When and how did Mr Hicks return to Australia?
Mr Hicks was returned to Australia on 20 May 2007. Mr Hicks was transferred into the custody of the South Australian correctional services at Guantanamo Bay and then flown by a Government-chartered aircraft to Adelaide. Mr Hicks was accompanied by his Australian lawyer, Mr David McLeod, two South Australian corrections officers, two Australian Federal Police (AFP) officers and a medical doctor.Why was Mr Hicks returned to Australia?
Mr Hicks is an Australian citizen. He made an application under the International Transfer of Prisoners Act 1997 (Cth) to transfer to Australia. The Act provides a mechanism for prisoners to apply to serve the remainder of their sentence of imprisonment in their home country.
What did the transfer cost and who paid for it?
The cost of the charter to the Government was approximately $AU 500,000.
Under all of Australia’s international arrangements for the transfer of sentenced prisoners, the receiving country is responsible for paying the cost of the return of the prisoner. In this case the Australian Government made the necessary arrangements for Mr Hicks’ return including transportation costs for Mr Hicks and correctional officers.
Each year a number of prisoners transfer out of Australia to their home countries. In these cases the receiving countries pay the travel costs of the prisoners.
Why was Mr Hicks returned via chartered aircraft?
Several possibilities for Mr Hicks’ return were considered. A chartered flight was used for security, safety and efficiency reasons.
The United States would not permit Mr Hicks to transit US airspace nor stop on US territory. As a result, less costly commercial flights were not available to return Mr Hicks.
Where is Mr Hicks serving his sentence?
Mr Hicks is now in the custody of the South Australian correctional services.
He is being detained in Yatala Labour Prison, where he will serve his sentence of imprisonment.
What are the conditions of Mr Hicks’ detention in South Australia?
As is the case for all federal prisoners held in South Australia, the conditions in which Mr Hicks will be detained, including visitation rights, are matters for the South Australian Government.
What will happen after Mr Hicks is released?
The community should be assured that public safety is the primary concern for law enforcement and security agencies in such matters. Whether Mr Hicks will be subject to a control order is an operational matter for the Australian Federal Police.
What happened at Mr Hicks’ arraignment?
Mr Hicks pleaded guilty to the charge of providing material support for terrorism at his arraignment before a military commission on 26 March 2007.
The members of the military commission sentenced Mr Hicks to seven years imprisonment, all but nine months of which has been suspended subject to conditions, which were contained in the pre-trial agreement between Mr Hicks, the Convening Authority and the prosecution.
Did time spent in Guantanamo Bay count towards Mr Hicks’ sentence?
The Australian Government always made it clear to the US authorities its position that time served should be taken into account in sentencing. The conclusion that a further nine months imprisonment was appropriate appears to take into account the fact that Mr Hicks has already served five years.
Can Mr Hicks appeal this decision?
Through his defence counsel Major Mori, Mr Hicks waived his appeal rights.
During a ‘providency hearing’ on 30 March 2007, an agreed finding of facts was filed with the military judge. The judge then questioned Mr Hicks on oath about his plea and the specific facts that lay behind it. During the questioning, Mr Hicks admitted to a number of specific activities including training with the Pakistan-based terrorist organisation, Laskhar-e-Tayyiba in the middle of 2000; training with Al Qaeda in Afghanistan from January 2001 (in a range of areas including weapons familiarization and firing, marksmanship, land mines, small unit fire, manoeuvre tactics, guerrilla warfare, mountain tactics, assassination methods and techniques for passing intelligence and supplies to Al Qaeda operatives); meeting Osama bin Laden during these training courses; conducting surveillance of the former American Embassy building in Kabul; and fighting with Al Qaeda forces against the US and its allies in Afghanistan in late 2001, following the attacks on September 11.
What was included in the pre-trial agreement?
Mr Hicks, with the benefit of legal advice, entered into a pre-trial agreement with the prosecution on 26 March 2007. The Australian Government was not involved in the negotiation of the pre-trial agreement. The agreement was reached by the Convening Authority, the prosecution and the defence. In the agreement, Mr Hicks has stated that he is pleading guilty, freely and voluntarily, because he is guilty. Other elements of the agreement limit any sentence imposed on Mr Hicks to seven years and prevent Mr Hicks from talking to the media about his capture and detention for one year.
Can the Australian Government amend Mr Hicks’ sentence or grant him a pardon?
