Grant Chapman (SA, Liberal Party) Share this | Link to this | Hansard source

I inform the Senate that at 8.30 am today Senators Milne and Stott Despoja each submitted a letter in accordance with standing order 75 proposing a matter of urgency for debate. The question of which proposal would be submitted to the Senate was determined by lot. As a result, I inform the Senate that the following letter has been received from Senator Stott Despoja:

Dear Mr President,

Pursuant to standing order 75, I give notice that today I propose to move:

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

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.

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

Yours sincerely,

Senator Stott Despoja

Senator for South Australia

Is the proposal supported?

More than the number of senators required by the standing orders having risen in their places—

I understand that informal arrangements have been made to allocate specific times to each of the speakers in today’s debate. With the concurrence of the Senate, I shall ask the clerks to set the clock accordingly.

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

Rod Kemp (Victoria, Liberal Party) Share this | Link to this | Hansard source

I listened, as I always do, with great care to what Senator Stott Despoja said. In this case I have to say, Senator, that you have not managed to convince me one iota. Look at her use of the word ‘so called’ in the ‘so-called’ war on terror. Is there a war on terror or is there not? Is the Western world faced with a threat from terror? Are not our soldiers fighting in various lands? Have not our citizens been killed? Yet Senator Stott Despoja referred to the ‘so-called’ war on terror. Get real, Senator Stott Despoja. We should strip away the inaccuracies in the senator’s motion and get to the truth of the matter. Should David Hicks be repatriated and set free or should he face trial on the very serious allegations against him? Those are the two choices that are before this chamber.

As the Attorney-General reminded us just last week, ‘The advice from the independent Commonwealth Director of Public Prosecutions is that Mr Hicks could not be prosecuted in Australia.’ In essence, in seeking the return of David Hicks, Senator Stott Despoja is arguing for him to be set free to avoid prosecution. That is essentially what the senator is arguing for. We should not mince words; that is precisely her position. I do not accept that, and I do not believe that the government does either.

What are these serious allegations against David Hicks? How quickly Senator Stott Despoja tried to dismiss them as so-called charges in a so-called war on terror. What are they? Charges have been sworn against him that whilst overseas he attempted murder in violation of the law of war and provided material support for terrorism. Let us step back from the emotion of the senator’s speech and examine the facts. It is alleged that David Hicks joined Lashkar-e-Taiba, which is listed as a terrorist body by the United Nations and proscribed as a terrorist organisation in Australian law. More importantly, it is alleged that David Hicks had trained with the terrorist body al-Qaeda and that he travelled to Afghanistan with a view to fighting against the United States and other coalition forces. Al-Qaeda is well known around the world for its appalling atrocities against all types of innocent people and, of course, for the dreadful and tragic events of 11 September 2001.

Let us not mince words, Senator Stott Despoja. It is alleged that David Hicks joined forces with those who have the declared aim of killing coalition soldiers. These allegations against David Hicks are very serious, but I agree that they are untested. I welcome the fact that charges have been sworn and that Mr David Hicks is now one step further towards a trial. The US military commission system contains a number of safeguards which the US believes will facilitate a full and fair trial. Senator Stott Despoja asserts in this chamber that the process is flawed because it allows the use of hearsay evidence. In this case, Senator Stott Despoja, if you care to listen to a response to your debate, I am advised that the rules of evidence are similar to those adopted and accepted in international criminal tribunals. I am advised that hearsay evidence may be admitted where it has probative value, but it must be excluded where the evidence is proved to be unreliable.

Senator Stott Despoja also asserts that detainees may be convicted on evidence obtained by coercion. Again, the senator ignores the fact that such evidence may only be used where it has probative value and may not be used where it may cause unfair prejudice to the defendant. The military judge has the discretion to decide whether this evidence can be used. These are complex legal issues that are not to be dismissed in the cavalier way in which the senator has tried to do it. It is a serious case. It is a matter for lawyers to look very closely at these issues. The issue is that Senator Stott Despoja wishes to bring back David Hicks—

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

Five years—a very complex five years.

