Hicks v Ruddock [2007] FCA 299

FEDERAL COURT OF AUSTRALIA

Hicks v Ruddock [2007] FCA 299

CONSTITUTIONAL LAW – Judicial power – Act of State doctrine – Non-justiciability – "Judicial or manageable standards" – Conduct of foreign relations – Constitution of the Commonwealth, s 61 – Power of the Executive to protect citizens overseas – Implications for foreign and military policy.

CONSTITUTIONAL LAW – Habeas corpus – Custody or control – Actual and de facto control – Nature and degree of de facto control – Importance of an agreement to de facto control – Importance of evidence to the writ, especially where control is doubtful – Lawfulness of detention – Prima facie unlawfulness of detention – Importance of evidence to rebut unlawfulness – Onus of proof.

ADMINISTRATIVE LAW – Commonwealth Executive power – Non-justiciability – Irrelevant considerations – Duty of Executive to protect citizens – Failure by the Executive to consider an exercise of its power – Imperfect obligation of the Executive to protect citizens – Duty to protect as counterpart to a citizen's duty of allegiance – Consideration of matters inconsistent with protection – Justiciability of considerations incorporated into Australian statute – Elements of the war crime of denying a fair trial – Criminal punishment administered exclusively by Chapter III courts – Constitution of the Commonwealth, Ch III, s 61 – Criminal Code Act 1995 (Cth), ss 11.2, 11.4, 268(31).

PRACTICE AND PROCEDURE – Summary judgment – Federal Court Act 1976 (Cth), s 31A – "No reasonable prospect of success".

PRACTICE AND PROCEDURE – pleadings – strike out – amendment.

Constitution of the Commonwealth, Ch III, s 61 Criminal Code Act 1995 (Cth), ss 11.2, 11.4, 268(31) Bankruptcy Act 1966 (Cth) Extradition (Foreign States) Act 1966 (Cth) Federal Court Act 1976 (Cth), s 31A Treason Act 1351 (Eng)