By Penelope Debelle and Brendan Nicholson
Terror suspect David Hicks is set to launch court action in Australia aimed at forcing the Howard Government to seek his immediate repatriation from Guantanamo Bay.
Lawyers acting for Hicks will lodge documents in the Federal Court today seeking an order requiring the Government to protect his rights as an Australian citizen by bringing him home.
Attorney-General Philip Ruddock and Foreign Affairs Minister Alexander Downer will be named in court papers to be filed in Sydney by a team headed by constitutional expert Bret Walker, SC.
David McLeod, an Adelaide lawyer who represents the accused Taliban fighter, said Hicks had provided instructions to launch court action if the Government did not bring him home. "David has been in Guantanamo Bay for five years without trial and at this point he is not charged with anything," Mr McLeod said.
"He feels the Federal Government should be brought to account for its failure to protect one of its citizens abroad."
The legal move coincides with growing pressure on Prime Minister John Howard to do something about Hicks, with several Coalition MPs yesterday calling on him to ask the United States to send him back to Australia.
The Federal Court action will argue the Government failed in its duty to protect one of its citizens overseas and breached its protective duty by failing to bring about a fair trial.
Citing powers under the Judiciary Act and the Federal Court of Australia Act, Hicks' lawyers will argue the Government wrongly relied on the irrelevant consideration that Hicks could not be repatriated because he could not be charged at home.
The Government has repeatedly said Hicks could not be dealt with in Australia because alleged crimes such as training with al-Qaeda were not illegal when Hicks was captured in 2001. Hicks' team will argue that because of this, the Australian Government subjected Hicks to unfair trial by the US military commissions.
Hicks will also accuse the Government of failing to request that the US authorities give him minimum protection under the Geneva Convention, the International Covenant for Civil and Political Rights and the Universal Declaration of Human Rights.
Hicks, a former rodeo rider and abattoir worker from Adelaide, was captured and handed to the US military in Afghanistan in early December, 2001. He was charged in 2004 with aiding the enemy, conspiracy and attempted murder.
The charges were abandoned in June this year after the US Supreme Court found the military commissions were illegal.
Mr McLeod said new commissions set up by US President George Bush were in many respects as flawed as the last and were also likely to be challenged.
Hicks' US defence counsel, Major Michael Mori, will visit him today to brief him on the progress of the legal action. It will be the first time Major Mori has seen Hicks since concerns about his mental and physical condition were raised in October.
Hicks' family has been particularly worried since he was moved in March to virtual solitary confinement at the Guantanamo Bay prison. Hicks' father, Terry, said his son had been inarticulate and withdrawn in a phone call earlier this year.
Mr McLeod said every Australian needed to be confident that if they were detained overseas, the Government would do everything to ensure they were treated fairly and according to law. "The US will not allow its own citizens to be subject to a military commission," he said. "If the system is not good enough for Americans, why is it good enough for Australians?"
In yesterday's Coalition party room meeting in Canberra, four MPs — believed to be Petro Georgiou, Russell Broadbent, Bruce Baird and Danna Vale — urged Mr Howard to seek Hicks' repatriation. "There were also noises of support throughout the party room," a source said.
Last month the Senate backed a call by the Nationals' Barnaby Joyce for the Government to press the US for Hicks to be dealt with expeditiously and fairly. Yesterday, referring to Hicks being held for five years without trial, Senator Joyce told The Age: "That's the sort of trick they get up to in China and Africa. We don't need it here."
Amnesty International will co-sponsor "Bring David Home" rallies around Australia on Saturday, including one at Federation Square in Melbourne.