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Monday, 22 February 2010
Page: 1335


Dr KELLY (Parliamentary Secretary for Defence Support and Parliamentary Secretary for Water) (4:27 PM) —I rise to speak on the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009. I have had much to do with issues of torture and capital punishment over the last 20 years, so I appreciate the opportunity to comment on this legislation. It amends the Criminal Code Act 1995. The new offence that is intended to fulfil more clearly and explicitly Australia’s obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment will be brought into effect as a single federal offence under this legislation. That convention was signed by Australia in December 1985 and ratified in August 1989.

The old act criminalised acts of torture committed outside Australia only when committed by Australian citizens or other persons subsequently present in Australia. Other aspects of torture were left to be dealt with by the laws of armed conflict. Recently, the UN committee against torture called on nations to enact a specific torture offence. In the concluding observations on Australia in May 2008, the UN committee recommended that Australia enact a specific offence at the federal level, which we do with this legislation.

One of the interesting things to note about this legislation is that it ensures the definition of ‘public official’ or ‘person acting in an official capacity’ encompasses certain non-state actors who are exercising authority comparable to a government authority. That is a common scenario our Australian Defence Force and police personnel face in many environments when deployed in this current unstable world. That could include people belonging to political organisations or de facto authorities in a particular region or country. I will come back to that contemporary environment later in my comments. This legislation also relates to extending the application of the current prohibition on the death penalty to state laws to ensure that it cannot be introduced or reintroduced anywhere in Australia, thus safeguarding our commitment to the second optional protocol.

Interestingly, during the current turbulent times and the challenges that have been placed upon us in our adherence to human rights standards, there was a lot of debate after 9-11 about the issue of torture and the defence of necessity. My advice is that under the legal regime created in Australia, the defence of necessity will be abolished. The story used to go that, if you had a situation of the so-called ticking bomb, any measures would be justified in extracting information that would prevent a disastrous consequence. It is clear that in Australia that is not the case. Our legislation and our approach to the law give effect to the words of the convention:

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

In a speech by my good friend the Attorney-General to the Lowy Institute last year he confirmed that:

Nothing justifies torture—and nothing justifies a State’s use of it.

In the provisions, the definition of torture refers to:

… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining … information or a confession, punishing him …

 In effect, this explains the circumstances in which our own personnel have confronted this issue in recent times, as have many Western nations. The nature of our operating environment has become so fluid and so difficult and challenging that we are often in circumstances where there exist no law enforcement structures and no mechanisms by which persons who are committing offences or doing things that require treatment by the law can be handed over to a responsible authority. This leaves open the question of taking the law into your own hands at times. After 9-11, confronting the challenge of Islamist extremism has given rise to what I would call the gloves-off syndrome. In other words, because of the heinous and dastardly nature of the threat elements that we face, any measures would be justified in dealing with these persons.

I will deal with those in order by firstly referring to my experience in Somalia back in 1993. In that environment, as I mentioned, we were in that vacuum situation, as were many contingents. The experience of quite a few contingents was that the troops were faced with lawlessness and took matters into their own hands. Probably the most notorious of those incidents related to a young Somali teenager by the name of Shidane Arone. What had been taking place in the camp under the direction of the commanding officer of the Canadian airborne regiment was instruction that they were to ‘rough up’ persons intruding on the base. This led down a slippery slope to where, eventually, people were receiving severe beatings. In the case of Shidane Arone, he was beaten to death in particularly grisly circumstances. It became even more notorious, because there were photographs taken of the incident.

The repercussions of this were enormous in that this led to great scandals within the Canadian defence establishment. At times there were attempts to cover up aspects of the issue, which led to even worse scenarios for the personnel involved all up and down the chain of command in the Canadian defence force. It became a cathartic and very difficult experience for the entire Canadian public. This brought home to me some very important lessons for the way our own forces deal with these situations and how we manage the circumstances that I have described. It was interesting when one of the lawyers representing one of the Canadian troops in that situation—there were a number of courts-martial of the personnel involved—stated that:

It is my submission, gentlemen, that there is ample evidence before this court that there was a general understanding amongst the troops that it was OK to rough up the prisoners a little bit for a deterrent purpose … And I say that for this reason, that the troops were in a lawless country. There was no civil institutions, there was no civil authority. There was nothing that could be done to those looters who were captured. They could not be turned over to anybody who could effectively deal with them such as happens in most civilised countries. They could not call the police and have them arrested and expect that he would be taken to court and dealt with according to the law. At the same time the soldiers were very vulnerable. They’re out in the field. They had no locks. They had valuable kit and they are obviously particularly concerned about the security of their weapons.

