Our Repatriation of Citizens Bill 2007 would establish an Act to require the Australian Government to promptly request the government of a country in which an Australian citizen is being held in detention in circumstances where there is a risk of infringement of that citizen’s human rights under international human rights treaties and conventions to which Australia is a party, to cause the swift release and surrender of that citizen and to provide for his or her repatriation to Australia.

The motivation for this bill is the failure of current laws to protect the human and legal rights of Australian citizen, Mr David Hicks, following his capture by the United States of America authorities in Afghanistan in 2003.

Mr Hicks’ situation demonstrates the absence of any obligation in Australian law for the Attorney General to act. On 6th March 2007 the Law Council of Australia advised that there was no prospect of Mr Hicks being brought promptly to trial in the United States before a regularly constituted court observing international fair trial standards and called for his immediate release from detention and repatriation.

The Attorney General has not acted despite evidence of undue delay in charges being laid, charges laid that were retrospective, charges made of war crimes for which there was no evidence and the prospect of an unfair trial by an ad hoc military commission established to try non-US citizens who would be accorded a lesser standard of justice than applies to US citizens.

On transfer from Afghanistan to Guantanamo Bay, Mr Hicks was declared by US authorities to be an ‘unlawful enemy combatant’ - a status that is unknown in the law of war. Whilst he was captured and detained in what was said to be an ongoing war on terror, Mr Hicks was denied the protections afforded prisoners of war under the Geneva Conventions.

In five years detention at Guantanamo Bay the legality of Mr Hicks detention has not been reviewed by a court or independent tribunal. Indeed the decision to detain Mr Hicks and others in a location beyond US sovereign territory indicates an intention to deny detainees access to such reviews.

For the first two years of his detention, Mr Hicks had no access to a lawyer. The military commission regime set up to try Mr Hicks made no provision to ensure independence, impartiality or competence and failed to safeguard even the most basic fair trial rights such as the defendant’s right to be present to hear the evidence against him.

The US Congress enacted the Military Commissions Act (MCA) which specifically states that the speedy trial provisions of the Uniform Code of Military Justice do not apply. The MCA permits military commissions to admit evidence obtained by coercion, evidence of hearsay or even hearsay within hearsay, and evidence extracted from defendants themselves under involuntary interrogation.

The MCA allows for information to be withheld from a defendant about the sources, methods or activities by which the US authorities obtained evidence against him, rendering the defendant's right to challenge the reliability of that evidence potentially illusory and undermining a defendant’s ability to resist the admission of evidence obtained by use of torture.

Unlike international criminal courts, the MCA provides that the evidence admitted against the defendant will not be evaluated by an international panel of independent, impartial and expert judges, but by ordinary US military officers appointed by the military commissions convening authority.

No independent investigation has been conducted into persistent and credible allegations of detainee abuse and mistreatment at Guantanamo Bay.

Mr Hicks has spent the last year in solitary confinement; 22 hours a day alone in a small concrete cell with 24 hour artificial light.

The Attorney General claimed that the Australian Government had no information to suggest that Mr Hicks had been subjected to abuse or mistreatment and that the US had provided assurances that Mr Hicks was treated in accordance with the standards required by the Geneva Convention. This is clearly not the case.

All previous charges against Mr Hicks—conspiracy to commit war crimes, attempted murder by an unprivileged belligerent and aiding the enemy - have now been dropped and he has finally been arraigned with the retrospective charge of providing material support for terrorism. On 27 March he pleaded guilty to that charge and awaits sentencing. US prosecutors indicate that it is possible that he will serve whatever sentence is brought down in Australia.

This bill provides a process whereby a citizen being held in detention outside Australia, their relative, a diplomat, a legal representative or a human rights organisation can apply to the Attorney General to request a foreign government to release and surrender an Australian citizen where there is a risk of infringement of that citizen's human rights under international human rights treaties and conventions to which Australia is a party.

The Attorney General must then request a report on the conditions of detention, request legal advice as to whether this demonstrates that risk and if the Attorney General refuses to take action, he or she must provide a statement of reasons and court action may be taken to require the repatriation request to be made.

The Democrats consider that all Australians are entitled to the protections afforded by international treaties such as the International Covenant on Civil and Political Rights, to which Australia is a signatory, no matter whether they are in Australia or overseas. This bill does not guarantee the upholding of human and legal rights but it does establish an obligation of government to request repatriation of Australian citizens held in detention where there is a risk that those rights are in jeopardy.