Habib v Commonwealth

Case [2010] FCAFC 12

FEDERAL COURT OF AUSTRALIA

Habib v Commonwealth of Australia [2010] FCAFC 12

Citation: Habib v Commonwealth of Australia [2010] FCAFC 12
Parties: MAMDOUH HABIB V COMMONWEALTH OF AUSTRALIA
File number: NSD 956 of 2006
Judges: BLACK CJ, PERRAM AND JAGOT JJ
Date of judgment: 25 February 2010
Catchwords:

CONSTITUTIONAL LAW – act of state doctrine – non-justiciability – scope of act of state doctrine – where Australian citizen has brought proceedings against the Commonwealth – where a determination of the proceedings would depend on findings of the legality of the acts of foreign agents outside Australia – whether act of state doctrine applicable where allegations of grave breaches of international law – whether manageable judicial standards

HIGH COURT AND FEDERAL COURT – original jurisdiction of the High Court and Federal Court – judicial scrutiny of actions of the Executive by Ch III Courts – whether Constitutional framework and legislation in question enables such scrutiny

Held: act of state doctrine inapplicable

Legislation:

The Constitution, ss 51(xxxi), 61, 75, 76, 77(i)

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Federal Police Act 1979 (Cth)
Australian Security Intelligence Organisation Act 1979 (Cth)
Crimes (Torture) Act 1988 (Cth), ss 3, 5A, 6, 7, 8
Criminal Code Act 1995 (Cth)
The Criminal Code, ss 11.2, 16.1, 268.26, 268.74
Director of Public Prosecutions Act 1983 (Cth)
Federal Court of Australia Act 1976 (Cth), s 25
Foreign States Immunities Act 1985 (Cth), s 9
Geneva Conventions Act 1957 (Cth), s 7
Judiciary Act 1903 (Cth), ss 30, 39B, 44, 79
Jurisdiction of Courts (Foreign Lands) Act 1989 (NSW) s 3
Law Reform (Miscellaneous Provisions) Act 1955 (ACT) s 34
Public Service Act 1999 (Cth)

Seas and Submerged Lands Act 1973 (Cth)
Federal Court Rules, Order 50 r 1
Treaties:

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984
Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949
Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949
Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts, 1977
Rome Statute of the International Criminal Court, 1998
Statute of the International Court of Justice, 1945

Vienna Convention of the Law of Treaties, 1969
Cases cited:

A v Hayden (1984) 156 CLR 532 cited
Abebe v Commonwealth (1999) 197 CLR 510 cited
Al Maqaleh v Gates 604 FSupp.2d 205 (D.D.C. 2009) cited
Amnesty International Canada v Canadian Forces (Defence Staff, Chief) (2008) 305 DLR (4th) 741 cited

APLA Limited v Legal Services Commissioner (NSW) (2005) 224 CLR 322 cited
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; [2004] HCA 25 cited
Attorney-General (NSW) v Quinn (1990) 170 CLR 1 cited
Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 considered
Attorney-General for Western Australia v Marquet (2003) 217 CLR 545 cited
Australian Communist Party v Commonwealth (1951) 83 CLR…

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Habib v Commonwealth [2010] FCAFC 12
Case
[2010] FCAFC 12
Decision Date

CaseChat Overview and Summary

In Habib v Commonwealth, the respondent, an Australian citizen, brought an action against the Commonwealth, seeking redress for alleged unlawful conduct by Australian officials, including those from the Australian Federal Police, the Australian Security Intelligence Organisation, and the Department of Foreign Affairs and Trade. The Commonwealth argued that the act of state doctrine should preclude the Court from adjudicating on the respondent's claims, as these would require determination of the legality of acts by foreign agents in foreign territories. The central legal issues before the Court were whether the act of state doctrine applied to these claims and, if so, whether the doctrine precluded judicial scrutiny of the respondent's claims.

The Court found that the act of state doctrine was not applicable to the claims in this case. The doctrine, which prevents courts from judging the acts of a foreign government within its own territory, was deemed inapplicable where the claims involved allegations of grave breaches of international law, such as torture, which are universally prohibited. The Court reasoned that there were clear and identifiable standards by which the conduct could be judged, including the applicable Australian statutes and international law. The Court emphasised that the act of state doctrine does not apply in cases where there are judicial or manageable standards for judgment, and where the international community has spoken with one voice against the alleged conduct. Consequently, the Court concluded that the respondent's claims were justiciable and did not fall within the scope of the act of state doctrine.

The Court also rejected the Commonwealth's argument that international comity required judicial restraint in this case. The Court held that the principles of international comity did not necessitate abstention from adjudicating on the respondent's claims, as the allegations involved conduct that was contrary to established international law and contrary to the interests of the Australian government. Therefore, the application to dismiss the claims was refused, and the question reserved was answered in the negative.

Orders

Orders of the court

1. The order sought in paragraph 1 of the notice of motion filed by the respondent on 17 June 2009 be refused.

2. The question reserved under s 25(6) of the Federal Court of Australia Act 1976 (Cth) and Order 50 rule 1 of the Federal Court Rules:

Should the application be dismissed in respect of the claims made in paragraphs 1 – 36 of the Fourth Further Amended Statement of Claim on the ground identified in paragraph 1 of the Respondent’s Notice of Motion filed 17 June 2009 (namely, that, because the determination of those claims would require a determination of the unlawfulness of acts of foreign states within the territories of foreign states those claims are not justiciable and give rise to no “matter” within the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth) and s 77(i) of the Constitution, or give rise to no cause of action at common law).

be answered as follows:

