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Second Reading: Criminal Code Amendment (War Crimes) Bill 2016
It is good to be able to follow the member for Isaacs’ contribution on Criminal Code Amendment (War Crimes) Bill 2016. I want to echo his sentiments, as Chair of the Parliamentary Joint Committee on Intelligence and Security, that we have had a big workload. This has been part of that workload, but the urgency with which we have worked in a cooperative way to review and ultimately recommend that this bill be passed is really for one purpose, and that is to give legal certainty to our men and women in the ADF.
It is a credit to the leadership of our Prime Minister, who has put his full imprimatur behind this, to bring forward a legal uncertainty—that has certainly been in place for a very long time as the member for Isaacs has said—an area where Australian domestic law has not kept pace with international law. It has been an ambiguity for some time but it took our Prime Minister, this Prime Minister, to elevate the issue and ensure that we are now seeking to plug that gap. So I want to give credit of course to the PJCIS, I want to give credit to all of the members, including the member for Isaacs, and I want to give credit also to the secretariat who have done an amazing job in relation to this bill.
In essence, as I have just said, the purpose of this bill and the purpose of these amendments is to bring into line the Australian domestic law with international law in the way we treat members of organised groups in noninternational armed conflict. The bill represents a key component of a range and suite of responses and measures that this government is seeking to implement to ensure that the threat of terrorism is addressed not only here on our own shores but from where it springs, particularly in the Middle East.
In essence the purpose of this legislation is to ensure that the ADF is able to target members of organised terrorist groups. That, in its essence, is what we are ensuring that they can do and, importantly, these amendments, in my view, will be crucial to the ongoing operations of the ADF against ISIS in Iraq and Syria.
We know that members of these terrorist militias act as combatants, and our ADF personnel should be able to engage with them as such. This bill achieves its intended aims primarily through amending several sections of war crimes offences in division 268 of the Criminal Code and to introduce the concept of organised armed group in noninternational armed conflicts.
The proposed amendments draw a clear distinction between civilians on one hand and members of organised armed groups. As division 268 currently stands, war crimes offences may allow members of the ADF to be held liable for action against members of these armed groups in a noninternational armed conflict.
Schedule 1 of the bill contains four parts. Part I will amend the war crimes offences in 268.70, 268.71 and 268.72 of the Criminal Code relating to murder, mutilation and cruel treatment of persons in the context of noninternational armed conflict so that those offences would only apply if the persons are either not taking part in the hostilities nor are they members of that relevant organised armed group—in this case Daesh—and the perpetrator knows of or is reckless as to the factual circumstances establishing that that person is not a member or taking active part in those hostilities. The bill also introductions the principle of proportionality in relation to attacks on military objectives in noninternational armed conflicts. This is done by amending other provisions in division 268.
In broad terms, what I would like to conclude by saying—and I do not intend to use my entire allocation of time here because these issues I think have been aired very comprehensively not only by the Prime Minister but also the Leader of the Opposition. What we are seeking to do here is just to ensure that we can operate with our partners in armed conflicts in an environment where those whom we are fighting, those whom we are opposing are unconventional in the way they operate—unconventional in the sense that they are not a state. We do not think that via technical aspects of our domestic law they should be protected by provisions that, when originally drafted, were intended to protect civilians and those who were not engaged in activities that assisted in those hostilities.
So this is, in a sense, an uncontroversial change. But, as with all amendments in relation to the fear of war, they of course require significant review. I am pleased that we have conducted that review through the PJCIS in a very thorough way. We were obviously assisted by the fact that the will of our ADF, the will of our security and intelligence agencies was so one-sided as far as these proposed amendments go, because we do not want any Australian member of the ADF to, in any way, be potentially subject to negative legal recourse by defending the values of our country and by defending the values of Western liberal democracy in fighting organisations like Daesh. It is for that reason that, again, I want to thank the Prime Minister, the Attorney-General; of course, I want to thank the PJCIS.
I commend these amendments to the House.
Click here to access a PDF copy of the Hansard transcript of this speech.