Extract from Hansard - LEGISLATIVE COUNCIL - Wednesday 6 December 2006


Adjourned debate on motion of Hon. M.C. Parnell:

1. That the Legislative Council calls on the Australian government to insist that citizen of South Australia, Mr David Hicks, be treated the same as citizens of the United States of America—no more, no less.

2. That this resolution be forwarded to the Minister for Foreign Affairs.

(Continued from 22 November. Page 1104.)

The Hon. R.D. LAWSON The Hon. R.D. LAWSON: I agree with Prime Minister Howard that the case of David Hicks should be expedited. The case should have been resolved well before now, and I deplore the failure of the United States authorities to conclude the matter before now. However, I will not be supporting this motion, which is a disingenuous attempt to cause political embarrassment to the Australian government. It is also a meaningless nonsense in a literal sense. The motion is that the council calls on the Australian government to insist that a citizen of South Australia, David Hicks, be treated the same as citizens of the United States of America—no more, no less. I ask the question: why should Mr Hicks be treated as an American citizen? He is not an American citizen. Indeed, if reports about his activities in Bosnia and Afghanistan are correct, he does not particularly want to be an American citizen or, indeed, an Australian citizen; in fact, we read that his advisers applied for a British passport. Mr Hicks probably would not want to become or be treated as an American citizen.

We should be in no doubt that this motion is designed to criticise the Australian government. I believe that that particular criticism is misdirected. It should be directed at the United States government, which has failed to comply with United States law in relation to Hicks. The basis for this claim is the decision of the Supreme Court of the United States in Hamdan v Rumsfeld, decided on 29 June this year, a decision to which I will come in some detail. So, the criticism of the handling of the Hicks case comes from the highest court in the United States.

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My source for these comments is not some left wing academic, not some anti-American, anti-globalisation, rent-a-crowd protester, but the highest court in the United States—a body which President Bush's detractors frequently describe as a right wing conservative body which actually delivered him a second term in office. The substance of the mover's speech is that Hicks should be returned to Australia where, because his actions did not, according to Attorney-General Ruddock, contravene Australian law at the time that he committed them, he should go free.

Why should Mr Hicks be returned to Australia? Lazlo Toth, who famously vandalised the Pieta in the Vatican in 1972, was an Australian, but was he returned to Australia? He eventually came back to Australia, but he was dealt with by the Italian courts. Should Schapelle Corby have been returned from Indonesia to Australia to face an Australian court? Should Chambers and Barlow have been returned to Australia to face an Australian court? Should the Bali Nine be returned to Australia?

There is no basis, in my view, for claiming that Mr Hicks should be returned to Australia simply because he is an Australian citizen—a country which he was happy enough to leave. Of course, if the American authorities have resolved not to charge him, they should release him to Australia or to Afghanistan or wherever else he wants to go; just as they released Mamdouh Habib in January 2005 after three years in captivity, but they released him on the basis that he did not face any charges.

Before coming to the court decision, I should mention some of the background facts, because it appears to me that, whilst a lot of people speak on the subject of Hicks, not too many bother to examine the underlying facts. I take my facts as to the background of Mr Hicks from the website of Amnesty International, which is inclined to his case and would be regarded as a pro Hicks source. According to Amnesty International, Mr Hicks trained with the Kosovo Liberation Army in Kosovo in 1999—having left Australia. He returned to Australia and then went to Pakistan—according to Amnesty International and Hicks—to study at an Islamic school. After September 11, he telephoned his father from Afghanistan and told him then, for the first time, that he was going to help the Taliban defend Kabul from the Northern Alliance. He was, in fact, captured by the Northern Alliance on 9 December 2001 and handed over to the United States forces. He was questioned by United States and Australian officials and later transported to Guantanamo Bay in Cuba.

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On 13 November 2001, which was shortly before his capture, President Bush signed a military order in which named individuals, including Hicks, were authorised to be detained and tried by military commission. A number of military commission orders were later issued to establish the procedures for trial. The procedures included the following process, which I take from a report prepared by Lex Lasry QC, an observer from the Law Council of Australia, who attended a preliminary hearing in Guantanamo Bay on charges against Hicks in September 2004.

The procedures for the military commission then outlined included the following: the accused must be given the charges he faces in a comprehensible form; he is presumed innocent; and the standard of proof is proof beyond reasonable doubt. The accused must have access to evidence to be led at his trial and any evidence which exculpates him. The accused is not required to give evidence and no adverse inference is permitted to be drawn if he does not do so. Investigative and other resources are to be made available to the accused. Interpreters are required to be provided if necessary. The accused may be present, unless he is disrup­tive. Unless the commission orders otherwise, evidence is to be led. Senten­cing procedures shall be provided to the accused. The trial of an accused person must be open to the public except where the presiding officer decides otherwise.

An honourable member interjecting:

The Hon. R.D. LAWSON: The honourable member interjects, `Can he choose his own lawyers?' There are limitations on the legal representation available to him, but because of the exigencies of the service, security and other issues, appropriate measures are in the executive orders. Those representing him have to have particular security clearances.

The Hon. Sandra Kanck interjecting:

The Hon. R.D. LAWSON: They are precisely the sort of rules we have and which this parliament passed last year. The charges against Mr Hicks, as they originally stood, were as follows:

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(a) Between January 2001 and in or about December of that year he wilfully and knowingly joined an enterprise of persons who shared a common criminal purpose and conspired and agreed with certain persons, including Osama bin Laden and other members and associates of the al Qaida organisation known and unknown to commit the following offences triable by a military commission: attacking civilians, attacking civilian objects, murder by an unprivileged belligerent, destruction of property by an unprivileged belligerent, and terrorism.

(b) Between 11 September 2001 and 1 December 2001, as a member of the above conspiracy he attempted to murder diverse persons by directing small arms fire, explosives and other means intended to kill American, British, Canadian, Australian, Afghan and other coalition forces, while he did not enjoy competent immunity, and such combat taking place in the context of an associated armed conflict.

(c) Between 1 January 2001 and 1 December that year, intention­ally aiding the enemy, to whit al Qaida and the Taliban, such conduct taking place in the context of and associated with armed conflict.

Those were the charges that the American authorities laid against Mr Hicks in 2003.

The Hon. Sandra Kanck interjecting:

The Hon. R.D. LAWSON: As the honourable member says, he is presumed not guilty. These charges ultimately were thrown out by the Supreme Court of the United States. They have been ruled inappropriate charges in other related cases. The point I am making is that the delay caused by those charges being thrown out is actually a consequence of the United States authorities not following United States law and laying appropriate charges. If they had done so, and done so competently with a full understanding of their own laws, these delays would not have occurred.

