The Australian Senate briefly considers the case of David Hicks and the US Military Commission  :

-           An agreed Senate opposition parties’  motion was voted down by Government numbers, and a Q and A exchange took place between Senator Natasha Stott Despoja and Justice Minister Ellison, on 5 September 2005:

 

 

I lobbied Senate opposition leaders’ staffers to try to get up a motion like this. Many other good people and reputable Australian public organisations did too. To their credit, the Democrats took the running on a non-contentious motion text that was broad enough to capture the support of Labor as well as Greens.

 

Alan Ramsay in SMH Opinion last Saturday 9 September covered the story – the only mainstreram media item that did, to my knowledge:

 

http://smh.com.au/news/opinion/secondraters-are-still-in-charge/2005/09/09/1125772688666.html?oneclick=true  

 

I think it is a real shame that coalition Senators liberals like Marise Payne and Judi  Moylan – and independent-minded Senators like Steve Fielding and Barnaby Joyce – silently accepted the rejection of this responsible motion. It would not have been too risky for them to abstain or be absent from the Chamber, if they did not want to make a conscience vote of it.  Now it seems like they think this travesty of judicial process is acceptable?  

 

And it is disgraceful that there was no debate allowed – not even an introduction of the motion by the Democrats. Couldn’t Labor have insisted on some time for debate ? Still, the Opposition tried – the motion text is in Hansard now.

 

Ramsay did not cover the Q and A exchange between Stott Despoja and Ellison.. I record it here. This tells us what the Howard government thinks of the Hicks process after the cosmetic changes to the US military commission procedures. This is their definition of procedural justice for an Australian citizen abroad. Read and weep.

 

Tony Kevin, Canberra 12 September 2005

 

Notice of motion put to the Senate on 5 September 2005 by Senator Stott Despoja and co-signed by the ALP and the Greens. The Government used its majority to vote it down.

 

“That the Senate:

 

(1)     notes:

 

(a)     the right of all Australians, regardless of their alleged crime, to a fair and transparent trial;

 

(b)     the number of serious doubts raised by legal and military experts, including retired High Court Justices Mary Gaudron and Sir Ninian Stephen, The Presidents of the Law Council of Australia and the 14 Law Societies and Bar Associations of the States and Territories of Australia, Independent Law Council Observer Lex Lasry QC, Head of the Military Bar Paul Willee QC, Geoffrey Robertson QC, the American Bar Association, three United States Military Commission prosecutors and sitting High Court of Australia Justice Michael Kirby, who regard the United States Military Commissions as unjust;

 

(c)     that Spain, France and the United Kingdom have all refused to allow their citizens to be tried before United States Military Commissions;

 

(d)     United Kingdom Attorney General Lord Goldsmith's comments that “the United Kingdom have been unable to accept that the US military tribunals … offer sufficient guarantees of a fair trial in accordance with international standards.”

 

(2)     calls on the Government to:

 

advocate for David Hicks’ trial to be conducted in a properly constituted court with rules of procedure and evidence that meet Australian and international standards of fairness. ENDS

 

This question was asked by Senator Stott Despoja and responded to by Senator Ellison. (from proof Hansard)

 

Senator STOTT DESPOJA (2.46 pm)—My question is addressed to the minister representing the Attorney-General. I ask if the minister is aware of comments that have been made by a number of people, specifically the Law Council of Australia, that recent changes that have been made to the US military commission process are ‘totally inadequate’ and basic flaws still exist? Are the minister and the government completely satisfied that the process as amended will now allow David Hicks to receive an open and fair trial?

 

Senator ELLISON—I am aware of the Law Council’s comments in relation to Mr Hicks. Of course, the Australian government has maintained an ongoing interest in this matter. We have not only visited Mr Hicks but also, of course, there has been the recent inquiry in relation to alleged maltreatment of Mr Hicks which we have monitored closely. That report has not produced any evidence of any maltreatment in relation to Mr Hicks.

 

The government is satisfied that the military commission process is appropriate. Military commissions have a very long history, going beyond World War II in fact into the 19th century. They have long established practices. The proposal for Mr Hicks has all the normal features of a criminal trial with the onus of proof beyond a reasonable doubt being on the prosecutor.

 

We have obtained concessions from the United States in relation to the privileged communication between Mr Hicks and his lawyers and also, from the outset, that the death penalty would not apply, because that was the first concern that we had. As well as that, there will be observers for the hearing. As I understand it, the Law Council has sent an observer to Guantanamo Bay. You will recall that the proceedings were delayed somewhat by a proceeding on the mainland of the United States in the Supreme Court which challenged the validity of the military commission. Of course the decision has been made that the process does have validity and will continue.

 

So we can, hopefully, now get back to the issue of the trial of Mr Hicks and it proceeding without delay. That was something which the Attorney, the Prime Minister, the Minister for Foreign Affairs and I have raised on visits to Washington.

 

We are satisfied that the military commission process is an appropriate way to proceed. It does have established procedures which have the features of a criminal trial in Australia. We have to remember that this is in another jurisdiction and that Mr Hicks was apprehended in the field of conflict in circumstances which were unusual. The military commission approach is one that we have endorsed.

 

The government will continue to monitor the situation closely.

 

Mr Hicks has had a vigorous defence from the counsel appointed to him. I think Major Mori established that when he came to Australia. I think he came on two occasions, carrying out investigations which were for the purposes of defending Mr Hicks. He was vigorous in his defence of Mr Hicks and quite acerbic in his comments in relation to the prosecution by the United States. That came from a military officer in the United States Marines, from memory. When I visited their legal section in Washington, I was impressed by their independence and the way they carry out the defence of people that they are to appointed to defend. In fact, the rules of the commission state that the defence must conduct a rigorous defence of the person concerned.

 

Senator STOTT DESPOJA—Mr Deputy President, I ask a supplementary question. I thank the minister for his answer and ask him to clarify that when he says these are established procedures that the government says are appropriate and that the government has endorsed, to use the minister’s language, does that mean that our government thinks it is appropriate that these commissions cannot give a guarantee that they will preclude the use of evidence that is obtained under coercion? Does the government think it is appropriate for commissions to operate without an independent judiciary in charge of the commissions, without rules of evidence and without an independent appeal process? Given that these aspects and deficiencies of the commissions have been denounced almost universally, is it the case that our government thinks that that is appropriate?

 

Senator ELLISON—As I mentioned, the burden of proof, which is a rule of evidence that applies, is on the prosecution to a standard of beyond reasonable doubt. There is a presumption of innocence; there is a right to cross-examine.

 

In relation to any evidence which is adduced by the prosecution, I understand that challenge can be made by the defence concerned.

 

It is always a question for a tribunal hearing the matter as to the probative value of that evidence and its admissibility. That will be determined by the tribunal, which is made up of legally qualified people, I understand. That tribunal can make that judgment in the context of the court hearing. The admissibility of evidence is something which is open to our courts, and the burden and standard of proof under our laws of evidence are, as I say, features of our criminal jurisdiction which are contained in the military commission rules.  ENDS