Case: Re Ditfort; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347
Outcome: applied
the Commonwealth has the power to conduct foreign relations is undoubted. It is conferred by s 61 of the Constitution on the Queen and is exercisable by the Governor-General as her representative. No doubt that power bears many similarities to the similar prerogative power possessed by the Queen in her capacity as the sovereign of the United Kingdom. As Gummow J pointed out in Re Ditfort; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347 at 369 the question in this country is not the content of the prerogative but rather the meaning and operation of s 61. This has the immediate consequence that the question of whether the executive power extends to a particular topic is a question about the operation of s 61 and hence is a matter involving the interpretation of the Constitution within the meaning of s 76(i). And, because s 61 in turn is concerned with the maintenance of the laws of the Commonwealth, it follows that the executive power is subject to those laws. In consequence, the scope and ambit of the executive power existing under s 61 may, in a particular case, require an examination of the extent to which Commonwealth legislation has intruded into, or perhaps more accurately regulated, that power. In such a case, there would not only be a question of interpretation of s 61 but also, potentially, a matter arising under a law of the Parliament within the meaning of s 76(ii) of the Constitution . There are a number of different aspects to that broad principle. First , it is plain that the courts will absolutely abide the executive's views on questions such as the accession of foreign territory, the recognition of a foreign sovereign or the recognition of foreign States and ambassadors: see Chow Hung Ching v The King [1948] HCA 37 ; (1948) 77 CLR 449 at 467 per Latham CJ. Secondly , generally speaking, the issues which arise between nation States are unlikely to generate matters within the meaning of ss 75 and 76 of the Constitution for the rights and obligations in that plane do not form part of domestic law: Re Ditfort at 370 per Gummow J. Thirdly, for related reasons, such questions are usually unable to bring forth a plaintiff who has standing: Re Ditfort at 369. Fourthly , complaints about the conduct of Australian international relations are likely to take a court into an area which involves the consideration of undertakings or obligations depending entirely on political sanctions. Where that occurs it is generally thought there is no matter in the requisite sense: Re Ditfort at 370. For example, a complaint by an Australian exporter that trade sanctions had been negligently imposed on a country to which it exported would immediately involve this Court in the consideration of matters which it is institutionally unsuited to resolve: Gerhardy v Brown [1985] HCA 11 ; (1985) 159 CLR 70 at 138-139 per Brennan J. 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.