I am not the only person to deprecate the delays that have occurred here. The commonwealth Attorney-General, the Prime Minister and the foreign minister have deprecated the fact that there have been delays. Some of the delays are in consequence of motions taken by Hicks' advisers, but the important thing to my mind in consideration of this motion, which actually seeks to criticise the Australian government, is that it is the American government that has failed to follow its own processes, point the finger and the blame where it lies rather than seeking to make political advantage here. The background, which the charge sheet lays against Mr Hicks, is somewhat more fulsome in its detail than the Amnesty International website reveals about him.

I think the background of this individual is important in the context of this military conflict and in the context of the fact that he finds himself charged before a military commission in the United States. It is said:

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×Hicks joined the KLA in Kosovo in 1999 having had military training and engagement in hostile action;

×He converted to Islam in 1999;

×In early 2000 he joined . . . (LET) in Pakistan—

that is a terrorist organisation, the name of which I will not seek to pronounce—

×He trained for two months at an LET camp in Pakistan;

×He engaged in hostile action on the Pakistani side of the dispute with India over Kashmir;

×In January 2001, he travelled to Afghanistan to attend al Qaida training camps;

×In January 2001 he went on to an al Qaida guesthouse;

×He later travelled to al Qaida's al Farouq training camp and completed an eight week course;

×In April of 2001 he completed a further seven week al Qaida course;

×He had a conversation with Usama bin Ladin about translating training camp manuals into English;

×In June 2001, Hicks travelled to Tarnak Farm for an urban training course;

×In August 2001, Hicks is alleged to have participated in an advanced al Qaida course in Kabul dealing with information collection and surveillance;

×It is alleged that he was asked whether he would take part in a martyr mission although his response is not alleged;

×After being in—

The Hon. R.P. Wortley: What has he blown up? Hicks wasn't over there flying planes. You people are a joke. It's an absolute joke.

The Hon. R.I. Lucas: What about your family?

The PRESIDENT: Order! The Hon. Mr Lawson has the call.

The Hon. R.P. Wortley: I feel as much about it as you do but I won't go around screwing other people, innocent people, who had nothing to do with it—


The Hon. R.P. Wortley: He ought to have invaded Saudi Arabia. That is where the nationalities—

The PRESIDENT: Order! The Hon. Mr Wortley will come to order.

The Hon. R.P. Wortley: You ought to be ashamed of yourself. You've been grovelling up Bush's backside for years. You're an absolute disgrace.

The PRESIDENT: Order! The Hon. Mr Lawson has the call.

The Hon. R.D. LAWSON: The report continues:

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×After being in Pakistan on 11 September 2001, he returned to Afghanistan `to rejoin al Qaida associates';

×During hostilities with US forces, Hicks had been stationed at Qandahar airport and guarded a Taliban tank;

×On or about 9 November 2001, Hicks, with John Walker Lindh, engaged in combat with US forces;

×In December 2001, he was arrested.

I think it is important to place on the record the background that is alleged against this man. This is the reason why he finds himself before a military commission in a foreign land. This is why he does not, in my view, have an immediate claim to be returned to Australia where he will not be called to account for any of his actions. I am not suggesting for a moment that he is guilty of any offence but he is before a military commission and he ought be dealt with by that commission. I deplore the fact that it has taken as long as it has for those proceedings to be concluded. In September of 2004, there was a preliminary hearing in Guantanamo Bay. This was the hearing attended not only by Australian consular representatives, and I mention here in passing that Hicks has had consular access throughout, as have all other Australians who are caught up in criminal justice and other issues beyond our shores. He has not received special treatment but he has received the same treatment as other Australian citizens have received.

There were a number of challenges at that preliminary hearing. There were challenges to the independence of the officers appointed to the military commission and the process of that appointment. Once again, these are challenges which, as I read the decision of the United States Supreme Court, were upheld by that court. So, there is yet another example of the American authorities undertaking a process that ultimately proved not to be in accordance with their own law.

A number of motions were moved relating to the competence of the court. Other proceedings were taken, and Mr Lasry concluded that he considered that the all-encompassing charge of conspiracy was inappropriate, and I think the following passage accurately summarises the effect of what he is saying:

. . . if a person in David Hicks' position is to be dealt with militarily rather than by the civilian criminal law, a trial in the form of a court martial under the Unified Code of Military Justice would be the appropriate formula. That does seem to have the obvious benefits of a more independent and impartial process and a genuine appellate process leading, ultimately, to the United States Supreme Court.

Those words of Mr Lasry are, I think, prescient, because in the decision of the United States Supreme Court a similar result eventuated.

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I turn now to the decision of that court. I am a great believer in the rule of law, and I believe that this judgment of the United States Supreme Court also shows that, in the United States, the rule of law does apply and that the many people who claim that Guantanamo Bay was established for the purpose of putting the American military outside the jurisdiction of its courts and its constitution are misguided, because it is abundantly clear in this long judgment that the reach of the United States law and the rule of law extends to Guantanamo Bay.

One of the cases relied upon by the United States Supreme Court in relation to the powers of military commissions was a case called Quirin, which was decided by the Supreme Court in 1942. This was one of the uses that the military commission relied upon. That case concerned seven German saboteurs who were captured on arrival by submarine in New York and Florida in 1942. The president convened a military commission to try the saboteurs, who filed for habeas corpus petitions in the United States District Court, challenging their trial by commission. The Supreme Court in 1942 granted the saboteurs' petition for certiorari, and then went on to say that a military commission was appropriate in that case. In the course of that judgment, the Supreme Court said:

. . . in view of the public importance of the questions raised [by the cases] and of the duty which rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty, and because in our opinion the public interest required that we consider and decide those questions without any avoidable delay.

So, there we find, in the heat of the Second World War in 1942, when saboteurs were captured—aliens—they were dealt with by the American court system expeditiously, because they regarded it as appropriate then to do so. I think it is lamentable that, in this particular case, so long has expired before the Hamdan case wound its way through the American court system.

I should mention, as I imagine members would have assumed, that Hamdan is a person in the same position as Hicks in Guantanamo Bay. The first point coming out of the decision is that the justices of the Supreme Court acknowledged the need for expedition, even in matters of this kind. They refer to the common law governing military commissions, examine the very long history of these commissions and indicate that there are three grounds upon which commissions under American law can be established.

I might mention the three grounds for completeness. First, they are substituted for civilian courts at times and in places where marshal law has been declared—something that is not relevant in this present case; and, secondly, they have been established to try civilians as part of a temporary military government over occupied enemy territory or territory regained from an enemy where civilian government cannot and does not function. Clearly, that is not the situation in relation to this particular military commission.

