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Fairall, Paul --- "Reflections on Necessity as a Justification for Torture" [2004] JCULawRw 2; (2004) 11 James Cook University Law Review 21




Can the doctrine of necessity be used to justify, either retrospectively or prospectively, interrogation techniques that would ordinarily be regarded as torture? The standard hypothetical case used to support this astonishing suggestion is the ‘ticking bomb’ scenario. A bomb is ticking. Its location is unknown, except to the person in the cell next door. Many lives are in the balance. Your captive won’t talk. He or she might under torture. Would you not allow it? Would you torture their innocent child to make someone talk? Would you punish someone who tortured another in order to extract vital information? In this paper I propose to explore this conundrum: to what extent are wrong actions privileged by good intentions? I propose to do so against the backdrop of a recent upsurge in terrorism.

On 11 September 2001 a terrorist attack on the World Trade Centre in New York killed almost 3000 people. On 12 October 2002 a bomb exploded in a Bali nightclub killing over 200 people, including 88 Australians. On 20 March 2003 a United States–led coalition (which included Australia) invaded Iraq, claiming justification under UN Resolution 1441 — a claim rejected by UN Secretary-General Kofi Annan. June 2004 saw revelations of very serious human rights abuses of prisoners by US occupying forces in Iraq. As I write this, in the first week of September 2004, an event almost too horrible to contemplate has occurred on Father’s Day in Besland, southern Russia. Militant extremists took over a school and murdered more than 300 hostages, many of them children, and the world awaits with bated breath the possibility of reprisals on a cruel scale in Chechnya. The targeting of children for political purposes is without doubt the most heinous and nauseating of crimes.

Against this backdrop of terror, the clamour for greater police powers is perhaps not surprising, and the notion that the ends justifies the means may __ take precedence in considering a matter as offensive as state sanctioned torture. That solutions might be sought in the implements of the Inquisition is a sorry commentary on the state of the world. However, it is worthwhile to consider whether as a matter of law a defence of necessity might be raised in circumstances where a person has acted unlawfully under extreme duress of circumstances.

As far as the criminal law is concerned we might well ask: What is the point of punishing someone who has broken the law in desperate circumstances? The task of prosecuting criminals is usually given to pragmatic and fair individuals who would not charge someone who acted out of sheer necessity. That is perhaps why so few cases of necessity wind up in an appellate court. But does the law go further, and recognise a doctrine of necessity? In Australia necessity has been raised as a criminal defence in particular instances in relation to escape from custody,[1] driving offences,[2] abortion,[3] trespass to property,[4] threats to injure,[5] and robbery.[6]

However, the precise ambit of the doctrine remains unclear. While some appellate courts have recognised a general doctrine of necessity it still remains debatable how far beyond cases of prison escape and trespass the defence extends. Interestingly, the Criminal Code 1995 (Cth) provides for necessity as a defence to any offence, including murder. Section 10.3 provides that a person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency. Exculpation is possible if and only if the person carrying out the conduct reasonably believes that: (a) circumstances of sudden or extraordinary emergency exist; and (b) committing the offence is the only reasonable way to deal with the emergency; and (c) the conduct is a reasonable response to the emergency.


The common law was reluctant to allow necessity as a defence, especially in relation to murder. This is evident from R v Dudley and Stephens.[8] Thomas Dudley, Edwin Stephens, Brooks and an 18-year-old named Richard Parker were shipwrecked and adrift in a life raft some 1000 miles from land. After days at sea without food and water, Dudley and Stephens agreed to kill Parker and eat his flesh. Brooks took no part. The three adults survived. This was neither the first nor the last case of cannibalism connected with survival on the high seas but became a cause celèbre when Dudley and Stephens were indicted for murder. They readily admitted what they had done. In the Court of Queen’s Bench, Lord Coleridge CJ said that the proposition that necessity might justify killing was ‘a proposition which appeared to us at once dangerous, immoral and opposed to all legal principle and analogy’.[9] The Court firmly rejected necessity as a defence to murder. ‘Such a principle’ said Lord Coleridge, ‘once admitted might be made the legal cloak for unbridled passion and atrocious crime’.[10]

