A parliamentary draftsperson writes:

John Howard and Philip Ruddock continually
plead that David Hicks cannot be returned to Australia
because “he cannot be tried here as he has not contravened any Australian law”.

Passing over the obvious irrationality of that statement – how many people
arrive at Kingsford Smith or Tullamarine every day who also have “not
contravened any Australian law” but might nonetheless be bad people and a
danger to Australians (the paedophile the Thai King just pardoned, for one)? –
their comment is demonstrably false. The fact is the Commonwealth Parliament
has legislative power to make retrospective laws.

If this man Hicks is so dangerous that he
must be charged with something, our Australian Parliament should pass a
retrospective “aiding, or training with, proscribed terrorist groups” offence.
We’ve done similar things before. In the 1980s, we passed a War Crimes Act to
make killing people in the Ukraine
in the 1940s an offence against Australian law. Ivan Polyukovich was duly
charged and tried in an Australian court.

With control of both Houses of Parliament,
such a law could be passed in a flash – I myself have seen a terrorism bill go
from the minister’s idea through drafting, introduction and debate to Vice-Regal
assent in a little over 30 hours.

So why don’t the Prime Minister and the
Attorney-General want to go down this road? It puzzles me, but I think section
80 of our Commonwealth Constitution (which gives us the right to trial by jury
for Commonwealth offences) is the answer.

Howard and Ruddock are scared that a jury
of 12 men and women good and true would not convict David Hicks. It would seem
none of the evidence collected by the Americans could be used in an Australian
court – all that torture and those inhumane questioning practices like attack
dogs and stuff. Even if the evidence were admitted, a jury might just not
believe it. People tend to lie under torture. Even if they believe it, they may
think the guy has been punished enough anyway. Juries have a habit of doing
things like that, you know, disregarding the Executive, all the way back to
Stuart Kings of England.

But if he can’t be tried because the
evidence against him is so secret (or torture based), why not let him home and put
one of those newfangled control orders onto him. On Sunday, Michelle Grattan
that “late last year, Ruddock said it was ‘quite possible’ the
control orders would be used as soon as they were passed, which meant before
last Christmas. On Friday, the Government confirmed that no one has so far been
put under a control order.”

It would seem that a control order is
tailor-made for someone such as Hicks. Why not go down that road?

Peter Fray

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Peter Fray
Editor-in-chief of Crikey