A PLEA deal condition that prevents David Hicks speaking to the media for 12 months would not be enforceable in Australia, Attorney-General Philip Ruddock said.

Mr Ruddock said Australia had no law making it a crime for Hicks to talk, and the US would only be able to act on a plea bargain breach if Hicks came “within their reach”.

But for Australia to agree to an extradition, a charge similar to the one laid overseas must exist under Australian law, Mr Ruddock said.

“In Australia, we have a position about freedom of speech,” Mr Ruddock told ABC's Lateline program.

“I'll leave it to your imagination as to a way in which somebody seeking extradition in relation to a party for breaching a so-called gag order would be able to be delivered up through the judicial processes in Australia.”

Asked if the gag order meant nothing, and Hicks would be able to speak to the media, Mr Ruddock responded: “I suspect you are probably right.”

Mr Ruddock said the US included the clause in the plea bargain and it was a matter for the US, Hicks and his advisers.

“I don't think it's a matter for us to enforce,” he said.

However, the Australian authorities could act if Hicks tried to profit directly or indirectly by selling his story, under proceeds of crime legislation.

The Australian Government had not directly or indirectly requested a gag order be placed on Hicks, Mr Ruddock said.

The argument that the gag order was designed to stop Hicks speaking before the election had no currency as prisoners in jail could not hold press conferences.

“We are not about a gag in relation to people speaking about issues that they wish to comment on, even if they have committed criminal offences,” Mr Ruddock said.

“But we are against them being able to profit from telling that story.”

Mr Ruddock was responding to comments by Hicks' military lawyer Major Michael Mori that his client could be sent back to Guantanamo Bay to serve the rest of his seven-year suspended sentence if he breached his pre-trial agreement by speaking to the media.

“Violating many of the provisions of the pre-trial agreement actually could require him to serve the remainder of the sentence hanging over his head,” Major Mori told the ABC's 7.30 Report.

“He could potentially be brought back to Guantanamo to serve it.

“I hope that doesn't happen.

"I hope the media respects that he's under oath, under obligation not to talk to media, and they don't try to set him up for failure.”

Maj Mori said that if authorities believed the pre-trial agreement had been violated, under the military commission rules they would hold a hearing to determine if a breach had occurred.

Meanwhile, Mr Ruddock said Hicks' representatives had not taken up with the Australian Government claims, made in an affidavit for an English court case, that he was slapped, kicked, punched and spat on in Afghanistan and had a shotgun trained on him during interrogation.

Hicks made the affidavit for a court case he launched seeking British citizenship which he hoped would force the British Government to seek his release from Guantanamo Bay.

Other issues of mistreatment that had been raised previously had been brought to the attention of US authorities for investigation, he said.

“None of those sorts of claims have been substantiated,” Mr Ruddock said.

Hicks had sometimes given positive feedback about his treatment to Australian consular officials on the 19 visits they paid him in Guantanamo Bay.