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Tuesday, 25 November 2003
Page: 22723

Mr McCLELLAND (3:24 PM) —Naturally the opposition welcomes any improvement in the situation of Australian citizens David Hicks and Mamdouh Habib. We recognise the fact that the Attorney has elevated this matter to the significance of making a ministerial statement, and we welcome that. We do, however, note an element of complacency and indeed compliance in the government's statement, unlike the advocacy that we have seen, for instance, from Lord Goldsmith, the United Kingdom Attorney-General, on behalf of United Kingdom citizens detained in circumstances where Great Britain was very much a part of the coalition of the willing. Nonetheless, Lord Goldsmith has been a vigorous advocate for the rights of the United Kingdom citizens, saying in his advocacy that all United Kingdom citizens are entitled to the principles that have been developed in our common law system since the time of the Magna Carta.

In relation to our claim of complacency, the government has stated that the laying of charges is a matter for US authorities, and certainly that situation has resulted in these men remaining in detention for a period now in excess of two years without facing any charge or any trial. That is something that will concern all Australian citizens of fair mind. We do have fundamental concerns that they are being held in what appears to be a legal vacuum. Just what this concept of `enemy combatant' is is of concern to us. It does not appear to have any recognition at international law, and indeed I understand that within the United States military there is a very real concern that this concept of `enemy combatant' may simply result in other countries following the example of the United States with the consequence that United States military personnel could be detained indefinitely by other countries. Certainly, Australian defence forces should also have that concern.

Essentially, though, in addressing the matters raised by the government, the minister announced five commitments given by the United States about the continued treatment of these two Australians. Of course, we cannot judge the guilt or innocence of these two men in terms of what they may or may not have done, but all the opposition is saying is that they are entitled to a fair trial. They should be charged before they are detained on an ongoing basis and then given the opportunity to answer their accusers in a procedure that involves a fair trial. Regrettably, that has not occurred.

The five changes that the government has announced are these. Firstly, the United States has said that the commitment already given in respect of Mr Hicks will apply to Mr Habib if—and I emphasise `if'—he is charged. That remains uncertain. He has no closure in the sense of knowing if he may be able to contact his wife and children and so forth, and that is obviously of concern. It would be surprising if the government did not welcome that commitment, because we say that all Australians are equal before the law and entitled to the same rights.

Secondly, it appears the government may now make submissions to the review panel which would review any military commission trial if a request for review was made. That review panel, however, will consist of three military officers appointed by the United States Secretary of Defense, Donald Rumsfeld. It is not an independent court of appeal, as would exist under Australian laws. Indeed, under the military commission rules, it is not required to consider any submissions from the accused. I ask in that context: why is it that the government will be allowed to make submissions when the rules provide that Mr Hicks and Mr Habib will have no such opportunity? What role, for instance, will the government play? Will it be one of advocacy for those two men or, instead, will it be addressing security issues that may arise in the proceedings, for instance? These are issues that remain unanswered.

Thirdly, according to the ministerial statement, any lawyers retained by Mr Hicks or Mr Habib as a consultant would be, subject to security requirements, allowed face-to-face communications with their clients. As we have noted, the right to speak to an Australian lawyer is a right that has been denied both Mr Hicks and Mr Habib for almost two years. It will be a pleasant surprise to Mr Hicks and Mr Habib that they even have Australian lawyers in this capacity as consultants—whatever capacity that may mean—as opposed to in the capacity of an advocate. But, again, there are unanswered questions as to whether the communications between Mr Hicks and Mr Habib and those lawyers will be confidential or whether they will be monitored. These issues are still unresolved.

Fourthly, Mr Hicks and, if listed as eligible for trial, Mr Habib may talk to their families via the telephone. Indeed, two family members would also be allowed to attend the trials. As I have said, in respect of Mr Habib that is very much subject to a precondition of him being ruled eligible to stand trial, a concept which is not known in our jurisdiction. We see this right as fundamental.

Fifthly, an independent legal expert sanctioned by the Australian government may observe any trial. This is in fact an initiative announced by the Law Council of Australia some months ago, and it was warmly welcomed by Labor at the time. They indicated they would seek to attend the trial as an impartial observer, and we welcomed that. Just what is meant by an `independent legal expert sanctioned by the Australian government'? It may be an oxymoron, depending on whether they are in fact independent of the interests of the executive arm of government, as opposed to representing the interests of the individual. The Attorney has indicated in his statement that the advice of the government is that these men cannot be prosecuted under any laws in Australia. Certainly Australian laws, I would concede, do not recognise any category such as enemy combatant, but there are, for instance, laws against insurgents—Australians acting in insurgent operations. Those laws arose from the Sandline incident in West New Guinea, as I recall—

Mr Downer —Bougainville.

Mr McCLELLAND —Yes, Bougainville. I thank the Minister for Foreign Affairs. Also there are issues about whether laws relate to breaches of the Geneva Convention—certainly in the case of Mr Hicks—and whether criminal sanctions which arise from those would apply. We would like to see, quite frankly, the government's advice as to why they cannot be prosecuted, and whether consideration has been given to those matters.

Fundamentally, we do have concerns about the trial process. The defence counsel will be military, the tribunal itself will be appointed by the military and the defence counsel will be made to give strict undertakings. For instance, they cannot challenge the jurisdiction of the tribunal. There are all kinds of limitations which are foreign to trials in Australia, including, as the Attorney indicated, the absence of the rules of evidence; so, for instance, what we are saying today in this House is arguably admissible as evidence against the men. All things considered, we are still very concerned about the two Australian citizens. We cannot pronounce on the guilt or innocence of these individuals. All we can say is that as the Australian parliament we should be ensuring that two Australian citizens are given, at the very least, the opportunity for a hearing and a fair trial according to standards of Australian justice. That occurred, I might say, in respect of the American citizen Lindh, and we say no less should apply to Australian citizens.

Debate (on motion by Mr Truss) adjourned.