The third type of commission is convened `as an incident to the conduct of war where there is a need to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war'. It is this type of military commission which Mr Hicks is before, and it is this type of military commission that was relied upon by the United States government in 1942 in the case of Quirin, which is described on this occasion by the Supreme Court as `the high watermark of military power to try enemy combatants for war crimes'.

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The court went on to examine whether or not it is appropriate to try before a military commission the offence of conspiracy. The United States government argued strongly before the Supreme Court that it was appropriate to do so, but in the end the court decided that conspiracies should not be permitted to be tried before these military commissions; and I quote:

At a minimum the government must make a substantial showing that the crime for which it seeks to try a defendant by military commission is acknowledged to be an offence against the law of war. That burden is far from satisfied here. The crime of conspiracy has rarely, if ever, been tried as such in this country by any law of war military commission not exercising some other form of jurisdiction and does not appear in either the Geneva conventions or Hague conventions, the major treaties on the law of war.

I read that passage because that indicates this Supreme Court, so often criticised by those on the left, is here assiduously applying the law notwithstanding strong submissions from the United States government to the contrary. In conclusion, as I mentioned earlier, the three principal charges that I read out were the original charges against Mr Hicks and they are all charges of conspiracy. The court says:

International sources confirm that the crime charged here is not a recognised violation of the law of war.

The court continues:

The charge's shortcomings are not merely formal, but are indicative of a broader inability on the Executive's part here to satisfy the most basic precondition—at least in the absence of specific congressional authorisation—for establishment of military commissions: [namely,] military necessity. Hamdan's tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from any active hostilities. . . Hamdan is charged not with an overt act for which he was caught redhanded in the theatre of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which long predated the attacks of September 11, 2001 and the AUMF. That may well be a crime but it is not an offence that `by the law of war may be tried by military commission'. . . None of the overt acts alleged to have been committed in furtherance of the agreement itself is a war crime, or even necessarily occurred during time of, or in a theatre of, war. Any urgent need for imposition or execution of judgment is utterly belied by the record. Hamdan was arrested in November 2001, and he was not charged until mid-2004. These simply are not the circumstances in which, by any stretch of the historical evidence or this court's precedents, a military commission established by Executive Order under the authority of Article 21 may lawfully try a person and subject him to punishment.

I believe that passage is equally applicable, on my under­standing of the facts, to the situation of Mr Hicks. I think it shows, once again, that those conducting this process have not followed American processes—processes which they ought to have followed and which they could have followed.

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The Hon. Sandra Kanck interjecting:

The Hon. R.D. LAWSON: The Hon. Sandra Kanck says, `Why should we follow American processes?' The man has been captured by American forces at war in Afghanistan—a war in which this country, the United Kingdom and others were engaged against the Taliban regime which, by a resolution by the United Nations, had been declared illegal.

The Hon. Sandra Kanck interjecting:

The Hon. R.D. LAWSON: If the honourable member wants to argue that we should not have been at war in Afghanistan, that is an entirely different question. We were at war in Afghanistan and people, including Australian soldiers, were being shot at and being shot.

The next point I want to mention in passing relates to the procedures adopted by the military commission. I read them out from the report of Mr Lasry earlier, but the Supreme Court held that not those particular rules but other rules ought to apply to these military commissions. The court said that the rules applicable in courts marshall must apply; that is, the rules which apply to American servicemen appearing before American courts marshall must apply. The court went on to state:

Since it is undisputed that commission order No. 1 deviates in many significant respects from those rules, it necessarily violates Article 36B.

In the court below, as I understand it, it had been held that the Geneva Conventions did not apply. However, the Supreme Court overruled that conclusion. It stated:

. . . the Court of Appeals concluded that the Conventions did not in any event apply to the armed conflict during which Hamdan was captured. The court accepted the Executive's assertions that Hamdan was captured in connection with the United States' war with al Qaeda and that that war is distinct from the war with the Taliban in Afghanistan.'

That was the rather sophisticated argument of the Bush administration. The court continued:

The conflict with al Qaeda is not, according to the government, a conflict to which the full protections afforded detainees under the 1949 Geneva Conventions apply because Article 2 of those Conventions. . . renders the full protections applicable only to `all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties [to the Convention]. . . Since Hamdan was captured and detained incident to the conflict with al Qaeda and not the conflict with the Taliban, and since al Qaeda, unlike Afghanistan, is not a High Contracting Party, that is, a signatory of the Conventions, the protections of those Conventions are not, applicable, it is argued, to Hamdan.

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That argument by the executive was rejected by the Supreme Court. It described the reasoning of the Court of Appeals as erroneous and went on to say:

Common Article 3 is applicable here and, as indicated above, requires that Hamdan be tried by a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilised peoples. . . The procedures adopted to try Hamdan, similar to the procedures being adopted to try Hicks, deviate from those governing courts-martial in ways not justified by any evident practical need and, for that reason, at least, fail to afford the requisite guarantees. If the various provisions of Commission Order No. 1 dispense with the principles articulated in Article 75 and indisputably part of the customary international law, then the accused must, absent disruptive conduct, be present for his trial and must be privy to the evidence against him.

That aspect of the capacity to take evidence in secret in the absence of the accused person was struck down by the Supreme Court, which concluded:

We have assumed, as we must, that the allegations made in the government's charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge, namely, that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians and who would act upon those beliefs if given the opportunity. It bears emphasising that Hamdan does not challenge, and we do not today address, the government's power to detain him for the duration of active hostilities in order to prevent such harm but, in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the rule of law that prevails in this jurisdiction.

It is a great pity that those advising the Bush administration in the establishment of military commissions and the trial of Mr Hicks did not pay greater attention to these important provisions at the outset. They should have, but they did not. The American authorities have now assured the Australian government, which has been pressing the point, that the Hicks matter will be brought to an end as soon as possible. I emphasise that this motion seeks to attribute blame in the wrong direction. I believe that it is misguided and I will not be supporting it, notwithstanding all the reservations I have expressed about the way in which the case has been handled thus far.

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The Hon. SANDRA KANCK The Hon. SANDRA KANCK: Innocent until proven guilty is the basis of our legal system and yet, on Saturday, it will be five years since David Hicks was captured by the Northern Alliance in Afghanistan and handed over to US troops—and still he is imprisoned and still he is untried. If any person in South Australia had to wait that long for their day in court, there would be an outcry. It took 2½ years for any charges to be laid against Hicks, and he is still languish­ing in Guantanamo Bay with no charges having been laid against him at the present time.

This motion refers to being treated equally as a US citizen. I wonder how many US citizens remain in a prison anywhere in that country untried for more than five years. The US Attorney-General, Alberto Gonzales, recently said that the Guantanamo Bay inmates can remain in custody indefinitely. What sort of a justice system has our Prime Minister left David Hicks (an Australian citizen) in?

