Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

by leave—I move Democrat amendments (1) and (2) on sheet 4825:

(1)    Schedule 2, item 5, page 26 (line 24), omit “greater indignity than is reasonable and necessary in the circumstances”, substitute “to any form of treatment which contravenes the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment”.

(2)   Schedule 3, page 32 (after line 13), after subsection 2B, insert:

      (2C)    Despite subsection (1) and (2B), in exercising any powers in accordance with Division 3B, a member of the Defence Force must not, in using force against a person, subject the person to any form of treatment which contravenes the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment”.

I referred to these amendments in my speech on the second reading. I think they are important for the specific precision and detail of the legislation where force may need to be used by defence personnel. I think they are also important in that the Australian parliament can send a clear signal by ensuring that this provision is inserted in the law.

The provision that I am dealing with goes after subsection 51T(2) of the bill and deals with the use of force. I will go through the detail of that subsection to make the context clear. It says that members of the Defence Force, in exercising their powers, must not, in using force against a person:

(a)

do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the member believes on reasonable grounds that doing that thing is necessary to:

(i)

protect the life of, or to prevent serious injury to, another person ... or

(ii)

protect, against the threat concerned, the designated critical infrastructure in respect of which the powers are being exercised; or—and this is the relevant second part—

(b)

subject the person to greater indignity than is reasonable and necessary in the circumstances.

This amendment specifically goes to that issue of subjecting a person to greater indignity.

There are concerns about having the right to cause someone’s death to protect infrastructure and whether or not that is problematic. I think Senator Brown will expand on that when he moves his amendment. But this Democrat amendment is very specific. It goes solely to that component which talks about subjecting a person to greater indignity than is reasonable or necessary in the circumstances. The second Democrat amendment does a similar thing in regard to the use of force. It attempts to make it clear that the person, in exercising those powers with the use of force, must not subject a person to any form of treatment which contravenes the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The government may say that this prohibition against any form of treatment which constitutes torture is covered by the wording which says that the person exercising the powers will not subject a person to greater indignity than is reasonable or necessary in the circumstances, but I do not believe it is. I do not think that is clear enough. If it is covered then it can be improved by making it absolutely crystal clear that that is the situation.

This specific matter was raised before the Senate Foreign Affairs, Defence and Trade Legislation Committee inquiry. The Gilbert and Tobin Centre of Public Law submission by Dr Ben Saul, who has a lot of expertise in this particular area, states that there is, as I said in my speech in the debate on the second reading, wider concern around the world and certainly amongst democratic nations that there is a stepping back from the absolute opposition to the use of torture under any circumstances by democratic nations, particularly in regard to the attitude of the current United States government. It was also the subject of a recent Law Lords decision in the United Kingdom. It categorically ruled out the use of torture under any circumstances and detailed the many reasons why that clear opposition to the use of torture has developed in Western democracies.

At a time when there is even the slightest indication—and I suggest it is more than a slight indication—that that strong commitment of Western democracies to rule out torture in any circumstances is in question, it is very important for Australia and the Australian parliament and government to make it clear that, as far as our nation is concerned, that is simply not an issue. There is a wider benefit that could come from putting this amendment in, as well as making it crystal clear that, if circumstances arise in which a member of the Defence Force believes that the use of force is necessary, that cannot involve subjecting that person to any form of treatment which contravenes the convention against torture. I think it is important to put that in; I do not think it is clear enough in the current legislation.

I want to emphasise that this amendment does not in any way suggest that this is a run of the mill sort of thing that a member of the ADF would want to do or that this is in any way something that I have a concern is likely. But, as the minister himself just said, we do need to look at this legislation not just in terms of now but also down the track as well as evolving international standards. In that context, I think it is important to make that categorically clear in the legislation and to take the opportunity to send a strong signal that this country’s commitment to refuting any form of treatment which constitutes torture and its definitions of cruel, inhuman or degrading treatment or punishment is rejected. I urge the Senate to take that view and to use this opportunity to send that clear message and to improve the clarity of the legislation when it comes to what is probably one of its core parts, where circumstances arise in which force may be needed to be used.