House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)

General Outline

1. The Bill amends Division 268 of the Criminal Code Act 1995 (Cth) to ensure consistency between Australian domestic law and international law with respect to the treatment of members of organised armed groups in non-international armed conflicts.

2. Members of organised armed groups are recognised as a category distinct from civilians under international humanitarian law. The Bill amends Division 268 to provide express recognition of this distinction in Australian domestic law.

3. The Bill clarifies that the war crimes offences in sections 268.70, 268.71 and 268.72, engaged by conduct which causes the death of, or injury to, a person not taking an active part in hostilities in a non-international armed conflict, will not apply where the person is a member of an organised armed group. These amendments recognise that members of an organised armed group do not benefit from the protections accorded to civilians (and other protected persons such as medical and religious personnel) under international humanitarian law, and ensure that members of organised armed groups receive treatment equivalent to members of regular armed forces under the law.

4. The Bill will also align Australian domestic law with the requirements of the international humanitarian law principle of proportionality. Consistent with this principle, the Bill clarifies that sections 268.70, 268.71 and 268.72 will not apply to attacks on military objectives which are not reasonably expected to cause civilian death or injury that would be excessive in relation to the concrete and direct military advantage anticipated.

5. The Bill also makes a minor technical amendment to section 268.65.

Financial Impact

6. There are no direct financial impacts from this Bill.