Hicks v Ruddock

Federal Court of Australia|1949-08-12|Before: Edwards JJ, Tamberlin J

The application is dismissed with costs.
The hearing of the matter is expedited and should be heard as soon as possible.
The parties to file a timetable within the next 10 days.
The applicant has leave to file and serve an Amended Statement of Claim.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AND: THE HONOURABLE PHILIP RUDDOCK MP, ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

THE HONOURABLE ALEXANDER DOWNER MP, MINISTER FOR FOREIGN AFFAIRS

REASONS FOR JUDGMENT 1 This is a motion by the respondents to dismiss the proceeding brought by Mr Hicks seeking an order of habeas corpus and judicial review of a decision by the respondents not to request his release from internment in the United States of America ("the United States") and his return to Australia. 2 The consequence of the respondents' motion for summary judgment, if successful, is that the claims of Mr Hicks will not proceed to a hearing and no evidence will be taken. The motion is based on questions of law. Accordingly, the motion must proceed on the basis that the allegations in the pleading are taken as made-out. The allegations are not conceded by the respondents. 3 The substance of the respondents' summary judgment claim is that the proceeding has 'no reasonable prospect of success' as a matter of law. The onus of establishing this rests with the respondents. 4 The respondents invoke s 31A of the Federal Court Act 1976 (Cth), which enables a party to obtain summary judgment where it is shown that the proceeding has no reasonable prospect of success. 5 The respondents' claim that the court cannot, or should not, allow the matter to proceed to a hearing on the basis that it has no reasonable prospect of success turns on the submission that to do so would be contrary to the Act of State doctrine, which, in broad terms, requires a court of one nation to abstain from hearing proceedings which might require it to pass judgment on the legality of acts of a foreign sovereign government. In addition, the respondents say that this Court has no jurisdiction to hear the proceeding because it impacts on or relates to the area of foreign relations and gives rise to non-justiciable questions such that there is 'no matter' on which this Court can, or should, adjudicate. 6 In the alternative, the respondents seek to strike out the Statement of Claim, or parts of it, on the basis that it is not properly pleaded. Counsel for Mr Hicks has foreshadowed that amendments will be made to the Statement of Claim to incorporate developments in relation to the detention of Mr Hicks since it was filed on 6 December 2006.

Overview 7 The Statement of Claim states that Mr David Hicks is an Australian citizen born in Adelaide on 7 August 1975, who has been held in detention in Guantanamo Bay in Cuba without valid charges being laid for five years and three months. It states that prior to his internment in Guantanamo Bay, Mr Hicks was detained by members of military forces of a group known as the Northern Alliance at a taxi stand in Afghanistan in November 2001. At the time of his detention, there was an armed conflict in the territory of Afghanistan between a group known as the Taliban and groups including the Northern Alliance. During this period, members of the armed forces of the United States were taking part in hostilities in the Afghan conflict. It is alleged that at the time of his detention, Mr Hicks was taking no active part in the hostilities occurring in the context of the Afghan conflict. He was allegedly transferred on or about 9 December 2001 by the Northern Alliance into the custody of the United States. On or about 11 January 2002, United States authorities transferred Mr Hicks to premises at Guantanamo Bay in Cuba, which is a small area of land leased from Cuba and controlled by the United States since 1903. It is not part of the mainland of the United States, but is an area controlled by the United States. The Afghan conflict is said to have concluded in July 2002. 8 It is stated that at all material times, the United States authorities have claimed that Mr Hicks was a person who had committed a belligerent act for the Taliban in the Afghan conflict. As a consequence, he has been in the power and physical custody of the United States continuously since on or about 9 December 2001. As at December 2006, no valid charges had been made against him. It is alleged that since Mr Hicks has been in the power and custody of United States authorities, there has been no announcement of any intention to give Mr Hicks the benefit of the provisions of the Convention (III) relative to the Treatment of Prisoners of War (opened for signature 12 August 1949) 75 UNTS 135 (entered into force 21 October 1950) ("Third Geneva Convention"). The United States authorities have never announced any intention to try Mr Hicks in relation to any offence against United States municipal law, or with any offence allegedly committed by him within the territory of the United States or within the jurisdiction of any of the civil courts of the United States.

RELIEF SOUGHT BY THE APPLICANT 9 On the principal application, the following orders are sought by Mr Hicks from the Court: 1. A declaration that the inability to prosecute Mr Hicks under Australian law is an irrelevant consideration, and constitutes an improper purpose with respect to the exercise by the First and Second Respondents of their executive discretion whether, and if so how, the Third Respondent should take steps to protect the Applicant by seeking his repatriation and release by the authorities of the United States of America from their custody in Guantanamo Bay, Cuba. 2. A declaration that the willingness to waive mandated trial standards is an irrelevant consideration, and constitutes an improper purpose with respect to the exercise by the First and Second Respondents of their executive discretion whether, and if so how, the Third Respondent should take steps to protect the Applicant by seeking his repatriation and release by the authorities of the United States of America from their custody in Guantanamo Bay, Cuba. 3. An order that each of the First and Second Respondents consider according to law whether, and if so how, the Third Respondent should take steps to protect the Applicant by seeking his repatriation and release by the authorities of the United States of America from their custody in Guantanamo Bay, Cuba. 4. An order by way of relief in the nature of a writ of habeas corpus, that the Respondents and each of them request the authorities of the United States of America to repatriate and release the Applicant from their custody in Guantanamo Bay, Cuba.