“No”.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Habib alleges that he suffered loss and damage as a result of this unlawful conduct of the officers of the AFP, ASIO and DFAT. He also claims that, based on the same facts, the officers of the AFP, ASIO and DFAT acted in a way calculated to cause harm to him, without any lawful justification, and as a result of which he suffered harm.Conclusions The Commonwealth described the claim as one depending on Mr Habib proving that his alleged treatment by foreign agents within the territories of foreign states constituted criminal offences against Commonwealth laws. Mr Habib described his claim as one in which an Australian citizen seeks redress from the Australian government for the alleged acts of Australian officials unlawful under and in respect of causes of action recognised by Australian law. The Commonwealth’s description of Mr Habib’s claims is accurate; to resolve the claim the Court will have to determine whether Mr Habib’s treatment by foreign agents within the territories of foreign states contravened Commonwealth laws creating criminal offences. Mr Habib’s description, however, is also accurate; his claim is one in which an Australian citizen seeks redress from the Australian government for the alleged acts of Australian officials unlawful under Australian law and in respect of causes of action recognised by Australian law.(2) IS THE ACT OF STATE DOCTRINE ENGAGED?The Commonwealth’s submissions The Commonwealth submitted that the act of state doctrine was described accurately by Fuller CJ of the Supreme Court of the United States in Underhill v Hernandez 168 US 250 at 252 (1897) as a rule of the common law under which “the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory”. The House of Lords approved the doctrine in Buttes Gas and Oil Co v Hammer [1982] AC 888. The doctrine forms part of the common law of Australia. It was referred to with approval by the High Court in Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479 at 495, 506-507 and 511 (Potter v BHP) and Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 40-41 (Spycatcher). It was applied by the Full Court of the Federal Court in Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (2003) 126 FCR 354; [2003] FCAFC 3 to deny the existence of a matter within the meaning of s 77(i) of the Constitution and s 39B of the Judiciary Act. It was rejected as a reason for precluding summary dismissal of a proceeding for judicial review of the Executive’s dealings with the US in respect of the detention of an Australian citizen in Guantánamo Bay in Hicks v Ruddock (2007) 156 FCR 574; [2007] FCA 299. It was referred to by Gummow J in Re Ditfort at 371. The Commonwealth submitted that the doctrine is informed by the principles of the separation of powers and international comity (see Spycatcher at 41 endorsing Buttes at 932 to the effect that the underlying principle “is not one of discretion, but is inherent in the very nature of the judicial process” and the statement of the US Supreme Court in Oetjen v Central Leather Co 246 US 297 at 304 (1918) that to permit the validity of the acts of a sovereign state to be examined and perhaps condemned by the courts of another would “imperil the amicable relations between governments and vex the peace of nations”). From this, the Commonwealth said, it follows that the limits of the doctrine are not to be found in a priori exceptions whether based on public policy or otherwise but from a consideration of the principles that inform the content of the doctrine. The better view is that where the doctrine is prima facie engaged, it operates unless the considerations of international comity and separation of powers that inform the content of the doctrine are clearly inapplicable. According to the Commonwealth, if there is any doubt about these considerations, judicial restraint is required. This is because the doctrine exists to avoid the need for inquiry by a court as to the effect on foreign relations of any particular determination about the validity of sovereign acts of foreign states.

Ratio Decidendi

Legal Principle Established

In terms of the jurisprudence of the United Kingdom, there is no reason why an Australian court also “should not give effect to clearly established principles of international law” (Kuwait Airways No 5 at [139]), particularly where those principles involve protection against the infliction of torture which the Commonwealth Parliament has prohibited. Considerations informing the content of the doctrine The claim is founded on allegations of torture. The prohibition on torture is an absolute requirement of customary international law. The prohibition is codified in the Torture Convention to which each of the states in question is party (other than Pakistan which is a signatory). It is conduct which the Commonwealth Parliament has proscribed by legislation expressed to apply throughout the world and to all persons, consistent with the international consensus that the torturer must have no safe haven. In terms of the “degree of codification or consensus concerning a particular area of international law” (the first Sabbatino factor) the prohibition on torture is an agreed absolute value from which no derogation is permitted for any reason. The prohibition is a clearly established principle of international law in the sense described in Kuwait Airways No 5 at [139]. The international community has spoken with one voice against torture. As the Commonwealth submitted, international comity is concerned not only with the content of the international consensus against torture but also the question of who may judge any contravention of that norm. While this case will involve factual findings about the conduct of foreign officials, the context in which their conduct arises for consideration is inconsistent with the acceptance of the Commonwealth’s proposition that international comity might be undermined. The case involves an Australian court considering and determining whether, as alleged, officials of its own government aided, abetted and counselled foreign officials to inflict torture upon an Australian citizen in circumstances where the acts of those foreign officials, if proved as alleged, would themselves be unlawful under Australian laws having extra-territorial effect. Insofar as judicial scrutiny might be thought to give rise to a risk of generalised embarrassment to Australia’s foreign relations, the Commonwealth disavowed any suggestion that Australian jurisprudence should adopt an approach of deference to the advice of the executive about the state of foreign relations from time to time (referred to as the Bernstein exception, by reference to a US case bearing that name, Bernstein v N V Nederlandsche-Amerikaansche, Stoomvaart-Maatschappij 210 F.2d 375 (2d Cir. 1954), discussed in Sabbatino at 427-428 and Patterson at 128-129). The separation of powers rationale cannot be considered in isolation from that of justiciability. Issues for which there are no “judicial or manageable standards” of judgment are outside the reach of the judicial branch (Buttes at 938 and see also Re Ditfort at 370). But, as Mr Habib’s submissions proposed, in this case there are clear and identifiable standards by which the conduct in question may be judged – the requirements of the applicable Australian statutes and the international law which they reflect and embody. The Court will not be in a “judicial no-man’s land” (Buttes at 938).