National ALP
Back Robert McClelland - Hicks' Trial Will Not Be Justice As We Know It
http://www.alp.org.au//media/0703/20005052.html
Thursday, 10 July 2003

ALP News Statements
Why is Howard satisfied with the US "protections" when Britain is not?


Last week's revelation that Australian David Hicks might be tried by a US military commission at Guantanamo Bay, Cuba, prompted Attorney-General Daryl Williams to claim every effort was being made "to ensure procedures for any possible trial will provide the fundamental guarantees of normal criminal processes".

That will be a big ask. President George Bush's November 2001 order that initiated the military commissions to try those accused of involvement in terrorism stated categorically: "It is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognised in the trial of criminal cases in the United States district courts."

That is, normal criminal processes simply do not apply, unless US Secretary of Defence Donald Rumsfeld decides otherwise.

Rumsfeld subsequently issued a military commission order in March 2002 that provides some basic protections to the accused, including a presumption of innocence, a standard of proof beyond reasonable doubt, a right to silence, a right to cross-examine prosecution witnesses, and a US military lawyer paid for by the US Government.

But even taking these into account, we must not lose sight of how alien these military commissions are to Australians' expectations of a fair trial, based on our experience of our own criminal justice system. The processes are chalk and cheese.


Australian trials are conducted before legally qualified, experienced and independent judges and magistrates. Rumsfeld's order allows him to appoint a military commission of between three and seven members, of which only the presiding member need be a military "judge advocate" - the others are simply serving or retired US military officers.

If tried in Australia, Hicks would be represented by a lawyer of his choice, with a safety net of legal aid. At the military commission, Hicks can retain a US civilian lawyer to assist his US military lawyer, but only if he can afford one.

Williams has said he "understands" that Hicks "may be able to retain an Australian lawyer as a consultant to his defence team", but it remains to be seen what this vague statement would mean in practice. In Australia, communications between a criminally accused person and their lawyer are confidential. It appears that before the military commission, that confidentiality must be waived.

The Australian criminal justice system depends on comprehensive rules to prevent the admission and misuse of unreliable evidence. Rumsfeld's order makes everything potentially admissible before a military commission, including unsworn statements, if it meets the fairly nebulous standard of having "probative value to a reasonable person".

In Australia, a guilty verdict must be unanimous. At the military commission, it requires only a two-thirds majority, with unanimity only required to impose a sentence of death.

In the Australian system a miscarriage of justice can be rectified by an independent appeals court. A decision of the US military commission can be reviewed only by a panel of three military officers appointed by Rumsfeld. The panel deliberates behind closed doors and is not required to consider any submissions from the accused.

These practices are alien to our criminal justice system and the Howard Government's ambivalence has undervalued the rights we associate with Australian citizenship.

While Williams and Foreign Minister Alexander Downer refer constantly to their "discussions" with US authorities, it is impossible to see what these discussions have produced. David Hicks and Mamdouh Habib have been in detention for more than 18 months, facing serious allegations of involvement with a terrorist organisation and a potential death sentence. They have not been given consular assistance, or access to their lawyers. They have not been charged, nor is the Australian Government able to say what they might be charged with.

There is no evidence that the limited protections that would apply in any trial, announced by Rumsfeld in March 2002, are due to the intervention of Williams or Downer.

Why is the Howard Government satisfied with these protections when Britain, the other member of the "coalition of the willing", is still expressing its strong reservations about the trial of its citizens by a military commission?

At the very least, with trials now a possibility, the Government should be ensuring Hicks and Habib have full access to consular assistance and their Australian lawyers, and should be pressing for their return if they will not be afforded a standard of justice that meets the expectations of the Australian community.

In fighting a war on terror we must show by our actions, and not just our military might, that we will defend all aspects of the Australian way.


Authorised by Geoff Walsh, 19 National Circuit, Barton ACT 2600


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