Ms ROXON (10:21 AM) —I rise today to speak on the International Transfer of Prisoners Amendment Bill 2004. This bill seeks to amend the International Transfer of Prisoners Act 1997 in two general ways, but its immediate purpose is to facilitate the return of Australian citizens David Hicks and Mamdouh Habib to Australia to serve any term of imprisonment if they are convicted by a US military commission. Let me say from the outset that the bill itself is sensible and grounded in compassion, but the circumstances creating the need for the bill are scandalous and one of the most outrageous indictments of Western society in recent history. The International Transfer of Prisoners Act sets up a regime for the transfer of convicted prisoners to their home country to serve out any sentence. It is based on an international convention allowing a country to transfer a prisoner following a conviction by a court or tribunal. This bill is necessary in order to ensure that a conviction by a military commission against a person held in Guantanamo Bay can still activate the beneficial provisions of this regime.

The need for this bill comes about because a military commission is not a court or tribunal and Guantanamo Bay does not fit easily within the definition of a foreign country. The fact that we need this bill highlights the legal no-man's-land for prisoners at Guantanamo Bay, and it highlights the shameful fact that they will not be tried through any ordinary court process. Despite Labor's uneasiness about the circumstances in which this bill has become necessary, we intend to support it because of its humanitarian impact. Noone could argue that, if Mr Habib or Mr Hicks are convicted, they should stay in Cuba to serve out any sentence. Because of our commitment to support this beneficial legislation and also our longstanding objection to the process that is being proposed to try these men, I move the second reading amendment that has been circulated in my name. It reads:

That all words after “That” be omitted with a view to substituting the following words:

“whilst not declining to give the Bill a second reading, the House condemns the Government for:

(1) acquiescing in the use of US military commissions to try Australian citizens; and

(2) failing to explore all options for the two Australians currently being detained by US authorities in Guantanamo Bay, to be tried in Australia”.

Before dealing critically with the scandalous situation of Mr Hicks and Mr Habib, let me deal briefly with the transfer regime involved in the act and the proposed changes to it. Currently, as I have mentioned, the act allows for the transfer of convicted prisoners to Australia from a foreign country which is party to a multilateral convention, which includes the United States, or with whom Australia has a bilateral agreement for the transfer of prisoners, which currently includes countries such as Thailand. The current definition of `countries' is being amend-ed by this bill to acknowledge regions whose status might not clearly be one of a country.

This amendment will cover the situation in Guantanamo Bay, where the land is part of the sovereign territory of Cuba but which is `a region under the jurisdiction or control' of the US pursuant to a lease. New subsection 8(5)(d) ensures that a convicted prisoner held in these circumstances could still be the subject of a transfer back home. It is worth noting as an aside that, although those in Cuba are clearly in our sights now, it is possible that in the future this extended definition might apply to those convicted in Hong Kong or perhaps Taiwan or other countries or regions with unusual or irregular status—perhaps even in countries under the temporary administration of other countries like Iraq and perhaps in the foreseeable future Haiti.

The bill also extends the definition of `court or tribunal' to include a military commission of the United States of America for the purposes of this act. If it were not for the fact that this legislation is being introduced purely to ensure that convicted Australians can be returned to Australia to serve out their sentences, Labor might have very serious reservations about changing this definition. If the government were seeking to change the definition of a court or tribunal generally or for any other purpose, we would not be supporting this bill.

Labor does not support the US government's use of a military commission process to try our citizens. This process is not independent and it is not fair, and any decisions in any other context should not be given equal status to that of a court or tribunal. But Labor does accept that these definitions and amendments to the overall act are only on the basis that the bill is beneficial—and beneficial to those two citizens who might most immediately be affected. It is possible that this legislation is entirely premature and may be unnecessary, as no charges have yet been laid, let alone there having been any conviction against these two Australian citizens, but it is important that the mechanism be in place. We accept that the process, even though it has moved incredibly slowly so far, may move more quickly if and when charges are laid, and we would not want to stand in the way of supporting these beneficial provisions.

Certainly if prisoners convicted overseas are able to serve out their sentences here in Australia, it will be of great benefit not only to those individuals but particularly to their families and support networks that they would then be near. For Mr Hicks and Mr Habib, if they are convicted and returned to Australia under these new provisions, it could end what has been more than two years of isolation and disconnection from their families back here in Australia. In this context it would clearly be wrong for us to refuse to support the bill.

It should be noted, however, that this legislation on its own is not enough to secure the transfer of Mr Hicks and Mr Habib, if convicted, from Guantanamo Bay to Australia. I understand—and the broad scheme of the act makes this clear—that a separate agreement would still have to be entered into between the Australian and US governments to organise the final details, timing and conditions of any transfer and the terms of any ongoing sentence being served out in Australia. Any transfer under this act, if amended, still requires the consent of the prisoner, the transfer country and the receiving country—and, in Australia's case, the state or territory where the prisoner would be held to serve out their remaining sentence. We do not know whether the government has sought the consent of the US for such transfers in the event that either of these two men is convicted.

