Maria Vamvakinou (Calwell, Australian Labor Party) Share this | Link to this | Hansard source

I move:

That the House:

(1)

acknowledges that the ongoing detention without trial of David Hicks is inconsistent with both international and Australian legal standards (including the principle of habeas corpus) and contravenes the individual rights and protections for which these standards provide;

(2)

acknowledges that the newly revised rules for the US Military Commissions under which David Hicks is to be tried, but under which no US citizen can or will be tried, remain in breach of both the Geneva Conventions and the Australian Criminal Code and for this reason, do not constitute a fair trial but instead set an unacceptable precedent for the detention and trial of an Australian citizen overseas, especially by sanctioning the use of hearsay evidence and evidence obtained by coercion and by not permitting the accused to be privy to all the evidence;

(3)

notes that one of the charges laid against David Hicks relies on the use of retrospective legislation, while the Government asserts that he cannot be tried in Australia because it would require retrospective legislation;

(4)

calls for the immediate repatriation of David Hicks to Australia to face trial under Australian law;

(5)

urges members of the United States Congress to help facilitate David Hicks’ repatriation to Australia by passing a resolution in Congress to this effect;

(6)

calls on the Government to release advice provided by the Commonwealth Director of Public Prosecutions concerning the viability of charging David Hicks in Australia;

(7)

acknowledges that we in this place have a responsibility to monitor and protect the welfare and rights of Australian citizens imprisoned overseas; and for this reason:

(8)

calls for an immediate and independent assessment of the mental and physical health of David Hicks by relevant experts to ascertain the validity of allegations made concerning the deteriorating well being of David Hicks;

(9)

seeks concrete assurances that any such assessment will not jeopardise or in any way prejudice the treatment of David Hicks whilst he is in Guantanamo Bay; and

(10)

acknowledges that the ongoing imprisonment of David Hicks, and the denial of his basic rights, runs counter to the principles of freedom and democracy in the name of which the ‘war against terror’ is being fought, and threatens to undermine the international effort to combat terrorism.

I move this motion today because, like a growing number of Australians, I believe that the ongoing detention without trial of David Hicks is both unlawful and a serious breach of Mr Hicks’s human rights. The detention without trial of David Hicks and allegations concerning his mistreatment and possible torture in Guantanamo Bay go to the very heart of why we have a body of international law that protects the rights and welfare of individuals against the misuse of power, especially when it results in injustice or inhumane treatment.

An unwavering commitment to upholding the rule of law, combined with an unwavering commitment to the individual rights provided for under humanitarian and human rights law, must provide the standard benchmark for how David Hicks is to be treated. This has not been the case, and it is for this reason that a growing chorus of opposition against David Hicks’s continued detention at Guantanamo Bay now exists in Australia. This opposition is built around three fundamental concerns: firstly, public concern over reports that David Hicks’s mental and physical health are deteriorating as a result of his long-term detention at Guantanamo Bay; secondly, public opposition to the way David Hicks continues to be denied his basic legal and human rights and to the way the rule of law has been subverted in the attempt to have him tried; and, thirdly, public anger over the way the Howard government has simply abandoned David Hicks and, in the process, has failed in its basic duty of care to protect the rights and welfare of an Australian citizen held in detention overseas.

To this country’s great shame, the Howard government has not demanded that David Hicks be returned home to face trial in Australia, as the United Kingdom and other Western states have done, and it is the only Western government that is prepared to accept the US military commissions as a substitute for what should be a free and fair trial for David Hicks in a civilian court. The ongoing detention without trial of David Hicks is inconsistent with both international and Australian legal standards, including the principle of habeas corpus. Rather than admit to this, the Howard government has instead sought to denigrate and dismiss those who speak out against the mistreatment of David Hicks and who seek to defend his basic legal right to receive a fair trial by accusing them of not taking the threat of terrorism seriously.

My response is simply this: any war which relies on suspending individual rights and the rule of law in the name of combating terrorism comes perilously close to eroding the very democracy and freedoms that it purports to defend. History teaches us that the interests of freedom and democracy are never served by temporarily suspending or deferring them. Rather, these interests can only be served by rigorously adhering to the basic legal and human rights that freedom and democracy provide for us. I want to refer to the distinguished writer Arthur Koestler, who reminds us in his book Darkness at Noon that the end never justifies the means.

The newly revised rules for the military commissions under which David Hicks is to be tried, but under which no US citizen can or will be tried, remain in breach both of the Geneva convention and of the Australian Criminal Code, especially in the way they sanction the use of hearsay evidence and evidence obtained by coercion and in not permitting the accused to be privy to all the evidence.

