Dear Colleagues;
I am not sure whether any previous decisions of the Federal Court of Australia have been discussed on this forum, simply because most "private law" matters tend to be dealt with by State courts in the Australian Federal system. But the decision of the Full Court of the Federal Court in Habib v Commonwealth of Australia [2010] FCAFC 12 http://www.austlii.edu.au/au/cases/cth/FCAFC/2010/12.html is a very interesting one, and its basis is a tort action. Mr Habib alleges that he was tortured in various overseas jurisdictions as part of the "war on terror", and is seeking damages from the Commonwealth of Australia for misfeasance in public office and (as Perram J describes it) in [21] "the innominate tort of intentional infliction of indirect harm: Wilkinson v Downton [1897] 2 QB 57; Giller v Procopets (2008) 40 Fam LR 378; cf Larocque F, “The Tort of Torture” (2009) 17 Tort L Rev 158 at 169-172."
The Commonwealth Government had applied to have the action struck out on the basis that it was precluded by the "act of state" doctrine which forbids courts in one country to enquire into the acts of officers of another country which took place in that country (Mr Habib's allegations involve proving that officials of the other countries engaged in torture, contrary to international conventions, and that Australian officials encouraged them or stood by while it happened.) The Full Court allowed the action to proceed, either on the basis that the doctrine did not cover this sort of case, or if it did it was about time the common law developed (if it needed to) to allow this sort of action to be brought, or else if it did the Constitution of Australia by obliging courts to supervise the actions of Australian officials impliedly over-ruled the common law doctrine.
Very interesting decision, with reference to UK and US decisions and international law.
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
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