Rod Kemp (Victoria, Liberal Party) Share this | Link to this | Hansard source

The position of the Labor Party is clear. They believe that, despite the allegations and charges that have been sworn against him, David Hicks should be brought home. They do not believe that he should face those charges. I agree that the Australian community has a variety of views on this but, to my mind, when the Australian community learns more fully the nature of the charges that have been sworn against David Hicks I am not sure that Senator Carr will be speaking with the majority voice.

All of us agree that this matter has taken too long. The Prime Minister, Attorney-General Philip Ruddock and the Minister for Foreign Affairs, Alexander Downer, have made it clear on a number of occasions that these delays are of great concern to the government. The Prime Minister said at the end of last year:

I am not happy about how long it has taken and we will be putting increasing pressure on the Americans to stick to the timetable they have given us.

Let me stress that the government is concerned about the delay and will continue to press for a resolution of the allegations against Mr Hicks. Indeed, on 23 January this year the PM said:

The decision was taken to formally convey to the Americans our view that he ought to be charged by the middle of February.

As the Attorney-General said on Saturday:

The swearing of charges is a timely development that meets the Prime Minister’s recent call to charge Mr Hicks before mid February. However, the Government remains anxious to ensure that his case is dealt with expeditiously and fairly, and will continue to press the United States.

The Prime Minister reiterated only last night that the government will continue to press the Americans to conclude the matter quickly.

In contrast to what Senator Stott Despoja said, the idea that the government has ignored the health and wellbeing of Mr Hicks is quite wrong. The government has provided consular assistance to Mr Hicks to monitor his welfare, and Australian officials have visited him on 18 separate occasions. I understand that he refused to speak with our consul general during the last two visits; however, the consul general remains available to assist him. I believe it is unfortunate that Mr Hicks has refused to speak to the consul general.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Rubbish!

Rod Kemp (Victoria, Liberal Party) Share this | Link to this | Hansard source

I am interested in the new face of Labor. I am not sure that Senator Marshall is entirely on message with what Mr Rudd is putting out. To allege that these statements are rubbish is complete nonsense and Senator Marshall knows it. Let me state this very clearly: the Australian government treats any allegation about the abuse of any Australian detainee overseas with the utmost seriousness. The Australian government has pursued the allegations referred to by Senator Stott Despoja of mistreatment of Mr Hicks and, at the government’s request, there have been two US investigations into the allegations. Neither revealed any evidence of abuse.

The United States government has consistently maintained that it is treating the detainees humanely and in a manner consistent with its international obligations under the principles of the Geneva convention. The Australian government has also provided over $300,000 of taxpayers’ money to fund Australian legal consultants to assist in Mr Hicks’s defence.

Senator Stott Despoja and I are in agreement that action must be taken in relation to David Hicks. However, while the senator would see him returned in a circumstance where he cannot face trial in Australia, I and the government would instead see the allegations against him tested. I believe this is a very serious matter. I believe that the government has expressed its frustration about the time this has taken.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Frustration!

Rod Kemp (Victoria, Liberal Party) Share this | Link to this | Hansard source

It is frustrating. All of us would have preferred to see this matter concluded in a far more efficient fashion, but that is not the case. So we are faced with the facts as they now stand—that Senator Stott Despoja and those who support her motion would rather see Mr David Hicks returned to Australia without having to face the charges which have been sworn against him. They are serious charges. This country is involved in very serious matters in relation to terror. Therefore, I cannot support the motion moved by Senator Stott Despoja. (Time expired)

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to 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.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

Earlier today I joined a demonstration out the front of the parliament calling for David Hicks to be returned home. The view represented there was the majority view of Australians—increasingly the view of people not just on this side of the chamber but on the other side of the chamber as well—that is, to support the rights of the Australian citizen David Hicks who has been abandoned by the Howard government that refuses to stand up to the White House.

It is fantastic to see the shift in public opinion in favour of the human rights of David Hicks over the five long years that he has been held in detention. I remember October 2003 when President Bush came to visit and I and my colleague Senator Bob Brown spoke out about the failure of this government to speak up for the two Australian citizens then held in Guantanamo Bay. For doing so, there were attempts to remove us from the parliament. I am really pleased that we are operating in a different climate now where a whole lot of other people have come on board to support the rights of that one Australian citizen who is held there.