Statement of claim 10 In order to appreciate the issues and form of pleading raised in the claim of Mr Hicks, it is necessary to set out further terms of the Statement of Claim in addition to those set out in paragraphs [7]-[8] above. 9. 'At all material times, the United States of America have alleged that Mr Hicks was a person who had committed a belligerent act for the Taliban in the Afghan conflict. 10. By about July 2002, the Afghan conflict had ended. 11. Mr Hicks has been in the power of the United States of America and kept by their authorities in close physical custody continuously since about 9 December 2001 on account of the allegation referred to in para 9. 12. According to the law of the United States of America, they are not entitled to try persons in the position of Mr Hicks as pleaded above before any tribunal which is not a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilized peoples (those guarantees being "the requisite trial protections"). 13. According to the law of the United States of America, even if Military Commissions ("post-Hamdan v Rumsfeld Military Commissions") of the same general kind as those purportedly constituted by and under the authority of the President of the United States of America in November 2001 and March 2002 (the "2001-2002 Military Commissions") were constituted by legislation of the United States of America, if post-Hamdan v Rumsfeld Military Commissions' governing procedures were materially similar to those of the 2001-2002 Military Commissions, they would not provide for the requisite trial protections and thus would not comply with the law of war being the body of international law governing armed conflict. 14. According to the law of the United States of America, it follows either that they cannot try persons in Mr Hicks' position before post-Hamdan v Rumsfeld Military Commissions whose governing procedures do not give the requisite trial protections, or that the entitlement to do so is open to question in a way not yet determined by the Supreme Court of the United States of America. 15. It remains an open question in the Supreme Court of the United States of America whether they could try a person in the position of Mr Hicks before a post-Hamdan v Rumsfeld Military Commission until after a determination of his potential status as a prisoner of war within the meaning of Articles 4 and 5 of the 1949 Geneva Convention III Relative to the Treatment of Prisoners of War ("Third Geneva Convention"). 16. Depending on the resolution of the question referred to in para 15 as a matter of the law of the United States of America, Mr Hicks may be entitled under their law to the benefit of the provisions of Chapter III of the Third Geneva Convention including Articles 84, 85, 99, 102 and 105. 17. Since they have had Mr Hicks in their power, the authorities of the United States of America have never announced any intention on their part to give Mr Hicks the benefit of the provisions of the Third Geneva Convention referred to in para 16. 18. Until soon after the decision of the Supreme Court of the United States of America in Hamdan v Rumsfeld decided on 29 June 2006, the authorities of the United States of America had expressed and began to give effect to an intention on their part to try Mr Hicks before a 2001-2002 Military Commission. 19. According to the law of the United States of America, the result of Hamdan v Rumsfeld was to hold that the intention and actions of the authorities of the United States of America referred to in para 18 were illegal. 20. The authorities of the United States of America have never announced any intention on their part to try Mr Hicks for any offence against the municipal law of the United States of America, or with any offence allegedly committed by him within the territory of the United States of America, or within the jurisdiction of any of the civil courts of the United States of America or any of them. 21. The third respondent, being the Commonwealth of Australia, and the United States of America are each High Contracting Parties with respect to the Third Geneva Convention and the International Covenant on Civil and Political Rights. 22. At all material times, the first and second respondents and each of them, personally and by the responsible Australian Public Service officers advising and assisting them in relation to Mr Hicks and his position, knew or believed, and continue to regard as likely to be true, each of the facts pleaded above, and in the case of those pleaded in paras 7 and 8, have done so since shortly after those forcible transfers of the custody of Mr Hicks. 23. At all material times since the authorities of the United States of America took Mr Hicks into their power, it has been, and remains, the policy of the government of the third respondent ("the Commonwealth Government") to decline making any request to the authorities of the United States of America for the repatriation of Mr Hicks because Mr Hicks had committed no offence against any law of the Commonwealth, or of any of the States or Territories, or against or under the common law in the Commonwealth, and because no Australian Court would have jurisdiction to try Mr Hicks for any criminal offence for which he may be punished in accordance with any such law. 24. At all material times since the authorities of the United States of America took Mr Hicks into their power, it has been, and remains, the policy of the Commonwealth Government to encourage the authorities of the United States of America to charge and try Mr Hicks, until soon after the decision in Hamdan v Rumsfeld, before a 2001-2002 Military Commission, or thereafter before a post-Hamdan v Rumsfeld Military Commission, notwithstanding the facts and matters pleaded in paras 13-16, 19 and 20. 25. The Commonwealth owes a duty of protection or has a function to protect Mr Hicks, as an Australian citizen overseas ("the Commonwealth's protective duty"). 26. At all material times, the first respondent ("the Attorney-General"), and his predecessor in that office, and the second respondent ("the Minister") have been and are (in case of the first and second respondents) members of the Federal Executive Council of the Commonwealth and Ministers of State for the Commonwealth appointed to administer the departments responsible for aspects of the exercise of the executive power of the Commonwealth in relation to Mr Hicks and his position. 27. The Attorney-General and the Minister, and each of them, have at all material times had discretion to determine whether, and if so in what way, the Commonwealth's protective duty should be exercised in relation to Mr Hicks and his position. 28. The conduct of the Attorney-General and the Minister in considering the exercise of their discretions with respect to the Commonwealth's protective duty in relation to Mr Hicks and his position ("the Ministerial conduct") is subject to the law and may be judicially reviewed. 29. The proper ground of judicial review of the Ministerial conduct is that the Attorney-General and the Minister have taken or are taking into account an irrelevant consideration or a consideration foreign to the nature of the Commonwealth's protective duty. 30. A proper ground of judicial review of the Ministerial conduct is that the Attorney-General and the Minister are undertaking it for an improper purpose. 31. The Ministerial conduct has been substantially influenced by the factors referred to in para 23 ("the ability to prosecute Mr Hicks") and in para 24 ("the willingness to waive mandated trial standards"). 32. The ability to prosecute Mr Hicks and the willingness to waive mandated trial standards are irrelevant considerations with respect to the Ministerial conduct are foreign to the nature of the Commonwealth's protective duty, because:- (a) the protection of the Commonwealth includes protection given by its laws; (b) under those laws Mr Hicks is not liable to any lawful punishment; (c) a desire on the part of the Commonwealth Government to procure or permit Mr Hicks to be punished notwithstanding the absence of any alleged offence punishable in Australia or under the municipal law of the United States of America is contrary to the rule of law that is required under the Commonwealth Constitution, to which the Commonwealth Government is subject; (d) the mandated trial standards (including the requisite trial protections) are grounded in customary international law or in treaty obligations such as Common Article 3 and Chapter III of the Third Geneva Convention and Article 14 of the International Covenant on Civil and Political Rights. (e) the mandated trial standards (including the requisite trial protections), or standards cognate with them, are reflected in the provisions of Division 268 of the Criminal Code (Cth) ("the Australian due-process criminal sanctions"); and (f) the Australian due-process criminal sanctions reflect customary international law or treaty obligations such as Common Article 3 and Chapter III of the Third Geneva Convention and Article 14 of the International Covenant on Civil and Political Rights. 33. The Ministerial conduct has been, and remains, informed by improper purposes, being the inability to prosecute Mr Hicks and the willingness to waive mandated trial standards. 34. There are no facts or circumstances which render the Ministerial conduct inappropriate for judicial review as being eg matters of the conduct of foreign relations beyond the competence of an Australian court. 35. Following requests made by the Attorney-General of the United Kingdom of Great Britain and Northern Ireland to the authorities of the United States of America, those authorities agreed to repatriate five British citizens detained at Guantanamo Bay in February 2004, and agreed to repatriate four other British citizens detained at Guantanamo Bay in January 2005, being all the British citizens detained by the authorities of the United States of America at Guantanamo Bay. 36. The authorities of the United States of America acceded to the request made by the Government of the United Kingdom of Great Britain and Northern Ireland for the repatriation of British citizens in the position of Mr Hicks, notwithstanding that there was an inability to prosecute them in the United Kingdom materially similar to the inability to prosecute Mr Hicks in Australia. 37. There is no reason to suppose that the authorities of the United States of America would respond to a request by the Commonwealth Government for the repatriation of Mr Hicks differently from the way they responded to the request by the United Kingdom Government for the repatriation of British citizens in the position of Mr Hicks. 38. The response by the authorities of the United States of America to the requests by the United Kingdom Government referred to in para 35 demonstrates a kind of control by the United Kingdom Government over the detention of British citizens in Guantanamo Bay by the authorities of the United States of America. 39. Following a request made by the Commonwealth Government to the authorities of the United States of America, in January 2005 those authorities repatriated Mr Habib, an Australian citizen who was detained at Guantanamo Bay. 40. The authorities of the United States of America acceded to the request made by the Commonwealth Government for the repatriation of Mr Habib, notwithstanding that there was an inability to prosecute him in Australia materially similar to the inability to prosecute Mr Hicks in Australia. 41. There is no reason to suppose that the authorities of the United States of America would respond to a request by the Commonwealth Government for the repatriation of Mr Hicks differently form the way they responded to the request by the Commonwealth Government to the repatriation of Mr Habib. 42. The response by the authorities of the United States of America to the request made by the Commonwealth Government referred to in para 39 demonstrated a kind of control by the Commonwealth Government over the detention of an Australian citizen in Guantanamo Bay by the authorities of the United States of America. 43. There is no reason to suppose that the same kind of control as that referred to in paras 37 and 42 is not held by the Commonwealth Government with respect to the detention of Mr Hicks in Guantanamo Bay by the authorities of the United States of America 44. The kind of control referred to in paras 37 and 42 involves a request by a detainee's national government to the authorities of the United States of America, in circumstances where the requesting government is that of a close ally in arms of the United States of America. 45. There is no reason to suppose that the authorities of the United States of America would be more likely to refuse the request of the Commonwealth Government than they were in the case of the request of the United Kingdom Government, for the repatriation of their respective national detainees. 46. Byreason of the facts pleaded in paras 35-45, the Commonwealth Government, including through the Attorney-General and the Minister, is in a position effectively to order or secure the release of and repatriation to Australia of Mr Hicks.'

