Wednesday, 13 September 2006
Matters of Public Interest
Mr David Hicks
I rise this afternoon to talk about a matter that I have followed closely since I have been a member of the Senate—namely, the situation faced by one of my constituents, Mr David Hicks, who has been held in US custody in Guantanamo Bay for five years, three of those without charge.
As most people know, Mr Hicks is one of 10 Guantanamo detainees who, until the recent United States Supreme Court ruling in Hamdan v Rumsfeld, were due to appear before military commissions. The US Supreme Court in Hamdan ruled that these commissions were contrary to law. The court reaffirmed the need for fair trial standards for detainees in US custody, declaring that any trial must meet minimum standards of due process found in US and international law.
Following the US Supreme Court ruling, our Prime Minister, Mr Howard, has said that Australia is happy for the US government to explore alternative methods for trying Mr Hicks. Later today our time, the Bush administration will put before congress a bill to allow detainees to be tried by military tribunals. This week, I have written to several US senators, asking that they reject the administration’s bill. The military commissions that the president is asking congress to authorise are a step backwards. The proposed military commissions do not comply with US or international law. Consequently, they will only lead to more delay through court challenges rather than to fair trials for those who are accused.
There are a number of problems with the proposed bill. For instance, it misstates what current law requires in several respects. One example of this is finding 7A, which speculates that court martial procedures would ‘compel the government to share classified information with the accused’. As I understand, the military rule of evidence 505, which regulates courts martial, permits the military commission to withhold the identity of witnesses from the accused and to provide only declassified summaries of classified information to the accused. I do not see how this rule is inadequate to protect national security interests, particularly since the United States has been using this rule to protect classified information for some time. In my letters to the US senators, I urged them to support applying military rule of evidence 505 to military commissions. In my view, at the very least any rule passed by congress should allow the accused to see all the evidence that goes to the jury.
At least two provisions in the administration’s proposed bill allow unreliable evidence to be admitted. Section 948r(c) of the bill provides that an accused person’s coerced statements can be admitted against him at trial, provided the military judge does not determine that they are unreliable. The very nature of coerced statements, as you would know, Mr Acting Deputy President Brandis, is such as to render them unreliable. This section seems to be an attempt to provide the appearance of fairness even though the practical effect is to permit the jury to consider unreliable evidence.
Another section allowing the admissibility of unreliable evidence is section 949a(b). This section would allow hearsay to be admitted, no matter how unreliable, as well as other unreliable evidence. As I understand it, the hearsay rules used in US federal and military courts contain numerous exceptions, including a flexible catch-all exception allowing hearsay to be admitted only where it has been found to be reliable. No lesser standard should apply to detainees tried at military commissions. No interests are served by fostering convictions on the basis of unreliable evidence. Another matter that is of concern to me is the fact that counsel must be US citizens. I see no reason why an Australian attorney who is a member of a bar in the United States should not be permitted to represent Mr Hicks if he so chooses.
If the administration’s bill is passed, it would amount to an abrogation by the US of the Geneva conventions. Congress has already authorised rules and mechanisms for trying people detained in a time of war. These are, of course, the uniform code of military justice and courts martial. These rules have been effective to prosecute battlefield cases for more than 50 years. They should be similarly applied to those held in Guantanamo Bay who, after all, will be tried for violating the law of war.
A common argument for departing from fundamental due process standards is that it is impracticable to try al-Qaeda terrorists ‘before tribunals that include all of the procedures associated with courts-martial’. In fact, section 2(6) of the administration’s bill asks congress to endorse such a finding, even though it is demonstrably untrue, as shown by a recent Department of Justice news release. According to this Department of Justice news release, there have been 261 convictions for terrorism and related offences between 11 September 2001 and 22 June 2006 in the federal court, where the procedures used are very similar to those used in courts martial. As these convictions demonstrate, it is possible to convict those involved in terrorist acts without departing from US and international standards of fundamental due process.