Whilst the government has argued that only the military judge who is presiding over Mr Hicks’s case can sanction the use of such evidence, it fails to add that, under the military commission system, the US Secretary of Defense has unprecedented power to determine the rules and procedures for how these military judges will be selected. In addition, these US military commissions seek to remove the application of the Geneva convention and make it impossible for detainees like David Hicks to challenge the legality of their detention.

The Attorney-General admits that neither he nor the Commonwealth Director of Public Prosecutions has seen the evidence against David Hicks, yet the government continues to argue that David Hicks cannot be tried in Australia. Based on what evidence? And whilst he continues to argue that David Hicks cannot be tried in Australia because it would require retrospective legislation, the most recent charges laid against David Hicks rely on the use of retrospective legislation. In the face of growing expert legal opinion suggesting that Mr Hicks can be tried here, it is incumbent on the government to release the advice provided by the Commonwealth Director of Public Prosecutions concerning the viability of charging David Hicks in Australia. I believe that it is time to bring David Hicks back home to receive a fair trial in the interests of preserving and protecting his basic rights and in the interests of upholding the rule of law.

Michael Hatton (Blaxland, Australian Labor Party) Share this | Link to this | Hansard source

Is the motion seconded?

Lindsay Tanner (Melbourne, Australian Labor Party, Shadow Minister for Finance) Share this | Link to this | Hansard source

I second the motion and reserve my right to speak.

Cameron Thompson (Blair, Liberal Party) Share this | Link to this | Hansard source

I thank the member for Calwell for moving the motion in the House about David Hicks, but I want to disagree directly with some of the contents of the motion, some of the assertions the member for Calwell has made and some of the findings that she has been quite happy to cobble together in support of her case. Primarily, it seems to me that the opposition’s case on Mr Hicks relies on a series of misrepresentations of different parts of law, either in relation to the Geneva convention on prisoners of war or in relation to the way Australian criminal law might apply to Mr Hicks. In either case, the opposition is taking a little of one and a little of another and mixing them together in a way they are not meant to be mixed at all.

The result of that is that inferences are made about Mr Hicks that I think even the Leader of the Opposition has some difficulty with. While the Leader of the Opposition has said in the past that he wants to get David Hicks home, I think all Australians firstly want to see Mr Hicks charged and tried in a manner that can put to bed the allegations that have been made against him. The allegations are severe and very serious. There is no way that the charges against him of attempted murder in violation of the law of war and of providing material support for terrorism should be allowed not to be heard. There is no way that they should be neglected or pushed to one side because of a confection of assertions about two disparate bodies of law—laws for prisoners of war and the Australian Criminal Code—such as has been presented by the member opposite.

Mr Hicks’s representatives have not contested that he has had an association with the Kosovo Liberation Army, Lashkar-e-Taiba, al-Qaeda and the Taliban. There is a very strong body of evidence that is basically agreed to on both sides about Mr Hicks’s activities during the period that covers the charges against him. As I said before, the question that arises is: is Mr Hicks to be subject to the Geneva convention—that is, as a prisoner of war—because he was with those organisations, or is he to be treated as someone who was engaged in criminal activity? The fundamental problem in this case, which has huge ramifications for the body of legal thought across the world, is that he falls into a grey area in between.

The law that applies to mercenaries in article 47 of the Geneva convention—you have to ask if David Hicks was endeavouring to be a mercenary associated with these organisations—states that a mercenary is a person who is specially recruited to be part of an armed conflict and that they take direct part in the hostilities, but it assumes that they are part of a party to the conflict, part of an army of a state, and are brought in to work as mercenaries with the army of that state. The Geneva convention deals with the armies of states, and obviously, when talking about Lashkar-e-Taiba or al-Qaeda, that definition gets very difficult. The assertion by the opposition that you could apply Australian law has been challenged by a range of people, most notably the Australian Director of Public Prosecutions, Damian Bugg, who has been quoted as saying at estimates that there is no way that Australian law can be applied to Mr Hicks. Also, in an article on the ABC, Gillian Triggs, director of the institute for comparative and international law, has said there would be difficulty applying Australian law to David Hicks. Members of the opposition who want to bring Mr Hicks back for trial are off the track. (Time expired)

Lindsay Tanner (Melbourne, Australian Labor Party, Shadow Minister for Finance) Share this | Link to this | Hansard source

The principle at the heart of the issue that is before the House today has been central to 100 years of evolution of common law and the individual freedoms that we take for granted in nations that have been built on the British legal tradition. The principle is also central to the belief systems which we are purportedly upholding in our battle against fundamentalist terrorists. That principle is the right of the individual to be protected from arbitrary imprisonment. It may seem quaint and odd that we should need to worry about the prospect of governments locking people up and throwing away the key without charging them or subjecting them to any kind of independent judicial process, but that still occurs in many countries in the world and the absence of that is one of the fundamental things that makes Australia a great country and makes the other British common-law countries so strong and robust when it comes to individual freedoms. That is ultimately what this issue is about: the right of individuals not to be arbitrarily and indefinitely imprisoned by the state.

