Keep courts out of Habib case: Government lawyers

as posted here

JOEL GIBSON
September 14, 2009 - 3:37PM
Australian courts should stay out of a dispute between former Guantanamo Bay inmate Mamdouh Habib and the Commonwealth because passing judgment on his alleged foreign torturers could damage Australia's relations with other states, Government lawyers argued today.

Mr Habib is suing the Federal Government in the Federal Court for damages over his alleged torture as a suspected enemy combatant in Guantanamo Bay, Pakistan and Afghanistan.

He was accused of training with al-Qaeda but was never charged and says he was in Afghanistan in October 2001 on a business trip that went awry.

He says Australian Federal Police and ASIO officers were complicit in the torture and, in some instances, were even present at the time.

But a legal principle known as the "Acts of States" doctrine meant courts in the US, Britain and Australia were usually reluctant to condemn the action of agents of foreign governments, in case they usurp the foreign affairs role of the legislature or the executive arms of government, Commonwealth Solicitor-General Stephen Gageler SC told the Federal Court this morning.

Only when there is a grave violation of international or human rights law would a court make an exception, he said.

Mr Gageler is expected to argue this afternoon that the alleged torture of Mr Habib did not fall into this category.

The "Acts of States" rule has been applied by Australia's High Court in the famous Spycatcher case, in which Opposition Leader Malcolm Turnbull as a young barrister took on Margaret Thatcher's British government when it attempted to stop an Australian publisher from releasing the memoirs of former British spy Peter Wright.

The hearing continues.

Joel Gibson is the Herald's Legal Affairs Reporter.

as posted here