| Topic: |
Religions > Atheism |
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"Meteorite Debris" |
| Date: |
01 Feb 2005 10:16:16 PM |
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ABC RN Law Report 1 Feb 2005 |
http://www.abc.net.au/rn/talks/8.30/lawrpt/stories/s1292210.htm
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http://www.abc.net.au/rn/talks/8.30/lawrpt/audio/lawrpt_01022005_2856.
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How spouting hellfire and brimstone from the pulpit can land a
preacher in legal hot water. Australia's first finding of religious
vilification - the case of the preachers who bad-mouthed Muslims and
found themselves on the wrong side of the law. Also, Mamdouh Habib -
now he's free from Camp X-Ray, what are his legal options?
Program Transcript
Damien Carrick: Today Mamdouh Habib, what are his legal options? And
later, how spouting hellfire and brimstone can land preachers in legal
hot water. We look at the first successful case of religious
vilification here in this country.
Well, as of Friday, after three years in detention, most of it spent
in Egypt and in Guantanamo Bay, Cuba, Mamdouh Habib is now free and
back in Australia, and his lawyers, both here and in the USA are now
contemplating his next step.
Terry O’Gorman, Brisbane lawyer and president of the Australian
Council for Civil Liberties, thinks Mr Habib has few legal avenues
open to him.
Terry O'Gorman:I think they’re fairly limited. He may have a right to
sue in the US courts for wrongful imprisonment, but I think that that
particular civil case is likely to be fraught with difficulties
because his factual situation is pretty unusual. Unfortunately, I
can’t see any civil action that would be open to him in Australia
other then perhaps a defamation action against some prominent
Australian politicians, but the problem with a defamation action is
that you’ve got to outlay a lot of money and if you lose, he will lose
whatever assets he’s got left.
Damien Carrick: What about not so much the detention, but the
treatment while in detention. There’ve been lots of allegations about
the treatment that he suffered; torture and what-have-you.
Terry O'Gorman:Well I would have thought that there are some
encouraging signs where he may be able to get some evidence to back up
his claims of torture, in that as a result of Freedom of Information
requests lodged by the American Civil Liberties Union and other civil
rights organisations in the US, a number of documents are now emerging
which are tending to prove allegations of torture of other prisoners
at Guantanamo Bay. But in relation to Habib, where he has to try to
prove that he was tortured in Egypt, that is going to be much more
difficult. But I think that there is a body of international opinion,
respected international individuals who have studied the Egyptian
scene for some time, who may well be able to give expert evidence of a
credible nature. The question has to be asked (and you wait a long
time to get an answer from Attorney-General Phillip Ruddock) but the
question has to be asked, what did Australia know about Mr Habib being
exported to Egypt, currently on the allegation that he was tortured,
and to what extent did Australia facilitate it?
Damien Carrick: At the end of the day though, when it comes to torture
claims, it’s ultimately one person’s word against another.
Terry O'Gorman:Well, sometimes yes; sometimes no. But when you look at
some torture claims that have been brought, particularly in countries
with a legal system that is not as robust as the US legal system has
been, at least up until recent times, torture claims have been able to
be proved. The fact is, that if Mr Habib can get evidence that he was
taken to Egypt, then there would have to be a range of American, and I
daresay Australian officials, who could be called as to what they knew
as to why he was being taken to Egypt. There must be records at the
Neutral Assistance and Criminal Matters Act type legislation which is
designed to obtain evidence from overseas, there must be those records
that ought to be available from the Egyptian jails, because when
torturers carry out their torture, they invariably create some
records—they can’t destroy them all.
Damien Carrick: Well, moving away from, I guess, civil claims; the
Australian government has said that Mamdouh Habib is not entitled to
any compensation. Is there any precedent for giving compensation to
someone like Mamdouh Habib?
Terry O'Gorman:Certainly in the ordinary civil law there is, where a
person can demonstrate that they’ve been wrongly jailed. It’s to be
remembered that Lindy Chamberlain in 1992 was awarded an ex gratia
payment of $1.5 million as a result of the Royal Commission into her
miscarriage of justice that was conducted in the Northern Territory.
