of the validity, meaning and effect of the public acts, laws and transactions of a foreign sovereign State within that State's own Territory;
(b)require for their determination the adjudication of claims of ‘acts of State’ arising out of transactions or relations between the Commonwealth and a foreign sovereign State;
(c)require for their determination the adjudication of acts done against aliens outside Australia by or on behalf of the Crown in right of the Commonwealth pursuant to executive or prerogative power;
(d)by reason of (a) or (b) or (c) are not justiciable; and
(e)additionally, or alternatively by reason of (d), do not give rise to a matter within the jurisdiction of the Court.”
Consequent upon these declarations the Commonwealth sought that the proceeding be stayed or dismissed pursuant to RSC rr 8.09 and/or 23.01 and/or that the statement of claim be struck out pursuant to RSC r 23.02.
When the matter returned to this Court on 15 January no Attorney-General appeared in response to the s 78B Notice served upon him or her. The Commonwealth relied upon a number of affidavits filed on 22 December 2003 and, in the course of the hearing on 15 January was given leave to file another affidavit responding to one filed on behalf of the plaintiffs.
The Commonwealth’s affidavits were directed towards explaining the situation of those persons on Nauru who were there pursuant to the so called “Pacific Solution”. Documents were exhibited (including a Statement of Principles and memoranda of understanding) establishing the relationship between Nauru and Australia which enabled the Pacific Solution to be put into effect. Of necessity, having regard to the short notice involved and the Christmas period which intervened between the directions hearing on 22 December and the hearing of the defendant’s summons on 15 January most of the material relied upon by the Commonwealth was either conclusionary in nature or was hearsay or even (as with the last affidavit filed) hearsay on hearsay.
Affidavits relied upon by the plaintiffs sought to establish the conditions under which they were or had been living on Nauru, the fact that they were actually detained and that, in some cases, there was a doubt as to whether they had actually been issued with appropriate visas in accordance with the law of Nauru for at least some of the time that they had been in that country. If the plaintiffs’ case suffered from deficiencies it might fairly be said that those deficiencies arose by reason of distance and lack of access to the plaintiffs by their legal advisers. The state of the evidence overall raised a number of questions which might ultimately be of central importance to the determination of this proceeding. Few definitive factual conclusions could be reached, raising considerable difficulties for the Commonwealth in its application to have this proceeding summarily terminated.
The Commonwealth's argument as to the incompetence of this proceeding depends upon the application of the common law “act of state” doctrine in one or more of the ways in which that term has been used in the decided cases. It submits that if the resolution of the plaintiffs’ claims would involve this Court in examining the legality of certain acts performed in the exercise of sovereign authority, then, as the act of state doctrine precludes such an examination, the plaintiffs’ case would be "non-justiciable". Accordingly it would not give rise to a “matter” within the meaning of Chapter III of the Constitution and could not be the subject of the conferral upon this Court of federal jurisdiction. The consequence of non-justiciability, so the Commonwealth argument goes, is that this Court has no jurisdiction to entertain the plaintiffs’ claims. The Commonwealth relies upon the judgment of the Full Federal Court (Black CJ and Hill J) in Petrotimor Companhia de Petroleos SARL. v Commonwealth[1] which accepted the link between the act of state doctrine and the constitutional absence of jurisdiction. In so holding their Honours cited a passage in the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council[2] where the High Court held that the term “non-justiciable” was applicable to describe controversies within or concerning the operations of one of the other branches of Government which could not be resolved by the exercise of judicial power.
[1](2003) 197 ALR 461.
[2](2001) 206 CLR 512 at 555.
The "non-justiciability" of the plaintiffs' claims asserted by the Commonwealth depends upon the application to this case of the act of state doctrine. The Commonwealth argues that the doctrine applies in a number of separate but possibly overlapping ways. It enumerates eight separate questions which it says will fall for determination should the plaintiffs’ claims be permitted to proceed and which would involve the Court in impermissible adjudication on acts of state. They are:-
“1.Whether the Principal Immigration Officer of Nauru acted unlawfully in issuing Special Purpose Visas to the Plaintiffs;
2.Whether the Principal Immigration Officer acted unlawfully in imposing conditions on the Special Purpose Visas issued to the plaintiffs that restricted their freedom of movement on Nauru;
3.Whether the President of Nauru acted unlawfully in failing to waive the restrictions imposed on the plaintiffs’ freedom of movement by the conditions imposed on the Special Purpose Visas that were issued to them;
4.Whether the Director of Police acted unlawfully in appointing some officers of the Australian Protective Service as Reserve Officers of the Nauru Police Force;
5.Whether the Nauru Police Force acted unlawfully in enforcing conditions imposed on the Special Purpose Visas issued to the plaintiffs;
6.Whether the President of Nauru acted unlawfully in entering into the current MOU and/or its predecessors or in giving effect to that agreement;
7.Whether the Commonwealth acted unlawfully in entering into the current MOU or its predecessors or in giving effect to that agreement;
8.Whether any agent or agents of the Commonwealth acted unlawfully in Nauru (in) relation to the plaintiffs, all of whom are aliens.”
