Daryl Melham (Banks, Australian Labor Party) Share this | Hansard source

I rise to condemn some comments that were made in the Federal Court yesterday on behalf of the federal government in the case involving David Hicks. The Solicitor-General, David Bennett QC, basically submitted to the court that the Australian government had no duty to protect its citizens abroad. That sparked a remark from Justice Brian Tamberlin, who is reported in the papers to have said:

There’s not much of a trade-off: you can be conscripted to fight overseas, but if you are taken overseas [and detained] there’s no duty [for the Government to protect you].

The government’s conduct towards David Hicks and his continued detention for the last five years has been an absolute disgrace. In recent times, we have seen some mutterings from the government as public opinion has changed. I do not want to go into the guilt or innocence of David Hicks, but the processes are important and so is the fact that Australian citizenship must count for something.

Guantanamo Bay was set up on Cuban territory and leased to the Americans to avoid the US Constitution coming into play. That way, foreigners would not have the benefit and the protection of the US Constitution. The other thing that needs to be pointed out is that Americans who are charged with terrorism offences are not tried by military commissions. What we have is a second-rate system of justice—a kangaroo court set up to secure convictions. This government have been very lax in protecting Australian citizens. They have not brought Mr Hicks back to Australia because they know that he is not guilty of any offence under Australian law. The current rules of the tribunal mean that retrospectivity and rules of hearsay will apply. It is all geared to obtain a conviction at all costs. It is about political embarrassment for those concerned.

The Australian government has to do more. It has to do more because people need to believe that being an Australian citizen counts for something. As I say, I do not want to go into guilt or innocence. My concern is that he has been abandoned and left to rot in a foreign cell for five years and it is only in recent months—as an election becomes due—that the Attorney-General and the Prime Minister have had something to say. To then turn around and in effect give instructions to the Solicitor-General to say that we have no duty to protect our citizens abroad is a disgrace. We legislate so that people can be dealt with if they involve themselves in criminal activity abroad. The reverse should apply as well. As Justice Tamberlin remarked, we can conscript people to fight overseas, but if you are taken overseas and detained there is no duty on the government to protect you. There is something rotten in the state of Denmark if a government goes into a court to argue that position. Whether or not it is the law, the government should not be going into the court arguing that particular position. It should be insisting that proper rules apply in relation to the adjudication on the guilt or innocence of Mr Hicks.

Mr Hicks has served five years and he has still not yet been charged, and the process has many months—if not years—to run. If there are appeal processes, we will have a situation in which another year or two elapses before he is brought back. This is not about Hicks per se; it is about the principle of sticking up for decent values. Otherwise, how do we condemn the terrorists? We talk about Australian values. What does it mean to be an Australian citizen when you are abandoned by your government abroad and when they allow a bodgie process to take place? The British are not allowing it for their citizens. They have brought them back to the UK. We are the only silly buggers—pardon the French—that are allowing our citizens to be tried under this process. It is no good. As I said, I do not blame the Solicitor-General, David Bennett QC. He acts on instructions. The government should not have given those instructions to him to go into court with. They should be rolling over and bringing Hicks home. (Time expired)

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