Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

Labor takes a bipartisan approach to all matters of national security. We will always act to ensure that our police and armed forces, both domestically and abroad, have the powers they need to combat terrorism.

The Criminal Code Amendment (War Crimes) Bill 2016 updates Australian domestic law to reflect changes in international law in relation to the treatment of members of organised armed groups in non-international armed conflict. It reduces legal uncertainty for our armed forces overseas when they engage with non-state armed groups such as ISIL. It is an unfortunate reality that, in the last few decades, groups like ISIL, rather than hostile nations, have become the main threat with which we are forced to engage overseas. It has taken a while for international and domestic legal systems to catch up with that change.

These amendments provide legal certainty to members of the Australian Defence Force so that they can target members of organised armed groups with lethal force without the risk of potentially committing an offence under Australian domestic law. In particular, this bill amends division 268 of the Criminal Code, which provides for offences in relation to genocide, crimes against humanity, war crimes and crimes against the administration of justice in the International Criminal Court. If passed, it will mean that war crimes offences only apply if the person or persons affected are neither taking an active part in the hostilities nor are members of an organised armed group, and the perpetrator knows of or is reckless as to the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group.

Other parts of the bill amend sections of the Criminal Code which apply the international humanitarian law principle of proportionality in relation to attacks on military objectives in non-international armed conflicts. Other small amendments have been made to reflect changes to international law.

This bill was thoroughly scrutinised by the Parliamentary Joint Committee on Intelligence and Security, the PJCIS, as with all national security bills which pass through this parliament. The PJCIS was fortunate to have amongst its members the member for Eden-Monaro who, as a distinguished former member of the Australian Army Legal Corps, has specific expertise in relevant areas of international law. I thank him for his counsel in this matter. The PJCIS heard evidence from the Attorney-General's Department, the Department of Defence and eminent international lawyers Professor Tim McCormack and Professor Ben Saul.

One point of concern for the committee was to ensure that there is a clear understanding of what is meant by 'members of an organised armed group'. Such groups can often contain a number of different actors, not just combatants—support personnel, for instance, and even administrative personnel. Non-state groups, by their nature, are formed of very different kinds of personnel when compared to national armies—they are often not so organised or professional in their constitution. However, it is worth noting that this would not appear to be the case when it comes to ISIL, which is just as highly organised as some armies.

Professor Saul noted that there was some controversy in international law as to the definition of 'members of an organised armed group' and suggested that it be defined as 'those with a continuous combat function within that group'. The committee's report notes that, while the most appropriate approach to determining membership of an organised armed group continues to be debated, Australia's key coalition partners and allies already operate in accordance with the international law which this bill will extend to cover Australian forces. This approach aims to treat organised armed groups on an equal footing with state armed forces and recognises that members of those groups, whether they are direct combatants providing combat support or providing combat service support, are all contributing to the military effort of the group and should not be given the same protection as civilians in an armed conflict.

The explanatory memorandum to the bill also makes clear that the term 'organised armed group' is to be interpreted in a constrained way, such that persons performing civilian-type functions in territory controlled by an organised armed group would not be considered to be members of that group for the purpose of the legislation. This is a complex area of international law, and it is right that a nuanced approach is taken.

The rise of ISIL, and al-Qaeda before it, has changed much about our world. It has made global theatres of conflict far less rigid and more difficult to define. It means conflicts crisscross state borders and national jurisdictions, drawing in far more players and introducing highly complex dynamics. Such changes have elevated the role of international law as a means of regulating conflict. This is a necessary outcome of conflicts no longer taking place country to country but country to non-state-armed group, with many different theatres of conflict. Therefore it is right and necessary that Australian law is kept up to date with international law.

Our armed forces have been doing a superb job in this new and uncertain world. Outgoing United States President Barack Obama praised the 'remarkable' work of our armed forces, noting that, after the United States, Australian forces are the largest on-the-ground presence in the fight against ISIL. Labor supports our armed forces in this important work. By fighting terror at its source, they are helping to keep Australians safe. It is right that, when Australian servicemen and women engage in armed conflict against ISIL and other like groups overseas, they are given legal certainty about what they are doing. They cannot do their job properly, if there is the remotest concern about the legality under Australian law. I am pleased that this bill will offer them that certainty.

