Emily Bourke reported this story on Thursday, February 9, 2012 12:15:00

ELEANOR HALL: Senior members of the Howard government and the Defence Department are today denying claims that Australian soldiers were involved in transporting Iraqis to secret prisons during the war.



A US military document that has been obtained by the Guardian newspaper identifies an Australian SAS squadron of 150 men and says it was "integral" to the operation of a secret facility, known as H1, in Iraq's western desert in 2003.



The Defence Minister Stephen Smith denies the claim, and the former foreign minister, Alexander Downer, dismisses the allegation that the Australian military personnel were directly involved in any secret "black sites".



But the head of the Defence Association says questions were raised at the time about Australia's legal responsibility to prisoners of war, as Emily Bourke reports.



EMILY BOURKE: Human rights experts say there are questions about whether Australian SAS forces breached international laws while handling Iraqi prisoners of war. They point to a US military document that says Australia played a key role in so-called black sites - secret prison facilities hidden from the Red Cross.



Edward Santow is from the Public Interest Advocacy Centre.



EDWARD SANTOW: We had a reference in our documents to the Australian military taking the prisoners to a place called H1 - we had no idea what the significance of that was, we couldn't get any answers out of the military on that.



What we know now is that H1 was a secret prison or black site. The significance of that is that a), Australia has always maintained it had no involvement in secret prisons and b) that this official US military report says that Australia's Task Force 64 had an integral part of operations at the secret prison H1.



This incident raises further questions about what Australian authorities knew, how they were involved and when.



EMILY BOURKE: When contacted by the ABC, the Defence Department said the issue of detainee management in Iraq is a matter for the previous Government. A leading member of the Howard government dismisses claims that Australia played an integral role.



ALEXANDER DOWNER: I think that's likely to be complete nonsense.



EMILY BOURKE: Alexander Downer was the foreign affairs minister in 2003.



ALEXANDER DOWNER: Well I don't think the SAS would have known anything about black sites at that time and certainly we didn't in the Australian government. But we did have protocols in place. If memory serves me well whereby we didn't actually detain prisoners ourselves but we handed them over to countries that, and obviously to the Americans and the British in particular at that time, which signed up to international norms of treatment of prisoners in circumstances like that.



STEPHEN SMITH: The advice I've got is that there's nothing in it.



EMILY BOURKE: Stephen Smith is the current Defence Minister.



STEPHEN SMITH: I've got no knowledge of these matters at all. These were matters before the Government was elected so they were matters during the period of the previous government. Historically, successive Australian governments and the ADF have prided ourselves on the fact that we have very high standards in this area.



In Iraq we were not a detaining authority and the advice I have got this morning is essentially that these allegations are baseless.



EMILY BOURKE: Jim Wallace is a former SAS commander. He describes how Australian special forces dealt with prisoners of war in Iraq.



JIM WALLACE: One hundred and fifty men in a big scheme of things, as the Gulf War was, is very small and the filtering that they do at that level is an initial filtering of…



EMILY BOURKE: Of prisoners?



JIM WALLACE: Of prisoners, that's right. And on the basis of that initial filtering, they are then passed further up the line to be dealt with by various intelligence levels, levels of intelligence within the force. So I think the charge that they were integral to whatever was going on up the line is a bit far-fetched personally, and a bit mischievous actually.



EMILY BOURKE: Do Australian forces have a responsibility to ensure that the Geneva Conventions are followed when it comes to the handling, the transferring of those prisoners?



JIM WALLACE: Well I think, yes certainly they do and - in their own handling of them - and I think they would expect that that's how prisoners are dealt with further down the line.



EMILY BOURKE: But those questions were being raised in Canberra according to Neil James from the Australia Defence Association.



NEIL JAMES: Well there's a bit of a chicken's coming home to roost quality in this because the Defence Association was very critical at the time of the legal subterfuge tried by the Australians that we weren't actually capturing anyone, anyone the Australians captured was actually technically captured by an accompanying American and we said at the time that was nonsense.



You can't avoid your responsibilities under the Geneva Convention that way and it would eventually backfire on us and with these latest allegations, this looks like part of the backfire. And the idea that people captured by the Australians weren't actually captured by the Australians was a nonsense then and it's a nonsense now.



EMILY BOURKE: Does that suggest there was some pre-planning and there was some legal advice to make that very clear, that Australia did not have a responsibility in the field when it came to detainees?



NEIL JAMES: Well Australia does have a responsibility and it's very difficult when you're the capturing power to hand over your prisoners to someone else. You have to satisfy yourself that they are also a complying power with the Geneva Conventions.



This was a case of some of the Defence Department's lawyers perhaps being a bit too smart for their own good, perhaps that the direction of senior officials in the department and not following time tested military practice.



ELEANOR HALL: That's Neil James from the Australia Defence Association. Emily Bourke with that report.