The development of the case law
91 The facts of the present case bear some similarity to those that underpinned the seminal decision in Underhill v Hernandez. Hernandez was in charge of a revolutionary army in Venezuela. Underhill, a citizen of the US, was in Venezuela under a contract with the government. Underhill sued Hernandez in the US courts for damages for refusal to grant a passport allowing him to leave, confining him to his house and subjecting him to assaults and affronts by Hernandez's soldiers. The US courts gave judgment for Hernandez on the basis that the acts of Hernandez were the acts of Venezuela and not properly the subject of adjudication in the US courts.
92 However, the law in the US developed after Underhill v Hernandez. In Sabbatino the US Supreme Court refused to recognise any exception from the doctrine for violations of international law per se (at 431). Nevertheless, the decision represents a development of the doctrine by requiring consideration of the factors informing the existence of the doctrine on a case-by-case basis (at 427-428).
93 The development of the US jurisprudence did not cease with Sabbatino. The US Supreme Court described the doctrine as "not an inflexible one" in First National City Bank v Banco Nacional de Cuba 406 US 759 at 763 (1972). The Court adopted an approach, disavowed by both the Commonwealth and Mr Habib in the present case, of deference to an assurance from the Federal Government that its foreign relations would not be affected by a judicial determination of the claim (at 769-770).
94 In W S Kirkpatrick Co, Inc v Environmental Tectonics Corp, International 493 US 400 (1989) the US Supreme Court found that the factual predicate for the act of state doctrine did not exist as the Court was not being asked to declare invalid any official act of a foreign state. The fact that the case involved an allegation that a contract had been procured by a bribe - which was illegal under Nigerian law - was held to be insufficient to engage the doctrine. The Court did not have to decide (in the sense that the case did not turn upon) the question of the Court's recognition of the official act of a foreign sovereign; the issue in the case was not the validity of those acts but whether they occurred (at 405-406). At 409-410 the Court clarified this distinction in the following terms:
The short of the matter is this: Courts in the United States have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them. The act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid. That doctrine has no application to the present case because the validity of no foreign sovereign act is at issue.
95 In Doe I v Unocal Corp 395 F. 3d 932 (9th Cir. 2002) the US Court of Appeals for the Ninth Circuit dealt with a case involving claims for damages against a private corporation, Unocal, and the Myanmar military for human rights violations allegedly perpetrated during the construction of an oil pipeline. The claims were brought by Myanmar residents under the Alien Tort Claims Act 28 USC s 1350. This Act permitted a foreigner to bring a claim in a US Court for a tort committed in violation of the law of nations. The Court held that the Myanmar military (alleged to have committed the violations when providing security services for the oil pipeline) was immune by reason of sovereign immunity. Contrary to Unocal's argument, however, Unocal was not protected by the analogous act of state doctrine. While the Court accepted that the case required the Court to decide whether the Myanmar military had violated intentional law (thus distinguishing Kirkpatrick), it applied the Sabbatino factors to reach a conclusion that the doctrine was not engaged and thus did not preclude the claim against Unocal. First, as to international consensus, the acts alleged (murder, torture, rape and slavery) were all described by at 959 as jus cogens violations and thus involved norms binding on all nations whether or not they agree. By definition, all jus cogens violations are internationally denounced. Hence, the Court found that there was a high degree of international consensus about the illegality of the acts alleged - a consensus which severely undermined any application of the act of state doctrine. Second, as to implications for foreign relations, the US government had already denounced Myanmar's human rights violations. Third, the accused government continued to exist and remained in power. Fourth, the Court said it would be difficult to contend that the violations alleged were in the public interest. Accordingly, applying the four Sabbatino factors, the Court found that the act of state doctrine did not bar the claim against Unocal despite the fact that the Myanmar military was protected by sovereign immunity (at 959-960).