In recent years in Australia, notably under the prime ministership of the now member for Warringah, the debate about counterterrorism measures in this country had a tendency to reach a hysterical fever pitch. Instead of looking after the best interests of our country, the government seemed far more interested in playing wedge politics. I am happy to say that it appears that time has passed under the current prime ministership, and a calmer and bipartisan attitude to matters of national security has been resumed. Among all the storm and fury, it is important to note that our armed forces have been getting on with the job overseas. We should be very proud of what they have achieved so far and continue to achieve. Labor will support them every step of the way.

In the short number of sitting weeks allocated to the 45th Parliament so far, the Parliamentary Joint Committee on Intelligence and Security has handled five inquiries and produced the same number of completed reports. Some of these reports have been on highly complex bills, unprecedented in Australia or even the developed world. It speaks volumes for the work ethic and skill of the PJCIS secretariat that such a great amount of work has been completed in such a short time.

As it did in the 44th Parliament, Labor has taken a steadfast bipartisan approach to these bills. We have worked cooperatively with the new membership of the Parliamentary Joint Committee on Intelligence and Security, and its new chair the member for Deakin, to come to agreement on many difficult issues. It is an effort that I am proud of, and I think that other members of the committee can be proud too. The agreement reached on the passage of this bill is one of the fruits of this cooperative working relationship. I, on behalf of Labor, will work to ensure that relationship continues. I commend the bill to the House.

Michael Sukkar (Deakin, Liberal Party) Share this | Link to this | Hansard source

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.

Mike Kelly (Eden-Monaro, Australian Labor Party) Share this | Link to 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.

Chris Crewther (Dunkley, Liberal Party) Share this | Link to 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.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Criminal Code Amendment (War Crimes) Bill 2016. I would particularly like to commend the contribution by the member for Eden-Monaro, and also the member for Isaacs. The member for Eden-Monaro is not only on the Joint Committee on Intelligence and Security, which has looked at this piece of legislation, but, from his previous life in the ADF as a colonel, is an internationally recognised expert on international humanitarian law. He has been in conflict zones and has had to make and advise on rules of engagement. When the member for Eden-Monaro speaks on this topic he is heard around the world by people who respect his analysis. I thank them for their contributions. I also point out that there is obviously a bipartisan approach to this piece of legislation, as is so often the case when it comes to defence matters.

It is the role of parliament to make sure that all of our federal laws are fit for purpose, that they address the mischief intended to be addressed, and that there are no unintended consequences when it comes to legislation passed by the Commonwealth parliament. This bill addresses an anomaly in the war crimes offences so that it will target only the mischief intended and cures a potential unintended consequence. Sadly, the current law has not kept up with the nature of global conflicts. Sadly, our Defence personnel are engaged in a different set of circumstances to those from 100 years ago, when people dug trenches and knew where the enemy was. There is an area of law that deals with this. Like state law or industrial law, which I used to practise in, there is, basically, law that deals with warfare or with international humanitarian law. Obviously, a law that simultaneously permits and regulates the use of force might sound bizarre to some people listening tonight, but military necessity and the principle of proportionality are designed to balance the existence of armed hostilities with consideration of humanity.

The Red Cross does a lot of work in this area. It was formed out of conflict. Right when the Red Cross was first formed, there was the realisation that people were dying after war for no good reason. Since then the Red Cross has done a lot of great work. I am one of the Parliamentary Friends of the Red Cross and I particularly point out the International Humanitarian Law magazine put out by the Australian Red Cross. In particular, I recommend 'Pen and Sword: Journalism and International Humanitarian Law' to the journalists in Parliament House. It raises some interesting questions.

International humanitarian law distinguishes between conflict between the armed forces of states—you might almost say traditional warfare—and conflicts in which one or more of the combatants are non-governmental. It also distinguishes between organised armed groups and civilians. This bill will ensure that Australia's domestic criminal laws with respect to war crimes are in line with the requirements of international humanitarian law. Our Defence personnel have been restricted in their operations overseas against non-government groups such as Daesh. Australia's allies, operating under international humanitarian law, have been able to operate freely against these Daesh targets. This bill before the chamber will address this anomaly by excluding from our domestic war crimes legislation criminal liability when organised armed groups are targeted by our Defence Force. It will ensure that organised armed groups do not benefit from the protections that are actually afforded to civilians. This will bring our domestic war crimes legislation in line with international humanitarian law derived from the Geneva Conventions and the Protocols Additional to the Geneva Conventions.

