Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

We need to look at this question in the context of what is being investigated and the operation which is being conducted. The Attorney-General recently, when discussing operations involving counter-terrorism, discussed the issue of sleep deprivation and said that in some circumstances it would not amount to torture. But he did qualify that remark with the circumstances of it being a counter-terrorism exercise and also the circumstances of its use. In a criminal investigation—and we have legislation dealing with that—there are certain aspects to the way an interrogation is carried out, the way questions are asked and the admissibility of evidence in a court of law. That is a very different situation to that which was being described by that Attorney-General.

I agree with what the Attorney-General says—I think that you have to look at it in the context of the operation, because if it is a criminal investigation and you are looking at evidence to be adduced in a court of law then you are governed by the Crimes Act and other legislation dealing with the collection of evidence, and that then is relevant to its admissibility in a court. A court could then consider that issue when the defence conducts its case. That is the very point we are looking at in the criminal jurisdiction domestically in relation to our legislation—as opposed to a counter-terrorism operation where intelligence is being sought. We believe that in that environment sleep deprivation can be appropriate, but the question of its extent and manner is one which has to be exercised by those concerned in an appropriate way because, as the Attorney-General said, sleep deprivation per se in a counter-terrorism security exercise is not torture as such unless there are other circumstances which would rule it so—and in that event you look at the extent and the manner. You have to look at it in those two discrete areas: one is a criminal investigation and one is counter-terrorism intelligence gathering.