Now that Habib is on his way from Guantanamo Bay, a legitimate question is asked whether the Crown is immune from legal action from Habib.
The Australia Law Reform Commission dicussion paper highlights that the Government can be liablity for injury, loss and damage by way of inaction or ineffective action.
If Habib was maltreated to the point of "virtually" being tortured, and the Government had sat on its hands over this matter, does the Government owe a duty to its citizens to protect them? Is the pledge taken by the citizen when citizenship is conferred a one-way bargain or is there an implicit promise by the Government to act in the interest of its citizens?
The report cites Cubillo v Commonwealth1, where a member of the "Aboriginal stolen generation" sued the Government for not using its powers properly through failing to act in her best interests. Incidentally, Cubillo lost, on grounds that she wasn't able to satisfy the court that the officer of the Commonwealth had an intention to act against Cubillo's interests. (The officer, Mr Moy, was deceased at the time of the hearing).
1 FCA 1084