By Tom Allard National Security Editor
DAVID HICKS could be back in Australia by the end of the year after the Attorney-General, Philip Ruddock, said he would seek the Guantanamo Bay inmate's return if the US did not proceed quickly to lay substantive new charges.
In an interview with the Herald, Mr Ruddock indicated that the Australian Government wanted a new US military tribunal, and fresh charges, to be in place by November, as promised by his US counterpart, Alberto Gonzales.
"It should happen as quickly as possible. Were that not to be the case we would be seeking his return in the same way we did with Mamdouh Habib," Mr Ruddock said yesterday.
Hicks has been in Guantanamo Bay for 4½ years.
"I would never benchmark myself but I do note that the United States has indicated that it wants to have the matters that Congress has to deal with resolved before it rises for the mid-term election, which suggests November," Mr Ruddock said.
It is the first time the Government has openly canvassed the possibility of Hicks returning to Australia without being tried.
The US Supreme Court ruled in June that the military commission system set up by the Bush Administration, and supported by Australia, breached the US constitution and could not deliver a fair trial.
The military commission was quashed, as well as the three charges that Hicks was facing - conspiracy to commit war crimes, aiding the enemy and attempted murder. Congress has to legislate for a new military tribunal, and then fresh charges can be laid.
In the meantime Hicks is in legal limbo in the US military prison at Guantanamo Bay, Cuba.
He spends his time in the isolation wing in a cell with a light that is never turned off, and is rationed to one hour of exercise and natural light a day.
Hicks grew up in Adelaide, left school before completing year 9, converted to Islam and then fought in the Balkans with Muslim forces. He later went to Afghanistan, where he attended several al-Qaeda training camps and met Osama bin Laden. He returned to Afghanistan to fight with the Taliban after watching the September 11 attacks on television.
If Hicks does come home, Mr Ruddock has said he will not face charges because he has not broken any Australian laws.
Mr Ruddock said Mr Gonzales had told him Hicks would quickly face new charges and get a fair trial under the new military court.
But Hicks's US lawyer, Major Michael Mori, said the US Government had made repeated assurances to the Australian Government that had not been kept.
Only weeks before Mr Habib, the Sydney man alleged to have trained with al-Qaeda, was released from Guantanamo Bay, the US had said he would be charged. It also repeatedly told the Government that the original military commission process was lawful.
"This has cost David five years of his life," Major Mori said. "He should be brought back to Australia right away. He's happy to co-operate with any conditions that may be applied."
The speedy resolution of Hicks's charges and military court could be thwarted on several fronts.
Major Mori says the Supreme Court decision means two charges against Hicks will have to be dropped, a view Mr Ruddock did not want to comment on. The US Congress could fail to agree on a new military commission process before it adjourns for mid-term elections in November.
And it is likely the new process will be appealed against and tied up in the appeal courts for years.
Mr Ruddock said he would not be swayed by "spurious" appeals designed to delay the trial. But, equally, he said, "I would never deny anyone the opportunity to test substantial issues."