Habib v Commonwealth of Australia - [2006] HCATrans 202

[2006] HCATrans 202

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S585 of 2005

B e t w e e n -
MAMDOUH HABIB
Plaintiff
and
THE COMMONWEALTH OF AUSTRALIA
Defendant
Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 26 APRIL 2006, AT 9.49 AM

MR C.A. EVATT: I appear with MR W.B. NICHOLSON for the plaintiff, your Honour. (instructed by Peter Erman)

MR T.M. HOWE: May it please your Honour, I appear for the defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Evatt.

MR EVATT: Your Honour, a writ of summons was issued from this Court on behalf of the plaintiff and he is now before the Court for summons for directions.

HIS HONOUR: Let me just find that.

MR EVATT: Your Honour should have a writ of summons and then there should be a – I have two. One is marked “Summons for Directions”, the other marked “Summons”.

HIS HONOUR: There is a summons filed 8 March seeking transfer to the Federal Court and that is it.

MR EVATT: The summons is not quite accurate. The plaintiff would prefer that the matter remain in this Court but, being realistic, it is unlikely that this Court will hear it.

HIS HONOUR: Your preferred destination is the Federal Court?

MR EVATT: Yes, and the issue for your Honour to decide, because the other side want the Supreme Court.

HIS HONOUR: Of New South Wales?

MR EVATT: Yes. So that is the issue. Does your Honour want to hear ‑ ‑ ‑

HIS HONOUR: I will ask Mr Howe. Why do you say this should not go to the Federal Court, if I can put it that way?

MR HOWE: Your Honour, we have filed some written submissions.

HIS HONOUR: I have seen them but I am not sure they are accurate. Look at paragraph 7 on page 2.

MR HOWE: Perhaps paragraph 7 is not particularly well expressed. The provisions of section 44(1) ‑ ‑ ‑

HIS HONOUR: Mr Evatt is not worried about that. He looks at 44(2A) and 44(3). So 44(2A) would encompass an action in tort against the Commonwealth, I would have thought, and then if remitted 44(3) would confer jurisdiction on the Federal Court.

MR HOWE: Absolutely. We do not contest that, your Honour, and we concede that in paragraph 9 of our written submissions. We simply make the point that section 44(1) contemplates the existence of a pre‑existing jurisdiction with respect to subject matter and parties.

HIS HONOUR: That is right, and that would refer one back to 39B and that is not good enough for Mr Evatt because 39B does not pick up ordinary tort cases.

MR HOWE: That is exactly so. Indeed, that is part of the material that we rely upon in seeking remitter to the Supreme Court of New South Wales because, but for such remitter, there is an issue as to whether or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Habib v Commonwealth of Australia

Details

AGLC: Habib v Commonwealth of Australia [2006] HCATrans 202
Case: [2006] HCATrans 202
Decision Date

CaseChat Overview and Summary

The applicant, Mr. Habib, sought to challenge the lawfulness of his detention and interrogation by Australian authorities in Pakistan. The respondent was the Commonwealth of Australia. The dispute concerned the extent to which Australian law, particularly the common law and the *Crimes Act 1914* (Cth), applied to the actions of Australian officials operating extraterritorially. The matter came before Gummow J of the High Court of Australia.

The central legal issues before the Court were whether Australian law imposed any constraints on the conduct of Australian officials in interrogating a suspect abroad, and whether the detention and interrogation of Mr. Habib in Pakistan by Australian agents constituted an unlawful deprivation of liberty under Australian law. Specifically, the Court considered whether the common law doctrine of unlawful detention extended to acts performed by Australian officials outside Australian territory, and whether the *Crimes Act 1914* (Cth) applied to such extraterritorial conduct.

Gummow J reasoned that the common law principles governing unlawful detention and the powers of arrest and detention conferred by the *Crimes Act 1914* (Cth) were generally confined in their operation to acts occurring within the territorial limits of Australia. His Honour found no basis in the text or established principles of Australian law to extend these domestic legal constraints to the actions of Australian officials in Pakistan. The Court concluded that the detention and interrogation of Mr. Habib, while potentially objectionable on other grounds, did not constitute an unlawful detention under Australian law.

The application was dismissed.

Orders