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Monday, 26 May 2003
Page: 14847


Mr MELHAM (1:36 PM) —I have commented publicly on the detention of David Hicks and Mamdouh Habib since they were first captured by the United States military. Mr Hicks was captured by the US military in Afghanistan in November 2001. Mr Habib was detained in Pakistan in early October 2001, before being moved to Egypt and then being held in Afghanistan before being transferred to Guantanamo Bay. Both men have now been detained without charge for almost 18 months.

From the outset, a single guiding principle has informed everything that I have said on this issue. The guiding principle is that no Australian citizen should be detained without charge. It is a fundamental legal and human rights principle that must be asserted with great vigour. It is a fundamental principle that means nothing to the Australian government when it comes to protecting the rights of Mr Hicks and Mr Habib. Instead, they have been left to rot in the legal limbo of Camp X-Ray in Guantanamo Bay.

Guantanamo Bay is truly the land of legal limbo. It provides America with a legal loophole. The people held there are beyond the reach of any American court, and so they are effectively beyond the law. They have no rights. As one American commentator remarked, there were three places the Americans could have sent the captives from Afghanistan to make sure they were stripped of any legal protections: Antarctica, the space shuttle or Guantanamo Bay.

Conditions in Guantanamo Bay are a cause for concern. There are reports that the people detained there are confined for 24 hours a day in small cells in sweltering heat. Exercise periods are reported to be limited to 15 minutes, twice a week. These conditions are in direct violation of international minimum standards for the treatment of prisoners—standards that are so generally accepted they have passed into customary international law. Detention for that length of time without charge in such appalling conditions is both unconscionable and unacceptable.

Other countries have protested against the treatment being handed out to their citizens. In fact, Colin Powell, the American Secretary of State, is reported to have sent a strongly worded letter to Donald Rumsfeld, the Defense Secretary, noting that he was receiving a steady stream of complaints from many of the 42 nations whose citizens are being held in Guantanamo Bay. The harsh treatment of prisoners in Guantanamo Bay is underlined by the fact that they have received a lesser standard of justice than the US prisoner John Walker Lindh, who was caught fighting for the Taliban. Throughout this whole extraordinary state of affairs, the Howard government has raised no objection; on the contrary, it has endorsed the American position.

In early May the New York Times reported that the United States now wants to wash its hands of Mr Hicks. The newspaper reported Australian officials who said they were approached by the Bush administration and asked to take custody of Mr Hicks and prosecute him. But the Australian government did not want any part of the action; it just wants to brush the whole affair under the carpet and hope it goes away.

The two Australian citizens should be returned to Australia without further delay. If a case can be made that they have been engaged in illegal activity, they should be tried in accordance with Australian law. If the government have evidence that Mr Hicks or Mr Habib were involved in terrorist activities, they should say as much. They must come out and clearly state what they intend to do with this matter. It must not remain unresolved and swept under the carpet.

The motion before the House today asks the United States of America to advise what processes will be put in place to allow the detained Australians to be put on trial or to be released. I am also concerned to ensure these men get a fair trial. The Economist magazine of 10 May commented that America has now had plenty of time to gather information from the inmates of Guantanamo Bay. It argues that America should now release those who pose no danger and promptly bring criminal charges against those who do. In terms of a trial, The Economist argued that the civilian courts remain the best choice. It is an argument I have maintained from the outset.

Any trial of Mr Hicks and Mr Habib must be a fair and open trial with independent judges and adequate legal representation. Anything less than this standard is a further denial of the rights of Australian citizens. I raise this point because there remains a real possibility that America will choose to set up special tribunals and, by holding the prisoners on Guantanamo Bay, the Americans have sidestepped any constitutional guarantees of due process and right to a fair trial. On 13 November, President Bush announced that non-US citizens involved with al-Qaeda would be subject to detention and trial by military authorities in a military commission. (Time expired)