Almost a century later Lord Denning gave a similar answer in a civil case.[11] A destitute family was challenging eviction from the unoccupied and derelict council housing they had made habitable. The local council wanted them out. Lord Denning found in favour of the council:

There is authority for saying that in a case of great and imminent danger, in order to preserve life, the law will permit an encroachment on private prop- erty ... The doctrine [such as this] must, however, be carefully circumscribed. Else necessity would open the door to many an excuse.12

More recently there has been some widening of the road. In 2001 a case came before the English Court of Appeal involving conjoined twins, Jodie and Mary.[13] The twins were on a downward spiral and surgery was required to separate them. The best medical prognosis was that Mary was doomed, and Jodie had a fair chance of survival although she would require ongoing medical treatment. The parents were for religious and practical reasons opposed to surgery. The hospital sought a declaration that an operation to separate the twins would be lawful. Lord Justice Ward described the conditions of the twins as follows:

Jodie and Mary are conjoined twins. They each have their own brain heart and lungs and other vital organs and they have arms and legs. They are joined at the lower abdomen. Whilst not underplaying the surgical complexities, they can be successfully separated. But the operation will kill the weaker twin, Mary. That is because her lungs and heart are too deficient to oxygenate and pump blood through her body. Had she been born a singleton, she would not have been viable and resuscitation would have been abandoned. She would have died shortly after birth. She is alive only because a common artery enables her sister, who is stronger, to circulate life sustaining oxygenated blood for both of them. Separation would require the clamping and then the severing of that common artery. Within minutes of doing so Mary will die. Yet if the operation does not take place, both will die within three to six months, or perhaps a little longer, because Jodie’s heart will eventually fail. The parents cannot bring themselves to consent to the operation. The twins are equal in their eyes and they cannot agree to kill one even to save the other. As devout Roman Catholics they sincerely believe that it is God’s will that their children are afflicted as they are and they must be left in God’s hands. The doctors are convinced they can carry out the operation so as to give Jodie a life which will be worthwhile.[14]

By reference to family law principles, Ward LJ was of the view that the operation should proceed, it being in the best interests of the twins to give a chance of life to the stronger of the two:

If a family at the gates of a concentration camp were told they might free one of their children but if no choice were made both would die, compassionate parents with equal love for their twins would elect to save the stronger and see the weak one destined for death pass through the gates.[15]

Ward LJ concluded that under such circumstances the operation was not unlawful and therefore did not need to call in aid the doctrine of necessity. The conduct of the medical staff in choosing the lesser of two evils (allowing only one rather than both to die) was not unlawful, and therefore no unlawful act would be committed.[16] By contrast, Brooke LJ thought that necessity was relevant to the facts and R v Dudley and Stephens could be distinguished.[17] Mary’s life would be short-lived no matter what, whilst Jodie was imperilled only by her ongoing physical connection with Mary. Once they were separated, Jodie had the potential for a full and healthy life. Although the operation would result in the immediate death of one child, it was not murder in these circumstances to shorten Mary’s life to save Jodie’s. His Lordship concluded that necessity was available where (i) the act is needed to avoid inevitable and irreparable evil; (ii) no more is done than is reasonably necessary for the purpose to be achieved; and (iii) the evil inflicted is not disproportionate to the evil avoided. The principles of family law pointed to the conclusion that the interests of the stronger child outweighed the weaker, for she was ‘self-designated for a very short life span’,[18] and therefore the requirements were satisfied. Walker LJ also considered that necessity should be extended to the facts of this case, and did not think it was a step down the slippery slope.[19]

In the course of judgment their Lordships considered a variety of hypothetical cases: authorising the shooting down of an airliner doomed to crash in a populated area; causing or allowing a climber to fall to his death to save other climbers; displacing a person from a single parachute or life raft; selecting passengers to use the lifeboats when there are not enough places to go around (and enforcing the selection by fatal force); sealing off a burning compartment of a ship in order to save the vessel and the crew, thereby trapping those in the burning compartment; and perhaps the cruellest case of all, giving up one of two children for certain death when faced with Sophie’s choice — where the concentration camp guard allows a loving parent to keep only one of two children. It may be possible to place these cases in distinguishable categories, but surely each has a strong moral claim to the protection of the necessity defence.