There are some basic principles of justice that ought to be involved in this. By doing a quick web search, I found many people who agree that basic principles of justice should be upheld in regard to David Hicks. Here are some that I pulled off from some Google searching: former Australian Governor-General, Bill Hayden; Australian Catholic bishop, Christopher Saunders; former Liberal Australian prime minister, Malcolm Fraser; British Attorney-General, Lord Goldsmith; British peer, Lord Steyn, who described what is going on at Guantanamo Bay as being `a monstrous failure of justice'; the Red Cross—hardly a radical organisation; Amnesty International; former Federal Court judge, John Merkel; former New South Wales Liberal attorney-general, John Dowd; US Navy lawyer, Lieutenant-Commander Charles Smith; Australian Catholic bishop, Kevin Manning; Sydney Morning Herald journalist, Alan Ramsay; former US Army chaplain, Captain James Yee; and current federal Liberal MP, Dana Vale.

Britain has gone to the US and successfully fought for the release of all British citizens who were detained at Guantanamo Bay. Afghani and Pakistani officials have done the same with their illegally detained citizens. France, Spain, Sweden, Russia and Saudi Arabia have all gone in to bat for their citizens. Yet, to his and our shame, our Prime Minister refuses to do the same for an Australian citizen. Bin Laden's bodyguard has been released; so, too, has the Taliban ambassador to Pakistan but, still, David Hicks is left languishing at Guantanamo Bay by Australia's Prime Minister.

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I want to read most of an affidavit signed by David Hicks on 5 August 2004. He says, from point (5) onwards:

I have been beaten before, after and during interrogations.

I hope Mr Lawson is listening to this. It goes on:

6. I have been menaced and threatened, directly and indirectly with firearms and other weapons, before and during interrogations.

I do not know whether Mr Lawson thinks this is okay, but I do not. It continues:

7. I have heard beatings of other detainees occurring during interrogations, and observed detainees' injuries that were received during interrogations.

8. I have been beaten while blindfolded and handcuffed—

this is justice, Mr Lawson—

9. I have been in the company of other detainees who were beaten while blindfolded and handcuffed. At one point a group of detainees, including myself, were subjected to being randomly hit over an eight-hour session, while handcuffed and blindfolded.

I assume, Mr Lawson, you might have some problems with that.

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The PRESIDENT: The honourable member will address her remarks through the chair.

The Hon. SANDRA KANCK: I will do so, Mr President. The affidavit continues:

10. I have been struck with hands, fists and other objects, including rifle butts. I have also been kicked. I have been hit in the face, head, feet and torso.

I imagine, Mr President, that Mr Lawson might think that this is an okay way for an Australian citizen to be treated.

11. I have had my head rammed into asphalt several times (while blindfolded).

12. I have had handcuffs placed on me so tightly and for so long (as much as 14 to 15 hours) that my hands were numb for a considerable period thereafter.

13. I have had medication—the identity of which was unknown to me despite my requests for information—forced upon me against my will. I have been struck while under the influence of sedatives that were forced upon me by injection.

Mr President, I wonder what Mr Lawson thinks about that.

14. I have been forced to run in the leg shackles that regularly ripped the skin off my ankles. Many other detainees experienced the same.

15. I have been deprived of sleep as a matter of policy.

16. I have witnessed the activities of the Internal Reaction Force (hereinafter `IRF'), which consists of a squad of soldiers that enter a detainee's cell and brutalise him with the aid of an attack dog. The IRF invasions were so common that the term to be `IRF'ed' became part of the language of the detainees. I have seen detainees suffer serious injuries as a result of being IRF'ed. I have seen detainees IRF'ed while they were praying, or for refusing medication.

17. I was told repeatedly that if I cooperated during the course of the interrogations, I would be sent home to Australia after the interrogations were concluded. I was told there was an `easy way' and `hard way' to respond to interrogation.

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18. Interrogators once offered me the services of a prostitute for 15 minutes if I would spy on other detainees. I refused.

19. Failure to cooperate meant the loss of the ordinary necessities of living, such as showers, sufficient food, relief from the prospect of IRFing and other regular abuse visited upon non-cooperative detainees, access to reading material, and social contact (including receiving mail).

By now, Mr President, I would be hoping that Mr Lawson might be having second thoughts about his views. It continues:

20. During Ramadan, food was withheld from detainees after the break of the daily fast in order to coerce cooperation with interrogators. Detainees who refused to cooperate were punished regularly, and denied the ordinary necessities of living.

21. I have been told that strobe lights and extreme cold were also used to disorient detainees in order to soften them up for interrogation. I have also heard that religious detainees were exposed to pornography, and were dragged around naked in order to break their will.

22. Detainees were not allowed to know the date, day, year or time. We were deprived of any and all information and news from the world. Detainees were permitted very little exercise.

23. At one point during 2003 alone my weight dropped by 30 pounds (and I was not overweight to start).

24. Other detainees also informed me that interrogators attempted to turn them against me by spreading rumours about me. In any event, due to the way interrogations were conducted, and the physical layout of the camp, it was obvious to all of the detainees who was being interrogated, for how long, and whether that detainee emerged abused, or not (with the latter signifying cooperation). Thus, any detainee would know who was cooperating with the interrogators.

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25. The interrogation process ruled the detention camps and the lives of detainees. Cooperation with interrogators offered the only means of relief from the miserable treatment and abuse that detainees suffered. Those who failed to comply suffered abuse until they gave in.

26. My conditions changed after I was moved to Camp Echo (as did the treatment afforded me by the military personnel on duty there) July 9, 2003, and then again after the visits from my attorneys began. However, at Camp Echo, I have been held in a solitary cell and have been so since arriving at Camp Echo. I was not allowed outside of my cell in Camp Echo for exercise in the sunlight from July 2003 until March 10, 2004.

I stress, in case the Hon. Mr Lawson was not paying attention, that the affidavit states, `without sunlight from July 2003 until March 10, 2004'. The affidavit continues:

27. As noted earlier, the above catalogue of abuse and mistreatment is not complete. It is but a summary of some of the abuse I suffered, witnessed and/or heard about since my detention began. I would be able to provide further information and detail if the court so desires, but a complete account would require a substantially longer document. In fact, at my request and due to the persistence of my lawyers, I have recently met with US military investigators conducting the probe into detainee abuse in Afghanistan. Also, this is not the first time I protested my mistreatment, since on several occasions in Afghanistan and later at Guantanamo Bay I informed representatives of the International Red Cross of the abuse.

