I agree that I will not communicate with the media in any way regarding the illegal conduct alleged in the charge and the specifications or about the circumstances surrounding my capture and detention as an unlawful enemy combatant for a period of one (1) year. I agree that this includes any direct or indirect communication made by me, my family members, my assigns, or any other third party made on my behalf.

David Hicks plea agreement 26 March 2007 

An attempt to tape the mouth of an Australian citizen in such a way must surely be the subject of a feisty legal challenge.

Firstly, the gag order on Mr Hicks was made in weird legal limbo. That is, the rules applying to the Guantanamo Bay legal process are not those which apply in the American criminal justice system. And it is arguable, according to a series of US court decisions, confirmed yesterday by the US Supreme Court, that the Guantanamo Bay military tribunals and the rules which they apply are not always subject to the protections granted by the US Constitution.

Then there is the question of how such a gag order can apply in Australia. There is no doubt that under the conventional prisoner exchange agreement that Australia has with countries like the US, sentences handed down by a court in the foreign jurisdiction can be served in an Australian prison. And in civil law, court orders made in the US can, subject to certain limitations, be registered as a foreign judgment in Australian courts.

But under what statute or pursuant to which line of case law does the Australian government say it can enforce the gag order on Mr Hicks? The Attorney-General Philip Ruddock doesn’t seem to have worked this out yet. As Mr Ruddock has acknowledged, we are in uncharted legal waters here. A point also made yesterday by leading human rights and criminal lawyer Rob Stary, ‘Jihad’ Jack Thomas’s lawyer, who said yesterday that the gag order on Mr Hicks was unprecedented in Australian criminal law and procedure.

Will Mr Ruddock, for example, seek to impose a control order under the anti-terrorism laws on Mr Hicks, even while he is in prison, to prevent him from speaking with the media?

Or will he seek to have special legislation passed to achieve this aim?

No doubt officers of the federal Attorney-General’s department are busily scouring the statute books and examining case law to give Mr Ruddock an answer to this intriguing legal question.

But in any event, it must surely be on the cards that there will be a challenge to any attempt to enforce the gag order in Australia. Not simply because it sets a very real and dangerous precedent – one can imagine state and federal ministers who don’t want individuals revealing police brutality and abuse of human rights in prisons citing the gag order on Mr Hicks as justification for shutting up victims of such abuse – but because there are potentially some constitutional considerations that come into play.

Since 1992, in a case involving the former Labor MP Andrew Theophanous, the High Court has determined that there are implied rights to free speech and communication when it comes to discussion of issues about government and politics, particularly in the context of elections. This is known as the implied freedom of political communication.

Surely the circumstance of the detention of Mr Hicks is a matter concerning politics or government. His arrest and detention has been the subject of heated political discourse. If the media publishes an interview with Mr Hicks about these matters are they simply not utilising that implied freedom?

Perhaps Mr Hicks will have his mouth untaped after all.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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