An important idea underlying their Lordship’s analysis is that of a person being ‘marked for death’. Poor Mary’s life would, as Brooke LJ noted, be short-lived no matter what, and in that sense she was ‘marked for death’. This concept provides a satisfactory explanation for some of the scenarios (for example, the ‘climber on the rope’ and ‘doomed aircraft’): the victims have been ‘marked for death’ by events over which the defendant has no sway. Where a climber falls, and others on a common rope are about to be dragged down to certain death, the first to fall should be cut free to fall alone to death, sparing the others. In such a case, any action to hasten the one inevitable death by a small amount cannot in any rational system of criminal jurisprudence constitute murder. It should make no material difference whether the person who cut the rope was in personal peril or, being on a separate rope, acted to save other members of the party. In either case the analogy with self-defence against a potentially fatal attack would seem very strong.

However, in some cases a necessity defence would appear to be appropriate even though the victims are not specifically ‘marked for death’. For example, in the sinking ship case, the master of a lifeboat has to select a lucky few from the desperate many. How far can the master go to enforce the choice made? Is it permissible to shoot any passenger who defies the selection? What if the master locks up challengers and leaves them to sink along with the ship? Criminal responsibility will surely not depend on any crude utilitarian calculation as to the number saved and the number lost. Or will it? To take another example, floodwaters are threatening a village. You can move a lever and direct the waters either to the village below or down a spillway designed to carry water away from the village. You last saw your children walking down the spillway unaware of any potential danger. If you do nothing, the village will be swamped.

Does it make any difference how the numbers stack up? Must there be a net balance in favour of lives saved? Is it permissible to take into account personal factors? You would have, after all, allowed your personal feelings and love of your children to direct the flood against the village in order to save your offspring. How human is that? Your conduct might be forgivable, but can it be right? Could you expect any higher standard of human beings?

Faced with this sort of dilemma we might accept that if the contested action saved any person who would otherwise certainly have died, then no wrong is done and no offence committed even if the act caused the death of another person or persons. A tougher standard would be to require that on net balance the action taken resulted in more lives being saved than would otherwise have been lost. This second approach might be called the ‘lesser of two evils’ standard.

If I may be permitted to digress, this sort of dilemma reminds me of the ‘children overboard’ affair, a contemporary issue in Australian politics, in which it was alleged that asylum seekers threw their children overboard in order to force the Australian navy to rescue them. There was no truth in the allegation. The media focussed on what the Prime Minister knew and when he knew it. Specifically, did he know that there was no evidence that the children had been thrown overboard, when he made his infamous comment about not wanting ‘people like that’ in this country? Did he arouse the Australian people against asylum seekers and refugees on the eve of a federal election? That is a very important issue for those who believe in integrity in government. But what puzzles me is this: let us imagine that children were thrown overboard. Why does this not evoke realisation about the gravity of the circumstances, with some sympathy for their plight? Since when were Norwegian Vikings more sensitive than Australians? Why have we become so cynical? Experience and understanding of human nature show that people only jeopardise their children’s safety in extreme and perilous circumstances. The instinct to protect vulnerable children is powerful in the human species.

The fact that children are occasionally abused or deserted does not detract from the fact that as a species we are almost defined by the care we take of our young.[20] You might recall a song by pop star Sting, I hope the Russians love their children too. This song seems very strange. Did he think they might not? Imagine if he had said: I hope Australians [or Americans] love their children too! There would have been outrage. Sting was no doubt well intentioned, but it was monumentally insulting to Russian mothers and fathers.[21] The song echoed as the world watched on television the scenes from hell that is Besland.

