George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

The government does not accept the proposed amendments. The amendments in these terms were considered and rejected by the PJCIS. The text of the bill is consistent with customary international law and reflects the Rome statute offence of intentionally launching in an international armed conflict an attack which may be expected to be disproportionate.

This has already been implemented by section 268.38(1) of Division 268 of the Criminal Code, which makes it an offence in an international armed conflict to the launch an attack that will cause death or injury to civilians that is excessive in relation to the concrete and direct military advantage anticipated. I am advised that it is also consistent with rule 14 of the International Committee of the Red Cross's customary international humanitarian law study.

As explained by Major-General Frewen of the Department of Defence during the PJCIS hearing, the ADF would observe proportionality throughout all stages of an operation as it unfolds, not merely in relation to the launch of an attack. So, once again, Senator McKim is wrong in law. His speech disregards the existing provision of section 268.38(1) of the code. The amendments will be opposed by the government.