In Australian law there still exists a recognition of the US military commissions that were recognised as illegal by the US Supreme Court. They were put into Australian law in March 2004 by the government and the opposition and are still recognised in our law. I have brought forward a private member’s bill on behalf of the Australian Greens to remove that recognition in our law of US military commissions that have been found to be illegal in the US Supreme Court. So it is pleasing that we are seeing some changes in attitudes around this particular issue. I welcome them from wherever in politics they come because these are fundamental human rights that those of us who speak out are trying to protect in the case of David Hicks and other Australian citizens as well.

The Prime Minister and others in the government are making different noises to those we have heard—not to the extent of actually doing anything about getting David Hicks brought home but because there is recognition that people in the electorate are angry about five years in detention, the mistreatment and the reports of torture of Australian citizen David Hicks. The government have been scrambling to find ways to deflect this anger, so we saw the government last week spinning the story that, now that David Hicks has been charged, it is all fine and all that concern can go away. It is not the case, the charges have not been formally laid yet and all we have been told is what the prosecutors have asked to charge him with. The government seem to think that is enough to let them off the hook but I do not think it is. I do not think the Australian people will be satisfied until David Hicks is treated fairly. What is being proposed in this new US military commission is not fair.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Like an American citizen, how about the same standard as that?

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

As other senators say, it is not the way that citizens from other countries have been treated. Britain, the US and, just last week, Yemen, I think, insisted that their citizens be brought back to their countries and tried in their courts of law. There is no other country that has said: ‘Sure—go and create a kangaroo court and try our citizens. We do not care if it is not fair or representative under international law.’ All of the other countries have asked for and got their citizens returned to be tried in their courts. John Howard and this government stand out alone in that particular regard.

There is a widespread understanding that Guantanamo Bay is an appalling violation of human rights and that the legal process that David Hicks is being subjected to is a sham. I moved a motion today in the Senate highlighting the fact that as of today David Hicks has been detained for 1,889 days. Tomorrow I will move a similar motion. The day after I will move one again. Every day until David Hicks is returned to Australia, I intend to ensure that this parliament spends at least five minutes acknowledging that this man has now spent five long years in detention—and he is there because of the inaction on the part of this government—to ensure that he receives a fair trial or is brought back to Australia. Other countries have managed to achieve this for their citizens. The Australian government should be doing likewise.

This is an issue that the Greens will continue to speak out on. We are pleased to see that more and more groups within the community are joining us in calling for justice for David Hicks—the justice that he is not receiving and the justice that the Australian government currently is not standing up for him to receive. (Time expired)

David Johnston (WA, Liberal Party) Share this | Link to this | Hansard source

I want to commence my comments on this motion by looking at the context that Mr Hicks finds himself in. As we all know, on 11 September 2001 the World Trade Centre in New York was attacked and 2,752 innocent lives were taken. They were not lost; they were taken. They were murdered by terrorists. The Pentagon was attacked and 189 innocent people were murdered by terrorists. A plane was hijacked and crashed in a field in Philadelphia and a further 44 people were murdered by terrorists. Those terrorists were al-Qaeda terrorists based in Afghanistan. So 2,985 innocent American lives were taken by al-Qaeda on 11 September.

David Hicks was arrested in Afghanistan in the immediately following December—in Afghanistan, which is the home, the base and the state of, and the sovereignty giving succour to, al-Qaeda. On the United States side, they allege that Hicks has attended an advanced al-Qaeda training course. In other words, he was becoming a specialist in weapons, tactics, explosives and the deployment of those instruments in accord with the level of attacks we saw in New York and elsewhere in the United States on 11 September. He was an al-Qaeda operative, the Americans allege, who took orders from Osama bin Laden.

This is an organisation that has carried out significant and substantial terrorist attacks in Spain, with the Madrid bombing in March of 2004, and on the USS Cole, where 17 sailors were killed. The Beslan school siege is linked to them. There were the bombings of the US embassies in Kenya and Tanzania in 1998. Yemen in 1992, Somalia in 1993, Operation Bojinka, and Saudi Arabia in 1995 and 1996—the list goes on. This is one of the most dastardly, callous and murderous organisations that the world has ever seen. David Hicks was found or caught in amongst them. That is the American side. It is also alleged that Hicks conducted surveillance on United States embassies. Let us not forget that the United States is our best and most significant strategic ally, and we have an Australian citizen on the ground in Afghanistan being arrested in December 2001.