I have moved the second reading amendment in order to make two general points. One is that ongoing detention, without charge, of Australian citizens of a legally indeterminate nature is an outrageous position for this government to remain silent about. The Labor Party condemns the government for acquiescing in this process—for making no comments, for negotiating no improved conditions and for failing to explore all of the options for Mr Hicks and Mr Habib to be tried according to a fair process. Our amendment recognises the two fundamental aspects in which the government has failed its responsibilities in handling this matter. Neither the Prime Minister as the leader of this country nor the AttorneyGeneral as its first legal officer have taken any stand on this issue. Neither of them has challenged, queried or pushed the US government for holding two of our citizens in these legally questionable circumstances. Neither of them has effectively explored other options by which these two Australians could be tried in Australia.

Labor want to make it absolutely clear in this debate that we condemn the use of a military commission to try those detained in Guantanamo Bay. Labor has consistently argued that the US military commission process is seriously flawed and there are inadequate safeguards against an unfair trial. Our criticisms include the lack of independence of the commission from the US executive arm of government, the absence of any rules of evidence and the absence of an appeal mechanism to an ordinary court. Given that the Attorney is sitting here across the table, I might say that we are also extraordinarily concerned that the US Secretary of Defense, Donald Rumsfeld, has made the incredible comment in recent days that, even if people held in Guantanamo Bay are tried by a military commission and acquitted, the US may indeed continue to detain these people. That is an outrageous suggestion, and I would urge the Attorney to speak strongly to the US government to say that that would not be an adequate way of treating not just Australian citizens who might be part of this process but people of any other country who will be.

So while Labor is supporting this bill for the benefits that it brings primarily to the two people who are most likely to be immediately affected, we are doing this only on the grounds of the humanitarian impact. The obvious alternative—to leave them in the conditions in Guantanamo Bay—is one that cannot be justified. I would like to take this opportunity to also talk briefly about the current status of the people who are being held at Guantanamo Bay and, in particular, Mr Hicks and Mr Habib, as I think it is very much within the context of this legislation. The US has specified that the detainees will be tried by a military commission, the rules of which were set out in a military commission order on 21 March 2002. The first detainees—nationals from Yemen and the Sudan—were charged on 24 February 2004 and have been charged with conspiracy for having:

Both Mr Hicks and Mr Habib are yet to be charged, although Mr Hicks has been declared eligible for trial since July 2003. We are coming close to a year since that announcement and comments by the Australian government that charges were to be laid imminently. Mr Hicks now has a military and civilian lawyer representing him, and we understand both Mr Hicks and Mr Habib now have some limited consular access. The US government maintains its view that the detainees are not subject to the ordinary protections of US law, yet they are also not entitled to the status of prisoner of war. They are classed as enemy combatants, leaving them with this indeterminate legal status—or in a twilight zone, as it has been described elsewhere. The precise nature of the detention of all those held by the US in Cuba is being tested currently in the US Supreme Court, and we expect that the government will pay close attention to the outcome of this case to see in fact whether they should have been arguing about the status of Australian citizens well before this.

The US is satisfied that its military commissions are appropriate and, as I have already referred to, its most recent comments indicate that the US may continue to detain people even if they are acquitted by the military commission. It has not provided any information publicly that confirms whether its intention is to charge Mr Hicks or Mr Habib under US law, international law or some other combination of known or unknown laws. The Australian government's comments on these cases has been very inconsistent and misleading. The government says it does not know what evidence the US has against these two Australians, yet in the same breath it continues to assert that it knows that they cannot be tried under any offences in Australia. The government also appears to have taken little action advocating to the US that charges be laid quickly and a fair process be used. In fact, the government has taken an entirely handsoff approach, allowing the US to proceed in any way it sees fit, and has expressed no concerns about the process to be used in the military commission.

I was staggered by a press conference that the Attorney gave in Washington on a recent visit, where after dealing with a number of other issues, such as his negotiations over air marshals and others, he said at the end to the gathered press corps, `I had better raise this issue with you, because it seems to be of interest to you'—that is, the media. This is our Attorney, raising the status, interest or process that is about to be applied to two Australian citizens being held by the US in these extraordinary circumstances only because the media has some interest in it, not because as the first law officer of the Commonwealth he might actually take some interest in whether a fair process is being used or whether he, like his colleagues from other countries, should be arguing for a better process to apply to the detainees.

