Fatima Payman (WA, Australia's Voice) | Hansard source

I move:

That this bill be now read a second time.

I seek leave to table an explanatory memorandum relating to the bill.

Leave granted.

I table an explanatory memorandum, and I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

This Bill is being introduced alongside the Genocide Risk Reporting Bill 2024 and the Treasury Laws Amendment (Divesting from Illegal Israeli Settlements) Bill 2024.

Together they represent a baseline measure to further align Australia with its international legal obligations including the Fourth Geneva Convention, and the Convention on the Prevention and Punishment of the Crime of Genocide.

Passing these three Bills is an essential step in ensuring comprehensive action to uphold human rights and foster accountability and bringing about the end to the era of genocide.

The Defence Trade Controls Amendment (Genocide, War Crimes and Crimes Against Humanity) Bill 2024 amends the Defence Trade Controls Act 2012 (DTC Act) and the Customs Act 1901 to more closely align with its International Human Rights obligations.

This Bill aments the DTC Act to prevent the Minister for Defence from granting export permits for Australian-made weapons, military equipment, or technology that may be used in the commission of serious violations of international law, including genocide.

This Bill addresses Australia's failure to fully implement its obligations under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Convention), to which Australia is a state party. Australia's core obligations under the Convention are fourfold:

These obligations, as recognised by the International Court of Justice (ICJ), impose both negative (not to commit genocide) and positive duties (to prevent genocide). Australia's obligations are peremptory, meaning no derogation is allowed, and must take precedence over other domestic or international agreements, including trade or military cooperation treaties.

The Bill recognises that Australia must not aid or assist genocide, nor be complicit in it. It ensures that Australian defence goods, technology, or services are not exported to countries where they might be used to perpetrate genocide, war crimes, or crimes against humanity.

Australia's obligation to prevent genocide arises as soon as we become aware, or should reasonably be aware, of a serious risk that genocide is taking place. This includes situations where the ICJ issues a Provisional Measures Order warning of imminent genocide. The Bill ensures that, once such a risk is identified, Australia must act to prevent exports that might contribute to genocide or related crimes.

This Bill also complements Australia's obligations under the Arms Trade Treaty 2013, which entered into force for Australia in 2014. The Treaty requires Australia to halt the export of conventional arms if there is knowledge that they would be used in genocide, crimes against humanity, or war crimes.

Key Provisions of the Bill

The Bill makes several important amendments to the DTC Act to ensure compliance with both the Genocide Convention and the Arms Trade Treaty. It inserts provisions that:

Practically, this means the relevant Minister must:

Importantly, the Bill directs the Minister to act with due diligence when assessing risks of genocide in any export activity. This includes evaluating whether a foreign country's actions, as determined by international bodies like the ICJ, create a risk that Australian-made goods could be used in genocide or other serious violations.

The Bill also amends the Customs Act 1901 to ensure military goods and technology cannot be exported where there is a risk of violating Australia's obligations under the Genocide Convention or the Arms Trade Treaty. The Bill brings consistency to how key terms such as genocide, ICJ Orders, and related concepts are applied in both the DTC Act and the Customs Act 1901.

These amendments ensure that Australia's export controls align with international humanitarian law and uphold Australia's reputation as a responsible actor in the global fight against genocide, war crimes, and crimes against humanity.

Background and Case Example of Necessity of Legal Reform

We need this legislation because the current policies and practices of the Australian government place us in clear breach of international law. While Australia is complicit in genocides around the world, Palestine serves as a stark case example of this complicity, underscoring the urgent need for legislative reform.

Australia has not only failed in its international obligations but chooses to do so on a continuing basis. The legal barriers to the prosecution of Genocide, crimes against humanity and war crimes are intentional and signify an acceptance of these crimes, an enabling and indeed complicity in them. This includes the Attorney-General's fiat, which grants sole discretion over prosecuting international crimes, functions as a significant barrier to accountability, undermining efforts to pursue justice under international law.

This is most prominently shown in the Genocide of the First Peoples of this land. Genocide has been perpetrated from the time of invasion, through Massacres, forced displacement, land theft, the destruction of cultural heritage, the Stolen Generations and so much more. It continues to this very day. It is not as starkly obvious to the outside observer as the Genocide in Gaza, but it takes place in sophisticated, silent and effective ways.

