Case: Northern Territory of Australia v Mengel [1995] HCA 65 ; (1994) 185 CLR 307
Outcome: applied
Commonwealth submits that such a pleading does not allege the elements of the tort of misfeasance in a public office. It is difficult to fault that submission. The tort was discussed by the High Court in Northern Territory of Australia v Mengel [1995] HCA 65 ; (1994) 185 CLR 307 at 345-348 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ. That case establishes that the tort has the following elements: (a) an act or omission by a public officer done: (i) with intent to harm; or (ii) knowingly in excess of his or her authority; and (b) involving a foreseeable risk of harm; and (c) causing loss or damage. It may be that element (a)(ii) will be satisfied where an official recklessly disregards the means of ascertaining the extent of his or her power: Mengel at 347. There is no suggestion in this case that the Commonwealth itself deliberately harmed Mr Habib. All of the actual harm appears to have been caused by the Pakistani, Egyptian and US authorities. So viewed, the matter cannot involve intent to harm in the sense identified in Mengel . The knowledge limb, and its possible extension to the position of an official who recklessly disregards the means of ascertaining the extent of his of her power, directs attention to paragraph 24 of the pleading which alleges: The respondent gave to Egyptian security officials information and documents including tapes of private telphone conversations, sim cards, a laptop computer, his address book, his Egyptian identity card, files taken from his home including files relating to Raqeem, Kadr, Mohammed Al Asra and Mohammed Dawood and photographs which the respondent knew or should have known would be used by those officials in the course of interrogation of the applicant, involving maltreatment and torture. This allegation might sustain an allegation of misfeasance in a public office if it could be alleged that so acting was beyond the executive power of the Commonwealth and that the officials involved recklessly disregarded the means of ascertaining the limits of their authority. As I have previously said, because s 61 of the Constitution extends the executive power of the Commonwealth to the maintenance of the laws of the Commonwealth, it is beyond that power to facilitate a breach of those laws. Thus, if it could be said that the provision of intelligence by the Commonwealth to the Egyptian authorities for use, to the knowledge of the Commonwealth, in Mr Habib's torture was contrary to Commonwealth law then at least one element of Mengel would be satisfied. During the course of the hearing discussion took place about the operation of the Third and Fourth Geneva Conventions (which deal respectively with the protection of prisoners of war and civilians during armed conflicts). Prior to 26 September 2002 the Geneva Conventions Act 1957 (Cth) made "grave breaches" of those Conventions a Commonwealth crime. "Grave breaches" under both Conventions included torture and inhuman treatment (Article 130 and 147 respectively). The Act had extra-territorial operation according to its tenor: s 6(2). Section 11.2(1) of the Criminal Code (Cth) had the effect of making it an offence to aid, abet, counsel or procure the commission of those crimes. On 26 September 2002 the offences created by the Geneva Conventions Act 1957 (Cth) were removed from that Act and re-enacted as Chapter 8 Division 268 of the Criminal Code (Cth). There may be an argument that these offence provisions had the consequence that neither the executive power of the Commonwealth under s 61 of the Constitution , nor any other source of statutory power such as s 8 of the Australian Federal Police Act 1979 (Cth) or s 17 of the Australian Security Intelligence Organisation Act 1979 (Cth), conferred lawful authority to aid, abet, counsel or procure the torture or inhuman treatment of Mr Habib. With that in mind, I granted leave to Mr Habib's counsel to put on further submissions about the relationship between the Geneva Conventions and the tort of misfeasance in a public office. In the circumstance where none of the constitutive elements of the tort have been pleaded, no explanation of how such a cause of action might operate proffered and an invitation to explore the interaction between the Geneva Conventions and Mengel unaccountably declined, it seems to me that the action must be struck out. In this context, it is also useful to consider the allegation in paragraph 21 of the proposed pleading that Commonwealth officials interviewed Mr Habib at Guantanamo Bay whilst he was shackled in chains. Whether such actions amount to aiding and abetting within s 11.2 of the Criminal Code (Cth) need not be decided. However, one question which might arise is the extent to which the construction of Division 268 is informed by matters of international law. In that regard, the advance report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has indicated that "even the mere presence of intelligence personnel at an interview with a person who is being held in places where his rights are violated, can be reasonably understood as implicitly condoning such practices": Martin Scheinin, UN Doc A/HRC/10/3 (2009) at 19. However, the nature of any such debate does not presently fall for decision.