ISSUES FOR DETERMINATION 11 The principal issues for determination, which will each be addressed in turn, are: i. What is meant by "no reasonable prospect of success"; ii. Whether the Act of State doctrine applies and whether the claims are justiciable; iii. Whether the Court can issue an order in the nature of habeas corpus on the application of Mr Hicks; iv. Whether the refusal of the respondents to request the United States Government to repatriate Mr Hicks is a decision that can be set aside by the Court on the ground that the decision-maker took into account irrelevant considerations; and v. Whether the matters alleged in the Statement of Claim are framed in way which is so imprecise, unclear or incomplete that they should be struck out.

"NO REASONABLE PROSPECT OF SUCCESS" 12 Section 31A of the Federal Court Act 1976 (Cth) was introduced to impose a lower requirement to dismiss an action by way of summary judgment than that which was imposed in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125. In that case, the requirement was expressed in terms of "manifestly groundless" or "obviously untenable". 13 In a case where evidence can give colour and content to allegations and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading: see Boston Commercial Services Pty Ltd v G E Capital Finance Australia Pty Ltd [2006] FCA 1352 at [45]. The underlying principle is that the need for a summary judgment must be clear before the court will intervene to prevent a plaintiff submitting a case for determination in the usual way. Once it appears that there is a real issue to be determined, whether it be of fact or law, and that the rights of the parties depend on it, the court should not terminate the action by way of summary judgment. As Barwick CJ said in General Steel at 129-130, great care must be exercised to be sure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of the opportunity to have his or her case tried by the appointed tribunal. The general principle that a person should not lightly be shut out from a hearing is cogent - the onus on the party applying for summary judgment is heavy.

ACT OF STATE AND JUSTICIABILITY 14 The two principles of Act of State and justiciability are to some extent distinct but they are interrelated in the present case. The Act of State doctrine was examined by the House of Lords in Buttes Gas & Oil Co v Hammer [1982] AC 888. In that case, there were two issues which raised questions relating to Acts of State. The first concerned the boundary of the continental shelf between former sovereign states and the second was whether there had been a fraudulent conspiracy between one of the sovereign states and Buttes to defraud in order to injure another. 15 Having identified these two issues, Lord Wilberforce stated the principle at 938: 'It would not be difficult to elaborate on these considerations, or to perceive other important inter-state issues and/or issues of international law which would face the court. They have only to be stated to compel the conclusion that these are not issues upon which a municipal court can pass. Leaving aside all possibility of embarrassment in our foreign relations… there are … no judicial or manageable standards by which to judge these issues… the court would be in a judicial no mans land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say at least part of these were "unlawful" under international law.' 16 The interrelation of the two principles can be seen from this extract. The principles in Buttes were applied by the High Court of Australia in Attorney-General (UK) v Heinemann Publishers Australia Pty Limited (1988) 165 CLR 30. That case involved an action in Australia by the Attorney-General of the United Kingdom to prevent disclosure of information in Australia by a publisher in breach of a claimed fiduciary duty of secrecy owed to the United Kingdom Government. The High Court held that the Attorney-General's claim was not maintainable in an Australian court on the ground that it sought to vindicate the governmental interests of a foreign state, and that it was a rule of international law that such a claim was not enforceable. The Court said at 44: 'But there are some claims for which the very subject-matter of the claims and the issues which they are likely to generate present a risk of embarrassment to the court and of prejudice to the relationship between its sovereign and the foreign sovereign.' The respondents submit that this principle applies in this case in respect of a request to the United States, given the complex considerations that attach to the making of a request for the return of Mr Hicks. 17 The decision in Buttes was considered in Kuwait Airways Corporation v Iraqi Airways Company [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) 18 Lord Steyn (at 1101) and Lord Hope (at 1108) made similar remarks, with the latter emphasising "grave … infringement[s] of human rights" as an exception to the Act of State doctrine: see also Oppenheimer v Cattermole [1976] AC 249 at 278 per Lord Cross of Chelsea. 19 Other Australian jurisprudence is relevant to the development of the Act of State doctrine in Australia. In Potter v Broken Hill Co Pty Ltd (1906) 3 CLR 479 at 495, Griffith CJ accepted the description of the Act of State doctrine by Fuller CJ of the United States Supreme Court in Underhill v Hernandez (1897) 168 US 250 as correctly stating Australian law. In that case, Fuller CJ said at 252: 'Every sovereign State is bound to respect the independence of every other sovereign State, and the Courts of one country will not sit in judgment on the acts of government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.' 20 More recently, the Full Court of the Federal Court of Australia applied the Act of State doctrine in Petrotimor v The Commonwealth of Australia (2003) 126 FCR 354 and concluded that due to the fact that the applicant's claims required a determination of the validity of a concession granted by the Portuguese Government, and because this issue raised a matter of delicacy in international dealings between Australia and Portugal, the Court should refrain from deciding the question of territorial boundaries. That issue was held not to be justiciable. There was therefore "no matter" for adjudication by the Court and consequently the Court lacked jurisdiction. In the judgment of Beaumont J at 423-449, there is a comprehensive and helpful review of the principal authorities concerning the Act of State doctrine both in Australia and overseas. 21 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. 22 In the Statement of Claim, the applicant alleges, in substance, that the Commonwealth authorities had a policy of encouraging the trial of Mr Hicks by a body that contravenes the requirements of the Third Geneva Convention, and are also acting on a policy that Mr Hicks should be the subject of proceedings in the United States. The relevant provisions in the Third Geneva Convention (Articles 84, 85, 99, 102 and 105) relate to the requirement that a trial be conducted by a regularly constituted court with all the judicial guarantees regarded as indispensable. The provisions also address issues of impartiality, procedural fairness, the application of retrospective laws creating offences in addition to the prohibition of the use of coercion. 23 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. 24 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. 25 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. 26 Gummow 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. 27 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. 28 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. 29 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. 30 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. 31 As to whether this issue is 'justiciable' before this Court, Mr Hicks says that a question is not rendered non-justiciable simply because it might have implications for military or foreign policy: see Omar v Harvey 416 F.Supp 2d 19 (2006); and United States v Curtiss-Wright Export Corp. 299 US 304 (1936). In the latter case, the Supreme Court of the United States decided that, despite implications for foreign policy, the President could constitutionally issue export controls on munitions without legislative authority. The Supreme Court was able to make a determination of executive authority without itself making any foreign policy or a military judgment. 32 In Abu-Ali v Ashcroft 350 F.Supp 2d 28 (2004), the federal District Court denied a motion by the United States government to strike out a petition for a writ of habeas corpus which challenged the applicant's ongoing detention in a prison in Saudi Arabia, allegedly at the behest and ongoing supervision of the United States. In that case, Bates J held that judicial review was not precluded by the fact that the petitioner was being held by a foreign country, and that the question as to whether the petitioner was in the actual or constructive custody of the United States could not be resolved on a motion to dismiss because it necessarily raised factual disputes. Bates J in Abu-Ali considered that the Act of State doctrine did not bar adjudication of the petition, and that the separation of powers doctrine did not foreclose adjudication of habeas corpus petitions in a strike out application. Bates J also found that the political question principle did not prevent adjudication. This case provides support for many of the propositions advanced on behalf of Mr Hicks in the present case. 33 There is a useful discussion of relevant principles in Omar v Harvey, in which the Court held that where the habeas petitioner, who was an American citizen, sought a preliminary injunction to enjoin his transfer from a detainee camp in the custody of the Criminal Court of Iraq, there should be a preliminary injunction. The Court decided it had jurisdiction to entertain the petition and considered Omar's challenge to his detention justiciable. The Court applied the principle in, previously established in Abu-Ali, that the doctrines of Act of State, separation of powers and political questions, although important considerations, did not extinguish the fundamental right of a citizen to challenge the detention alleged to be at the behest of the United States Executive. On appeal, the Circuit Court of Appeals upheld the original decision, and also relied on the decision of the Supreme Court in Hamdan v Rumsfeld 126 US 2749 (2006) as making it abundantly clear that Mr Omar's challenge to his detention was justiciable: Omar v Harvey (unreported, Circuit Court of Appeals, Tatel, Brown and Edwards JJ, 9 February 2007). Mr Omar had been held under the control of the United States authorities for over a year allegedly without legal process and with no meaningful access to legal counsel. 34 The majority opinion in the Circuit Court says at 17 of the (as yet) unreported judgment: 'The antecedent question - whether Omar's transfer even requires a treaty or statutory authorization - is also fully justiciable. On the merits, the government will surely argue that under Article II of the Constitution, the military needs no express authority to transfer detainees like Omar. Resolving this claim will involve difficult questions of constitutional law - questions which, significantly for our purposes, will require no judicial intrusion into the exclusive domain of the political branches. To be sure, a decision on the merits might well have implications for military and foreign policy, but that alone hardly makes the issue non-justiciable.' (Emphasis added) In my view, neither the Act of State doctrine nor the principle of non-justiciability justify summary judgment at this stage of the proceeding.