The circumstances in which this important reform has arisen, is the matter of South Africa v Israel where a Provisional Measures Decision[i] issued by the International Court of Justice (modifying its Orders of 28 March 2024 and 24 May 2024) determined, inter alia, that Israel:

a. 'must take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip',

b. 'must take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip', and

c. 'must also take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Genocide Convention against members of the Palestinian group in the Gaza Strip'.[ii]

The ICJ provisional orders indicate that the Court accepted there is a plausible case that Palestinians in Gaza have a right to be protected from genocide.[iii]

However, since the ICJ provisional ruling, there appears to have been negligible change in the conduct of the State of Israel and the Israel military's campaign of destruction on Gaza and the occupied Palestine territories. Civilian casualty numbers remain extremely high, as demonstrated by multiple reliable sources.[iv]

Following the ICJ ruling on 26 January 2024, several human rights and legal organisations have called on the Australian government to 'act in accordance with Australia's legal responsibilities under the Genocide Convention, the Rome Statute, and the interim measures set out by the Court', by ceasing military exports to Israel, demanding an immediate ceasefire, stopping political and diplomatic support to Israel, supporting greater humanitarian aid to Gaza, and ensuring accountability for international crimes occurring across the Occupied Territories.[v]

As of November 21, 2024, reports from the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) indicate that over 34,560 Palestinians have been killed and 77,765 injured in Gaza since the marked escalation of conflict on October 7, 2023. These figures include thousands of civilians killed due to Israeli airstrikes and ground operations, with many still unaccounted for.

To date, the Australian Government has not elected to invoke its sanctions framework or to impose an arms embargo of any sort with respect to Israel, despite the International Criminal Code issuing warrants for the arrest of Israeli leaders, including Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant on 21 November 2024.

The non-operation of the sanctions framework with respect to Israel has left the door open for continued business to support Israel's military supply chain, while Israel is facing accusations of genocide.

A UN statement dated June 20, 2024[vi] called for a halt to arms transfers to Israel by states and companies to prevent human rights violations.

At least the following companies, as cited in that UN statement, have been the subject of Australian Government announcements in the past year:

The public record shows that despite UN calls to cease support for companies supplying arms to Israel, the Australian Government has signed major contracts and investments with these companies in the past year. The details of such contracts include:

[vii][viii][ix]

[x]

[xi]

The Australian Government's refusal to impose sanctions seems driven by its significant financial ties to companies involved in serious human rights violations in Gaza.

The government is unwilling to punish companies it has invested billions in, even after the United Nations issued warnings.

By shielding these companies from sanctions, the government also exposes itself to potential state and criminal liability, creating an unacceptably high legal risk to both the government and the Australian public.

This Bill aims to set clear legal boundaries, ensuring that when political or self-preservation motives prevent the government from acting, the law steps in to enforce some form of embargo so Australia is not arming or funding serious human rights violations.

As the Australian Centre for International Justice's Executive Director, Rawan Arraf, has stated in relation to Israel,

"It's simply unacceptable that Australian-made parts and components could be involved in such atrocities. International law is clear, the Australian government must end the two-way arms trade with a state that is condemned by the ICJ as maintaining an unlawful occupation regime. Australia has international obligations to ensure it is not aiding Israel's violations of international law."

This is a sentiment felt widely across the community.

This Bill would create important measures to increase transparency and accountability. It's not merely the lack of sensitivity and respect for the rule of law regarding Gaza and the Occupied Palestinian Territories that stands out; it's the refusal of these politicians to engage with voters honestly on these crucial topics. On one hand, the Labor Government has said that it doesn't supply weapons to Israel, but then remains silent on the arms and ammunitions destined for Israel through the US, Germany and other countries. Such as the 3,000 155mm shells that are exported from the Rheinmetall factory in Maryborough every month to Germany, for its ammunition stockpile.

It also remains tight-lipped on the open permits to Israel and whether Australia is exporting goods other than weapons or weapons parts that are critical to Israel's ongoing killing of civilians—such as the mechanism that facilitates devastating bombs to be dropped from Lockheed Martin fighter jets. It appears this mechanism is being manufactured in Brisbane and it is critical to Israel's military capability.

The deeper issue lies in the hollow appearance of concern for our community. The Foreign Affairs Minister's rhetoric about international law and behind-the-scenes cooperation with perpetrators contrasts sharply with the past year's outcome: escalating violence with impunity. The stark disconnect between this doublespeak and the harrowing images of Palestinian women and children—many fleeing bombings or trapped under rubble—could not be more jarring. This Bill is about restoring trust and integrity in government. Anyone in this Senate or House who values the rule of law, transparency, and accountability must support this Bill and the broader package it forms part of.

