There are many legal barriers to Australia accepting anyone from Guantanamo Bay even though it arguably has a moral and political obligation to help resettle detainees, an ANU academic says.
The Federal Government has rejected two approaches from the United States to accept detainees, but Deputy Prime Minister Julia Gillard said it would consider ''any future requests on a case-by-case basis against the stringent criteria for both national security and immigration''.
Shadow attorney-general George Brandis wants the Government to rule out, once and for all, Australia accepting any of these ''very dangerous people''.
''Some are less dangerous than others, but they are all dangerous people ... there is no place for these people in Australia,'' he said.
They could not be locked up because they had not committed a crime against Australia, so they could only be accepted as part of a humanitarian refugee program.
''There are lots of people in the world, particularly in refugee camps in the Horn of Africa, Darfur, and places like that, which are far more obviously candidates for Australia's compassion and humanitarian instincts than people who are terrorists and terrorist suspects,'' he said.
The deputy director of the Australian National University's Centre for Military Law and Justice, Professor Don Rothwell, said yesterday the easiest way for Australia to accept any former detainees would be as asylum-seekers.
Australia was arguably obliged to listen to requests to resettle former detainees, some of whom could have been caught by Australian soldiers.
''As a strong supporter of the global war on terror and having given military support to the US in both Afghanistan and Iraq, it could be argued that Australia is morally and politically bound to support the US in its efforts to close Guantanamo Bay and deal with the remaining 250 detainees,'' he said.
Up to 150 detainees could be returned to their homelands, about 50 are likely to be tried in special tribunals and another 50 are considered suitable for release, but cannot be returned to their home countries.
Professor Rothwell said Australia would face significant legal issues accepting any of these people, particularly any who would remain in custody. These issues could be overcome by new legislation, but he doubted the Government would be prepared to bring in such laws.
''Some [detainees] could be considered legitimate refugees as they may have a fear of persecution if they return to their home countries. Others could be transferred to Australia as prisoners of war under the Geneva Conventions. Guantanamo detainees received by Australia and released into the community could be subject to strict control orders similar to those placed by the courts on David Hicks.''
However, the process of obtaining a control order on Hicks was easier because he had effectively agreed to a set of facts when he made a plea bargain. This would not necessarily be the case with those coming as asylum-seekers and police would require evidence that they remained potential threats.
''The courts could very much turn around and say 'What was the circumstances under which this intelligence [against them] was obtained?' and it would be entirely appropriate in those circumstances for the courts to probe and test the veracity of the intelligence and the quality of the evidence that the AFP was relying upon,'' Professor Rothwell said.
This could potentially prove problematic.