Habib v Commonwealth of Australia [2010] FCAFC 12

FEDERAL COURT OF AUSTRALIA

Habib v Commonwealth of Australia [2010] FCAFC 12

Citation: Habib v Commonwealth of Australia [2010] FCAFC 12

Parties: MAMDOUH HABIB V COMMONWEALTH OF AUSTRALIA

File number: NSD 956 of 2006

Judges: BLACK CJ, PERRAM AND JAGOT JJ

Date of judgment: 25 February 2010

Catchwords: CONSTITUTIONAL LAW – act of state doctrine – non-justiciability – scope of act of state doctrine – where Australian citizen has brought proceedings against the Commonwealth – where a determination of the proceedings would depend on findings of the legality of the acts of foreign agents outside Australia – whether act of state doctrine applicable where allegations of grave breaches of international law – whether manageable judicial standards

HIGH COURT AND FEDERAL COURT – original jurisdiction of the High Court and Federal Court – judicial scrutiny of actions of the Executive by Ch III Courts – whether Constitutional framework and legislation in question enables such scrutiny

Held: act of state doctrine inapplicable

Legislation: The Constitution, ss 51(xxxi), 61, 75, 76, 77(i) Administrative Decisions (Judicial Review) Act 1977 (Cth) Australian Federal Police Act 1979 (Cth) Australian Security Intelligence Organisation Act 1979 (Cth) Crimes (Torture) Act 1988 (Cth), ss 3, 5A, 6, 7, 8 Criminal Code Act 1995 (Cth) The Criminal Code, ss 11.2, 16.1, 268.26, 268.74 Director of Public Prosecutions Act 1983 (Cth) Federal Court of Australia Act 1976 (Cth), s 25 Foreign States Immunities Act 1985 (Cth), s 9 Geneva Conventions Act 1957 (Cth), s 7 Judiciary Act 1903 (Cth), ss 30, 39B, 44, 79 Jurisdiction of Courts (Foreign Lands) Act 1989 (NSW) s 3 Law Reform (Miscellaneous Provisions) Act 1955 (ACT) s 34 Public Service Act 1999 (Cth) Seas and Submerged Lands Act 1973 (Cth) Federal Court Rules, Order 50 r 1