Rachel Siewert (WA, Australian Greens) Share this | Hansard source

I indicate that the Greens will support that amendment, though I also give notice that I will be moving an amendment, which has already been circulated in my name, to the motion that the report be adopted. The amendment provides that the Criminal Code Amendment (War Crimes) Bill 2016 be referred to the Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report by the first sitting day of 2011.

We attempted last night to refer this bill to the Foreign Affairs, Defence and Trade Legislation Committee. The reasons for referral are grave. We are astonished that the committee did not support it, because we think this bill has changes that deserve public scrutiny. We are unaware of any consideration of this bill in public and we understand that the last time the war crimes offences incorporated in domestic criminal law were amended was in 2002.

The changes proposed in this bill seriously alter the governance of ADF personnel in combat and change the definition of a war crime. This is an issue that has just recently broken as a story on radio, with the internal Defence inquiry into potential war crimes on foot at present. This is a highly charged, complex topic and there is a need to hear from the ADF about why such changes are needed and what actions they are trying to take that are being prevented by existing war crimes legislation. Parliament should have a greater role in debating the use of military force and the implications of those deployments. These are some of the most important decisions a nation can make, and that is what parliament should be for.

Australian forces operate under much more stringent rules of engagement than many of our allies, including the US. Anything that creates a risk of changing that needs to be carefully scrutinised. The announcement is also of concern since the Criminal Code was developed to reflect international law, and the extent to which Australia is following a dangerous precedent, set by the US, to expand international law's permissiveness around targeted killing must be explored. We also feel it is necessary to determine exactly what constraints the Australian Defence Force believes exists and who is in the list of persons not involved in hostilities, including civilians, medical personnel or religious personnel who not taking an active part in hostilities. Recent counterterrorism and national security views do not consider war crimes offences.

It is also of grave concern that proposed amendments did not arise from the recommendations of various recent reviews of national security and counterterrorism legislation and in fact appear to be materially different to the recommendations made by both the former INSLM and the COAG review of counterterrorism laws in 2013. We are aware of grave concerns about this bill from experts on the ground in actual war zones and protracted conflicts around the world in which we are implicated. This involves the International Committee of the Red Cross and Medecins San Frontieres.

For these reasons we strongly implore the government and the opposition to allow a full, thorough, public review of this legislation, and we believe the most appropriate committee therefore is the Foreign Affairs, Defence and Trade Legislation Committee.