Case: Hamdan v Rumsfeld 126 US 2749 (2006)
Outcome: considered
order to appreciate the issues and form of pleading raised in the claim of Mr Hicks, it is necessary to set out further terms of the Statement of Claim in addition to those set out in paragraphs [7]-[8] above. 9. 'At all material times, the United States of America have alleged that Mr Hicks was a person who had committed a belligerent act for the Taliban in the Afghan conflict. 10. By about July 2002, the Afghan conflict had ended. 11. Mr Hicks has been in the power of the United States of America and kept by their authorities in close physical custody continuously since about 9 December 2001 on account of the allegation referred to in para 9. 12. According to the law of the United States of America, they are not entitled to try persons in the position of Mr Hicks as pleaded above before any tribunal which is not a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilized peoples (those guarantees being "the requisite trial protections"). 13. According to the law of the United States of America, even if Military Commissions ("post- Hamdan v Rumsfeld Military Commissions") of the same general kind as those purportedly constituted by and under the authority of the President of the United States of America in November 2001 and March 2002 (the "2001-2002 Military Commissions") were constituted by legislation of the United States of America, if post- Hamdan v Rumsfeld Military Commissions' governing procedures were materially similar to those of the 2001-2002 Military Commissions, they would not provide for the requisite trial protections and thus would not comply with the law of war being the body of international law governing armed conflict. 14. According to the law of the United States of America, it follows either that they cannot try persons in Mr Hicks' position before post- Hamdan v Rumsfeld Military Commissions whose governing procedures do not give the requisite trial protections, or that the entitlement to do so is open to question in a way not yet determined by the Supreme Court of the United States of America. 15. It remains an open question in the Supreme Court of the United States of America whether they could try a person in the position of Mr Hicks before a post- Hamdan v Rumsfeld Military Commission until after a determination of his potential status as a prisoner of war within the meaning of Articles 4 and 5 of the 1949 Geneva Convention III Relative to the Treatment of Prisoners of War (" Third Geneva Convention "). 16. Depending on the resolution of the question referred to in para 15 as a matter of the law of the United States of America, Mr Hicks may be entitled under their law to the benefit of the provisions of Chapter III of the Third Geneva Convention including Articles 84, 85, 99, 102 and 105. 17. Since they have had Mr Hicks in their power, the authorities of the United States of America have never announced any intention on their part to give Mr Hicks the benefit of the provisions of the Third Geneva Convention referred to in para 16. 18. Until soon after the decision of the Supreme Court of the United States of America in Hamdan v Rumsfeld decided on 29 June 2006, the authorities of the United States of America had expressed and began to give effect to an intention on their part to try Mr Hicks before a 2001-2002 Military Commission. 19. According to the law of the United States of America, the result of Hamdan v Rumsfeld was to hold that the intention and actions of the authorities of the United States of America referred to in para 18 were illegal. 20. The authorities of the United States of America have never announced any intention on their part to try Mr Hicks for any offence against the municipal law of the United States of America, or with any offence allegedly committed by him within the territory of the United States of America, or within the jurisdiction of any of the civil courts of the United States of America or any of them. 21. The third respondent, being the Commonwealth of Australia, and the United States of America are each High Contracting Parties with respect to the Third Geneva Convention and the International Covenant on Civil and Political Rights. 22. At all material times, the first and second respondents and each of them, personally and by the responsible Australian Public Service officers advising and assisting them in relation to Mr Hicks and his position, knew or believed, and continue to regard as likely to be true, each of the facts pleaded above, and in the case of those pleaded in paras 7 and 8, have done so since shortly after those forcible transfers of the custody of Mr Hicks. 23. At all material times since the authorities of the United States of America took Mr Hicks into their power, it has been, and remains, the policy of the government of the third respondent ("the Commonwealth Government") to decline making any request to the authorities of the United States of America for the repatriation of Mr Hicks because Mr Hicks had committed no offence against any law of the Commonwealth, or of any of the States or Territories, or against or under the common law in the Commonwealth, and because no Australian Court would have jurisdiction to try Mr Hicks for any criminal offence for which he may be punished in accordance with any such law. 24. At all material times since the authorities of the United States of America took Mr Hicks into their power, it has been, and remains, the policy of the Commonwealth Government to encourage the authorities of the United States of America to charge and try Mr Hicks, until soon after the decision in Hamdan v Rumsfeld , before a 2001-2002 Military Commission, or thereafter before a post- Hamdan v Rumsfeld Military Commission, notwithstanding the facts and matters pleaded in paras 13-16, 19 and 20. 