Hicks v Ruddock

Case [2007] FCA 299

FEDERAL COURT OF AUSTRALIA

JUSTICE BRIAN J TAMBERLIN
8 March 2007

DAVID MATTHEW HICKS v
THE HONOURABLE PHILIP RUDDOCK MP, ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA, THE HONOURABLE ALEXANDER DOWNER MP, MINISTER FOR FOREIGN AFFAIRS AND COMMONWEALTH OF AUSTRALIA

NSD 2376 OF 2006

EXPLANATORY STATEMENT

It is the practice of this Court in matters which are of significant public interest to make a brief explanatory statement when delivering the judgment.

The statement I now make is an overview of the main issues and my conclusions, but it does not purport to set out my reasons and findings which are contained in the judgment.  My present judgment concerns only the application by the Ministers and the Commonwealth to summarily dismiss Mr Hicks’ claims because it is said they disclose no reasonable prospect of success as a matter of law.  The effect of this application, if successful, would be that Mr Hicks’ case would not be heard because the Ministers and the Commonwealth have no case to answer.

Mr David Hicks is an Australian citizen who has been confined at Guantanamo Bay Naval Base by United States authorities for more than five years without any valid charges having been brought against him as at the date of this application.

In substance he claims that he should be released and returned to Australia and that the Minsters and the Commonwealth are responsible for his ongoing wrongful internment. 

First, he says that he has been unlawfully imprisoned and that the Ministers and the Commonwealth have sufficient control to have him returned to the country of his citizenship.  He therefore seeks an order of habeas corpus for reasons to be given as to why he should not be released from internment and returned.

Second, Mr Hicks alleges that the Ministers and the Commonwealth have made statements that they will not request his return because if he is brought back to Australia he may not be able to be prosecuted under Australian law.  The consequence of the refusal is to allow the United States to take such action against him as it sees fit.  It is alleged by Mr Hicks that these are two operative reasons which the Respondents rely on for not exercising the right of Australia to make the request to the United States.

Mr Hicks submits that these two reasons are irrelevant to a proper consideration of his need for protection and that the executive decision not to make a request should be set aside as invalid.  He also says that the Respondents have a “duty” to lawfully consider his request.  They have not done so and they should therefore be ordered to consider it in accordance with law by not taking into account irrelevant considerations.

The two Ministers and the Commonwealth, by their present application to secure a “summary judgment”, seek to have these proceedings stopped at this point as a matter of law, without the need to look at the evidence.  They say that, even assuming that the allegations in Mr…

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AGLC
Hicks v Ruddock [2007] FCA 299
Case
[2007] FCA 299
Decision Date

CaseChat Overview and Summary

The case of Hicks v Ruddock involved an Australian citizen, Mr Hicks, detained in Guantanamo Bay, who sought a writ of habeas corpus and judicial review against the Australian government. Mr Hicks argued that the government had failed in its duty to protect him by not requesting his repatriation from the United States. The respondents contended that the decision was not subject to judicial review and that the writ of habeas corpus was not available because Mr Hicks was not in their custody or control.

The court had to determine whether the respondents were required to consider Mr Hicks' application for repatriation and whether their decision not to request his return was valid. The court examined the principles of habeas corpus and the nature of control required to justify the issue of the writ. It also considered the principle of non-justiciability and whether the respondents' decision was subject to judicial review. The court had to decide whether the respondents were required to consider only relevant factors when deciding whether to request Mr Hicks' return and whether their consideration of irrelevant factors rendered their decision invalid.

The court found that there was a reasonable prospect of success in the argument that the fact of detention without evidence of authorisation was sufficient to warrant the conclusion that the detention was unlawful. Therefore, the matter should not be prevented from consideration at a hearing. The court held that the writ of habeas corpus was available if Mr Hicks was under the control of the respondents, and the question of control was one of fact and degree. The court also found that the respondents were required to consider only relevant factors when deciding whether to request Mr Hicks' return, and their consideration of irrelevant factors rendered their decision invalid.

The application was dismissed with costs, and the hearing of the matter was expedited. The parties were required to file a timetable within the next 10 days, and the applicant was granted leave to file and serve an Amended Statement of Claim.