HABEAS CORPUS 35 A fundamental principle of English law is that no member of the executive can interfere with the liberty of a British subject, except on the condition that the legality of the interference is established as lawful before a court of justice: R v Home Secretary, Ex parte Khawaja [1984] 1 AC 74 at 110 per Lord Scarman. This principle is deeply embedded in the common law. It applies in war as in peace: see Liversidge v Anderson [1942] AC 206 at 244. The writ of habeas corpus was described by Supreme Court Justice Brennan in Fay v Moia (1963) 372 US 391 at 400, quoting Lord Birkenhead in Secretary of State for Home Affairs v O'Brien [1923] AC 603 at 609, in these terms: 'It is a writ antecedent to statutes, and throwing its roots deep into the genius of our common law… It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift remedy in all cases of illegal restraint or confinement.' Custody or Control 36 The respondents submit that habeas corpus is not available in this case because Mr Hicks is not in the custody or control of the respondents. Control or custody is an essential element to the issue of the writ. 37 Mr Hicks submits that for the writ to issue it is not necessary to show that the respondents have actual custody. It is contended that it is sufficient to show that the applicant is 'under the control' of the respondents in the sense that they have sufficient power to bring about his release from detention. The question of 'control' in the present case is one of fact and degree, so that the applicant should not be blocked at the pleading stage from adducing and testing evidence as to the sufficiency of the control of the respondents and their power to procure his release. 38 The primary authority on which Mr Hicks relies is the The King v Secretary of State for Home Affairs; Ex parte O'Brien (1923) 2 KB 361, a decision of the English Court of Appeal. In that case, the habeas corpus application was brought against the Secretary of State for Home Affairs seeking the applicant's release from detention in the Irish Free State, which had been ordered by the Home Secretary. Mr O'Brien had been arrested in London under the order (which was later found to be invalid) and was conveyed to Dublin where he was interned. There was an 'agreement' between the Home Secretary and the Irish Free State government that if an advisory committee appointed by the Secretary of State reported that Mr O'Brien ought not to have been interned, then the Irish Free State government would release him. 39 In that case, the application for habeas corpus was directed not to the Irish authorities who had custody of Mr O'Brien, but to the British Home Secretary. The Court of Appeal held that although the Home Secretary had lost legal control of the applicant's body by surrendering Mr O'Brien to the Irish Free State government, the application was properly made against him. This was because doubt remained as to whether the Home Secretary had sufficient de facto control to justify the issue of the writ so that the question of control might be definitely determined on the return of the writ. The rule nisi was made absolute. 40 One important circumstance in that case was that there was an inconsistency in the material before the Court as to whether the Home Secretary had in fact sufficient power or control over Mr O'Brien. In Parliament, he had made statements which gave the impression that he had not lost control over persons who, by his orders, had been interned in the Irish Free State. In contrast, on his affidavit before the court, the Home Secretary swore that the Governor of the prison in Ireland was an official of the Free State government and was not subject to his orders or those of the British government. 41 In the reasons for judgment, in relation to the question of custody and control, their Lordships commented on the nature and degree of control necessary to provide a foundation for the issue of a writ of habeas corpus. Counsel for Mr O'Brien argued that it was enough to refer to the admission by the Home Secretary in the House of Commons that he had agreed with the Irish Free State government for the return of Mr O'Brien if his internment should be held to be unauthorised. It was also pointed out that, in view of the Home Secretary's admission, the question as to whether he had in fact sufficient control to secure release was one which could only be determined on the return of the writ. 42 In reference to the question of the degree of control necessary for grant of the writ, Bankes LJ said at 381: '… it leaves the question in doubt of how far, if at all, by arrangement with the Free State Government the body of the applicant is under the control of the Home Secretary. This question cannot, I think, be satisfactorily disposed of unless the rule is made absolute which will give the Home Secretary the opportunity, if he decides to take advantage of it, of making the position clearer than it appears to be.' (Emphasis added) 43 Scrutton LJ said at 391-392: 'I do not wish to tie myself to the exact degree of power over the body which justifies the issue of the writ, for various higher authorities have used different words. Lord Herschell's language is "custody, power or control"; Lord MacNaghten's "under control or within reach"; Lord Halsbury's "wrongful detention by himself or his agent"… There is no exact evidence as to the arrangement, except the statement of Mr Bridgeman in the fifth paragraph of his Affidavit, but the Attorney-General told us the "arrangement" was oral.' (Emphasis added) The above indicates that an oral 'arrangement' may be sufficient to constitute control. This is considerably less than a requirement of custody. The Court made the rule absolute in order to consider the nature of the arrangement. The importance of evidence to a determination was a point also stressed by Atkin LJ at 398. 44 The decision in O'Brien was subsequently considered in the matter of Foday Saybana Sankoh [2000] EWCA Civ. 386 by the English Court of Appeal. The application failed because it was brought against the Secretary of State on extremely tenuous grounds by the wife of Mr Sankoh. She sought habeas corpus against the British government authorities on the basis that there was some information which allegedly showed that Mr Sankoh was within the custody or control of British authorities. The Court of Appeal considered the material which had been adduced before the primary judge, and concluded that a link with the British government was so thin that it could not possibly amount to sufficient control. The case bore no similarity to O'Brien. The Court of Appeal considered the claim as a question of fact, particularly with regards to the nature and extent of the alleged links with Britain. In that case, the only connection appeared to be that British Armed Forces had assisted the Sierra Leone Police to transport Mr Sankoh to a United Nations site from which he then was removed by the Sierra Leone Police, without any assistance from United Kingdom Forces, to a place unknown. There was some evidence from the British file, submitted on behalf of the British government, to the effect that the British Taskforce involvement was purely to provide some brief transport and security to the Sierra Leone Police, together with some medical attention on an emergency basis while Mr Sankoh was aboard a helicopter. From this flimsy basis, the applicant argued there was sufficient 'control' by the British government to grant an application for habeas corpus. 45 In forceful language, Lord Justice Laws, with whom Lord Justice Ward and Lord Justice Waller agreed, held that there was not a 'whisper of an objective basis' for the suggestion that the Secretary of State had anycontrol over Mr Sankoh so as to warrant the issue of a writ of habeas corpus. Lord Justice Waller added that there was 'absolutely no shred of evidence of any degree of control', and Lord Justice Ward referred to it as an 'impudent appeal' and awarded indemnity costs. 46 It is specifically pleaded in the present case that the Australian government is in 'a position effectively to order to secure the release of and repatriation to Australia of Mr Hicks'. Counsel referred to statements by the Australian government to the effect that it has power to bring about the return of Mr Hicks to Australia, and that it has co-operated over the past five years with the United States government in relation to the custody of Mr Hicks. In particular, there are references in the pleading to the release of other detainees to justify the allegation that the Australian government could procure the release of Mr Hicks at any time and that it is probable that any request would be acceded to. The allegation is made in the form that '[t]here is no reason to suppose that the authorities of the United States of America would respond to a request by the Commonwealth Government for the repatriation of Mr Hicks differently from the way they responded' to other requests for other detainees, which I take to allege that a request of behalf of Mr Hicks would not be refused. 47 In the light of these allegations and authorities, counsel for Mr Hicks submits that the case is within the principles applied in O'Brien, and that it cannot be said there is no reasonable prospect of success on the question of whether the Australian government has the necessary degree of control for a writ of habeas corpus to be made absolute. There is at least sufficient doubt generated, it is contended, to bring the present case within the habeasprinciples relating to 'control.' Since the question is one of fact and degree, it is not appropriate to dismiss the proceeding at this point without permitting evidence to be adduced as to the nature and extent of the co-operation, arrangements and agreements and any other relevant commitments between the Australian and United States governments in relation to the detention of Mr Hicks. The role of 'doubt' and 'control' in relation to the issue of the writ of habeas corpus was succinctly summarised Justice Sharpe, writing before his appointment to the Ontario Court of Appeal, in The Law of Habeas Corpus (2nd ed., 1989) at 179: 'The writ will issue even where the respondent's control is doubtful, and the court will determine one the return whether or not the respondent has taken sufficient steps to produce the party.' 48 The respondents submit that the cases referred to above are distinguishable from the present case. For example, in the case of O'Brien, there was an agreement or arrangement between the British and the Irish Free State governments. The respondents note that no such agreement exists between the governments of the United States and Australia in relation to Mr Hicks. Furthermore, in O'Brien, the internment of the applicant was subject to further order and there was also a clear contradiction in the positions taken by the Home Secretary before the Parliament and before the Court in relation to the nature and existence of control. In addition, the respondents contend that there is support for the position contrary to the applicant's in a number of statements made in Sankoh. In that case, Lord Justice Laws said at [9]: 'It seems to me, moreover, looking at the matter more broadly, that unless Mr Sankoh is actually in the custody of the United Kingdom authorities, the applicant's case must be that the British Government should be required by this court to attempt to persuadeSierra Leone either to identify his whereabouts or to deliver him up. But that involves the proposition the court should dictate to the executive government steps that it should take in the course of executing Government foreign policy: a hopeless proposition. (Emphasis added) 49 The respondents submit that persuasion or the power to make a request falls far short of, and can never amount to, control. However, unlike Sankoh, in the present case the location of Mr Hicks is known, and given that the pleading alleges that there is not only control but also that a request by the Australian government would be granted, the case for Mr Hicks is that the respondents retain more than an ability to simply persuade the United States government. Mr Hicks submits that he should be permitted to lead and test evidence regarding control to determine whether there is the requisite degree of co-operation and control on the part of the Australian government in relation to his internment by the United States authorities. It should be noted that Mr Hicks does not contend that the Court should dictate to the executive what should be done in the course of executing foreign policy. 50 Notwithstanding the force of the submissions made by the respondents, I am not persuaded, having regard to the authorities and the line of reasoning, that there is no reasonable prospect of success on this issue. Unlawfulness of detention 51 The respondents contend that there is no evidence that the detention is unlawful and therefore the proceedings should be dismissed. It is said that the application has is no reasonable prospect of success because this essential element is lacking. 52 Essentially, Mr Hicks' contention is that the fact of his internment for five years - in the absence of any evidence before the Court which would justify this detention - is sufficient to establish that the detention is prima facie unlawful. Therefore, it is said, the matter should go to a hearing on this question so that the facts and circumstances surrounding any 'authorisation' of his internment can be investigated with a view to establishing its legality or illegality. 53 There is a clear line of authority that Mr Hicks is at present entitled to the benefit of this conclusion: see, as discussed above, Abbasi v Secretary of State [2002] EWCA Civ. 1598. Deprivation of liberty is prima facie unlawful, and until this is rebutted by evidence of lawful authority, the unlawfulness can be accepted. There is at present no such rebuttal evidence before me. 54 Authorities support the proposition that in habeas corpus applications, the detaining party bears the onus of showing the lawfulness of that detention: Abbasi v Secretary of State [2002] EWCA Civ. 1598 at [66] (and cases cited therein); The King v Carter; Ex parte Kisch (1934) 52 CLR 221 at 227 per Evatt J; Regina v Governor of Brixton Prison; Ex parte Ashan (1969) 2 QB 222 at 233, 237, and 248; R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62; and, regarding the need for evidence, Greene v Home Secretary [1942] AC 824. See also Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed., 2004) at 777-779. 55 Cases which impose the general onus upon a respondent as to the legality of detention include: The King v Carter; Ex parte Kisch (1934) 52 CLR 221 at 227, where Evatt J said that the duty of the Court was to see if any legal ground is made out to justify detention; Naumovska v Minister for Immigration and Ethnic Affairs (1982) 60 FLR 267 at 278, where Sheppard J left the question open; R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62; and Regina v Governor of Brixton Prison; Ex parte Ashan (1969) 2 QB 222 at 233, 237. In the present case no order, writ or document evidencing the basis for the detention has been provided. 56 I am not persuaded that there is no reasonable prospect of success in the argument that the fact of detention is itself, without evidence of authorisation, sufficient to warrant the conclusion the detention is unlawful. Accordingly, I find that the matter should not be prevented from consideration at a hearing and therefore refuse to strike out the matter on this ground. The proceeding should go to a hearing on the question of the availability of the writ of habeas corpus.