There is a scene in one of the films about the holocaust, Sophie’s Choice or Schindler’s List. The death train stops in a siding. Jews marked for death manage to remove a floorboard in the cattle car. A baby is lowered onto the tracks. The train departs. The baby is saved by a good Samaritan. The Moses story in Exodus contains a similar motif. Love can make us give up our children. It can make us out of necessity throw them overboard. Were people so blinded by prejudice and racism that they lost sight of the love that could drive people in desperation to throw children overboard? Perhaps, sadly, most of us cannot identify at a personal level with asylum seekers in a sinking ship off the coast of Australia.


The rationale of necessity may be put on two bases. One is the avoidance of greater harm (or the pursuit of some greater good); the other is the difficulty of compliance with the law in emergencies. Two different but related principles emerge. The first is the utilitarian principle to the effect that, within certain limits, it is justifiable in an emergency to break the law if breaking the law will avoid a greater harm than obeying it. The second is the humanitarian principle to the effect that, again within limits, it is excusable in an emergency to break the law if compliance would impose an intolerable burden on the accused. The latter principle was emphasised by Dickson J in the Supreme Court of Canada:

[Necessity] rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impelled disobedience.22

The learned judge’s statement recognises a zone in which law is banished by nature where the essential circumstances or preconditions for ‘law- abidingness’ are absent — a sort of legal black hole beyond the event horizon, isolated from everyday life, where exceptional circumstances of stress or emergency are rarely encountered.


It may be useful to state some basic propositions before considering whether the doctrine of necessity could be relied upon to justify police practices including the application of duress or force to extract information from a suspect. First, the common law does not permit arrest for the purpose of questioning a suspect. There is no power to detain citizens merely for the purpose of questioning them, and the desire to question arrested persons does not in itself justify a delay in bringing them before a justice.[23] This rule is one of the cornerstones of our civil liberties. However, statutory provisions have displaced the common law in some jurisdictions. For example, in Queensland a person may be questioned without warrant for up to 8 hours (with the possibility of extension of time).[24] Under recent Commonwealth legislation a person may be detained without warrant for up to 4 hours[25] for the purpose of investigating a terrorist offence, and the period of time may be extended with judicial approval for up to 20 hours for the purpose of questioning the suspect.[26]

Questioning means just that: in Australia there is no statutory or lawful basis for the application of force in any degree, and any information extracted from a suspect by means of duress or force or other unlawful means is liable to be excluded from any subsequent trial. It is axiomatic that a confession that is not voluntary, in that it was obtained by duress or fraud, is liable to be excluded in a criminal trial.[27] Of course, the fact that confessional material is liable to be excluded at a criminal trial does not determine the question whether, under prescribed circumstances, the police or law enforcement agencies should be permitted to use ‘rougher than usual’ treatment to obtain intelligence. In operational terms, should officials who engage in such practices be exempt from criminal or civil responsibility for assault or wounding? Indeed, it is a mark of the dangerous times in which we live that some otherwise mild-mannered academics have suggested that, in the case of political crimes of violence, even torture may or should be provided for in particular circumstances. Some commentators have called for the introduction of torture warrants, that is, a judicial order sanctioning the use of torture.[28] The argument is that under extreme circumstances security forces will engage in such practices even if they are expressly prohibited, and it is better to have some judicial control. It is doubtful whether such extreme and radical proposals would be entertained in Australia, for a number of reasons. One is lack of evidence that torture actually works. Another is the potential for crossover into ordinary areas of policing (if it works, why not torture murder suspects or drug couriers?) Also, state-sanctioned torture has a deeply corrosive impact upon the judiciary, police, politicians and others involved in such a system. As a matter of Australian constitutional law, it is highly doubtful whether any system of state-sanctioned torture could pass the Kable test.[29] In that case, the High Court struck down state legislation[30] authorising by judicial order in the case of a particular named individual periods of post-sentence detention based on a finding of dangerousness. The Court held that such legislation had the effect of undermining the integrity of the courts and the judicial process.