Let us look at the Hicks story. That was the American side. The Hicks story was set out on 9 December 2006 in Victoria Square at a rally that featured Kay Danes, Brian Deegan, Mem Fox, Terry Hicks—and I take it that is Terry Hicks, the father of David Hicks—Professor Leon Lack, Charles Southwood, Katie Wood et al. Their story is that David Hicks did the following. Worried by the reported massacres in Kosovo in 1999, David travelled to Yugoslavia but arrived after the fighting was over. He then went to Pakistan to study at various theological colleges. He travelled to Afghanistan and after some months decided to return to Australia. At the Pakistan border he realised he had left his passport behind and returned in a taxi to retrieve it. The taxidriver had a cousin connected with the Northern Alliance and David was captured by them as he left the taxi. A few weeks later the Northern Alliance sold David to the Americans, who had just invaded Afghanistan.

These are two stories that could not be further apart. One story is that he is a murderous terrorist and the other is that he is a theological tourist. What are the Americans or the Australians or any decent sovereign nation to do with two stories like that?

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Try him!

David Johnston (WA, Liberal Party) Share this | Link to this | Hansard source

The answer is: try him. Do not let him go. Do not release him on bail to report daily to the local cop shop. Try him—incarcerate him until the veracity of those stories is determined. The Military Commissions Act says:

Any person subject to this chapter who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism ... or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism ... shall be punished as a military commission under this chapter may direct.

‘Material support’ is defined as:

... any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials ...

He is charged with aiding and abetting a terrorist organisation, to put it in more Australian terminology.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

Is he charged or was there a press release?

David Johnston (WA, Liberal Party) Share this | Link to this | Hansard source

He has been charged with attempted murder and he has been charged with providing material support. It just goes to show how senators are paying attention to this. He has been charged with providing material support to the Taliban, material support and resources to a terrorist organisation. They are the charges. These are very serious charges. Senator Stott Despoja says that this is retrospective. She then criticises members of the government for being judge and jury. Let me say this: if these charges are retrospective, the point is one for preliminary determination by the commission, as it properly should be. We may have a different legal position in this country, but that is not the point. The legislation has been transitioned over a long period. Indeed, the offence with which Hicks is apparently charged has been on the statute books in the United States for much longer than September 2001.

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

Since 1994.

David Johnston (WA, Liberal Party) Share this | Link to this | Hansard source

Since 1994. Accordingly, justice should take its course. The process is: we have the swearing of the charges. Following the charges being sworn, there is a referral from the legal adviser to the convening authority. The convening authority is actually Judge Susan Crawford, a former judge of the US Court of Appeals for the Armed Forces. (Time expired)

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

by leave—I amend the motion in the following terms:

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 to face justice in Australia.

That is the preferred wording of the Labor Party.

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

by leave—I would like to speak briefly to the motion as amended. I can now say that it seems the opposition and the minor parties have all lined up against the government. I am not going to say any more than that. It is appropriate that we do put a united front forward because the government are in disarray on this, and they should really straighten it out.

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

Madam Acting Deputy President, I rise on a point of order. As there was an agreement on time prior to the commencement of this debate of one hour and I am the last speaker and was allocated seven minutes, I think that these interventions by both Senator Stott Despoja and Senator Ludwig should come off Senator Kirk’s time and not mine at the end.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I did notice that Senator Ludwig finished his speech a little short of 10 minutes. Your point has been noted.

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

I rise this afternoon to speak in favour of the amended motion before us. Those of us from South Australia have for some time been appalled by the detention of David Hicks, which has now been for a period in excess of five years. I can tell the Senate that in South Australia there is an increasing groundswell of members of the community who regard his ongoing detention as a grave abrogation of the rule of law. In simple terms, really, he is just an Australian citizen not getting a fair go and who is being treated as a second-class citizen when compared to the treatment that has been afforded to US citizens by the US government. I would have thought that most people in the Australian community would agree with that and see this as a pretty fundamental matter—but not the people on the other side; not the members of the Howard government. It appears that there is no-one in the Howard government who is prepared to acknowledge this indisputable fact.