Could I particularly mention a former Labor minister, Robert Tickner, who is, I understand, in Geneva at the moment doing great work for the Red Cross. Obviously, the Red Cross is always neutral and has always received bipartisan support in this parliament.

The legislation before the House has reasonable objectives to ensure that our Defence personnel are protected. We are very lucky in this country. For most of us, if we see an Army vehicle driving down our streets, we are proud. If we see a RAAF plane, we are proud. If we see a naval vessel in our day-to-day lives, we are proud to see that. Our ADF makes us proud, not nervous. That is not the case in all other 200 countries around the world.

Deputy Speaker Buchholz, I particularly mention my hometown of St George—because I know of your connection with it—where ADFA recently undertook some graduate training that was like a hostage situation. I was talking to some friends from St George that were staying with me last week, and they said it was the best thing for the town. It was incredible; all these Army vehicles, and people had to play terrorists and victims. It was a great boost for the town's economy. Hopefully, ADF will recruit some personnel out of St George in the next little while, because the people were very impressed with the young men and women of ADFA—who are some of our nation's brightest—and the way they carried themselves in my hometown. Well done to those ADFA people, who I think will be graduating soon.

When we see our ADF personnel, our reaction is that we are proud of them. We always are, and I say hello to those people from our Defence Force that are in parliament this week as part of the parliamentary placement program. Hopefully, they are still keen to be associated with the parliament after seeing it up close. I think, sometimes when you see democracy up close, it might be like watching how to make a sausage. It might be tasty, but you do not want to look too closely at it, and I say that as the son of a butcher.

Nevertheless, we must remember the important and dangerous work that our ADF personnel do both here and in far-flung corners of the world. We should never be complacent about their service and never be complacent about our Defence Force. We need to look after them while they are serving, and I would also like to mention the legal officers that do much of that work. I have had some connections with them on the encouragement of the member for Eden-Monaro, who pointed out the great work that they do. It is a way to keep a lawyer's shingle ticking over. But part of modern warfare is to be able to understand the laws of engagement. It is not like 100 years ago on the Somme, when you were in a trench and you knew where the enemy was. Now, you might be making life and death decisions about something while sitting in Kansas looking at an image provided by a drone. You might be making decisions about civilians or making decisions about people that are not state entities, rather, they are groups that are using human shields. They are very difficult legal decisions, and legal advice needs to be given to the commanding officers. The modern commanding officer would have a very close relationship with their legal officer.

We need to look after them when they are serving and make sure they get the right equipment, the right advice and the right training. But also, we need to look after our service personnel when they return to our shores. I mention our Returned Services League and those other veterans' groups, like Soldier On, Legacy, the Vietnam Veterans Association and many others that do a wonderful job of supporting both current and ex-serving members of the Australian Defence Force and their families. In my electorate of Moreton, there are five RSL clubs: Sherwood/Indooroopilly, Salisbury, Stephens, Sunnybank and Yeronga/Dutton Park. They are all doing great work. I have spent quite a bit of time with these clubs over the years, as a member of parliament. I worked closely with them for the commemoration of the 100th anniversary of the Gallipoli landings. The RSL, as we all know, has a very proud tradition. It is one of our oldest national organisations, founded in 1916, so it is in its second 100 years of service to the people of Australia. As well as supporting and serving our ex-service men and women, the RSL promotes a secure, stable and progressive Australia. We are indebted to it for the services that it provides.

The orientation of Parliament House is towards the War Memorial, no doubt so that all members of parliament and senators are aware of the sacrifice of those that have come before. Two weeks ago we commemorated Remembrance Day in Moreton and around Australia. On 11 November 1918 the guns of the Western Front fell silent after more than four years of horrific continuous warfare. It is an important day when Australians of all races and creeds remember those who gave their lives for freedom—that horrible sacrifice of 60,000 Australian soldiers—and then the damage done after that war to numerous people, too many to count: people who did return, perhaps having lost limbs; the many families who lost family members; and the families of people who returned as well. There was horrific suffering.

I also attended a very special ceremony here at Parliament House with the Minister for Veterans' Affairs, where we commemorated not those who died in battle but those who died after returning. It was a very moving ceremony. I am sure the minister would agree. It was quite moving to place a poppy in a cross to commemorate those who took their own lives, sadly, upon returning. I know the minister is doing some good work in that area to look after those who return.

