Case: Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574
Outcome: considered
Commonwealth's submission was that it could not possibly be said that it had acted for, or on behalf of, Mr Habib. This submission is too simplistic. It is accepted that there is some kind of duty owed by the State to its overseas nationals. For example, in Mutasa v Attorney General [1980] QB 114 at 118-120 Boreham J spoke of the Crown having a duty to protect a citizen from unlawful detention but of that duty being one of imperfect obligation and thus unenforceable. So too, in China Navigation Company Ltd v Attorney General (1931) 40 Ll L Rep 110 at 112 Rowlatt J spoke of an alleged duty to assist a citizen against piracy as being but a "political" duty: cf. Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at 593-594 [62] - [66] per Tamberlin J. Thus, it is a little glib to say that there was no aspect of the relationship between Mr Habib and the Commonwealth which could involve it in potentially "acting" on his behalf. I have no doubt that the first duty does not exist, in the sense that it is not a "duty at law", although it may exist as an unenforceable political duty of imperfect obligation: Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at 593-594 [62] - [66] per Tamberlin J. To embark upon a substantive consideration of whether the foreign policy steps taken by the Commonwealth were reasonable would involve this Court in directly examining the merits of Australian foreign policy. For reasons already given, such a duty cannot be countenanced. The duty propounded in the proposed pleading is in a different category. It seeks to avoid the difficulties inherent in pursuing a remedy which requires this Court to pass on the adequacy or otherwise of Australian foreign policy. Instead, it contends only that the Commonwealth owed Mr Habib a duty to consider whether to intercede with the foreign States on his behalf. It is apparent that this novel duty has its origins in this Court's decision in Hicks v Ruddock [2007] FCA 299 ; (2006) 156 FCR 574. In that case Tamberlin J refused to strike out a judicial review action brought by a Guantanamo Bay detainee against the Attorney-General. He sought to review the Commonwealth's decision not to intervene on his behalf with the US to seek his release. He did so on the basis that the Commonwealth had taken into account certain irrelevant considerations. Tamberlin J refused to strike the case out. The duty pleaded in the proposed pleading arguably does not fall foul of the difficulty outlined in Re Ditfort . To hold that the Commonwealth should have considered whether to intercede on Mr Habib's behalf does not, arguably, involve an impermissible examination of the merits or otherwise of foreign policy. However, Mr Hicks' and Mr Habib's cases are conceptually very different. Mr Hicks sought judicial review of a decision and habeas corpus. Mr Habib seeks damages in tort. Inherent in the claim in tort is much more than Mr Hicks' claim to have the Commonwealth reconsider its position. It is a claim of wrongful conduct causing damage. It must necessarily travel further than a mere claim for reconsideration which claim Hicks v Ruddock holds to be arguable and into territory which requires the Court to reach a conclusion on what the outcome of that reconsideration should have been. Indeed, as Lord Steyn explained at 1101 [113] in Kuwait Airways , the doctrine rests, in part, on the absence of available standards by which to judge the actions of the foreign state involved. Where the potential allegation is that the US and Egypt have committed grave breaches of the Geneva Conventions a clear standard is available: cf. Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at 584-585 [21] - [23] per Tamberlin J where the potential interaction between the act of State doctrine and the Third and Fourth Geneva Conventions was examined. For those reasons, I do not think it can be said that the doctrine prevents a misfeasance suit potentially going forward. Indeed, on one view of things, it may well lie in the heart of the exceptions. Conclusion