Chris Crewther (Dunkley, Liberal Party) Share this | Hansard source

I rise today to speak on the Criminal Code Amendment (War Crimes) Bill 2016. I particularly thank the Joint Committee on Intelligence and Security, which is chaired by Michael Sukkar, for the wonderful work that he and the committee have done on this legislation. We see around the world, in Australia and internationally, an increased international threat of terrorism as well as terrorist acts and war crimes. We have seen, in particular, recent terror attacks, whether it be in Canada, whether it be in Syria or elsewhere. There is a continual threat to our security and our way of life, and it is pleasing to see the committee and the parliament continuing to work to protect us.

Indeed, we live in a more interconnected world, particularly with social media, with an increasing need for regional and international engagement. It is crucial that we work with our international partners and key allies around the world, including the United States. Our activities in the way that our defence forces operate overseas have an international impact; they are not just of sole domestic relevance. As the Prime Minister said in his address this morning, 'No one country can fight terrorism on its own.' It is more important than ever to make sure that the way our military operates is compatible with our allies.

In Australia we have a dualist approach to international law, which means that, in terms of international treaties, we implement them at the domestic level as well to bring them into force. This bill, at the domestic level, alters Australian law so that it is in line with international law. Currently, the inconsistency leaves a gap between laws, which means that legal prosecution is possible when undertaking operational activities. This is something we wish to avoid when conducting legitimate operations. Critical to the protection of our ADF personnel and decision-makers is this legislation, which aims to ensure that organised armed groups such as Daesh, otherwise known as ISIL, who are becoming a greater threat than even some conventional military forces, can be legitimately targeted.

I am very pleased to have with me this week a member of the Defence Force Major Rob Marlow, who has served in Iraq as well as other areas. He is doing a terrific job and is with me this week as part of the parliamentary program, in which I recently had the opportunity to go to Iraq and Syria, in the air, in a refuelling operation, as well as to Afghanistan on the ground and the UAE, to our bases.

We cannot keep operating on an outdated understanding of conflict with traditional armed force structures operating simply within the bounds of the traditional notion of states, particularly with groups like Daesh, which operates across traditional state borders. Otherwise, we will be constantly playing catch-up in a legislative sense. This, therefore, cripples our defence forces due to an inaccurate perspective of the nature of conflict.

Going to the substance of this bill, it will ensure that the changing nature of conflict does not escape our legislative definitions. Prior legislation left our Defence Force and our Defence personnel in a legal grey area, which was restrained by our domestic Criminal Code. This bill goes to the crux of the matter by amending the Criminal Code Act 1995. It makes the distinction in domestic laws between civilians and organised armed groups. This is a distinction which already exists in international law. It applies in the context of non-international armed conflicts as well as regular armed conflicts—that is, a conflict that involves one or more non-state organised armed groups. It is, indeed, a thing of recent times not to be simply facing a state or state-sponsored enemy. An organised group by definition is one which at least has a minimal degree of organisation. It has some kind of command structure or hierarchy. Its existence forms part of a collective purpose that is related to the broader hostilities and involves the use of force to achieve its purposes. It also incorporates a sufficient connection to non-international conflicts and can exist within a larger entity.

To make sure that a person cannot be charged with domestic law offences in the incident of a death of or an attack on a member of an organised armed group, even if they are not taking a direct part in the hostilities, is a key aspect of this bill. With Daesh, we see an ideological threat to us, our allies and those civilians and others within the countries in which Daesh operates. It is key not only to combat those who are targeting people on the ground in terms of combatants but also to those members of the organisations who might, for example, form the administrative wing and assist those fighters on the ground, who may not be technically fighting but are enabling the conflict aspects of the organised armed groups—for example, the training of suicide bombers, those recruiting fighters, those involved in propaganda or logistics, those who manage social media propaganda, where we have seen Daesh been particularly active on Twitter and other platforms, or those in weapons and ammunition transfer or production.

The second important aspect of this bill is the protection of civilians. The bill aligns Australian domestic law with the approach and view of international law when viewed in the context of the international humanitarian principle of proportionality. The principle of proportionality, according to the International Committee of the Red Cross, is:

Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited.

As Minister Dutton noted in his speech with respect to this bill:

The principle prohibits attacks which are expected to cause incidental loss of life or injury to civilians that would be excessive in relation to the concrete and direct military advantage anticipated.

So this bill does not reduce protections for civilians, and it is definitely important to note that. The amendments to distinguish civilians from organised armed groups, under Australian domestic law, are an important aspect of this bill. Existing protections for civilians remain the same, including for medical people, religious people and those not involved in combat. It maintains prohibitions against deliberate targeting of civilians, and this is a fundamental principle of international humanitarian law.

The amendments reflect international humanitarian law stating that civilian death or injury, within the principle of proportionality, do not incur charges of war crimes, including of murder. To reiterate the concept of proportionality regarding civilians, the bill actually concerns where civilian deaths or injury are the result of an attack on a military objective, launched in circumstances where the decision-makers and personnel did not reasonably expect the attack would cause incidental civilian death or injury that is excessive in relation to the concrete and direct military advantage anticipated. This is part of the aspect in terms of protection of civilians.

Having previously worked in Kosovo in the former Yugoslavia as an international lawyer on property rights to do with people who lost possession of their property due to the war, I saw the direct impact of war crimes, as well as crimes against civilians, and the impact of breaches to international humanitarian law. It is definitely important, particularly in the aftermath of conflict, to ensure that laws enable the targeting of combatants while protecting civilians and ensuring proportionality.

This bill will ensure minimal impact on genuine civilians. It is about ensuring protections do not apply to members of organised armed groups, while at the same time ensuring the adequate protection of civilians. It amends division 268 to provide an express recognition of the distinction between civilians and organised armed groups. It is legally relevant and compatible with human rights and freedoms that are recognised and declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The bill ensures that Australia is endorsing and codifying at the domestic level the position of international humanitarian law on the subject of conflict and proportionality, ensuring that we can target both state combatants as well as those for armed groups and non-state actors, including Daesh.

Realistically, this bill will ensure that our combatants on the ground, including those such as Major Rob Marlow, who is with me this week, can operate while ensuring that they are in compliance with both international and domestic law. So they can directly combat the forces of Daesh and combatants on the ground, while at the same time protecting civilians. It is in exceptional circumstances, of course, that Australia will owe human rights obligations beyond its territory, particularly when this bill operates extraterritorially.

I personally would like to thank the committee again for their wonderful work on this bill, particularly the work of Mr Michael Sukkar as well as Minister Dutton and others who have had a say directly in the implementation of this bill. I look forward to it passing the chamber so that it will ensure our ADF personnel can operate in the field of armed conflict and ensure that they are safe and protected in doing so, whether it is Major Rob Marlow or the many other ADF personnel. I look forward to this bill passing the House and to the implementation of this bill in domestic law, ensuring that we are in compliance with our international obligations.

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