It is not clear why the Attorney-General, George Brandis, believes it is necessary for the Australian government to have the latitude to resort to torture, but you could drive a truck through his National Security Legislation Amendment Bill and not hit anything that says "do not torture people".
I've spoken to two legal experts and one outraged Senator about this bill and it is obvious that allowing torture, by government security agents, lies within the scope of the draft law.
Read it for yourself. Under the heading, "Immunity from liability", Section 35K of the draft National Security Legislation Amendment Bill (No.1) 2014 bill states:
"A participant in a special intelligence operation is not subject to any civil or criminal liability for or in relation to conduct if … the conduct does not involve the participant engaging in any conduct that: (i) causes the death of, or serious injury to, any person; or (ii) involves the commission of a sexual offence against any person; or (iii) causes significant loss of, or serious damage to, property;"
You don't need the advice of a QC to work out that this provision states that it is unlawful to kill people, cause serious injury, sexually abuse, or cause serious damage to a person's property, but deliberately leaves about 150 shades of grey, ranging from ethical ambiguity to outright black ops.
In explaining the proposed changes to the law, Senator Brandis told parliament on July 16, "Covert operations may expose intelligence personnel or sources to legal liability in the course of their work. For this reason, some significant covert operations do not commence or are ceased. To address this issue, the Bill implements the recommendation to create a limited immunity for participants in authorised, covert operations...The limited immunity is subject to rigorous safeguards."
The law is silent about an array of punitive measures, including inflicting permanent psychological damage, in the name of security interrogation. You don't even need to have been charged with a crime. The National Security Legislation Amendment Bill is designed to "establish a framework for the conduct of covert intelligence operations". I suspect that framework will now be revisited by the parliamentary joint committee on intelligence and security.
There is certainly going to be pressure to do so. As Senator David Leyonhjelm, of the Liberal Democratic Party, told me: "These provisions are shameful. As a nation we should be better than this. Australia is engaged in a fight against barbarism, but that does not justify becoming barbarians ourselves."
Senator Brandis has proven as adept at selling the government's law-and-order messages as Treasurer Joe Hockey has been at crafting and selling a tough federal budget.
Instead of recognising that the Human Rights Commission is incapable of either reform or relevance in a nation already replete with laws defending people's rights, and cutting its budget accordingly, he created a new Human Rights Commissioner, Tim Wilson, of the Institute of Public Affairs, on a salary of $325,000 a year. The move was designed to shift the culture of the commission away from punitive accusation to defending individual liberty. It has proved to be mission impossible.
Then came his handling of section 18C of the Anti-Discrimination Bill, which states that, "It is unlawful for a person to do an act … to offend, insult, humiliate or intimidate another person or a group of people …".
Removing the word "offend", at the minimum, would excise an obviously fertile ground for vexatious litigation, where formal complaints are used as an end in themselves to wage legal warfare. Prior to last year's election Senator Brandis had proposed revising section 18C. Instead, there was vacillation, then a back-flip, because ethnic groups mobilised against the change. So a principle gave way to a capitulation.
"Australia is engaged in a fight against barbarism, but that does not justify becoming barbarians ourselves."Senator David Leyonhjelm
Now the torture bill. In a perverse way, Senator Brandis seems determined to make the Human Rights Commission relevant by creating a country where the government has wide latitude to abuse human rights. It is not incidental that the draft bill provides ample political protection for the Attorney-General. He need not be advised of a 'special intelligence operation' in advance. No ministerial or judicial approval is required for such operations. They take place at the discretion of the Director General or the Australian Security and Intelligence Organisation or the ASIO deputy director.
The person who has raised the alarm over this proposed legislation is Senator Leyonhjelm, on libertarian grounds. For anyone curious about what libertarians stand for, the Senator offers this summary on his letterhead: "The Liberal Democratic Party supports low taxes, less regulation, free markets, individual liberty, and an end to the nanny state."
Nanny has rarely looked so sinister. "This is not some fringe concern of bleeding hearts or being soft on terrorism," Senator Leyonhjelm told me. "ASIO already has plenty of power to do its job without trampling on our basic rights."