Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Hansard source

I will be happy to continue to refer to the member for Gellibrand. In the United States I was recently explaining the law passed by the congress of the United States in relation to military commissions. I outlined fully my understanding of what the United States has done in its law. The legislation there makes it clear that evidence obtained by torture will not be admitted in a military commission process. It is important to understand that they also defined in some general terms common article 3 of the Geneva conventions, by which they have agreed to be bound. But the issue as to what constitutes torture will be left to the military commissions to determine, taking into account the totality of circumstances.

They have other provisions that deal with evidence of a different character, and that is evidence that was obtained by coercion. The question of the degree of coercion which may be admitted, if a judge finds it to be reliable or probative and in the interests of justice, was the matter that I was addressing. It is quite clear, if you look at statements obtained after 30 December 2005 in the United States military commission process, that there is now an additional requirement that interrogation methods do not amount to ‘cruel, inhuman or degrading treatment’ as prohibited under United States law. It will ultimately be a matter for a judge to determine the totality of the circumstances.

I was asked a question in relation to what might constitute torture. Let me give you my answer. Torture, in my view, is where a person commits or conspires to commit an act specifically intended to inflict severe physical or mental pain or suffering upon another person within his custody or physical control. If people want to get into the business of what is behaviour of that sort—that which is inflicting severe physical or mental pain or suffering—let them define what that behaviour is. If it is sleep deprivation per se without any other acts involved—and the member suggested that I might have been sleep deprived when I made these statements—then clearly that does not constitute torture. But it can constitute torture—

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