Hicks case is simply about a fair go

David Hicks' detention at Guantanamo Bay long ago ceased being about him. It is now about us. Do we still believe in habeas corpus - no imprisonment without trial -with its proud history dating back almost 800 years to Magna Carta?

Do we still believe in a fair trial, and understand that the right to be tried by a jury of your peers is part of the package? Labor believes that the rule of law should be universally applied. Anyone accused of a crime should be afforded a swift and fair trial, irrespective of the nature of the allegations or political sensitivities.

Australians regard a fair trial as the legal form of a fair go. So it is worrying that the Attorney-General says the extent of his focus for David Hicks' case is "ensuring that any process is as fair as possible".

Attorney-General, it's either fair or it's not fair.

The Attorney-General omits inconvenient truths. David Hicks is being held right now without charge, whereas two British citizens who were deemed fit to be charged have long since been returned to Britain. But the most worrying point the Attorney-General chose to evade was the US Military Commission's lack of essential guarantees of independence and impartiality.

Sections 268.31 and 268.76 of the Australian Criminal Code, by reference to international treaties that Australia has long been party to, specifically recognise the importance of independence and impartiality.

Unlike the Guantanamo trials, Australian and US civil courts exclude hearsay evidence and evidence produced by coercion. They provide the defence counsel with access to all evidence used by the prosecution and provide adequate opportunity for cross examination as well as genuine avenues for appeal.

The use of coercion techniques at Guantanamo Bay alone should concern the Attorney-General. Interrogation techniques authorised by the US secretary of defence since December 2, 2002, included treatment amounting to physical coercion. Reports last month about allegations made by 26 US FBI agents about use of illegal interrogation techniques are consistent with claims by David Hicks and his defence counsel, Major Michael Mori.

The US Government itself knows that the military commissions do not constitute a fair trial - it has banned any US citizen from being tried under them!

Having dismissed the idea of a fair go, the Attorney-General insinuates that those genuinely concerned about Hicks' lack of access to justice are either blind to terrorism or seeking to subvert the law.

Irrespective of how many teenagers the Attorney-General says, by way of forgiving comparison, were also incarcerated in Guantanamo Bay, the question is whether or not Hicks will get a fair trial and whether or not Australians are happy to have the rule of law compromised. Labor believes the rule of law should not be compromised. Deviations from the rule of law undermine the system and expose individuals to risks of physical abuse as well as injustice.

But let's be clear, the allegations against David Hicks are very serious. Labor is calling for justice, not special treatment.

A month after Hicks was taken to Guantanamo Bay, US defence secretary Donald Rumsfeld said: "We are taking only those we believe there is a prospect of gathering intelligence from that can save people's lives ... when we have gotten out of them the intelligence we feel is appropriate and possible, very likely we'll let as many countries as possible have any of their nationals they would like and they can handle the law enforcement prosecution."

It would seem intelligence gathering, not prison, was the purpose of Guantanamo Bay in 2002. So when was the current policy adopted by the Howard Government?

Keeping David Hicks in Guantanamo Bay, as divergent as it is from notions of justice and a fair go, was probably decided upon prior to the last election, and the government have stayed the course ever since, as it moves further and further away from what Australians recognise as decent.

Of further concern last week was the sabre-rattling by the US Military Chief Prosecutor. The prosecutor’s public judgments of guilt and his disparaging comments about Major Mori certainly didn’t herald a fair go or suggest normal legal rules are being observed.

Detached is the best way to describe the Howard Government’s attitude. The longer it accepts the suspension of habeas corpus the worse things get.

What has the Attorney-General had to say about David Hicks’ current physical and mental health? Melbourne psychiatrist, Professor Paul Mullen, visited David Hicks in February 2005 and, in light of recent concerns about David Hicks’ mental health, a follow-up assessment should occur. What action has the Attorney-General taken following the US authorities’ refusal to allow Professor Mullen to undertake an independent mental health assessment?

The Attorney-General’s Government needs to reacquaint itself with the Australian tradition of a fair go and direct his department to seek the same on behalf of all Australian citizens. Legal cases which highlight the adverse consequences of government policy should be no exception; Australia’s laws should be administered without prejudice and every Australian given access to justice.