Modern warfare takes its toll on our defence personnel not only physically but also emotionally and psychologically. As I said, a decision might be made thousands of miles from where someone might die, but it still will take a toll on our ADF personnel and contractors and all sorts of people associated with modern warfare. Some returning service men and women, sadly, never recover, and some find it impossible to go on. We remembered, at the ceremony here in Parliament House, those men and women who could not find the will to go on, who were tormented by the horrors that they had seen fighting for our freedom, for our Australian way of life. It is important to do all we can to protect the men and women of Australia's defence forces, both while they are fighting abroad and when they return. This bill will help protect our brave men and women who are fighting abroad on our behalf, in conflicts that sometimes have no boundaries and against an enemy who is difficult to identify and, sadly, will do anything and will not respect international humanitarian law. I thank our ADF personnel for their service and commend this legislation to the House.

Gai Brodtmann (Canberra, Australian Labor Party, Shadow Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

We are witnessing a rapid transformation in the nature of armed conflict. The world looks very different to how it looked in 2002, when the existing Criminal Code provisions were enacted. We see it today in the rise of organised armed groups such as ISIS and the way these groups engage in non-international armed conflict. The world looks very different, and so do the laws that govern it. So it is appropriate that Australian law is updated in accordance with updates to international law.

The Criminal Code Amendment (War Crimes) Bill 2016 amends division 268 of the Criminal Code Act 1995 to align Australian domestic law with international laws governing the treatment of members of organised armed groups who participate in non-international armed conflicts. The bill recognises the distinction between a civilian and a member of an organised armed group. Members of an organised armed group do not benefit from the protections under international humanitarian law afforded to civilians or medical and religious personnel. These amendments today ensure that members of organised armed groups receive treatment equivalent to members of regular armed forces under the law.

These amendments are a reflection of what we have seen and experienced as a community since 2002, and there have been massive changes. We know we are in a different time, and this should be reflected in law. This distinction already exists in international humanitarian law. We should remove all doubt that it also exists in Australian domestic law. These amendments are not proposed with only current conflicts in mind. This is about setting a principal piece of legislation with which to go forward.

Of course, as with any legislation, it should reflect the time. When circumstances change, as always, so too should Australia's legal environment. And we should expect them to change, for the participants in conflict shape the nature of the conflict. We are seeing today armies at war with civilians and with civilisation. With ISIS, we have a flag in search of a nation. Its ambitions are destruction. Its enemies are modernity. Its weapons are anything and everything.

But there is a third front in ISIS's war, and it is one that does not get quite so much attention. Its fight is against the West and its fight is against the Muslim world, but its third fight is against female empowerment and all that it allows. Its fight is against women's access to education, women's freedom of association, women's freedom of religion, women's freedom of movement, women's freedom of speech—women's freedom. Its war is against women, and, in this war too, every weapon is fair game.

The 2015 ISIS manifesto 'Women in the Islamic State: Manifesto and Case Study' advises that the role of women is to 'remain hidden and veiled'. The manifesto declares that 'women gain nothing from the idea of their equality with men apart from thorns' and that they should focus on their 'divine duty of motherhood'. The same manifesto states that it is 'legitimate for a girl to be married at the age of nine' and that women should not get degrees. According to ISIS, women should only leave their homes in 'exceptional circumstances', such as committing jihad.

The United Nations estimates that ISIS has forced some 1,500 women, teenaged girls and boys into sexual slavery—these are old figures; I hate to think what sort of figures we are looking at now—but anecdotal evidence suggests that the true figure is far, far greater. The UN envoy on sexual violence in conflict found that girls from Iraq and Syria were made to engage in the most unspeakable acts of sexual violence. ISIS's justification for these acts, as outlined in its pamphlet—yes, that is right: a pamphlet—on female captives and slaves is that 'it is permissible to capture' and 'to have sexual intercourse' with 'unbelieving women'. Once captured, these unbelieving women can be bought and they can be sold, as—and I am quoting here from the pamphlet on female captives and slaves—'they are merely property, which can be disposed of.'

