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Monday, 8 March 2004
Page: 20932


Senator GREIG (1:37 PM) —The Democrats believe the International Transfer of Prisoners Amendment Bill 2004 represents a failure on the part of the government and a massive abrogation of its responsibility to Australian citizens. This bill seeks to ensure that Mr David Hicks and Mamdouh Habib can be brought home to Australia to serve any sentence of imprisonment imposed by a US military commission. We Democrats certainly support bringing these two men home to Australia but we believe they should have been brought back here months ago. The government's position is that they can be returned only after they have been convicted by a dodgy US military commission with little semblance to a proper court of law. There is no expected time frame in which this might occur, despite the fact that both Mr Hicks and Mr Habib have been detained for more than two years. On the other hand, if they are not tried or if the military commission finds them innocent, there is no guarantee that they will ever be released from Guantanamo Bay. In fact, the US has expressly stated that they could continue to be detained even after being found innocent.

The Australian government's handling of this issue has been disgraceful from the outset. It has been negligent and irresponsible and has disregarded the welfare of its own citizens. Australia's acquiescence to the farce that is Guantanamo Bay stands in stark contrast to the approach taken by other comparable jurisdictions such as Britain and Denmark, both of which secured the return of their respective nationals. While these governments have been vigilant in their efforts to secure the return of their citizens, the Australian government has placed its alliance with the US above the most basic rights of its own citizens and this has now resulted in a situation where different standards of justice apply depending upon which country you come from. We Democrats firmly believe that it should not be up to the United States to decide what Australian citizens can and cannot do. The Australian government has ultimately neglected its responsibility to Mr Hicks and Mr Habib, and this legislation fails to rectify that situation.

The United States has been widely criticised in relation to the regime at Guantanamo Bay, including over the location of the detention facility, the physical conditions in which detainees are being held, the refusal to treat them as prisoners of war and of course the structure and procedures of the proposed military commission. By holding these detainees outside of the United States the US government has sought to ensure that they do not have access to any protection that might otherwise be afforded to them under US domestic law. It is this situation which has, up until recently, prevented detainees from challenging the legality of their detention in the US courts. I note, however, that the US Court of Appeal recently held that it had jurisdiction to determine a habeas corpus action brought by the Guantanamo Bay detainees and that such an application is currently pending before the court.

The US has sought to strip detainees of their rights not only under domestic law but also under international law. It has done so by concocting a new category of detainee—the so-called `unlawful combatant'—and thereby escaping the obligations that would otherwise apply in relation to prisoners of war under the Geneva convention. This is unacceptable and a clear breach of international law. The result is that Guantanamo Bay detainees are being held in legal limbo—or, as some have suggested, in a twilight zone—between international law and domestic law, with no rights under either. It is this legal framework which has enabled the US to hold more than 600 detainees, including a number of children, without charge at Guantanamo Bay for more than two years.

Although improvements have apparently been made to the conditions in which detainees are being held, reports indicate that for many months they were housed in tiny wire cages, exposed to the elements on all sides. From the outset, it has been alleged that some of the detainees have never had any involvement in terrorism. This was confirmed when in 2003 more than 40 detainees were released without charge, including two elderly farmers who were taken into custody because they happened to be in the wrong place at the wrong time. It is no wonder that other countries have objected strongly to their citizens being kept in such conditions and have demanded their repatriation. Australia's laxity in relation to the welfare of Mr Hicks and Mr Habib has been unconscionable.

Despite our strong objections to the way in which the government has handled this whole situation, we Democrats will be supporting this bill on account of its humanitarian benefits. We do, however, make it very clear that our support of one aspect of the bill is qualified, and that is the provision which categorises US military commissions as courts for the purposes of the prisoner transfer scheme. While we Democrats believe it is vital that Mr Hicks and Mr Habib have access to the scheme—and we are prepared to support the bill on that basis—we strongly object to any suggestion that the military commission proposed by the US has any semblance to a court of law. The structure and processes of the commission are repugnant to well-established principles of law. Yet, instead of refusing to allow its citizens to be tried before such a commission, the Australian government has actually sought to justify its use by the US.

Whilst acknowledging that their procedures will differ greatly from the procedures which apply in a criminal trial, the government has argued that military commissions represent a `recognised way of trying persons who may have committed offences against the laws of war'. For example, the government has highlighted the fact that military commissions were used to try Japanese prisoners of war after World War II. However, in making these arguments, the government ignores the fact that Guantanamo Bay detainees have never been classified as prisoners of war.