JUDICIAL REVIEW - IRRELEVANT CONSIDERATIONS 57 Mr Hicks submits that the respondents have a duty to consider an application by an imprisoned Australian citizen that a request be made to the United States authorities to deliver the citizen to Australian authorities, and that the respondents must exercise this duty by having regard only to relevant considerations. It is not submitted that on judicial review, the respondents must ask the United States authorities to return Mr Hicks, but rather that the respondents must consider in accordance with law whether they will make the request. 58 Mr Hicks submits that there are two irrelevant considerations at issue in this proceeding. The first is the premise that Mr Hicks could not be prosecuted under Australian law if returned to Australia. The second is the premise that it is desirable that Mr Hicks should remain in detention in Guantanamo Bay and should be the subject of proceedings there. 59 Mr Hicks submits that by taking into account these two considerations, the respondents have considered matters irrelevant to the exercise of their discretion in considering whether to make the request, and that, as a consequence, the respondents' decision not to request the return of Mr Hicks was invalid and must be taken not to have been made. Therefore, it is contended, the respondents have failed in their duty to consider the exercise of their power to protect the applicant, and the respondents must now consider anew whether to make a request without giving any weight to the irrelevant factors. 60 The respondents contend that in deciding whether to request the return of Mr Hicks, it is clearly relevant to take into account the fact that it may not be possible to prosecute him under Australian law. It is submitted that this is because the possibility that Mr Hicks will not be prosecuted is a significant consideration when the respondents come to consider whether the request is likely to be granted or serve any useful purpose. Moreover, it is said that it is open to the respondents to conclude that it is undesirable that Mr Hicks should go free if returned. The respondents emphasise that the discretion concerned is a wide and unfettered executive discretion at the highest level, and that there are no constraints or criteria imposed on that discretion. Therefore, it is submitted, the question of extraneous considerations is inapplicable and the issue is non-justiciable. 61 In answer to this, Mr Hicks submits that under the Australian Constitution, and in particular s 61, the federal executive government owes a duty of protection to a citizen in the predicament of Mr Hicks. Although this protective duty cannot be enforced by Mr Hicks, it is a duty of imperfect obligation which must be taken into account in the respondents' consideration as to whether to make a request. It would be inconsistent with this duty of protection to take into account that Mr Hicks would not be prosecuted if returned. Due to this inconsistency, an inability to prosecute Mr Hicks in Australia or the likelihood that he may go free if returned cannot be relevant in the respondents' consideration as to whether the applicant should be protected by a request to the United States authorities to repatriate him from Guantanamo Bay back to Australia. Likewise, it is said, the respondents' purpose of further co-operating with the United States authorities in relation to the continued detention and prosecution of Mr Hicks in Guantanamo Bay is not consistent with the Executive's duty to protect a citizen. Therefore, the applicant submits, both of these considerations are extraneous to the protective duty. The function of the Executive under s 61 is to protect against - and not enable - the punitive detention and prosecution of an Australian citizen in a 'legal black hole', to use the terminology of the English Court of Appeal in Abbasi. 62 Counsel for Mr Hicks submits that the Australian government owes a 'duty' of protection which, although not enforceable as a legally binding duty, has the effect of preventing the Government from making a decision on the basis that Mr Hicks ought to be prosecuted in the United States, because to do so would be inconsistent with that protection. This diplomatic protective duty is said to arise as a counterpart to the duty of allegiance which a citizen owes to Australia. In support of this submission, reference is made to the observation by Gummow J in Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 198 concerning the protection of the laws of Australia as being the counterpart of an allegiance owed by a resident: see also Hersch Lauterpacht (ed.), Oppenheim's International Law: Volume One - Peace (5th ed., 1937) at 546; and Edwin Borchard, The Diplomatic Protection of Citizens Abroad or The Law of International Claims (1919) at 29. If the laws of Australia are designed to protect the citizen, then it is at least arguable that when s 61 refers to the maintenance of the 'laws of the Commonwealth', such 'laws' include the protective function. Section 61 is also subject to the constraints imposed by Chapter III. 63 This observation of his Honour was referable to the House of Lords decision in Joyce v Director of Public Prosecutions [1946] AC 347, where it was held that the duty of allegiance owed to the United Kingdom by Mr Joyce was a counterpart to the duty of the United Kingdom to protect him, and that this was sufficient to expose Mr Joyce to treason charges. The considerations which brought Mr Joyce within the Treason Act 1351 (Eng) were his long term residence in the United Kingdom; the duty of allegiance which he owed; his request for and obtaining of a British passport; his leaving the Realm; and his aiding the King's enemies during World War II. Lord Jowitt at 371 accepted it as a universally recognised rule of customary international law that each state has a right of protection over its nationals abroad, and that such a rule may be invoked by the holder of a passport which is an official document title as to his rights. It sits uncomfortably with the protection of a citizen that the respondents should take account of the desirability of allowing a citizen to be subjected to punishment as the consequence of a decision of a foreign tribunal which, it is said, does not proceed in accordance with basic internationally agreed standards. The measure to which the state protects the citizen is at its discretion. The observations of Lord Jowitt proceed on the basis that the state must consider the request for protection but that the response is entirely at the discretion of the state. 64 The notion of a non-enforceable duty to protect was discussed in Mutasa v Attorney-General (1980) 1 QB 114, where Boreham J held that although the Crown had a "duty" to protect a citizen fromunlawful detention, this duty was one of imperfect obligation and could not be enforced at the instance of the detained person. In the case put by Mr Hicks, the claim is not to enforce the duty but rather to set aside the executive decision because extraneous matters were considered. 65 In China Navigation Co Ltd v The Attorney-General (1931) 40 Ll L R 110, Rowlatt J spoke at 112-113 of a duty cast on the Crown to protect his Majesty's subjects in British ships upon the high seas: 'It is a different sort of thing in a different region altogether. It is merely what I venture to call a political duty, using the word 'political' in its proper and original sense. It is what any government would be expected to do for its people, but the court cannot examine it. Nobody could come to the Court and say whether the government of any country did or did not perform its duty in that respect. That confusion with the double use of the word 'duty' lies at the bottom of the whole argument in this case.' (Emphasis added) This does not, however, mean that a right of imperfect obligation can have no legal consequences. 66 Counsel for Mr Hicks argues that this 'diplomatic duty' of protection cannot be enforced as of right at the instance of Mr Hicks but, nevertheless, says that its existence has the consequence that, in the present circumstances, the respondents cannot take into account a consideration which is inconsistent with the 'duty'. He says that it would be irrelevant in the exercise of their discretion for the respondents to take into account the desirability of Mr Hicks being subject to prosecution, or give weight to the further consideration that Mr Hicks could not be prosecuted in Australia. Such a course, he submits, would be inconsistent with the counterpart 'duty' of protection arising as a consequence of the allegiance referred to in Te and Joyce. 