The Arrangement between Australia and the US for the transfer of prisoners sentenced by US military commissions (the Arrangement) provides for the enforcement of the nature and duration of the sentence imposed. Under the Arrangement the Australian Government is obliged to continue the sentence imposed by the military commission in Australia to the extent that it is compatible with the Australian Constitution.
Only the United States would be able to grant Mr Hicks a pardon.
Can Mr Hicks challenge his detention in Australia through Australian courts?
The International Transfer of Prisoners scheme is a consent-based scheme. The purpose of the scheme is to allow prisoners to serve the remainder of their sentence in their country of nationality, not to reopen the conviction imposed by a foreign country.
Mr Hicks consented to the continuation of his sentence in Australia as part of the transfer process.
However, any possible legal action is a matter for Mr Hicks and his lawyers.
Is Mr Hicks the subject of a ‘gag order’?
The pre-trial agreement includes a provision preventing Mr Hicks from talking to the media about his capture and detention for one year. The Australian Government was not involved in the negotiation of the pre-trial agreement. Mr Hicks agreed to that provision with the benefit of legal advice.
Major Mori has said that Mr Hicks needs a "fair chance to get started with his life" without "the media harassing him".
Will Mr Hicks be able to profit from selling his story?
Any attempt by Mr Hicks to sell his story could result in action under the Commonwealth Proceeds of Crime Act 2002. Under the Act, the question of whether to take action in a case is a matter for the Commonwealth Director of Public Prosecutions, following an investigation by the AFP.
It is important to differentiate any action that is possible under the Proceeds of Crime Act from Mr Hicks’ agreement with the United States not to talk to the media. Australia’s laws do not prevent a person from telling their story to the media; they merely enable any financial benefits a person derives from their criminal activity to be confiscated. Should Mr Hicks choose to tell his story to the media, Australian proceeds of crime legislation may be used to prevent Mr Hicks from profiting from such action.
Will the Government retrospectively legislate to close loopholes in the legislation in order to stop Mr Hicks from profiting?
David Hicks has been convicted of an offence under a law that was established by legislation passed by the United States Congress. The Government is of the view that the offence would be covered by the Proceeds of Crime Act.
However, if the Government becomes aware of a technical deficiency in the operation of the legislation, the Government will move to correct it.
This will ensure that the policy that criminals should not profit from their crimes is maintained.
Isn't the charge to which Mr Hicks pleaded guilty retrospective?
The US has indicated that the charge of providing material support for terrorism is not retrospective. The Military Commissions Act states that it codifies offences that have traditionally been triable by military commissions and that it does not establish new crimes that did not exist before its enactment, but rather codifies those crimes for trial by military commissions.
What happened to threats of disciplinary action against Major Mori?
There were a number of media reports in early March 2007 that suggested Major Mori would face disciplinary action. At that time the Australian Government was advised by United States authorities that there was no intention to discipline Major Mori under the Uniform Code of Military Justice, nor to remove him from his role as military defence counsel to Mr Hicks.
Did the Military Commission process allow for admission of hearsay evidence and evidence obtained by coercion?
It is important to note that the Military Commissions Act 2006 and the regulations, as set out in the Manual for Military Commissions, are not identical to those normally applicable in domestic criminal trials. They reflect the fact that the accused person was detained in a conflict situation and aim to provide certain safeguards for the accused, while protecting national security interests.
The Military Commissions Act states that evidence obtained by torture is inadmissible. The Act also specifies requirements for the admission of evidence where the degree of coercion is disputed, including that the evidence must be reliable and possess sufficient probative value and that the interests of justice would be best served by its admission. In all cases, it is important to remember that the military judge has discretion to determine the admissibility of evidence, taking into account all the relevant circumstances.
The Military Commission rules of evidence relating to hearsay are similar to those adopted for international criminal tribunals, such as the International Criminal Tribunal for the Former Yugoslavia. These rules have been well-accepted by the international community. Evidence is admissible if the military judge determines that the evidence would have probative value to a reasonable person.
What did the Government do to assess Mr Hicks’ welfare and conditions of detention at Guantanamo Bay?