There was a payout of about $300,000 to $400,000 to an Aboriginal man,
Kelvin Condran, who was wrongly jailed in Queensland in respect of a
murder of which he’d been convicted. So there is a body of law, both
in Australia and in the UK, that establishes, in ordinary civil suits,
in essence a series of precedents to be able to get a money award for
wrongful imprisonment.
Damien Carrick: They were cases where somebody was charged and found
guilty of offences, and those convictions were subsequently
overturned. That’s not the case here; he hasn’t been charged, he
hasn’t sat through a trial and he hasn’t been convicted. So maybe
those precedents might not apply.
Terry O'Gorman:Well one would have thought that if a person who has
been through the trial process after they’ve been charged can get, and
deserve to get, an award for wrongful imprisonment, someone who’s kept
for three years and never charged must by definition have a stronger
legal and moral claim to compensation.
Damien Carrick: Terry O’Gorman, president of the Australian Council
for Civil Liberties.
Although he’s now back in the country and a free man, Mamdouh Habib
won’t be allowed to have an Australian passport, and he’ll be kept
under surveillance. In a piece in The Sydney Morning Herald yesterday,
Sydney barristers Ian Barker and Richard Toner criticised these moves,
saying Mr Habib should be presumed innocent unless proven otherwise;
he shouldn’t have his liberties and rights taken away from him for no
good reason.
Well, just before going to air, I asked Attorney-General Phillip
Ruddock for his response to those comments.
Phillip Ruddock: Well, I mean it’s quite simple. I think you need to
separate the two issues. Presumption of innocence relates to charges
in criminal proceedings, and that presumption of innocence applies.
Under our law, governments have an obligation to protect the safety
and security of the Australian community, and the laws apply to
everybody in Australia, Mr Habib included. And if there is a view
formed that there are matters of intelligence or security concern,
governments are expected to address those, and they do, and they do in
relation to all Australians. Now we don’t set out what steps are
taken; I haven’t said other than Mr Habib remains of security
interest.
Damien Carrick: Why? Why does he remain a security interest?
Phillip Ruddock: Because of information that the government has
received that is not sufficient to bring him to trial. I mean it is
quite clear that if our laws dealing with training with terrorist
organisations had been in place before July 2002, there was
information available to us that suggested that he would be a person
who could be charged under those provisions. The only reason he
couldn’t be charged was because the law did not operate in 2001 when
the alleged conduct occurred. One of the things that Habib himself has
admitted was that he was in Afghanistan—after initial denials. And a
number of people who participated in al-Qaeda training have said that
Habib was there. Now those are matters which we are aware of; they
were not sufficient to prosecute him here in Australia—we made that
clear at all times—but it doesn’t mean that he wouldn’t remain a
security interest.
Damien Carrick: So you’re saying that if the laws which are currently
on the books were on the books way back in 2001 to 2002, he would have
been charged?
Phillip Ruddock: I’m saying that those provisions did not operate
before 2002, and he could not be charged. I don’t want to speculate
about whether the evidence would have been sufficient, I don’t want to
adduce the evidence, I’m simply saying that the factors that have
prompted us to be concerned about him was that he was in Afghanistan,
and a number of people who’ve participated in al-Qaeda training
programs have said that Habib was there at the same time.
Damien Carrick: But do you accept that Mamdouh was incarcerated for
way too long?
Phillip Ruddock: Yes, we were very critical of the length of time that
it took the United States to make a decision as to whether he should
be charged or not. We believed, until January of this year, that the
United States intended to charge him, and it was a question of their
capacity to be able to deal with a large number of people in a process
which had not been frequently used. But the prime minister had made
representations to President Bush personally, I’d made representations
when I’d been in the United States to White House counsel, to Defence
officials, to the attorney-general, to have the matter of Habib
progressed as quickly as possible. We weren’t happy about the delay.
Damien Carrick: Attorney-General Phillip Ruddock, who’s currently
obtaining legal advice on whether the government can confiscate any
money that Habib might earn by selling his story to the media.
Melbourne barrister Clive Scott is an expert on proceeds of crime law.
He says under the legislation there’s no need for a criminal
prosecution or conviction. To confiscate any media payments,
authorities only need to establish on a civil standard of proof on the
balance of probabilities that Habib has committed a crime.
