Habib v Commonwealth

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.