Case: Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347
Outcome: considered
J, when dealing with a case involving the Bankruptcy Act 1966 (Cth) and the Extradition (Foreign States) Act 1966 (Cth) in Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, decided that the Federal Court could consider as a 'justiciable matter' an allegation by the Deputy Commissioner that false statements had been made by the Australian government to the German government. The issue of the relationship between the governments was raised in the course of the Court's exercising jurisdiction under the Bankruptcy Act . In that case, his Honour embarked on the issue and had regard to diplomatic notes (' notes verbales ') exchanged between the two governments. After reviewing the authorities relating to justiciability, his Honour observed at 369 that in Australia, one looks not to the traditionally recognised content of the prerogative power, as in Britain, but rather to s 61 of the Constitution , which vests the executive power of the Commonwealth in the Crown. He noted that the executive power extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth, thus enabling the Crown to undertake all executive action appropriate to areas of responsibility vested in the Commonwealth. One of these areas is the conduct of international relations and the acquisition of international rights and obligations. Accordingly, the Court can adjudicate on matters going to restraints on and the extent and nature of the executive power as a constitutional question. In such a case, no problem of non-justiciability will arise. His Honour continues at 369 by pointing out that questions as to the character and extent of the powers of the executive government in relation to the conduct of international relations may give rise to a matter which involves the interpretation of s 61 of the Constitution , and consequently will affect the interests of a plaintiff so as to afford him or her standing. Where this is so, there is subject matter for the exercise of federal jurisdiction and no question of non-justiciability will ordinarily arise. His Honour observed that dealings between the governments of Australia and foreign states will not normally, in the absence of legislation, create rights for or impose obligations on Australian citizens, and that a breach of Australia's international obligations, of itself, would not be a matter justiciable at the suit of a private citizen. It is to be noted that these observations are carefully worded so as to not foreclose argument in exceptional circumstances. His Honour said at 370: '... there will be no "matter" [on which the Court can adjudicate] if the plaintiff seeks an extension of the Court's true function into a domain that does not belong to it, namely the consideration of undertakings and obligations depending entirely on political sanctions.' He refers, by way of an example of such political questions, to agreements and understandings between Australian and foreign governments. Mr Hicks refers to these principles and submits that s 61 of the Constitution confers power on the executive to protect citizens overseas. He submits that the adjudication of the legality of actions of the executive is amenable to the Chapter III courts and the fact that those powers are exercised in relation to some aspect of foreign affairs or diplomatic negotiations does not automatically exclude the conduct of the Government from review by Chapter III courts. The question for a Chapter III court is whether the proceeding requires the extension of the court's jurisdiction into areas political in nature such that it has no legal guidelines or criteria against which to make its determination. Rather than exclude certain areas such as foreign relations totally from judicial review, Mr Hicks submits that the proper approach is to carefully examine the particular grounds of review raised on which the specific relief is based. In the present case, the applicant submits in relation to the ground of judicial review that extraneous or irrelevant considerations have influenced the decision of the Executive not to request the return of Mr Hicks to Australia. As a consequence, that decision should be set aside and the Executive ordered to consider the question in accordance with law.