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21 September 2009 | by The New Lawyer Print this article Comments Share this article
THE lawyer for former Guantanamo Bay inmate, Mamdouh Habib, claims any victory in his compensation claim against the Australian Government is likely to be another three years away because of the unprecedented nature of the case and the Government's secrecy and stalling tactics.
Solicitor Peter Erman and his legal team have been have excluded from the legal proceedings by government lawyers, reports The Sydney Morning Herald.
Appearing before a full bench of the Federal Court, the lawyers argued that Australian courts have no jurisdiction to find foreign government officials tortured Habib in Pakistan, Egypt, Afghanistan and Cuba, and therefore cannot compensate him for the alleged complicity of ASIO, Australian Federal Police and Department of Foreign Affairs and Trade officers.
The court has not yet had to rule on allegations that Australian officials were involved in his treatment including being beaten unconscious, shocked with electric prods, sodomised with sticks, smeared with menstrual blood and threatened with rape by a dog.
Howard government ministers repeatedly denied knowledge of his rendition to Egypt or maltreatment in Guantanamo.
Former president of the Law Council of Australia, John North, commented on the circumstances surrounding Habib and David Hicks and the legal implications.
"We're not saying Habib or Hicks are innocent or guilty, but what we are saying is that they are Australian citizens and they should not be left in legal limbo by their own government," he said in 2005.
"It's also disgraceful that the Australian Government has allowed Habib and Hicks to be treated differently – they are allowing Hicks to still be held in Guantnamo Bay facing a kangaroo military tribunal."
Last December, Justice Nye Perram of the Federal Court struck out part of Habib's claim while indicating how his lawyers might put the case forward in a more legitimate manner: by alleging that Canberra broke its obligations under the Geneva Conventions banning torture.
On 4 September, Habib won leave to appeal to the High Court over the Government's refusal to reissue his passport. At an earlier hearing in November 2007, the Administrative Appeals Tribunal upheld the passport cancellation by the minister for foreign affairs and trade and the director-general of security, but Habib and his lawyers are not allowed to see the full judgment and were excluded from the court while ASIO officers gave evidence.
Habib says he is still being watched, and confronted a government lawyer, Andrew Berger, in court this week, saying, ''Tell your spy to leave me alone''.
Meanwhile, Erman said his phones had been tapped and his family followed since he took the case on.
''It's like something out of the Bourne Conspiracy,'' he said, referring to the Robert Ludlum spy novels.
But his client and a team of pro bono lawyers working on the case, including barristers Robert Beech-Jones, SC, Ian Barker, QC, and Clive Evatt, were determined to see it through despite the hurdles they had encountered.
He added that the more they learn about Guantanamo Bay the more they realise it was an overreaction by security forces.
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