96 In Sarei v Rio Tinto PLC 456 F.3d 1069 (9th Cir. 2006), the claim was by residents of Papua New Guinea against a private company alleging human rights violations in respect of the operation of a copper mine. The Court summarised the relevant principles as follows (at 1084):
The act of state doctrine prevents U.S. courts from inquiring into the validity of the public acts of a recognized sovereign power committed within its own territory. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964); Timberlane Lumber Co. v. Bank of America, 549 F.2d 597, 605-607 (9th Cir.1977) (recounting history of doctrine). The doctrine reflects the concern that the judiciary, by questioning the validity of sovereign acts taken by foreign states, may interfere with the executive's conduct of American foreign policy. W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 U.S. 400, 404, 110 S.Ct. 701, 107 L.Ed.2d 816 (1990). As a result, an action may be barred if (1) there is an "official act of a foreign sovereign performed within its own territory"; and (2) "the relief sought or the defense interposed [in the action would require] a court in the United States to declare invalid the [foreign sovereign's] official act." …If these two elements are present, we may still choose not to apply the act of state doctrine where the policies underlying the doctrine militate against its application.
97 The jurisprudence of the United Kingdom shows a similar development of principle.
98 Contrary to the Commonwealth's submissions, the reasoning of Lord Salmon in Oppenheimer is not at odds with that of Lord Cross. Lord Salmon expressed his "entire agreement" with all the views of Lord Cross (at 281). Lord Salmon's observation that England was at war with Germany in 1941 is in the context of a paragraph that recognised the unparalleled immorality of the Nazi decree (said to be "different in kind" from a mere confiscatory law by the Soviet Republic in June 1918) and declared the decree to be "so great an offence against human rights that they [UK courts] would have nothing to do with it" (at 283).
99 Counsel's concession in Kuwait Airways also does not play as significant a role in the process of judicial reasoning in that decision as the Commonwealth's submissions suggested. In Kuwait Airways No 4 the Court of Appeal referred to the opinion of Lord Cross in Oppenheimer as "permeated with a consideration of the role of international law" in deciding the legitimacy of foreign legislation (at [275]). The Court of Appeal's reasons disclose acceptance of what is described as a "public policy" exception to the act of state doctrine on a principled basis and not as a mere reflection of a concession by counsel (see, for example, at [307], [317]-[323], [372]-[383]).
100 The reasoning of the House of Lords in Kuwait Airways No 5 is consistent with that of the Court of Appeal. Lord Nicholls described the public policy exception as "well established in English law" (at [18]). His Lordship thereafter described the principle of non-justiciability underpinning the decision in Buttes (a case at the heart of which was a boundary dispute between states, as Lord Wilberforce noted at 927) as one based on the lack of "judicial or manageable standards by which to judge [the] issues" (at [25] citing Buttes at 938). No problem of that kind existed where there was a plain, indeed acknowledged, breach of an established principle of international law (at [26]). Lord Steyn saw the public policy exception recognised by the Court of Appeal as a natural development of the reasoning in Oppenheimer (at [114]). Lord Hope identified the limits on the exception but recognised its existence (at [137]-[140]). In so doing his Lordship identified the "wider point of principle" in Oppenheimer, namely, that "our courts should give effect to clearly established principles of international law" (at [139]).
101 The "clearly established principles of international law" include the crime of torture which has the status of a jus cogens violation.
102 In Pinochet (No 1) at 117 Lord Steyn (subject to replacing the word "probably" with "generally" in the text) endorsed the observation in American Law Institute, Restatement (Third) of Foreign Relations Law of the United States (1987) s 443, to the effect that:
A claim arising out of an alleged violation of fundamental human rights - for instance, a claim on behalf of a victim of torture or genocide - would (if otherwise sustainable) probably not be defeated by the act of state doctrine, since the accepted international law of human rights is well established and contemplates external scrutiny of such acts.
103 While their Lordships reached a different view on sovereign immunity in Pinochet (No 3) (a case involving extradition for the purpose of a criminal prosecution), they nevertheless identified that the prohibition on torture was absolute from which no deviation is permitted. This is the rationale for universal criminal jurisdiction for torture offences so that the "international criminal - the torturer - could find no safe haven" (at 199).
104 In Jones (a civil action precluded by sovereign immunity) Lord Bingham referred to "the extreme revulsion which the common law has long felt for the practice and fruits of torture" as the "subject of express agreement by the nations of the world" through the Torture Convention (at [15]).
