[JURIST] Australian Guantanamo Bay detainee David Hicks [advocacy website; JURIST news archive] will be arraigned before a US military commission on March 20, marking his first commission appearance after over five years in US detention. Australian Prime Minister John Howard confirmed the March 20 hearing in an interview with Southern Cross Broadcasting Thursday, expressing frustration at delays in bringing Hicks to trial. Hicks is expected to plead not guilty to charges [PDF text; JURIST report] of providing material support to terrorists. AP has more.
In a related development Thursday, the Federal Court of Australia ruled [text] that Hicks' lawyers may proceed with a lawsuit [JURIST report] against the Australian government. According to Justice Brian Tamberlin's explanatory statement of his ruling:
[Hicks] claims that he should be released and returned to Australia and that the Minsters and the Commonwealth are responsible for his ongoing wrongful internment.The government asked the court to grant summary judgment and dismiss the case, arguing that Hicks had no reasonable prospect of success, but Tamberlin rejected that argument:
First, he says that he has been unlawfully imprisoned and that the Ministers and the Commonwealth have sufficient control to have him returned to the country of his citizenship. He therefore seeks an order of habeas corpus for reasons to be given as to why he should not be released from internment and returned.
Second, Mr Hicks alleges that the Ministers and the Commonwealth have made statements that they will not request his return because if he is brought back to Australia he may not be able to be prosecuted under Australian law. The consequence of the refusal is to allow the United States to take such action against him as it sees fit. It is alleged by Mr Hicks that these are two operative reasons which the Respondents rely on for not exercising the right of Australia to make the request to the United States.
Mr Hicks submits that these two reasons are irrelevant to a proper consideration of his need for protection and that the executive decision not to make a request should be set aside as invalid. He also says that the Respondents have a "duty" to lawfully consider his request. They have not done so and they should therefore be ordered to consider it in accordance with law by not taking into account irrelevant considerations.
The issues raised by Mr Hicks are in areas of law where principles are still developing, such as, the Act of State doctrine, justiciability and the extent to which the Court can look at matters which concern foreign relations. The submissions for Mr Hicks raise important Constitutional questions as to the relationship of the Judiciary and the Executive, the interaction between the protection of individual liberty and the national interest, and involve questions of foreign affairs. There are no clear authorities which would justify judgment against Mr Hicks at this stage. For his case to be properly considered, it is necessary to look at factual material provided by evidence and hear submissions with the benefit of that evidence.Tamberlin said that the case should be heard on an expedited basis. Australia's ABC News has more.