We are now all waiting to see whether or not this bill is passed through congress. If it is successful then of course these laws could also be subjected to challenges in the court. Given the delays inherent in this process, it could mean that Mr Hicks is in custody for several more years whilst these challenges go ahead. Therefore, we may find ourselves in the same position we were in nearly five years ago: Mr Hicks is still in detention and there is no process in place for a proper trial.
The US administration continues to give assurances that Mr Hicks’s trial will be resolved speedily. Despite the ruling in Hamdan, Prime Minister Howard appears no less enthusiastic about going along with whatever President George Bush wants to do. President Bush has acknowledged that Guantanamo has damaged the image of the United States and should be closed. There can be no justice for Mr Hicks if congress gives its stamp of approval to the military tribunal system proposed in this bill. In the end, the only solution for the American government may be to transfer Hicks back to Australia. As we know, Britain has secured the return of its citizens and is currently trying them before British courts. Spain, France, Canada, Russia and Afghanistan are all doing the same. Even the Americans themselves removed their citizens and ensured that they faced a fair trial at home. We have to ask: why does the Howard government refuse to take seriously the option of trying Mr Hicks under Australian law? As justification for not demanding his release, the Prime Minister argues that Mr Hicks has not broken any Australian laws and therefore cannot be tried by an Australian court. The Attorney-General, Mr Ruddock, has said:
The only basis upon which Hicks could be brought back to Australia under our existing law is to be freed—that is the only basis.
On the contrary, a legal opinion prepared by leading Australian constitutional lawyers from the Gilbert and Tobin Centre of Public Law said:
The Australian legal system has, and always has had, all the tools necessary to prosecute Hicks in Australia.
According to this opinion, Hicks would be potentially liable for conspiracy to commit grave breaches of the fourth Geneva convention, in contravention of Commonwealth legislation, namely the Geneva Conventions Act 1957, together with engaging in hostile activity in a foreign state and allowing himself to be trained in the use of arms or explosives. These are both in contravention of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). Even if it is found that Australian law is deficient, a law could be enacted by this parliament with retrospective effect to enable Mr Hicks to be tried under Australian law before an Australian court.
The extent to which the Prime Minister is not only denying these possibilities but potentially jeopardising them by engaging in public commentary about Mr Hicks’s guilt is very disturbing. Is the Prime Minister not aware that by talking about ‘crimes that Hicks has committed’ is effectively pronouncing Hicks guilty? The laws concerning sub judice in this country are clear. They apply equally to the Prime Minister as they do to everyone else in the Australian community. A breach of these laws can be a cause for a mistrial or, even more seriously, no trial at all.
If Mr Hicks is as dangerous as the Prime Minister claims, there are also currently laws on the statute book which would allow his activities to be monitored here in Australia. In the Anti-Terrorism Act (No. 2) 2005, passed by this parliament just last year, the Australian Federal Police can apply to a court for a ‘control order’ over an individual’s conduct and activities. As we are aware, just recently such an order was imposed upon Mr Jack Thomas. A control order can be issued by a judge where it would substantially assist in preventing a terrorist act or where a person has trained with a terrorist organisation that is listed in the Criminal Code. The laws are also retrospective, allowing people who may have had links to overseas groups in the past to be subject to these orders. How does a control order control a suspected terrorist? A control order can prohibit or restrict a person from being at specified areas or places, communicating or associating with certain people, accessing or using certain forms of technology, including the internet, possessing or using certain articles or substances and carrying out activities, including work activities.
On a practical level, such a control order could require Hicks to be put under house arrest, forced to wear an electronic tracking device, report to someone at a certain time and place, allowing himself to be photographed and participate, with his consent, in counselling or education. A breach of a control order carries a penalty of five years in prison and, whilst each control order can last up to one year, the order can be reissued again and again allowing someone to be continuously controlled. The fact that the Howard government has consistently denied the possibility of imposing Australian law on David Hicks demonstrates, I believe, its lack of faith in the Australian legal system and little, if any, commitment to protect Australian citizens who are charged with offences abroad.
It is time for the Australian government to acknowledge that one of its citizens has received a raw deal from the US administration and demand that Mr Hicks be returned home and, if necessary, subjected to the force of Australian law.
Sitting suspended from 1.50 pm to 2.00 pm