Australian terror suspect David Hicks will be dodging justice if he gets out of Guantanamo Bay via British citizenship, Foreign Minister Alexander Downer says.

Hicks, 30, has been in detention for nearly four years but hopes that British citizenship - through his British mother, could clear a path to freedom.

During a recent chat about the Ashes cricket series with his US military-appointed lawyer Major Michael Mori, Hicks revealed his mother was British and had never taken out Australian citizenship.

Maj Mori then took an application for citizenship for Hicks to the British embassy in Washington.

The British government has refused to allow any of its nine inmates of the United States' detention facility in Cuba to be tried because of concerns the US military tribunals do not meet international justice standards.

Mr Downer said he would not stand in the way of the citizenship bid, but felt Hicks should "face justice" by remaining in Guantanamo Bay for the tribunal that charged him.

"If Mr Hicks and his lawyers want to try to circumvent justice by going to some other country and think that will help them, that's a matter between him and that country," he told reporters.

"Our point about Mr Hicks is that he should face justice.

"I would have thought charges like conspiracy to commit war crimes and attempting to murder people are charges that should be heard."

Mr Downer said the clear difference between Hicks and the freed British detainees was that the Brits were never charged and Hicks had been.

If Hicks can provide the appropriate documentation, the chances of getting British citizenship appear good - but it could take a year.

His trial before a military commission is expected sooner than that.

A spokeswoman for the British High Commission in Canberra said Britain brought in new laws in 2002 allowing people to claim citizenship if their mothers had British citizenship.

She said 1,769 Australians had so far applied for citizenship under this category.

Asked if an applicant's character or legal status could affect their application, she said people weren't asked about past criminal convictions and character became more of an issue if they were seeking to be naturalised.

She said the process could take 12 months and the final decision rested ultimately with Britain's Home Secretary.

Mr Downer chastised the federal opposition for championing Hicks' cause.

"The opposition running around saying we should free Mr Hicks, I don't think that's a responsible position for them as a so-called `alternative government' to be taking," he said.

"Mr Hicks is no hero, he is facing very serious charges."

Labor leader Kim Beazley criticised the government for failing to stand up for Hicks' legal rights.

"I don't know what the British will do (about Hicks' citizenship application) but the issue arises because the government hasn't pressed the Americans in the same way the British have ... to ensure that Australian citizens ... are tried under appropriate American jurisdiction," Mr Beazley told reporters.

Hicks pleaded not guilty before a US military commission last year to conspiracy, aiding the enemy and attempted murder.

A trial date has yet to be set.

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David Hicks and his daughter in a family photo.

David Hicks may rise from the Ashes. The alleged Australian terrorist made an off-hand remark to his lawyer about the Ashes cricket series - and it has inspired an 11th-hour attempt to prevent him facing a US military trial.

A few days after England's win in the series, his US lawyer, Major Michael Mori - one of a rare breed, an American cricket enthusiast - casually asked the Australian prisoner at Guantanamo Bay how he felt about the result.

"He told me he'd never felt very partisan about the Ashes and wouldn't mind much if England took the series because his mum had never claimed Aussie nationality and still carried a UK passport," Major Mori told Britain's The Observer.

"My jaw hit the floor. I asked him, 'Do you realise that may mean you're legally a Brit?' We both knew that the implications of that could be stunning."

Unlike Australia, Britain believes the military commission system cannot deliver justice and has successfully sought the return of all nine of its citizens - including two dual nationals - from Guantanamo Bay.

Hicks was born and raised in Australia but now he is seeking to become a British citizen. After sending out some feelers to British authorities, Major Mori lodged Hicks's application with the British embassy in Washington on September 16, barely a month before his expected trial in late October.

The Hicks legal team has not heard back from the British but believes it has an irresistible case thanks to two changes in law in England and Australia.

Until 2002, only the children of British fathers could register as UK nationals. In that same year, Australia passed a law allowing Australian citizens to hold dual nationality. It is not surprising that Hicks was unaware of the changes. He was already incarcerated at Guantanamo Bay.

"It just so happens that David's birth date fits in a relatively small window that allows him to the automatic right to British citizenship because of his mother," Hicks's Australian lawyer, David McLeod, said yesterday.

He said he had been told Australian and British government officials had discussed the case even before a formal application was lodged at the British embassy in Washington. "Serious consideration is being given to this by the British. If the Australian Government won't come to his assistance, the British ought to."

A spokesman for the Minister for Foreign Affairs, Alexander Downer, said Australia had made no representations to the British about the case nor urged them to reject the citizenship attempt.