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

I rise in this debate on the Appropriation Bill (No. 1) 2007-2008 and associated appropriation bills to use it as an opportunity to talk about David Hicks and others and what should be the conduct of the Attorney-General, the first law officer of the Crown. An appropriation has been made to the Attorney-General’s Department in this budget, and I think that allows me to speak broadly in relation to these matters.

I think history will not look kindly upon this government or, indeed, the Attorney-General, as far as David Hicks is concerned. We have seen a very dangerous precedent where there was evidence before the Senate Legal and Constitutional Affairs Committee regarding Mr Hicks and Mr Habib that basically said that, on the evidence that was available in relation to both gentlemen, they certainly could not be convicted of an offence in Australia.

Mr Habib was subsequently released from Guantanamo Bay without charge. It is my view that that would not have been done lightly by the authorities but would have come as a result of a review of all the circumstances. I asked a particular question of the Minister for Foreign Affairs on 19 August 2002, to which he replied in part on 2 December 2002:

The government is aware that Mr Habib has received medical treatment for a pre-existing condition while in US detention. Detainees at Guantanamo Bay have access to medical examinations and treatment, and Australian officials have requested that camp authorities continue to monitor Mr Habib’s health closely.

If Mr Habib had committed an offence, it would have seen him further detained by the authorities. The fact that he was released is an indication, I think, that Mr Habib was not guilty of any offence or that there was insufficient evidence in relation to him and that the medical treatment for a pre-existing condition might have had something to do with his conduct and behaviour. We will never know fully because we do not expect the authorities to be very cooperative in that regard.

In relation to Mr Hicks, he has recently been returned to Australia after a guilty plea at his March military commission trial to a charge of providing material support for terrorism, which resulted in a seven-year jail sentence with all but nine months suspended. One needs to remember that Mr Hicks was first taken into custody on or about 9 December 2001 and shortly after was transferred into American custody and then to Guantanamo Bay, where he was left by this government to rot in a cell all that time.

The nature and conduct of the military commission are not something that I support, because I believe the commission falls far short of what we should require for Australian citizens, and I will elaborate more on that later. But it seems to me that even the way the guilty plea was finally negotiated exposed the dodginess of that particular tribunal. Mr Hicks’s legal representatives, in particular Major Mori, negotiated the plea not with the prosecution or the tribunal but with another person, I think from the Department of Defense.

I have no criticism of Major Mori, because I think the way he conducted the case on behalf of Mr Hicks was impeccable. No lawyer worth their salt would have done anything other than negotiate a plea with the resultant sentence on the terms in which it was delivered. You only had to listen to the comments of the prosecutors, who were obviously spitting chips afterwards because they felt a heavier sentence was required. But the whole tribunal was shown to be a farce even at the very end. It was a political show trial that this government only got interested in at the end because politics was intervening and they were doing pretty badly in the broader community.

Why were they doing badly in the broader community? I am not here to argue the guilt or innocence of Mr Hicks; I have never been about that. I argued this case from the very beginning when I was shadow minister for justice on the basis that Australians abroad should not be subject to second-class justice, that we should require a higher standard for our citizens abroad in relation to their incarceration and the adjudication of their guilt or innocence. That is what the American constitution requires for American citizens. Amendment V says that they must be dealt with under the due process of law. Amendment VI says that they have the right to a speedy and public trial by an impartial jury. So the Guantanamo Bay option is for non-Americans. Our government sat idly by and allowed one of our citizens to be dealt with in a dodgy process. It was dodgy, despite the final plea. Mr Hicks was entitled to be dealt with, in my opinion, under processes that conformed to the proper international standards. The Attorney-General deserves to be condemned for his abandonment of an Australian citizen to that process. The Australian public started to revolt in the end because they thought it was a bit rich for Mr Hicks to have been in custody more than five years and not dealt with in a proper court of law.

The member for Wills asked a question in writing of the Minister for Foreign Affairs on Australians in jail abroad which was replied to recently. I am going by an AAP citation which says:

Because the list of Australians in trouble overseas changes regularly, Mr Downer provided a snapshot covering a 24-hour period from January 31 to February 1. That shows 176 Australians had been convicted and were serving jail sentences ... Another 267 were facing charges, of whom 118 were being held in custody.

That is a lot of people.

I also want to commend Mr Hicks’s father because I think he conducted himself in a way that was exemplary and assisted in his son finally being returned to Australia. I am not soft on terrorism, but I said on Lateline on 8 February 2002:

The war against terrorism is a war against evil.

But it’s a fight for our value systems and our value systems require the rule of law, respect for our institutions, that’s what we’re fighting for.

That’s why in these instances we can hold that up as a role model for the rest of the world and that’s why we need to stick to these principles.

That’s why there should be the rule of law applying here, international norms should apply.

I went on to say:

He should have rights, he should have rights as an Australian citizen and it’s interesting that the American citizen who’s been detained has certain rights, he’s entitled to due process and access to a lawyer under the American constitution.

What we should have here is the same standards of justice for Mr Hicks as is for the American citizen as for all the other people who have been captured.

I think those principles are what define us and they’re the values that we’re fighting for.

I repeat:

If we are to defeat terrorism, we must uphold the human rights principles our societies hold dear. These include the basic rights of persons held in custody: the right to humane treatment; the right to be informed of the reasons for detention and to be able to challenge the lawfulness of detention; the presumption of innocence; prompt access to and assistance of a lawyer; prompt access to medical assistance; and the ability to communicate with family members.

That was a quote from an article I wrote for the Australian on 15 January, 2003.

Now that Mr Hicks has been returned to Australia, those are the principles we should look to. This is not something that Labor should be advocating alone; this is something that the government of Australia should be advocating on behalf of its citizens because we have had a second-rate system of justice. We insist that drug couriers and others who are involved in legal matters throughout the world are properly dealt with by those tribunals and that we do not lower the standards of justice under which they are dealt with. The problem, unfortunately, in a modern world society with terrorism at the fore, is that we are moving to a new McCarthyism where anyone who is charged with a terrorist offence is basically presumed to be guilty at first instance, is treated as a leper or as someone who is entitled to a lesser form of justice. That endangers all of us. That will expose us as hypocrites if we allow that to continue to happen.

The truth is that, in all probability, if Mr Hicks had been dealt with in a proper court of law he would not have been convicted. That is why we had a military commission. That is why he was not brought home, because he certainly could not have been convicted in Australia. Indeed, he was charged retrospectively. I note that a number of journalists say that Mr Hicks admitted that particular form of conduct in letters to his family. That may well be true. Many people make admissions to their families through telephone intercepts or whatever, but you deal with them in an appropriate tribunal, not in a tribunal that has been cobbled together to ensure a conviction. That is why I think Major Mori conducted the case in a splendid fashion on behalf of his client. Mr Hicks’s father, as I understand it, at no stage claimed that his son was a saint or was necessarily innocent, but he wanted him dealt with in an appropriate tribunal. I am basically saying to this parliament today that the Attorney-General has dishonoured his office—the first law office of the Crown. He should not be just another politician looking at the politics of a situation; his role as Attorney-General is a time-honoured role as the first law officer of the Crown and he failed in that regard.

Debate interrupted.

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