The most striking feature of these questions for present purposes is that, with the exception of the last two, they all raise issues concerning acts or omissions of the President or Government of Nauru or its public servants. Only the last two involve conduct alleged to have been engaged in by the defendant.
The Commonwealth argues that the act of state doctrine as it applies to inquiry by a domestic court into the validity of acts and transactions of a foreign sovereign state within that sovereign state's own territory operates so as to render any such question non justiciable in an Australian court. That this is so can hardly be gainsaid. The High Court held as much in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (No 2)[3]. And as long ago as 1906[4] the High Court had approved a dictum of Fuller CJ of the United States Supreme Court in Underhill v Hernandez[5] in the following terms:-
“Every sovereign State is bound to respect the independence of every other sovereign State, and the Courts of one country will not sit in judgment on the acts of the Government of another done within its own Territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.”
[3](1988) 165 CLR 30.
[4]Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479 at 495.
[5]168 US 250 (1897) at 252
The principle has been specifically applied in this Court recently: see Dagi v Broken Hill Proprietary Co Limited (No 2)[6].
[6][1997] 1 VR 428 at 441 per Byrne J.
The Commonwealth’s case for the application of this aspect of the act of state doctrine depends upon the plaintiffs putting their case as the Commonwealth predicts they will in its formulation of the first six questions set out above. But the plaintiff’s statement of claim, as it currently stands, makes no allegation against the Government of Nauru or any of its officers. It alleges tortious conduct on Nauru by the Commonwealth acting through as yet unspecified agents. The Commonwealth has had to assume, for the purpose of attracting this aspect of the act of state doctrine, that the plaintiffs must try to make a case against it by implicating the Government of Nauru or its officials. This assumption might not be correct. Such evidence as is at present before the Court reveals that there are, and have been for some time, officers of the Commonwealth on Nauru engaged in certain activities with respect to persons brought there as part of the Pacific Solution. Although the defendant’s affidavits depose that these officers of the Australian Protective Services are also duly appointed officers in the Nauru Police Force, for present purposes that evidence must be regarded as untested and subject to challenge upon a proper trial on the facts. The outcome of that trial cannot be predicted on the material currently before the Court. The description of the Pacific Solution as it emerges from the affidavits to which I have referred may well turn out to be entirely accurate so that the actions of those officers may be able to be properly characterised as an act of the state of Nauru. If so the act of state doctrine will preclude further enquiry. If not, there would seem to be no reason why the plaintiff could not mount an arguable case that the Commonwealth, by its agents, has engaged in tortious conduct. At this stage however the affidavits do not provide a sound basis for summarily terminating the plaintiffs’ proceeding as having no chance whatsoever of success.
The second aspect of the act of state doctrine which the Commonwealth argues as being relevant is that which precludes the Court from inquiring into the meaning or validity of agreements and other transactions between sovereign States. This aspect is raised by question 7 of the questions put forward by the Commonwealth.
Again, the principle contended for by the Commonwealth is not really able to be disputed. Its argument rests on the general rule for which Buttes Gas & Oil Co v Hammer (No 3)[7] is usually cited as authority although the Commonwealth’s argument also referred to Re Ditfort: ex parte Deputy Commissioner of Taxation (NSW)[8], Johnstone v Pedlar[9], Ex Parte Molyneaux[10], Blackburn v Attorney General[11] and Minister for the Arts, Heritage and Environment v Peko-Wallsend Ltd[12].
[7][1982] AC 888.
[8](1988) 19 FCR 347 at 370 per Gummow J.
[9][1921] 2 AC 262 per Lord Sumner at 290.
[10][1986] 1 WLR 331 per Taylor J at 336.
[11][1971] 1 WLR 1037 at 1040.
[12](1987) 15 FCR 274 at 307-308.
The Commonwealth’s argument in this respect involves the same assumption as that which was required to render relevant the first six questions which it submitted required consideration to determine the plaintiffs’ claims; that is to say the assumption that the plaintiffs’ claim necessarily involves an allegation that the Republic of Nauru acted as the agent of the Commonwealth in the commission of the tort alleged. Its submission involves this aspect of the act of state doctrine by seeking to apply it to any arrangement between the Commonwealth and the Republic of Nauru out of which the agency relied upon by the plaintiffs could be said to arise. If that assumption was correct then the Commonwealth argument would have had much greater appeal, but for the reasons already expressed the assumption is not necessarily correct so that the question as to whether this aspect of the act of state doctrine applies to this case at all cannot be determined on the evidence currently before the Court so as to warrant summary termination of the plaintiffs’ case at this stage.
The third aspect of the act of state doctrine upon which the Commonwealth relies as rendering the plaintiffs’ claims non-justiciable is that which derives from the case of Buron v Denman[13]. This principle prevents an alien from seeking redress in a domestic court in relation to the prerogative acts of a sovereign State that take place outside the Territory of that State. It is said by the Commonwealth that the doctrine is invoked in this case because question 8 of the above questions directly rases acts by the Commonwealth by its agents (whoever they are) outside Australia.