In summary, the Defence Trade Controls Amendment (Genocide, War Crimes and Crimes Against Humanity) Bill 2024 strengthens Australia's commitment to preventing genocide and related atrocities. The Bill aligns Australia's defence export controls with its international obligations under the Genocide Convention and the Arms Trade Treaty. It ensures that Australian-made defence goods, technologies, and services are not used in ways that violate international law, specifically genocide and war crimes.

This country must lead by example, ensuring our military exports do not contribute to human rights abuses. This Bill is an important step towards upholding our obligations under the Genocide Convention and protecting vulnerable populations worldwide from the horrors of genocide and other crimes against humanity

————

[ i ] Available: https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-kc-applications-arrest-warrants-situation-state, p. 6.

[ ii ] Ibid.

[ iii ] ICJ, 'Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel)', ICJ, <https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf>, [54].

[ iv ] See, for example: Oxfam, 'Daily death rate in Gaza higher than any other major 21st Century conflict—Oxfam', Oxfam (online, 11 January 2024). Available: https://www.oxfam.org/en/press-releases/daily-death-rate-gaza-higher-any-other-major-21st-century-conflict-oxfam; OCHA, 'Hostilities in the Gaza Strip and Israel | Flash Update #110', OCHA (online, 4 February 2024). Available: https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-110.

[ v ] For example, Human Rights Law Centre, 'ICJ South Africa v. Israel: Human Rights Law Centre statement', Human Rights Law Centre (online), <https://www.hrlc.org.au/news/2024/2/1/icj-south-africa-v-israel-human-rights-law-centre-statement>; Australian Centre for International Justice, 'Australia has a duty to prevent genocide in Gaza and act to implement ICJ ruling that Israel's actions in Gaza are a plausible genocide', Australian Centre for International Justice (online 27 January 2024), <https://acij.org.au/media-release-australia-has-a-duty-to-prevent-genocide-in-gaza-and-act-to-implement-icj-ruling-that-israels-actions-in-gaza-are-a-plausible-genocide/>; International Legal Scholars Against Genocide, 'Open Letter to the Australian government regarding the ICJ provisional measures ruling', The Overland (online 31 January 2024), <https://overland.org.au/2024/02/open-letter-to-the-australian-government-regarding-the-icj-provisional-measures-ruling/>.

[ vi ] https://www.ohchr.org/en/press-releases/2024/06/states-and-companies-must-end-arms-transfers-israel-immediately-or-risk#:~:text=GENEVA%20(20%20June%202024)%20%E2%80%93,demand%20to%20stop%20transfers%20immediately.

[ vii ] Contract worth $110 million https://www.australiandefence.com.au/defence/air/williamtown-f-35-facility-to-expand

Contract worth $160 million https://psnews.com.au/bae-systems-australia-wins-160-million-missile-seeker-contract/148982/ (From 6 days ago)

Contract worth $5.1 billion https://www.reuters.com/business/aerospace-defense/australia-earmarks-billions-naval-infrastructure-bae-wins-aukus-submarine-work-2024-03-21/

https://www.baesystems.com/en/article/3-95bn-awarded-for-next-phase-of-aukus-submarine-programme (The $5.1bn deal is awarded to BAE systems by UK Ministry of Defence and Australia's funding of $3 billion mentioned is not specified towards BAE systems)

In this statement release by BAE Systems, the SSN-AUKUS deal's funding amount is only credited to UK Ministry of Defence https://www.navalnews.com/naval-news/2024/03/australia-selects-bae-systems-and-asc-to-build-ssn-aukus/

[ viii ] Australian Government, Aus Tender, Standing Offert Notice View—SON3945513, (Web page, 10 February 2023) https://www.tenders.gov.au/Son/Show/2f7f8e01-17cc-4c56-b657-d288fbda1bd2; Australian Government, Aus Tender, Standing Offert Notice View—SON3975594, (Web page, 19 June 2023) https://www.tenders.gov.au/Son/Show/8a4a5570-7fbb-4247-9177-b6b5b6a539af; Australian Government Defence, Australian industry and jobs front and centre of AUKUS submarines, (Web page, 22 March 2024) <https://www.minister.defence.gov.au/media-releases/2024-03-22/australian-industry-and-jobs-front-and-centre-aukus-submarines>.