25. The Commonwealth owes a duty of protection or has a function to protect Mr Hicks, as an Australian citizen overseas ("the Commonwealth's protective duty"). 26. At all material times, the first respondent ("the Attorney-General"), and his predecessor in that office, and the second respondent ("the Minister") have been and are (in case of the first and second respondents) members of the Federal Executive Council of the Commonwealth and Ministers of State for the Commonwealth appointed to administer the departments responsible for aspects of the exercise of the executive power of the Commonwealth in relation to Mr Hicks and his position. 27. The Attorney-General and the Minister, and each of them, have at all material times had discretion to determine whether, and if so in what way, the Commonwealth's protective duty should be exercised in relation to Mr Hicks and his position. 28. The conduct of the Attorney-General and the Minister in considering the exercise of their discretions with respect to the Commonwealth's protective duty in relation to Mr Hicks and his position ("the Ministerial conduct") is subject to the law and may be judicially reviewed. 29. The proper ground of judicial review of the Ministerial conduct is that the Attorney-General and the Minister have taken or are taking into account an irrelevant consideration or a consideration foreign to the nature of the Commonwealth's protective duty. 30. A proper ground of judicial review of the Ministerial conduct is that the Attorney-General and the Minister are undertaking it for an improper purpose. 31. The Ministerial conduct has been substantially influenced by the factors referred to in para 23 ("the ability to prosecute Mr Hicks") and in para 24 ("the willingness to waive mandated trial standards"). 32. The ability to prosecute Mr Hicks and the willingness to waive mandated trial standards are irrelevant considerations with respect to the Ministerial conduct are foreign to the nature of the Commonwealth's protective duty, because:- (a) the protection of the Commonwealth includes protection given by its laws; (b) under those laws Mr Hicks is not liable to any lawful punishment; (c) a desire on the part of the Commonwealth Government to procure or permit Mr Hicks to be punished notwithstanding the absence of any alleged offence punishable in Australia or under the municipal law of the United States of America is contrary to the rule of law that is required under the Commonwealth Constitution , to which the Commonwealth Government is subject; (d) the mandated trial standards (including the requisite trial protections) are grounded in customary international law or in treaty obligations such as Common Article 3 and Chapter III of the Third Geneva Convention and Article 14 of the International Covenant on Civil and Political Rights. (e) the mandated trial standards (including the requisite trial protections), or standards cognate with them, are reflected in the provisions of Division 268 of the Criminal Code (Cth) ("the Australian due-process criminal sanctions"); and (f) the Australian due-process criminal sanctions reflect customary international law or treaty obligations such as Common Article 3 and Chapter III of the Third Geneva Convention and Article 14 of the International Covenant on Civil and Political Rights. 33. The Ministerial conduct has been, and remains, informed by improper purposes, being the inability to prosecute Mr Hicks and the willingness to waive mandated trial standards. 34. There are no facts or circumstances which render the Ministerial conduct inappropriate for judicial review as being eg matters of the conduct of foreign relations beyond the competence of an Australian court. 35. Following requests made by the Attorney-General of the United Kingdom of Great Britain and Northern Ireland to the authorities of the United States of America, those authorities agreed to repatriate five British citizens detained at Guantanamo Bay in February 2004, and agreed to repatriate four other British citizens detained at Guantanamo Bay in January 2005, being all the British citizens detained by the authorities of the United States of America at Guantanamo Bay. 36. The authorities of the United States of America acceded to the request made by the Government of the United Kingdom of Great Britain and Northern Ireland for the repatriation of British citizens in the position of Mr Hicks, notwithstanding that there was an inability to prosecute them in the United Kingdom materially similar to the inability to prosecute Mr Hicks in Australia. 37. There is no reason to suppose that the authorities of the United States of America would respond to a request by the Commonwealth Government for the repatriation of Mr Hicks differently from the way they responded to the request by the United Kingdom Government for the repatriation of British citizens in the position of Mr Hicks. 38. The response by the authorities of the United States of America to the requests by the United Kingdom Government referred to in para 35 demonstrates a kind of control by the United Kingdom Government over the detention of British citizens in Guantanamo Bay by the authorities of the United States of America. 39. Following a request made by the Commonwealth Government to the authorities of the United States of America, in January 2005 those authorities repatriated Mr Habib, an Australian citizen who was detained at Guantanamo Bay. 40. The authorities of the United States of America acceded to the request made by the Commonwealth Government for the repatriation of Mr Habib, notwithstanding that there was an inability to prosecute him in Australia materially similar to the inability to prosecute Mr Hicks in Australia. 