Wednesday, 26 November 2014
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014; In Committee
Given that we are all supposedly in furious agreement about a situation whereby ASIS officers working in overseas jurisdictions can have no truck with torture, I am not sure why we have a situation where it takes the Attorney-General about 10 minutes to lead us on a labyrinthine path to explain why, ultimately, we can be convinced that torture would not be a proper function of ASIS, or activities that involve torture. We have not even come to activities that involve planning and assisting other organisations. The spectre of Abu Ghraib and places like that spring to mind, but we will come back to that.
If we are in furious agreement and if it has been seen fit to amend previous legislation to make it crystal clear that acts constituting torture have no place in the functions of people acting in Australia's name, why then don't we, from the principle of legislative clarity, change the IS Act to ensure that it is very clear. Clearly, paradoxically, it is not clear. If it were clear we would not have legal commentators in Australia raising this as a concern. These are experts in international law. These are people who want to be reassured that we are protected in Australia from anyone acting in our name conducting anything that would amount to torture under international law. We have those voices raised because, indeed, it is not clear.
When I was referring to the IS Act I did, in fact, talk about the proper functions. I did read that word 'proper'. I did not leave that out. It is the proper performance of a function, or a performance of a proper function, under the agency. We have had concerns raised that the IS Act talks about violence but does not specifically refer to torture. We have had the Attorney-General take us to the Criminal Code to give us the definition of torture, which is not the same definition as under the convention against torture,—it does not take that international law definition of torture—to reassure us that, somehow, because violence is prohibited that then encompasses torture. Legitimate concerns have been raised that actions like hooding, like deprivation of liberty in a dark room, like extreme and prolonged loud noises and music over a period time, and other potential actions may not be caught within the definition of violence against the person.
My question is really quite simple, and I put this question to the Attorney-General and I also put it, rhetorically, to the opposition. If you are genuinely concerned about the fact that we will not give civil and legal immunity to ASIS officers engaging in acts of torture, why don't we make that crystal clear, without ambiguity, in the IS Act as recommended by the Parliamentary Joint Committee on Human Rights? Why leave any ambiguity there at all?