Clive Scott: Well under the Proceeds of Crime Act, no charges have to
be laid, the DPP merely has to prove that Habib has in fact committed
the offence to the civil standard. So he wouldn’t be prosecuted as
such, but a case would be brought against him comprising the same
elements as a prosecution, but it would only need to be proved to the
civil standard.
Damien Carrick: So if they choose to go down this path, they’d have to
establish that he was guilty, on the balance of probabilities, of an
indictable offence according to Australian law. What kinds of offences
might he possibly have committed?
Clive Scott: Well that is an interesting one; I guess one could
speculate that the attorney-general might be thinking of the terrorist
offences which have been built into the criminal code by the anti-
terrorist legislation passed last year. That’s the only sort of thing
I can think of that they might be getting at.
Damien Carrick: What specifically? What are you thinking of here?
Clive Scott: Well it is a serious offence to be a member of a
terrorist organisation, or to seek to fund terrorist organisations or
to organise terrorist organisations. There are numerous offences
created by this legislation.
Damien Carrick: Presumably though, he hasn’t been charged to date
either in the USA or Australia. He hasn’t gone to trial, obviously,
therefore, and he hasn’t been found guilty. That would suggest that
even on this balance of probabilities test, which would be used here,
they might have a hard time establishing that.
Clive Scott: Well I think that’s right. I think that even taking one
of these civil forfeiture type applications to stop him getting
literary proceeds, as they’re called, would be a tall order for the
Director of Public Prosecutions, as it would essentially mean
rehearsing a mini-trial, if you like, which nobody else appears to
have been able to do, including the military prosecutors in the United
States.
Damien Carrick: Now I would have thought that what most people want to
hear from Mamdouh Habib is what it was like to be in Camp X-Ray. This
isn’t Chopper Reid style, how he robbed the bank, and how he lived the
life of Riley after committing a crime—the story here is his
experiences behind the barbed wire. It’s not how he committed the
crime...well, if there was one. Does that make a difference? Does that
make it harder for the government to apply this Proceeds of Crime
legislation?
Clive Scott: Well possibly it does. Literary proceeds mean any benefit
that a person has derived from the commercial exploitation of his
notoriety resulting directly or indirectly from committing the offence
that they have to prove he’s committed. Now I guess it’s an open
argument as to whether his experiences in Camp X-Ray or Egypt or
wherever else, are in fact directly or indirectly the result of the
commission of this speculative terrorism offence which they would have
to prove he committed under Australian law in order to get past first
base with this application.
Damien Carrick: So the government would face a number of very serious
problems in establishing a right to pull away the money?
Clive Scott: I think so.
Damien Carrick: Are the laws retrospective? I mean Mamdouh Habib has
been in jail since before this legislation was passed, and since
before, I guess, the offences which he might be charged with—even
under this kind of civil procedure that you’re talking about—before
they were actually on the books.
Clive Scott: Well, my understanding of the legislation is that it is
not retrospective, therefore in order to establish that he had
committed the offence to the civil standard, it would still have to be
an offence which existed at the time that he was alleged to have
committed it.
Damien Carrick: Barrister, Clive Scott.
And overnight in the USA in the latest legal tussle involving
Guantanamo Bay, a District Court judge has ruled that the Military
Commissions, set up to try terrorist suspects, are unconstitutional,
and this case is likely to be appealed to the US Supreme Court.
Recently, in the first successful case of its kind here in Australia,
Catch the Fire Ministries, an evangelical Christian group, got burned
when two ministers were found to have religiously vilified the Muslim
community.
In mid-December, the Victorian Civil and Administrative Tribunal found
that two pastors had made a range of false statements about the Muslim
religion and Muslim people. And just last week the parties in the
dispute were back before the tribunal to set a date to argue over what
remedies should be imposed.
Waleed Aly is a commercial solicitor with Maddocks lawyers in
Melbourne. He’s also a member of the executive committee of the
Islamic Council of Victoria, the organisation that brought the
complaint, involving three separate events.
Waleed Aly: One was a seminar that was held at a church in Surrey
Hills in Melbourne, and then there were two other things that were
written pieces in newsletters and internet and so on. And essentially
Catch the Fire Ministries held these events that published these
articles, and it was the seminar that was really the starting point
for the whole thing—which was a discussion of Islam and Islam in
Australia, and Jihad and some kind of threat to Australian society.