41. There is no reason to suppose that the authorities of the United States of America would respond to a request by the Commonwealth Government for the repatriation of Mr Hicks differently form the way they responded to the request by the Commonwealth Government to the repatriation of Mr Habib. 42. The response by the authorities of the United States of America to the request made by the Commonwealth Government referred to in para 39 demonstrated a kind of control by the Commonwealth Government over the detention of an Australian citizen in Guantanamo Bay by the authorities of the United States of America. 43. There is no reason to suppose that the same kind of control as that referred to in paras 37 and 42 is not held by the Commonwealth Government with respect to the detention of Mr Hicks in Guantanamo Bay by the authorities of the United States of America 44. The kind of control referred to in paras 37 and 42 involves a request by a detainee's national government to the authorities of the United States of America, in circumstances where the requesting government is that of a close ally in arms of the United States of America. 45. There is no reason to suppose that the authorities of the United States of America would be more likely to refuse the request of the Commonwealth Government than they were in the case of the request of the United Kingdom Government, for the repatriation of their respective national detainees. 46. By reason of the facts pleaded in paras 35-45, the Commonwealth Government, including through the Attorney-General and the Minister, is in a position effectively to order or secure the release of and repatriation to Australia of Mr Hicks.' There is a useful discussion of relevant principles in Omar v Harvey , in which the Court held that where the habeas petitioner, who was an American citizen, sought a preliminary injunction to enjoin his transfer from a detainee camp in the custody of the Criminal Court of Iraq, there should be a preliminary injunction. The Court decided it had jurisdiction to entertain the petition and considered Omar's challenge to his detention justiciable. The Court applied the principle in, previously established in Abu-Ali , that the doctrines of Act of State, separation of powers and political questions, although important considerations, did not extinguish the fundamental right of a citizen to challenge the detention alleged to be at the behest of the United States Executive. On appeal, the Circuit Court of Appeals upheld the original decision, and also relied on the decision of the Supreme Court in Hamdan v Rumsfeld 126 US 2749 (2006) as making it abundantly clear that Mr Omar's challenge to his detention was justiciable: Omar v Harvey (unreported, Circuit Court of Appeals, Tatel, Brown and Edwards JJ, 9 February 2007). Mr Omar had been held under the control of the United States authorities for over a year allegedly without legal process and with no meaningful access to legal counsel. In relation to these arguments, attention was drawn by counsel for the applicant and the respondents to the recent decision of the United States Supreme Court in Hamdan v Rumsfeld (2006) 126 SC 2749. In that case, the United States Supreme Court decided that the Military Commission established by the Executive prior to 2006, and under which Mr Hicks had been charged, was unauthorised. It followed as a consequence that the Commission and the charges were unlawful. Mr Hamdan was a Yemeni citizen held at Guantanamo Bay and was alleged to be involved in a crime of conspiracy to commit offences triable by the Military Commission. The required procedures before that body were found to be illegal and the charge of conspiracy was not known to United States law. There was found to be a clear and admitted failure to apply basic rights in these procedures in addition to violations of the Geneva Conventions. That Military Commission was found not to be a regularly constituted Court having regard to the requirements outlined in the Conventions. The Court considered that even assuming that Mr Hamdan was a dangerous individual who would cause death to civilians, the Executive must nevertheless comply with the rule of law by undertaking to try him and subject him to criminal justice. After Hamdan , Congress constituted a different Military Commission and Mr Hicks has been charged under different procedures. The legality of those new procedures and the new Military Commission has not yet come before a court. By way of broad analogy, counsel for Mr Hicks refers to circumstances where a bribe is taken into account by a decision-maker as a reason for taking administrative action. Because the acceptance of a bribe is a crime, it must be irrelevant to take the bribe into account when making the decision. Conduct contrary to law cannot or should not be taken into account as a relevant consideration. It is submitted that if it can be established as a matter of fact that the respondents have a policy or have taken into account the desirability of Mr Hicks being prosecuted in the United States by a tribunal which does not satisfy the Conventions' requirements, such a consideration is arguably extraneous. This is a question which the applicant wishes to ventilate in a proceeding. Counsel for Mr Hicks says that the Military Commission before which it is proposed he be tried does not comply with the Conventions. Therefore, it is said, if the respondents take into account the desirability of prosecuting him in the United States by such a tribunal, this must invalidate the exercise of the executive discretion.