David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Hansard source

Alas, it is never as simple as a yes or no, Senator. I think we would be deeply remiss if we started to go through imaginary and hypothetical military circumstances and a group of civilians like us started to try to define these matters. Senator, let me take you to the convention and say that it is important that the convention is read as a whole and given its ordinary meaning, as it is appropriate to when speaking of international treaties. It is important to note that subarticle 3 of article 21 creates an exception to article 1, but then subarticle 4 limits the scope of the exception. By limiting the scope of the exception it makes it clear that certain things that would be prohibited, but for the fact of the exception created by subarticle 3, are not prohibited because subarticle 4 picks up some of the conduct in article 1 and makes it clear that, notwithstanding the general exception, a country cannot engage in that conduct. So, when the convention is read and taken as a whole, it is the government's view that the convention itself does permit certain conduct and that what is prohibited is more narrow than the general prohibition in article 1. That is faithfully picked up in the bill. So it is the government's view that that means that the conduct found in subarticle 4 of article 21 remains prohibited, notwithstanding the otherwise general exception, but that other conduct is not prohibited.