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From the president: Hicks has right to fair trial

Every Issue

Cite as: (2005) 79(9) LIJ, p. 4

The rule of law and advantages of a democracy should apply to all Australian citizens.

On 11 August 2005, the Law Institute of Victoria (LIV), together with the presidents of all the state and territory law societies and bar associations, signed an open letter which was sent by the Law Council of Australia (LCA) to the Prime Minister regarding Guantanamo Bay detainee David Hicks.

This letter condemned the federal government for failing to ensure a fair trial that accords with internationally accepted standards of legal process and justice for Mr Hicks. Collectively we have requested that the federal government bring Mr Hicks’ case before a properly constituted court, instead of the US military commission, or return him to Australia.

The letter also pointed out that the government was behaving inconsistently in its treatment of Australian citizens facing trial or being held in jail overseas, given the assistance and support offered Schapelle Corby.

When I studied at university, one of the basic tenets was the “rule of law”. As Australians we take it as given that we will be entitled to, and receive, a fair trial in front of an independent judiciary in the event that we go to court. It is this basic premise that forms one of the backbones of a free and democratic society. As former High Court judge Mary Gaudron recently stated, “The rule of law, normal civilised behaviour, says you are not deprived of your liberty, you are not exposed to punishment, if you haven’t broken the law”.

Clearly this is an issue that resonates with a large number of our members and it is one that the LIV has been vigorously pursuing.

On 12 August the LIV hosted a seminar entitled “David v Goliath – the battle for due process and a fair trial in the David Hicks case”. About 150 people attended to hear Mr Hicks’ new Australian counsel David McLeod, who provided an up-to-date report on the case and his recent visit to Guantanamo Bay. LCA independent legal observer Lex Lasry QC discussed the problems surrounding the lack of due process in the US military commission.

The third speaker was international law expert Professor Tim McCormack. It was distressing to hear Professor McCormack state that Saddam Hussein and Slobodan Milosevic would receive a fairer trial than David Hicks as they will appear before properly constituted courts.

In July this year, the LIV provided a venue for the launch of the LCA’s independent legal observer’s report. As with his first report, Mr Lasry was extremely critical of the continuing detention and pending trial of Mr Hicks. To quote one of his concerns:

“In my opinion, in many respects the circumstances now faced by David Hicks at Guantanamo Bay are worse than they were in August 2004.”

In his second report, Mr Lasry has detailed a list of concerns about the flawed proceedings of the military commission, including its lack of independence, the absence of rules of evidence and the total lack of an appeal process.

In December last year, the LIV hosted a forum where Mr Hicks’ US government appointed representative Major Michael Mori, Professor McCormack and (then) University of Melbourne law student Sarah Finnin spoke. Major Mori said Australia was the only country that had accepted the validity of the military commission system. America would not permit its own citizens to appear before such a commission and Britain, France, Afghanistan and Egypt had actively opposed it (with Britain eventually having its citizens removed from the process).

Ms Finnin has been providing research assistance and coordinating legal advice for Major Mori. She undertook a three-month internship in Washington DC with Major Mori where she assisted in the preparation of three defence motions which argued that the Guantanamo Bay military commission was illegal under international law. Her work is continuing. Donations to assist with her living expenses in the US are welcome and can be sent to the Asia Pacific Centre for Military Law, the University of Melbourne, Vic 3010.

The LIV has independently written several times to the Prime Minister about Mr Hicks [and prior to his release earlier this year, fellow detainee Mamdouh Habib].

Initially, the letters were about the nature of charges laid against Mr Hicks and the upcoming trial, and later about jurisdictional issues and the US military commission process.

Some of you may, like me, feel passionately about this issue. If you do, I encourage you to write to our Prime Minister and federal Attorney-General about your concerns.

Regardless of Mr Hicks’ guilt or innocence, his treatment by the US government is something we should all be concerned about.

The federal government’s commitment to upholding the rule of law in “democratic” Australia appears to be wavering – we should not let it.

Tory Strong


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