Lex Lasry QC, who acted as the Independent Observer on behalf of the Law Council of Australia in the case of David Hicks, this morning presented the third and final instalment of his investigation to the LCA. Here is a snapshot of Mr Lasry’s findings. (To read the full report, click here.)


The delay in bringing and finalising proceedings against David Hicks was the responsibility of the US administration and was a direct consequence of its desire to maintain complete control over the fate of the detainees at Guantanamo.

The Charges against David Hicks

The charge of “providing material support for terrorism” is a recently invented and new war crime and was clearly retrospective in its application to Hicks.

Comments made by Chief Prosecutor Colonel Morris Davis on this issue demonstrated a fundamental misunderstanding about the policy against retrospective laws and were deplorable.

The Australian Government never sufficiently concerned itself with the legitimacy of the charges brought against Hicks by the United States …

The Shambolic Proceedings on 26 March 2007

The proceedings before the Military Commission on 26 March during which Hicks was arraigned and later entered a guilty plea, were best described as “shambolic”.

Further, it now appears that at the time that matters were being played out in the Military Commission hearing room on Monday 26 March 2007, the pre trial agreement in relation to Mr Hicks’ plea of guilty had already been finalised. Thus, much of what was occurring was contrived and being done for public and media consumption. Even Hicks had a speaking role to play which he discharged at the appropriate time.

Conclusions – Implications for Australia’s International Standing

The “trial” of David Hicks, which took place in March 2007, was a charade.

A pre-trial agreement had been signed and the balance of the legal proceedings was entirely surplus to requirements, although designed to lay a veneer of due process over a political and pragmatic bargain. The veneer cracked immediately.

Ultimately, there has been no benefit from this process; only a corrosion of the rule of law.

No ground can be claimed to have been made in the so-called War on Terror. The
Military Commission process at Guantanamo likewise has neither gained from it, nor shown any prospect of improvement.

Predictably, there has been no response from the Australian Government to the consistent and widespread criticism of the Military Commissions and Guantanamo Bay generally.

Their support for this process has been shameful.

They have never put an argument to the Australian public as to why the Military
Commission process is “full and fair”. Now that the Hicks case is over, no doubt the hope is that the issue will disappear – and, regrettably, perhaps it will.

However, Australia’s international standing and moral authority has been diminished by its support of a process so obviously at odds with the rule of law.

Those with a concern for the protection of due process should be very concerned about the future of this process, particularly given its jurisdiction to impose death penalties.

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Peter Fray
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