As President Obama solidifies the USA’s stance against torture, Australia’s internal position is still uncertain. We need to legislate locally to make sure torture is as legally repugnant as it is morally, Prof. George Williams says.
Our torture laws contain gaping holes
By Professor George Williams*
Barack Obama has acknowledged that the United States tortured terror suspects. While the perpetrators will escape prosecution, the President has said torture will not be used under his watch. Australia needs to act on the lessons from this debate. If a nation with strong democratic and human rights traditions like the US is capable of using torture, we must not be complacent. We also need to make changes to our systems and law.
George Bush was called the “torture president” for good reason. The label stuck after he vetoed a law that would have prevented the CIA from using torture. In exercising his veto, Bush said: “The bill Congress sent me would take away one of the most valuable tools in the war on terror.”
Memos made public last month show that Bush also secretly approved 10 CIA interrogation techniques that can involve torture. The documents detail what the Bush administration had in mind when it said publicly that it used “alternative interrogation”, “stress positions”, “sensory manipulation”, “enhanced interrogation” and “sleep adjustment”.
So-called waterboarding was one of the techniques. It involves a person being held on the back, head downwards with a cloth placed over the face, while water is poured into the mouth and nose. The person experiences the sensation of drowning and can be made to believe death is imminent. This and other techniques – the use of insects, cramped confinement and sleep deprivation – were applied to at least 14 suspects.
Australia is also vulnerable to losing its moral compass by adopting or even just supporting such deplorable practices. After all, amid the debate over Guantanamo Bay, the former attorney-general Philip Ruddock said he did not “regard sleep deprivation as torture”. This statement was supported by the then prime minister, John Howard.
International law requires Australia to outlaw all forms of torture. We have yet to do so. The International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment has been ratified by more than 130 nations, including Australia, and came into force in 1987. It forbids governments from inflicting “severe pain or suffering”, whether physical or mental, for purposes such as punishment, coercion or obtaining information.
Last year the United Nations Committee Against Torture found serious flaws in our laws and practices. Problems include ASIO’s power to have non-suspects detained in secret for up to a week for questioning, and aspects of Australia’s anti-terrorism regime of preventative detention and control orders. The committee was also concerned about jail conditions, including overcrowding in Western Australia, the disproportionate number of indigenous prisoners and the fact that mentally ill inmates are subjected to extensive solitary confinement.
A more general problem is Australia’s failure to live up to its commitment to outlaw torture completely. This promise was met in part when the federal Parliament passed the Crimes (Torture) Act 1988. It creates a limited offence that applies only where torture is committed by a public official outside of Australia. Even then, a person can only be prosecuted if they are in Australia or are an Australian citizen.
The federal Criminal Code also includes offences of torture that mirror crimes in the International Criminal Court. These were created to allow Australia to prosecute a person accused of such crimes in Australia rather than to surrender them for trial in the court. While these offences apply anywhere in the world, they are limited to torture that is part of a widespread or systematic attack on a civilian population or part of an international armed conflict.
There are gaping holes in Australian law when it comes to torture. Nor, in contrast to other nations, does Australia have a clear prohibition in a national bill or charter of human rights. It remains possible for officials to use intelligence and other material obtained through torture overseas and to engage in extraordinary rendition.
The problems mean that future governments could seek to redefine torture for national security purposes. For example, the US recast torture to be “severe pain equivalent to that associated with organ failure or death”.
The law should leave no doubt about torture. Legal ambiguity and inadequate coverage has a way of being exploited to permit the inexcusable at a time of national threat. Australian law should be changed to ban all forms of torture, prevent the use of information obtained through it and make it an offence for officials to be involved in the removal of people for torture overseas.
* George Williams is the Anthony Mason professor of law at the University of NSW, and a member of CLA. This article first appeared in the SMH on 6 May 2009.