Terror suspects' prosecution likely to be in US

The United States is unlikely to repatriate two Australian terror suspects imprisoned in Guantanamo Bay, Cuba, because Australia wouldn't be able to prosecute them under its terrorism laws, says Foreign Minister Alexander Downer.

He said David Hicks, 27, and Mamdouh Habib, 46, could not be tried in Australia because they were detained before Parliament passed terrorism legislation in June 2002, making it unlikely that Washington would agree to release them.

"If [Hicks and Habib] could be charged under our Terrorism Act in Australia, that would be okay for the Americans," he said.

"But the fact is our terrorism legislation wasn't introduced until after these people were detained, so we can't make the terrorism legislation retrospective."

The United States agreed last week to temporarily suspend legal action against Hicks and two British citizens held at Guantanamo Bay who were among six men set to face military tribunals as "enemy combatants" against the United States. Habib was not among the six.

Prime Minister John Howard said at the weekend that senior Government officials were headed to the United States for discussions with US officials on ensuring that any US proceedings were transparent and fair.