Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

As we know, the President of the United States signed new legislation on military commissions on 17 October this year. We have engaged in discussions with the United States administration in relation to the impact of that legislation on the Hicks case. The previous assurances which were given to the Australian government in relation to Mr Hicks stand, and of course they cover a variety of issues, such as onus of proof, standard of proof and other matters which you would normally see in a criminal trial in the United States. But I can say that the Attorney-General has had several discussions with United States Attorney-General Gonzales. Most recently, he met with him on 29 September this year, during which he emphasised Australia’s desire to see Mr Hicks dealt with as soon as possible. It has been a matter of record that, from the Prime Minister downwards, whenever we have dealt with this issue with the United States, we have made it very clear that Mr Hicks should be brought to trial as soon as possible and that he has been held for too long.

In relation to the details surrounding the reconstitution of the military commission, we understand that there are also regulations which are to be promulgated in the United States and that they have been the subject of discussions, as I said. Certainly, there are a range of issues which are under discussion. I will take Senator Stott Despoja’s question on notice in relation to the other particular issues which she has raised and take them up with the Attorney-General. But I can say that there are a range of discussions ongoing at the moment with the United States authorities. The legislation, albeit in place, has regulations which will also impact on the constitution of the military commission, and of course we are pursuing that with the United States.

In relation to the return of Mr Hicks to Australia, we have made it very clear previously that the activity which is alleged against Mr Hicks was not against the law of Australia. He was apprehended by the United States authorities, and if he were returned to Australia he would not be able to face prosecution for those alleged activities. We have always said that a military commission is appropriate to deal with those issues and that that is the course of action to take. However, we are in the process of negotiating with the United States, in view of the reconstitution of the military commission, any aspect of his sentence being served in Australia should Mr Hicks be sentenced. But of course he does have the presumption of innocence accorded to him in this matter. We are pursuing the issue of him being able to serve any sentence in Australia if he is convicted and sentenced. We had an agreement in relation to that under the previous arrangements, and we are now pursuing this to see that they apply to these new arrangements.