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BREAKFAST
Thursday, 4 August 2005
FRAN KELLY: This week the concerns of three former US military prosecutors, over the trial process for Guantanamo Bay inmate David Hicks, were revealed; two of those prosecutors saying the process is flawed and any outcome inevitably rigged. In response, our Foreign Minister Alexander Downer says Australia’s Ambassador to the US, Dennis Richardson, has spoken to the Pentagon and been assured by the head of the military commission that the allegations were investigated and the commission process cleared of bias.
Well, this morning another eminent legal voice has entered the debate—Justice Mary Gaudron, rarely heard since her retirement from the High Court two and a half years ago. Mary Gaudron, good morning.
MARY GAUDRON: Good morning, Fran.
FRAN KELLY: Ms Gaudron, the question is really: in your view, should David Hicks face trial under the US military system?
MARY GAUDRON: Can I start by saying that the use of the word ‘trial’ is disingenuous. He is not being ‘tried’ in any ordinary sense of the word. He is being subject to a military inquiry, the rules of which are anything but consistent with the notion of a fair trial in respect of a criminal offence. If David Hicks committed a criminal offence anywhere in the world then the rule of law requires that he be tried in a proper … in court, composed of independent judges, whereby his criminal guilt can be ascertained.
FRAN KELLY: In your view then, the process he is facing, is it legal?
MARY GAUDRON: Well, it’s legal in this sense that it follows a presidential decree, which of course is the hallmark by which people are tried in some countries that we would regard as a dictatorship. It’s legal in the sense that there is a decree but it is an extralegal, extrajudicial process. Whether or not it is consistent with international law and norms is another question entirely. That’s really all I can say on that issue….
FRAN KELLY: What’s your view? Is it consistent with international norm or process?
MARY GAUDRON: The procedures which have been used would not seem to be consistent with a rule of law which of course most United Nations countries require … well, assume is the very basis of all human rights protection. It seems, well the material would suggest, his human rights have been infringed in that he has been held for four years pending a process, which as I say is not a trial, at best could be described as a fact-finding process. Holding a person for four years without charge would not seem to be consistent with international norms respecting human rights. To have a person subject to punishment, which I understand can be the result of the procedure, without proper access to independent legal advice is not consistent with international norms, and to have that person subject to punishment or liable to punishment on findings of persons that cannot be described as independent … well, bodies that cannot be described as independent courts or tribunals is not consistent with international norms, in my view.
FRAN KELLY: Well, basically the position of the Australian government is these are different and difficult times, and Prime Minister John Howard says the simple fact is David Hicks is a dangerous man facing very serious charges and the military commission in the US is the only place where he can be charged and convicted, that if he is brought home here to Australia there is no law here to charge him with.
As a former High Court judge, in your view, is that correct?
MARY GAUDRON: It may be correct but it is not immediately obvious to me that it’s correct. As I understand it he’s been charged with conspiracy. Conspiracy is a flexible common law notion, the limits of which have not been settled. It’s always been possible, or at least in modern times it’s been possible, to charge a person in one country with conspiracy to do acts in another country if there is some relevant connection with the country in which the charge is brought. So it’s not entirely obvious to me that he couldn’t be dealt with in this country. But even if he can’t be dealt with in this country a further question arises. If he has committed no crime, according to this country’s laws, there is no reason why he should be dealt with in this country. Well, if he has committed a crime, according to American law, he should be dealt with in the American courts, in the proper traditional way with all the constitutional safeguards. If he committed a crime in Afghanistan then it is for Afghanistan to deal with him. If on the other hand—and this seems to be what’s behind the notion of ‘difficult times’—he has committed a crime which is against international laws or international norms, then what one should be doing is searching for an international solution.
Now, it seems to me that that is perhaps the most remarkable thing about all these events. Nobody has thought to look to international protection either of Mr Hicks’s right or of the rights of the Americans to deal with him or anyone to deal with him. It is the duty of Australia to be looking and perhaps fostering some international solution to the type of problem that that has developed in relation to Mr Hicks and the other detainees.
FRAN KELLY: But, Mary Gaudron, what if we simply have the situation where Australian law and international law currently is inadequate. What do we do with someone who is charged with dangerous acts if it turns out that the laws can’t deal with them?
MARY GAUDRON: Okay, first of all, he is charged with conspiracy—as I understand it. How can you determine whether or not the person is dangerous unless you have a proper procedure? You see, you assume he is dangerous, Mr Howard says he is dangerous, but I don’t know that he is dangerous. It’s clear he has not committed an offence under American law or he would have been dealt with in the American courts in accordance with American law. If he hasn’t committed an offence against Australian law, querying whether or not that is so, then the rule of law, normal civilised behaviour says: you are not deprived of your liberties, you are not exposed to punishment if you haven’t broken the law—that’s the very essence of a civilised, free, democratic country.
FRAN KELLY: Senior legal experts here, the Law Lords in Britain and now at least four US military lawyers, for the prosecution and the defence in this case, have branded the US military process ‘rigged’, ‘unfair’, a ‘kangaroo court’—these are some of the terms used. From what you know, how would you describe it?
MARY GAUDRON: Well, I can simply say it’s a commission of inquiry with powers that we would ordinarily accept should only be exercised by independent courts that conform with the rule of law. And it is just an extraordinary procedure, an extraordinary process, one in which rights are put at risk and which the truth is put at risk, and it’s just not good enough.
FRAN KELLY: And why do you think the Howard government hasn’t demanded the return of David Hicks in the same way the British government demanded and secured the return of its citizens?
MARY GAUDRON: Oh, I couldn’t answer that. Perhaps they haven’t considered the legal issues in a totally objective manner. I don’t know why they have done this without formal charges and without formal and proper legal safeguard. It doesn’t surprise me; it horrifies me. And it horrifies me to think that anyone could think that this is good enough. It simply isn’t good enough. It’s not good enough to leave things on that basis.
FRAN KELLY: Mary Gaudron, thank you very much for your time.
MARY GAUDRON: Thank you, Fran.
FRAN KELLY: Former High Court judge, Mary Gaudron.