Two years after that affidavit was signed by David Hicks, Major Mori, before whom this affidavit was sworn, appeared on the Denton program talking about the solitary confinement, the fact that there was no sunlight for months and that not only had he been bashed but also sexually assaulted by guards. I wonder how it is that our federal government can stand idly by and pretend that this is not happening, or that members of that same political party in this place can defend what our federal government is doing. I note that, when passed, this motion will be forwarded to the Minister for Foreign Affairs.

This is the man who has said that justice is not being delayed for David Hicks in the US; it is the same man who has said that he does not mind what happens—it is up to the US government; and it is the same man who refused to accept delivery of a 50 000 strong petition, which states:

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All Australians have the right to receive a fair trial.

Well, I thought so once upon a time. It continues:

The British, Spanish and French governments have all refused to allow their citizens to be tried in Guantanamo Bay. Even the Americans have removed their citizens from Guantanamo Bay and ensured they face a fair trial at home. As Australian foreign minister, you should have the courage to do the same. We demand that you act immediately to bring David Hicks back here to face an Australian court.

I have been a supporter of the group Fair Go for David, and over the years since it was formed I have attended many demonstrations, and sometimes no more than a dozen people attended. I want to commend Bronwen Mewett, in particular, and Kay Bilney for their extraordinary work in never giving up on this man. When Fair Go for David was formed they had four simple points of action: first, that David Hicks be treated in accordance with the Geneva Conventions; secondly, that the law of habeas corpus be applied to David Hicks; thirdly, that David Hicks be repatriated to Australia and given a fair civil trial if charged with any crimes; and, fourthly, that any other Australians in a similar situation to David Hicks be entitled to the same rights.

It was heartening to see so many people at the rally to which the Hon. Mark Parnell referred when he moved his motion. There are now thousands of people marching on the streets and signing petitions to seek justice for this Australian citizen—justice that other Australian and US citizens receive as a matter of course. I should mention that, for those who do care about justice, in terms of the rallies, and so on, there are two this weekend: one at 11 a.m. on Saturday in Victoria Square and one at noon on the steps of Parliament House on Sunday.

A lawyer living in Maitland, New South Wales sent me an email in February. I want to read the first sentence of it because it says a lot. It states:

Just as Bob Dylan sang in Hurricane of the failure of the American justice system, so too could Australians sing that David Hicks' case `kinda makes you feel ashamed to live in a land where justice is a game'.

I am embarrassed and I am ashamed that on the international stage I am represented by a government that will not stand up for basic human rights. I strongly support this motion. Bring David Hicks home.

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The Hon. S.G. WADE The Hon. S.G. WADE: I do not support the motion put forward by Mr Parnell because it seeks for Mr Hicks what he does not seek for himself. Mr Parnell's motion states:

That the Legislative Council calls on the Australian government to insist that citizen of South Australia, Mr David Hicks, be treated the same as citizens of the United States of America—no more, no less.

Mr Hicks is not an American citizen; Mr Hicks has never been an American citizen; he does not claim to be an American citizen; he does not seek to become one. I want Mr Hicks to be treated as what he is—an Australian citizen in the hands of a foreign government, a foreign government with one of the proudest records of freedom, law and justice of any nation in the world. Having said that, I do not consider that the treatment of Mr Hicks reflects the best of that tradition.

I make no comment on the guilt or innocence of Mr Hicks; my concerns relate to the process. I would like to quote from an open letter dated 3 June 2006 written by the Hon. John Dowd, President of the International Commission of Jurists in Australia. Mr Dowd, who was a former Liberal attorney-general, states in his letter:

Whether or not David Hicks is in fact guilty or innocent is not the issue. The illegality lies in the process of indefinite detention and unfair trial by military commission, a process which expressly has no application to any American citizen. The imprisonment at Guantanamo Bay and the unfair trial of David Hicks by military commission are an affront to the international legal standards, indeed all civilised legal standards. . . The military commissions deny the basic rights to an independent and impartial trial and the procedures do not exclude evidence obtained by coercion including the use of cruel, inhuman or degrading treatment.

The system also denies the fundamental right to an expeditious trial. David Hicks was in custody for two and a half years before he was charged on 10 June 2004. He has now been imprisoned for four and a half years without a trial. It is not fairly open to attribute this inordinate delay to Mr Hicks and his lawyers. It was the unjust system of trial by military commission which gave rise to his legitimate court challenge, a process which in any event occupied a small proportion of the total period. Further, there remains no explanation for the unconscionable delay prior to Mr Hicks being charged.

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It is to the great credit of the United States that, since that letter was written, the Supreme Court of the United States ruled on 29 June that the military commissions are unconstitutional. I appreciate that Mr Hicks is not a character who engenders widespread sympathy, but this is beside the point. I am reminded of a quote from Sir Robert Menzies in one of his famous `forgotten people' addresses, where he declared:

[The law] is that security to which a man may confidently and calmly appeal, even though every man's hand may be against him. The law's greatest benefits are for the minority man—the individual.

Mr Hicks is a minority man; nonetheless, he has the right to recourse to the law. Even if you were to assume, for the sake of argument, that Mr Hicks is guilty of each and every one of the accusations made against him, he deserves a fair and expeditious trial. In a free and democratic society every person is entitled to access to justice.

Of course, the terrorists do not believe this and that is why we oppose them. There was no justice for the 2 819 innocent people killed in the World Trade Centre towers; there was no justice for the South Australian SAS Sergeant, Andrew Russell, killed by a roadside bomb in Afghanistan in 2002; there is no justice for the millions of Iraqi people who risked their lives to vote and who seek to live peaceful lives under a democratically elected government. For their sake we need to be vigilant, upholding our values of freedom, the rule of law, and justice. In conclusion I would like to quote again from the letter from Mr Dowd:

The menace of terrorism is real. However, to meet the danger the world needs not only a military solution, but renewed and sustained commitment to the rule of law and to fundamental principles of human dignity and respect for human rights. This is the shared heritage of a civilised world. Unless we are vigilant, terrorism may achieve the destruction of these values. We should not give it such a victory.

The Hon. D.G.E. HOOD The Hon. D.G.E. HOOD: I rise to indicate Family First's view on this matter. It seems that we (that is, Family First) are not alone in the view that David Hicks should have had a completely fair trial by this time, indeed before this time. As pointed out by the Hon. Sandra Kanck, this Saturday is the fifth anniversary of David Hicks' detainment by the US government. Surely, by any measure, five years is sufficient time to have a fair trial, or at least the commencement of that fair trial, depending on how long that trial takes. There seems to be unanimous agreement in this chamber on that fact, and Family First holds that view. This has gone on too long and we appeal to the appropriate authorities, indeed, the Australian government to the extent that it can assert itself and certainly the US federal government, to bring this man to trial and to bring him to trial quickly and fairly.

