Private Members’ Business - Mr David Hicks

Ms VAMVAKINOU (Calwell) (4.23 pm)—I move: That the House:

(1) acknowledges that the ongoing detention without trial of David Hicks is inconsistent with both international and Australian legal standards (including the principle of habeas corpus) and contravenes the individual rights and protections for which these standards provide;

(2) acknowledges that the newly revised rules for the US Military Commissions under which David Hicks is to be tried, but under which no US citizen can or will be tried, remain in breach of both the Geneva Conventions and the Australian Criminal Code and for this reason, do not constitute a fair trial but instead set an unacceptable precedent for the detention and trial of an Australian citizen overseas, especially by sanctioning the use of hearsay evidence and evidence obtained by coercion and by not permitting the accused to be privy to all the evidence;

(3) notes that one of the charges laid against David Hicks relies on the use of retrospective legislation, while the Government asserts that he cannot be tried in Australia because it would require retrospective legislation;

(4) calls for the immediate repatriation of David Hicks to Australia to face trial under Australian law;

(5) urges members of the United States Congress to help facilitate David Hicks’ repatriation to Australia by passing a resolution in Congress to this effect;

(6) calls on the Government to release advice provided by the Commonwealth Director of Public Prosecutions concerning the viability of charging David Hicks in Australia;

(7) acknowledges that we in this place have a responsibility to monitor and protect the welfare and rights of Australian citizens imprisoned overseas; and for this reason:

(8) calls for an immediate and independent assessment of the mental and physical health of David Hicks by relevant experts to ascertain the validity of allegations made concerning the deteriorating well being of David Hicks;

(9) seeks concrete assurances that any such assessment will not jeopardise or in any way prejudice the treatment of David Hicks whilst he is in Guantanamo Bay; and

(10) acknowledges that the ongoing imprisonment of David Hicks, and the denial of his basic rights, runs counter to the principles of freedom and democracy in the name of which the ‘war against terror’ is being fought, and threatens to undermine the international effort to combat terrorism.

I move this motion today because, like a growing number of Australians, I believe that the ongoing detention without trial of David Hicks is both unlawful and in serious breach of Mr Hicks’s human rights. The detention without trial of David Hicks and allegations concerning his mistreatment and possible torture in Guantanamo Bay go to the very heart of why we have a body of international law that protects the rights and welfare of individuals against the misuse of power, especially when it results in injustice or inhumane treatment.

An unwavering commitment to upholding the rule of law, combined with an unwavering commitment to the individual rights provided for under humanitarian and human rights law, must provide the standard benchmark for how David Hicks is to be treated. This has not been the case, and it is for this reason that a growing chorus of opposition against David Hicks’s continued detention at Guantanamo Bay now exists in Australia.

This opposition is built around three fundamental concerns: firstly, public concern over reports that David Hicks’s mental and physical health are deteriorating as a result of his long-term detention at Guantanamo Bay; secondly, public opposition to the way David Hicks continues to be denied his basic legal and human rights and to the way the rule of law has been subverted in the attempt to have him tried; and, thirdly, public anger over the way the Howard government has simply abandoned David Hicks and, in the process, has failed in its basic duty of care to protect the rights and welfare of an Australian citizen held in detention overseas.

To this country’s great shame, the Howard government has not demanded that David Hicks be returned home to face trial in Australia, as the United Kingdom and other Western states have done, and it is the only Western government that is prepared to accept the US military commissions as a substitute for what should be a free and fair trial for David Hicks in a civilian court.

The ongoing detention without trial of David Hicks is inconsistent with both international and Australian legal standards, including the principle of habeas corpus.

Rather than admit to this, the Howard government has instead sought to denigrate and dismiss those who speak out against the mistreatment of David Hicks and who seek to defend his basic legal right to receive a fair trial by accusing them of not taking the threat of terrorism seriously.

My response is simply this: any war which relies on suspending individual rights and the rule of law in the name of combating terrorism comes perilously close to eroding the very democracy and freedoms that it purports to defend.

History teaches us that the interests of freedom and democracy are never served by temporarily suspending or deferring them. Rather, these interests can only be served by rigorously adhering to the basic legal and human rights that freedom and democracy provide for us. I want to refer to the distinguished writer Arthur Koestler, who reminds us in his book Darkness at Noon that the end never justifies the means.

The newly revised rules for the military commissions under which David Hicks is to be tried, but under which no US citizen can or will be tried, remain in breach both of the Geneva convention and of the Australian Criminal Code, especially in the way they sanction the use of hearsay evidence and evidence obtained by coercion and in not permitting the accused to be privy to all the evidence.

Whilst the government has argued that only the military judge who is presiding over Mr Hicks’s case can sanction the use of such evidence, it fails to add that, under the military commission system, the US Secretary of Defense has unprecedented power to determine the rules and procedures for how these military judges will be selected.

In addition, these US military commissions seek to remove the application of the Geneva convention and make it impossible for detainees like David Hicks to challenge the legality of their detention.

The Attorney-General admits that neither he nor the Commonwealth Director of Public Prosecutions has seen the evidence against David Hicks, yet the government continues to argue that David Hicks cannot be tried in Australia. Based on what evidence?

And whilst he continues to argue that David Hicks cannot be tried in Australia because it would require retrospective legislation, the most recent charges laid against David Hicks rely on the use of retrospective legislation.

In the face of growing expert legal opinion suggesting that Mr Hicks can be tried here, it is incumbent on the government to release the advice provided by the Commonwealth Director of Public Prosecutions concerning the viability of charging David Hicks in Australia. I believe that it is time to bring David Hicks back home to receive a fair trial in the interests of preserving and protecting his basic rights and in the interests of upholding the rule of law.

The DEPUTY SPEAKER (Mr Hatton)—Is the motion seconded?

Mr Tanner—I second the motion and reserve my right to speak.