The ALP, and our new leader Kevin Rudd, have said that we believe that David Hicks should be repatriated to Australia with the utmost speed and that he should be subjected to the force of Australian law. That is the reason we are now able to agree with this amended motion of Senator Stott Despoja’s, which provides in the last line that he be ‘repatriated immediately for trial in Australia’.

I must congratulate Senator Stott Despoja on the motion that she has prepared today and on the work she has done on this issue. In fact, she and I have worked together. We have put aside political differences to work together as South Australian senators, in Adelaide in our home state of South Australia, to advance this matter and to attempt to get justice for our constituent David Hicks. In fact just last month in January she and I called on the Howard government to facilitate a cross-party delegation of MPs to visit Guantanamo Bay. The purpose of our visit would be to provide support to Mr Hicks and also to inspect the conditions of his detention and to report back to the parliament. What response did we receive from the government? Absolutely none.

I have previously applied to visit my constituent David Hicks in Guantanamo Bay. In fact it was 18 months ago. Not surprisingly, I received a response from the US Department of Defense in July 2005 informing me that, with only a few exceptions, non-US nationals are not permitted to visit Guantanamo Bay and parliamentarians from third countries have not been permitted to visit the facility. I was disappointed by this response because, at that point, many members of the US congress, including their staff and members of the press, had gone to Guantanamo Bay.

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

It’s an American facility, for God’s sake, Linda!

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

Senator Ferguson points out that that is because it is a US facility. He may be interested to learn that, subsequently, in May last year a delegation from the European parliament visited and a delegation from the UK parliament—in fact, the House of Commons Foreign Affairs Committee—visited the facility in September last year.

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

And never spoke to a prisoner.

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

Senator Ferguson says they did not speak to a prisoner, which is true. However, we would still like to—

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

All the Britons have been taken back to England.

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

That is true. Senator Carr indicates that it is because the British have been returned to their own country. Our government has not been prepared to insist that our citizen David Hicks be returned, yet the UK members of parliament visited the facility, got a briefing about it and had a good chance to look around. We also would like to be able to do this, especially as we still have one of our own citizens in Guantanamo Bay.

Anyway, as Senator Stott Despoja’s motion alludes to, there are really two issues that are particularly pertinent at the moment, and I will deal with the second of them first. Senator Stott Despoja says in her motion that Mr Hicks’s mental and physical health has deteriorated in recent months, particularly after 11 months in solitary confinement, and he should be repatriated immediately for trial in Australia. I want to deal with the second aspect of Senator Stott Despoja’s motion—that is, the mental health of David Hicks. Many South Australians are very concerned about the mental health of Mr Hicks. Of course, most concerned would be Terry Hicks, with whom we are all familiar, and the other members of his family. The Minister for Foreign Affairs, Mr Downer, recently conceded that his recent statement that David was ‘fit and well’ was made on a five-minute assessment of David that was made by a US embassy staff member without any medical training.

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

That’s rubbish! It was 25 minutes.

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

Maybe it was 25 minutes. That is not what I understand to be the case, but, even if that is so, this person does not have any medical training, so how could they possibly form an opinion?

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

She is a psychiatrist.

Linda Kirk (SA, Australian Labor Party) Share this | Link to 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.

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

I think Senator Ludwig has made the statement of the year, already, when he said that the government is in total disarray over this issue. Senator Stott Despoja came into the chamber with an urgency motion and gave a very confused speech to start with. Senator Nettle then spoke in support of the motion. Senator Ludwig then came in and said the opposition could not support the motion because it did not suit their particular needs. We had Senator Carr interjecting incessantly—and we know he hates America and all things American—and then the boss must have sent a message for Senator Ludwig. The boss is very right wing and purports to love everything American. And you say we are in disarray!

I cannot believe you, Senator Ludwig; I just cannot believe you. We are ‘in disarray’ yet you have a motion before the chair which you will not support and then, after a little bit of argy-bargy, you come back with a motion that you can all now support—and we did not hear either Senator Ludwig or Senator Kirk speak to the additional words—with the words ‘to face justice in Australia’. What I want to know is: how can David Hicks face justice in Australia? He has committed no crime in Australia that I know of, no crime whatsoever in Australia, so what justice is David Hicks going to face in Australia? It is just impossible. You have not thought this through. You have made your policy on the run.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

Senator Carr interjecting—

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

You have put this down here: ‘to face justice in Australia’. Madam Acting Deputy President, I think that we gave Senator Ludwig a pretty fair run. If Senator Carr could keep his mouth shut, the rest of us might be able to too. Senators opposite—Senator Kirk in particular—talked about a delegation to Guantanamo Bay. The Americans decide who will go to Guantanamo Bay; we don’t as it is their facility. The UK foreign affairs committee that went there saw the facility—nobody knows how far they got into the facility—spoke to no prisoner and then came back and passed their judgement. If you care to read their report, you will find that it was not very critical of Guantanamo Bay at all.