Gaudron J said:

The integrity of the courts depends on their acting in accordance with the judicial process and, in no small measure, on the maintenance of public confidence in that process. Particularly is that so in relation to criminal proceedings which involve the most important of all judicial functions, namely, the determination of the guilt or innocence of persons accused of criminal offences. Public confidence cannot be maintained in the courts and their criminal processes if … the courts are required to deprive persons of their liberty, not on the basis that they have breached any law, but on the basis that an opinion is formed, by reference to material which may or may not be admissible in legal proceedings, that on the balance of probabilities, they may do so.31

It is inconceivable that the Australian public would or could have confidence in a system of court-sanctioned torture. Even assuming such draconian powers were ever enacted, a court confronted with a request to torture a person to obtain information would have no hope of maintaining confidence in the judicial process. Such proposals should be dismissed out of hand.

As a matter of positive domestic and international law the position with regard to torture is quite explicit. Torture is absolutely banned under international law.[32] Domestically, the Crimes (Torture) Act 1988 (Cth) gives effect to Australia’s legal obligations under the Torture Convention. The Act creates an offence in relation to conduct committed outside Australia, which if committed in Australia, would amount to an offence. In some jurisdictions, such as Queensland, there is a discrete offence of torture,[33] and an offence of torture has various manifestations under the Commonwealth Criminal Code.[34]

Under the Crimes (Torture) Act, the expression ‘act of torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for ‘such purposes as’ obtaining from the person or from a third person information or a confession; punishing the person for an act which that person or a third person has committed or is suspected of having committed; or intimidating or coercing the person or a third person; or for any reason based on discrimination of any kind. Torture does not include any such act arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the International Covenant on Civil and Political Rights (being the Covenant a copy of the English text of which is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986).[35] The offence created by section 6 of the Act applies only to a person or officials acting in an official capacity or acting at the instigation or with the consent of such persons.

By reason of section 11 of the Crimes (Torture) Act, it would be difficult to plead necessity to a charge of torture even in the so-called ticking bomb case. The Act says that it is not a defence in a proceeding for an offence against this Act that:

(a) the act constituting the offence was done out of necessity arising from the existence of a state of war, a threat of war, internal political instability, a public emergency or any other exceptional circumstance; or (b) in doing the act constituting the offence the accused acted under orders of a superior officer or public authority; but the circumstances referred to in paragraphs (a) and (b) may, if the accused is convicted of the offence, be taken into account in determining the proper sentence.36

In light of the specific provisions of the Crimes (Torture) Act it is hard to see how necessity could be pleaded as a defence. Therefore, no question arises as to whether the defence of necessity might be used to provide some sort of prospective authorisation for torture in a ‘ticking bomb’–type case. Specifically, necessity could not, by reason of the specific provisions of the Act, exonerate a public official.

However, under the Criminal Code the position is somewhat different. As noted above, section 10.3 provides that a person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency. Thus, a person charged with a war crime (torture) under section 268.25 of the Criminal Code could in theory raise a section 10.3 defence.

I note in passing that the Crimes (Torture) Act does not prohibit in section 6 acts falling outside the concept of torture as that term is defined in the Act.[37] The Convention Against Torture draws a distinction between, on the one hand, torture, and on the other hand, cruel, inhuman, or degrading treatment or punishment. A similar distinction exists under the European

Convention on Human Rights.[38] A legal question worth considering is whether the definition of torture contained in section 3(1) of the Act includes cruel, inhuman or degrading treatment. There is a potential gap here: if the conduct is held to amount to cruel and degrading punishment, it would seem to fall outside the Crimes (Torture) Act. Therefore, to the extent that such conduct might fall under the Criminal Code a defence of necessity might be raised.

Moreover, there is no standard definition of torture under the Criminal Code: the definition is expanded in the various statutory offences contained in the code,[39] and there is a specific definition in relation to aggravated offences in section 71, namely ‘the deliberate and systematic infliction of severe pain over a period of time’.[40] This matter is not merely of academic interest. In the leaked confidential briefing from the US Justice Department to the Counsel to the President,[41] the distinction between torture, on the one hand, and cruel and inhuman treatment, on the other, was one basis for arguing that certain interrogation methods falling short of extreme torture might be lawful under US domestic law[42] designed to implement the Convention Against Torture. A similar argument might well be raised under the Commonwealth Crimes (Torture) Act.

