Habib v Australia [Australia, Federal Court]

• Jurisdiction: Australia Federal only
• Judgment Date: 25 February 2010
• Date: 25 February 2010
• Court: Federal Court

([2010] FCAFC 12)

Australia, Federal Court

(Black CJ; Perram and Jagot JJ)

Habib

and

Commonwealth of Australia1

Relationship of international law and municipal law Act of State doctrine Alleged violations of international law and Australian law by Australian officials Allegation that Australian officials aided and abetted torture and ill-treatment by officials of foreign States Whether justiciable in Australian courts

Human rights Torture Prohibition of torture a jus cogens rule Whether status of rule affecting justiciability of alleged breach Detention of applicant at Guantnamo Bay Allegations of torture The law of Australia

Summary:2The facts:The applicant, Mamdouh Habib, brought a civil claim for damages against the Commonwealth of Australia in which he alleged that officers of the Commonwealth had committed the torts of misfeasance in public office and intentional but indirect infliction of harm by aiding, abetting and counselling his torture and other inhumane treatment by foreign officials while he was detained in Pakistan, Egypt and Afghanistan and at the United States base at Guantnamo Bay. The applicant alleged that he had been arrested in Pakistan by agents of the Government of Pakistan on 4 October 2001, moved to Egypt and incarcerated there for approximately six months from 21 November 2001 to April or May 2002. He maintained that he had then been moved to Bagram airfield in Afghanistan, which was under the de facto control of the United States, and subsequently to Kandahar, also in Afghanistan and also under de facto United States control. In early May 2002, he had been moved to Guantnamo Bay where he was detained until 28 January 2005, after which he was repatriated to Australia.

The applicant alleged that during his detention he had been the victim of torture in an attempt to elucidate information about supposed terrorist activities. These acts of torture were allegedly committed by local authorities with the knowledge or assistance of United States officials in Pakistan and Egypt, and

by United States authorities in Guantnamo Bay. The applicant further alleged that during his incarceration in these places he was visited by Australian officials from the Australian Secret Intelligence Organisation (ASIO), the Australian Federal Police (AFP) and/or the Department of Foreign Affairs and Trade (DFAT), and that these officials took part in the interrogations. Although the applicant did not allege that the Australian officials had participated in any acts of torture, he maintained that they would have recognized from his appearance that he had been the victim of torture. Furthermore, the applicant alleged that ASIO officials provided Egyptian authorities with certain information used during his interrogation

It was common ground between the parties that the applicant would be unable to bring a successful suit against any of the foreign States or their agents as sovereign immunity would act as a procedural bar to the claim. However, the applicant did not bring an action against any of the foreign governments or their agents for perpetrating torture; rather he alleged that the Commonwealth was complicit in the torture. The claim required proof on the balance of probabilities that the allegations were committed by Commonwealth officers acting outside Australia in breach of Section 6 of the Crimes (Torture) Act 1988 (Cth) or at the direction of foreign States in breach of Section 7 of the Geneva Conventions Act 1977 and Sections 268.26 and 268.74 of the Criminal Code Act 1995 (Cth) (the Criminal Code). Relevantly, under Section 11(2) of the Criminal Code, it was an offence to aid or abet the commission of any offence contained in the Criminal Code. The applicant alleged that complicity by Commonwealth officials in the acts of torture perpetrated against him constituted the torts of misfeasance in public office and intentional but indirect infliction of harm.

The question reserved for the Court was whether the applicant's claim was non-justiciable as it required the determination of the unlawfulness of the acts of foreign States within their territories, which the common law act of State doctrine precluded.

Held:The act of State doctrine was not applicable.

(1) The act of State doctrine formed part of the common law of Australia but there were exceptions to the doctrine based on public policy. In particular, the exceptions applied where there was a plain breach of clearly established principles of international law. Those principles included the prohibition of torture, which had the status of jus cogens. It was not relevant that the allegations made in the present case had not been proven (paras. 7, 38 and 72110).

(2) The act of State doctrine did not prevent an Australian court from examining whether Australian officials had breached Australian laws reflecting peremptory international norms. It would not be necessary to make any declarations in respect of the conduct of foreign officials, and the context of the findings would not undermine international comity. Further, the question of justiciability was not an issue, because Australian statutes and international law provided clear and identifiable standards for the judiciary to apply (paras. 11119).