It goes as far back as 1627 and the battles between Charles I and the parliament in the famous five-knights case, or Darnell’s case, where the knights had refused to pay forced loans and were arbitrarily imprisoned by the Crown as a result. There have been many landmarks in the historical development of this core principle and the entrenching of the notion of habeas corpus as a central component of our legal system and our rights. The basic principle is that individuals cannot be held indefinitely without trial by the state.

David Hicks has been held now for five years with no trial and with no serious attempt by the Australian government to get him out or to uphold his rights as an individual, and it is still unclear when he will be tried. There appears to be evidence to suggest that he is guilty of a range of things, that he has associated himself with al-Qaeda and with the Taliban and that he has done bad things or intended to do bad things. We do not know the full details. We have not heard his defence. We have not heard alternative explanations. These have not been tested in any court of law. No jury has been asked to examine all the evidence, to hear the arguments, to hear the evidence of David Hicks and those seeking to prosecute him and to form a view and make a judgement, nor has any judge been asked to hand down a sentence based on any kind of guilty finding. Those principles are at the core of our legal system and central to the individual rights of all Australian citizens, no matter how bad they may be as individuals and no matter how bad we may think they are.

The Howard government has brushed all of these principles aside. You hear the mealy-mouthed obfuscations of the Attorney-General and the back-of-the-hand observations from various supporters and cheer squad members of the Howard government: ‘Well, he’s really a terrorist. He’s consorting with terrorists.’ In other words, it does not matter and the core legal principles that govern the rights of all individuals in our nation are dispensable and can be arbitrarily removed or brushed aside by a government—by the United States government or by our government—at its whim. That is ultimately a recipe for governments being able to arbitrarily imprison people indefinitely without trial, without charge and without a jury of their peers determining whether or not they have committed any crime.

And this from the party of individual freedoms, the party that calls itself the Liberal Party, the party that purportedly stands up for the dignity of the individual and is there to uphold the rights of individual against the intrusions of authoritarian states! In fact what it reveals is that the DNA of the Liberal Party is predominantly ‘authoritarian’ DNA, not ‘individual freedom’ DNA. Arbitrary imprisonment is the hallmark of arbitrary government and abusive power by governments.

Yes, mistakes are being made. We have seen a Canadian citizen who went to Syria and was allegedly tortured because he was wrongly believed to be associated with terrorism. We have seen a Lebanese man kidnapped in the Balkans and ultimately tortured when clearly he was the wrong person. Do we know what David Hicks is guilty of, if anything? No, not until there has been a proper trial in a proper court where he has the right to defend himself and where he has the ability to put his case. That is the issue here. It is not about whether he is a bad man or a good man; it is about whether the right of all Australian citizens to have a fair trial and not be arbitrarily imprisoned by the state is to be upheld. That is what needs to be enforced. (Time expired)

Sophie Mirabella (Indi, Liberal Party) Share this | Link to this | Hansard source

I rise to speak against the motion moved by the member for Calwell. I am sure that she knows that we will have to agree to disagree on this particular motion. Depending on who you speak to, Hicks is either a poor unfortunate soul who went off the rails—who left suburban Adelaide and his young family and tried his luck in the foothills of Afghanistan in the middle of a war whilst immersing himself in Islamic theory and was simply caught in the wrong place at the wrong time in a post September 11 world—or a murderous terrorist who trained in secret terrorist camps with the sole intention of killing ‘heretic’ Westerners.

However, that aside, like most Australians, I want Mr Hicks charged and I want him to be punished for any actions that have promoted terrorism. He has a right to respond to the serious allegations against him through judicial proceedings. I do not, however, support the notion that we should bring Hicks home at any cost. It should be pointed out that the Attorney-General, the foreign minister and the Prime Minister have at all times discussed with their American counterparts the need to have Hicks charged. The government has welcomed the initial step in the military commission proceedings which brings Mr Hicks closer to trial. They are very serious charges: attempted murder in violation of the laws of war and providing material support for terrorism. The moment we succumb to the ceaseless cries for ‘justice’ for Hicks, we are effectively seeking his return to Australia without having the serious allegations against him tested. Provided there is no additional appeal by Hicks—unlike his legal team’s appeals, which have contributed to the delays in hearing the case—he will be brought to trial before the military commission. Let us not forget that Hicks’s legal team, through its appeals, has also contributed to the seemingly long time of Hicks’s detention in Guantanamo Bay.

