Habib v. Commonwealth of Australia.

AuthorNyst, Carly
PositionAct of state doctrine and its application to allegations of torture

I Introduction

On 4 October 2001, three days before the commencement of United States (US) combat operations in Afghanistan, dual Australian-Egyptian citizen Mamdouh Habib was arrested in Pakistan by Pakistani authorities assisted by US officials. For the following 40 months, Mr Habib was detained in Pakistan, Egypt, Afghanistan and Guantanamo Bay. Mr Habib alleges that during this time he was subjected to severe mistreatment, amounting to torture, at the instigation or with the knowledge or assistance of US authorities. Throughout, Mr Habib claims, Australian authorities were implicated in his mistreatment.

Following his release from Guantanamo Bay without charge on 28 January 2005, Mr Habib initiated, inter alia, proceedings with respect to tortious acts allegedly committed by Commonwealth officials during the course of his detention. (1) This case note provides an analysis of a motion filed by the Commonwealth of Australia seeking to have Mr Habib's proceedings dismissed on the ground that the determination of Mr Habib's claim would require an assessment of the acts of a foreign State, which acts are not justiciable before Australian courts. Habib v Commonwealth of Australia, (2) therefore, is a decision of the Full Court of the Federal Court (Black CJ, Jagot and Perram JJ presiding) considering the content of the common law act of state doctrine, and its application with respect to allegations of torture Jagot J, with whom Black CJ agreed, authored the majority judgment, while Perram J authored a concurring, but separate, judgment.

Habib is a case of considerable significance. It provides important guidance for former detainees seeking redress for acts of torture committed by agents of a foreign State. The judgment reviews the act of state doctrine in light of contemporary American and British jurisprudence, providing greater certainty as to the contours of the doctrine under Australian law. Furthermore, the decision in Habib lends substantial support to the contention that the prohibition against torture enjoys peremptory status under international law and constitutes an established pillar of Australian domestic law.

II The acts alleged

The veracity or otherwise of Mr Habib's allegations with respect to his detention was not at issue before the Court; thus, a comprehensive treatment of their content is not necessary here. In summary, Mr Habib alleged that he was subjected to 'repeated and oppressive interrogation and mistreatment' (3) for the duration of his detention and interrogation: in Pakistan between 4 October and mid-November 2001; in Egypt between 21 November and May 2002; at Bagram and Kandahar airbases in Afghanistan in May 2002; and at Guantanamo Bay from May 2002 until 28 January 2008. According to Mr Habib, this conduct was carried out by or at the behest of agents of Pakistan, Egypt and the US, and constituted acts of torture within the meaning of s 3(1) of the Crimes (Forture) Act 1988 (Cth), (4) in violation of s 6(1) of that Act. (5) Mr Habib also alleges that the conduct was contrary to provisions applicable to protected persons under the Geneva Convention Relative to the Treatment of Prisoners of War, (6) thus contravening s 7(2)(c) of the Geneva Conventions Act 1957 (Cth) (with respect to conduct occurring prior to 26 September 2002) and ss 268.26(1) and 268.74 (1) of the Criminal Code, being a Schedule to the Criminal Code Act 1995 (Cth) (with respect to conduct occurring after 26 September 2002). (7)

Mr Habib's claim for damages against the Commonwealth is predicated upon the allegation that officers of the Australian Federal Police (AFP), Australian Security and Intelligence Organisation (ASIO) and the Department of Foreign Affairs and Trade (DFAT), by their actions, aided, abetted or counselled the unlawful conduct of the agents of the governments of Pakistan, Egypt and the US. Thus, Mr Habib alleges these Commonwealth officers also contravened the abovenamed provisions by virtue of s 11.2 of the Criminal Code. (8) Consequently, he has claimed damages against the Commonwealth for the tort of misfeasance in a public office (9) and the innominate tort of intentional infliction of indirect harm. (10)

III History of the proceedings and present application

On 16 December 2005, Mr Habib commenced proceedings in the High Court of Australia against the Commonwealth or Australia, by writ of summons. Pursuant to s 44 (2A) of the Judiciary .Act 1903 (Cth), (11) the High Court remitted the proceedings to the Federal Court of Australia on 26 April 2006.A number of Mr Habib's initial claims were dismissed by the Federal Court on 13 March 2009. (12) At this time, Mr Habib was granted leave to re-plead defamation, misfeasance and harassment. By Notice of Motion filed on 17 June 2009, the Commonwealth sought and was granted (with the consent of Mr Habib) a full hearing before the Full Court of the Federal Court in order to determine the Court's jurisdiction to hear such matters in consideration of the act of state doctrine. (13) The following question was placed before the Full Court, pursuant to s 25(6) of the Federal Court of Australia Act 1976 (Cth) and O 50 r 1 of the Federal Court Rules 1979 (Cth):

Should the application be dismissed in respect of the claims made in paragraphs 1-36 of the Fourth Further Amended Statement of Claim on the ground identified in paragraph 1 of the Respondent's Notice of Motion filed 17 June 1009? The ground identified...

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