Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

by leave—I move Australian Greens amendments (1), (2), (3) and (4) on sheet 7989 together:

(1) Schedule 1, item 8, page 5 (line 9), after "launched", insert "and during the attack".

[aligning proportionality with international humanitarian law]

(2) Schedule 1, item 9, page 5 (line 23), after "launched", insert "and during the attack".

[aligning proportionality with international humanitarian law]

(3) Schedule 1, item 10, page 6 (line 7), after "launched", insert "and during the attack".

[aligning proportionality with international humanitarian law]

(4) Schedule 1, item 11, page 6 (line 22), after "launched", insert "and during the attack".

[aligning proportionality with international humanitarian law]

As I flagged in my second reading speech, these amendments go to the proportionality principle. Proportionality requires that any attack must not cause civilian death or injury that would be excessive in relation to the military advantage anticipated. Again, I want to quote from Professor Saul who says that the proportionality principle is:

… not confined to ‘the time the attack was launched’ (as per the Bill’s clauses) but is rather a continuing obligation that endures throughout an attack.

I did give an example—admittedly, a hypothetical example—of an attack on a bridge where at the time the attack is authorised it seems unlikely that there will be any civilian casualties but then shortly after the attack is launched a school bus full of schoolchildren drives over the bridge. I made the point that if that attack can be aborted it should be.

I am not suggesting that the attack would not be aborted in the absence of the amendments that we are moving. I would hope that any reasonable person in the defence forces would abort the attack in the circumstances that I have outlined, all other things being equal. However, I make the point that international humanitarian law as interpreted by the International Committee of the Red Cross says that the attack should be aborted and we believe that it is not unreasonable in those circumstances to attempt to enshrine the matter through these amendments that we are proposing in the legislation that we are debating.