67 In Joyce, the diplomatic duty of protection had a practical consequence in law because it generated the corresponding duty of allegiance by Mr Joyce, for contravention of which Mr Joyce was hung. It cannot therefore be suggested that the duty of imperfect obligation is incapable of having significant consequences in law: see also Attorney-General v Tomline [1880] 14 Ch.D 58 at 67. In this case, Mr Hicks submits that the non-enforceable 'duty' of protection operates to render as irrelevant those considerations based on the desirability of a citizen being prosecuted and punished. 68 According to Mr Hicks, the decision to allow the United States to prosecute has the consequence that the prosecution of Mr Hicks by the newly constituted Military Commission will involve a process which Australian legislation recognises as one of the constituent elements of the war crime of denying a fair trial under the Criminal Code Act 1995 (Cth). In particular, s 268(31) provides that it is an offence to deprive a person of a fair trial by denying judicial guarantees in the Third Geneva Convention, where that person is protected under the Conventions and the conduct takes place in the context of an international armed conflict. 69 It is not suggested that the respondents' decision amounts to a war crime. Rather, counsel for Mr Hicks submits that these provisions operate to support the view that the elements referred to in s 268(31) are justiciable because they are constituent elements of a criminal offence, and such an offence can only be tried and punished by a Chapter III court. Accordingly, it is said that a consideration which does not conform to international law is justiciable because this Court is not asked to apply non-judicial standards in making a determination. 70 The elements set out in s 268(31) are legislative standards and they are matters capable of adjudication, against which conduct can be judicially assessed. Sections 11.2 and 11.4 of the Code make it a crime to aid or incite the commission of a war crime. Therefore, it is said for Mr Hicks, it would not be relevant for the respondents to take into account, when considering whether to make a request, a policy that it is desirable that Mr Hicks be prosecuted by a Commission which would be in contravention of the Third Geneva Convention. 71 In relation to these arguments, attention was drawn by counsel for the applicant and the respondents to the recent decision of the United States Supreme Court in Hamdan v Rumsfeld (2006) 126 SC 2749. In that case, the United States Supreme Court decided that the Military Commission established by the Executive prior to 2006, and under which Mr Hicks had been charged, was unauthorised. It followed as a consequence that the Commission and the charges were unlawful. Mr Hamdan was a Yemeni citizen held at Guantanamo Bay and was alleged to be involved in a crime of conspiracy to commit offences triable by the Military Commission. The required procedures before that body were found to be illegal and the charge of conspiracy was not known to United States law. There was found to be a clear and admitted failure to apply basic rights in these procedures in addition to violations of the Geneva Conventions. That Military Commission was found not to be a regularly constituted Court having regard to the requirements outlined in the Conventions. The Court considered that even assuming that Mr Hamdan was a dangerous individual who would cause death to civilians, the Executive must nevertheless comply with the rule of law by undertaking to try him and subject him to criminal justice. After Hamdan, Congress constituted a different Military Commission and Mr Hicks has been charged under different procedures. The legality of those new procedures and the new Military Commission has not yet come before a court. 72 By way of broad analogy, counsel for Mr Hicks refers to circumstances where a bribe is taken into account by a decision-maker as a reason for taking administrative action. Because the acceptance of a bribe is a crime, it must be irrelevant to take the bribe into account when making the decision. Conduct contrary to law cannot or should not be taken into account as a relevant consideration. It is submitted that if it can be established as a matter of fact that the respondents have a policy or have taken into account the desirability of Mr Hicks being prosecuted in the United States by a tribunal which does not satisfy the Conventions' requirements, such a consideration is arguably extraneous. This is a question which the applicant wishes to ventilate in a proceeding. Counsel for Mr Hicks says that the Military Commission before which it is proposed he be tried does not comply with the Conventions. Therefore, it is said, if the respondents take into account the desirability of prosecuting him in the United States by such a tribunal, this must invalidate the exercise of the executive discretion. 73 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. 74 The applicant also submits that the Act of State doctrine does not apply to the adjudication because the Court will not be required to decide questions concerning the acts of a foreign sovereign, but it is only required to decide whether the respondents have taken into account considerations extraneous to the proper exercise of the executive authority under Chapter III of the Constitution. The consequence that the determination might have some implication for foreign relations does not mean that a Chapter III Court cannot properly entertain the matter. 75 Counsel for Mr Hicks also refers to Chapter III of the Constitution to support the irrelevant consideration submission. Counsel says that in Australia, punitive detention can only be imposed by a Chapter III court pursuant to an Australian law. The executive cannot create an offence or punish a crime by an Australian citizen. The effect of a refusal to request the release of Mr Hicks because, if released, he cannot be punished in Australia, and the encouragement of his prosecution in the leased territory of Guantanamo Bay outside the United States, is to effectively permit the prosecution of an Australian citizen for a matter not known to Australian law. Thus, it is submitted, these factors must be irrelevant considerations in relation to the proper execution and maintenance of Australian law. 76 Counsel for Mr Hicks also submits that criminal punishment in the federal sphere can only be administered by a Chapter III court for past acts. He says that internment such as that of Mr Hicks is a form of punishment and the executive cannot assist in the administration of punitive punishment because Chapter III exclusively confers the power to punish exclusively on courts exercising federal jurisdiction. Arguably, for the executive to engage in conduct which causes punishment by a non-Chapter III Court for wrongdoing is beyond the legitimate exercise of executive power as conferred by s 61. The purpose of maintaining the Constitution requires the executive to respect the exclusivity of jurisdiction conferred by Chapter III. The decision not to make a request proceeds on the premise that it is desirable or acceptable for Mr Hicks to be prosecuted by a body which does not comply with the Geneva Conventions and which does not satisfy the requirements of with Chapter III. It is submitted that it is no part of the executive power (which has a protective function) to promote punishment of an Australian citizen for an offence not known to Australian law. For this reason, it is said that taking into account the circumstance that Mr Hicks cannot be punished under Australian law is an irrelevant consideration, and to act on such a consideration is to participate in the imposition of punishment by a body other than a Chapter III court. The Executive is not entitled to take this matter into account and has acted on an irrelevant consideration. 77 These submissions by counsel as to irrelevant consideration are not foreclosed by authority. Legal principle is developing in the case of judicial review of executive action and the law is far from settled. No authority has been cited nor has any argument made to me which establishes that the submissions for Mr Hicks do not have a reasonable prospect of success. Mr Hicks may, of course, not ultimately succeed, but in my view the submissions are sufficient to defeat a summary judgment on the judicial review application at this stage.

