Wednesday, 26 November 2014
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014; In Committee
We are in furious agreement on the topic of torture. This is not a debate about that. I agree with every word that Senator Leyonhjelm just uttered. This is a question of legislative drafting and whether or not what Senator Wright seeks to achieve is already achieved by Australian law, to which the answer is: clearly it is. Senator Wright, I share your sentiment but your amendment is unhelpful because it confuses an issue that is not confused. There is a clear prohibition against torture in Australian law. It is clear that that prohibition extends to all IS Act—Intelligence Services Act—agencies.
I might begin by reminding the committee what the Parliamentary Joint Committee on Intelligence and Security said about the matter. It said in paragraph 3.67 of its report:
The Committee also received evidence that suggested an ambiguity exists in the IS Act that may permit torture. While the Committee does not accept this evidence, the Committee considers the Explanatory Memorandum should be amended to make it explicit that the Intelligence Services Act 2001 does not in any way permit torture.
I think it is not necessary to say that even in the explanatory memorandum, because the statutory language is very clear. However, out of deference to the Parliamentary Joint Committee on Intelligence and Security, we have included the statement which they sought in the addendum to the explanatory memorandum on page 3. Let me read it into the record. This was circulated this morning. The addendum to the explanatory memorandum says:
In its advisory report on the Bill, the PJCIS suggested that the EM be revised to explain why the Intelligence Services Act 2001 (IS Act) already prohibits IS Act agencies including ASIS from engaging in conduct constituting torture or cruel, inhuman or degrading treatment or punishment in contravention of Australia’s international obligations.
The explicit function conferred upon the Australian Secret Intelligence Service (ASIS) in no way changes the prohibition in subsection 6(4) against ASIS engaging in violence against the person which would include torture or cruel, inhuman or degrading treatment or punishment.
Such conduct would not be in the proper performance of a function of ASIS, nor would it be in the proper performance of a function of any other IS Act agency as required by section 12 of the IS Act. Accordingly, such conduct would not fall within the protection against civil or criminal liability under section 14 of the IS Act.
I have read in full the additional comment in the explanatory memorandum but, if I may, let me take you through it in my own words. Section 14 of the Intelligence Services Act—which, with respect, you did not quote accurately, Senator Wright—provides:
A staff member or agent of an agency—
and that includes ASIS—
is 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.
The qualifying words bear directly on the point you make, Senator Wright. It is conditioned by the conduct or the act being done in the proper performance of a function of the agency, which prescribes a double test. First of all, the protected act has to be done in the performance of a function of the agency. So, if it is not in the course of a function of the agency, it is not protected. Secondly, it has to be in the proper performance of that function. So even an act which was jurisdictionally within the function of an agency but did not constitute the proper performance of that function would not be caught by the exclusion.
If you go to section 6 of the Intelligence Services Act, which specifies the function of ASIS, there is this explicit prohibition:
In performing its functions, ASIS must not plan for, or undertake, activities that involve:
(a) paramilitary activities; or
(b) violence against the person; or
(c) the use of weapons;
by staff members or agents of ASIS.
Again you misquoted that, Senator Wright. You said it had to directly involve violence. The word 'direct' does not appear in the subsection at all. There is an exclusion from the functions of ASIS any conduct that involves violence against the person. So any conduct that does constitute violence against the person is not a function of ASIS and therefore the protection in section 12, which is conditioned on the conduct being in the proper performance of a function of ASIS, simply does not apply. It is not a very hard concept to grasp. But you say, Senator Wright—and Senator Leyonhjelm also makes the point—that we do not have a definition of 'torture' and the word 'violence' might be read more narrowly than the word 'torture'. I think that is the point you were trying to make, Senator Wright, but that is not correct, for two reasons. First of all, we actually do have a definition of torture in Australian law, and it is to be found in section 274.2 of the Commonwealth Criminal Code, in particular in subsection (2), which makes it clear that the concept of torture involves the infliction of severe physical or mental pain or suffering on a person and where the conduct is engaged in by reason of discrimination of any kind and is engaged in in the capacity of a public official. It is clear from the way the Criminal Code defines torture that it involves violence other than physical violence; so if an ASIS agent were to engage in torture that would be an act of violence and therefore the exclusion of liability in section 14 would not protect that person from that conduct.
There is another reason as well, Senator Wright, and that is: Australia is a party to the UN convention against torture, as you know. The UN convention against torture has not been specifically enacted in domestic law but, as I hope you know, Senator Wright, the fact that an international treaty to which Australia is a party has not been enacted according to its terms in domestic law does not mean that it lacks relevance to the proper interpretation of Australian law, as the High Court has said in a number of cases. Probably the best known is a decision of some 20 years ago called Teoh, a decision of the Mason court. In construing executive acts or in interpreting legislative instruments, one of the things to which the courts will have regard is compliance by Australia with its international obligations. So the construction of the concept of torture in Australian law would undoubtedly be informed by the definition of torture in an international instrument to which Australia is a party. For both of those reasons—because we have a definition already in the Criminal Code and because the definition in the international convention would be significant in construing another act of parliament or another section of an act of parliament, following the High Court's decision in the Teoh line of cases—your concern is ill founded. Violence: no ASIS officer can engage in violence
Torture: conduct that constitutes torture would certainly, because of the way 'torture' is defined in both the UN convention and in the Criminal Code, extend to acts of violence, and violence would include that definition of torture. Therefore, the prohibition which you seek to introduce already exists in our current law. So, I am not disagreeing with your intention here, Senator Wright and Senator Leyonhjelm, I am telling you that, as a matter of law, Australian law already contains the prohibition you seek to introduce.