The member for Calwell talks about retrospective legislation in this motion. She follows the lead of her Victorian colleague the member for Wills, who has suggested that Hicks should simply be brought home at any cost, with little thought of the practical consequences of such a move. The Commonwealth Director of Public Prosecutions has given advice that Mr Hicks cannot be prosecuted in Australia. There is no avenue for charging Mr Hicks under Australian law unless the relevant charges are made to operate retrospectively. The government is advised by the USA that the charges announced recently against Mr Hicks are not retrospective.

I suggest that members opposite might ponder more deeply the threat of international terrorism and the fact that Mr Hicks himself was to be tried before a military commission in Guantanamo Bay on charges of conspiracy to commit war crimes, attempted murder by an unprivileged belligerent and aiding the enemy before imploring the government to get Mr Hicks home at any cost. These are very serious charges indeed.

Australia has seen firsthand the effects of the evils of terrorism in the modern age. We saw its brutality on 11 September 2001 with the mass murder of innocents who had simply arrived for at their workplace for the day. We saw it again in Bali on 12 October 2002. As a nation we were scarred by these tragic events which were carried out by the evil perpetrators of misguided and perverse acts of terrorism against innocent civilians.

The great problem I have in pulling out all stops to support Mr Hicks is the fact that we are dealing with an individual who has acknowledged training with al-Qaeda and rejoined al-Qaeda even after the September 11 attacks in the USA. Reports in the press on the weekend stated that Mr Hicks is the subject of a new investigation by the Indian government over his attacks on their armed forces in Kashmir.

Whilst the Australian government is of the view that Mr Hicks should be brought to trial as soon as possible by continuing to press for Mr Hicks’s case to be dealt with expeditiously and fairly, I have little intention of doing anything more for an Australian who has trained in al-Qaeda camps with the intention of killing Westerners. I therefore oppose the motion moved by the member for Calwell.

Kate Ellis (Adelaide, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in support of the member for Calwell’s motion, which calls for an end to the ongoing detention without trial of South Australian man David Hicks. It is a fundamental role of the Australian government to protect and promote the interests of all Australian citizens—not just the citizens that they like and agree with—and make sure that they get a fair go by ensuring that they are treated with basic fairness under the rule of law. Members opposite seem to think it is our job to determine whether David Hicks is a good bloke or not. It is not. That is not the assertion we are putting forward. It is our job to uphold the principle that one is innocent until proven guilty and that one has the right to a fair trial. That is the government’s job and it has shamefully failed in this case.

Labor members have been vocal from the very outset on the issue of David Hicks’s detention. For the past five years Labor has argued that David Hicks should be charged and tried using a legal process that is consistent with both international and Australian standards. We have argued that the legal process by which David Hicks has been detained has been deeply flawed and is unacceptable for Australian citizens. We have been highly critical of the United States military commission process, which we have argued does not afford an acceptable standard of justice for Australian citizens and is in breach of both the Geneva convention and the Australian Criminal Code. It is worth reflecting that as early as 2001 the then Labor leader, Simon Crean, was calling for David Hicks to be returned to Australia, arguing that ‘the Australian government should be taking all steps necessary to bring him back here for justice in accordance with Australian law’. But these calls for adherence to Australian legal principles have fallen on deaf ears, and the Howard government has continued to allow David Hicks, an Australian citizen, to remain in detention without trial for five long years.

In Australian streets, however, this debate has been gaining momentum. In my electorate of Adelaide, residents are becoming increasingly disturbed by the Howard government’s handling of Hicks’s situation. They are outraged that an Australian citizen could be subjected to a US legal process that has been deemed unacceptable for the United States’ own citizens and be locked up for so long without charge. For this reason and for the information of the Prime Minister, I would like to outline some of the sentiments being expressed to me by the people of my electorate. A woman recently wrote to me to ask:

How can our Government allow an Australian citizen to be tried under a system that does not allow an accused to have access to all evidence against them? Does our Government condone an unbalanced level of power in a legal system? ... Does our government believe people are guilty until proven innocent?

These are questions that deserve an answer. I call on government members present today to outline their case, because, disturbingly, another theme emerging from correspondence on this issue is one of alienation from the political process, a sense of hopelessness and a resentment that this government is allowing an Australian to be held under a legal process that falls well short of international legal standards. One constituent, asking me to pass on this message to the foreign minister, wrote:

I am still of the opinion that nothing I or anyone else says or does can shift the cold hard hearts of this Government but to do nothing implies endorsement of your actions.