One so called 'unbelieving woman' is Nadia Murad. Nadia was 19 when her Yazidi village in Northern Iraq was captured by ISIS. Nadia watched, alongside her mother and sisters, as the men in the village—including her brothers—were brutally slaughtered. For the next eight months, Nadia was abused and she was raped by ISIS troops. She was held in captivity by 13 different 'owners'. Nadia, 19 years old, from a Yazidi village in Northern Iraq was held in captivity by 13 different 'owners'.

Nadia is a reminder of why it is important that we note this third front, the impact on women—and not because it is a new one. The Book of Lamentations recounts that: 'Women have been ravished in Zion, and virgins in the towns of Judah.' During the 15th and 16th centuries, throughout much of the world, the right to commit acts of sexual violence against the objects of one's conquest was considered a form of earned compensation.

The Second World War showed us a level of human tragedy that we have never seen. It was in this context that the character of sexual violence in conflict was altered, because it became mechanised then. To use one example, it is estimated that the Soviet army raped anywhere between one million and two million women in Eastern Europe and Germany during one year, 1945. So: the Soviet army raped one million to two million women in Eastern Europe and Germany during 1945; in one year, one army, one million women.

In the Bosnian War, rape was an official order. Rape camps were deliberately established. The reported aim of these camps was to impregnate the Muslim and Croatian women held captive. This occurred in the context of a patrilineal society, in which children inherit their father's ethnicity; hence, the 'rape camps' aimed at the birth of a new generation of Serb children. It was a tool of ethnic cleansing. It was a mode of genocide—and I use that word carefully, because, if what we are seeing today in Iraq and Syria constitutes genocide, we should call it out for what it is. It is a form of crime with a long history, and it is one that needs a new form of response. I propose that we prosecute the perpetrators.

This Friday marks the beginning of the 16 Days of Activism against Gender Violence. It will also be the launch of the 'Prosecute, don't perpetrate' campaign, which calls for an end to the impunity currently enjoyed by those who commit acts of sexual violence in the theatre of armed conflict. The 'Prosecute, don't perpetrate' campaign calls for the investigation and prosecution of sexual violence committed by Australians who have travelled to Iraq and Syria to fight with Daesh.

We know that Daesh has used sexual violence as a tactic of war. Sexual violence is a war crime, and we should treat it as such. The occurrence of systematic rape is well documented in Iraq and Syria. It is a crime against humanity; it is a crime against women; and we should treat it as such. The United Nations Human Rights Council has published reports of Daesh's intentions to impose: 'measures to prevent Yazidi children from being born'. This is genocide, and we should treat it as such. By some accounts—and we have heard quite a bit about it this week—over 100 Australians have travelled to Iraq and Syria to fight with Daesh and other extremist groups. We need to investigate and prosecute the sexual violence they have perpetrated as war crimes, crimes against humanity and genocide, for these are all crimes under Australian domestic legislation.

We also need to remind ourselves that sexual violence in conflict is not inevitable. I think that everyone just thinks that this is basically the by-product of war—the raping of women; the raping of small girls; the raping of small boys—and just thinks, 'Oh, gee; that's bad, but this is just a by-product of war.' We saw it with the Second World War. We saw it in Bosnia. It is not simply a sad consequence of war. It is how war is now being fought, and ISIS is using sexual violence as a weapon of war—as an orchestrated, coordinated, industrialised tactic of terror. It is a horrifying evolution of an age-old practice, and it is now the means to a very different end. And its use is a crime we cannot excuse.

I want to conclude by thanking a range of women who have been very active in this space for a very long time, who are still maintaining the rage and who are behind this campaign to prosecute, not perpetrate. I have met most of these women since I have been in the shadow Defence portfolio over the last four years. I have met most of them through the Australian Strategic Policy Institute, which has a number of seminars on women, peace and security and the range of UN resolutions that have emerged in this area.

It is very important that we keep discussing this issue and that we do not just sweep it under the carpet. It is important that we keep maintaining the rage about this issue, because it is not something that is going to go away by our basically just saying, 'Oh, sorry, but that is just a by-product of war; we're just going to have to put up with it.' It is unacceptable. As I said: women are being raped—and not just raped; enslaved. Nadia had—what was it?—13 'owners'. Small children—small girls and boys—are being raped and held as sex slaves, with 13 owners plus. It is unacceptable. It is brutal. It is hard to imagine the lives that these women are enduring under this hideous, monstrous existence.