[13](1848) 2 Exch 167; (1848) 154 ER 450.
Buron v Denman has been accepted as correct by English courts (see Johnstone v Pedlar[14] and Nissan v Attorney General[15]) and has been referred to by courts in this country (see State of South Australia v State of Victoria[16], Joseph v Colonial Treasurer of New South Wales[17]; Davison v Vickery’s Motors Ltd (in liq)[18]; Gollan v Nugent & Ors[19]; Petrotimor Companhia de Petroleos SALR v The Commonwealth[20]) although not for the proposition contended for in this case. There is, therefore, no authority directly binding upon this Court which would compel its being applied in this case with respect to the act of state doctrine with which it is concerned. Mr Burnside QC's submissions on behalf of the plaintiffs have focused on a number of matters which he contends lead to the conclusion that it does not represent the common law of this country at this time. He submitted that at the time it was decided notions of Crown immunity from suit were, as yet, unaffected by later statutory reforms so that redress in respect of actions which would have constituted torts if committed by a private citizen went unredressed when committed by the Crown. More importantly he referred to the different constitutional position of the Crown in Australia in 2004 compared to that of the Crown in England almost 160 years earlier by reference to the joint judgment of Gummow and Kirby JJ in The Commonwealth v Mewett [21] in which their Honours said at 545:
“What then was the consequence of the introduction of Ch III of the Constitution? The establishment of the judicial power of the Commonwealth as an essential element in the federal system meant that doctrines of executive immunity from curial process which had been developed in England could not be carried immediately into the federal system. Chapter III required adjudication upon ‘matters’ of a nature unknown in England. It also required that in Australia the common law be informed by the structure of and institutions established by the Constitution. This, by covering cl 5 thereof, was made binding on the courts, judges and people of every State and of every part of the Commonwealth ‘notwithstanding anything in the laws of any State’.”
[14][1921] 2 AC 262.
[15][1970] AC 179 at 217-218 and per Lord Wilberforce at 231.
[16](1911) 12 CLR 667.
[17](1918) 25 CLR 32.
[18](1925) 37 CLR 1.
[19](1988) 166 CLR 18.
[20](2003) 197 ALR 461.
[21](1997) 191 CLR 471
Although there is much to commend Mr Burnside’s submission with respect to the application of Buron v Denman in Australia it would not be appropriate, on an application of this nature to give a definitive ruling as to its application to this case for at least two reasons. Firstly, the consideration which has been able to be given to the legal question raised by Buron v Denman in this case has been, of necessity, brief. A definitive answer to the question of its applicability in Australia would require a much more extensive review of authorities as to Commonwealth judicial power and Chapter III of the Constitution than has been possible in this interlocutory application. Secondly, and more importantly, the facts which, the Commonwealth contends, give rise to the application of this aspect of the act of state doctrine have not yet been found. Although it may be accepted for present purposes that all of the plaintiffs in this proceeding are probably aliens, the acts allegedly performed by the agents of the Commonwealth which the plaintiffs say are tortious and the Commonwealth says are acts of state have not yet been determined. Until those facts have been fully found it is not possible to say whether the Commonwealth is entitled to rely upon the act of state doctrine as expounded in Buron v Denman in this case even if it does represent the common law of Australia.
If, after a proper examination of the facts of this case following appropriate interlocutory investigation it is found that any allegedly tortious act carried out by any agent of the Commonwealth can be properly characterised as an act of state then the jurisdiction of this Court will be excluded to the extent required by law and the plaintiffs will be unable to succeed in their claim. As Kirby J said in Thorpe v The Commonwealth (No 3)[22], the Court's duty at that point would be clear. It would have to stop the proceeding forthwith. That point has not yet been reached in this case. It would be inappropriate to terminate the plaintiffs' case summarily at this point.
[22](1997) 71 ALJR 767 at 779
Conclusion
It follows from the above that the defendant is not entitled to any of the declarations which it seeks in its summons of 7 January 2004 at this stage of this proceeding. Its application for such declarations is dismissed. Having regard to this conclusion it is not necessary to consider further procedural difficulties which might have stood in the way of the Commonwealth's obtaining declaratory relief in an interlocutory application.
Its application to set aside the writ and/or to stay the proceeding pursuant to RSC r 8.09 will be also dismissed. Its conditional appearance will thus become unconditional, although, having regard to RSC r 8.08(3) this will have no effect upon the right of the Commonwealth to continue to maintain its position with respect to the jurisdiction of this Court to adjudicate upon this proceeding.
The defendant’s applications pursuant to RSC rr 23.01 and 23.02 will likewise be dismissed, there being no basis for the exercise of the discretionary jurisdiction conferred by those rules in the circumstances. The plaintiffs' statement of claim discloses a cause of action on its face and does not fall foul of any of the other matters referred to in those rules which might give rise to the jurisdiction to strike it out or stay the proceeding.
Having regard to the serious issues raised by the plaintiffs and the position taken by the defendant it is in the interest of justice that this matter be expedited. To this end I will now hear the parties on the question of further directions with a view to bringing the matter to trial as soon as possible.
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