THE DECISION IN ABBASI 78 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. 79 Notwithstanding this concern, the Court rejected the claims of Mr Abbasi for relief on the basis that the United Kingdom authorities had considered the request. Their Lordships thought that it would never be appropriate to order the Secretary of State to make any specific request. They had regard to the extensive evidence before them and concluded that if the Foreign Office were to express a view as to the legality of the detention, this might undermine the discussions being held with the United States officials. There is no such evidence in this case. In their final statement of reasons at [107], they refer to evidence that the request had been considered and that British detainees were the subject of discussions with the United States authorities. Their Lordships also referred to the fact that the position of detainees at Guantanamo Bay was to be considered by appellate courts in the United States, and that the apparent contravention of human rights would be drawn to their attention. They also referred to the fact that the Inter-American Commission on Human Rights had taken up the case of the detainees and that it was unclear what the result of the intervention would be. In summary, their Lordships concluded that even in the face of what appeared to be a clear breach of fundamental human rights, no order should be made because of the obvious impact on the conduct of foreign policy. 80 The Abbasi circumstances can be distinguished from the present case in the following respects. In the present case it is apparent that the position of Mr Hicks has not been advanced by these considerations of appellate review or intervention by the Commission which were outstanding at the time of the Court of Appeal decision. In this case, Mr Hicks has been in detention for over five years at the present time, and the original charges against him were invalid, as was the Military Commission. In Abbasi, the Court had the benefit of evidence from the Deputy Under Secretary of State for Foreign and Commonwealth Affairs as to the relationship between the British and United States governments. There is no evidence from the respondents on the present application to this effect. In this case, the application is to set aside the decision of the respondents not to make any request to intervene whereas in Abbasi the application sought an order that a specific representation should be made. In the present case, there is also an application for habeas corpus. In Abbasi, there was not; although their Lordships did acknowledge at [59]-[63] the great importance of the writ of habeas corpus as affording a swift remedy to all cases of illegal restraint or confinement. The grounds of the application for judicial review in this case are based on the irrelevant considerations ground. In Abbasi, this was not the basis of the review application. In this case, a submission is based on the meaning and reach of s 61 of the Australian Constitution. In Abbasi, of course, the principle of separation of powers in the concept of a written federal Constitution was not relevant. 81 The Court at [57] observed that it did not need a statutory context in order to express a view in relation to what it conceived to be a clear breach of international law, particularly in the area of human rights. At [60] their Lordships affirmed the fundamental principle that in English law every imprisonment is prima facie unlawful and that the executive cannot interfere with the liberty of a British citizen except on the condition that it is possible to support the legality of the detention before a court of justice. This statement is important in the present case because it lends some support to the habeas corpus application by Mr Hicks. The Court said at [64]: 'For these reasons we do not find it possible to approach this claim for judicial review other than on the basis that, in apparent contravention of fundamental principles recognised by both jurisdictions and by international law, Mr Abbasi is at present arbitrarily detained in a "legal black hole.".' 82 Their Lordships at [83]-[85] referred to the House of Lords decision in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, where the Court accepted the proposition that the controlling factor in considering whether a particular exercise of prerogative power was subject to review was not its source but its subject matter. The issue of justiciability was seen by their Lordships to depend not on a broad general principle, but on subject matter and suitability in particular circumstances. They referred to statements in the Council of Civil Service Unions case relating to the fact that at the top of the scale of executive functions under the prerogative were matters of high policy, examples of which included making treaties, making war, dissolving Parliament and mobilising armed forces. By contrast, they referred to the grant or refusal of a passport as simply a matter of an administrative decision affecting the rights of individuals. These remarks indicate that there is a range of fact and degree in relation to particular matters which needs to be examined before an informed decision can be made. 83 As to the obligation of the Executive to give consideration to the question of whether to make any representations at all, their Lordships observed at [99] that the process is not immune from judicial scrutiny. Persons may have a legitimate expectation that a request to make a representation should be 'considered,' and that during that consideration, all relevant factors will be thrown into the balance. 84 One factor seen as vital by their Lordships at [100] was the nature and extent of the injustice which the requesting party claims to have suffered. It is arguable that the greater the injustice, the clearer is the duty to consider whether to make representations. This duty may, however, be subject to overriding considerations of foreign policy. 85 At [106], their Lordships note that while the discretion of the Foreign Office is a wide one there is no reason why its decision or inaction should not be reviewable where it can be shown to be 'irrational' or 'contrary to legitimate expectations'. However, they said that the expectations of a citizen to protection are limited and the discretion is a very wide one. Their Lordships referred to the existence of a 'forbidden area' which included the decisions affecting foreign policy. Nevertheless, they expressed the view that there was an obligation to consider the position of a particular British citizen, and that it seemed unlikely that such consideration of the extent to which some form of action might be taken on his or her behalf would impinge on any 'forbidden area'. The general way in which a decision could impact on foreign relations in this case could be the subject of evidence, as it was in Abbasi. The concept of a 'forbidden area' arguably states the position far too generally to be applied at face value, and such a broad proposition will not readily apply in Australia where executive power is vested by and subject to the limitations spelt out in s 61 of the Australian Constitution. 86 These observations lend support to the case of Mr Hicks insofar as they refer to the consideration by the Secretary of State as involving all relevant factors being thrown into the balance. In Abbasi, the extent of the injustice was considered by their Lordships to be substantial, even where the internment had been a period of eight months and there appeared some prospect of alleviation of Mr Abbasi's predicament as a consequence of possible appellate review in United States courts and because of representations of the Inter-American Commission. In contrast, the injustice in this case could be seen to be substantially greater than that in Abbasi, given the internment of the applicant for over five years and the fact that there has been no alleviation of his predicament as a result of appellate review or representations by the Commission.

