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

My question is addressed to Senator Ellison, Minister representing the Attorney-General. Is the government aware of recent criticisms that have been made by the president of the Law Council of Australia in relation to the US Military Commissions Act 2006? The press release says:

The law allows for admission of certain types of evidence, which may have been obtained by unacceptable methods of interrogation. It also strips away habeas corpus—the centuries old right of a detainee to challenge unjust imprisonment.

                 …         …         …

… David Hicks may still be convicted on evidence which he is never allowed to see and which has been coerced, after prolonged interrogation, from witnesses he is never given the opportunity to cross-examine.

I ask the government if these conditions are acceptable to the Australian government and, given that David Hicks is currently being held without charge, why is the government not seeking his repatriation at this time?

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

As we know, the President of the United States signed new legislation on military commissions on 17 October this year. We have engaged in discussions with the United States administration in relation to the impact of that legislation on the Hicks case. The previous assurances which were given to the Australian government in relation to Mr Hicks stand, and of course they cover a variety of issues, such as onus of proof, standard of proof and other matters which you would normally see in a criminal trial in the United States. But I can say that the Attorney-General has had several discussions with United States Attorney-General Gonzales. Most recently, he met with him on 29 September this year, during which he emphasised Australia’s desire to see Mr Hicks dealt with as soon as possible. It has been a matter of record that, from the Prime Minister downwards, whenever we have dealt with this issue with the United States, we have made it very clear that Mr Hicks should be brought to trial as soon as possible and that he has been held for too long.

In relation to the details surrounding the reconstitution of the military commission, we understand that there are also regulations which are to be promulgated in the United States and that they have been the subject of discussions, as I said. Certainly, there are a range of issues which are under discussion. I will take Senator Stott Despoja’s question on notice in relation to the other particular issues which she has raised and take them up with the Attorney-General. But I can say that there are a range of discussions ongoing at the moment with the United States authorities. The legislation, albeit in place, has regulations which will also impact on the constitution of the military commission, and of course we are pursuing that with the United States.

In relation to the return of Mr Hicks to Australia, we have made it very clear previously that the activity which is alleged against Mr Hicks was not against the law of Australia. He was apprehended by the United States authorities, and if he were returned to Australia he would not be able to face prosecution for those alleged activities. We have always said that a military commission is appropriate to deal with those issues and that that is the course of action to take. However, we are in the process of negotiating with the United States, in view of the reconstitution of the military commission, any aspect of his sentence being served in Australia should Mr Hicks be sentenced. But of course he does have the presumption of innocence accorded to him in this matter. We are pursuing the issue of him being able to serve any sentence in Australia if he is convicted and sentenced. We had an agreement in relation to that under the previous arrangements, and we are now pursuing this to see that they apply to these new arrangements.

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

Mr President, I ask a supplementary question. I thank the minister for his answer. I understand that he is waiting to hear about the regulations, but can I get clarification: are the government currently satisfied with the legislative framework that is contained in the Military Commissions Act at this point in time? When the government mentioned the assessment of the impact of the newly reconstituted military commission process on the case of David Hicks, did the government reach a conclusion in that assessment? Did they assess that it would have a negative or a positive impact on the case? Given the comments by the minister regarding the sentencing and possible jail time in Australia or other options for David Hicks, doesn’t it concern the government that he currently is not charged with anything? There are no charges pending. Doesn’t that therefore alter the government’s perspective on whether or not Mr Hicks should be repatriated?

Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I should point out that Mr Hicks was previously charged. If I recall correctly, he faced three charges. There was the appeal—the Hamden-Rumsfeld case—which put proceedings in abeyance. A decision was handed down in relation to that. As a result of that decision, alterations had to be made to the constitution of the military commissions. As we understand it, that has been done, and the legislation I mentioned earlier reflects that. We do have ongoing discussions with the United States authorities in relation to how this impacts on the Hicks case. But I think senators should remember that Mr Hicks has previously been charged. Those charges were not continued with because of the Hamden-Rumsfeld decision, which was the subject of appeal and held matters up. But, in relation to the other matters raised by Senator Stott Despoja, I will raise them with the Attorney-General and see what I can bring back to the Senate.