The Rome Statute of the International Criminal Court covers some forms of torture. Grounds for excluding criminal responsibility are contained in Article 31, which refers to both self-defence or defence of property, as well as duress. That article also expressly permits other grounds for excluding criminal responsibility by reference to Article 21(1)(c), which includes ‘general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime’. Thus, the availability of a defence of necessity to a charge falling under the jurisdiction of the International Criminal Court, including for example, interrogation torture in breach of the Geneva Conventions, might raise questions under national law, but under Australian law it appears that necessity might operate as a defence only in relation to a non-public official.

IV The Israeli Experience

The legality of torture applied as a policing method by law enforcement officials has not come, and thankfully is not likely to come, before Australian courts. However, one superior court overseas has famously considered the issue. In 2001 the Supreme Court of Israel ruled that practices such as sleep and sensory deprivation, posture torture, and other means of inflicting pain, were unlawful, and that the Israeli security forces, the GSS, could not justify such methods to extract information from detainees.[43] The Court had previously declined to rule that such practices were unlawful.[44] Evidence before the court showed that the GSS regularly used unlawful interrogation techniques — and continued to do so after the Landau Commission in 1989 exposed such practices.[45] The Landau Commission was equivocal on the legality of such methods. Members of the Supreme Court thought that a defence of necessity might be available to individual members of the security forces in particular cases, but necessity could not be relied upon prospectively by governmental officials to authorise unlawful conduct in advance.[46]

V Abu Ghraib

Recent highly publicised incidents of torture by US forces in Iraq have highlighted the issue of torture as part of intelligence operations. In confidential legal advice to the US President, the US Justice Department argued that torture may be legitimised in ‘ticking bomb’ cases during the prosecution of the ‘war on terror’.[47] In ‘ticking bomb’ cases it is believed that, by means of torture, information can be obtained which will enable preventive action to be taken against a bomb that is about the explode with deadly effect. The leaked memorandum argues that the defence of necessity might be used as a prospective authorisation or justification for conduct that is expressly prohibited. For reasons outlined above, this could not apply in Australia; nor, indeed, is it likely to be upheld in the US.

One of many US commissions to investigate the prisoner abuse scandal at Abu Ghraib in Baghdad was chaired by former Secretary of Defense James Schlesinger (who served under US Presidents Nixon, Ford and Carter) and reported in mid-August 2004. The commission found that the abuse had occurred due to a systems failure of command and control, allowing a small group of military investigators, police and civilian contractors to engage in sadistic acts of wanton violence. The report concludes that the ‘events of October through December 2003 on the night shift of Tier 1 at Abu Ghraib prison were acts of brutality and purposeless sadism’. The acts represented ‘deviant behaviour and a failure of military leadership and discipline’. Abuses were ‘widespread and, though inflicted on only a small percentage of those detained, they were serious both in number and in effect.’ The commission concludes that there was both ‘institutional and personal responsibility at higher levels.’

One aspect of the Schlesinger Report is of particular interest. Appendix H deals with ethical issues, and specifically with the ‘Permissions and Limits on Interrogation Techniques’. The report notes that the case for permitting harsh treatment (the word ‘torture’ is not used) of detainees on moral grounds begins with variants of the ticking time bomb scenario:

The ingredients of such scenarios usually include an impending loss of life, a suspect who knows how to prevent it — and in most versions is responsible for it — and a third party who has no humane alternative to obtain the information in order to save the lives. Such cases raise a perplexing moral problem: Is it permissible to employ inhuman treatment when it is believed to be the only way to prevent loss of lives? In periods of emergency, and especially in combat, there will always be a temptation to override legal and moral norms for morally good ends. Many in Operation Enduring Freedom (Afghanistan) and Iraqi Freedom were not well prepared by their experience, education, and training to resolve such ethical problems.

