Hicks v Ruddock

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.