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Wednesday, 29 November 2006
Page: 209

Ms Roxon asked the Attorney-General, in writing, on 15 August 2006:

(1)   In light of the US Supreme Court decision in Hamden v Rumsfeld, which struck down the military commissions proposed for Guantanamo Bay detainees as unauthorised under US federal law, what timeframe does the Government consider reasonable for the fair and timely trial of Australian citizen Mr David Hicks.

(2)   What is the latest information, or estimate, on when Mr Hicks’ trial will (a) commence and (b) be completed.

(3)   What period of time does the Government consider unreasonable for the detention of an accused without trial.

(4)   What are the details of the US Government’s revised plans for the trial of Guantanamo Bay detainees such as Mr Hicks.

(5)   Will the new system referred to in part (4) comply with the Geneva Conventions and other established legal principles.

(6)   What assurances has he sought to ensure the US Government’s revised plans offer Mr Hicks due process before the law; for example, in regards to proper rules of evidence and independent means of appeal; and what response has he received.

(7)   What assurances has he sought from the US Government regarding the conditions in which Mr Hicks is being detained; most particularly whether he has been subject to solitary confinement or any form of torture; and what response he has received.

(8)   What attempts have been made by Australian consular officials to ascertain (a) the health of Mr Hicks and (b) the conditions in which he is being held.

Mr Ruddock (Attorney-General) —The answer to the honourable member’s question is as follows:

(1)   The Australian Government’s view is that any trial of Mr Hicks should happen as quickly as possible. I have re-iterated this in conversations with US Attorney-General Gonzales.

(2)   There is no set date for Mr Hicks’ trial at this stage. Mr Hicks has not yet been formally charged under the new Act. A US Defense department spokesperson is reported as saying said that trials are not expected until 2007.

(3)   The length of detention of an accused in custody prior to trial differs in individual cases. The Government has always maintained that Mr Hicks’ case should be resolved as quickly as possible and that Mr Hicks should face trial to answer the allegations against him. I reiterated my concerns in relation to the length of time this has taken in discussions with Attorney-General Gonzales in September 2006. However, it is the right of respective parties to test decisions in the courts and this is what has been happening in the US over the last couple of years.

(4)   See above answer to Question (2). The United States Congress passed the Military Commissions Act of 2006 on 29 September 2006; the Act was signed into law by President Bush on 17 October 2006. The Act provides an alternative method for trying detainees held at Guantanamo Bay. The Act authorises the President to establish military commissions, establishes the jurisdiction of the commissions over ‘unlawful enemy combatants’, and sets out procedures for the treatment, prosecution and conviction of suspected terrorists. Additionally, regulations detailing military commission procedures are to be formulated within 90 days of the enactment of the Act.

(5)   The Act incorporates a number of fundamental due process safeguards for defendants, including a right to be present throughout the trial with limited exceptions, a right to see all the evidence against an accused, a right to cross-examine prosecution witnesses, a presumption of innocence and an extensive appeals process up to the Supreme Court. Whether or not the Act complies with the Geneva Convention and other legal principles will ultimately be a matter for the United States government and the courts.

(6)   I have held several discussions with US Attorney-General Gonzales, in which I have emphasised the Australian Government’s desire to see Mr Hicks’ case dealt with expeditiously. I also reiterated the Government’s expectation that additional safeguards negotiated previously to apply to Mr Hicks’ case will apply to any new military commission trial of Mr Hicks. A number of issues which were the focus of those safeguards have been taken up in the new legislation. The additional safeguards previously negotiated included:

  • Based upon the specific facts of his case, the United States has assured Australia that it will not seek the death penalty in Mr Hicks’ case.
  • Australia and the United States agreed to work towards putting arrangements in place to transfer Mr Hicks to Australia, if convicted, to serve any penal sentence in Australia in accordance with Australian and United States laws.
  • Conversations between Mr Hicks and his lawyers will not be monitored by the United States.
  • Subject to any necessary security restrictions, Mr Hicks’ trial will be open, the media will be present and Australian officials may observe the proceedings.
  • The Australian Government may make submissions to any review panel which would review Mr Hicks’ military commission trial.
  • Should Mr Hicks choose to retain an Australian lawyer with appropriate security clearances as a consultant to his legal team, that person may have direct face-to-face communications with their client.
  • Mr Hicks may talk to his family via telephone and two family members are permitted to attend his trial.

   Attorney-General Gonzales has given an undertaking that the assurances previously negotiated will be honoured. With respect to rules of evidence and rights of appeal, see (5) above.

   (7)   At the Australian Government’s request, there have been two investigations into allegations of mistreatment of Mr Hicks, neither of which revealed any evidence of abuse. A United States Department of Defense investigation concluded in August 2004 that there was no evidence to support the allegations. The most recent report by the United States Naval Criminal Investigative Service (NCIS) was provided to the Australian Government in July 2005. NCIS found no information that substantiated or corroborated the allegations of abuse.

   Mr Hicks is not held in solitary confinement. Conditions for prisoners at Guantanamo Bay are equivalent to a maximum security facility in the US and his conditions are similar to those who are in custody awaiting trial for terrorism offences in Australia. Earlier this year, Mr Hicks, together with a number of other detainees, was transferred to a newly completed facility in Guantanamo Bay. Mr Hicks is being held in the general block area of this facility in a single occupancy cell. Cells in the general block area have windows providing natural light. Mr Hicks continues to have access to an exercise facility in a group area. He is able to communicate with the other detainees during exercise periods and between cells.

   (8)   Australian officials have visited Mr Hicks at Guantanamo Bay on 17 occasions. On each occasion, Mr Hicks’ welfare has been assessed. No evidence of abuse or maltreatment has been found by Australian officials. The last consular visit was made to Mr Hicks on 27 September 2006. The Consul-General advised that Mr Hicks looked well but that Mr Hicks chose not to speak to the Consul. We are aware that the International Committee of the Red Cross (ICRC) met with Mr Hicks recently at Guantanamo Bay. We have not been advised of the content of the discussions between Mr Hicks and the ICRC. The ICRC would normally take up prisoner concerns with the camp authorities. The Australian Government will continue to monitor Mr Hicks’ welfare closely, and fulfil our consular responsibilities to Mr Hicks as an Australian citizen. With regard to the conditions in which Mr Hicks is being held, see (7) above.