• Joo-Cheong Tham

17 February 2005Mamdouh Habib should be allowed to earn a living, argues Joo-Cheong Tham



EARLY last year, a bill was tabled in federal parliament proposing various changes to the proceeds of crime laws. The effect of these complex changes was that individuals who had engaged in conduct that was illegal in a foreign country but not necessarily illegal in Australia at the time it was committed would now be liable to confiscation orders. If it could be proven that their conduct was illegal in Australia at the time the government applied for a confiscation order then any income earned from notoriety associated with that conduct could be forfeited to the government.



The overwhelming majority of submissions to a Senate inquiry opposed these changes and, it must be said, with good cause. Confiscation orders could be issued without the need for a conviction in a proper court of law. Hence, there was the iniquity of punishing individuals who had not been convicted of any crime as. Indeed, the statute expressly stated that an acquittal did not affect the ability to issue such orders.



And then there was the unfairness of relying upon conduct that was not illegal in Australia at the time it was committed as the basis of a confiscation order. With no time limit on when the government could apply for a confiscation order, there was no statutory bar against the government applying for an order in relation to conduct that was made illegal decades after it was engaged in.



Significantly, there was also recognition for the first time in Australian law of the Guantanamo Bay military tribunals. This prompted some to argue, with some prescience, that the effect of these changes, if not the intent, would be to impair the public’s ability to know of conditions existing in Guantanamo Bay.



Community opposition was, however, swept aside when these changes became law through the enactment of the Anti-Terrorism Act 2004. And it is this set of changes that the government is threatening to use against Mamdouh Habib.



It appears that it relying upon the allegation that Mr Habib trained with al-Qaeda in order to forfeit any money earned by him in publicising the detention conditions at Guantanamo Bay. Its success in doing so is, however, far from assured. For one, the constitutionality of these provisions is uncertain. Their impact upon freedom of speech raises the question whether they infringe the implied freedom of political communication. Investing a federal court with the power to punish without the need for a proper conviction might also breach the separation of judicial power.



It is also unclear what foreign offence the government is relying upon. Moreover, a confiscation order is issued at the discretion of the court. If the government seeks to confiscate income that Mr Habib has earned through publicising the conditions at Guantanamo Bay, a key factor for the court will be the public interest in making these conditions known. Evidently, this factor will weigh heavily in Mr Habib’s favour. Most of all, the government’s case will depend on the proof it has specifically in relation to the allegation that Mr Habib trained with al-Qaeda. That the US government has released Mr Habib for lack of evidence should, at the very least, suggest some scepticism on this point.



These legal questions aside, there are good reasons in principle why the government should not be using these provisions against Mr Habib. Even if there were adequate proof of him training with al-Qaeda, he is still being punished for conduct that was not illegal in Australia at the time it was engaged in. Such retrospective criminal punishment is an open breach of the rule of law. This is no mere technicality. The rule of law, by insisting that our conduct be governed by the law that applies at the time it was committed, assures us a modicum of freedom in planning our lives.



This breach of the rule of law will be all the more egregious given the breadth of proceeds-of-crime laws. Take, for example, a situation where Mr Habib uses his status as a Guantanamo Bay detainee to advocate the rights of prisoners and in the process received speaker’s fees to cover his costs. In these circumstances, the government, assuming it had credible evidence of Mr Habib training with al-Qaeda, could seek to confiscate such fees.



Most significantly, Mr Habib has not been convicted of any crime. That he has been maligned by the government as a terrorist does not detract from this fundamental fact. Neither does surveillance by the police nor an adverse security assessment by ASIO. To accept otherwise would be to sanction conviction on the basis of government say-so.



It should then be stated in no uncertain terms that, in the absence of a proper conviction, Mr Habib is entitled to the presumption of innocence. He should be able to exercise the freedoms normally available to other Australian citizens. This must include the ability to earn a living to feed himself and his family, whether it be through his experience as a Guantanamo Bay detainee or otherwise.



And so it is that proper respect for the rule of law and the presumption of innocence means that the government should not attempt to confiscate money earned by Mr Habib. •




Joo-Cheong Tham is a lecturer in law at the University of Melbourne. He specialises in Australia’s anti-terrorism laws and is a committee member of Liberty Victoria.


Photo: Andrew Jeffrey