105 In R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 the claimant, a British citizen held in Guantánamo Bay without access to a lawyer, sought an order that the British Foreign Office make representations to the US government on his behalf. The Court of Appeal (at [52]-[57]) referred to the opinion of Lord Cross in Oppenheimer (at 277) and continued:
[53]. This passage lends support to … [the] thesis that, where fundamental human rights are in play, the courts of this country will not abstain from reviewing the legitimacy of the actions of a foreign sovereign state. A more topical support for this proposition can be derived from the exercise that the court has to undertake in asylum cases, where the issue is often whether the applicant for asylum has a well-founded fear of persecution if removed to a third country. In such circumstances consideration of the claim for asylum frequently involves ruling on allegations that a foreign state is acting in breach of international law or human rights.
…
[57] …the passage from Lord Cross' speech in [Oppenheimer] supports the view that, albeit that caution must be exercised by this court when faced with an allegation that a foreign state is in breach of its international obligations, this court does not need the statutory context [that is, relating to refugees] in order to be free to express a view in relation to what it conceives to be a clear breach of international law, particularly in the context of human rights.
106 On the facts in Abbasi the Court declined relief observing (at [107] that "(o)n no view would it be appropriate to order the Secretary of State to make any specific representations to the United States, even in the face of what appears to be a clear breach of a fundamental human right, as it is obvious that this would have an impact on the conduct of foreign policy, and an impact on such policy at a particularly delicate time". This "delicacy" included that discussions were continuing at high levels with respect to British detainees, the appellate courts in the US also were to consider the position of detainees and those courts "have the same respect for human rights as our own", the detainees' cases having been taken up by the Inter-American Commission on Human Rights (at [107]).
107 The foregoing discussion shows that a number of the decisions do refer to the existence of a "public policy exception" to the doctrine. A recent article described this process as courts invoking "rule-like exceptions" to justify decisions made by reference to the facts of the particular case (Patterson, Andrew D, "The Act of State Doctrine is Alive and Well: Why Critics of the Doctrine are Wrong", 15 U.C. Davis J. Int'l L. & Pol'y 111 at 124 (2008)). The Commonwealth, as noted, rejected the notion of a priori exceptions to the doctrine, based on public policy or otherwise. According to the Commonwealth, the doctrine does not apply where, and only where, it is clear without any further inquiry that the considerations informing the rule's existence are not and cannot be engaged.
108 The Commonwealth's approach is superficially attractive. Whether the language of limitation should be preferred to that of exception, nevertheless, it is apparent that the test which the Commonwealth posits reflects the reasoning in Underhill v Hernandez, a decision made in 1897. But the foregoing discussion shows that the jurisprudence of the US and the United Kingdom developed after 1897 in tandem with international law, particularly international law following the exposure of the horrors of the Nazi regime in Europe at the end of the Second World War. Specifically, international humanitarian law has been codified through the Geneva Conventions of 1949 and Additional Protocols of 1977, the Torture Convention has been rapidly and almost universally acceded to, and certain violations of international law (including torture) are recognised to involve contraventions of peremptory norms, or jus cogens, being norms about which all nations agree or are taken to agree and from which no derogation is permitted.
109 For similar reasons it cannot be said that the recognition of limits on the doctrine is inconsistent with Australian authority. Potter v BHP is a decision of the High Court from the same era as Underhill v Hernandez and did not raise issues similar to the present case. The outcome in Spycatcher did not turn upon the act of state doctrine. Further, there are some references in decisions of the High Court consistent with recognition of the development of common law jurisprudence in this context. In Sykes v Cleary (1992) 176 CLR 77 at 135-136, Gaudron J cited Oppenheimer as authority for the proposition that a court is not bound to recognise a foreign citizenship law which "does not conform with established international norms or which involves gross violation of human rights". Her Honour made the same reference in Sue v Hill (1999) 199 CLR 462 at [175]. See also the references to both Oppenheimer and Kuwait Airways in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; [2004] HCA 25 at [46] and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [100], as well as the observations of Beaumont J in Petrotimor at [251].
110 The Commonwealth sought to distinguish the present case (in which Mr Habib's allegations remained untested) from cases such as Oppenheimer and Kuwait Airways in which the violations of international law were clear (indeed, notorious). However, the cases do not support a distinction between known and alleged violations. Moreover, there is no principled basis for such a distinction. As Mr Habib submitted, there is no requirement apparent in the jurisprudence that the violations of international law and human rights alleged be "established at some indeterminate level of confidence at an interlocutory stage". This must be so. The effect of the Commonwealth's invocation of the act of state doctrine, if accepted, is to preclude the truth or otherwise of the allegations founding the claim from being tested and determined. The essence of the allegations founding the claim as ones involving grave breaches of international law and contraventions of Australian law, remain. As in Kuwait Airways, these legal parameters provide the standards necessary for judicial determination and place the present case in a category different from the "judicial no-man's land" apparent in Buttes (see, in particular, the reference by Lord Nicholls in Kuwait Airways No 5 at [26] to the decision in Buttes turning upon "adjudication problems").