[ ix ] SBS, What do we know about AUKUS?, (Web page, 14 March 2023) <https://www.sbs.com.au/news/article/what-do-we-know-about-aukus/t6vndvinn>

[ x ] Australian Government, Aus Tender, Standing Offert Notice View—SON3945513, (Web page, 10 February 2023) https://www.tenders.gov.au/Son/Show/2f7f8e01-17cc-4c56-b657-d288fbda1bd2; Australian Government, Aus Tender, Standing Offert Notice View—SON3975594, (Web page, 19 June 2023) https://www.tenders.gov.au/Son/Show/8a4a5570-7fbb-4247-9177-b6b5b6a539af; Lockheed Martin, Lockheed Martin Australia Partners with Australian Army to Sustain UH-60M Black Hawks, (Web page, 2024)

https://lockheedmartinau.mediaroom.com/index.php?s=2429&item=122670; Pat Conroy MP, X Post, (Web page, 16 January 2024) <https://x.com/PatConroy1/status/1747072816367972576>; Pat Conroy MP, X Post, (Web page, 24 April 2024)<https://x.com/PatConroy1/status/1782958426609668587>; Jordy Silverstein, X, Web page, 19 August 2024) <https://x.com/jordana_s_/status/1825491290160857137>

[ xi ] Australian Government, Aus Tender, Contract Notice View—CN4005625, (Web page, 26 September 2023) https://www.tenders.gov.au/Cn/Show/49e87a0c-2d6e-446f-8ecd-cc9d50d0e586; Australian Government, Aus Tender, Contract Notice View—CN4005564, (Web page, 26 September 2023)

https://www.tenders.gov.au/Cn/Show/f0860ac0-d850-4a26-8c81-787fc092b7c8; Australian Government, Aus Tender, Contract Notice View—CN2024761-A3, (Web page, 26 March 2024)

https://www.tenders.gov.au/Cn/Show/abed2788-6b23-48b0-90c5-181508ef6ede; Australian Government, Aus Tender, Contract Notice View—CN4005625-A1, (Web page, 5 December 2024)

https://www.tenders.gov.au/Cn/Show/d1f87bf8-26ae-40fb-95f0-f9bb232267d8; Australian Government, Aus Tender, Contract Notice View—CN4042677, (Web page, 26 March 2024) https://www.tenders.gov.au/Cn/Show/2cd82e85-2810-4c09-977d-eb6fd4b42340; Australian Government, Aus Tender, Contract Notice View—CN4026575, (Web page, 4 January 2024)

https://www.tenders.gov.au/Cn/Show/8b441e25-88ab-496f-9277-0fe3aee01555; Australian Government, Aus Tender, Contract Notice View—CN4091117, (Web page, 28 August 2024) https://www.tenders.gov.au/Cn/Show/7127d12a-de2a-4b96-b82b-dd5dabde5db6.; Australian Government, Aus Tender, Contract Notice View—CN4083492-A1, (Web page, 10 September 2024) https://www.tenders.gov.au/Cn/Show/041a9093-aef9-4213-a0b0-bfa449e8439c.; Australian Government, Aus Tender, Contract Notice View—CN4091122, (Web page, 28 August 2024) https://www.tenders.gov.au/Cn/Show/456b8985-2060-4577-8447-b461c6f15e1a; Australian Government, Aus Tender, Contract Notice View—CN4091117, (Web page, 28 August 2024) https://www.tenders.gov.au/Cn/Show/7127d12a-de2a-4b96-b82b-dd5dabde5db6.; Australian Government, Aus Tender, Contract Notice View—CN4091091, (Web page, 28 August 2024)

https://www.tenders.gov.au/Cn/Show/65f824e7-5ecd-4f9d-9692-9c328f23a52a; Australian Government, Aus Tender, Contract Notice View—CN4094217, (Web page, 11 September 2024) https://www.tenders.gov.au/Cn/Show/586d923f-9d9c-4585-98df-fed121fefec8; Australian Government, Aus Tender, Contract Notice View—CN4094208, (Web page, 11 September 2024) https://www.tenders.gov.au/Cn/Show/7baefba0-9570-407f-b377-6b4886a45d84; Australian Government, Aus Tender, Contract Notice View—CN4095934, (Web page, 18 September 2024) https://www.tenders.gov.au/Cn/Show/1bf90108-8b7a-4f69-aa44-0376ae651154

I seek leave to continue my remarks later.

Leave granted; debate adjourned.