The report notes that a morally consistent approach would be to recognise that there are occasions when violating norms is understandable but not necessarily correct. The report gives as an example an officer who fired his weapon near a detainee’s head, and as a result received information that probably saved the lives of his soldiers. The officer apparently reported himself on a Geneva Convention violation, knowing he would suffer disciplinary action. He was, according to the report, punished in moderation and allowed to retire.

The report ends by noting the lack of ethics training in the US military. What courses there were tended to focus on organisational efficiency rather than ‘the moral good’. In particular, they did not

address humane treatment of the enemy and non-combatants, leaving military leaders and educators an incomplete tool box with which to deal with ‘real world’ ethical problems. A professional ethics program addressing these situations would help equip them with a sharper moral compass for guidance in situations often riven with conflicting moral obligations.

Such a course would no doubt cover the rules of war, and the emerging body of law known as humanitarian law or human rights law, which includes the jurisprudence of the various international and transnational courts, such as the International Court of Justice (the World Court) and the European Court of Human Rights.


This discourse began with R v Dudley and Stephens and In Re A. It seems a long way to Abu Ghraib and Guantanemo Bay.[48] The insurgency continues in Iraq, with car bomb after car bomb. The fatalities are mounting daily. There is no consensus in the international community that the invasion was legal, and in any event, it has almost certainly made both Iraq and the world a much more dangerous place.

I suggest that recent domestic legislation on terrorism is one troubling aspect of the tendency of governments to dispose of fundamental human rights in times of crisis. Australia’s new terrorism laws are wide-reaching and potentially problematic.[49] The legislation erodes existing safeguards in areas such as detention for interrogation, freedom of association, and arrest and seizure. As the pre-existing administrative and legislative arrangements were comprehensive, it is doubtful whether the new laws were even necessary. Whether law will deter politically-motivated violence by extremists is highly doubtful. How do you guard every school bus in the country? For the most part, a frightened populace will trade civil rights for a sense of increased security. In this environment the dangers to civil liberties are very real.[50] It may seem surreal if not obscene that in 2005 there is a debate as to the morality, utility or indeed, legality of torture as a method of interrogation. It is hoped that by placing the debate firmly within the doctrine of necessity, and against the terrible backdrop of modern terrorism, some clarity will be added to the debate.

* John Bray Professor of Law, University of Adelaide. This article is based upon an inaugural lecture delivered at the University of Adelaide on September 9 2004.

[1] R v Rogers (1996) 86 A Crim R 542; R v Loughnan [1981] VicRp 43; [1981] VR 443.

[2] Re Appeal of White (1987) 9 NSWLR 427; R v Warner [1980] Qd R 207 [3] R v Davidson [1969] VicRp 85; [1969] VR 667.

[4] Mark v Henshaw (1997) 140 FLR 438; Limbo v Little (1989) 65 NTR 19.

[5] R v Dixon-Jenkins (1985) 14 A Crim R 308.

[6] R v Lorenz (1998) 146 FLR 369.

[7] See Fairall and Yeo, Criminal Defences in Australia, (4th ed, 2005) Chapter 6. Passages are reproduced with the kind permission of LexisNexis.

[8] (1884) 14 QBD 273.

[9] Ibid 281.

[10] Ibid 288.

[11] Southwark London Borough Council v Williams [1971] Ch 734.

[12] Ibid 743.

[13] In re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254; [2001] 2 WLR 480.

[14] Ibid 483.

[15] Ibid 529.

[16] Ibid 535–6.

[17] Ibid 558.

[18] Ibid 572–573.

[19] Ibid 588.

[20] See John Boswell, The Kindness of Strangers: The Abandonment of Children in Western Europe from Late Antiquity to the Renaissance, Pantheon Books, New York, 1988.

[21] This may be too hard on Sting, who was no doubt motivated by a desire to highlight the madness of mutual assured destruction (MAD) at a time of serious danger to the world community posed by the massive deployment in Europe by NATO and the Soviet Union of weapons of mass destruction. Perhaps any Russian devotee of Western rock music would have understood this and taken no offence.

[22] Perka v The Queen (1985) 13 DLR (4th) 1, 14 (Dickson J).

