Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

I rise to speak on the Criminal Code Amendment (War Crimes) Bill on behalf of the opposition. We will be supporting this bill, and we recognise the importance, as I previously indicated today, of seeking to work in a bipartisan fashion on national security matters.

The bill before us aims to ensure that Australia's domestic laws are consistent with changes in international law in relation to the treatment of members of organised armed groups in international armed conflict. This will reduce legal uncertainty for our armed forces. Our forces should not have to face such uncertainty when engaging with nonstate armed groups, such as Daesh, during armed conflict. Contemporary international conflict has seen the nonstate actors, such as Daesh, become a significant threat to our national security.

This bill provides the legal certainty needed for the ADF to target members of organised armed groups with lethal force without the risk of potentially, and I stress potentially, falling foul of Australia's domestic law. The bill amends the Criminal Code at division 268, which concerns offences in the area of genocide, crimes against humanity, war crimes and crimes against the administration of justice in the ICC. These are changes that will clarify that these offences will only apply to personnel affected who are:

… neither taking … part in 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—

affected—

… persons are neither—

active in—

… hostilities nor are members of an organised armed group.

Other parts of this bill amend sections of the Criminal Code which apply proportionality, which is a principle of international law, in relation to attacks on military objectives in non-international armed conflict. These accompany other small amendments reflecting progress in international law.

As with other bills relating to national security, including the Criminal Code Amendment (High Risk Terrorist Offenders) Bill, which was considered this morning by the Senate, the Parliamentary Joint Committee on Intelligence and Security, of which I am a member, has thoroughly scrutinised this bill. I would note other members of this committee include my Labor colleague Mr Kelly, the member for Eden-Monaro, who has expertise in international law as a distinguished former member of the Australian Army Legal Corps. The committee took evidence from a range of experts, including professors Tim McCormack and Ben Saul. AGD, the Attorney-General's Department, and DoD, the Department of Defence, also provided evidence to the committee.

One of the issues the committee considered was the meaning of the term 'members of an organised armed group'. Such groups can often contain a number of different actors, including support personnel and administrative support, in addition to combatants. Nonstate groups, by their very nature, are formed of different kinds of personnel than national armies, often not as organised or as professional—although one would suggest that Daesh is an exception to this proposition. Professor Saul, in his evidence, suggested that the definition of 'members of an organised armed group' should be defined as 'those with a continuous combat function within that group'.

Australia's key coalition partners and allies already operate in accordance with international law. As I said, this bill extends the provisions of the Criminal Code to ensure they are consistent with international law. It recognises that organised armed groups are on an equal footing with state armed forces and recognises that members of those groups, whether acting as direct combatants, providing combat service support or similar, are all contributing to the efforts of those groups and thus ought not be given the same protection as civilians in armed conflict. The explanatory memorandum accompanying this bill explains that 'organised armed group' is to be interpreted in a constrained way. This makes sure that persons in civilian-type functions in territory controlled by such a group will not be considered members of the group.

The battlefields of the 21st century are far less defined and rigid than were conflicts in the past. Such conflicts are not constrained by state borders and national jurisdictions. We face scenarios that transcend national borders. We face scenarios with nonstate groups originating and operating in multiple states. International law has developed a response to these dynamics and to regulate the conflicts which we continue to face. It is important that our domestic laws adapt to these changes in international law.

I want to take this opportunity to again recognise the admirable work of Australia's armed forces. All of us in this place support the work of Australia's Defence Force personnel. We continue to have the second largest on-the-ground presence in the fight against Daesh, after the United States. It is a contribution that is recognised by coalition partners. We are combating Daesh at its source to make Australian shores safer. This legislation provides legal certainty for our forces engaged in Iraq and Syria and allows them to do their job properly. We recognise and thank our armed forces for their continued service and courage for the Australian people.

I again highlight the work of the Parliamentary Joint Committee on Intelligence and Security and particularly acknowledge the work of the secretariat. They produce an enormous amount of work on highly difficult, complex and nuanced matters. Some of the bills that are before the committee, whilst they may not be unrivalled in terms of their complexity, are certainly highly complex. They have been able to hold five inquiries and prepare an equal number of reports in a very short period.

I again note that we have taken a bipartisan approach on these matters and will continue to do so. We have reached agreement as a committee on a number of difficult matters, and I want to recognise the work of my fellow committee members in that. I look forward to working in a cooperative manner with the government on matters of national security and I commend the bill to the Senate.