Wednesday, 26 November 2014
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014; In Committee
I will not be seeking to move these amendments together. I want to deal with amendment (8) separately to amendment (9). I understand that amendment (9) is in conflict with a previous amendment that has been passed.
The TEMPORARY CHAIRMAN: You do have the right to do that. Please continue with amendment (8).
I move amendment (8):
(8) Schedule 2, page 12 (before line 4), before item 1, insert:
1A Section 3
Convention Against Torture means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984.
Note: The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is in Australian Treaty Series 1989 No. 21 ( ATS 21) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
I will speak to both amendment (8) and amendment (9) together, although we will move them separately. These amendments are in relation to prohibiting the use of torture in ASIS operations. So the current legislation that we have been debating, the changes proposed in schedule 2, will make it clear that it is a function of ASIS, Australia's overseas spy agency, to provide assistance to the Australian Defence Force in support of military operations and to cooperate with the ADF on intelligence matters. However, these changes in the current legislation that we are considering are not accompanied by any safeguards to protect against ASIS engaging in activities that could amount to torture.
These amendments from the Australian Greens would prohibit ASIS specifically and clearly from engaging in conduct that could amount to torture. The amendments are necessary because the scope of ASIS activity as authorised in the Intelligence Services Act 2001, which I will call the IS Act, is extremely broad and will be further extended if this bill is enacted. Under section 14 of the IS Act, ASIS officers are not subject to any civil or criminal liability for any act done outside Australia if the act is done in the proper performance of a function of the agency. That is a significant thing to contemplate—that if the act is done in the proper performance of a function of the agency, they will not be subject to any civil or criminal liability for that act.
This has given rise to concerns that if the scope of ASIS activities are extended by this bill to include the provision of assistance to the Australian Defence Force—and this has been a concern that has been raised by human rights organisations in Australia—this could lead to the targeted killing of Australian citizens fighting in Iraq and Syria, or other acts constituting serious human rights incursions, including torture. There are currently no specific protections in the IS Act to guard against the use of torture by ASIS in its overseas activities. There is limited protection against direct use of violence or weapons by an ASIS officer in subparagraphs 6(4)(b).
However, the Parliamentary Joint Committee on Human Rights in its most recently tabled report, report 16 of this parliament, has noted with concern that there are a range of techniques that may constitute torture, which would not fall within the meaning of 'violence'. So these Australian Greens amendments seek to make it crystal clear that ASIS officers must not be involved in any conduct that would be contrary to Australia's obligations under the convention against torture. I note that the Parliamentary Joint Committee on Intelligence and Security recommended that the explanatory memorandum to the bill should be amended to make it explicit that the Intelligence Services Act does not in any way permit torture.
I can go to some further points at this stage referring to the Parliamentary Joint Committee on Human Rights report at paragraph 1.81. I am not sure if the Attorney-General will have had an opportunity to read this yet, but I will read from that report, which articulates the concerns that these Greens amendments are seeking to overcome:
Under the ISA—
the Intelligence Services Act—
ASIS staff are not subject to any civil or criminal liability for any act done outside Australia if the act is done in the proper performance of a function of the agency. ASIS staff also have civil and criminal immunity in certain circumstances for acts done inside Australia. ASIS staff may be involved in a range of intelligence gathering activities so long as they do not involve planning for, or undertaking, paramilitary activities, violence against the person, or the use of weapons (other than the provision and use of weapons or self-defence techniques). However—
and this is the important aspect—
torture or cruel, inhuman or degrading practices, is not specifically mentioned. A range of techniques may constitute torture or cruel, inhuman or degrading practices, that do not fall within the prohibition of violence against the person. This may include, for example, death threats, hooding, stress positions or deprivation of food or water.
The Australian Parliamentary Joint Committee on Human Rights report goes on to state at 1.83:
Australia's obligation to prohibit torture is absolute. Accordingly, to comply with Australia's obligations under the ICCPR and CAT—
the International Covenant on Civil and Political Rights and the convention against torture—
when providing for civil and criminal immunities for acts done by ASIS, there should be a clear and explicit prohibition on acts or support for torture or cruel, inhuman or degrading treatment or punishment.
And the committee recommends at 1.84:
… to be compatible with human rights, the ISA be amended to explicitly provide that no civil or criminal immunity will apply to acts that could constitute torture or cruel, inhuman or degrading treatment or punishment as defined by the Convention against Torture.
That is the definition that is recognised at international law. The report also states:
The committee also recommends that, to be compatible with human rights, the ISA be amended to explicitly provide that ASIS must not provide any planning, support or intelligence where it may result in another organisation engaging in acts that could constitute torture or cruel, inhuman or degrading treatment or punishment as defined by the Convention against Torture.
That is the basis of these Greens amendments. We seek to make it crystal clear that ASIS may not engage in torture and that civil or criminal immunity from such acts would not attach to ASIS officers if they were to do so.