We say that with no hesitation whatsoever. We join other members in this chamber in taking that view. However, this motion does not deal with that. This motion simply asks that David Hicks be treated as a US citizen. Family First finds no reason to treat David Hicks as a US citizen. He is not a US citizen. He has never been a US citizen. He does not seek US citizenship. Why would we not treat him as a citizen of another country?

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The Hon. Sandra Kanck interjecting:

The Hon. D.G.E. HOOD: Yes, it is.

The Hon. M. Parnell interjecting:

The Hon. D.G.E. HOOD: That is right. We see no reason for that. He should be treated as an Australian citizen in a foreign country, but he should be treated fairly and a trial should happen quickly. For that reason, Family First cannot support this motion.

The Hon. R.I. LUCAS The Hon. R.I. LUCAS (Leader of the Opposition): I rise at the outset to congratulate my colleague the Hon. Robert Lawson on, as usual, a comprehensive and detailed exposition of the legal arguments in relation to some of the issues. Certainly, from my viewpoint, he has covered those issues and I will not even endeavour to cover many of the issues that he has covered. I say at the outset, too, as the previous two speakers have said, that I accept that David Hicks, as indeed anyone, should be entitled to a fair trial and that should be a fair trial as soon as possible. At this stage, whilst we might have our own perceptions as to his possible guilt or innocence, he is entitled to be assumed innocent until he is proven guilty. I accept that. I also accept the arguments from the Hon. Mr Hood and the Hon. Mr Wade in relation to the precise wording of this motion, because I must admit I do not understand the motion.

The Hon. Sandra Kanck spoke eloquently in support of her own views about bringing David Hicks home. I understand that debate but, when one looks at this particular motion, at least to me, it does not make sense. I could understand if the motion said, `We call on whatever to ensure that David Hicks is brought home', or something along those lines—and various campaigns have been mounted. The Hon. Mr Parnell may well be able to explain it to the rest of us when he replies, but the subtlety of the drafting of his motion escapes me, although I understand the ensuing debate. The Hon. Sandra Kanck is clearly arguing that he should be brought home, I understand, as a member of that particular organisation.

In my view, there is another side to this story. I think that, on one side, some believe that Mr Hicks is a terrorist and is guilty; and, on the other side, some seem to think that Mr Hicks is an angel who has been wronged by the evil empire in terms of the Americans, and from their view point it is as white as it is black on the other side. The rest of us might have our own views in relation to this but are prepared to accept that he ought to be tried, that that should be done as quickly as possible and that he is entitled, at this stage, anyway, to a presumption of innocence.

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I think some of the people who automatically believe that everything Mr Hicks says ought to be accepted and that he is as pure as the driven snow and has been wronged ought to speak to the Russell family, as the member for Waite in our previous discussion on this outlined. They are constituents of his and the family of an Australian soldier killed in Afghanistan whilst at the same time—

The Hon. Sandra Kanck: He shouldn't have been there.

The Hon. R.I. LUCAS: Well, the Hon. Sandra Kanck should go and speak to the Russell family, and others, who are in the position of losing a loved one, and on the other side of the fence, from their viewpoint, are people such as Mr Hicks who are fighting their son. That is the position that we have. I say to other members in the community who automatically think that Mr Hicks is as pure as the driven snow that they should go and speak to the families who have been devastated by the actions of terrorists all around the world in recent years. Go and speak to those families in relation to what they think ought to happen to people who are proved to be terrorists or people who have trained with terrorist organisations.

That is the other side of this story and, frankly, I am just appalled at some of the public debate that goes on at the moment. There is one side of the debate going on in the media in relation to this issue, but on the other side are the servicemen who either lose their lives or are injured and those who lose members of their family or friends as a result of terrorist activity, either in America or any other part of the world. That part of the debate does not seem to enter into it for some of the people in that position.

The other thing is the Hon. Sandra Kanck's position when she read a long series of claims made by Mr Hicks in relation to his treatment in 2004. I have to say at the outset that I accept that the Hon. Sandra Kanck believes everything that Mr Hicks says, but I am afraid I cannot accept everything Mr Hicks says. They are claims that he has made. On the other hand, I cannot say that I can prove that all of his claims are wrong. It may well be that some of the things he claims are accurate and it may well be that some of the things he claims are inaccurate. However, I think that when the Hon. Sandra Kanck said to the Hon. Mr Lawson as she went through each of the claims, `I wonder whether the Hon. Mr Lawson is happy with that,' or words to that effect, she was unfair to my colleague the Hon. Mr Lawson. It would appear that the Hon. Sandra Kanck, as she went through each of those points trying to attack the Hon. Mr Lawson, was accepting their accuracy because Mr Hicks made the claim.

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Frankly, in relation to someone with the history of Mr Hicks, I start off with a huge degree of scepticism about the accuracy of a number of claims that he would make. I do not start from the position of saying that, because Mr Hicks makes the claims, they are therefore accurate. I accept that other people can adopt a different position, but I do not accept the position and would strongly oppose the assumption that, because he says this happened to him, therefore it is true. Each of us has heard many claims about behaviour and treatment in our prisons in South Australia, for example, from prisoners, and on a number of occasions they have proved to be untrue. On some occasions—

The Hon. P. Holloway: Just like your allegations against the police.

The Hon. R.I. LUCAS: Exactly.

The Hon. P. Holloway: Just like your allegation today.

The Hon. R.I. LUCAS: There was no allegation made today in relation to police. It was a question.

The Hon. P. Holloway: A question containing an allegation.

The Hon. R.I. LUCAS: And that is true. The leader interjects out of order, but it is true that allegations are easily made against the police, politicians, bankers or whomever. They are easily made. Some might be accurate, some might not. I do not start from the position with someone in Mr Hicks' position and with his background of automatically assuming that everything he claims in relation to his treatment is true.

The Hon. G.E. Gago: You called him a terrorist before he had a fair trial.

The Hon. R.I. LUCAS: In the end that has to be proved. As I said, I accept that he is entitled to a fair trial; it should happen as quickly as possible, and he deserves the presump­tion of innocence. People like the Hon. Gail Gago ought to go and speak to the families—

The Hon. G.E. Gago: You called him a terrorist. You sat there and called him a terrorist without his having a fair trial.

The ACTING PRESIDENT (Hon. R.P. Wortley): Can we allow the Hon. Mr Lucas to finish uninterrupted?

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The Hon. R.I. LUCAS: —of servicemen in Australia who have lost members of their family in conflicts such as Afghanistan. In talking about the background of Mr Hicks, can I briefly refer to what was for Mr Hicks a sympathetic story by Ian Munro and Penny Debelle in The Age on the weekend, I think, as part of the Bring Hicks Home campaign. So it is not from anyone who was opposed to his position. In their summary they included, under the heading `Justice delayed, justice denied', his background. It states:

May 1999

David Hicks travels to Albania to join the Kosovo Liberation Army fighting for local Muslims before returning to Australia and converting from Christianity to Islam.