(3) The act of State doctrine had no application where it was alleged that Commonwealth officials had acted beyond the bounds of their authority under Commonwealth law. Section 75 of the Constitution gave jurisdiction to grant relief against an invalid purported exercise of Commonwealth legislative power or an unlawful exercise of, or refusal to exercise, Commonwealth executive authority. Consequently, whenever a question as to the limits of Commonwealth power arose, it was justiciable (paras. 249 and 12932).

The following is the text of the judgments delivered in the Court:

BLACK CJ

1. I agree with Jagot J, for the reasons her Honour gives, that the reserved question should be answered No. I would add the following observations. In doing so, I must emphasise that the allegations made by Mr Habib are, at this stage of the proceeding, no more than allegations in an amended statement of claim and not the subject of evidence, much less any judicial determination of their accuracy or otherwise.

2. The applicant Mr Habib, the plaintiff in a proceeding remitted to this court by the High Court of Australia, is an Australian citizen. He alleges that officers of the Commonwealth committed the torts of misfeasance in public office and intentional but indirect infliction of harm by aiding, abetting and counselling his torture and other inhumane treatment by foreign officials while he was detained in Pakistan, Egypt and Afghanistan and at Guantnamo Bay. If officers of the Commonwealth were found to have aided, abetted or counselled the commission of those offences, the officers would be taken to have committed those offences (s 11.2 of the Criminal Code Act 1995 (Cth)) and thus, Mr Habib alleges, to have acted beyond the scope of their lawful authority.

3. For this part of his case to succeed, Mr Habib must prove, on the civil standard, that the alleged acts of torture and other inhumane treatment were committed by persons who were, or were acting at the instigation of or with the consent and acquiescence of, public officials or persons acting in an official capacity outside Australia in breach of s 6 of the Crimes (Torture) Act 1988 (Cth) or by or at the behest of agents of foreign states in breach of s 7 of the Geneva Conventions Act 1957 (Cth) and ss 268.26 and 268.74 of the Criminal Code. (The Crimes (Torture) Act gives effect for Australia to the provisions of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the General Assembly of the United Nations on 10 December 1984 (the Torture Convention) and the Geneva Conventions Act 1957 (Cth) gives effect to the Convention relative to the Treatment of Prisoners of War adopted at Geneva on 12 August 1949 (the Third Geneva Convention) and the Convention relative to the Protection of Civilian Persons in Time of War adopted at Geneva on 12 August 1949 (the Fourth Geneva Convention). Australia is a party to each of these conventions.) While it is a necessary element of the case against the Commonwealth that the agents of foreign states committed the principal offence, it is not a necessary element that those persons were prosecuted: s 11.2(5) of the Criminal Code.

4. The question reserved for the court under s 25(6) of the Federal Court Act 1976 (Cth) and O 50 r 1 of the Federal Court Rules is whether, as the Commonwealth asserts, the court should dismiss the claims of misfeasance in a public office and intentional but indirect infliction of harm for the reason that, since their resolution would require a determination of the unlawfulness of acts of agents of foreign states within the territories of foreign states, those claims are not justiciable and give rise to no matter within the jurisdiction of the court under s 39B of the Judiciary Act 1903 (Cth) and s 77(i) of the Commonwealth Constitution, or give rise to no cause of action at common law.

5. The Commonwealth argues that the act of state doctrine of the common law compels this result. While there was dispute about the scope of the doctrine, it was not in contention that it forms part of the common law of Australia: see Potter v. Broken Hill Pty Co. LtdUNK(1906) 3 CLR 479; Attorney-General (UK) v. Heinemann Publishers Australia Pty Ltd (Spycatcher case)UNK(1988) 165 CLR 30; 78 ALR 449; Petrotimor Companhia de Petroleos SARL v. CommonwealthUNK(2003) 126 FCR 354; 197 ALR 461; [2003] FCAFC 3.

6. Judicial consideration of the doctrine in Australia has been limited and conceptions of it in this country draw upon cases decided by the House of Lords and courts of the United States. The doctrine is commonly defined by reference to the observations of Fuller J in Underhill v. Hernandez(1897) 168 US 250 at 252 that:

7. I...