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).