Linda Kirk (SA, Australian Labor Party) Share this | Hansard source

This is all news to me. In relation to Mr Hicks’s welfare, the Australian people want to see an independent medical opinion, not that of somebody from the US embassy. This government should be demanding that an independent psychiatrist go into the facility and assess the mental health of one of Australia’s citizens, David Hicks.

In the time I have available I also want to briefly address the first part of Senator Stott Despoja’s motion, which goes to the nature of the military commission process and how flawed it is. In her motion Senator Stott Despoja referred to the fact that the military commission process allows convictions to take place on the basis of evidence obtained by coercion and hearsay and strips away habeas corpus. The Military Commissions Act 2006, passed by the US congress last year, is the second attempt by that legislature to put in place a military commission system that will meet constitutional standards. Of course, the first attempt was found to be unconstitutional by the US Supreme Court in Hamdan v Rumsfeld.

All this act effectively does is replace the illegal military commission system that existed before with a system that simply fails to comply with the standards set down by the Supreme Court. What does it do? It attempts to remove the application of the Geneva conventions, which, the Supreme Court found, the old system violated. It bars aliens held as enemy combatants from filing a suit by the writ of habeas corpus to challenge the legality of their detention or to raise claims of torture and other mistreatment. This provision covers all noncitizens and even applies after the detainees are released. As a result, detainees who have been tortured or otherwise mistreated are forever barred from going to a court to seek redress and have heard what happened to them whilst they were in detention.

There are many other problems with the Military Commissions Act. As I mentioned, it allows military judges to admit coerced statements. It creates a national security privilege, which allows the government to keep classified information secret from military defence counsel. It permits a military commission judge to admit hearsay evidence that would not be admissible in a court martial. Finally, but certainly not least, the act gives the Secretary of Defense unprecedented power to prescribe military commission procedures, rules and regulations for the manner in which the military judges are selected.

The Military Commissions Act 2006 has been criticised in the United States and elsewhere as unconstitutional. Besides authorising substandard military trials for suspected terrorists, the new laws bar detainees from asserting their rights to habeas corpus and they attempt to render the Geneva conventions unenforceable in court. I, like many South Australians, am extremely angry that this government believes Mr Hicks will be given a fair trial under this system. All Australians have the right to know that, if they get into trouble with the law overseas, the Australian government will stand up for their right to be tried through a fair process. In this case, the Howard government has failed this basic test.