Hicks v. Ruddock.

• Author: Hill, Martin Roland
• Position: Habeas corpus

Introduction

David Matthew Hicks was released from Yatala Prison on 29 December 2007. Mr Hicks' release concluded more than five years of detention and imprisonment. Questions remain over the legality of Mr Hicks' detention by the United States of America at Guantanamo Bay in Cuba, his trial, and subsequent imprisonment; among; them, whether Mr Hick's detention violated his right to liberty.

This note looks at one of the numerous legal aspects of Mr Hicks' odyssey: the 2006 application to the Federal Court of Australia. (1) Particularly, it examines the Federal Court's decision in relation to the respondents' motion for summary judgement. Of the five issues identified by Tamberlin J in Hicks v Ruddock (2) ('Hicks') this note will consider the justiciability, judicial review issues, and the application for a writ of habeas corpus. (3)

Hicks is the decision of a single justice of the Federal Court hearing a motion for summary judgement. This had a considerable influence on the structure of the case as well as on the discussion of the parties' submissions. Further, it relates to a matter that--since Mr Hicks' guilty plea to a charge of providing material support for terrorism, (4) subsequent repatriation, and release--ceased to be justiciable. While the authority of Justice Tamberlin's decision may be questioned before future courts, it contains strong dicta on the writ of habeas corpus in Australian law. It also contains interesting discussions of the Act of State doctrine and the potential role of a duty of protection in administrative decision making.

1. The Odyssey--A Factual Background

   Mr Hicks, an Australian citizen, who converted to Islam, travelled to Afghanistan around January 2001, (5) eventually supporting the Taliban faction in the civil conflict then occurring. Mr Hicks had previously joined the Kosovo Liberation Army and travelled to Pakistan in late 1999. (6) In Pakistan, Mr Hicks joined Lashkar-e-Toiba before being accepted into the Taliban. (7)

   The Northern Alliance, a faction in the Afghan civil conflict, transferred Mr Hicks to the custody of the United States on 9 December 2001. (8) The United States, with allies including Australia, intervened in the Afghan civil conflict in October 2001. (9) This intervention was a military response to the terrorist attacks that occurred in the United States on 11 September 2001. (10) The attacks were orchestrated by Osama bin Laden, who had received support and shelter in Afghanistan.

   In late 2001, Mr Hicks was detained by members of the military force of the Northern Alliance, while sitting at a taxi stand in Baghlan. (11) Mr Hicks was, about 11 January 2002, transferred by United States authorities to a US naval base at Guantanamo Bay ('Guantanamo'). (12) The Guantanamo base is leased by the United States from Cuba. (13) Mr Flicks remained detained at Guantanamo until he was transferred to the custody of Australian authorities en-route to Yatala.

2. The 2006 Application

   On 6 December 2006, Mr Hicks filed an application with the Federal Court. The application sought:

1. A declaration that the inability to prosecute Mr Hicks under Australian law was an irrelevant consideration, and constituted an improper purpose with respect to the exercise by then Commonwealth Attorney-General Philip Ruddock and then Minister for Foreign Affairs Alexander Downer ('the Minister') of their executive discretion whether, and if so how, the Commonwealth of Australia should take steps to protect Mr Hicks by seeking his repatriation and release by authorities of the United States from their custody. (14)

2. A declaration that the willingness to waive mandated trial standards was an irrelevant consideration, and constituted an improper purpose with respect to the exercise by the Attorney-General and the Minister of their executive discretion whether, and if so how, the Commonwealth should take steps to protect Hicks by seeking his repatriation. (15)

3. An order that the Attorney-General and the Minister consider according to law whether, and if so how, the Commonwealth should take steps to protect Mr Hicks by seeking his repatriation. (16)

4. An order by way of relief in the nature of a writ of habeas corpus, that the Attorney-General, the Minister, and the Commonwealth request [that] the authorities of the United States repatriate and release Mr Hicks from their custody. (17)

   The respondents to the application--the Attorney-General, the Minister, and the Commonwealth--brought a motion to dismiss Mr Hicks' application. The motion, under s 31A of the Federal Court of Australia Act 1976 (Cth) (18) (Federal Court Act'), sought summary judgment adverse to Mr Hicks. The respondents' motion turned on submissions that hearing the application 'would be contrary to the Act of State doctrine' and that the Federal Court lacked jurisdiction because the foreign affairs aspects gave 'rise to non-justiciable questions such that there is "no matter'" on which the Court could adjudicate'. (19) Alternately, the respondents sought the Statement of Claim struck out on the ground that parts of it were not properly pleaded. (20)

3. Justiciability and the Act of State Doctrine

   A significant question confronting the Federal Court and Justice Tamberlin was whether the Court could determine the application. This question had two aspects: whether the Act of State doctrine prevented the application and whether there were applicable judicial standards.

   Justice Tamberlin proceeded from a view that the 'two principles of Act of State and justiciability are to some extent distinct but they are interrelated in the present case'.(21) This approach echoes that of the England and Wales Court of Appeal in Kuwait Airways Corporation v Iraqi Airways Company (22) (Kuwait Airways'). The Court of Appeal accepted that the Act of State doctrine and the non-justiciability principle can only be understood in relation to one another. (23)

   Under the Act of State doctrine, courts can decline to adjudicate certain matters involving foreign governments. The High Court of Australia acknowledged this doctrine in the Spycatcher Case. (24) A majority of the High Court adopted the formation of Fuller CJ in the decision of the Supreme Court of the United States in Underbill v Hernandez (25) as correctly stating Australian law. (26) Chief Justice Fuller commenced the Supreme Court's opinion by stating that 'Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory'. (27) This restraint is intended to reflect judicial faith in the 'comity of nations'. (28)

   The respondents submitted that application of the Spycatcher Case rendered Mr Hicks' application not justiciable. This submission evoked a consideration of the Act of State doctrine, resting heavily on the High Court's statement that 'there are some claims in which the very subject-matter of the claims and the issues they are likely to generate present a risk of embarrassment to the court and of prejudice to the relationship between its sovereign and the foreign sovereign'. (29) The statement of the submission of Tamberlin J suggests the argument presented by the respondents was that judicial consideration of the application would cause embarrassment between Australia and the United States, and should thus not be heard. (30)

   If Mr Hicks' application did not fall within the scope of the Act of State doctrine, it may have fallen within the scope of the non-justiciable principle. The scope of the Act of State doctrine is limited to the acts of foreign sovereigns within their own territory. (31) As such, it would prevent the Federal Court from considering the legality of the detention by the President of an individual within the territory of the United States. This would have been a strong argument if the actions of the United States were being challenged in the application. Lord Wilberforce, in Buttes Gas & Oil Company v Hammer, (32) considered that the issues before the House of Lords were not issues a municipal court could decide as there were 'no judicial or manageable standards' by which such a court could judge them. (33) The Court of Appeal, in Kuwait Airways, accepted this broader nonjusticiable principle, which encompasses matters beyond the Act of State doctrine. (34)

   This principle closely accords with the Spycatcher dicta the respondents had relied on, possibly more than that dicta accords with the Act of State doctrine. The non-justiciable principle creates a broader class of situations in which a court may decline jurisdiction for fear of causing embarrassment.

   The House of Lords also carved out a significant exception to the non-justiciable principle. In Kuwait Airways, while determining the jurisdiction of United Kingdom courts, the Lords formed the opinion that Buttes Gas did not prohibit a municipal court from adjudicating 'a breach of established principle of international law committed by one state...