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Foreign Minister discusses the plight of David Hicks and Mamdouh Habib.

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DATE: 6 September 2004 ABC Radio 5AN

TOPICS: Hicks and Habib

BEVAN: Adelaide has some fairly strong connections to what’s going on around the world. It’s an Adelaide boy who is sitting in Guantanamo Bay and it’s an Adelaide politician who holds the office of Foreign Affairs Minister and Alexander Downer joins us right now. Alexander Downer, our news has been running a story this morning - the father of accused Taliban fighter David Hicks fears that Federal Government moves to improve the military commission process involving his son have come too late to have any real effect. Alexander Downer, why is it overnight the Coalition suddenly realised that there were problems with the military commission process being conducted in Guantanamo Bay when people have been saying for months that this is a kangaroo court?

MINISTER:Well, we don't accept it's a kangaroo court and we negotiated arrangements under which Hicks and also Habib could be brought to trial in a military commission. We don't underestimate the seriousness of the charges brought against them for their involvement with Al Qaeda, with terrorist organizations. But, we've said we want certain conditions met for the military commission hearing. Those conditions have been met, but what happened was there was a preliminary hearing the other day and we’ve sent observers from my Department and the Attorney-General's Department to that preliminary hearing and we've got the report back from them and just on some of the procedural matters we're going back to the Americans this week to ask them to improve those procedural aspects, or clarify and improve those procedural aspects, not to abandon the military Commission though.

ABRAHAM:You're obviously convinced he's guilty.

MINISTER:Well, he’s charged, you know, people can hold whatever view they like but he's charged with very serious charges relating to both Hicks and Habib, both haven’t been charged yet, but in Hicks’ case his involvement with Qaeda and other terrorist organizations…

ABRAHAM:But, you obviously believe Hicks is guilty.

MINISTER:Well, we'll just have to wait and see…

ABRAHAM:No, but you've said he's involved in terrorist organisations and Al Qaeda.

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MINISTER:No, I said, well, excuse me, I said he'd been charged…

ABRAHAM:No, you said he was involved with them, for his involvement in.

MINISTER:Sorry, if you've misunderstood or misheard me that he's been charged…

ABRAHAM:Oh, okay, so you believe he's innocent until proven guilty.

MINISTER:That is the basis on which the military commission hearing is set in place and that was one of the conditions that we laid down, that we wanted the Americans to meet and they have met that condition.

BEVAN:Terry Hicks says it's a bit late now. I mean, he's been saying for months, his lawyer has been saying here in Adelaide for months, his military-appointed lawyer, Major Michael Mori's been saying for months that this process is crook. Why is it that it took us to turn up on the first day of the preliminary hearing to realise that there are problems?

MINISTER:Well, we’re not saying that the process is crook. I mean, I accept that there'll be people campaigning for the defence. Our job is to make sure that the process is an adequate process and that’s we sent observers. We didn’t send observers for any other reason but to have a look at how the military commission process works and if there are any concerns we have with that process we take them up with the Americans and that's what we're in the process of doing.

BEVAN:Terry Hicks has obviously given up on the Coalition to help his son. He says the only way that they're going to get any real help at all would be from a Labor Government. Alexander Downer, if this is an election issue for some of our listeners, what's the difference between the way the Coalition and the way a Labor Government would treat David Hicks?

MINISTER:Well, obviously for us as a Coalition Government we're deeply concerned about anybody who's been charged with, and I said that earlier, charged with involvement with an organisation like Al Qaeda and terrorist organizations. That's an enormous issue for us. As I understand the Labor Party's policy, it is to see the military commission disbanded and both Hicks and Habib brought back to Australia, in which case of course they would just be set free and that would be of some concern to us, bearing in mind the gravity of the charges. Now, at one stage Mr Latham said that he wanted to introduce retrospective criminal legislation so they could be prosecuted. Well, introducing retrospective criminal legislation doesn't meet the standards of natural justice actually, so we don't support that either.

BEVAN:How can that not meet the standards of natural justice? We did it with Second World War European war criminals, we had those prosecutions right here in Adelaide. Adelaide seems to do a lot of this stuff.

MINISTER:Well, I don't think retrospective criminal laws are a good idea myself, whatever has happened in history. There have been occasions when there have been retrospective laws introduced and some of your listeners will remember more recent occasions. I personally

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don't support creating a criminal offence retrospectively and Mr Latham’s apparently saying that there should be a criminal offence…

BEVAN:So, you're saying what David Hicks will get in Guantanamo Bay is more just than what he would get in Australia if retrospective legislation was passed?

MINISTER:Well, yes, I certainly think that. I certainly think the military commission process, which is not a retrospective process, I certainly think is preferrable to bringing them home and them not facing any charges or else bringing them home and introducing retrospectivity into our criminal justice system so that they can be charged for offences that were not offences under Australian law at the time they committed them.

CALLER ALAN: Mr Downer, I'm a voter in your electorate, regrettably but quite frankly, do you honestly think that I am so stupid to accept the waffle that this sudden belated questioning of the process in Guantanamo Bay has nothing whatsoever to do with an election and purely

and simply to do with justice? You've had years.

MINISTER:Well, I can't tell him what he should think, but I can say that the reason why we have raised these issues now is because we sent observers to the preliminary hearing of the military commission and as a result of the information we've had from the observers we will be taking up some of the issues in relation to the process with the Americans, for example, on questions such as the discovery of documents and that issue of discovery is unresolved and we’d like to see that resolved before the actual hearing takes place. So, you know, I think it's important we do that. It's nothing to do with the election. As a matter of fact, I have no idea what impact the Hicks and Habib case would have on the election one way or the other - it's probably not a central issue to most people.