The decision to amend the legislation marks a positive change for Australian Guantanamo Bay detainees David Hicks and Mamdouh Habib, according to the Law Council of Australia, as it offers hope that they will be returned to their families in this country.

The changes to theinternational transfer of prisoners legislation recognise the verdicts of US-style military commissions and are welcomed by the Law Council, despite previous accusations that Hicks would not receive a fair trial under a military commission.

Last week, possibly spurred on by Britain’s success in securing the release of detainees at Guantanamo Bay, opposition leader Mark Latham urged the Government to make retrospective legal changes to enable the two men to return to Australia for trial. But Prime Minister John Howard rejected the proposals.

As reported by Lawyers Weekly at the beginning of this month, the Law Council condemned the US military commission and claimed that Hicks should receive a fair and just trial in the US before either a civilian court or a court martial. The argument was fuelled by Hicks’ US military lawyer Major Michael Mori, who supported the claims.

The Council remained firm on this matter, maintaining that the military commission “erodes the common rights: which an accused is entitled to in normal criminal proceedings in Australia and the US”.

But Law Council president Bob Gotterson QC said the Council supported the intention to allow Australian detainees Hicks and Habib to return home “if they are sentenced to a term of imprisonment by US authorities”.

The Council has declared its preference that Hicks and Habib serve any military commission-imposed prison sentence in Australia, “and does not oppose moves to achieve this”, Gotterson said. “Indeed, we are heartened that this legislation may offer some hope to the families of the two men,” he said.

His comments follow Hicks’ US Marine Corps lawyer Michael Mori’s comments that Hicks could be tried just as validly in Australia as in the US. Mori said that Hicks had not injured Americans so if he was on trial for violating international laws he could be tried in his own country.

Hicks’ Australian lawyer Stephen Kenny warned last week that if Australia failed to protest against the latest US proposal for the Guantanamo Bay detainees it could put its nationals at risk of indefinite detention elsewhere in the future.

Shadow Attorney-General Nicola Roxon had, prior to the recent changes, accused the Australian Government of doing less for the two Australian detainees than it would do for people held for drug matters in a Thai prison. The Government appeared to be “unmoved” by the fact that neither man had yet been formally charged, she said.

She condemned the Government’s response to Major Mori’s suggestions that his client would not receive a fair trial under a US military commission. The Government should be arguing that Australian citizens are entitled to a fair trial, Roxon said.