That is in great contrast to what the British government has argued successfully—for the return of at least five of its citizens and for assurances about the process for those remaining. The British government made public and constant comment about the concerns that it had that British citizens were not going to receive a fair trial before the US military commission, and the British government was prepared to take some responsibility for the way its citizens were going to be treated at the hands of a foreign power—and not just any foreign power, but a close ally. Australia, although similarly established under the Westminster system of government and with a commitment to the separation of powers between the executive and the judiciary—all the sorts of things that the Attorney would be well aware of—seems to have felt no such requirement to advocate that its citizens should be brought before its own justice system. The Howard government seems to be willing to allow the US executive arm of government to act as prosecutor, judge and jury for these alleged terrorists, removing any pretence of a separation of powers and, in fact, consolidating the powers in the hands of the government not only to set the rules for the military trials but also to decide whether those people will even be released from detention if acquitted by the military commission.

The military order that sets up these military commissions that would sentence Mr Hicks and Mr Habib if they are found guilty of any offences they are charged with is obviously going to be an exercise of executive power, not US judicial power. This does raise a further question as to whether any continued detention, if they were transferred back to Australia following a conviction, would in fact be challenged under our Australian Constitution. As the Attorney would know, under our Constitution there is no authority for executive detention by the Commonwealth government, except where it is connected with a head of legislative power and is reasonably necessary for the purpose of its exercise. The government has declined to share with the opposition its legal advice on the constitutionality of this bill, but we believe that the obligation is fairly and squarely on the government to satisfy itself that these limitations can be overcome. We would like to raise, for the purposes of seeking further advice on this, whether the government is satisfied that it would be constitutionally valid to continue to detain people in Australia if they were transferred here under the amended bill following sentencing by a military commission with this extraordinary use of executive power.

In the time remaining, I will outline what the Australian Labor Party believes would be a much fairer and more just way of dealing with this situation in general, and these two Australian citizens in particular. Firstly, Labor believes that alleged terrorists must be dealt with quickly. Once caught and detained, they must be charged and brought to trial to face justice. It is the responsibility of any democratic government to ensure that the process that they face is fair and that they are not left in a legal no-man's-land. Labor wants to be convinced that all options for an Australian prosecution have properly been considered, based on the evidence available to Australia and the US. Labor will continue to demand that the government actively look at all options that are available, including the use of existing domestic or international laws, the option of applying international laws in Australia—even if new enabling legislation would be required—and any other options that would deliver a quick and fair process.

Labor will pursue options with legal experts—international, criminal and constitutional lawyers. The government does not appear to have aggressively pursued any of these options. Despite the government's assertions that it cannot take any of these options, it has not addressed numerous options that have been raised by others in the community and by experts in the legal world and that could be pursued.

The bottom line, Mr Attorney, is if Mr Hicks and Mr Habib cannot be tried in Australia, Australia must demand from the US a quick and fair process there. If they are eventually tried and acquitted in the US, they must not continue to be detained after acquittal. If they are tried and convicted, they should be able to serve their sentences in Australia.

It is a disgrace that the Howard government has had more than two years to deal with this situation and still cannot answer any of the following basic questions: what they will be charged with in the US? Will they be charged under US or international law? Is there any international law that could be used to try them in Australia? Has Australia been given a brief of evidence by the US or has it even asked for it?

The government has neglected its basic obligations to citizens detained by other countries. The government does not know if their detention is lawful. It has left them in a legal no-man's-land. It has expressed no concerns about the military commission process. It has not actively advocated to the US, unlike the Brits and others, for a return, for a better process or for a speedy prosecution of Australian citizens. Most inconsistently, Australian citizens charged in other countries with offences like murder, drug trafficking or other criminal matters, have got more attention from the government than the two people being held in Guantanamo Bay.

What Labor wants is that terrorists should be brought to justice. Charges should be laid quickly and trials should be fair. The Australian government should chase all options and pursue a trial here for Australians involved in alleged terrorist activities, if that is legally possible.

In any case, the Australian government must urge the US to charge detained Australians quickly, and prosecute those charges using a using a fair process, not a dodgy military commission. Australians cannot and should not be able to be indefinitely held without charge and, if they are charged and acquitted, they must not continue to be detained.

In summary, Labor supports the bill that is before the House because of the beneficial impact it would have to those that it affects. It is certainly a humane approach to allow people to serve in Australia any sentence that they may have received in any jurisdiction overseas so that they are closer to their family. We support that in principle, and we understand why the government wants to change the provisions of this act to be able to allow Mr Hicks and Mr Habib, if they are convicted by a military commission, to be able to serve out any sentence here in Australia. But we strongly disagree, and register our disagreement, with the approach that the Australian government has taken in this matter more generally, with its acquiescence to US demands and its approach to use a military commission that will not achieve a fair outcome. We disagree with the government's ongoing acquiescence and failure to push the US to charge and bring to trial the two people who have been held for over two years in detention in Guantanamo Bay.

The DEPUTY SPEAKER (Mr Mossfield)—Is the amendment seconded?

Mr McClelland —I second the amendment and reserve my right to speak.