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

Labor will not support either the Democrats’ motion or the Greens’ motion on David Hicks for the simple reason that the motions do not include the words ‘to face justice in Australia’. It is my understanding that the shadow Attorney-General contacted both the Greens and the Democrats in order to rectify this deficiency but our offer to improve their motions was declined. That is a disappointment. Let us consider what we do know about this matter.

There is a great deal of serious legal commentary to the effect that if David Hicks is guilty of things which have been alleged against him by the United States authority then he is guilty of a number of breaches of Australian law. Advice given to me by the shadow Attorney-General is that there is no legal impediment preventing Mr Hicks’s trial in Australia under the existing laws of the land and without retrospective effect. However, there may or may not be an evidential impediment. The question is left open.

The Attorney-General, Mr Ruddock, contends that the problem is not a matter of insufficient law but instead a matter of insufficient evidence. This is truly a curious conclusion from the first law officer of the land because Labor understands that neither the Attorney-General’s Department nor the Director of Public Prosecutions, Damian Bugg AM QC, have seen the evidence against Mr Hicks. Yet the Attorney is so bold as to pre-empt it. Given expert legal commentary maintains that the allegations against David Hicks can be considered under Australian criminal law, it is curious that the first law officer of the land would make so simple an error as to assess a case before seeing the evidence. For the benefit of the Attorney, that is what lawyers usually like to call ‘prejudice’. The Attorney claims his pre-emption is based on advice from the Director of Public Prosecutions. If this is so, let him release it because five years have now passed. If the Attorney-General has that advice, it is really now incumbent upon him to ensure that there is clarity.

We are now at that point where even the usual caveats that surround legal advice should be swept aside and it should be provided. That is the challenge that the Attorney-General should meet. It is the case that this government have, in other instances, found the need to provide the legal advice and have sought to table it themselves. So it is not a case that there is a hard and fast rule that stops them completely in their tracks. They can do it if they are so minded. They have done it in the past.

This is not the Attorney-General’s only failing. Claims by David Hicks’s lawyers that he is in poor shape and showing symptoms of mental deterioration require a proper response from the Attorney-General. Mr Ruddock cannot continue to sit on his hands while evidence of David Hicks’s improper treatment and deteriorating physical and mental condition continue to mount. The Attorney-General continues to claim that David Hicks’s situation is different from that of the British citizens who were returned to Britain from Guantanamo Bay. Both David Hicks and the British citizens were mentioned as eligible to be charged in the same US presidential decree. The British government then took up the issue with the US authorities, leading to its citizens’ return to Britain. However, the Australian government took no such action.

Finally, let us address the issue of whether the US law under which Mr Hicks is to be tried is retrospective. The law, the Attorney-General insists, is not retrospective. The Attorney-General—I think and Labor thinks—is poorly advised. Mr Hicks is not to be tried under an offence as it was known before it was codified, despite the fact that the codification occurred after his alleged offence. What the Attorney has obviously failed to grasp is that by the very act of codification the law is different from that which may have previously existed as an offence through the criminal branch of the common law in that land.

It is manifestly absurd to suggest that a codified offence is identical to one that is uncodified. The mere act of codification changes how judges may apply the law. I would have thought that is, one could say, law 101 for the Attorney-General to understand. The Attorney-General’s ineptitude in this matter is only matched by the bumbling buffoonery of the Minister for Foreign Affairs. The minister’s latest embarrassment concerned his comment that Mr Hicks’s mental health was nothing to worry about, later revealed to have been based on a five-minute viewing by US dignitaries. In these circumstances, it is usually wise to advise a minister to stick to what they know. However, I have observed the minister’s answers in relation to the Australian Wheat Board and, given the futility of that advice, in this instance I will restrict myself instead to observing that a five-minute viewing does not constitute an independent psychiatric assessment. That is clear. Rather than compounding his errors with more useless assurances, the minister should be seeking permission for Melbourne psychiatrist Professor Paul Mullen, who visited David Hicks in February 2005, to make a follow-up assessment.

Mr Hicks is entitled to a fair trial and fair treatment, not more and not less. That is the point that is at stake here. It was the case and it is noteworthy that the US congress was not prepared to allow US military commissions to try American citizens. The United States military commission rules as announced are not fair. They lack essential guarantees of independence and impartiality. For the benefit of senators, here are the rules. They provide for the jury to be comprised of military officers. They do not permit the accused or their defence counsel to be privy to all the evidence. They do not recognise habeas corpus—that is, no imprisonment without a trial. They do not exclude hearsay evidence, which denies the accused the opportunity to confront his accusers and cross-examine, and this is a breach of the Australian Criminal Code in itself. They do not exclude evidence obtained by coercion—practices amounting to coercion have been officially sanctioned for use in Guantanamo Bay. Coercion techniques breach the Geneva conventions.

Labor welcomes the comments of Ms Jodeen Carney, the leader of the Northern Territory Country Liberal Party, who today rightfully condemned the Howard government for its neglect of Mr Hicks. We hope that Ms Carney’s comments will encourage her colleagues in the federal Liberal and National parties also to speak out. However, the motion before us as articulated seems to demand unconditional freedom. Justice is apparently all that Mr Hicks’s father, Terry Hicks, has ever asked for. The motion before us goes further than that. That is not Labor’s position. We can agree with the sentiment that has been articulated. We can agree with the basics that have been put but the words do not reflect Labor’s position. My understanding was that it was put to you to change the wording so that we could get a unanimous position from both the opposition and the minor parties to show up the real villains in this—that is, the Liberal-National coalition government. We want Australian law applied because the rule of law as we know it is, in this country, not being applied through these military commissions. Labor does not seek to pre-empt the rule of law as the Howard government does in practice, nor as the Greens and Democrats seem to do in their motion. We are therefore, as I have said, opposed to the motion.