FEDERAL COURT OF AUSTRALIA

JUSTICE BRIAN J TAMBERLIN

8 March 2007

DAVID MATTHEW HICKS v

THE HONOURABLE PHILIP RUDDOCK MP, ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA, THE HONOURABLE ALEXANDER DOWNER MP, MINISTER FOR FOREIGN AFFAIRS AND COMMONWEALTH OF AUSTRALIA

NSD 2376 OF 2006

EXPLANATORY STATEMENT

It is the practice of this Court in matters which are of significant public interest to make a brief explanatory statement when delivering the judgment.

The statement I now make is an overview of the main issues and my conclusions, but it does not purport to set out my reasons and findings which are contained in the judgment.  My present judgment concerns only the application by the Ministers and the Commonwealth to summarily dismiss Mr Hicks’ claims because it is said they disclose no reasonable prospect of success as a matter of law.  The effect of this application, if successful, would be that Mr Hicks’ case would not be heard because the Ministers and the Commonwealth have no case to answer.

Mr David Hicks is an Australian citizen who has been confined at Guantanamo Bay Naval Base by United States authorities for more than five years without any valid charges having been brought against him as at the date of this application.

In substance he claims that he should be released and returned to Australia and that the Minsters and the Commonwealth are responsible for his ongoing wrongful internment. 

First, he says that he has been unlawfully imprisoned and that the Ministers and the Commonwealth have sufficient control to have him returned to the country of his citizenship.  He therefore seeks an order of habeas corpus for reasons to be given as to why he should not be released from internment and returned.

Second, Mr Hicks alleges that the Ministers and the Commonwealth have made statements that they will not request his return because if he is brought back to Australia he may not be able to be prosecuted under Australian law.  The consequence of the refusal is to allow the United States to take such action against him as it sees fit.  It is alleged by Mr Hicks that these are two operative reasons which the Respondents rely on for not exercising the right of Australia to make the request to the United States.

Mr Hicks submits that these two reasons are irrelevant to a proper consideration of his need for protection and that the executive decision not to make a request should be set aside as invalid.  He also says that the Respondents have a “duty” to lawfully consider his request.  They have not done so and they should therefore be ordered to consider it in accordance with law by not taking into account irrelevant considerations.

The two Ministers and the Commonwealth, by their present application to secure a “summary judgment”, seek to have these proceedings stopped at this point as a matter of law, without the need to look at the evidence.  They say that, even assuming that the allegations in Mr Hicks’ claim are accepted, there is no reasonable prospect of success.  Part of the application by the Ministers and the Commonwealth for summary judgment is on the basis that this Court cannot enter into a consideration of a case which may result in a finding that an action of a State other than Australia – here, the United States – is unlawful.  They say that there are no proper standards by which the Court can resolve the issues raised by Mr Hicks because delicate questions of diplomatic negotiation between Australia and the United States are involved and a finding by a Court may impact on these relations.

The question of Mr Hicks’ internment is said to be “political” in nature and is one concerning foreign relations and these are areas into which the Court should not intrude because the decision will involve standards which are “non-justiciable” and which a Court cannot properly apply.

The determination of these questions, it is said, being “political”, is for the electorate and not for this Court.

The Respondents also say that Mr Hicks’ claims are not properly or clearly pleaded.  While in respect of some paragraphs there is some force in this last point, the defects identified raise questions of form which can be addressed on a repleading.

The Ministers and the Commonwealth say that the proceedings should therefore be dismissed without going to a hearing and receiving whatever evidence Mr Hicks can marshal to support his claims.

For the reasons given in my judgment I do not accept that these proceedings have no reasonable prospect of success.  The test to be satisfied by the Respondents furthering order to avoid a hearing is relatively difficult and has not been met.

The issues raised by Mr Hicks are in areas of law where principles are still developing, such as, the Act of State doctrine, justiciability and the extent to which the Court can look at matters which concern foreign relations.  The submissions for Mr Hicks raise important Constitutional questions as to the relationship of the Judiciary and the Executive, the interaction between the protection of individual liberty and the national interest, and involve questions of foreign affairs.  There are no clear authorities which would justify judgment against Mr Hicks at this stage.  For his case to be properly considered, it is necessary to look at factual material provided by evidence and hear submissions with the benefit of that evidence.

I have decided to dismiss the application for summary judgment with costs.

In relation to the pleading argument, because I consider the matter should go to a hearing, I grant leave to Mr Hicks to file an Amended Pleading.  It has been foreshadowed that such an Amended Pleading will take into account developments since the Statement of Claim was filed on 6 December 2006.

The outcome of this decision is that Mr Hicks will be given an opportunity to make out his case.  Today’s decision means only that his case cannot be said to have no reasonable prospect of success.  It does not mean that he will ultimately succeed after consideration and testing of all the evidence and hearing submissions on that evidence.

Due to the long history of this matter and because of the great importance of the issues, the matter will be expedited so that it is heard at the earliest possible time consistent with full opportunity being given to each of the parties to prepare their respective cases.  I direct the parties to bring in an appropriate timetable to achieve this.

I now publish my reasons.  I adjourn the Court.

JUSTICE BRIAN J TAMBERLIN

FEDERAL COURT OF AUSTRALIA

8 MARCH 2007