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Transcript of doorstop interview: Stirling, South Australia: 19 July 2003

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E and OE

19 July 2003

Minister for Foreign Affairs, Alexander Downer

Doorstop Interview, Stirling, South Australia

FOREIGN MINISTER ALEXANDER DOWNER: Okay, this is to talk about two things. There's a story on the front of The Australian today claiming that Nick Warner who is a very senior official of my Department and has been the Ambassador for Counter-Terrorism, is to be appointed as the Special Co-ordinator for the Solomon Islands operation. And I just take this opportunity of saying that Nick Warner will be appointed as the Special Co-ordinator for the Solomon Islands subject to final decision by the National Security Committee of Cabinet on Tuesday. He is an outstanding diplomat. He was our High Commissioner in Papua New Guinea. He was the head of the division of the Department responsible during 1999 and the East Timor issue. And I have enormous confidence in him and I think, as Special Co-ordinator, he'll be able to do a very good job in making sure that the international intervention is appropriately co-ordinated amongst itself but also is appropriately co-ordinated with the Solomon Islands Government. So it's a very important job, and the Deputy will be a New Zealander. That's a matter for the New Zealanders to announce.

The second thing I want to talk about is David Hicks. I and the Attorney-General and other government officials have been having substantial conversations with the Americans over the last week or so. I've been speaking myself to Secretary of State, Colin Powell, during the course of the week. The Americans have put off the military commission which is an American equivalent of what we would call a court martial. They've put off the military commission for the time being, pending discussions with senior British and Australian officials. We're sending a senior delegation to Washington in the early part of next week to sit down with the Americans and to talk to them about the military commissions and the details of how a military commission would work. We obviously have a view that, if David Hicks is to be charged and brought before a military commission, the equivalent of a court martial, that the proceedings should be fair and consistent with the types of proceedings that we would have here with a court martial law, some similar kind of judicial process.

So we want to spend some time, or our officials spend some time next week with the Americans, I won't be going myself, but with the Americans talking about this issue. There are some who say that David Hicks, David Hicks is a person who you shouldn't be concerned about. That's not a view that the Australian Government or the American Government share.

We are concerned about David Hicks. We're concerned about the information we have on him having trained with al Qaeda during late 2000, early 2001. Any Australian who has been tied up with al Qaeda and who has trained in Afghanistan with al Qaeda is of enormous concern to us. We have an obligation to protect the Australian community as best we can. People who have participated in activities with the world's most appalling terrorist organisation are a matter of great concern to us. We introduced terrorism legislation here in Australia since September 11th 2001 and it wouldn't be possible to prosecute Hicks under that terrorist legislation clearly because the terrorist legislation didn't come into force until well after he had

done his training with al Qaeda. But it is our view that he, if he's to face some military commission, the equivalent of a court martial, in the United States, then the proceedings should be appropriately fair. We are sending a delegation to Washington early next week to make sure that that's the case and, of course, as you would know, the British have been having parallel discussions with us over the last week to the same effect. So it's all been quite well co-ordinated.

QUESTION: Have you asked a particular thing in regard to the Tribunal, for example, in relation to the death penalty?

ALEXANDER DOWNER: Well in the case of the death penalty, the United States is one of very many countries around the world that have the death penalty. During the course of every year I've been the Foreign Minister, there have been Australians who've been convicted in jurisdictions where there is the death penalty. We think in the case of David Hicks though, it is unlikely in the extreme that he would be sentenced to death by the military commission. We do not think it is likely at all that the death penalty will apply to him.

QUESTION: Why not if he's a member of al Qaeda?

ALEXANDER DOWNER: Well because we have obviously had information that, depending on exactly what charges are brought against him, that in the event that he's convicted of those charges that it won't be a sentence that will bring a death penalty.

QUESTION: Will you be discussing alternatives to a military commission, or is it a foregone conclusion that that's the forum he's…

ALEXANDER DOWNER: Well let's try to understand what the situation here is. Let me put a few things in perspective because I'm interested in the question about the death penalty but nobody ever asks me about the Australians in Thailand or Australians in Singapore or Australians in Vietnam who are charged with serious offences who could face the death penalty. And all those are answer is the same: It's not our decision whether a country has the death penalty or not but we oppose the death penalty. So wherever Australians are sentenced to death, we do our best to ensure that the death penalty isn't carried out. And I want to make that point that in the last week the Vietnamese Government announced that an Australian who had been convicted and sentenced to death would be granted clemency as a result of representations I made and others, my officials, made to the Vietnamese Government. We are opposed to the death penalty. But David Hicks though, nevertheless, is highly unlikely to be convicted of an offence which would bring with it a sentence of death. I think that is not going to happen. But more broadly, we want to make sure that the military commission process is fair and meets appropriate standards of judicial fairness.

