The Law Council of Australia (LCA) is providing the only independent Australian legal expert to attend the first hearing in the military trial of terrorist suspect David Hicks, which begins in Guantanamo Bay this week as Lawyers Weekly goes to press. The LCA has been doubtful for quite some time that Hicks’ trial will be a fair one. Now it hopes that by sending its very own legal expert to follow proceedings and report back, the Government will take good advice and, if appropriate, will finally demand from the US a fair sentencing process.

In an interview with Lawyers Weekly, LCA president-elect Steve Southwood said the guild was very pleased to be able to send Melbourne barrister Lex Lasry QC to Guantanamo Bay to attend the first hearing on 25 August. But still, as far as the LCA has been able to ascertain, the military commission process being used to try Hicks “is a wrong headed and unfair approach”.

Firstly, Southwood explains, it is a situation in which all parties are employed by the US Department of Defense. “So the prosecutor and tribunal are all employees of the US defense department, and [it] is therefore not fair,” he said.

Another problematic issue for those promoting fairness in Hicks’ trial process is that the ordinary rules of evidence do not apply, Southwood says. Hicks’ legal advisers may not be given access to all of the evidence in sufficient time prior to the trial starting, an issue about which Hicks’ lawyers, Stephen Kenny and Major Michael Mori, have also expressed concern.

But by having Lasry there to monitor and objectively report on proceedings, according to Southwood, “we’ll be in a position to make submissions to the Australian Government which will hopefully make strong submissions to the US Government to make sure it is made fair”.

The LCA has long believed that the military commission was an “unnecessary and inferior substitute for a normal court martial”, said LCA president Bob Gotterson in an earlier interview.He expressed concern that military commission trials leave detainees at the mercy of executive government, allowing them to be incarcerated even if they are acquitted or if they have served their sentence. “Verdicts could only be appealed to the US president, there are no independent judges and the rules of evidence do not apply,” he said.

“The LCA thinks when you think of prosecuting people it is inappropriate if it is dealt with by the executive,” Southwood said. “It should be dealt with by ordinary legal institutions.”

There is no reason why Hicks could not be prosecuted within the existing US legal system, some sceptics, including the LCA, have claimed. Although acknowledging the fear of terrorism is a real one, and that concerns about terrorism are justified, Southwood says that the real reasoning behind why Hicks was not allowed to face an ordinary trial was due in part to ”executive reasons” within the American military. “I think their concerns, which are real, have possibly been overdone,” he said. “Any response to terrorism should be consistent with international and national law as well as international treaty obligations.”

Lasry’s role is now that of an independent Australian legal expert. He will monitor proceedings and then report back to the LCA on their fairness. Lasry will draw on his vast experience in criminal law as well as his involvement in cases concerning criminal fraud, immigration, customs and espionage, including the high-profile trial of former Defence Intelligence Organisation staffer Simon Lappas. He has been the chairman of the Victorian Criminal Bar Association since 2002 and is a member of the Council of the International Criminal Bar for counsel practising before the International Criminal Court.

Lasry has acknowledged the importance and responsibility his role carries and says he looks forward to fulfilling the obligations bestowed upon him.

Federal Attorney-General Philip Ruddock said last week that the Federal Government is determined to have Hicks’ trial dealt with fairly and welcomed the announcement that the LCA had selected an observer. “The Government is determined to press for this matter to be dealt with as quickly and fairly as possible,” Ruddock said in a statement. Southwood suggested that the LCA would hold Ruddock to his word.

Shadow A-G Nicola Roxon has also urged the Government to “actively ensure that the trial process is fair”. Labor maintains that if Hicks has committed a crime then he should be brought to justice. However, Roxon says the Government needs to ensure the process from now on is open, independent and meets the proper standards of criminal justice.

“The Government now has a responsibility to ensure that [Hicks] receives a fair trial, and uses more pressure than it has to date to guarantee Australian citizens fair and just processes,” she said. “Australia should expect from its closest ally that the trial will be conducted fairly.”

For now, the LCA is relying on Lasry’s findings to secure Hicks a fair trial. If, after observing the proceedings, he concludes and reports that the trial has not been conducted appropriately, the LCA hopes the Australian Government will take heed and use any power it has to persuade its closest ally to ensure Hicks does in fact receive a fair trial.