PLEADINGS 87 It is common ground that if the respondents' summary judgment application is refused on the present pleading, it will be necessary to amend the current pleading to take account of significant new developments that have occurred since the Statement of Claim was filed on 6 December 2006. 88 I agree that some wording in the Statement of Claim is imprecise and in other instances unclear. The defects as outlined in the submissions of the respondents are, however, capable of clarification and more precision. In particular, the introductory phrase in a number of crucial paragraphs, "there is no reason to suppose", is unclear. I would read those words, in the context of the paragraphs in which they appear, as indicating "it is likely that" or "there is a reasonable expectation that" Mr Hicks will be returned if a request is made. 89 In view of the statement by counsel for Mr Hicks that the pleadings will be substantially modified, I am not disposed to strike out parts of the pleadings as presently framed because of the pleading deficiencies.

CONCLUSION 90 It must be kept firmly in mind that this case concerns the fundamental right to have cause shown as to why a citizen is deprived of liberty for more than five years in a place where he has not had access to the benefit of a duly constituted court without valid charge. Furthermore, it cannot be confidently predicted how much longer that detention will continue. It should be noted that some of the delay in bringing charges against Mr Hicks arose as a consequence of the challenge to the Military Commission as previously constituted. But this challenge succeeded before the United States Supreme Court. The courts have consistently held that questions of personal liberty are of primary importance and of the utmost urgency and, arguably, if Mr Hicks can make good the facts in his Statement of Claim, trial by the new Military Commission and its procedures may be found to be contrary to the requirements of international law. 91 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. 92 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. 93 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. 94 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.

Counsel for the Applicant: Mr B Walker SC, Mr C Hoy, Ms K Eastman and Mr C Lenehan

Solicitor for the Applicant: North & 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 & 28 February 2007

Federal Court Act 1976(Cth)

Abbasi v Secretary of State [2002] EWCA Civ. 1598, distinguished Abu-Ali v Ashcroft 350 F.Supp 2d 28 (2004), considered Attorney-General v Tomline [1880] 14 Ch.D 58, cited Attorney-General (UK) v Heinemann Publishers Australia Pty Limited (1988) 165 CLR 30, considered Boston Commercial Services Pty Ltd v G E Capital Finance Australia Pty Ltd [2006] FCA 1352, cited Buttes Gas & Oil Co v Hammer [1982] AC 888, considered China Navigation Co Ltd v The Attorney-General (1931) 40 Ll L R 110, considered Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, referred to Fay v Moia (1963) 372 US 391, referred to Foday Saybana Sankoh [2000] EWCA Civ. 386, considered General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125, referred to Greene v Home Secretary [1942] AC 824, cited Hamdan v Rumsfeld 126 US 2749 (2006), considered Joyce v Director of Public Prosecutions [1946] AC 347, considered Kuwait Airways Corporation v Iraqi Airways Company [2002] 2 AC 883, considered Liversidge v Anderson [1942] AC 206, cited Mutasa v Attorney-General (1980) 1 QB 114, considered Naumovska v Minister for Immigration and Ethnic Affairs (1982) 60 FLR 267, cited Omar v Harvey 416 F.Supp 2d 19 (2006), considered Omar v Harvey (unreported, Circuit Court of Appeals, Tatel, Brown and Edwards JJ, 9 February 2007), considered Oppenheimer v Cattermole [1976] AC 249, cited Petrotimor v The Commonwealth of Australia (2003) 126 FCR 354, considered Potter v Broken Hill Co Pty Ltd (1906) 3 CLR 479, considered R v Governor of Metropolitan Gaol; Ex parte Di Mardo [1963] VR 61, cited R v Home Secretary, Ex parte Khawaja [1984] 1 AC 74, cited Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, considered Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162, considered Regina v Governor of Brixton Prison; Ex parte Ashan [1969] 2 QB 222, cited Secretary of State for Home Affairs v O'Brien [1923] AC 603, cited The King v Carter; Ex parte Kisch (1934) 52 CLR 221, cited The King v Secretary of State for Home Affairs; Ex parte O'Brien (1923) 2 KB 361, considered Underhill v Hernandez (1897) 168 US 250, considered United States v Curtiss-Wright Export Corp. 299 US 304 (1936), considered

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