Speech on Criminal Code Amendment (War Crimes) Bill 2016

House of Representatives, Canberra.

Mr DREYFUS (IsaacsDeputy Manager of Opposition Business) (17:59): Labor takes a bipartisan approach to all matters of national security. We will always act to ensure that our police and armed forces, both domestically and abroad, have the powers they need to combat terrorism.

The Criminal Code Amendment (War Crimes) Bill 2016 updates Australian domestic law to reflect changes in international law in relation to the treatment of members of organised armed groups in non-international armed conflict. It reduces legal uncertainty for our armed forces overseas when they engage with non-state armed groups such as ISIL. It is an unfortunate reality that, in the last few decades, groups like ISIL, rather than hostile nations, have become the main threat with which we are forced to engage overseas. It has taken a while for international and domestic legal systems to catch up with that change.

These amendments provide legal certainty to members of the Australian Defence Force so that they can target members of organised armed groups with lethal force without the risk of potentially committing an offence under Australian domestic law. In particular, this bill amends division 268 of the Criminal Code, which provides for offences in relation to genocide, crimes against humanity, war crimes and crimes against the administration of justice in the International Criminal Court. If passed, it will mean that war crimes offences only apply if the person or persons affected are neither taking an active part in the 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 person or persons are neither taking an active part in the hostilities nor are members of an organised armed group.

Other parts of the bill amend sections of the Criminal Code which apply the international humanitarian law principle of proportionality in relation to attacks on military objectives in non-international armed conflicts. Other small amendments have been made to reflect changes to international law.

This bill was thoroughly scrutinised by the Parliamentary Joint Committee on Intelligence and Security, the PJCIS, as with all national security bills which pass through this parliament. The PJCIS was fortunate to have amongst its members the member for Eden-Monaro who, as a distinguished former member of the Australian Army Legal Corps, has specific expertise in relevant areas of international law. I thank him for his counsel in this matter. The PJCIS heard evidence from the Attorney-General's Department, the Department of Defence and eminent international lawyers Professor Tim McCormack and Professor Ben Saul.

One point of concern for the committee was to ensure that there is a clear understanding of what is meant by 'members of an organised armed group'. Such groups can often contain a number of different actors, not just combatants—support personnel, for instance, and even administrative personnel. Non-state groups, by their nature, are formed of very different kinds of personnel when compared to national armies—they are often not so organised or professional in their constitution. However, it is worth noting that this would not appear to be the case when it comes to ISIL, which is just as highly organised as some armies.

Professor Saul noted that there was some controversy in international law as to the definition of 'members of an organised armed group' and suggested that it be defined as 'those with a continuous combat function within that group'. The committee's report notes that, while the most appropriate approach to determining membership of an organised armed group continues to be debated, Australia's key coalition partners and allies already operate in accordance with the international law which this bill will extend to cover Australian forces. This approach aims to treat organised armed groups on an equal footing with state armed forces and recognises that members of those groups, whether they are direct combatants providing combat support or providing combat service support, are all contributing to the military effort of the group and should not be given the same protection as civilians in an armed conflict.

The explanatory memorandum to the bill also makes clear that the term 'organised armed group' is to be interpreted in a constrained way, such that persons performing civilian-type functions in territory controlled by an organised armed group would not be considered to be members of that group for the purpose of the legislation. This is a complex area of international law, and it is right that a nuanced approach is taken.

The rise of ISIL, and al-Qaeda before it, has changed much about our world. It has made global theatres of conflict far less rigid and more difficult to define. It means conflicts crisscross state borders and national jurisdictions, drawing in far more players and introducing highly complex dynamics. Such changes have elevated the role of international law as a means of regulating conflict. This is a necessary outcome of conflicts no longer taking place country to country but country to non-state-armed group, with many different theatres of conflict. Therefore it is right and necessary that Australian law is kept up to date with international law.

Our armed forces have been doing a superb job in this new and uncertain world. Outgoing United States President Barack Obama praised the 'remarkable' work of our armed forces, noting that, after the United States, Australian forces are the largest on-the-ground presence in the fight against ISIL. Labor supports our armed forces in this important work. By fighting terror at its source, they are helping to keep Australians safe. It is right that, when Australian servicemen and women engage in armed conflict against ISIL and other like groups overseas, they are given legal certainty about what they are doing. They cannot do their job properly, if there is the remotest concern about the legality under Australian law. I am pleased that this bill will offer them that certainty.

In recent years in Australia, notably under the prime ministership of the now member for Warringah, the debate about counterterrorism measures in this country had a tendency to reach a hysterical fever pitch. Instead of looking after the best interests of our country, the government seemed far more interested in playing wedge politics. I am happy to say that it appears that time has passed under the current prime ministership, and a calmer and bipartisan attitude to matters of national security has been resumed. Among all the storm and fury, it is important to note that our armed forces have been getting on with the job overseas. We should be very proud of what they have achieved so far and continue to achieve. Labor will support them every step of the way.

In the short number of sitting weeks allocated to the 45th Parliament so far, the Parliamentary Joint Committee on Intelligence and Security has handled five inquiries and produced the same number of completed reports. Some of these reports have been on highly complex bills, unprecedented in Australia or even the developed world. It speaks volumes for the work ethic and skill of the PJCIS secretariat that such a great amount of work has been completed in such a short time.

As it did in the 44th Parliament, Labor has taken a steadfast bipartisan approach to these bills. We have worked cooperatively with the new membership of the Parliamentary Joint Committee on Intelligence and Security, and its new chair the member for Deakin, to come to agreement on many difficult issues. It is an effort that I am proud of, and I think that other members of the committee can be proud too. The agreement reached on the passage of this bill is one of the fruits of this cooperative working relationship. I, on behalf of Labor, will work to ensure that relationship continues. I commend the bill to the House.