Orders

Orders of the court

1. The application is dismissed with costs.

2. The hearing of the matter is expedited and should be heard as soon as possible.

3. The parties to file a timetable within the next 10 days.

4. The applicant has leave to file and serve an Amended Statement of Claim.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Scrutton LJ said at 391-392:‘I do not wish to tie myself to the exact degree of power over the body which justifies the issue of the writ, for various higher authorities have used different words. Lord Herschell’s language is “custody, power or control”; Lord MacNaghten’s “under control or within reach”; Lord Halsbury’s “wrongful detention by himself or his agent”… There is no exact evidence as to the arrangement, except the statement of Mr Bridgeman in the fifth paragraph of his Affidavit, but the Attorney-General told us the “arrangement” was oral.’ (Emphasis added)The above indicates that an oral ‘arrangement’ may be sufficient to constitute control. This is considerably less than a requirement of custody. The Court made the rule absolute in order to consider the nature of the arrangement. The importance of evidence to a determination was a point also stressed by Atkin LJ at 398. The decision in O’Brien was subsequently considered in the matter of Foday Saybana Sankoh [2000] EWCA Civ. 386 by the English Court of Appeal. The application failed because it was brought against the Secretary of State on extremely tenuous grounds by the wife of Mr Sankoh. She sought habeas corpus against the British government authorities on the basis that there was some information which allegedly showed that Mr Sankoh was within the custody or control of British authorities. The Court of Appeal considered the material which had been adduced before the primary judge, and concluded that a link with the British government was so thin that it could not possibly amount to sufficient control. The case bore no similarity to O’Brien. The Court of Appeal considered the claim as a question of fact, particularly with regards to the nature and extent of the alleged links with Britain. In that case, the only connection appeared to be that British Armed Forces had assisted the Sierra Leone Police to transport Mr Sankoh to a United Nations site from which he then was removed by the Sierra Leone Police, without any assistance from United Kingdom Forces, to a place unknown. There was some evidence from the British file, submitted on behalf of the British government, to the effect that the British Taskforce involvement was purely to provide some brief transport and security to the Sierra Leone Police, together with some medical attention on an emergency basis while Mr Sankoh was aboard a helicopter. From this flimsy basis, the applicant argued there was sufficient ‘control’ by the British government to grant an application for habeas corpus. In forceful language, Lord Justice Laws, with whom Lord Justice Ward and Lord Justice Waller agreed, held that there was not a ‘whisper of an objective basis’ for the suggestion that the Secretary of State had any control over Mr Sankoh so as to warrant the issue of a writ of habeas corpus. Lord Justice Waller added that there was ‘absolutely no shred of evidence of any degree of control’, and Lord Justice Ward referred to it as an ‘impudent appeal’ and awarded indemnity costs.

Decision

Reasons for decision

TAMBERLIN J
The majority opinion in the Circuit Court says at 17 of the (as yet) unreported judgment:‘The antecedent question – whether Omar’s transfer even requires a treaty or statutory authorization – is also fully justiciable. On the merits, the government will surely argue that under Article II of the Constitution, the military needs no express authority to transfer detainees like Omar. Resolving this claim will involve difficult questions of constitutional law – questions which, significantly for our purposes, will require no judicial intrusion into the exclusive domain of the political branches. To be sure, a decision on the merits might well have implications for military and foreign policy, but that alone hardly makes the issue non-justiciable.’ (Emphasis added)In my view, neither the Act of State doctrine nor the principle of non-justiciability justify summary judgment at this stage of the proceeding.HABEAS CORPUS A fundamental principle of English law is that no member of the executive can interfere with the liberty of a British subject, except on the condition that the legality of the interference is established as lawful before a court of justice: R v Home Secretary, Ex parte Khawaja [1984] 1 AC 74 at 110 per Lord Scarman. This principle is deeply embedded in the common law. It applies in war as in peace: see Liversidge v Anderson [1942] AC 206 at 244. The writ of habeas corpus was described by Supreme Court Justice Brennan in Fay v Moia (1963) 372 US 391 at 400, quoting Lord Birkenhead in Secretary of State for Home Affairs v O’Brien [1923] AC 603 at 609, in these terms:‘It is a writ antecedent to statutes, and throwing its roots deep into the genius of our common law… It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift remedy in all cases of illegal restraint or confinement.’Custody or Control The respondents submit that habeas corpus is not available in this case because Mr Hicks is not in the custody or control of the respondents. Control or custody is an essential element to the issue of the writ. Mr Hicks submits that for the writ to issue it is not necessary to show that the respondents have actual custody. It is contended that it is sufficient to show that the applicant is ‘under the control’ of the respondents in the sense that they have sufficient power to bring about his release from detention. The question of ‘control’ in the present case is one of fact and degree, so that the applicant should not be blocked at the pleading stage from adducing and testing evidence as to the sufficiency of the control of the respondents and their power to procure his release. The primary authority on which Mr Hicks relies is the The King v Secretary of State for Home Affairs; Ex parte O’Brien (1923) 2 KB 361, a decision of the English Court of Appeal. In that case, the habeas corpus application was brought against the Secretary of State for Home Affairs seeking the applicant’s release from detention in the Irish Free State, which had been ordered by the Home Secretary. Mr O’Brien had been arrested in London under the order (which was later found to be invalid) and was conveyed to Dublin where he was interned. There was an ‘agreement’ between the Home Secretary and the Irish Free State government that if an advisory committee appointed by the Secretary of State reported that Mr O’Brien ought not to have been interned, then the Irish Free State government would release him.

