Habib v Minister for Foreign Affairs & 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 applicants' detention in Guantanamo Bay and the alleged complicity of Australian officials in their rendition and detention. Habib, in particular, alleged that Australian officials had been involved in his transfer to a facility where he was subjected to torture, and that the Minister had failed to take reasonable steps to prevent his torture or to secure his release.

The High Court was required to determine whether the Minister owed a duty of care to Australian citizens detained overseas, and if so, what the scope of that duty was. Specifically, the Court considered whether the Minister had a duty to inquire into the conditions of detention or the treatment of Australian citizens held in foreign jurisdictions, and whether this duty extended to taking positive steps to prevent torture or secure release. The Court also examined the extent to which the Director-General of Security's actions or omissions could give rise to a cause of action.

Gummow J, in his reasons, considered the principles of the common law relating to the duty of care owed by the executive government to its citizens. His Honour noted that while the executive government has broad powers and responsibilities, the imposition of a duty of care in such novel circumstances required careful consideration of the potential impact on the conduct of foreign relations and national security. The Court ultimately found that the existing common law did not impose a duty of care on the Minister in the circumstances alleged by the applicants, particularly concerning the actions of foreign governments and the complex international legal landscape.

The applications were dismissed.