Right or wrong, Hicks deserves justice Linda Kirk

Opinion Piece

Transcript - Adelaide Advertiser - 25 July 2003

Since John Howard formed his close friendship with US President George W Bush, many Australians could be forgiven for thinking that he could use his influence to further Australian interests. The looming trial of David Hicks is evidence that the Prime Minister has failed to take the opportunity to use this influence to the advantage of an Australian citizen.

David Hicks has been held in Guantanamo Bay, Cuba in a US military camp for 19 months, without trial or charge, in conditions that can only be described as cruel, inhuman and degrading treatment.

In March, I presented a petition to the Senate signed by over 1600 South Australians calling for a ' fair go ' for Mr Hicks. This represented only a small proportion of the growing number of Australians who want the Government to demand justice for David Hicks.

Mr Hicks may or may not be a terrorist, but the birthright of all Australians is that their Government will fight for their legal rights when they are imprisoned overseas. The Government should demand the same treatment for Australians as is received by citizens of the United States.

The only US combatant captured in Afghanistan, John Walker Lindh, was offered a criminal trial in the United States before a court with full legal rights and due process in accordance with US law.

By contrast, one of our own citizens will face a military commission without any right to appeal. The commission will not be independent from the US Government and will not operate under the standard rules of evidence. Mr Hicks will have a lawyer chosen for him by the US Government and his own Australian lawyer will be limited to the role of a " consultant " .

Just this week, Government Ministers have pre-empted the legal process by leaking alleged evidence to be used before the commission. If this selective disclosure of evidence had happened prior to a criminal trial in Australia, the Ministers could have been found to be in contempt of court.

The Government ' s sensitivities on this matter were displayed clearly this week when The Australian newspaper ' s Freedom of Information request about the legality of David Hicks ' detention was denied on the basis that it might damage relations with America. It seems that, for the Government, David Hicks poses less of an issue about justice for a citizen and more of a matter of not offending our American allies.

Britain, the other member of the " coalition of the willing " , is fighting hard to seek justice for its citizens who could share Mr Hicks ' fate. With their long legal tradition, the British are rightly concerned about the proposed military trial and Tony Blair made such representations directly to President Bush.

Aided by Australia ' s strong friendship with America, the Prime Minister should also make strong personal representations to the President to secure justice for David Hicks. Instead, he sent one of his junior ministers, Senator Ellison, to Washington who simply secured the same concessions that the British had already fought for.

It is unfortunate that Mr Howard is unable or unwilling to use his influence with the Americans and David Hicks ' fate relies upon the concessions earned by Tony Blair. It appears that Mr Howard has less regard for seeking justice for our citizens than his British counterpart.

Labor created the US alliance and will always support it - but the Labor Party understands that there are some instances when Australia must stand up for its citizens. The unlawful detention and fair trial of an Australian citizen is perhaps the most fundamental example.

A great Australian tradition is the principle of a " fair go " . Regardless of what causes Mr Hicks might have supported, holding him in a cage and making him face a Breaker Morant style military tribunal is not the Australian way.

Senator Kirk is a Labor Senator for South Australia and formerly a legal academic.