Where are all the torture critics now?

But what about other situations where torture is used, but it does not result in the death of a person? A common scenario is extracting information by sticking needles under someone’s fingernails, reported to be a legitimate torture techninque which causes immense immediate pain, but no longer-term harm. The new statutory defence would not apply here, but the Explanatory Memorandum accompanying the Crimes (Homicide) Bill, in stating that the new provision is an attempt to remove uncertainty about whether necessity is available as a defence in homicide cases, implies that the existing common law defence of “necessity”would be available when death does not result. In other words, what Bagaric was proposing is already a feature of the criminal justice system, so long as the use of torture is reasonable and proportionate.

Indeed, following the outcry over his article, Bagaric made this very point. In an article in published in Lawyers Weekly on June 3, 2005, he wrote:

How can my comments that torture should be permissible in some circumstances really offend “right thinking people” when we live in a community where our law probably already permits torture (despite its “peremptory norm” status at international law) in the circumstances that I indicate? The common law defence of necessity (which has at its base the same utilitarian foundation as self-defence) has three requirements:

1. the act [the infliction of physical pain] is needed to avoid inevitable and irreparable evil [the death of innocent people];
2. no more should be done than is reasonably necessary for the purpose to be achieved; and
3. the evil inflicted must not be disproportionate to the evil avoided.

Both Bagaric and the Victorian Attorney-General know the law, and understand that, when removed from all the emotion and finger-pointing, the use of torture can be a useful and reasonable means of obtaining information about a crime or potential crime from an individual. This is consistent with the long-standing common law defence of necessity, and also, the true feeling that most of us deep down hold about torture.

With a stroke of the legislative pen, the Victorian Government has expressly allowed for the use of torture in situations of emergency. But not just that, they have made permissible the most extreme forms of torture techniques which lead to the death of the person being interrogated.

Why aren’t the people who were so critical of Bagaric’s proposal now up in arms? There are two possible explanations. Either they are grossly hypocritical (which I believe is probably the case), or are simply ignorant of the law which they supposedly care so strongly about. I look forward to what they have to say for themselves.