And so it’s the Muslims who went along to that, basically, they heard
what was being discussed and I think it’s pretty hard to go into all
the details of everything that was said, I mean we’re talking about a
lot of words. But in basic terms, I think that what they felt was that
there was a general tone that there was some kind of conspiratorial
plot that Muslims would be trying to take over Australia at some point
by violent means, and it’s almost like there’s this genetic
disposition that Muslims have to wanting to rape and torture and kill
Christians, and that Australia would be no exception to that.
So there were a lot of imputations and a lot of different shades to
what was actually said on a broad spectrum. But that was the tone, I
guess, of what was said, or at least that was felt by the individuals
who went.
Damien Carrick: Now you say that this came to the attention of the
Muslim community because essentially three Muslim people went along to
the publicly advertised seminar and sat down and took notes. There’s
been a lot of controversy around that, that idea of going out and
fishing for trouble perhaps, fishing for offence.
Waleed Aly: Yes, I can understand that people would be pretty
concerned if that were the case. Certainly some Muslims have become
aware of the seminar and they spoke to each other about it beforehand,
and decided to go along. But that’s not something that I think should
really surprise people. Muslims will often go to seminars on Islam,
because it’s something that interests them, and if they think that’s
going to be hostile to them, then that’s not necessarily going to stop
them going. They’ll go because they want to know what’s being said
about them, and I think that’s the case in society across the board.
If you belong to a particular social group and there’s a seminar
specifically about you, you’re probably likely to want to go along. So
I don’t think there’s anything too sinister in that specifically.
Damien Carrick: But can you realistically separate what a religion
says about a particular issue, can you separate that kind of criticism
from criticising the group?
Waleed Aly: I think you can. I think that religious debate is
something that’s been known to the world for centuries, for well over
a millennium. So that’s not something new. And that happens between
academics and scholars all the time, yet it’s not done in a way that
creates malevolence or ill-will or anything like that. There is, I
think, a point where what really is being attacked and what’s being, I
guess, the encouragement to be hated, is directed at people, and when
that happens I think that’s really when the law steps in.
Damien Carrick: Yes, but doesn’t that mean that if you dress up your
hate in polite, well-structured academic language, you can maybe get
it under the radar in terms of this legislation; but if you’re direct
and a bit coarse you get done?
Waleed Aly: I think the key word that the legislation uses is
‘reasonable’. And so there’s this element of reasonableness. And part
of that is obviously how you say something, and that is an important
factor that’s to be considered, and that’s something that becomes
relevant in defamation law, it’s something that becomes relevant in
racial vilification law. So I don’t think that we can necessarily say
that merely because how you say it is relevant, that the law somehow
creates an artificiality in that way. I think in fact it’s one of the
strengths of the law that at least as the legislation looks on paper,
it’s not so much the scope of the debate that’s compromised, it’s more
how extreme the conduct is that surrounds that debate that is really
the legislative focus here.
Damien Carrick: Waleed Aly, from the Islamic Council of Victoria.
The complaint was brought under Victoria’s relatively new Religious
and Racial Tolerance Act 2001. The only other states which prohibit
religious vilification, as opposed to racial vilification, are
Tasmania and Queensland. Now of course like all communities,
Victoria’s Muslims don’t speak with one voice.
Amir Butler is the director of the Muslim Australian Public Affairs
Committee. He thinks the legislation is fundamentally flawed. He
maintains racial vilification is one thing, but religious vilification
quite another. Race, like gender, is an inherent quality, but
religion’s only an abstract concept, just a set of ideas. For Amir
Butler the laws simply don’t achieve their objectives—namely building
cohesion and eradicating extremism.
Amir Butler: Well one of the problems with these types of laws is that
they prevent people speaking things publicly. So someone may have
hateful ideas, but these laws will prevent them from articulating
this. One of the problems with that is, if people aren’t allowed to
express their ideas, then we don’t know who are the people in our
society who hold those ideas, and that makes confronting extremist
groups and so on rather difficult, because it forces them underground.
And if you look at the United Kingdom, for example, and you have
groups like the British Nationals Party, the reason people know that
they hold offensive ideas about minority groups and so on is because
they are allowed to speak those ideas publicly.