111 The long title of the Crimes (Torture) Act is "[a]n Act to give effect to certain provisions of [the Torture Convention], and for related purposes". The Act annexes the Torture Convention in its Schedule. Article 2(1) of the Torture Convention is unequivocal: "(e)ach State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction". Further, under article 2(2) "(n)o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture". Article 4(1) requires that "(e)ach State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture". Article 14 concerns the rights of victims of torture to compensation analysed in Jones (that is, rejection of the proposition of the article conferring universal civil jurisdiction but, rather, construing it as relating to claims of torture in the forum state only).
112 The Crimes (Torture) Act creates an offence of torture. The effect of the legislation is to render torture unlawful under Australian law no matter who engages in it or where it is engaged in, and regardless of whether a prosecution may be commenced and sustained against the alleged torturer. The statute thus reflects and embodies our Parliament's endorsement of the common law's "extreme revulsion…for the practice and fruits of torture" (Jones at [15]). As submitted for Mr Habib, if proved, his allegations would constitute grave violations of international human rights law. The weight of authority discussed above does not support the protection of such conduct from judicial scrutiny other than in the face of a valid claim for sovereign immunity.
113 Mr Habib's claim is against the Commonwealth. He alleges that the Commonwealth is liable for acts committed by its own officers, albeit in aiding and abetting agents of foreign states. The Commonwealth has no claim for sovereign immunity in respect of a claim brought against it in an Australian court. The fact that the foreign officials could claim sovereign immunity if sued in an Australian court, and the Australian officials if sued in a foreign court, may disclose some incoherence of underlying principle. The same situation, however, arose in Unocal when the perpetrators were protected by sovereign immunity but the company on whose behalf the violations were said to have been perpetrated was not protected by the act of state doctrine.
114 As Mr Habib said, the consequence of the Commonwealth's submission is that Commonwealth officials could not be held accountable in any court for their alleged breaches of Australian laws having extra-territorial effect. The consequence of Mr Habib's submissions, in contrast, is that each set of government officials would be able to be held accountable for their actions in their national courts. The cases on which the Commonwealth relied do not support a conclusion that the act of state doctrine prevents an Australian court from scrutinising the alleged acts of Australian officials overseas in breach of peremptory norms of international law to which effect has been given by Australian laws having extra-territorial application. The case law indicates to the contrary.
115 In terms of the US jurisprudence, the Sabbatino factors show that, first, the prohibition on torture is the subject of an international consensus. Second, Australia's "national nerves", as the Commonwealth intimated, might be attuned to the sensibilities of its coalition partners but this has to be weighed in a context where the prohibition on torture forms part of customary international law and those partners themselves are signatories to an international treaty denouncing torture. Moreover, the claim is by an Australian citizen against the Commonwealth of Australia. Findings will be necessary as facts along the way but no declaration with respect to the conduct of foreign officials is required. Those officials will not be subject to the jurisdiction of an Australian court (or, for that matter, any international court by reason of this proceeding). It is the Commonwealth alone which is the respondent to this proceeding. Insofar as the Commonwealth suggested some unfairness to the (unidentified) foreign officials in question by reason of the foreign states not being parties to the proceeding, it is common ground that those states would have a valid claim for sovereign immunity if sued in an Australian court. Such unfairness as might arise, in any event, is a matter for the trial, not the reserved question. Third, the governments of the foreign states in question all remain in existence. Fourth, and as in Unocal, it would be difficult to contend that the alleged violations of international law identified in Mr Habib's claim were in the public interest.
116 In terms of the jurisprudence of the United Kingdom, there is no reason why an Australian court also "should not give effect to clearly established principles of international law" (Kuwait Airways No 5 at [139]), particularly where those principles involve protection against the infliction of torture which the Commonwealth Parliament has prohibited.