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National Observer Home > No. 66 - Spring 2005 > Article

National Observer No. 66 - Spring 2005

Legal Notes

 Mr. David Hicks’ Legal Costs: Why Should Taxpayers Fund Them?

by I.C.F. Spry

National Observer
(Council for the National Interest, Melbourne),
No. 66, Spring 2005,
pages 61–63.

Mr. David Hicks, an Australian national, was arrested by the United States in Afghanistan and was taken to Guantanamo Bay, in Cuba, and is to be tried by a United States military commission. (A large number of other terrorists and their supporters have been taken by the United States to Guantanamo Bay and are similarly awaiting trial.) Mr. Hicks has been described as “a dangerous person” by the Minister for Foreign Affairs, Mr. Alexander Downer, on the basis of security information supplied to him.

A question arises in these circumstances, Why should the Australian Government, and hence Australian taxpayers, pay or contribute to Mr. Hicks’ legal costs in the United States? The alleged offences did not take place in Australia, but in Afghanistan. Likewise the legal proceedings against Mr. Hicks will not take place in Australia, but in the United States.

The instinct of the political left appears still to be to criticise the United States wherever it is possible to do so. It may be conceded that the United States often acts unwisely or unreasonably in its own interests. But to use the case of Mr. Hicks to attack the United States is hardly wise. The fact is that there have been sophisticated terrorist training camps in Afghanistan and that in these camps putative terrorists have been programmed to attack the United States and its allies, including Australia. These trained terrorists are dangerous people. The United States is correct to apprehend them, as intending murderers, and to detain them, and where appropriate to try them.

In these circumstances the public support for Mr. Hicks by two groups is particularly unfortunate. The first group comprises his legal supporters. Mr. Hicks is entitled to seek legal representation, but it must be remembered that lawyers who represent him are paid to say what they say. They are not in fact paid to make comments that examine the legal position fairly: they are paid to promote Mr. Hick’s case, although that case does not appear to take into account sufficiently the concerns of United States’ and Australian authorities.

The second group that provides inappropriate support for Mr. Hicks and those like him is derived from the political left, who are unduly critical of United States legal procedures. There are great difficulties of proof in dealing with terrorists and terrorist supporters arrested in Afghanistan. It may well be that in many instances long-drawn-out trials in the ordinary courts in the United States or Australia would not be able to examine all relevant facts adequately to protect Australian interests. Whilst not in strictness a war, the terrorist campaign against the West raises similar considerations to a war. Strong defensive measures must be taken to protect thousands of Australians from threatened explosions and killings. In these circumstances the trial by military commission of persons captured in Afghanistan is not only permissible, but is prudent and is based upon sound policy.

These circumstances are not sufficiently taken into account by leftish lawyers such as Ms. Mary Gaudron (a former political appointee to the High Court) or by legal interest groups such as the Australian Law Council. The Australian Law Council is in fact a union-like body, the main concern of which is to advance the interests of lawyers. It should by no means be regarded as an independent group concerned with questions of justice or, in particular, with Australia’s security. In this case it has been especially influenced by Mr. Hicks’ lawyers and by a number of leftish criminal lawyers who, again, are not interested in Australia’s security.

It is an unfortunate fact that so long as money for legal costs is available, lawyers will always find a claimed injustice they wish to remedy. Lawyers’ main purpose is, it need hardly be said, to obtain fees within the operation of the legal systen.

Further, observers of the legal profession note that so long as funds for legal costs are available, additional legal work is found and fees are charged. This position arises with criminal lawyers, as with other lawyers. If adequate funds are available an almost inexhaustible range of occasions is found for taking procedural and substantive points: hearings are expanded, so as to increase legal costs, and new tribunals are approached wherever that is practicable.

This raises the question in the present case, Why should Australian taxpayers pay for the legal costs of Mr. Hicks? The Attorney-General, Mr. Philip Ruddock, is a principled politician who is widely respected, but he has been exposed to undue pressure on this subject from groups identified above, and the Commonwealth Government has, unwisely, been prepared to pay for the legal costs of Mr. Hicks. Mr. Ruddock has stated that “we have been, as I would assert, as generous as we can in ensuring that he has a defence available to him”, and has commented: “The fact is we are now talking about expenditure in excess of $100,000 to Australian consultants that have been part of his defence team.” 1

This unwise expenditure raises two questions.

A general question is whether if the legal fees of Mr. Hicks are paid for, the Government could properly refuse to pay the costs of other Australians who, in foreign countries, perform acts that bring them before foreign tribunals. Mr. Hicks’ circumstances are particularly unmeritorious, and payments to him may be seen as precedents that support a general largesse. The Australian taxpayer’s pocket is not unlimited. Prima facie Commonwealth moneys should not be spent on foreign legal proceedings, especially when defence lawyers are in fact provided in the foreign country in question.

The second question relates to the particular case of Mr. Hicks. The United States (as indeed Australia also) is justified in taking the strongest measures to restrain and prosecute terrorists and terrorist supporters. Australia, which is also subject to terrorist planning, should be careful to ensure that actions taken at the behest of adversely interested groups do not deter the United States from acting appropriately as a matter of national security and defence.

In conclusion it may be said that Mr. Ruddock, who is properly regarded as one of the most conscientious Commonwealth Ministers, has allowed himself to be persuaded imprudently to allow Commonwealth financial assistance to Mr. Hicks. It is necessary to have firmness in opposing the various interest groups who have supported this course. It may be hoped that Mr. John Howard and Mr. Ruddock will ensure that no further financial assistance is provided to Mr. Hicks or to others in his position.




1. The Herald Sun, 7 August 2005. In the same issue there appeared a characteristic article, critical of the United States, by Mr. Matt Price, a journalist of populist leftish views published under his by-line picture, long-haired and in an open shirt; and in this he is apparently representative of a type that is prevalent in Australian journalism today, as self-promoting “journalists of the people”.




Dr I.C.F. Spry QC is a Queen’s Counsel, the Editor of National Observer and a former member of the Law Faculties of the University of Melbourne and Monash University.