Ratio Decidendi

Legal Principle Established

Established by: TAMBERLIN J

I am not persuaded that there is no reasonable prospect of success in the argument that the fact of detention is itself, without evidence of authorisation, sufficient to warrant the conclusion the detention is unlawful. Accordingly, I find that the matter should not be prevented from consideration at a hearing and therefore refuse to strike out the matter on this ground. The proceeding should go to a hearing on the question of the availability of the writ of habeas corpus.JUDICIAL REVIEW – IRRELEVANT CONSIDERATIONS Mr Hicks submits that the respondents have a duty to consider an application by an imprisoned Australian citizen that a request be made to the United States authorities to deliver the citizen to Australian authorities, and that the respondents must exercise this duty by having regard only to relevant considerations. It is not submitted that on judicial review, the respondents must ask the United States authorities to return Mr Hicks, but rather that the respondents must consider in accordance with law whether they will make the request. Mr Hicks submits that there are two irrelevant considerations at issue in this proceeding. The first is the premise that Mr Hicks could not be prosecuted under Australian law if returned to Australia. The second is the premise that it is desirable that Mr Hicks should remain in detention in Guantanamo Bay and should be the subject of proceedings there. Mr Hicks submits that by taking into account these two considerations, the respondents have considered matters irrelevant to the exercise of their discretion in considering whether to make the request, and that, as a consequence, the respondents’ decision not to request the return of Mr Hicks was invalid and must be taken not to have been made. Therefore, it is contended, the respondents have failed in their duty to consider the exercise of their power to protect the applicant, and the respondents must now consider anew whether to make a request without giving any weight to the irrelevant factors. The respondents contend that in deciding whether to request the return of Mr Hicks, it is clearly relevant to take into account the fact that it may not be possible to prosecute him under Australian law. It is submitted that this is because the possibility that Mr Hicks will not be prosecuted is a significant consideration when the respondents come to consider whether the request is likely to be granted or serve any useful purpose. Moreover, it is said that it is open to the respondents to conclude that it is undesirable that Mr Hicks should go free if returned. The respondents emphasise that the discretion concerned is a wide and unfettered executive discretion at the highest level, and that there are no constraints or criteria imposed on that discretion. Therefore, it is submitted, the question of extraneous considerations is inapplicable and the issue is non-justiciable. In answer to this, Mr Hicks submits that under the Australian Constitution, and in particular s 61, the federal executive government owes a duty of protection to a citizen in the predicament of Mr Hicks. Although this protective duty cannot be enforced by Mr Hicks, it is a duty of imperfect obligation which must be taken into account in the respondents’ consideration as to whether to make a request. It would be inconsistent with this duty of protection to take into account that Mr Hicks would not be prosecuted if returned. Due to this inconsistency, an inability to prosecute Mr Hicks in Australia or the likelihood that he may go free if returned cannot be relevant in the respondents’ consideration as to whether the applicant should be protected by a request to the United States authorities to repatriate him from Guantanamo Bay back to Australia. Likewise, it is said, the respondents’ purpose of further co-operating with the United States authorities in relation to the continued detention and prosecution of Mr Hicks in Guantanamo Bay is not consistent with the Executive’s duty to protect a citizen. Therefore, the applicant submits, both of these considerations are extraneous to the protective duty. The function of the Executive under s 61 is to protect against – and not enable – the punitive detention and prosecution of an Australian citizen in a ‘legal black hole’, to use the terminology of the English Court of Appeal in Abbasi.