November 1999-2000

Travels to Pakistan where, in early 2000, he joined terrorist organisation Lashkar-e-Taiba (the Army of the Righteous). Later fights Indian forces near the Kashmiri border.

January 2001

Hicks travels to al-Qaeda training camps in Afghanistan. Adopts the alias Muhammed Dawood and allegedly meets Osama bin Laden.

September 2001

Travels to Pakistan where he sees TV footage of the September 11 attacks before returning to Afghanistan to join al-Qaeda fighters defending Kandahar airport.

November 2001

Joins other al-Qaeda members who are fighting coalition forces.

December 2001

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Hicks is captured near Baghlan, Afghanistan. At the time he was fighting with Taliban government forces.

That report from Penny Debelle and Ian Munro which, as I said, is sympathetic to Mr Hicks' cause, highlights the fact that part of his training involved the use of explosives. Certainly, those who worry about what might have been the future for Mr Hicks ought to bear in mind that he was trained in the use of explosives by these terrorist organisations.

As I said, the Hon. Sandra Kanck interjected earlier that he does not even face charges at the moment. I refer to the commonwealth Attorney-General's website and the frequently asked questions on these issues. A quote from that states:

Mr Hicks has not yet been formally charged under the new Act. Certain procedures have to be followed in order to reconstitute the military commission, including the proclamation of regulations relating to some of the military commission procedures.

What that is saying is that, as a result of the Supreme Court decision, which the Hon. Mr Lawson highlighted, the military commission is having to be re-established and, as a result of that, until those procedures have been followed through, the charges against Mr Hicks are unable to be introduced. So, as I said, whilst the Hon. Sandra Kanck was referring to the fact that he is not even facing charges, that is as a result of the Supreme Court decision in the United States striking down the military commission.

I need to place on the record that, when this motion was highlighted, my colleague the Hon. Mr Dawkins corres­ponded with the foreign minister's office. I have received some information from Mr Dawkins which came from the foreign minister's office in relation to David Hicks and which outlined the government's position on the matter. It states:

Like all Australians who travel overseas, Mr Hicks is liable to the laws of foreign jurisdictions and must expect to face foreign courts if he is charged with a breach of those laws. There are no special courts or special laws for Australians overseas. Currently, there are over 200 Australians facing charges overseas.

Mr Hicks faces serious allegations arising from acts allegedly committed by him whilst overseas. Mr Hicks was charged by US authorities in relation to these allegations with three very serious offences: conspiracy to commit war crimes, attempted murder by an unprivileged belligerent, and aiding the enemy.

Mr Hicks was to be tried on these charges before a military commission in Guantanamo Bay. Military commissions are recognised as a part of United States law and their jurisdiction is set out in the United States Uniform Code of Military Justice . . . The United States Supreme Court, however, recently held that the military commission established to try one Guantanamo Bay detainee, Salim Hamdan, was unlawful because it lacked congressional authority and was inconsistent with the [United States Uniform Code of Military Justice].

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I repeat that the foreign affairs minister is indicating that the military commission was, in essence, held to be unlawful because it lacked congressional authority and was inconsis­tent with the United States Uniform Code of Military Justice. The letter from the foreign affairs minister continues:

As a result of the Supreme Court's decision in Hamdan's case, the United States Administration needs to decide quickly on an alternative method to try Mr Hicks in relation to these allegations. The Australian government is of the view that Mr Hicks should be brought to trial on any charges that are laid in relation to the allegations against him as soon as possible in a manner consistent with the Supreme Court's ruling.

The Australian Government provides consular assistance to Mr Hicks, as we do all Australians facing court or in gaol overseas. Australian officials visit Mr Hicks at Guantanamo Bay regularly and are satisfied that Mr Hicks is being treated humanely.

In relation to that, I note from the information provided that there has been some expenditure in Mr Hicks' case—taxpayer funded expenditure—of over $200 000 to Australian consultants who have been part of Mr Hicks' defence team. So, considerable taxpayer resources have gone in to providing assistance to Mr Hicks' defence team.

The final issue I want to touch on is something that has appeared in much of the press debate (and the Hon. Sandra Kanck referred to it indirectly), namely, the Bring Hicks Home campaign. A couple of questions and answers on the Attorney-General's website provide at least the commonwealth government's response to a couple of questions relating to the issue of bringing Mr Hicks home and whether he can be prosecuted in Australia. The questions are: what about the repatriation of nationals from the United Kingdom and other countries? Can Mr Hicks be repatriated to Australia? The answer is:

The United States has indicated that a detainee will not be repatriated to their home country unless the home country can indicate that the detainee may be prosecuted or the United States has determined that the detainee is no longer of law enforcement, intelligence or security interest. The Australian Government has been advised that no prosecution against Mr Hicks in Australia is available. However, Australia and the United States have agreed to ensure that arrangements are in place to provide a means for Mr Hicks, if convicted, to apply to be transferred to serve any penal sentence in Australia.

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Question: can Mr Hicks be prosecuted in Australia? The answer is:

The Government has been advised that based on available evidence no prosecution is available against Mr Hicks in Australia at this time. Making that decision is more complicated than simply identifying a criminal offence which may possibly have been contravened by a person's actions. The decision-maker must also take into account the likelihood of success, referring to factors such as available defences, the facts in question and the rules of evidence as they apply in Australian criminal law.

The Australian Federal Police considered offences existing in 2001, including offences set out in the Geneva Conventions Act 1957 and the Crimes (Foreign Incursions and Recruitment) Act 1978.

As a result of their examinations, the Australian Federal Police asked the Commonwealth Director of Public Prosecutions to consider all available evidence regarding Mr Hicks' alleged involvement with the Kosovo Liberation Army, Lashka-e Taiba and al-Qa'ida/Taliban forces. After considering the available evidence, the facts in question, the rules of evidence and available defences, the Common­wealth Director of Public Prosecutions advised that prosecution was not available.

In summary, the notion that Mr Hicks should be brought home would mean that Mr Hicks would not face charges. I think a lot of people do not understand that particular aspect of the campaign. I think the notion is: well, bring Mr Hicks home. As I said, there are some who obviously think he is as pure as the driven snow and he should not be charged with anything, but there are others who think he should be brought home and charged in Australia. The advice clearly is that if he was to be brought home he could not face charges, for the reasons that I have just outlined.

