Case: Kuwait Airways Corporation v Iraqi Airways Company [2002] UKHL 19 ; [2002] 2 AC 883
Outcome: considered
decision in Buttes was considered in Kuwait Airways Corporation v Iraqi Airways Company [2002] UKHL 19 ; [2002] 2 AC 883, which involved a seizure by the Iraqi government of aircraft owned by Kuwait Airways Corporation. A question was raised as to whether a court in the United Kingdom in which the proceeding had been commenced could treat the matter as justiciable. After referring to the above statement of Lord Wilberforce, Lord Nicholls said at 1080-1081: 'In appropriate circumstances it is legitimate for an English court to have regard to the content of international law in deciding whether to recognise a foreign law... Nor does the 'non-justiciable' principle mean that the judiciary must shut their eyes to a breach of an established principle of international law committed by one State against another when the breach is plain and, indeed, acknowledged. In such a case the adjudication problems confronting the English court in the Buttes litigation do not arise. The standard being applied by the court is clear and manageable, and the outcome is not in doubt. That is the present case.' (Emphasis added) As in the Buttes case, a question of territorial boundaries between sovereign states was the issue in Petrotimer and the circumstances in Petrotimer are quite different from those in the present case. For instance, the case did not involve a question of deprivation of personal liberty or of detention. It should be noted that Black CJ and Hill J at 369 accepted the proposition that the principles stated in Buttes as to Acts of State and judicial restraint were subject to the qualification expressed by the House of Lords in Kuwait Airways . Their Honours accepted at 372 that Kuwait Airways required a significant reading down of Buttes . Their Honours referred in particular to the speech of Lord Nicholls, and his Lordship's endorsement of Lord Wilberforce's statement of the principle in Buttes (extracted and discussed above). It is arguable that the necessity for 'judicial or manageable standards' by which to decide the issues in a given case are satisfied when those issues involve consideration of the Constitutional reach of, and limitations on, executive power. The case for Mr Hicks is that if he is tried by the newly constituted Military Commission, such a trial would clearly not be in compliance with the Third Geneva Convention. It follows, therefore, that since Mr Hicks has been deprived of his personal liberty and subjected to lengthy detention without lawful trial, the case falls within an exception to the Act of State doctrine analogous to the exception in Kuwait Airways . The respondents submit that for an Australian court to determine the lawfulness of the applicant's detention by the United States effected by Military Order in what, for present purposes, is to be regarded as United States territory, is in breach of the Act of State doctrine. Therefore, it is said, the Court should not enter into any consideration of issues relating the lawfulness of Mr Hicks' detention. The respondents submit that the exception referred to in Kuwait Airways is a limited one, inapplicable in the present case, because in Kuwait Airways it was accepted by all parties, including by Iraq, that the action by the Iraqi government was contrary to international law. Accordingly, the respondents submit that the Court should not decide the lawfulness of the detention of Mr Hicks and should concede that it has no jurisdiction. Further, it is said, there is "no matter" before the court, which is an essential requirement to jurisdiction. In Kuwait Airways , reference was made to Lord Wilberforce's comments in Buttes , extracted and discussed above, regarding the inability of courts in certain circumstances to perform a judicial function because there may be no standards or parameters or norms against which executive conduct could be measured. In such a case, the question will be non-justiciable as a matter of general principle. Counsel for Mr Hicks, however, argues that in the present circumstances, because these issues are set out in a statute which could be relevant in making and considering findings with respect to unfair trials, the standards the Court is asked to apply are justiciable. Special attention should be given to a case which is similar in some respects to the current matter, and to which counsel for both Mr Hicks and the respondents gave attention. It considers many of the relevant principles and issues considered in this case. In Abbasi v Secretary of State [2002] EWCA Civ 1598 , the English Court of Appeal considered an application for relief by an English citizen detained at Guantanamo Bay naval base. Mr Abbasi was transported to that detention centre in January 2002 and by the time of the appeal hearing he had been in detention for eight months. He sought judicial review and an order to require the Foreign Office to make representations his behalf to the United States. Their Lordships at [66] and [107] twice expressed deep concern that in apparent contravention of fundamental principles of law, Mr Abbasi may be subject to indefinite detention by the United States authorities with no opportunity to challenge the legitimacy of his detention before any recognised court or tribunal. Their Lordships referred to what appeared to be 'a clear breach of a fundamental human right'. This latter expression echoes the language in Kuwait Airways . In Kuwait Airways, a clear acknowledged breach of international law standards was considered sufficient for the court to lawfully exercise jurisdiction over the sovereign act of the Iraq State. In that case, the clear breach of international law was the wrongful seizure of property. It is clear in the case before me that the deprivation of liberty for over five years without valid charge is an even more fundamental contravention of a fundamental principle, and is such an exceptional case as to justify proceeding to hearing by this Court. There is no principle or authority precisely in point on the issues raised in the exceptional circumstances of this case which mandate a conclusion that the application has no reasonable prospect of success. Indeed, there are reasons given in the authorities which provide support for Mr Hicks' submissions. That is not to say that Mr Hicks' application is likely to or must succeed following a full investigation of the evidence led by each party and a complete argument on the facts disclosed and the authorities addressed. Mr Hicks now has to make good the allegations outlined in the Statement of Claim, both legal and factual, on a final hearing before this Court in order to ultimately succeed. As counsel for Mr Hicks effectively acknowledges, the case for Mr Hicks is in some respects difficult and novel, but it does not follow that it has no reasonable prospect of success. The modern law in relation to the meaning of 'justiciable' and the extent to which the court will examine executive action in the area of foreign relations and Acts of State is far from settled, black-letter law. Likewise, in relation to the elements of and the reach of the habeas corpus writ regarding control and unlawfulness, the authorities are far from settled and clear. The law has developed greatly. There are no bright lines which foreclose, at this pleading stage, the arguments sought to be advanced in the present case. I dismiss this application for summary judgment with costs and, having regard to the history and importance of this matter, I direct the parties to file a timetable within the next 10 days to enable the matter to come to a hearing as an expedited matter at the earliest possible date. I grant leave to the applicant to file and serve an Amended Statement of Claim. I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 8 March 2007 Counsel for the Applicant: Mr B Walker SC, Mr C Hoy, Ms K Eastman and Mr C Lenehan Solicitor for the Applicant: North &amp; Badgery as agent for Lempriere Abbott McLeod Counsel for the Respondents: Mr D Bennett QC, Mr H Burmester QC and Mr S Lloyd Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 26, 27 &amp; 28 February 2007 Date of Judgment: 8 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/299.html