Mike Kelly (Eden-Monaro, Australian Labor Party, Parliamentary Secretary for Defence Support) Share this | Hansard source

The provisions of this bill, the Defence Legislation (Miscellaneous Amendments) Bill 2008, operate in relation to three issues, as we have heard. Two of these issues could be described as housekeeping measures that clean up a discrepancy arising from our federal system and also cure a technical deficiency relating to the security of the Pine Gap facility. The third issue is of greater significance. It reflects the resolution of a longstanding point of contention in the law of armed conflict relating to protective emblems.

On the medical provisions, I have heard the statements by the member for Fadden and the member for Paterson. I accept the genuine concern of the member for Fadden for the men and women of our ADF and their welfare. I certainly do not hold him responsible for the actions or inactions of the previous government as he was also a member of the class of 2007. However, it is the height of hypocrisy for any member of the previous government to complain about action on delivering better health outcomes for defence families as they had 11½ years of opportunity to do something about that and did not. We are acting on that issue. In opposition it is of course difficult to formulate policy without the advice of departments. We are now working through the best solution to that problem through conducting trials, and certainly help is on the way for our ADF families.

The service of the men and women of the ADF is unique in so many ways—one of them is the fact that they are required to be somewhat nomadic. We require our personnel to regularly relocate from one part of this country to another and overseas, having to continually adapt to varying jurisdictions. This creates a tedious round of adjusting many basic administrative aspects of daily life such as drivers licences and car registration but also with respect to fundamental family issues of education and health.

This is something that the Rudd Labor government are fully conscious of, and we are working to smooth out some of these rough edges created by our federal structure. In particular, we are currently working on the national curricula project, which will be greatly appreciated by defence families. One of the measures contained in the bill before the House will cure another of those anomalies in relation to the medical service provided to our personnel within Australia and when overseas. The bill will do this by explicitly enabling the making of regulations to ensure that the medical and dental treatment, including administering pharmaceuticals, provided to an ADF member or member of their family and to cadets is not impeded by variations in state and territory laws. This follows advice from the Australian Government Solicitor that in some jurisdictions ADF, APS and contracted civilian health professionals could run foul of the professional standards in the state or territory in which they are registered, arising from supervising the medical treatment provided by ADF medics. The amendment also enables the provision of health support to ADF members and dependants in certain overseas countries where the range of pharmaceuticals may not be of the standard available in Australia.

The second administrative issue the bill addresses is the provisions dealing with the Joint Defence Facility Pine Gap under the Defence (Special Undertakings) Act 1952. In a case in June 2007, the act was used for the first time to convict four persons who had broken into the Pine Gap area. Some technical deficiencies were revealed in relation to the validity of declarations relating to the facility, so these amendments will strengthen the Commonwealth’s legal position in dealing with offenders against the act. In particular, the addition of the new section 2A, defining the purposes of the act, will make it clear that the Commonwealth’s power in relation to the facility and its security is based not on the defence power alone but on other elements such as Australia’s obligations with respect to treaties, conventions and international agreements to which it is a party.

In these fraught times it is not just misguided demonstrators that we need to secure this and other key facilities against but, of course, the more deadly threat of terrorists, as recent trials have illustrated. In relation to the demonstrators, though, let me say that, while I fully recognise the right of citizens to demonstrate against the Pine Gap facility, it has long been a puzzle to me why they believe the world would be better off without it. Without doubt, the Pine Gap facility is one of the most positive contributions to peace and security in the world today. I note that it was sometimes said that the facility made Australia a nuclear target. The truth is that this facility makes nuclear war less likely. It provides a key piece of the puzzle in verification concerning nuclear arms and testing treaties and the security of friends and allies around the world through its ballistic missile early-warning information. Without its technical intelligence service, it would be like losing an eye in a world where we need all our senses operating at full capacity all the time. I suggest demonstrators could make a far greater contribution by focusing on the situation in Zimbabwe or Sudan or the brutal, extreme Islamist movements Hamas, Hezbollah and the Taliban.

Turning to the emblem issue, the other provisions of the bill which deal with the introduction of a new protective emblem in relation to the law of armed conflict deal with, in technical terms, amendments to our Geneva Conventions Act 1957, which made effective in Australian law the four Geneva conventions of 1949 and subsequently the two additional protocols to those conventions introduced in 1977. Following the entry into operation of the Criminal Code Act 1995, which made further adjustments to the Australian regime of the law of armed conflict, principally through changes made necessary by measures associated with the creation of the International Criminal Court, it will also be necessary to amend the Dictionary of the Criminal Code. The amendment to the Geneva Conventions Act 1957 brings into force a new protocol III of 2005 to the Geneva conventions of 1949. The purpose of the protocol is to add a new emblem to the protective red cross and red crescent, in the form of a so-called red crystal. This is, in effect, a hollow red square turned on one point on a white background.