Senator Stott Despoja said that senators on this side must state clearly where they stand on this issue. We intend to, Senator Stott Despoja; we intend to state quite clearly where we stand on this issue. When it comes to visiting other prisons around the world, I presume that Senator Kirk would like to go overseas to every other prison where the at least 180-odd Australians are held in custody and see what conditions they live in as well—but, no, it is just David Hicks, the martyr of the day; that is the one that you are going to put all your effort and concentration into. I never hear you complaining about the conditions that the Bali nine are facing up in Indonesia. All we hear about is what might be happening to David Hicks.

Senator Marshall wants to bring him home and try him. Under what law do you want to try him, Senator Marshall? Under what charge and under what law do you want to try David Hicks in Australia? There is simply no provision to charge David Hicks in Australia. Australian law applies to Australian jurisdiction. I have always been of the view that when you leave Australia’s shore you are subject to the law of whichever sovereign country you are visiting. In the case of David Hicks, he entered what was a theatre of war. He is a prisoner of war—that is all he is.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

No, he’s not.

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

Yes, he is.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

No, he’s not. He’s not a prisoner of war—that’s the point.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Order! Senator Carr!

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

Madam Acting Deputy President, I think I should be allowed to speak so that I can at least hear myself.

The Acting Deputy President:

Senator Ferguson, you have the call.

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

The Australian government has made no assumption in relation to Mr Hicks’s guilt or innocence. It has made no assumptions whatsoever.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

Senator Carr interjecting—

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

Senator Carr, the Australian government has made no assumptions in relation to his guilt or innocence. We say that the process that has been put in place must be allowed to go on because it is important. It is the only way that David Hicks can be put before a court. He is in America because he is their prisoner, not ours. We in the Australian government—and the Prime Minister has repeated this—have been concerned all along at the delays in progressing the case. But we need to remember that the first charges were laid after he had been held for two years, Hicks’s lawyers then appealed, the Supreme Court upheld their appeal and so they started again. David Hicks has no need to be in detention. If he had not been in Afghanistan in the first place, he would not be in detention.

Opposition Senators:

Opposition senators interjecting—

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

He would not be there if he had not been in Afghanistan in the first place. So when he goes to another country and is captured—

Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Industry) Share this | Link to this | Hansard source

Senator Carr interjecting—

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

It is not against the law to be in Afghanistan. Under our law now it is illegal to train with a terrorist organisation. As for you people who would be prepared to defend David Hicks, those of you who want him to go scot-free—that is your real intention; you want him to go scot-free—

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

That’s not true, and you know it.

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

It is. That is your intention, because you know—

Opposition Senators:

Opposition senators interjecting—

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

If you do not want him to go scot-free, you tell us what you are going to charge him under if you bring him back to Australia—and that is what you want; you want him repatriated to Australia to face justice in Australia. Tell us under what law and on what crime he has committed he can be brought to justice in Australia. Not one of you can answer that question. It is all to do with the process where you feel some public sympathy, and a lot of Australians feel some sympathy for someone who has not undergone a trial after this period of time. But I tell you this: not one of you who have added this—‘to face justice in Australia’—can say under what law he will be charged. How can he face a court in Australia when there is no charge to answer in Australia? Can you please tell us what you want to charge him under.

Opposition Senators:

Opposition senators interjecting—

Alan Ferguson (SA, Liberal Party) Share this | Link to this | Hansard source

If you want him to come back to face justice, you have got to be able to tell us what crime he has committed and what part of Australian law would allow him to face justice in Australia. I will be opposing this motion and I hope so will be all of my colleagues. (Time expired)

Question put:

That the motion (Senator Stott Despoja’s), as amended, be agreed to.