Senator BROWN (5:20 PM) —I draw senators' attention to the Greens amendment to the International Transfer of Prisoners Amendment Bill 2004, which will ensure that there is an appeal mechanism for Australian prisoners returned from Guantanamo Bay. The amendment has been circulated and reads:

(1) requests that the Government:

(a) immediately seek to obtain the release and repatriation of the two Australian citizens who are currently detained against their will in Camp Delta Guantanamo Bay;

(b) provide a report to the Parliament on the measures it has taken to achieve the release of the two detainees by 1 July 2004;

(2) condemns

(a) the use of military commissions in place of courts as being inherently flawed and designed to secure convictions at the expense of justice;

(b) the United States Government's indefinite detention, without charge, of over 600 people in Guantanamo Bay, as an affront to human rights; and

(c) the Australian Government's complete lack of support for Australian citizens detained in Guantanamo Bay as an appalling failure to provide for the welfare of its citizens”.

I now go back to the question of why Australians are being given third-rate treatment by this government and by the Bush administration. I point to the arrangement for the transfer of the Danish national from Guantanamo Bay back to Denmark. A statement from Richard Boucher, the spokesman for the Bush administration, said:

The United States has agreed to release the Danish national detained at Guantanamo to the control of the Government of Denmark. This decision is based on assurances provided by the Government of Denmark that it will accept responsibility for its national and take appropriate and specific steps to ensure that he will not pose a continued threat to the United States or the international community. This transfer is the product of extensive discussions between our two governments. Denmark is one of our closest allies in the war on terrorism, and we are satisfied it will do everything possible to ensure that the individual does not engage in terrorist activities. The timing and modalities for transfer remain under discussion.

The Government and the people of Denmark have been courageous partners in the fight against terror. Our cooperation on this issue, as on so many others, is a continuing testament to the close relationship between our two countries.

What happened with Australia? What has happened to the special relationship between the Australian government and the Bush administration? Why is Denmark one of the closest allies in the war on terrorism but not Australia, apparently, for the purposes of considering people interned at Guantanamo Bay? Why is it that the US is satisfied that Denmark will do everything possible to ensure that the individual does not engage in terrorist activities, as an assurance about the repatriation, but the US is not satisfied that the Australian government will do that? What is going on behind closed doors that gives Denmark and Danes special status but not Australia and Australians?

On 1 March this year it was announced that Russian nationals will be transferred to Russia from Guantanamo Bay. The US Department of State news release said:

One must hope that Russian law and obligations are up to international law and obligations, because those of the United States are manifestly not when it comes to Guantanamo Bay. But the question is: why has the Howard government failed to do what the Putin administration in Russia has been able to do—that is, get its nationals repatriated? What is there in this statement and in the assurances given to the US by Russia that Australia cannot give to the US on behalf of the two Australians who remain uncharged and languishing in illegal conditions in Guantanamo Bay? The minister is taking notes; I will be looking for answers to that question in the committee stage.

On 24 February the Foreign Secretary made a statement with regard to British detainees at Guantanamo Bay:

That is the same as one of the Australian detainees. The statement continued:

Unlike the Australian government, the British government is concerned about this military commission process. The statement says:

that is, the Foreign Secretary—

We have the British government—a Labour government—saying to the Republican administration in the United States, `These military commissions are not good enough; we won't accept them,' but we have a conservative government here in Australia saying to the Republican administration in the US, `It's okay for Australians.' This derogation of the standards of British justice has had the British Attorney-General and British Prime Minister standing up and saying to the Bush administration—with whom they are on excellent terms, as you know—`No, that's not a standard our country will accept.' But the Australian Prime Minister and Attorney-General not only are too weak-kneed to stand up for Australia and Australian law under these circumstances but have become complicit in selling out on both. The Foreign Secretary in London went on to say:

He then names the five. The statement continued:

Why not any of the Australians? Because this government is not an upholder of the law in the way that the UK government is. It accepts inferior standards of the law, including international law, compared with the British government, and it is weaker in looking after the interests of its citizens than even the Russian government. Add to that the Danish government, the Spanish government and—goodness gracious—the government of Saudi Arabia, which has had some people put on the `for release' list. There are no Australians but there are people from all those countries. When we get to the heart of the matter we understand that this military commission, which is unsatisfactory to the British government and which is an appalling failure of law—the rules of evidence do not apply there—is good enough for the Australian government. We understand that the US government is going to lay charges under international law. The Australian government says, `We can't have these two men return to Australia because we can't charge them with anything.' If the US government is going to charge those in Guantanamo Bay or wherever under international law, why can't they be charged under international law in Australia?

When we look at the Australian law, we find that it does cover this. Section 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978 does cover people who would enter a foreign state with the intention of hostile activity or engage in hostile activity, including armed hostilities. So what is going on here? What we see is the Howard government, with Attorney-General Ruddock directing affairs, failing this nation, not just on international law but on our own law, and making a statement to not just two detainees but 20 million Australians that the way in which our laws are applied is not satisfactory in dealing with terrorists. If they are not satisfactory now, when will they be?

Clearly, under both international and domestic law—if we have the argument straight, and I have heard nothing to the contrary—both Hicks and Habib are as vulnerable in Australia as they would be elsewhere; certainly in Britain. But the Australian government, for some reason, has chosen not to have them here, and we must assume that the reason is that it is politically embarrassed by the prospect of these two men being brought back to Australia. One can question whether that is because there is no evidence that would justify the sorts of jail sentences that the government would like to see them receive—for political purposes; not for real and legal purposes; not justified, but for political purposes.

We know that these men were unarmed; we know that people who were with them on both occasions were not arrested and certainly were not taken to Guantanamo Bay; we know that they have been held without charge for two years, illegally, by the President of the United States and we now know that the Australian government is pleased for them to go before a military commission in the United States, which removes their rights under the law—basic and fundamental rights, including appeal rights—and we are expected to say, `Yes, we'll support that.' It is an egregious failure of the Australian government as compared with several other governments in the world. The Australian government is worse than the Russian government in this matter, and surely that is saying something. In the committee stage we will move an amendment to ensure that there is an appeal right if Hicks or Habib—indeed, it is an `if'; it depends on President Bush—are repatriated to this country. (Time expired)