Well, now it’s official: the Australian Government believes torture is OK but the torturers cannot use any information they extract to prosecute the tortured in a court of law. Justice Minister Chris Ellison gave details of this extraordinary government policy when answering a question from Greens Senator Kerry Nettle in the Senate on Wednesday.

For the life of me I cannot understand why the answer went virtually unreported. It is clearly political cowardice on the part of a Labor Party without principles that sees Opposition Leader Kim Beazley remain silent on the question.

This is the exchange that occurred in the Senate:

Senator NETTLE (2.43 pm)—My question is to Senator Ellison, the Minister for Justice and minister representing the Attorney-General. Does the minister consider sleep deprivation to be torture or does he agree with the United Nations that sleep deprivation is a violation of the convention against torture? Can the minister rule out the use of sleep deprivation by Australian authorities in any circumstances?

Senator ELLISON—We need to look at this question in the context of what is being investigated and the operation which is being conducted. The Attorney-General recently, when discussing operations involving counter-terrorism, discussed the issue of sleep deprivation and said that in some circumstances it would not amount to torture. But he did qualify that remark with the circumstances of it being a counter-terrorism exercise and also the circumstances of its use. In a criminal investigation—and we have legislation dealing with that—there are certain aspects to the way an interrogation is carried out, the way questions are asked and the admissibility of evidence in a court of law. That is a very different situation to that which was being described by that Attorney-General.

I agree with what the Attorney-General says—I think that you have to look at it in the context of the operation. Because if it is a criminal investigation and you are looking at evidence to be adduced in a court of law then you are governed by the Crimes Act and other legislation dealing with the collection of evidence, and that then is relevant to its admissibility in a court. A court could then consider that issue when the defence conducts its case. That is the very point we are looking at in the criminal jurisdiction domestically in relation to our legislation—as opposed to a counter-terrorism operation where intelligence is being sought. We believe that in that environment sleep deprivation can be appropriate, but the question of its extent and manner is one which has to be exercised by those concerned in an appropriate way because, as the Attorney-General said, sleep deprivation per se in a counter-terrorism security exercise is not torture as such unless there are other circumstances which would rule it so—and in that you look at the extent and the manner. You have to look at it in those two discrete areas: one is a criminal investigation and one is counter-terrorism intelligence gathering.

Senator NETTLE—I thank the minister for his extraordinary answer and ask him to address that issue of Australian authorities’ use of these sleep deprivation tactics in both circumstances, criminal and counter-terrorism. Further to that, I ask the minister, given that last week the United States passed a law allowing coercive measures including sleep deprivation for use in US detention facilities for gathering evidence, does the minister think that it is acceptable for David Hicks to be subject to sleep deprivation?

Senator ELLISON—Senator Nettle asked a number of questions in her supplementary question. I say at the outset that this government does not endorse torture in any shape or form. I want to make that very clear. I would also like to say that Australian authorities do not engage in torture and there is no endorsement of that. In relation to how we conduct our operations in counter-terrorism, I am not going to go into the detail of that. That is an operational matter. In relation to criminal investigations, I think it is well established in relation to the practice engaged in by federal police and others in this country as to how their investigations are carried out.

Senator Bob Brown—I rise on a point of order. The minister was asked by Senator Nettle directly whether he condones the use of sleep deprivation with Australian David Hicks. He should answer that question.

The PRESIDENT—I do not believe there is a point of order there. The minister has 16 seconds to complete his answer.

Senator ELLISON—I have nothing further to add.

Peter Fray

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