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

I move:

That, in the opinion of the Senate, the following is a matter of urgency:

(a)

that Australian citizen David Hicks will be subject to a Military Commission process that, among its flaws, allows conviction on evidence obtained through coercion and on hearsay, and strips away habeas corpus; and

(b)

further, that Mr Hicks’ mental and physical health has deteriorated in recent months, particularly after 11 months in solitary confinement, and he should be repatriated immediately.

I welcome my colleagues back to this first day of the parliamentary session for this year and indicate that the pressing case of Mr David Hicks, a South Australian citizen who has languished for more than five years in Guantanamo Bay, the detention facility set up and run by the United States, is a matter of urgency.

Mr Acting Deputy President Chapman, today you will have seen many people converge on the nation’s capital outside Parliament House as a public show of support for not just this motion but the broader issue of repatriating Mr David Hicks. You saw a broad coalition of support expressed today and, indeed, a number of people indicated their concern with the lack of action taken by the Australian federal government in relation to this man’s case. You would have seen a lot of people speaking, expressing their outrage at and condemnation of a military commission process that has previously been deemed illegal but, after the new Military Commissions Act being passed in September last year in America, is still seriously flawed.

Today this motion is to ensure that senators in this place indicate whether or not they are still comfortable despite the expose of the facility at Guantanamo Bay, despite the increasing stories of the debilitating effects on the physical and mental health of Mr David Hicks, despite the fact the military commission process is flawed, despite the fact that this has gone on for more than five years of this man’s life and despite the fact that we are committed in this country to the rule of law and more broadly that we believe in, support and uphold the principles of international humanitarian law. It is time for senators to show where they stand. I think it was Senator Chuck Hagel who said recently, ‘If you want an easy job, go sell shoes.’ Today is the day that we will see how senators in this place stand on this issue, an issue of increasing alarm and urgency for a number of reasons, most of them contained within the urgency motion before us.

Last week the US military announced new charges that may be brought against Mr David Hicks, including attempted murder and offering support for terrorism. While the charges are yet to be approved by the Pentagon, this government is still a cheerleader for and still a supporter of a process that defies the rule of law and contravenes international humanitarian law. Let us get this clear. There are a couple of aspects of that military commission process, aspects which have been brought to the attention of the Senate previously: detainees can still be convicted on the basis of evidence that is obtained through coercion and still will not have the right to challenge that evidence. There are a couple of vital principles here—the right to cross-examine witnesses, for example, who have given evidence against the detainee. There are some pretty basic principles. This debate today is not about individual David Hicks, albeit he is an Australian citizen and a South Australian citizen and therefore a constituent of some of us in this chamber; it is about these broader principles.

I believe Australians are increasingly disappointed by or frustrated with the government. Some are very angry with the government’s seeming inability to seek a dignified and fair outcome for this process. In recent times we have heard stories of Mr Hicks’s health. They are not stories generally; I am talking about specific reports from people who know, such as David McLeod, his Adelaide based lawyer, and his military commission defence team, about the fact that this man is not in a good way. We have heard from David Hicks, in his own written hand, that he is not well. But I am not going to make those assessments. It is a bit like the Minister for Foreign Affairs, Mr Alexander Downer, said: he is not a doctor. Neither am I, and that is why it is time that there was an independent medical assessment of this man, Mr Hicks. A psychiatrist who is independent of the defence counsel’s approval should be allowed into Guantanamo Bay to assess his condition.

On the matter of accessing Guantanamo Bay, isn’t it time that we emulated some of our colleagues in the US, the UK or the European Union and sent a delegation to Guantanamo Bay—maybe a cross-parliamentary delegation or, indeed, a delegation of ministers of the Crown? Isn’t it time that we decided as a nation, after inspection first hand, whether the facilities and the reports of those facilities are true and whether the conditions are appropriate? I don’t think that solitary confinement since March is appropriate. I don’t think 22-hour-a-day lighting is appropriate. I certainly don’t think rationed toilet paper is appropriate. I think a reading room that does not have access to books or legal materials is a farce.

I think the whole process is now being exposed as inhumane. But I would not mind ministers of the Crown and others visiting that facility and telling us first hand what they see and what they hear. I would like to see if they have got the intestinal fortitude to look that man, David Hicks, in the eyes and say that they are doing everything possible for him within the context of the rule of law.

This is not about excusing anyone. This is not about letting people go off scot-free. This is about ensuring that a man is either charged and detained or set free. But if you charge a person then they are entitled to a fair process, a fair trial. Does anyone seriously believe that the military commission process will enable that to take place? I acknowledge that the Labor Party have an amendment, to which I am happy to agree, about whether or not David Hicks could get a fair trial in Australia. I will let the Labor Party speak to their amendment but it is entirely acceptable to me.

In terms of the charges that may be applied, we have heard a couple of the charges that may be levelled against him. We know that attempted murder and offering material support are two of the charges that may be approved by the Pentagon and that this is what David Hicks may be charged with. While material support for terrorism, one of the proposed charges, was an existing offence in US law—I acknowledge that; I have been listening and I understand what is going on—it was in the jurisdiction of the federal court applying to US citizens. The charges against Mr David Hicks in this regard represent, for the first time, the material support offence being applied to a non-US-citizen for actions in a non-US-territory before a military tribunal that has lesser standards of evidence.

Our government has maintained that Mr David Hicks could not be charged in Australia because anti-terror laws were not in place at the time of his arrest and could not be used retrospectively. I know that many senators in this place across party boundaries have an issue with retrospectivity in law, for very good reason. But it is a double standard. This is a government that says retrospective law cannot be applied in the case of a citizen in Australia, cannot be introduced into the legal system in this country, yet seems to be a cheerleader for and applauder of the United States when they introduce it to prosecute an Australian citizen.

Why is it that we are accepting that double standard? Perhaps those honourable senators from the government side who are participating in this debate today could explain this. And good on you, Senator Kemp; I see you are up next. You are first in the batting, and a former minister. Maybe you will explain to me and to the people of Australia why such retrospectivity is acceptable. Why is it that we are accepting lesser standards in a military tribunal yet theoretically applying an offence that exists in the civil courts?

The injustice of five years of detention without charge or trial, and then the possibility of there being no fair trial, is hitting home. Australian citizens are concerned about this. Australians are angry about this. I know that in many respects the government just want a political solution. But that political solution is not a matter of letting this man be charged and jettisoning him, sacrificing him, to a process that is unfair and, indeed, previously deemed illegal. That is not good enough. I really feel that a broader issue is at stake here: if we accept that this process is appropriate, humane and acceptable then we are all tainted by it. And after more than five years, it is no longer acceptable. It is time to bring David Hicks home. The government had better have a very good reason today why they are not doing that. The Prime Minister’s counterparts in many countries across the world, including the United Kingdom—another ally in this so-called war on terror—have been able to pick up the phone, exercise diplomacy, go through relevant channels and get their citizens home. Why is it good enough for them but it is not good enough for us? Why is it good enough for an Australian citizen to face this process but not good enough for a United States citizen? Why do we have this discrepancy and this hypocrisy? The government should answer me that. (Time expired)