Worth Richard: Crimes of Torture Amendment Bill — In Committee 
Worth Richard: Crimes of Torture Amendment Bill — In Committee 
[Volume:635;Page:6614] 
Dr RICHARD WORTH (National) 
: 
 The Crimes of Torture Amendment Bill is in two parts. National supports the passage of this legislation and has done so from the outset. It is to be seen that Part 2 deals with amendments to a number of Acts and the particular legislation that I wish to deal with in what I hope will be a series of multiple calls is the Crimes of Torture Act 1989. That is the principal Act to which the Crimes of Torture Amendment Bill is of course an amendment. 
The Crimes of Torture Act 1989 has been with us for some time. It is simple legislation that had as its principal purpose the implementation not of the optional protocol but of the substantive Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. New Zealand entered an important reservation to that convention and that reservation was in respect of compensation. So the Government of New Zealand in an expressed reservation reserved the right to award compensation to torture victims referred to in article 14 of the convention only at the discretion of the Attorney-General of New Zealand. We now of course are dealing in the amendment bill with the optional protocol and although New Zealand has signed the optional protocol to the convention it has not yet ratified it. We see here a working out of constitutional principle—that international conventions are not incorporated into domestic law in the absence of relevant statutory implementation. 
In these calls I want to deal with an issue that directly arises under Part 2 and has been called the “ticking bomb” and the “licence to torture” because it raises very directly the very troublesome possibility of whether the State has a right to torture. Suppose a bomb has been placed in a crowded building and the State has custody of someone who knows where that bomb is. The bomb is set to go off in say 2 hours. It is impossible to get the people out. What should be done? That issue—the so-called ticking bomb scenario—is a thought experiment that has been used in the debate over whether torture can ever be justified in the war on terrorism. 
It is a scenario that was first painted by a German sociologist called Luhmann who mooted the scenario in the early 1990s. It has been picked up on as a possible justification for torture by no lesser a person than Alan Dershowitz a prominent American defence attorney who surprised some observers by giving limited support to the idea that torture could be justified. We have seen recently that FBI interrogators decided to withdraw from all participation in the interrogations conducted on detainees at Guantanamo Bay in Cuba because some of the techniques being used would preclude any possibility of the detainees being tried in a US court of law. 
It raises hugely difficult philosophical issues which I would suggest are best avoided. Because what happens if the customary methods of torture do not work? Those customary methods probably would be sacking tying someone into painful positions sleep deprivation shaking enclosure in a cupboard where one cannot stretch out and blasting with loud music. If the person does not succumb to those particular methods of torture is it permissible to beat him? And if that does not help is it appropriate to apply electricity to rip out his fingernails or to crush his testicles? If we accept the ticking-bomb scenario as an argument justifying torture then we can find I believe no principle at all to limit the extent and degree of the torture it justifies. That is why it is appropriate that this legislation which National supports be passed. I note in Part 2 that amendments to a range of statutes are required to more perfectly implement the optional protocol. That is all I wish to say.