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The Forum > Article Comments > Where are all the torture critics now? > Comments

Where are all the torture critics now? : Comments

By James McConvill, published 17/11/2005

James McConvill asks where are the critics of the Victoria’s Crimes Act which will allow torture as a defence to homicide.

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"In this article, Professor Bagaric did not condone the use of torture in any situation, but only where 'the evidence suggests that this is the only means, due to the immediacy of the situation, to save the life of an innocent person'".

Has any such situation ever occurred? How is it possible to know that torture is "the only means"?
Posted by borofkin, Thursday, 17 November 2005 11:45:31 AM
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"Of course, Australia has not been immune to civil libertarians drumming up anti-torture rhetoric." The concept of basic human rights seems to have gone the way of energy conservation in the US -"quaint", according to Donald Rumsfeld.

Information obtained via torture has NEVER been considered useful as a means of obtaining information. As a means of social control however it is invaluable. Porter Goss, head of the CIA, would be among the first to tell you this. Perhaps the author knows something no-one else does.

Torture is just dandy as long as it's somebody else getting tortured. Our capacity to rationalise inhuman behavour staggers the mind.

Ain't some people weird?
Posted by bennie, Thursday, 17 November 2005 2:24:08 PM
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James must be commended for his incisiveness, steel-like logic, and fearlessness, in mounting his case for torture in emergency situations.

He must also be congratulated for exposing all the intellectual pretenders for what they really are. And who poured their venom upon professor Bagaric, who had the moral and intellectual strength to stand up against the torrent of their bitter winds.

KOTZABASIS

Go to my BLOG: http://congeorgekotzabasis.blogspot.com
Posted by Themistocles, Thursday, 17 November 2005 3:34:20 PM
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Unfortunately for the Victorian Police Service, using this new defence would be somewhat perilous. Australia is a signatory to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment [1989] ATS 21[ http://www.austlii.edu.au/cgi-bin/disp.pl/au/other/dfat/treaties/1989/21.html ]; and has enacted valid legislation (Crimes Torture Act 1988 (Cth)[ http://www.austlii.edu.au/cgi-bin/disp.pl/au/legis/cth/consol%5fact/ca1988192/sch1.html ]) in order to give effect to Australia’s international obligations (Shahrooie v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 996 (19 September 2003); R v Chen & Others [2002] NSWCCA 174 (11 June 2002)).

Therefore, any attempt by Victoria to legislate to allow torture for any purpose, regardless of whether the situation was a ‘ticking time bomb’ situation, is to suggest that the States may safely ignore valid Commonwealth legislation. This is not in fact the case, the States are bound by Commonwealth laws, which are valid due to their enlivening an international treaty (s.51(xxix); Tasmanian Dams Case; Mabo (No 2)). Any attempt by a subordinate State Parliament, to override valid Federal legislation would be demonstrably inconsistent with Federal legislation (s.109), and moreover inconsistent with that basic principle of Constitutional interpretation, that ‘a stream cannot flow above its source’ (Communist Party Case, per Fullagar J).

In addition, any use of such a defence would be just that. Thanks to Australia being a signatory to the aforementioned Convention, and the fact that the executive may not authorize anything prima facie illegal (A v Hayden), neither the executive, nor a court could authorize murder, grievous/bodily harm, or assault (Plenty v Dillon; Coco v R). Therefore any such defence would be exculpatory in nature, and would not authorize any refusal to proffer charges against the police officer involved. The effect of which is that despite the Victorian Parliament purportedly authorizing such a defence, the extent of the defence of ‘necessity’ may not be widened beyond what may be achieved at common law.
Posted by Aaron, Thursday, 17 November 2005 4:55:04 PM
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here I am!! Neither hypocritical or ignorant inspite of James' assertions.

And I thank him for alerting me to this piece of legislation - I read the explanatory memorandum to the ammendment only.

But first:I dont consider criticism of Bagarics "superb" piece was gross, shabby or shameful by the - and here we go again - latte' sipping left. What is it with you guys and beverages?

I disagree with the lecturer at law in his anal isis of the ammendment: it may at best offer a defence if torture resulted in the death of the hapless punter in the torturers grasp if a whole bunch of conditions are met - even then I think he's wrong. However it refers to an act or an ommission where as torture might mean and usually does a series of deeds

Any act considered a defence has to be found in a belief that it is based on a fear of death or injury of themsleves or others - and that is at best a subjective assesment and open to varied interpretation. So was there a clear and present danger? - was it foreseeable the would be torturer had a reasonable chance of being wrong.

This guy is keen to open the door to the torture chamber but I do not think this act offers that opportunity

I think James' take might also be challenged on the nature of the act preceeding death; was it a defensive act or was it a series of meanand nasty deeds culminating in death?.

If James is right - and I think he aint - if read as according to James, the section is at best a defence of murder culminating in death but not of torture per se.

So the defence applies only if you kill the bugger - or maybe bugger the would be killer if that is your preferred torturing technique.

If James is serious in his position - and I figure he his - we need to ask the legislators was this their intention - And I will do just that.
Posted by sneekeepete, Thursday, 17 November 2005 5:34:21 PM
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Meanwhile, the penalties for torturing animals in Oz are rapidly increasing, as they should. Wasn't it an extreme lack of intelligence that got us into the Middle East mess in the first place ?
Posted by aspro, Thursday, 17 November 2005 6:25:26 PM
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