Military Detention: Australian Citizens'

March 19th, 2003

Senator KIRK (South Australia) (7.30 p.m.) -I rise to speak tonight about the subject matter of a petition that I will present to the Senate tomorrow on behalf of 1,600 South Australians in relation to the detention of David Hicks, an Australian citizen, in a United States military facility in Cuba. The petition I will present calls on the Senate to ensure that Hicks's rights are met under the guidelines of the Geneva convention as it applies to prisoners of war, to send a deputation to George W. Bush asking that David Hicks be returned to Australia and to ensure that David Hicks be entitled to an Australian trial if he is charged with any crime. This petition has been signed by over 1,600 South Australians who feel that the government has let down one of its own citizens in relation to the protection of his fundamental human and legal rights.

As many senators will know, I come to this chamber with a specific professional interest in the law and in particular in human rights and international law. I view the case of David Hicks with a particular interest-not because I know whether he is innocent or not; in fact, I have no knowledge of this at all. My concern is that his detention without charge in a United States military facility amounts to a breach of the fundamental legal and human rights of an Australian citizen.

South Australian David Hicks is currently being detained in Guantanamo Bay United States military base in Cuba. Hicks was captured by the US military in Afghanistan in November 2001. As I said, he is presently detained in Camp Delta in Guantanamo Bay in Cuba. Also detained there with him is fellow Australian Mamdouh Habib. Both David Hicks and Mamdouh Habib have been detained in that facility without charge for over a year. Let me say first and foremost that David Hicks must be brought to justice. He must be tried and convicted of any crimes he has committed. However, to date David Hicks has not been charged with any crimes. His fate, it appears, is to perpetually rot in a military jail cell. This is a fundamental breach of human rights. Article 9 of the Universal Declaration of Human Rights states quite clearly:

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No-one shall be subject to arbitrary arrest, detention or exile ...

It also provides in article 10:
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him.

It is clear that in the case of Hicks no charge has been brought. He has not been brought before any court. He has not had access to a lawyer and he has not had access to consular assistance. He is not permitted visitors except US and at times Australian military and intelligence interrogators. The only Australian contact he has had has been with the Australian Federal Police and ASIO. The only contact between Hicks and Habib and their families in Australia has been through the International Red Cross.

What concerns me is that this government has accepted this and publicly acknowledges that this is acceptable. It appears to accept that it is for the US government to decide what rights Hicks is entitled to. The Labor Party has been pushing for the Australian government to take action in relation to this situation for more than a year. Daryl Melham, the shadow minister for justice, has asked questions of the government and raised the issue in the media; however, the government has defiantly and stubbornly failed to act. This is an issue that goes beyond the individual case in question. It shows the government's inability to balance human rights with the war on terror. All citizens of Australia, even if they are guilty or even if they are terrorists, deserve to have their case heard. All citizens are entitled to the protection of the rule of law.

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It is obviously tempting in an age of uncertainty and heightened danger to abandon the principle of procedural fairness and the rule of law, but we cannot allow these to be recklessly sacrificed during such times. We would not accept the denial of legal rights for even the worst alleged offender caught by Australian police. Simply because the United States military made the arrest of Hicks and Habib does not negate the serious failure of justice here. To be a citizen of Australia should mean more than it apparently does to this government. While Australia intervenes to secure the rights of drug smugglers and murderers who are apprehended in other countries, it seems that when one of our own is captured by the United States under suspicion of crime related to the war on terror then the government does not see fit to intervene. One of the fighters for the Taliban captured in Afghanistan was an American citizen. Unlike David Hicks, he received a trial, he plea bargained and has now been sentenced. Unlike the process for treating its own citizens, Australian citizens it seems are forced to wait until the United States decides that it is time for it to take action to bring them to justice.

The United States has declared that they are under no responsibility to comply with the Geneva conventions in regard to the prisoners detained in Cuba. The Geneva conventions would provide Hicks with the right to humane treatment, the right to challenge the lawfulness of his detention, the right to the prompt access and assistance of a lawyer and the right to be informed of the reasons for his detention. The US argument that the Geneva conventions do not apply has been challenged, including by eminent human rights barrister Geoffrey Robertson QC. The Geneva conventions appear to completely contradict the view of the United States. The convention says that it applies to:

... armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

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The United States did take part in armed conflict with the former government of Afghanistan and therefore is bound by the Geneva convention. The words `armed conflict' were specifically chosen to encompass military actions, such as the war on terror, which a country could describe as a police action. The United States apparently views the Geneva conventions as not applying to Hicks because he possibly does not belong to a category enumerated for protection. However, the convention makes clear that every individual should enjoy the protection of the Geneva convention until a competent tribunal has determined whether or not a person is part of a protected group.

Due process of law is a principle that both Australians and Americans value and rely on. However, in the case of the detention of David Hicks, we see it come under threat. This government has been complacent-if not oblivious-about the legal rights of an Australian citizen. It has endorsed the practice of the United States and has raised no objection. In Senate estimates in February this year, the Attorney-General's Department acknowledged that the government believes that the welfare of Hicks is a matter solely for the United States military. Government officials said:

It is really a question of whether the United States is prepared to let other countries have any role at all. It is their detention facility. We have access to it on the basis that they permit us to, which has been for the purposes of law enforcement and security investigations, and on limited terms. They are the bases on which we have access to those facilities.
The detention of Hicks raises some complex issues of international law to which I do not purport to have all the answers. But his detention without charge and inability to access legal advice and consular assistance is a matter that should concern all Australians. It is of concern that the government accepts a situation where Australian citizenship provides only a second-class passport when an individual gets themselves into trouble overseas for an activity that can be related to the war on terror.

Until now it has been thought that there was little public sympathy for David Hicks in the community. But the large number of petitioners named in the petition that I will present to the Senate tomorrow calling for the recognition by this government of Hick's legal rights shows that discontent in the community is growing. The government claims that it is conducting an investigation into the Hicks case, although this has been going on for a year now and it seems, so far, to be a fruitless exercise. It is a disgrace that the first law officer of the Commonwealth, Attorney-General Darryl Williams, would allow and condone such a denial of legal rights to an Australian citizen. Australian citizens suspected of terrorist offences should be charged and dealt with under appropriate judicial processes. I do not know whether David Hicks is guilty or not. If he has committed a crime, he should be charged in an appropriate jurisdiction and given access to legal advice. He should not be left in the legal limbo of Guantanamo Bay. He may well be guilty. The point is that he should at least be offered the opportunities to defend himself that America once insisted should be offered to the worst Nazi war criminals.

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Speech to Parliament - Senator Linda Kirk