Peter Costello makes the plausible point that, if the charges against David Hicks are true, he could have killed Australian soldiers. But the same story in the SMH goes on to say
Australia has steadfastly refused to ask for Hicks to be released from Guantanamo because he could not be tried for his alleged crimes in Australia.
How can this be true? Under the Australian Criminal Code,
“A person commits an offence, called treason, if the person:
….
(e) engages in conduct that assists by any means whatever, with intent to assist, an enemy:
(i) at war with the Commonwealth, whether or not the existence of a state of war has been declared; and
(ii) specified by Proclamation made for the purpose of this paragraph to be an enemy at war with the Commonwealth; or
(f) engages in conduct that assists by any means whatever, with intent to assist:
(i) another country; or
(ii) an organisation;
that is engaged in armed hostilities against the Australian Defence Force; or
I can’t see how the alleged crimes for which Hicks is to be tried in the US are not covered by this crime (note, by contrast, that it is not necessarily a crime for an Australian to fight against the US, which explains the constantly shifting charges brought against Hicks there).
This has been tightened up a bit since 2001, when the relevant section of the Crimes Act read
(d) assists by any means whatever, with intent to assist, an enemy:
(i) at war with the Commonwealth, whether or not the existence of a state of war has been declared; and
(ii) specified by proclamation made for the purpose of this paragraph to be an enemy at war with the Commonwealth;
….
(f) forms an intention to do any act referred to in a preceding paragraph and manifests that intention by an overt act;
but it seems clear that if Hicks agreed to fight with the Taliban against a Coalition including Australia, as claimed in the charges against him, he’s guilty of treason.
The only meaning I can impute to the government’s position is that Hicks could not be convicted of treason because the evidence the American prosecutors plan to use (confessions extracted under torture, hearsay and so on) would be thrown out of an Australian court.