But remember what has happened here. David Hicks has been captured by the Northern Alliance, having been with al Qaeda and Taliban people and he has been a combatant in a conflict against al Qaeda and the Taliban. These are the people who are responsible for the events of September 11th 2001. These are appalling organisations. In the context of him being having been detained, as of course a number of others have been, he has been held as a combatant and in those circumstances a combatant can face court martials or, in this particular case, a military commission. And we don't have an objection to the fact that he will be tried by a military commission but we do want the military commission proceedings to be fair. The Geneva Conventions provide for people captured in these circumstances to be tried before military commissions or court martials and the Geneva Conventions provide for that.

QUESTION: Minister, why 20 months in, has the US decided to basically halt proceedings for the time being?

ALEXANDER DOWNER: Ah well they haven't of course after 20 months decided to halt proceedings. They have decided to suspend proceedings just in recent days because we and the British have raised with the Americans some questions about how the military commissions are going to be conducted and want to make sure that those procedures are fair. But, you know, over that period of time they've done a number of things. I mean first of all, they have detained a number, quite a number of people in Guantanamo Bay because these people were combatants in a war against terrorism. Secondly, they have come to the conclusion that some of those people could be charged before a military commission and that of course isn't something that's taken them 20 months. That's information we've had only very recently, that they've decided they think they could charge David Hicks before a military commission. And in those circumstances we've said to them, well, we don't have an objection to that in principle but we do want to be sure that the military commission procedures are fair.

QUESTION: But why haven't [indistinct] steps before now because there's been a lot of agitation from David Hicks' family and friends that he get a fair trial knowing that a trial…

ALEXANDER DOWNER: Oh no, we have been - we have. We've been in discussions with the Americans. We're announcing it now but we've been in discussions with the Americans for - throughout the period where they've been concentrating bringing David Hicks before a military commission. This isn't something new that has just fallen out of the sky today obviously.

QUESTION: But surely…

QUESTION: If he's convicted, would you push for him that he be sentenced in Australia?

ALEXANDER DOWNER: Well, can I just make the point to you. David Hicks shouldn't be put into some special category. If he's convicted by a court or by a military commission that other Australians aren't in - I mean Australians have been sentenced and imprisoned around the world on many occasions, and I'm sorry to say that Australians get charged and often convicted - dozens I was going to say - a dozen or so times a year by foreign courts.

If you are an Australian and you are overseas and you break the laws of another country, then in those circumstances, you're likely to be charged and presumably convicted. And you'll serve a sentence in that country if there's a custodial sentence attached to the conviction. And that's normal. Now with Thailand, we have a prisoner exchange arrangement and we just actually brought a prisoner, the first prisoner, back on the prisoner exchange arrangement. But we would expect, if David Hicks is convicted by the military commission, that like any Australian, like Australians who've been convicted in Vietnam or Singapore on charges of, in those cases, possessing drugs, that they would serve their custodial sentences in those countries.

QUESTION: But have you made any representations for him to be tried in Australia?

ALEXANDER DOWNER: No, we haven't made representations. I made the point earlier - it is important to understand. And nor have I in relation to the Australians who've been charged in Vietnam; nor have I in relation to Australians who are charged in other countries.

Australians who are out of Australia and they, at least allegedly, have committed offences against the jurisdictions of other countries, they have to face trial in those countries, not in our jurisdiction. In this particular case, at the time that David Hicks was training with al Qaeda, our terrorist, anti-terrorism legislation hadn't passed through the Parliament or hadn't even been introduced into the Parliament. And therefore to train with al Qaeda was not a criminal offence at that time. So you know, unless you made the legislation retrospective - and we're not proposing to do that of course, make criminal legislation retrospective - you wouldn't be able to convict him in Australia. But it's not Australian law that he has transgressed here. It is, at least allegedly, United States military law and the significance of the United States military law is that he has been a combatant in a conflict between the United States military and their allies on the one hand and al Qaeda and the Taliban on the other.

QUESTION: Minister, how long do you think it'll be before he comes to trial?

ALEXANDER DOWNER: Gavin, I can't answer that. I don't think it's a fair question. I don't think it will be very long but, as you know, the Americans have suspended the military commission process pending these discussions with us and the British. We and the British Government, because our judicial systems are, or broadly, our legal systems are very close to identical, not quite identical but they're extremely similar, will be making very similar types of representations to the Americans about how we would define a fair trial before the military commission.

QUESTION: By the end of the year, do you think?

ALEXANDER DOWNER: I don't know how long that will take. We'll just have to wait and see.

QUESTION: Can you tell us something…

QUESTION: What are the standards of judicial fairness that you want to see?

ALEXANDER DOWNER: Well we'll leave that to the lawyers to discuss with the Americans but obviously the process needs to be a transparent process and Hicks needs to have appropriate legal representation, the normal procedures that you would have before a court martial here in Australia, which would be the best equivalent of standards that I think I could apply.

