Habib v Commonwealth of Australia  FCAFC 12 (25 February 2010)
On 25 February 2010, the Full Court of the Federal Court delivered a significant judgment that will allow the Court to consider the Mamdouh Habib’s claims against the Commonwealth for torts of misfeasance in public office and intentional but indirect infliction of harm.
The Court held that the Commonwealth could not rely on the common law act of state doctrine to have the applicant’s claims dismissed. Chief Justice Black and Jagot J held that the doctrine does not apply where grave violations of international human rights law are alleged. Justice Perram found the application of the doctrine in this case to be inconsistent with Constitutional norms.
The applicant, an Australian citizen, alleges that:
- In October 2001 he was arrested in Pakistan and detained for approximately one month. During this period of detention he was mistreated by Pakistani and US officials.
- In November 2001 he was taken from Pakistan to Egypt where he was detained for about six months and again mistreated by Egyptian and US officials.
- In April or May 2002 he was taken to Bagram airbase in Afghanistan then to Guantanamo Bay where he was detained without charge until January 2005, when he was repatriated to Australia. Again during this period of detention the applicant alleged he suffered severe abuse.
The applicant alleges that Australian officials, among others, participated in interrogations of him, visited him in detention, witnessed his mistreatment and urged his detention to continue. He claims it would have been known to the Australian officials merely by looking at him that he had suffered mistreatment.
The applicant is claiming civil damages against the Commonwealth for torts of misfeasance in public office and intentional but indirect infliction of harm, as a result of Commonwealth officials aiding, abetting and counselling his torture and other inhumane treatment by foreign officials when detained in foreign countries.
In response, the Commonwealth sought to have the applicant’s claims dismissed on the grounds that they are non-justiciable since the Court would be required to determine that the conduct of a foreign government constituted criminal offences against Commonwealth laws. The Commonwealth contended that the common law act of state doctrine prohibits the Court from sitting in judgement on the acts of foreign governments within their own territory.
Chief Justice Black with Perram and Jagot JJ held that the act of state doctrine was inapplicable and that Mr Habib’s claims are justiciable.
His Honour’s judgment focussed on the Court’s constitutional role to review the legality of administrative action. His honour held that no common law doctrine could preclude the judiciary from scrutinising the limits of Commonwealth power. Accordingly, the act of state doctrine does not apply where the Court is asked to review conduct of Commonwealth officials that is allegedly outside their scope of authority:
to the extent that the act of state doctrine would confer immunity from suit on the Commonwealth it is inconsistent with the constitutional orthodoxy of this country and its application is to be rejected in a fashion as complete as it is emphatic.[ 29]
Her Honour’s judgment focussed on the development of the act of state doctrine in cases involving grave breaches of international human rights law and the status of torture in international and domestic law.
Her Honour concluded that the development of the common law did not support the application of the doctrine where grave breaches of human rights were alleged. Her Honour was of the opinion that weight of the authorities did not allow alleged acts of torture to escape judicial review unless there was a valid claim for sovereign immunity.
In reaching the conclusion that the act of state doctrine does not apply to exclude the Court considering the applicant’s claims, Her Honour placed significance on the jus cogens status of torture under international law, and the Parliament’s reflection of this status through the extraterritorial application of the Crimes (Torture) Act 1998 (Cth).
Chief Justice Black
The Chief Justice agreed with the reasoning of Jagot J. His Honour agreed that the authorities did not support the application of the doctrine in this case, adding that even if the common law was unclear the same conclusion should be reached:
the path chosen should not be in disconformity with moral choices made on behalf of people by the Parliament reflecting and seeking to enforce universally accepted aspirations about the behaviour of people one to another. 
The decision is available at www.austlii.edu.au/au/cases/cth/FCAFC/2010/12.html.
Prabha Nandagopal is on secondment to the Centre from DLA Phillips Fox