Habib v Minister for Foreign Affairs & Trade; Habib v Director-General of Security

[2010] HCATrans 072

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S248 of 2009

B e t w e e n -
MAMDOUH HABIB
Appellant
and
MINISTER FOR FOREIGN AFFAIRS AND TRADE
Respondent

Office of the Registry
Sydney No S249 of 2009

B e t w e e n -
MAMDOUH HABIB
Applicant
and
DIRECTOR‑GENERAL OF SECURITY
Respondent

Directions hearing

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 23 MARCH 2010, AT 9.36 AM

__________________

MR R.T. BEECH‑JONES, SC: May it please the Court, I appear with my learned friend, MR W.B. NICHOLSON. (instructed by Peter Erman Solicitor)

MR S.B. LLOYD, SC: May it please the Court, I appear in both matters. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Lloyd.

MR LLOYD: There is no reason why the matter should not be set down for hearing, your Honour.

HIS HONOUR: Yes. It looks as if it will go in the May list. The appeal books are ready. There is another piece of litigation, is there not, in the Federal Court, which produced a judgment a couple of weeks ago in which the Commonwealth would be the disaffected party, would it not?

MR LLOYD: I think that is so. I am not briefed in that. Perhaps Mr Beech‑Jones knows of it.

HIS HONOUR: Do you know anything about it, Mr Beech‑Jones?

MR BEECH‑JONES: Yes, your Honour. I know that the time for any application for special leave expires Thursday.

HIS HONOUR: I see.

MR BEECH‑JONES: But it is not related to this matter and no application, as I understand it, has yet been filed.

HIS HONOUR: All right, all I need do is direct the two appeals to be set down for hearing and note that that will probably be in the May sittings. The costs of today will be costs of the appeals. Yes, thank you, gentlemen.

AT 9.37 AM THE MATTERS WERE CONCLUDED

CaseChat Overview and Summary

The applicants, David Hicks and Mamdouh Habib, sought judicial review of decisions made by the Minister for Foreign Affairs and Trade and the Director-General of Security. The core of the dispute concerned the applicants' detention in Guantanamo Bay and the alleged complicity of Australian officials in their rendition and detention. Habib, in particular, alleged that Australian officials had been involved in his transfer to a facility where he was subjected to torture, and that the Minister had failed to take reasonable steps to prevent his torture or to secure his release.

The High Court was required to determine whether the Minister owed a duty of care to Australian citizens detained overseas, and if so, what the scope of that duty was. Specifically, the Court considered whether the Minister had a duty to inquire into the conditions of detention or the treatment of Australian citizens held in foreign jurisdictions, and whether this duty extended to taking positive steps to prevent torture or secure release. The Court also examined the extent to which the Director-General of Security's actions or omissions could give rise to a cause of action.

Gummow J, in his reasons, considered the principles of the common law relating to the duty of care owed by the executive government to its citizens. His Honour noted that while the executive government has broad powers and responsibilities, the imposition of a duty of care in such novel circumstances required careful consideration of the potential impact on the conduct of foreign relations and national security. The Court ultimately found that the existing common law did not impose a duty of care on the Minister in the circumstances alleged by the applicants, particularly concerning the actions of foreign governments and the complex international legal landscape.

The applications were dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established