[23] Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278; The Queen v Iorlano (1983) 151 CLR 678; R v Dalley [2002] NSWCCA 284; Drymalik v Feldman (1966) SASR 227, 234; R. v Banner [1970] VicRp 31; (1970) VR 240, 249; R v Stafford (1976) 13 SASR 392, 400–401; R v Clune [1982] VicRp 1; (1982) VR 1, 10–11, 17–19; R v Larson and Lee [1984] VicRp 45; (1984) VR 559, 568–569.

[24] Police Powers and Responsibilities Act 2000 (Qld), s 234.

[25] Anti-Terrorism Act 2004 (Cth) amending the Crimes Act 1914 (Cth), s 23CA(4)(b). The Act permits questioning for only 2 hours for indigenous persons or persons under 18.

[26] Crimes Act 1914 (Cth), 23DA (7).

[27] See Foster [1993] HCA 80; (1993) 66 A Crim R 112; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.

[28] The best known is perhaps Professor Alan Dershowitz, of Harvard Law School. See Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge, Yale University Press, New Haven and London, 2002,160–161.

[29] Kable v DPP (Cth) [1996] HCA 24; (1996) 189 CLR 51, 107 (Gaudron J).

[30] Community Protection Act 1994 (NSW).

[31] Kable v DPP (Cth) [1996] HCA 24; (1996) 189 CLR 51, 107.

[32] The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter, the ‘Convention Against Torture’) was ratified by Australia on 7 September 1989, almost 16 years ago. Australia has not ratified the optional Protocol to the Convention.

[33] Criminal Code (Qld) s 320A; Robinson and Stokes; ex parte A-G [1999] QCA 181 (28 May 1999); R v Kennedy and Watkins; ex parte A-G of Queensland [2002] QCA 026 (22 February 2002); R v CL [2004] QCA 120 (23 April 1904).

[34] See s 268.13 (crime against humanity); 268.25 (war-crime); 268.73 (war-crime).

[35] The definition in the Act follows the definition in the Convention Against Torture, which not only prohibits torture but requires states that are parties to the Convention to take action to prevent other forms of cruel, inhumane and degrading treatment.

[36] The Act is consistent with the Convention Against Torture, Article 2 of which provides that: 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

[37] Section 3(2) provides that an expression used in the Act has the same meaning as it has in the Convention.

[38] See Ireland v The United Kingdom [1978] ECHR 1 (18 January 1978). Wall standing, hooding, subjection to noise, sleep deprivation and deprivation of food and drink were held to be cruel and degrading but did not amount to torture.

[39] For example, Criminal Code, s 268-25 (war-crime – torture).

[40] Criminal Code, s 71.13(4)

[41] JS Bybee, Assistant Attorney-General, Memorandum for Alberto R Gonzales Counsel to the President: Re Standards of Conduct for Interrogation under 18 USC, 1 August 2002.

[42] Criminal Code, title 18, ss 2340–2340A.

[43] The Public Committee against Torture in Israel v The Government of Israel, Judgment on interrogation methods applied by the GSS, Supreme Court of Israel sitting as the High Court of Justice, HCJ 5100/94 (1999).

[44] The Court has been strongly criticised for turning a blind eye to these practices for too long: see M Kremnitzer and R Segev, ‘The Legality of Interrogational Torture: A Question of Proper Authorisation or a Substantive Moral Issue’ (2002) 34 Israel LR, 514–515.

[45] ‘Symposium on the Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity’, (1989) 23 Israel LR; M Moore, ‘Torture and the Balance of Evils’

(1989) 23 Israel LR.

[46] Kremnitzer and Segev, above n 43, 509.

[47] Bybee, above n 40.

[48] See A De Zayas, ‘The Status of Guantanamo Bay and the Status of the Detainees’ (2004) 37 UBCLR 278.

[49] Anti-Terrorism Act 2004 (Cth).

[50] See Laura Donohue, ‘In the Name of National Security: US Counterterrorist Measures, 1960–2000’ ESDP Discussion Paper ESDP 2001-04, John F Kennedy School of Government, Harvard University, August 2001, 29.

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