find the latest legal job
Corporate and Commercial Partner
Category: Corporate and Commercial Law | Location: Adelaide SA 5000
· Adelaide CBD · Join a leading Adelaide commercial law firm
View details
Freelance Project Finance Lawyers
Category: Other | Location: All Australia
· Vario are looking for freelance lawyers with experience in project finance ideally within the renewable energy sector
View details
Vario Freelance Lawyers
Category: Construction Law | Location: All Australia
· We are looking for lawyers who appreciate the endless possibilities that a freelance career can offer.
View details
Freelance Construction Lawyers
Category: Construction Law | Location: All Melbourne VIC
· We are looking for construction lawyers who appreciate the endless possibilities that a freelance career can offer.
View details
Banking Associate - 1-6PQE - Allen & Overy
Category: Banking and Finance Law | Location: United Kingdom
· Banking Associate - 1-6 PQE - Allen & Overy
View details
Law group obtains damning documents

Law group obtains damning documents

The Public Interest Advocacy Centre (PIAC) has obtained 160 previously classified documents which allegedly prove the Australian Government tried to avoid its obligations under international law…

The Public Interest Advocacy Centre (PIAC) has obtained 160 previously classified documents which allegedly prove the Australian Government tried to avoid its obligations under international law in relation to prisoners caught by the Australian Defence Force (ADF) in Afghanistan and Iraq.

Edward Santow, PIAC's chief executive officer, said the documents - which were obtained after a drawn-out process under Freedom of Information (FOI) laws - raise "big questions" about ADF detention practices and show a failure of leadership within Australia's military hierarchy.

He also said the documents show the ADF was ill-prepared for operations in Afghanistan as it had no clear plan to deal with captured Taliban and Al Qa'eda fighters.

"The ADF had not put adequate resources into processing and detaining captives in Afghanistan because it assumed that US forces would take responsibility for any prisoners of war (POWs)," he said.

"Australia assumed the US shared its view that the Geneva Conventions applied to all fighters who were captured in Afghanistan and that they would be treated as POWs. However, these assumptions proved to be unfounded, because the US took a different view, asserting that the Geneva Conventions did not fully apply to the conflict and captives were not POWs but so-called 'unlawful combatants'."

According to Santow, this left the ADF with a problem as it did not have the resources to detain captives, but it could not transfer its captives to US custody for detention and processing because to do so would breach the Geneva Conventions.

"The impasse meant that Australian troops were engaged in a conflict in which they could not take captives in their own right. This posed serious questions about the ADF's ability to fulfill its mission effectively in Afghanistan while at the same time meeting its obligations under international law," said Santow.

"As a result, Australia developed a detention policy that sought to avoid its international law obligations towards detainees."

According to Santow, this policy essentially relied on a "legal fiction".

"If just one US soldier was posted with Australian troops, Australia argued that the US was the Detaining Power and the US would be solely responsible for any captives," he said.

It has taken PIAC six years to obtain the documents, which it requested under FOI in June 2005. PIAC initially sought access to documents relating to ADF operations outside Australia since 11 September 2001, and was particularly interested in documents about the apprehension, detention or transfer to other military or civil authorities of individuals suspected of being terrorists.

Six years after the initial request, and after a series of appeals by the Department of Defence, PIAC succeeded in gaining access to the documents - some of which were released to PIAC with extensive redactions whereby the Department of Defence had blacked out sections it believed were exempt from disclosure. These documents were subsequently re-released with the previously redacted sections revealed.

The documents will be published on PIAC's website at 8pm today (4 July).

Like this story? Read more:

Book commemorates diamond milestone for WA law society

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

Law group obtains damning documents
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Jan 23 2018
Disrupting traditional archiving and storage methods
Promoted by Fileman TRENDS COME and go but technology and its disruption to the legal landscape h...
Scales of Justice
Jan 23 2018
WA to close ‘legal loophole’ on gender reassignment laws
Laws in Western Australia will soon change to permit married people to undergo gender reassignment s...
Lawyers take to Twitter to share career stories
Jan 22 2018
Lawyers take to Twitter to share career stories
The #mypathtolaw hashtag has been embraced by legal eagles to swap stories with the Twitter communit...
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...