That was no justification, obviously, for what occurred to the Somalis who suffered at the hands of those troops. But I was actually in Somalia at the time, deployed with the 1st Battalion Royal Australian Regiment, and we identified that those were the circumstances we were in and that we would not be doing the right thing by the community or our troops if we did not put in place measures to deal with the situation. What we did at that time was re-establish the Somali court system and get the Somali police up and running again.

We put a lot of effort into this. We formed a multidisciplinary team within the contingent itself, involving military intelligence, military police, myself and some infantrymen, and we were able to identify persons who had committed crimes against humanity, those persons in the society who were committing criminal acts and facilitate them being processed in the re-established and resurrected Somali courts in the region. This certainly took the steam out of any disgruntlement or frustration that the troops might have been feeling. They understood that there was a process that could be resorted to and, therefore, there were no instances in the Australian battalion’s time in Somalia of resorting to these sorts of techniques.

We took that lesson to a number of our operational circumstances subsequent to that. We deployed to Timor in 1999 to deal with the situation there of the breakdown of authority and the departure of the Indonesian authorities. Taking the lessons that I learnt in Somalia, I established a detainee management unit for the circumstances there. We were ready to go with that. We were certainly forewarned from our previous experience and we were able to take the steam out of that situation as well, so that once again there were no incidents of Australian troops abusing Timorese detainees in that operation. Unfortunately, we were required to go back to Timor in 2006 and similar circumstances applied, although it was a bit more complicated, because there were some UN mechanisms in place which we needed to mesh with, and we put an elaborate process in place to deal with that. So there is a great deal of Australian experience in dealing with those environments.

We then came to the circumstances in Iraq in 2003, and this was a situation of great frustration to me personally. To understand the need to provide for detainees and that we should not resort to torture and then to observe what took place in Iraq was deeply disturbing. Initially, of course, the detainee problems emerged as they quite often do, just by lack of planning and preparation. The facilities that were put in place for holding detainees were very ad hoc and they became humanitarian nightmares. Effectively they were dusty dirt rooms that were pushed together because the prison system in Iraq had been trashed. There was no capacity to place people in suitable circumstances. There had been no planning to take care of this situation. Often the fact that the operational techniques and tactics of the troops at the time were not in tune with the principles of counterinsurgency led to situations where, for example, if there were a grid square where it was suspected that there were insurgents, the US army formations would go out and arrest the grid square. There would be 1,000 or more people apprehended at a time in one of these operations. They would be put into these detention camps and they would effectively become black holes. It was impossible to properly record their names, there were insufficient military intelligence people to process them, and of course there was no ability for the families to track them. So the circumstances were inhumane, the troops were not equipped with non-lethal equipment to deal with people in those circumstances, there was often rioting where the first resort was to firearms, and of course in some cases there was a resort to abuse in the context of the punishment aspect of what is referred to in the legislation.

During the whole of 2003 I was sending back a lot of reports through the authorities about this situation, as I was on the ground there from May 2003 until July 2004. None of my warnings about this situation were heeded, and I became deeply concerned in September of 2003 when the authorities decided that the problem we were having was winning actionable intelligence—not the fact that we were going down the wrong road in dealing with the counterinsurgency. So the Guantanamo team was sent to Iraq to ‘Gitmo-ise’ the intelligence operations. General Miller was sent over to put that into effect. We were also advised at that time that the US was going to resort to civilian contractors doing interrogation. In my report in September 2003, I indicated that I was disturbed by this development, but those concerns fell on deaf ears.

As has been referred to in many other comments, the Abu Ghraib circumstance became a matter of great shame and loss of moral authority in our operations in Iraq and caused a great setback to our overall confrontation with Islamist extremism in the world. It was of course a matter of great distress that these things could happen, but they stemmed from a whole culture and process that was developing at the time. In fact, what the military police at Abu Ghraib were doing was what is called ‘preconditioning for interrogation’. They were being enlisted into the effort for winning intelligence—softening up, in effect, these detainees for further interrogation by the intelligence assets that were in the theatre at the time who were effectively given encouragement to take the gloves off. This of course led to the deaths of detainees and the mistreatment, and in effect it helped to feed the insurgency itself, because those people who were involved in those detainment situations went out to become recruits for the insurgency, to spread the word about what was happening and the images certainly promoted recruitment and actions against coalition troops that subsequently happened.

