SENATE

Thursday, 13 October 2016 SENATE 29
circulated in my name, to the motion that the report be adopted. The amendment provides that the Criminal Code
Amendment (War Crimes) Bill 2016 be referred to the Foreign Affairs, Defence and Trade Legislation Committee
for inquiry and report by the first sitting day of 2011.
We attempted last night to refer this bill to the Foreign Affairs, Defence and Trade Legislation Committee. The
reasons for referral are grave. We are astonished that the committee did not support it, because we think this bill
has changes that deserve public scrutiny. We are unaware of any consideration of this bill in public and we
understand that the last time the war crimes offences incorporated in domestic criminal law were amended was in
2002.
The changes proposed in this bill seriously alter the governance of ADF personnel in combat and change the
definition of a war crime. This is an issue that has just recently broken as a story on radio, with the internal
Defence inquiry into potential war crimes on foot at present. This is a highly charged, complex topic and there is a
need to hear from the ADF about why such changes are needed and what actions they are trying to take that are
being prevented by existing war crimes legislation. Parliament should have a greater role in debating the use of
military force and the implications of those deployments. These are some of the most important decisions a nation
can make, and that is what parliament should be for.
Australian forces operate under much more stringent rules of engagement than many of our allies, including the
US. Anything that creates a risk of changing that needs to be carefully scrutinised. The announcement is also of
concern since the Criminal Code was developed to reflect international law, and the extent to which Australia is
following a dangerous precedent, set by the US, to expand international law's permissiveness around targeted
killing must be explored. We also feel it is necessary to determine exactly what constraints the Australian Defence
Force believes exists and who is in the list of persons not involved in hostilities, including civilians, medical
personnel or religious personnel who not taking an active part in hostilities. Recent counterterrorism and national
security views do not consider war crimes offences.
It is also of grave concern that proposed amendments did not arise from the recommendations of various recent
reviews of national security and counterterrorism legislation and in fact appear to be materially different to the
recommendations made by both the former INSLM and the COAG review of counterterrorism laws in 2013. We
are aware of grave concerns about this bill from experts on the ground in actual war zones and protracted conflicts
around the world in which we are implicated. This involves the International Committee of the Red Cross and
Medecins San Frontieres.
For these reasons we strongly implore the government and the opposition to allow a full, thorough, public
review of this legislation, and we believe the most appropriate committee therefore is the Foreign Affairs, Defence
and Trade Legislation Committee.
The PRESIDENT: Thank you, Senator Siewert. Just to clarify: you did say 'the first sitting day of 2011'. I
presume you meant 2017?
Senator SIEWERT: Yes, 2017; I beg your pardon.
The PRESIDENT: Thank you. The question before the chair now is that the amendment moved by Senator
Gallagher be agreed to.
Question agreed to.
Senator SIEWERT: I move:
At the end of the motion, add, "and,
(1) in respect of the Criminal Code Amendment (War Crimes) Bill 2016 the provisions of the bill be referred immediately to
the Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report by first sitting day of 2017."
Question negatived.
The PRESIDENT: The question now is that the motion moved by Senator Bushby be agreed to.
Question agreed to.
BUSINESS
Rearrangement
Senator FIFIELD (Victoria—Manager of Government Business in the Senate, Minister for Communications
and Minister for the Arts) (12:13): I move:
That:
(a) government business orders of the day as shown on today's order of business be considered from 12.45 pm today; and
(b) government business be called on after consideration of the bills listed in paragraph (a) and considered till not later than
2 pm today.
CHAMBER