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So, given this motion is intended to be a criticism of the federal government, we believed it was important—in part, anyway; I am not in a position, obviously, to argue the whole of the federal government's case—that the federal govern­ment's position should at least be put on the record. As I said at the outset, I certainly share my personal views that in relation to this particular issue there seems to be one side of the equation which very rarely seems to get any public debate, and that is the families of Australian servicemen either killed or injured fighting terrorists and others and, also, the families and victims of terrorist activity all around the world.

The Hon. M. PARNELL The Hon. M. PARNELL: I would like to put on the record my thanks to all honourable members who spoke to this motion: the Hon. Rob Lawson, the Hon. Sandra Kanck, the Hon. Stephen Wade, the Hon. Dennis Hood, the Hon. Rob Lucas and the Hon. Ian Hunter. I would also like to record my appreciation of the Hon. Nick Xenophon who, whilst he cannot be here, thought sufficient of this motion to send me a text message expressing his support for it, which I hope the opposition will have regard to if this matter goes to a division.

I know the debate on this motion has taken some time in the second last sitting day before we break and there is a lot of business to get through, but this is a very important motion. When I reflect on the small amount of time we have spent on it, with the five years that David Hicks has spent in legal limbo in what are, by all accounts, appalling conditions at Guantanamo Bay, it pales into insignificance.

David Hicks is from South Australia. His family are still here. His father, Terry Hicks, lives in Adelaide. I might just reflect: who would not be proud to have a father like Terry Hicks (David Hicks' father)? No doubt he is as frustrated as anything with his son and the trouble his son has got into, but he has stuck by him the whole way. I think it is a great credit to David Hicks' father that he has fought as hard as he has for five years to try to get some justice for his son. Like the Hon. Sandra Kanck, I will be at the Fair Go for David rally at 11 o'clock on Saturday at Victoria Square. I will also be at the Amnesty International rally on Sunday at 12 o'clock on the steps of Parliament House—that rally calling for the Guantanamo Bay camp to be shut down.

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I would like to reflect briefly on some of the comments of the Hon. Rob Lawson, who made what I think is a bold attempt to justify what is unjustifiable. Certainly, learned and academic but missed the point, I think, entirely. It made something sound more complicated than it is. The simple question is whether David Hicks is entitled to have basic standards of criminal procedure and criminal justice apply to him as US citizens had apply to them when they were in the same situation.

It is not an academic exercise but an exercise that relates to the rights of a human being. The five years of incarceration without trial, as the Hon. Sandra Kanck said, would dominate question time here for a month; if there was a person in South Australia, an inmate, on remand who had been in that predicament for five years without trial, I do not think we would have questions on any other topic in this place. It would be an outrage to all right thinking citizens. Yet, because the person who is subject to that treatment, whilst one of us—a South Australian—is beyond our reach in American custody, apparently some of these concerns evaporate.

A lot of the arguments from Liberal members missed the point. Members were correct to say that they were not implying guilt or innocence in relation to David Hicks. It is a little like something we have all experienced where someone comes up to you at a social gathering and says, for example, `I'm not racist, but. . . ' and they proceed to give a lie to it. It is not honest for members to be able to say, `We are not implying whether he is guilty or innocent', but to then launch into an argument that he is probably a bad person and therefore the treatment that he has been subjected to is probably okay. You cannot have it both ways. It really is not a matter of his guilt or innocence but a matter of his human rights.

The Hon. Rob Lucas found the wording of my motion subtle, maybe a little too subtle, in that it called for Hicks to be treated the same as citizens of the US. It was not to imply that he wants to be an American citizen or that somehow citizenship should be granted to him: it was inviting members here to reflect on the way the Americans treated their citizens who were found in this predicament, and inviting us also to reflect on the way other civilised countries responded when their citizens ended up in Guantanamo Bay. David Hicks will be subject to these military commissions under the Military Commissions Act 2006, an act passed in September and signed by President Bush on 7 October, and the rules are currently being finalised as to how those military commissions will operate.

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The most important thing to note about these military commissions is that they do not apply to US citizens, and that goes to the heart of it. The Americans have decided that the rule of law, the ability of their citizens to be subjected to a just criminal trial regime, was important enough that they did not require their citizens to go through these unfair military commission processes. The Military Commissions Act is expressed to comply with the Geneva Convention, but at the same time it contains provisions saying that no-one who is subjected to trial by a military commission can invoke the Geneva Convention under it as a source of their rights: it is trying to have it both ways. Clearly it does not comply with international standards of criminal justice. As has been pointed out, Mr Hicks so far has not been charged with any offence under the new legislation and there is no way that he can get a fair trial under the Military Commissions Act.

The rules of such a trial would enable, for example, the prosecution to withhold its source of evidence or how that evidence was obtained. It would be up to the defence to prove the unreliability of that evidence, without knowing where it came from. It is permissible for evidence obtained under torture to be admitted into evidence. These are the types of provisions that would never be allowed under the Australian criminal justice system. The Americans will not allow those provisions to apply to their citizens, yet members of the opposition seem happy for that flawed process to apply to South Australian citizen David Hicks. The mood is changing. Even members of the Liberal Party, if today's Advertiser and The Australian can be believed, are now starting to call for some justice for David Hicks.

The Australian today carries the headline: `Libs get behind Hicks' and The Advertiser today carries the headline: `Lib MPs want to get Hicks home'. Those papers name prominent federal coalition members Barnaby Joyce, Danna Vale, Petro Georgiou, Russell Broadbent, Bruce Baird as people who are now saying to the Prime Minister, `Enough is enough. We really need to have justice for David Hicks'. In his contribution, the Hon. Rob Lucas pointed out that bad things have happened. Yes, bad things have happened, such as terrorist attacks, 9/11, the loss of innocent lives and the bombing of civilians in Iraq. We could go through a great many bad things that have happened, but I do not think it is reasonable to say that that somehow justifies the abandonment of proper principles of criminal justice and fairness. I urge all members to support this motion. A consequence of its passage would be that we would express our concern to the Australian government through the foreign affairs minister and we would add to the chorus of prominent Australians, inter­national jurists and civil rights campaigners for David Hicks to receive justice. I urge all members to support the motion.

The council divided on the motion:

AYES (9)

Finnigan, B. V. Gago, G. E.

Gazzola, J. M. Holloway, P.

Hunter, I. Kanck, S. M.

Parnell, M. (teller) Wortley, R.

Zollo, C.

NOES (10)

Bressington, A. Dawkins, J. S. L.

Evans, A. L. Hood, D.

Lawson, R. D. (teller) Lensink, J. M. A.

Lucas, R. I. Ridgway, D. W.

Stephens, T. J. Wade, S. G.


Xenophon, N. Schaefer, C. V.

Majority of 1 for the noes.

Motion thus negatived

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