The proposed military commissions have been widely condemned by judges, lawyers, academics, various governments and human rights organisations, such as Amnesty International and Human Rights Watch. Some of the more disturbing characteristics of these commissions are as follows. The first point is that they lack independence. Not only will the detainees be prosecuted by the US military but the commission itself will include military personnel and the detainees will even be represented by members of the US military. The second point is that only the presiding member of the commission is required to have legal qualifications while the majority of the commission will be comprised of US military officers. The third point is that an individual being tried before the commission can only access a lawyer of their choice if they can afford one or the lawyer agrees to provide free legal representation. Even then, the lawyer will only be permitted to assist the US military lawyer appointed to represent the person. The fourth point is that the commission will not adhere to the usual rules of evidence. The fifth point is that the appeal process is limited. The sixth point is that President Bush may overturn the decision of the commission without any obligation to provide reasons for his decision. The seventh point is that, if convicted, the person can face the death penalty. Finally, the eighth point is that, if charges are not proved, there is still no guarantee of release.

As we know, the Australian government has managed to secure a number of guarantees in relation to the trial of Mr Hicks and there has been some vague indication that Mr Habib might be granted similar guarantees should he be listed as eligible for trial. Perhaps the most significant of these guarantees is that the death penalty will not be applied in the event of a conviction. Other guarantees include the right to consult an Australian lawyer and the right to have two family members present at the trial.

While the Democrats welcome these gains, they also serve to illustrate the different levels of justice that the US is applying to different detainees depending on their nationality. While some detainees have been allowed to return to face trial in their home country, others such as Mr Hicks and Mr Habib are left to face a dodgy military commission. Yet Mr Hicks and Mr Habib are in a better position than many of the other detainees whose countries have been unable to secure them the same guarantees. This kind of differentiation is abhorrent to the principle of equality before the law which underpins the entire rule of law.

One of the most alarming issues arising from this situation is that, while the US wants Australia to acquiesce to our citizens being treated in this manner, it expects an entirely different response from us if we believe American citizens have committed crimes against humanity. As we know, the US has asked Australia to enter into an agreement which would grant American citizens immunity from prosecution by the International Criminal Court through a so-called article 98 agreement. The request creates an interesting conundrum for the Australian government, which has been a strong advocate for the ICC and played an instrumental role in its establishment. Moreover, there are a plethora of legal opinions suggesting that such an agreement would be contrary to international law and Australia's obligations under the Rome statute. Despite Australia's strong advocacy of the ICC and the potential illegality of article 98 agreements, the government has indicated that it has no objection to entering into such an agreement with the US; in fact, it is currently negotiating such an agreement.

In December 2002, we Democrats successfully moved to refer the proposed agreement to the Joint Standing Committee on Treaties. We remain deeply disappointed that the committee has refused to commence the inquiry claiming that it is unaware of any such proposed agreement. Once again, during the recent budget estimates, the government acknowledged that a request had been made by the US, the Australian government had indicated preliminary agreement and negotiations were continuing. In the meantime, the US has coerced almost 50 other countries into entering similar agreements. It has made it very clear that a refusal to sign such an agreement will carry serious consequences, particularly for poor nations. The US has already suspended $47.6 million in military aid and $613,000 in military education programs to 35 countries who have refused to sign such agreements.

Despite its failure to secure agreements from these countries, the US has implemented contingency plans should they attempt to refer a US citizen to the ICC for prosecution. In particular, it has passed legislation dubbed the `Hague Invasion Act', which permits US military personnel to invade The Hague, where the ICC is situated, in order to retrieve US citizens who have been referred to the court. Once again, we are seeing a clear double standard of justice depending on which country you are from. Moreover, there is little doubt that US citizens will be afforded the most rigorous standards of protection, even to the point of granting them impunity for the worst possible crimes against humanity.

We Democrats firmly believe that the Australian government should be doing more to combat this unequal system of justice being pushed by the United States. Firstly, it should be doing more in relation to Mr Hicks and Mr Habib. An arrangement to facilitate the repatriation of these men following their conviction is insufficient, in particular because, after two years, neither of them has been charged with any offence. If and when they are eventually tried, there is no guarantee of their release even if they are found to be innocent of the charges laid against them—in other words, conviction is the only means by which either man can be returned to Australia at any time in the near future.

Secondly, the government should be making strong objections to the US regarding the entire regime at Guantanamo Bay. In the context of its very close relationship with the US, Australia has the capacity and the opportunity to encourage the US government to dismantle this flawed regime and implement new measures to ensure that detainees are dealt with according to the law and humanely. Finally, Australia should refuse the US request to enter into an article 98 agreement which would grant American citizens immunity from prosecution in the International Criminal Court. In closing, we Democrats welcome this development which will hopefully result in the repatriation of Mr Hicks and Mr Habib to Australia, although there is no guarantee of that. We once again take this opportunity to voice our very real anger at the appalling way in which the government has handled this entire situation.