Mr KING (9:20 PM) —The release of a report by British nationals formerly held at Guantanamo Bay that alleges abuse of Australians David Hicks and Mamdouh Habib—in his case, also in Egypt—adds fresh impetus for the speedy and fair trial of the pair and for the immediate and impartial investigation of their treatment in detention. This is in addition to alarming claims that their warders are deliberately hampering the work of the International Red Cross at Guantanamo Bay.

Let us assume Mr Hicks is all that he is alleged to be by the United States—that he was involved with al-Qaeda, the organisation responsible for the devastating attacks of September 11, and a supporter of the Taliban regime, which has sanctioned the rape and murder of thousands in Afghanistan. As an Australian national and as a human being, he is still entitled to a standard of defence that shows the world that principles we take for granted in our legal system are basic and should be enjoyed by all.

As far as Mr Hicks is concerned, he is protected by both the provisions of the third Geneva convention on the treatment of prisoners of war and by the International Covenant on Civil and Political Rights, as Australia and the USA are signatories to them. Article 47 of the Geneva convention provides the description of a prisoner of war as a member of a militia or a military corps involved in armed conflict and one who has `fallen into the power of the enemy'. Mr Hicks meets this definition because he was a member of an organised military force and that force displayed a distinctive ensign. While only Pakistan, the United Arab Emirates and Saudi Arabia recognised the former Taliban regime's de jure legitimacy, it was a de facto government and so captive members of the former Taliban armed forces should be treated as prisoners of war. The UN has called for this classification. Surely, too, considering the current military activity has been called a war on terror, this is an appropriate position.

United States President George Bush has listed Hicks as a person eligible for trial before US military commissions established pursuant to the military order of 13 November 2001. Australia has been told:

Yet since the Magna Carta was signed in 1215 a basic principle of our legal system as inherited from England is that to no person would authorities `sell, or deny, or delay right or justice'. As this is the basis also for US law, there should also be a desire to bring closure to individual cases, and Australia should push for this.

At the very least, the trial of Hicks appears to be progressing, albeit belatedly, whereas justice continues to be denied to Habib, who, it is claimed, is in dire need of medical treatment. The ICCPR clearly states that prisoners like Habib should be given an open trial within a reasonable time. The thorny issue here is that fighting a war on terror will not be quick. If the Afghanistan theatre is to be seen as a battle in a longer campaign, the US can argue that they are entitled to hold prisoners for as long as the war continues. The problem is that this can go on forever. I contend that to pick up combatants in Afghanistan and hold them indefinitely is a distortion of the rules of international law. As a basic principle, all people at all times have the protection of the international covenant to be tried in a timely manner and know the nature of their alleged crime.

Access to prosecution evidence has indeed been restricted. In dealing with the challenge of opposing right of access to prosecution evidence versus understandable security concerns, perhaps a joint Australian and US intermediary body can be established between the defence counsel and the prosecution to determine what evidence the prisoner should have access to. However we deal with this problem, the United States should not judge for itself what constitutes a national security threat and deny natural justice to those it accuses of terrorism, otherwise the trial will look like a star chamber without proper rules, and this is absolutely unacceptable.

Justice Minister Ellison deserves praise for gaining concessions on Hicks's behalf including the dropping of the death penalty, his transfer to Australia to serve the sentence if convicted, his option to retain an Australian lawyer with whom he could communicate unmonitored, and for his trial to be held openly. Yet these concessions clearly fall short of what the government should demand for its citizens as Australians. For example, under the presidential trial order, accused terrorists will not have an appeal mechanism beyond a military commission procedure.

One such standard—article 13 of the Geneva convention—provides for the right to humane treatment, which includes protection from curiosity and public display, and respect of honour of captive, free from intimidation. Yet since his arrest, Hicks has been `on display' for a delegation of US congressmen. Photographs have been released to the media showing how captives are blindfolded in a kneeling position to exert physical pressure. And again, an ad hoc approach in the trial of accused terrorists undermines the legitimacy of the process. Habib awaits decisions on the process by which he will be tried. American John Lind has entered a plea bargain in a US civil court. Yasser Hamdi is detained without charge in Virginia. Zacharias Moussaoui, a French citizen, has been tried in a civil court. `Shoe bomber' and UK citizen Richard Reid has been tried in a civil court. This appears to involve dissimilarity in treatment.

While the 11 September 2001 attacks on New York `represent an assault not only on the people and the values of the United States of America but of free societies everywhere', concern exists that the Australian government are not being seen to safeguard our own values in terms of independence of foreign policy and protection of the rights of our own nationals. (Time expired)