Senator Brown asked the Minister representing the Attorney-General, upon notice, on 21 May 2004

(1) What were the representations the Government made to the United States of America (US) about the admissibility of evidence in the military commission process.

(2) Did the Government, in the course of those representations or otherwise, raise the matter of the admissibility of statements in the military commission; if so (a) what were the representations the Government made to the US on those matters; and (b) what was the response; if not, why not.

(3) Did the Government, in the course of those representations or otherwise, make reference to the Conventions against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, and in particular to Article 15 of that convention; if so: (a) what were the representations the Government made to the US on those matters; and (b) what was the response; if not, why not.

Senator Ellison (Minister for Justice and Customs) —The Attorney-General has provided the following answer to the honourable senator's question:

(1) The Government made several representations to the United States about the military commission process, including representations about the admissibility of evidence. The Government informed the United States that it would like the rules governing the admissibility of evidence to reflect, as far as possible, the procedures utilised by the United States criminal courts. The Government's understanding is that the procedures utilised by United States criminal courts would restrict the admissibility of evidence obtained as a result of coercive methods and the question of admissibility could be raised in court proceedings.

(2) Subsequent to its original representations, the Government has raised with United States authorities the matter of the admissibility of statements in the military commission. The Government asked United States authorities to confirm the Government's understanding that the way in which evidence was obtained can be considered by the military commission when deciding whether evidence is admissible (that is, would it have probative value to a reasonable person). The United States authorities confirmed that the military commission can consider such arguments when they are raised by either the defence counsel or the prosecution. b

(3) No. Reference to the Convention against Torture, Cruel, Inhuman or Degrading Treatment was not considered necessary in making the representations.