QUESTION: What about privacy between David Hicks and his lawyer?

ALEXANDER DOWNER: David Hicks and his lawyer, you mean?


ALEXANDER DOWNER: Yeah, well those of course will be issues that will be discussed, the question of privacy. Of course you're dealing with somebody here who has been training with al Qaeda, with the most egregious terrorist organisation of the modern era, if not ever. And there clearly will be some concern on the Americans' part that somebody who's been participating in a terrorist organisation would be able to pass information backwards and forwards which might be inimical to security interests. So obviously all of these issues need to

be taken into account.

QUESTION: Would you want him to have his own Australian lawyer?

ALEXANDER DOWNER: Well already the Americans have said that he can have an Australian as an advisor, Australian lawyer as an advisor, but he would be represented by an American lawyer. I - with people, particularly here in Australia, coming from the sort of what might well be described as the kind of political left, they seem to be more concerned about David Hicks than all the other dozens of Australians who appear before courts around the world. And yet these cases are happening over and over again. Now in most cases Australians who are charged and pulled before the courts of other countries have a local lawyer represent them. David Hicks, this is somebody who's been involved in al Qaeda. This is somebody who's been involved in the world's most egregious terrorist organisation. You know some of these other Australians have not been involved in activities like that but they have to do their best, usually with the assistance of the embassy, to find a local lawyer to represent them.

QUESTION: But wouldn't you agree though the difference is he's been held without trial for 18 months or so?

ALEXANDER DOWNER: The difference is that he's been a combatant. He's been taken as a prisoner because he was a combatant in a war. And he's been - he was you know taken as somebody who was supporting the Taliban and al Qaeda out there in, I think, Kandahar. I think this is an enormous problem, an Australian being involved in those sorts of activities.

QUESTION: So should he surrender some rights because of that?

ALEXANDER DOWNER: I don't think surrendering rights, some - but you're attributing to combatants rights that I don’t think apply to them. I mean you're not comparing like with like here. You - a person who is a combatant in a conflict of this kind has certain rights and he has been held on the basis though that he was combatant and that's not been inappropriate. Now it's been decided that he could be charged by and a case heard in a military commission which is the equivalent of, American equivalent of a court martial, there's nothing illegitimate about that. That's absolutely fine. But we just want to make sure that the proceedings meet the appropriate standards of fairness that you might have if it was a court martial here in Australia.

QUESTION: So how long do you predict the discussions will go for, and when do you expect it to be finalised?

ALEXANDER DOWNER: Oh I think the discussions will be just during the course of next week. [Indistinct]

QUESTION: And why aren't you going?

ALEXANDER DOWNER: …as Foreign Minister not the Attorney-General or a lawyer. Well it' still a matter of discussion whether the, you know, who from the Attorney-General's portfolio will go, what senior officials, whether any Ministers will go. That's not decided yet. There's still a bit of discussion about that. I would say better to leave this to the lawyers, rather than to the Foreign Minister. It's with the military lawyers in the main, not exclusively. There'll be some discussions with White House officials and State Department officials and the US

Attorney-General's Department. But a lot of the discussions will be with US military, legal/military officials. So it'd be more appropriate to send [indistinct]…

QUESTION: Just quickly, on a completely unrelated matter. You'd be aware of this protest outside Philip Ruddock's house in Sydney today. Without getting into the merits or otherwise of the actual argument, the protesters are making, is it fair game, is it fair play to be protesting outside politicians' houses?

ALEXANDER DOWNER: No, of course it's not. It's completely inappropriate to demonstrate outside of Philip Ruddock's house. There should be some privacy for his family. I think he might be overseas actually. But some privacy for his family, I think should be respected. I don't think politicians' personal residences should be the destination of protesters. And let me make this point, I just think the protesters do themselves an enormous amount of damage. I mean the public are not going to be overall - I mean some will be - but overall, the public are not going to be particularly sympathetic to the protesters in the first place. And they're just alienating themselves further from the public by conducting a protest of this kind outside somebody's private residence. People protest here sometimes, outside my electorate office, and that's okay. But can I just say in South Australia, I've never had anyone protest outside my house. I appreciate that. I don't think we should have a situation in Australia where, you know, the sort of feral left are going to start coming and protesting outside of Minister's private houses. I think the feral left should leave their protests to places they normally love to do them, outside offices and march down King William Street, and that sort of thing. You're all well rugged up more than I am.

QUESTION: I've just got another unrelated question.


QUESTION: Can you confirm that Ben McDevitt will be made Commander of the Federal Police?

ALEXANDER DOWNER: No, I can’t, no sorry, I can't.

QUESTION: Can you tell me anything on it?

ALEXANDER DOWNER: Taken me by surprise there. You'll have to ask the Justice Minister, Chris Ellison, who the Commander of the Federal Police Operations is going to be. I'm not the person who makes that decision. I do the Special Co-ordinator.