I want to do a call-out to a number of people who have been very active in keeping this issue on the agenda and reminding us as leaders and as a community that we cannot take our eye off this issue. We do need to maintain our attention on this issue. I want to, first of all, thank Peter Jennings and his team at the Australian Strategic Policy Institute for having regular seminars on this issue. I was at a panel discussion probably a month ago where we had a woman who had just been involved in representing Australia on the UN 1325 and other resolutions. We also had Brad Orchard, from the Department of Defence, who is actually implementing the UN 1325 and other resolutions from the defence perspective.

We also had the wonderful Jennifer Wittwer, who is going to be our new representative in the UN, hopefully shortly. I understand she has had a bit of a bad bout with health but has recently got the all-clear. So she will, I hope, be winging her way to New York to be a fantastic representative for Australia in the very near future. I also want to thank Lisa Sharland, who has been very, very active in this space for a long time. She is probably one of Australia's leading experts on women, peace and security. She has worked on this issue in Africa, the United States, Europe and Asia. She is one of our leading experts here in Australia. Again, I want to thank her for educating me on this issue and constantly bringing to my attention the fact that we need to maintain the rage.

I also want to thank Susan Hutchinson for her continuing campaigning on this most crucial issue. I spoke about this issue yesterday and it was wonderful to have Susan in the gallery listening to the speech. She is an expert on women, peace and security and she has championed this issue with energy and dedication. She recognises, as I do, that asking for existing laws to be enforced should not be a controversial demand, should not really be much of a big ask. She recognises, as I do, that we should never excuse or tolerate incidents of sexual violence in armed conflict. She recognises, as I do, that we have the power to provide justice to the victims of these heinous crimes.

War crimes are criminalised in the Geneva Conventions Act 1957 and the War Crimes Act 1945. Genocide and crimes against humanity are outlawed in the International Criminal Court Act 2002. These laws need to be implemented. International law matters, and these laws need to be implemented. That is why we propose to amend the Criminal Code to better reflect it. We seek to harmonise international humanitarian law with Australian domestic law, because we recognise that the challenge we share is a common one.

Michael Keenan (Stirling, Liberal Party, Minister for Justice) Share this | Link to this | Hansard source

I thank all members who have participated in this debate on the Criminal Code Amendment (War Crimes) Bill 2016. National security does deserve a bipartisan approach from this parliament. To date, this parliament has provided that approach and I think it is a good reflection on the fact that, in this vitally important policy area, we can work together to make sure that Australia is as safe as we can possibly make it.

Passage of the Criminal Code Amendment (War Crimes) Bill 2016 will ensure that the Australian Defence Force can conduct targeted operations against organised armed groups, such as the military arm of Daesh, to the extent permitted by international humanitarian law. These amendments also provide important legal certainty for ADF personnel in undertaking those operations. As the Prime Minister outlined in the House today in his address to parliament on national security and counterterrorism, this bill is part of a suite of actions taken by the government to empower our agencies and our defence forces to keep us safe. The bill has been subjected to careful scrutiny by the Parliamentary Joint Committee on Intelligence and Security, which concluded that the amendments would provide appropriate protection for civilians, while maintaining the capacity to conduct operations against legitimate military targets.

I did not have the opportunity to listen to every contributor to this debate, although I did catch a lot of what the member for Canberra said. She reminded us about the barbarity of the enemy that we are facing and the sexual violence, the enslavement of women and men—imagine an organisation that has been brought back slavery on an industrial scale—and the crucifixions. I had a very productive meeting with the King of Jordan this afternoon and, during that meeting, I learnt that one of his pilots was put in a cage and burnt alive, and that that was then used as propaganda in the course of the Islamic State. They throw homosexuals from roofs if they are discovered. What they inflict on the populations that have been under their control is an affront to basic human decency.

We should be very proud of the fact that the Australian Defence Force is out there targeting them, killing them and ultimately defeating them. These are people who are pure evil. I do not say that in any hyperboles way; look at their actions. We do need to call it out for what it is and we should all join together to support the work that the ADF is doing. This bill makes sure that the ADF are not subject to any legal ramifications as a result of their very deliberate, targeted and effective actions in defeating this barbaric enemy.

I thank the House for the support that this bill has been given, and I appreciate that the House can come together to assist the passage of important amendments such as these.

Question agreed to.

Bill read a second time.