The second problem is if people are not allowed to articulate their
ideas publicly, then it becomes difficult to refute them, but by
bringing these ideas into the public square, they can be refuted and
debunked in the public square, and that’s the best way, in my view, to
confront extremism. However, if you silence people, it doesn’t mean
that they stop holding those ideas, it must means that they stop
speaking about them publicly. And a third criticism or a third concern
is that religious groups, or all religions, are essentially systems of
ideas, and if someone believes in their religion, it requires them to
disbelieve in other religions. And so because of this, it means that
there are differences between the religious groups, and sometimes when
one religious group is critiquing the beliefs of another, it can be
offensive to people of that group. For example, someone robustly
criticising Islam or Christianity, or any religion, is going to likely
offend some of the adherents of that religion, so it opens the way for
people to be offended and then launch what could be vexatious suits or
so on, under this law.
Damien Carrick: Do you think there’s a privileging of certain kinds of
ideas, that is religious ideas, in this legislation, and ignoring
other kind of ideas or ideologies or belief systems which don’t
perhaps spring from commonly understood traditions?
Amir Butler: Well, a religion is simply a set of ideas about how one
views the world, how one leads their life, how one conducts their
affairs. So if you distil it down to that, a religion is really no
different to another system of belief, for example a political
belief—say, for example, socialism or communism, both of which provide
the adherents with guidance as to how they should live their life, how
they should organise their society.
Damien Carrick: Or, for that matter, atheism or humanism.
Amir Butler: Well, exactly; atheism is itself a belief. So if you were
going to extend this kind of legal protection to religion, where do
you draw the line? What’s to distinguish a religion from any other
system of belief?
Damien Carrick: So you’re saying that these kinds of belief systems,
while not religious, can be really closely tied to somebody’s identity
and personal make-up?
Amir Butler: Yes, definitely, definitely. I’ve met atheists who are
every much as fanatical or committed to their atheism as staunch
Muslims or staunch Christians or staunch Jews. So I guess my concern
is where do you draw the line?
Damien Carrick: But isn’t it one thing to say that, look, we have the
one true path; it’s another thing to say, well, Muslims believe in
world domination, Muslims believe in raping and killing people—which
is pretty much what these people were saying in the seminar of the
Catch the Fire Ministries, according to the court.
Amir Butler: I agree. Definitely, that’s offensive, and definitely
that’s wrong, but that’s something that’s obviously wrong. I think
most Australians, if they heard that, would reject it. But going after
them with these laws, it hasn’t changed their points of view. If
anything, it would reinforce that point of view because many of these
people will say, Look how powerful the Muslims are, they’ve been able
to defeat us in the court, and silence us, that just validates what
we’ve been saying all along, that they’re going to use the system to
eventually take over the country. So I don’t think that it’s
necessarily solved those problems—in fact in some respects it’s
exacerbated them.
Damien Carrick: Are you saying that ultimately we should be free to
hate, and we should be free to express that hate?
Amir Butler: Well we should be free to—if people want to hate, they
should be allowed to hate, as long as it doesn’t hurt anyone. People
should be free to have their views. So going back to what I said
before about socialism and communism, does that mean if I say I hate
communism as an ideology, and I disagree with communists, and I don’t
like communists, and I don’t think communism should be allowed to take
hold in Australian society—would anyone disagree with that? I mean
people should be allowed to express their hate, and I think the line
is already drawn. People who advocate criminal behaviour, people who
discriminate, it’s already illegal, people who defame, it’s already
covered, and I don’t think that these laws really add anything.
Damien Carrick: What have been the practical, real-world consequences
of this legal action for you and your organisation?
Amir Butler: It hasn’t really been any implications for my
organisation because we’re not involved in dealing with the wider
community or involved in proselytising and things like that. But those
organisations that I have contact with that are involved in, for
example, what could be considered evangelism type work, or those
organisations that organise lectures or those organisations that
organise classes for the community, while the legal action was under
way, we noticed that there were people coming (non-Muslims) who were
coming and attending these classes and so on with notepads. And they
were people who are associated with the case, and so the intent being
that they might find something that they could use in the court case
to say, yes, we’ll see some of the things that we’re saying are true.
And I’ve seen that across the board. I attended an Yvonne Ridley—the
British journalist, who was held by the Taliban, she came here to give
a fundraising speech and they were there. So this is one of the
things, and I think that that’s really building cohesion between the
routine religious groups in the community.
