Senate debates

Thursday, 9 November 2006

MR David Hicks

10:04 am

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party) Share this | | Hansard source

I move:

That the Senate notes:
that on 28 September 2006 the United States Congress passed the Military Commissions Act 2006;
that on 17 October 2006 President George W Bush signed the Act into law;
that the Act provides a congressional basis for trial by military commission;
that the Act incorporates a number of procedural safeguards including:
the presumption of innocence,
a right to be present throughout the trial,
a right to cross-examine prosecution witnesses,
a ban on evidence obtained by torture,
the provision of military defence counsel,
the ability to retain civilian defence counsel,
the option to remain silent or testify at trial,
standard of proof beyond reasonable doubt, and
an extensive appeals process;
that Mr David Hicks is yet to be charged under the Act; and
that the Government continues to press the United States for Mr Hicks’ case to be dealt with expeditiously and fairly.

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | | Hansard source

by leave—It is worthwhile putting on the record Labor’s position on this issue. Labor have consistently argued that the United States military commissions will not afford a standard of justice that should be acceptable for Australian citizens. We have been very critical of the Howard government’s failure to demand a fair trial for Mr Hicks. Labor’s view has been that the Australian government should demand that Mr Hicks be tried through a normal judicial process with proper rules of evidence, independent presiding officers and an independent avenue of appeal. In our view, a normal court martial or a trial by a US civilian court would be suitable, depending on whether the US accuses Mr Hicks of war crimes, of crimes against humanity or of breaking American domestic law.

Unfortunately, the motion that Senator Joyce is proposing today is in stark contrast to his comments on Friday when he was reported as saying that he:

... had been impressed by Major Mori’s presentation and had grave concerns about the prospect of Mr Hicks getting a fair trial. ‘I think it is now time that people do stand up and start saying “enough is enough”. The process has not been followed,’ Senator Joyce said. ‘Our respect for the process of law should be what engenders our support to bring David Hicks ... back to Australia for trial.’

I suspect Senator Joyce had an epiphany on Friday, but it seems that has been turned around since then.

10:06 am

Photo of Natasha Stott DespojaNatasha Stott Despoja (SA, Australian Democrats) Share this | | Hansard source

by leave—The position of the Australian Democrats is very clear on this issue. We will not be supporting the motion. The attempt to put forward what are perceived as virtues in the Military Commissions Act 2006 that has been passed in the United States when there are such glaring inadequacies and deficiencies in it and in the military commission process is not something that we will be supporting.

Without wanting to reflect on a decision of the Senate, I note the closeness of the vote on the Democrat motion that we had this morning. That motion made very clear the fundamental problems with the Military Commissions Act and the fundamental breaches of humanitarian law and the Geneva Convention. I, like Senator Ludwig, was heartened by the comments from Senator Joyce—I was one of the first to happily congratulate him on his comments. I think we are starting to see a change in opinion not only in our community but also among members of parliament on all sides in relation to this fundamental breach of a man’s human rights and citizenship rights and this fundamental breach of international humanitarian law. This motion, I am afraid, is aiding and abetting a process that is flawed. We will not be supporting the motion, but I do thank those members of the Senate, including the Greens, the Labor Party and Senator Fielding, for their support of the Democrat motion moved earlier today that actually did list the huge and glaring deficiencies in the Military Commissions Act.

10:07 am

Photo of Bob BrownBob Brown (Tasmania, Australian Greens) Share this | | Hansard source

by leave—I too want to express both frustration and disapproval of the process underway here with this motion. The motion from Senator Joyce effectively gives approval to a dastardly process, which has seen the Australian government take an obsequious role to the Pentagon in allowing an Australian citizen to be treated in a way no American citizen would be allowed to be treated if incarcerated by an Australian government and in a way that American citizens in Guantanamo Bay have not been treated—they were sent years ago to face American domestic courts. At the joint sitting of this parliament nearly four years ago, when President Bush was present, we Greens called for a proper and equal process for the Australians in Guantanamo Bay.

Habeas corpus says that prisoners under our system should be charged and brought before a court with expedition. That fundamental tenet of law has been totally abrogated in this process. This motion would enable the government to get approval for a process which is without legal merit and which breaches international covenants and the rights of an Australian citizen abroad who has been held unjustly. The basic tenet here is that the Australian judicial system is in some way second-rate to that in the United States. The Greens have never maintained that. We will never accede to that. It is not true. It is time the Australian government showed some pride in this nation’s own judicial system by bringing Hicks home and having him appropriately charged. Finally, I remind the Senate that the Labor Party supported the government in recognising military commissions into Australian law, and it is high time that was again removed from the Australian legal statutes.

10:10 am

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party) Share this | | Hansard source

by leave—I would briefly like to say that I, probably more than a lot of other people, understand that you have to move towards a position of possibility rather than shoot for the stars and achieve nothing. I think the issue here is that we should get this process moving along, and that is what is happening.

I take on board the views that have been so passionately bestowed on us by Senator Brown, yet I do not remember receiving a phone call from him on this. I take on board the views that have been so passionately extolled by Senator Ludwig, but I do not remember getting a phone call from him. The possibility was there if they genuinely believed that changes were required to deal with it. In fact, no-one from the Labor Party and no-one from the Greens called me. That is the difference between the rhetoric and the facts.

10:11 am

Photo of Kerry NettleKerry Nettle (NSW, Australian Greens) Share this | | Hansard source

by leave—I move:

At the end of the motion, add:
the Government’s failure to return Mr Hicks home after nearly 5 long years in Guantanamo Bay.

10:12 am

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party) Share this | | Hansard source

by leave—Does that mean that the Greens now agree with the rest of the motion?

Question put:

That the amendment (Senator Nettle’s) be agreed to.