Source : - Independent Weekly

July 22-28 , 2006

Linda Kirk

PRIME MINISTER Howard is more enthusiastic than ever to go along with what George Bush wants to do with Guantanamo Bay. Trouble is, President Bush is running out of ideas. He has acknowledged that Guantanamo has damaged the US image and should be closed. And his alternative options - to have Congress legislate for a military tribunal system, going down the court martial route, or US civilian trials - all have major downsides. In the end, the only solution for the American Government may be to transfer David Hicks back to Australia. Britain has secured the return of its citizens and is currently trying them before a British court - Spain, France, Canada, Russia and Afghanistan are all doing the same. Even the Americans have removed their citizens and ensured they faced a fair trial at home. Isn't it time the Howard Government focused on subjecting Hicks to Australian law?

As justification for not demanding his release, the Prime Minister argues that Hicks has not broken any Australian laws, and cannot therefore be tried by an Australian court. The Attorney-General said: "The only basis upon which Hicks could be brought back to Australia under our existing law is to be freed - that's the only basis." On the contrary, a legal opinion prepared by leading Australian constitutional lawyers from the Gilbert + Tobin Centre of Public Law has said "the Australian legal system has, and always has had, all the tools necessary to prosecute Hicks in Australia".

According to the opinion, Hicks would be potentially liable for conspiracy to commit grave breaches of the Fourth Geneva Convention. in contravention of the Geneva Conventions Act of 1957, together with engaging in hostile activity in a foreign state, and allowing himself to he trained in the use of arms or explosives -- both in contravention of the Crimes (Foreign Incursions and Recruitment) Act 1978, And even if it is found that existing Australian law is deficient, a law could be enacted by Parliament with retrospective effect to enable Hicks to be tried under Australian law before an Australian court.

It is very disturbing the extent to which the Prime Minister is not only denying these possibilities, but potentially jeopardising them by engaging in public commentary about Hicks' guilt. Is the Prime Minister not aware that by talking about "crimes that [Hicks] has committed", he is effectively pronouncing Hicks guilty? The laws concerning sub-judice are clear, and apply equally to the Prime Minister as they do the Australian public. A breach of these laws can be cause for a mis-trial or no trial at all!

If Hicks is as dangerous as the Prime Minister claims, there are also laws currently on the statute books which would allow his activities to be monitored in Australia. Under the Anti-Terrorism Act (No 2) of 2005, the Australian Federal Police can apply to a court for a ---"control order" over an individual's conduct and activities. A control order can be issued by a judge where it would substantially assist in preventing a terrorist act or where a person has trained with a terrorist organisation that is listed in the Criminal Code.

The laws are also retrospective, allowing people who may have links to overseas groups in the past to be subject to the orders.

How does a control order "control" a suspected terrorist? A control order can prohibit or restrict a person from being at specified areas or places, communicating or associating with certain people, accessing or using certain forms of technology (including the internet),
or using certain articles or substances, and carrying out activities, including work activities. On a practical level, this could require Hicks to be put under house arrest, forced to wear an electronic tracking device, report to someone at a certain time and place, allow himself to be photographed and participate, with his consen,. in counselling or education. A breach of a control order carries a five-year prison term and, while each control order can last up to one year, the order can be reissued again and again allowing someone to be continuously controlled.

The fact that the Howard Government has consistently denied these possibilities demonstrates its lack of faith in the Australian legal system, and little, if any, commitment to protect Australian citizens who are charged with offences abroad. It is time for the Australian Government to finally acknowledge that one of its citizens has received a raw deal from the US Administration, and demand that he be returned borne and, if necessary be subjected to the force of Australian law,

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