This was a distressing situation. There were misinterpretations of the law involved. Article 5 to the Geneva convention was misinterpreted so that excuses were made for the removal of certain safeguards protecting the rights of detainees, and it was a shameful period for all those involved in providing legal advice to authorities. Perhaps the most shameful aspect of that was the infamous memos provided by Messrs Bybee and Yoo. These were civilian lawyers who were providing advice from the justice department to the former US administration. They were obviously attempting to craft their advice to suit the desires of their clients. This was highlighted just recently, in the last couple of days, in a report by the justice department. It really broke down when Bybee and Yoo, in their memo, concluded that physical torture only occurred when the pain was equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily functions or even death. Mental torture required suffering not just at the moment of infliction but lasting psychological harm such as seen in mental disorder like post-traumatic stress disorder. The memo concluded that torture of suspected terrorists for interrogation would not be unlawful if it could be justified on grounds of necessity or self-defence. This ignored the dictates set out in the US military manuals—FM 34-52 in particular—and international law. Many of my colleagues—military JAGs, or judge advocates general, as they are called in the US military—had tried to hold the line against this denigration, deterioration and erosion of the standards of the US military. The advice and the regimes that were put in place effectively were doing end runs around the military approach to this—to the everlasting shame of those who were providing this advice.

While the report by Associate Deputy Attorney-General David Margolis into this matter, which has just been released, did not recommend further disciplinary action, it did state that these two persons had exercised poor judgment—in what must be one of the great understatements of the century. The report stated that Yoo committed ‘intentional professional misconduct when he violated his duty to exercise independent legal judgement and render thorough, objective and candid legal advice.’ Bybee was said to have ‘acted in reckless disregard of ethical obligations’ by agreeing to sign those memos. One of the quotes was:

I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power …

This is a cautionary tale for all of those who are in the position of and have responsibility for providing accurate legal advice and guidance to government. Obviously, in recent times we have had some interesting experiences, with the so-called Utegate affair, as to how public servants can sometimes be enlisted in undesirable activities, but we must draw the line, particularly when it comes to these fundamental human rights. Certainly, the US Supreme Court managed to turn things around in its rulings in Hamdan v Rumsfeld in 2006, where it overturned the advice of people like Yoo that common article 3 of the Geneva convention did not apply in circumstances such as those in Afghanistan and stated that they did. So there was something of a fight back.

I was also involved in a lot of training and doctrinal developments in this space through my role in training those involved in field intelligence. A feature of the Australian story is that we have had in place doctrine and training to address this issue. I note that in 2008 the CDF underwent some questioning on this in estimates, because the issue of the so-called ‘dog pens’ in Afghanistan came up. He referred to the fact that that was a mistaken reference to how people were actually being treated and that we constantly review our techniques and training in this area. I am happy to say that I believe that is the case, having been involved in a great deal of it myself. I refer to the words of General Richard Myers, the former Chairman of the Joint Chiefs of Staff, who said that not engaging in torture is not ‘a matter of whether it is reciprocated—it’s a matter of who we are’. I think that is an essential point for our Australian Defence Force and police personnel. It is reassuring to know that many of my colleagues in the US military felt that way about it, notwithstanding attempts by the civilian administrators to erode that position.

In relation to the death penalty, I suppose it is a subject I am somewhat compromised on, because in my own career I have probably been the cause of a number of people having the death penalty inflicted on them. The first time was in Somalia in 1993 when I had to play a significant role in the execution of war lord Gutaale because that was the aspect of Somali law that applied and there was no way of dealing with it in any other fashion. In Iraq I was involved in the creation of the court and the process that saw the ‘dirty dozen’ and Saddam Hussein subsequently executed. Notwithstanding that experience and the fact that I have actually witnessed an execution, I am totally opposed to the death penalty and I would hope that we could promote that position worldwide.

In the final analysis, after seeing the depths to which humans are capable of descending and understanding that progress is not inevitable, I am firmly of the view that we as a nation need to contribute in whatever way we can to maintaining fundamental human rights standards. This legislation and the principles to which our public officials must be trained and committed is part of that effort.