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

The short answer is no. I will now ask you to endure the longer answer. The government does not consider that a defence that applies to mere participation accurately gives effect to the convention. Such an amendment would therefore be inconsistent with the purpose of the bill, which is to give effect to the convention. The convention does not prohibit mere participation or unintended or inadvertent participation in acts by a non-state party that would be prohibited to a state party. The bill uses the same language as the convention to ensure that all conduct that is prohibited by the convention is the subject of a criminal offence under Australian law. Further, the term 'mere participation' is not defined and would be subject to interpretation.

Creating a defence for mere participation ignores the limitations placed by the convention on the kinds of activities that can be undertaken in the course of military cooperation and operations with countries not party to the convention. Creating a defence for mere participation also risks removing criminal liability for a broader range of conduct than is permitted by the convention.

Senator, when considering your point about the civil society contribution here, I would only say this. Clearly, those civil society entities that you refer to have campaigned on this issue with zeal and passion for a long time. The government, in supporting the convention and bringing this legislation to the parliament, does, for the most part, support both their intent and their efforts. I guess it is not a surprise that groups like that might take a more, dare I say it, puritanical view about this legislation. But, fundamentally, it is my view that this legislation has struck the right balance and that, working in partnership with those civil society elements into the future, we will together do all we can to make this convention the international norm for all states.