Preliminary
The writ of habeas corpus functions as a protector of liberty; enabling review by superior courts of the legality of custody or detention. The writ is intended to provide a swift and imperative remedy in all cases of illegal restraint or confinement.
Fundamentally, physical control of a person’s detention or custody by a respondent must be proved for the issue of habeas corpus. Where it is the Executive who itself unlawfully detains an individual, this element of control will be satisfied. However, more difficult questions arise where the depriver of liberty is a foreign actor who, in furtherance of some common objective, acts in consort with the Australian Government. Such questions recently confronted the Full Federal Court in Save the Children Australia v Minister for Home Affairs [2024] FCAFC 81 (‘Save the Children’).
Background
In Syria were two refugee camps: Al-Roj and Al-Hol. Detained in these camps were women and children with some (voluntary or involuntary) association to ISIS. Many were the family members of ISIS fighters. Amongst the women and children detained were citizens of Australia and others eligible to hold that status.
The relevant women and children had been detained in the camps by the Autonomous Administration of North East Syria (‘AANES’) and the Syrian Defence Force (‘SDF’) – both non-state actors. AANES and SDF were reliant on support by a coalition of countries, including Australia, purposed to defeat ISIS.
The appellant, Save the Children Australia, was a registered charity with designs to repatriate (bring to Australia) the women and children. Assisted by the appellant’s advocacy, the Commonwealth was successful in securing the repatriation of some, but not all, detainees. Others remained in the camps.
Decision at first instance
By originating application, the appellant had sought, amongst other things, the issue of a writ of habeas corpus against the Commonwealth and compelling production to the Court of remaining women and children to determine whether they had been lawfully detained. That part of the application was premised upon a contention that the Commonwealth controlled the custody of the individuals.
The appellant otherwise argued there was sufficient doubt on the question of control so as to justify the Court using the ‘pressure of the writ’ to ‘test’ the claims by the Commonwealth that it lacked control. Reliance was placed by the appellant on a line of authority from the United Kingdom permitting use of habeas corpus in this way.
The primary judge, Moshinsky J, refused to grant the relief sought by the appellant; making a positive finding that the Commonwealth did not control the detention of the relevant women and children and, on that basis, deciding against the issue of habeas corpus. It was this component of His Honour’s decision that was challenged by the appellant on appeal to the Full Court.
Critical to Moshinsky J’s conclusion on this issue was a finding that there was no agreement or arrangement between the Australian Government and AANES relating to the release or repatriation of the relevant women and children so as to vest the Commonwealth with power to require their release or repatriation.
On appeal
The Full Court (Mortimer CJ, Kennett and Horan JJ) affirmed that habeas could issue where a respondent had ‘physical control’ over the detention of a person. In principle, the Commonwealth was said to be capable of controlling the custody of an individual physically detained outside Australia, including by agreement or arrangement with a foreign actor.
The ‘true field of debate’ on the appeal was whether the primary judge’s factual conclusions concerning the existence of an arrangement or agreement between the Commonwealth and AANES, and in turn the Commonwealth’s control over the detention of the women and children, disclosed error.
Ultimately, it was held that the appellant had failed to discharge its onus of proving that the Commonwealth had physical control over custody of the relevant women and children. While there was some evidence of the Commonwealth’s previous engagement with AANES, the Full Court was not satisfied of the existence of any overarching arrangement or agreement between the Commonwealth and AANES requiring, as a matter of obligation, that Australians in the camps be repatriated on request by the Australian government. On the evidence, repatriation of the further detainees from Syria was said to be merely ‘a plan held by those within the Australian government’.
The Full Court did not finally determine the correctness of English authority permitting the use of habeas to test lack of control claims by respondents. Their Honours were not persuaded there was sufficient doubt about whether a respondent had control over the detention of a person for these principles to be engaged.
Summary
The decision in Save the Children is important for a number of reasons. It confirms that, in principle, habeas corpus is capable of being issued against the Executive to challenge the legality of a person’s detention overseas by a foreign actor so long as the Executive maintains physical control of that custody. This element of control may be established by the existence of agreement or arrangement between the Executive and the overseas party in question.
At the same time, the decision demonstrates that proving physical control in these situations will often be difficult. Mere engagement by the Executive with foreign actors who unlawfully deprive persons of their liberty will not justify intervention by Australian courts.
Douglas Freeburn
Barrister
Higgins Chambers
[This case note was originally published in the Spring Edition of the Law Council of Australia’s quarterly publication, Chapter III. Reproduced with permission].