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

Without reflecting on the vote that has just occurred, I do want to respond to something that the Attorney-General said, and that is that he either misinterpreted or misrepresented Professor Saul's advice. Attorney, you noted the difference between legal treatment of organised armed groups and legal treatment of armies, but what you failed to do was mention that this can be justified because organised armed group members not involved in conflict could actually be civilians. For example, they might be forced into conflict. I just wanted to place that very clearly on the record so that it was a matter of public record in the context of this debate, and also to say how disappointed we are that a basic transparency measure has been rejected by the Senate.

All that our second reading amendment would have done was to call on the government, where ADF operations result in civilian causalities, to publish a regular report detailing certain specific matters associated with those casualties, including the number of civilian causalities. What is so extraordinary about publishing to the Australian people on a regular basis the number of civilian casualties that have been caused by Australian Defence Force?

Alex Gallacher (SA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Brandis, on a point of order.

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

Senator McKim is debating the second reading amendment which has just been voted on and defeated. This is now the committee stage of the bill. There are three committee stage amendments that have been moved by the Greens. Senator McKim should be addressing the committee stage of the bill, not trying to redebate a debate on which the senators just voted.

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

On that point of order, to assist the Attorney-General and the committee, I will now be moving directly to my amendments. Unless you feel the need to make a ruling, I intend to do just that. By leave—I move Australian Greens amendments (1), (2), (3) and (4) on sheet 7988 together:

(1) Schedule 1, item 2, page 3 (line 17), after "who", insert "are not performing a continuous combat function or".

[aligning offences with international humanitarian law]

(2) Schedule 1, item 4, page 3 (line 31), after "who", insert "are not performing a continuous combat function or".

[aligning offences with international humanitarian law]

(3) Schedule 1, item 6, page 4 (line 13), after "who", insert "are not performing a continuous combat function or".

[aligning offences with international humanitarian law]

(4) Schedule 1, item 7, page 4 (line 18), after "person", insert "performing a continuous combat function".

[aligning offences with international humanitarian law]

As I indicated in my second reading speech, this is the amendment that we believe is in line with Professor Saul's recommendation to the parliamentary joint committee, to make it clear that only those serving a continuous combat function are members of an armed group. As I said in my second reading contribution, the spirit of international humanitarian law is about protecting civilians. We still maintain, notwithstanding the Attorney's assurances, that this bill seeks to lower the current level of legal protection of potential targets of Australia's military, thereby increasing the likelihood that civilians will be killed, even if they are killed unintentionally.

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

Dealing with the four amendments on sheet 7988, the government does not accept the amendments. The amendments in these terms were considered and rejected by the PJCIS, which concluded that the approach taken in the bill and the explanatory memorandum, in which a practicable definition of membership is applied to a constrained definition of an organised armed group, provides appropriate protection for civilians whilst also maintaining the ADF's capacity to strike legitimate military targets.

As I said, Senator McKim, in winding up the second reading debate, the continuous combat function test, which is what was recommended by Professor Saul, produces an inequity in the law. An attack on a member of an organised armed group with no continuous combat function is prohibited, while a member of a state's armed forces who performs no combat-related duties can be attacked at any time. The bill aims to treat organised armed groups as analogous with state armed forces for the purposes of targeting. As the PJCIS has noted, this approach aligns with the interpretation of international humanitarian law also adopted by our key allies.

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

This is not an amendment the opposition will support. We believe the bill appropriately ensures Australia's domestic laws are consistent with changes in international law in relation to the treatment of members of organised armed groups in non-international armed conflict.

The PJCIS did consider the issue that Senator McKim has raised. It is the case that in his submission to the PJCIS, Professor Saul suggested that there should be a continuous-combat-function-based test for membership of an organised armed group. However, the PJCIS considered that the approach taken in the bill, which has a practicable definition of membership as applied to a constrained definition of an organised armed group, will provide appropriate protection for civilians whilst also maintaining the capacity to strike against legitimate military targets. It will also harmonise Australian law with the interpretation of international humanitarian law applied by our key coalition partners and allies.

Question negatived.

Nick McKim (Tasmania, Australian Greens) Share this | Link to 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.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to 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.

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

The opposition will be opposing the amendments for the same reasons that have been outlined by the Attorney for the government. This matter of proportionality was considered by the committee. The Attorney-General's Department advised that the bill reflects the Rome statute in relation to international armed conflict—namely, that the obligation exists at the launching of the attack. The committee did note that the drafting of the bill intentionally reflects and deliberately does not go beyond the Rome statute provisions in relation to international armed conflict.

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

I will be very brief here. I thank the Attorney for informing the Senate, to paraphrase him, that the ADF does act proportionally at all times. That paraphrases what he said, but I believe it is an accurate reflection of what he said.

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

Yes.

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

I will simply make this point: if that is the case, what is wrong with enshrining it in legislation? If that is what the ADF do anyway, why wouldn't we require them to do it? I just simply make that point and urge the Senate to support the Greens amendments.

Question negatived.

Bill agreed to.

Bill reported without amendments; report adopted.