The story of how this protocol came to be and of the need for a third emblem is a long and convoluted one and is intimately entwined with the history of the International Committee of the Red Cross, or ICRC, and the International Federation of Red Cross and Red Crescent Societies. It began, as with the history of the ICRC itself, with the experience of Henri Dunant, the Swiss businessman who observed the appalling suffering and deprivations of the wounded on the battlefield at Solferino in Italy in 1859. Largely through Dunant’s efforts, the first Geneva convention was created in 1864 for the amelioration of the wounded on the battlefield. In this convention the red cross was established as the sole emblem designated to identify the medical services of armed forces and voluntary relief societies. This was intended to substitute for the various flags and distinctive signs that were in use at the time. The idea was to have something universally understood and recognisable from a distance. It is unknown why the red cross was selected but it appears that it was probably a tribute to Henri Dunant and the tradition of neutrality established over several centuries by Switzerland through reversal of the Swiss national flag. While it was not intended to have religious significance there is no doubt that the emblem bore a close resemblance to the flags and devices used by the medieval crusaders and therefore it was rejected by the Muslim world and, in particular, by the Ottoman Empire of the day. This was understandable, and I have no doubt that consciously or unconsciously the founders of the movement were influenced by their Christian background in selecting the emblem. If it was a reversal of the Swiss flag then there is no doubt that the use of the cross on the Swiss flag is a religious reference. Had a clearly non-religious emblem been selected at this point, the debate and angst of the last 130 years could have been avoided.

In 1876, during the Russo-Turkish War, the Sublime Porte declared its intention to adopt the red crescent on a white background to distinguish their military medical services. In 1906, at the conference to review the 1864 convention, there was an attempt to obtain recognition of the red crescent, and the situation was further complicated by the efforts of Persia to have the red lion and sun, and Siam the red flame, recognised. The conference rejected these efforts but authorised states to formulate reservations to the provisions on the emblem. The Ottomans and Persia took advantage of this, while Siam elected to adopt the red cross. Finally, in the updated and revised convention of 1929, the red crescent and red lion and sun were formally recognised, with the proviso that only emblems already in use at the time, and no new emblems, would be recognised. This situation was later confirmed in the first Geneva convention of 1949, which is the convention for the amelioration of the wounded on the battlefield in force today.

The negotiations on this issue for the 1949 convention were not straightforward—surprisingly! Proposals were put forward at the time for replacing the emblem with a new universal emblem—this originated from the Netherlands—reverting to the sole use of the red cross or admitting the red shield of David for the newly created state of Israel. Unfortunately, the idea of a new emblem was rejected by the Western states in the name of tradition and by certain Muslim states for religious reasons. It was, as a consequence, the last issue of the Israeli proposal which has proven so controversial over the years from 1949 to 2005 and has been at the heart of getting to the solution we now have with respect to the red crystal.

The red star of David, or Magen David Adom, had been in use by Jewish relief societies in Israel/Palestine for nearly 20 years prior to 1949, including by Israeli armed forces during the fighting against invading armies from neighbouring states in 1948. For the Jewish community of Israel, there was the concern shared with the Muslim world over the mutual experience of the crusaders, which was not a good one. There was also the very recent and bitter memory of the failure of the ICRC with respect to the Holocaust, a failure well documented in books such as The Yellow Star and the Red Cross by Marc-Andre Chargueraud and freely acknowledged and regretted by the ICRC.

Clearly, also, the acceptance of the red crescent had established a precedent for the acknowledgement of cultural and religious concerns over the emblem. There was heated debate on this in 1949, with the proposal being defeated by only one vote, and Israel was to try again to have the red star of David recognised during the diplomatic conference of 1974-77, which produced the two additional protocols to the four Geneva conventions of 1949. Once again, however, they were unsuccessful. Since 1949, Israel has therefore relied on its reservation to the 1949 conventions on the emblem, which has only been rejected by two of the parties.

The practical effect of the inability to produce a mechanism accommodating the red star of David was that a number of national voluntary relief societies were not able to be admitted to the International Red Cross and Red Crescent Movement, as a condition for the recognition of a national society was use of the red cross or red crescent. The societies which were not able to do this included not only the Israeli Magen David Adom but also the Eritrean and Kazakh societies, which wanted to use a double emblem of the red cross and the red crescent, and at one point Zimbabwe and India, which wanted to use a red star and a red swastika respectively. Understandably that might have caused problems. Further complicating matters was the emergence of the Palestinian Authority and its red crescent society, which could not be admitted to the movement without resolving matters with Israel.

Beginning in 1993, the ICRC began a serious effort to find a solution. Over the years between 1993 and 2005 there have been many conferences, some of which I participated in, diplomatic negotiations and impediments which have arisen periodically associated with conflicts in the Middle East. Another phenomenon that gave added impetus to the search for a new emblem was also emerging. In the years from 1993 onwards, we have seen the rise of brutal interstate and ethnic conflict involving a proliferation of non-state actors. We have also seen the rise of Islamic extremists who have eschewed all the accepted boundaries of armed conflict, civil society and the principles underpinning the work of voluntary relief societies. In an unprecedented fashion, the ICRC has endured attacks on its personnel and facilities over these years in places such as Somalia, Chechnya, Iraq and Afghanistan. I personally watched the struggles of the organisation in Somalia and Iraq and was privileged to serve on secondment from the Army to the ICRC in Bosnia and Croatia in 1996 as part of the Sarajevo delegation.

It was fast becoming clear that the Red Cross was entering a situation where not only was it not affording protection but it was in fact becoming a target in some situations because of the emblem itself. The ICRC and the UN were facing a similar situation of needing to have some flexibility in the manner in which they operated. In the course of attempting to find an answer to this dilemma the issue of moving to one universal emblem was again canvassed but this could not be achieved. The solution was therefore to adopt the third emblem, which became the vehicle for facilitating additional flexibility within itself. This was the outcome of the diplomatic conference in Switzerland in 2005. The result is that the red crystal can be used on an equal footing with the red cross and red crescent by all military medical personnel and by voluntary relief societies who wish to be part of the movement. It is also open for national societies to incorporate within the red crystal an emblem that is in effective use by a high contracting party and which has been communicated to the other high contracting parties and the ICRC. It is therefore possible for the red star of David and the dual red cross and red crescent to be used in this way, at last enabling the Magen David Adom, Eritrean, Kazakh, and Palestinian Red Crescent Societies to join the movement.

Additionally, it is possible for the military medical personnel of high contracting parties, the UN and the ICRC to use any of the three distinctive emblems where it is believed this may enhance protection. As a heartening symbol of the success achieved during the process leading up to the adoption of protocol III, on 28 November 2005 Dr Noam Yifrach, Chairman of the executive committee of the Magen David Adom, and Mr Younis al-Khatib, President of the Palestine Red Crescent Society, signed in Geneva an agreement on operational arrangements between the societies. Finally, in a powerful and emotional moment at the conclusion of the 29th international conference of the Red Cross and Red Crescent, the ICRC announced the recognition of the two societies, and they were subsequently admitted to the International Federation of Red Cross and Red Crescent Societies by acclamation.

There is no doubt that the movement has been strengthened by the resolution of this issue and the wounds of the last several decades of debate can now begin to heal. It is incumbent on the ADF now to put in place a sound familiarisation process to ensure an understanding of the meaning of this reform and that our personnel instinctively recognise the new symbol. The community in general also needs to understand the significance of the symbol, as the red cross has often been misused. We must ensure that the red crystal is not similarly the subject of misuse.

In many ways it is regrettable that the international community was not able to settle on a universal symbol. Over the last two decades, the issue of protective emblems has become more complicated by a proliferation of non-government organisations, NGOs, operating in the field with an absolute rainbow of emblems and logos. There is no doubt that this has complicated the situation for the ICRC. Not all NGOs operate on sound principles, and some have blatantly crossed the line in being fronts for belligerence and terrorist organisations. In conflict zones and countries with low educational levels, many simply do not understand the difference between all the emblems and logos they see around them from time to time. We must therefore work all the harder to promote knowledge of and respect for these three essential protective emblems.

I stated that I was proud to serve on secondment with the ICRC. The organisation performs essential relief work in countless conflict zones and disaster areas around the world, which has only too clearly been made evident again in these last few days. As a member of the ADF, the role I prized above all is that which seeks to track and monitor the whereabouts and wellbeing of prisoners of war and detainees. With this in mind, I call on Hamas to immediately provide access to the ICRC to Gilad Shalit, a soldier of the Israeli defence force, as he continues to endure nearly three years of captivity somewhere in the Gaza Strip.

I worked with all the ability I could muster to facilitate the work of the ICRC in Somalia, Bosnia, Croatia, Timor Leste and Iraq. I count as the lowest point of my field experience the failures of the coalition forces to do better with respect to the handling of detainees in Iraq and the Abu Ghraib saga. That experience was a lesson that we must always be on our guard to maintain our standards. It is important for us to work with the ICRC and maintain a regular dialogue. It is not a perfect organisation and has made mistakes along the way, but there is no doubt that if it did not exist we would have to invent it. I commend the bill to the House.

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