As Lawyers Weekly went to press, the hearing date was set for 15 December, approximately five years after the South Australian first entered US custody.

The hearing in the Federal Court followed last weekend’s national protest on the fifth anniversary of Hicks’ detention. Rallies were held in Queensland, South Australia, Tasmania, Victoria and Western Australia, with Amnesty International campaign stalls in other states.

“Five years in detention is a very long time in anyone’s book, but it is a particularly long time when there have been no charges, no trial and no conviction,” said shadow Attorney-General Nicola Roxon last Saturday.

Invited as a keynote speaker at the Melbourne rally in Federation Square, Roxon said there was a window of opportunity, before any charges are laid under the new military commission process, for the Government to act now.

Australia’s anti-terror laws, including those that provide for control orders, “are more than adequate to deal with any security risk that the Government believes [Hicks] poses,” she said.

“If [Hicks] is assessed as a security risk to the community, our laws allow control orders to monitor a person’s movements in proportion to the threat they pose to the community.”

The Law Council of Australia released a review of the Government’s position on Hicks last week, a collection of what the national law body considers to be five years’ worth of “guilty until proven innocent”, “misinformation” and “accepting assurances from the US authorities”.

Law Council president Tim Bugg said Hicks remains in legal limbo and that things are unlikely to improve in the near future.

“We’re reliably told, from sources who are in the United States, that the military commission process, which the Bush administration has set in place with the assistance of Congress, will be subject to challenge,” he told Lawyers Weekly.

The Law Council has said, for many years now, that he ought to be charged and brought before a properly constituted court or a court martial,” Bugg said.

“The Law Council has now reached a point where it seriously doubts whether he could ever have a fair trial, even if the process could now be put underway in a timely way — and that’s a fair process.”

Bugg rejected any assertion that, by siding with the US administration for so long, the Australian Government’s hands are tied by diplomatic responsibilities.

“It’s simply a case of the government reassessing its position. The very widespread view is that its position is not based on any form of principle, rather determined by political considerations,” he said.

“It certainly didn’t worry the British. I don’t see why it should concern the Australian Government. What the Australian Government is really more concerned about, rather than diplomatic concerns, is the rights of one of its citizens; rights have just been trodden on and ignored.”

Roxon agreed with Bugg, stating that “there is no reason — other than a lack of political will and the stubbornness of the Attorney-General — for [Hicks] not to be returned to Australia immediately”.

In an interview with Sky News last week, Attorney-General Philip Ruddock said “the important point to know about this matter is that [the Government is] as anxious as anybody to ensure, or to see, the military commission process concluded as quickly as possible”.

According to Ruddock, charges could be laid against Hicks as early as 17 January next year, when the new US military commission legislation is enacted.

Ruddock said he discussed Hicks last week with the American Attorney-General, while Alexander Downer and Brendan Nelson met with the US Secretary of Defense this week to express the need for the matter to be resolved quickly.

Ruddock also rejected any suggestion that Hicks will not receive a fair trial. The new military commission system provides for a presumption of innocence, an avenue of civilian appeal and exposure to the evidence against him that “is beyond that which a person before an Australian court may experience if there was intelligence-related material that needed to be protected”, he said.

Roxon’s speech at the Melbourne Hicks rally marked one of her final appearances in her role as shadow Attorney-General. The Labor Party has announced that she has been given the health portfolio, replaced by Kelvin Thomson, former shadow minister for public accountability and human services.