The government takes its consular responsibilities very seriously. Australian officials visited Mr Hicks in Guantanamo Bay and assessed his welfare on 19 occasions. The Consul-General accompanied the Hicks family to Guantanamo Bay for the arraignment hearing on 26 March 2007 and met with Mr Hicks. Mr Hicks spoke freely with the Consul-General for 35 minutes and indicated that he had no significant health problems. Mr Hicks’ family had a visit of over three hours with Mr Hicks. Mr Hicks was evaluated by a trained psychiatrist on 30 January 2007, who advised that he did not display symptoms of anxiety or depression and that his general health was ‘pretty good’.
Mr Hicks had the opportunity each day for a shower and recreation for two hours and regular access to books and stationery to continue his studies. Allegations that Mr Hicks was shackled to the floor of his cell are incorrect and this has been acknowledged by the ABC which reported the original allegations. United States authorities advise that all Guantanamo Bay detainees are treated in accordance with international obligations and the principles of the Geneva Conventions.
Mr Hicks has been forthcoming about the conditions of his detention and has raised numerous complaints in the past with Australian Consular officials about issues such as food, reading materials and exercise. The Australian Government has followed up any well-founded concerns raised by Mr Hicks, his family or counsel and has sought further information from United States authorities on Mr Hicks’ conditions and access to appropriate medical and other care.
What about allegations Mr Hicks was forcibly sedated?
The Australian Government sought an explanation from US authorities to this claim as soon as Major Mori brought it to our attention.
On 20 March 2007 the Guantanamo Bay authorities released a detailed public statement on the medical treatment provided to Mr Hicks on 2 February 2007 prior to him being formally advised of the charges against him.
The authorities state that when advised of the charges, Mr Hicks made no mention of any adverse effects from the medication, and appeared lucid and understood what was going on around him.
What did the Government do about allegations of mistreatment and abuse involving Mr Hicks?
On the 19 occasions that Australian officials visited Mr Hicks during his detention at Guantanamo Bay, they witnessed no evidence of abuse or mistreatment.
The Australian Government takes allegations of mistreatment very seriously. Our practice was always that whenever substantive allegations about Mr Hicks’ care or treatment were raised, we followed these up at senior levels with the US Government.
At the Australian Government’s request, there were two US investigations into allegations of mistreatment – one by the Naval Criminal Investigative Service (NCIS) and the other by the office of the Secretary of Defense. Neither investigation revealed any evidence of abuse.
Has the Government provided financial assistance to Mr Hicks?
The Australian Government has spent over $300,000 funding Australian consultants who have been part of Mr Hicks’ defence team.
Each application for financial assistance and each application for an extension of an existing grant is determined in accordance with the financial assistance guidelines for the Special Circumstances Overseas Scheme, on the basis of the information that is provided.
The government agreed to cover the costs of Mr Hicks’ father and sister’s travel to Guantanamo Bay for the trial of David Hicks because of the difficulties of family contact and the necessity of extensive official involvement in any arrangements for visits to Guantanamo Bay.
Why didn’t the Australian Government request the release of Mr Hicks as it did with Mr Habib and as the United Kingdom did for the British detainees?
Mr Hicks was different to Mr Habib and the British citizens because they had not been previously charged with offences before the military commission. Mr Hicks had been charged under the previous military commission and has now pleaded guilty to a charge under the reconstituted military commission system.
The Government made continuous representations that Mr Habib be charged or released and a request for his return was made immediately after the Government was advised he would not be charged.
Why couldn’t Mr Hicks have been tried in Australia?
Throughout Mr Hicks’ case, the Australian Government was always of the view that Mr Hicks should face trial in relation to the serious allegations against him. However, the Government was advised that based on available evidence, no prosecution was available against Mr Hicks in Australia. Making that decision is more complicated than simply identifying a criminal offence which might have been committed. After considering the available evidence, the facts in question, the rules of evidence and available defences, the Commonwealth Director of Public Prosecutions advised that prosecution was not available.
Nor is it appropriate for the Australian Government to enact a new offence or enact amendments to apply retrospectively to Mr Hicks. Doing so raises the prospect of creating retrospectively an offence which in reality would be for the purposes of charging one person.
The Government repeatedly expressed to the United States its concern about the length of time taken to bring Mr Hicks to trial. The United States consistently advised us that it had sufficient evidence to be able to put Mr Hicks on trial. Had Mr Hicks not been able to be charged or tried by the United States, we would have sought his return in the same way we did with Mr Habib. The Australian Government is pleased that the serious charge against Mr Hicks has been dealt with by the United States military commission.