Damien Carrick: You talk about people kind of turning up at classes
and lectures; as far as you can tell, has that simply been people
involved in this case, or has it been by a large number of groups of
'let’s find out what’s going on in the Muslim community' ?
Amir Butler: I think initially it was people who were associated with
the case, maybe not directly associated but associated with the
churches and religious communities that were involved. But what I’ve
been seeing lately is there’s a much broader net that’s been cast. So
I’ve seen some emails, for example, from members of the Christian
community who are saying, well, okay, they’ve got us on this, so let’s
go after them and get them on the Qu’ran. Like go and look at things
in the book that could be used to argue vilification with the eventual
aim of trying to get the book banned. And so I think now it’s a much
wider net that’s been cast.
And the other thing is, the organisations that were targeted, or the
organisations that were experiencing the brunt of this were not
organisations who were involved in the court case. They were
organisations who had no association whatsoever with the Islamic
Council, had made no public statements or even really held any views
on it, and they were the ones who suffered the consequences of it.
Damien Carrick: In what sense? In the sense that they were the ones
whose classes were now being infiltrated, or subject to surveillance?
Amir Butler: Yes. So there was a class specifically for women,
discussing women’s issues, like the Islamic law relating to
menstruation and so on. And they had people from one of the church
groups coming along and sitting there and listening to the class and
making notes, and it’s an uncomfortable situation for people. I can
understand why they’re doing it, because they’re trying to gather
evidence that can be used to bolster their arguments in the court, but
it’s not—no-one can say that this is building cohesion, it’s not
something to be welcomed.
Damien Carrick: Amir Butler, from the Australian Muslim Public Affairs
Committee.
So has the law and this case created a climate of surveillance and
suspicion? Waleed Aly, from the Islamic Council of Victoria, says it’s
too soon to say. But even if it does, it’s not necessarily such a bad
thing.
Waleed Aly: If I imagine myself as someone organising a religious
seminar or someone who’s keen to convey the message of my faith, the
fact that people from another religious group are motivated to attend,
for whatever reason, is not something that I would actually
discourage. I would probably be quite happy about the fact that at
least they’re coming, and if you’re talking about disseminating some
kind of religious message—and not all religious organisations are
concerned with that, but some are—if that’s what you’re talking about,
then half the battle’s won by the fact that some of the people you’re
trying to reach are coming along. So I can understand Amir’s point.
Personally it’s not something I’ve seen. I haven’t seen a lot of
Christian surveillance at Muslim gatherings and vice-versa, I haven’t
seen that. I’m prepared to admit it might be going on, I think that
might be a fairly short-term symptom, but I don’t think that it’s
something that religious groups can really be scared of. If people are
coming to listen to them, well and good.
Damien Carrick: So you’re suggesting that you should probably, to some
extent, welcome the surveillance, and everybody keeping an eye on
everybody else in this regard?
Waleed Aly: I’m not sure I’d use the word ‘surveillance’; I don’t
think we should think of this in terms of being policed. But what I am
saying is that if people want to come along because they want to try
to catch you out, great, let them come along and hear what you’ve got
to say. What my question would be, what exactly is the problem with
having people come along to try to catch you out? What are you saying
that you have to be secretive about? Surely if you’ve got a message
that you think is something that people should hear, you should be
happy for people to come along and hear it, whatever their
motivations.
Damien Carrick: Waleed Aly, lawyer and member of the Executive
Committee of the Islamic Council of Victoria.
That’s The Law Report for this week.
Guests on this program:
Phillip Ruddock, Australian Attorney General
Terry O'Gorman, President Australian Council for Civil Liberties
Clive Scott, Melbourne Barrister
Amir Butler, Director, Australian Muslim Public Affairs Committee
Waleed Aly, Member, Executive Committee of the Islamic Council of
Victoria and solicitor with Maddocks lawyers, Melbourne
--
epicurus1*at*optusnet*dot*com*dot*au
apatriot #1, atheist #1417,
Chief EAC prophet
http://members.optusnet.com.au/~pk1956/
Apatriotism Yahoo Group
http://groups.yahoo.com/group/apatriotism
Sunday: A day given over by Americans to wishing that they themselves
were dead and in Heaven, and that their neighbors were dead and in
Hell.
-Mencken
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