Don’t think for a moment that Prime Minister John Howard’s newfound compassion for David Hicks is anything but expedient politicking. If he wants to get Hicks home there’s a surefire way to do so.

The PM reportedly acknowledged to his party room yesterday that he could secure the release of Hicks if he wanted to. His claim that it is OK for the US to pass retrospective laws (if that is what they did) but not Australia underlines the illogical nature of his position.

In a bid to justify the Government’s failure to bring Hicks home, the Federal Attorney General Philip Ruddock recently stated: “The US made it clear early on that a detainee would not be repatriated unless the detainee would be prosecuted. Under our law at the time, that was not possible”.

If this is right, in order to get Hicks home the government should pass a law under which Hicks could be brought to trial for his activities in Afghanistan.

There is no legal impediment to this. The High Court in the landmark case of Polyukhovich 15 years ago held that it is not unconstitutional for the Federal government to pass criminal laws which have retrospective operation. This is so even in relation to conduct that occurs overseas.

In reaching this conclusion, the High Court upheld the validity of amendments to the War Crimes Act 1945, which made it an offence to engage in certain acts of violence in Europe during World War II – nearly 50 years after the legislation was passed.

Of course retrospective laws are normally undesirable. But no proscription is absolute and sometimes the occasional retrospective law can be well placed. There is nothing stopping the government enacting the same charges under which Hicks will shortly be tried.

This would be a contrived outcome, designed to defeat the supposed injustice that Hicks is experiencing in Guantanamo Bay, but would be a small price to pay for a government that is apparently now so disturbed by Hicks’s fate.

The government won’t do this for one reason: it remains disinterested in the plight of Hicks.

Now, don’t get me wrong. I haven’t lost any sleep over Hicks. The media saturation that he has been receiving is a stellar example of misguided compassion and warped moral prioritisation.

But what is even more disturbing is the hypocrisy of the government when it comes to issues of social justice. If the government really accepts that the Hicks matter is a grave injustice, it should take all reasonable steps to fix the problem instead of telling us how much it “truly” cares.

The more consistent approach towards Hicks by the government would be to introduce a bit of measure and perspective into the debate and let justice US style take its course.

In addition to this it could promulgate the tenable argument that no right, even the right to a trial, is absolute. In relation to Hicks, the government should have run the line that people who leave Australian shores in pursuit of violent means of expression and are captured while being engaged by an enemy of Australian during a war are so culpable that they have no right to trial, let alone a speedy or fair one. Instead Hicks should be detained until the war in which he was captured had ceased.

It’s a pity the government didn’t run this argument. It has now placed itself in an untenable position with its belated membership of the Hicks fan club.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey