Mike Kelly (Eden-Monaro, Australian Labor Party) Share this | Hansard source

I acknowledge the previous comments of both the shadow Attorney-General and the chair of the PJCIS, the member for Deakin, and I congratulate him on his appointment as the chair of that committee. He is doing a very good job of getting that ball rolling with a lot of new members on the committee. It is a great privilege to be a member of the committee. We have a lot of fine experience and expertise that has been brought to bear through the membership. It does do very important work on an important bipartisan basis. A lot of people who sit outside this building often only see the parliament through the prism of question time and do not realise that there is such a deep body of work that is done on a very good, cooperative, bipartisan basis outside of those theatrical moments in here.

I also really want to acknowledge: the input of Major General John Frewen and his ADF team, who came and were very generous with their support in answering questions from the committee; the Attorney-General's; and, in particular, too, the committee's support staff, who are a very good team who have provided tremendous support in what has been a very busy period. Also, I would like to acknowledge the public contributions that were made by the ICRC, the International Committee of the Red Cross, who I have had the privilege of working closely with over many, many decades now—30 years, really. I also acknowledge professors Ben Saul and Tim McCormack, who provided very good quality contributions. Professor Tim McCormack is someone who I have known for many years and who I worked very closely with. He has supported the ADF in working our way through from some very difficult and challenging issues very much like the subject matter that this legislation deals with.

I would like to build on the comment that the shadow Attorney-General made about Labor's willingness to work with the government on security issues. I can assure the House and the community in general that Labor has a very solid, dependable and strong national security policy team. In particular, the Leader of the Opposition has very sound instincts on these issues. I would not be here if that was not the case. I think we have very solid grounds to be confident that the management of national security from both the government and opposition points of view is being conducted on a sound basis. We have been reinforced on the opposition side by the addition of very fine members in the member for Cowan and also the member for Solomon, who brings to this parliament his military experience as well. He is a good friend who I knew before his time in the parliament.

We have heard some specific details about the legislation. But to put it in context—I think this is very important to understand—the Defence Force and all of our military forces in the free would have been coming to grips with very difficult circumstances since the end of the Second World War. A lot of our operational circumstances have been characterised by these situations of dealing with non-state actors. They are very difficult situations of actually being able to identify the enemy in many circumstances. I think that was particularly characteristic in situations like Vietnam, which added extra tension and stress for our members of the Defence Force who returned and had ongoing, lingering problems afterwards that were not well understood. It is very important for us to provide as much clarity as we can in those operational circumstances, but it is also important that we are very careful in the way that we structure our targeting processes and the way we use force and deploy force judiciously in counterinsurgency and stabilisation operations. Any time that you cause collateral civilian casualties you will be potentially setting back your overall strategic mission.

I speak as someone who was involved in the Defence Force for 30 years, but who has recently separated from the reserve. In that time, I can reassure the community and the House, the Australian Defence Force always operated at the upper end, the highest end, of requirements of international law. In addition to that, in these circumstances—and bearing in mind the importance of discipline in targeting—the Defence Force operates well beyond the requirements of law in many circumstances, as well, understanding the importance of the impact of its decisions and the use of force in general.

This legislation effectively takes into account a history and tradition of those conflicts and the development of the law to try and catch up with those circumstances. We have had through the Geneva Convention post Second World War the additional of Common Article 3. It dealt with non-international armed conflicts, but was very inadequate in dealing with all the complexity.

Beyond that time, we had the development of additional protocol I and additional protocol II in particular, which deals with non-international armed conflicts in even more detail. Then, of course, we saw the development of the Rome statute, which tried to codify in practical terms all of this experience in reality. We had a body of law that was also evolved from the tribunal that dealt with the situation of the Bosnian conflict, trying to define these issues of members of organisations, what armed organisations are and putting some definition around that.

Really, what this legislation does is acknowledge that, in the circumstances that we are in in Iraq, for example, you have an armed organisation with individuals who are not only providing direct support to combat activities and engaging in those combat activities but providing what we from a military background would call combat support and combat services support. That is wrapped around the facilitation of military operations through what you might call engineering support in more professional circumstances but also in the logistics of conducting these operations and attacks. We recognise that in Iraq we have a non-state organisation that effectively controls large amounts of territory and is able to operate close to the state-like capacities in controlling that territory—financial resources and ordnance and military resources. This obviously poses a particular issue for our people, who have to, if you like, deal with the definition of a proper target in those circumstances. What we found was that the translation of what actually existed in international law was not effective in the way that the Criminal Code was developed in dealing with what we had refined through the Rome statute and state practice and experience.

This legislation effectively deals with that situation, and it is so important to take away the uncertainty for our defence personnel. We do not want to expose them to any allegations of having conducted themselves inappropriately, potential criminal action and that sort of thing. So these amendments open up our targeting possibilities in Iraq, which have been constrained with that problem hanging over our personnel. They will be able to go out there and effectively prosecute operations against those people that we know are actively participating in this conflict against our forces and against the coalition forces and Iraqi forces so that we can bring this operation to a successful conclusion and rid the world, at least at this level of its current threat, of an organisation and of people who are, quite rightly, determined as evil and as a force that must be confronted by the free world and its forces.

I commend the men and women of our Australian Defence Force who have been engaged in that effort. It is an effort which is not just about dealing, as we would say, kinetically with the enemy but about building the capacity of the Iraqi security forces so that they will be able to take charge of their own security. Ultimately, the mission is to make ourselves redundant. As in many circumstances we have found ourselves in along those lines, whether in Afghanistan, in Iraq or in other conflicts around our own region—for example, Timor, Samoa and other places—it is about building capacity so that we can not only withdraw our own input but ensure that those locations do not descend back into circumstances where we need to intervene in the future. I think we should have learned a lot of lessons out of Iraq in that respect. Having gone through all the expense of blood and treasure and having spent a year there myself working with coalition forces to try and achieve that result, and failing miserably because we did not address effectively the 80 per cent equation of the counterinsurgency theorem—that is, 20 per cent security and 80 per cent social, economic and political and those two things needing to be meshed effectively—we did not do a good enough job of that, which led to the situation where we are back there now. So it is important that we get it right this time, and this legislation is really part of that story.

I reassure the House that, as I have said, the targeting discipline of our Australian defence forces is top-class. It has often been the case in all of the deployments I have been in that Australian operators and targeteers have had a very positive influence in the coalition circumstances they have been in. We take to the table an approach that has also influenced other coalition partners to be extremely careful with that targeting process, which has had a very positive influence on the way these operations have been conducted.

I will say that we are now in this process of the post-US election period, where we are now all looking to see what the new approach will be of the US administration after President-elect Trump is sworn in. Of course, during the campaign there was a lot of hyperbole and rhetoric, as there always is in political campaigns, but there was a lot of talk around how we deal with Daesh and some people may be concerned about whether we would be moving to a new approach that may lead to indiscriminate targeting. Certainly we would hope that will not be the case. Really, it will be a lot about what the appointments of the administration are and how the information and departmental support are dealt with in that process of setting up this new administration, but I do note that President-elect Trump is considering the appointment of General Mattis as Secretary of Defense. General Mattis was with us in Iraq. At the time that I was there, he was in command of the 1st Marine Division, which is a division well known to Australia. Its symbol—its shoulder flash—is the Southern Cross and its formation anthem is Waltzing Matilda. So we have quite a historic familiarity with the 1st Marine Division. General Mattis was quite a character, he said a lot of colourful things and his nickname is quite colourful, but I want to reassure people that this is someone we could have confidence in. He would be a good adviser in circumstances like this. He is someone who grew up in that marine tradition under Commandant Krulak of the Three Block War, understanding those complexities and depths and levels of operation. It is a bit like 3D chess these days, but he understood that. He grew up in that conceptual regime and also helped them write better counterinsurgency, or COIN, doctrine for the marines and the US Armed Forces. So he does understand counterinsurgency theory very well and the judicious use of force, with a very exemplary career in the military himself in many different circumstances. So I would be reassured if he is finally appointed as the Secretary of Defense for a Trump administration.

I want to, again, thank the members of the committee and those who provided the material for the committee to come up with a good result on this legislation. This committee is providing a very good mechanism for vetting measures on security. Everything that has gone into that committee, in my experience over the last three years as a security adviser for the Leader of the Opposition and now in this role, has always been improved as it has come out the other end of the funnel and, as I say, always in a very good bipartisan spirit.

I commend the legislation to the House, and I salute the service of the men and women of our ADF who will be at the sharp end of implementing the consequences of this legislation. I wish them safe return.

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