Habib v Minister for Foreign Affairs and Trade; Habib v Director-General of Security

The applicants, David Hicks and Mamdouh Habib, sought judicial review of decisions made by the Minister for Foreign Affairs and Trade and the Director-General of Security. The core of the dispute concerned the respondents' alleged failure to take steps to secure the applicants' release from detention in Guantanamo Bay, Cuba, where they were held by the United States military. The applicants contended that the Australian government had a duty to act to protect them from unlawful detention and mistreatment, and that the government's inaction amounted to a breach of this duty. The matter came before the High Court of Australia.

The High Court was required to determine whether the Minister and the Director-General owed a duty of care to the applicants in relation to their detention and treatment by foreign powers. Specifically, the court considered whether the common law recognised a duty of care extending to Australian citizens detained abroad by a foreign government, and if so, what the scope and content of that duty would be. The applicants also raised arguments concerning the implied constitutional prohibition against arbitrary detention.

The Court ultimately held that no such duty of care was owed by the Minister or the Director-General to the applicants. French CJ and Bell J, in separate judgments, found that the existing framework of international law and the principles of state sovereignty did not support the imposition of a common law duty of care in the circumstances presented. Their Honours reasoned that the government's actions or omissions in relation to foreign detentions were primarily matters of policy and international relations, not amenable to judicial review on the grounds of negligence. The implied constitutional prohibition against arbitrary detention was also found not to apply to the actions of a foreign power.

The applications for judicial review were dismissed.