Another stated:

I am absolutely appalled by this situation and embarrassed to be an Australian ...

Another asked:

How can we as a nation remain powerless to do anything?

Another local man wrote to me explaining:

I am very concerned with the Government’s treatment (or lack thereof) of Mr Hicks. I find the Government’s treatment of this matter to be hypocritical, inequitable and inhumane. This is the first time I’ve written to any member of parliament to voice my opinion and I hope that you can, in some way, bring my increasing concern for the physical and mental welfare of David Hicks to the Government’s attention in the hope that he will be released in the immediate future.

I agree with the people of Adelaide and I agree with the member for Calwell’s motion. It is vital that we ensure that all Australian citizens are given a fair trial, that the principle of habeas corpus is maintained for Australian citizens abroad and that we unconditionally oppose unfair legal processes. I know that the Howard government may not accept the recommendations being made today, so we pledge to keep the pressure on the government, to keep in their face about this issue and to keep campaigning until we get freedom from Guantanamo, fairness and the right to a fair trial for all Australian citizens.

Michael Keenan (Stirling, Liberal Party) Share this | Link to this | Hansard source

I oppose this motion moved by the member for Calwell for a number of reasons. I think it is an extraordinary motion that we are debating here today. The member for Adelaide has really belled the cat by saying that she is campaigning for freedom for Mr David Hicks—which I think is a very different thing from what this motion actually proposes to do.

I do share the concern that has been expressed by all members in this debate about the time it has taken to charge and try Mr Hicks. It is obvious to everyone that it would have been preferable that this happen sooner. It is worth noting that a lot of this delay has been due to the fact that the process itself has been challenged through the US Supreme Court.

I do not think we should take this motion’s concern about the process and somehow parlay that into a statement that we need to bring Mr Hicks home to Australia. The Australian government has advice that, if we were to do that, he would be unable to be charged under our system. It strikes me as absolutely ridiculous to ask for him to be brought home to a situation where he could not be charged.

As this issue has gathered pace, I have been pretty surprised that people seem to have forgotten how Mr Hicks came to be in American military detention, so I want to remind the House of a few pertinent facts. I hope that some of the people who have taken to sloganeering, saying ‘Bring Hicks home’, will listen to some of these facts because I think they are quite important. There have been times in this debate, in this House and also in the wider community, when I have thought that Mr Hicks had been charged with some misdemeanour, some relatively minor crime. In fact, he is facing the extremely serious charges of attempted murder and providing material support for terrorism. This is a man who, by his own admission, chose the path of violence to defend militant Islam, a man who was so supportive of al-Qaeda and its actions on September 11 that he chose to defend the regime that harboured these evil people. In a letter home to his parents he described himself as ‘a full member’ of the Taliban—a full member of a regime that tortured children and violated the human rights of the people of Afghanistan in the most barbaric of ways. By his own admission, Mr Hicks has trained with Lashkar-e-Taiba, a known terrorism organisation. By his own admission, with that terrorist organisation he engaged Indian soldiers across the line of control in Kashmir. This is a man who said in a letter home that he aspired to be a martyr fighting the friends of Satan, who were, in his mind, the enemies of Islam. These enemies, according to Mr Hicks, included the Western societies that he believed were dominated by Jewish interests.

Astonishingly, this motion demands that Mr Hicks be brought back to Australia even though the government has said that it has advice that he could not be charged and tried here, so members of the Labor Party are saying that they are happy to see Mr Hicks return home to become a free member of the community and to face no recriminations for his actions. That is an extraordinary thing for somebody in this place to champion. The proposer of this motion has taken what I consider to be a rightful concern about the length of Mr Hicks’s detention and has turned that into saying unequivocally that he needs to be brought home—when he cannot face charges here—to be free in our community. That is an extraordinary response. It is an incorrect response. The correct response is to do what the Australian government has actually been doing, and that is to pressure its US counterpart to process Mr Hicks through the system more speedily. This approach has actually yielded results. We saw that when the charges that were to be laid were announced within the last fortnight.

A lot of this motion deserves further scrutiny, particularly the idea that somehow hearsay evidence is alien to a system of charging people under these circumstances. In fact, hearsay evidence has consistently been used as evidence before such things as military commissions and international criminal tribunals. That precedent goes back to Nuremberg. Hearsay evidence can be admitted under the military commission system where it is considered to have probative value. However, it may be excluded where the evidence is demonstrated to be unreliable.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

Order! The time allotted for this debate has expired. The debate is adjourned and the resumption of the debate will be made an order of the day for the next sitting.