Parliamentary Joint Committee on Intelligence and Security Reports on Two New CTH Bills

On 18 November 2016, the Parliamentary Joint Committee on Intelligence and Security delivered their committee reports on the Criminal Code Amendment (War Crimes) Bill 2016 (Cth) and item 28 of the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016 (Cth).

Criminal Code Amendment (War Crimes) Bill 2016

The Criminal Code Amendment (War Crimes) Bill 2016 (War Crimes Bill) amends Division 268 of the Criminal Code to introduce the concept of ‘organised armed groups’ in non-international armed conflicts. Consistent with international humanitarian law, the amendments provide that members of an organised armed group are treated as distinct from civilians for the purpose of war crimes offences.

The Bill also introduces the principle of ‘proportionality’ in relation to attacks on military objectives in non-international armed conflicts. The Bill is intended to provide legal certainty for the Australian Defence Force in operations that target members of organised armed groups with lethal force, such as in the current conflict against Daesh - further information about the War Crimes Bill can be found in our previous article.

The Committee carefully scrutinised the key aspects of the Bill, including how membership of an ‘organised armed group’ would be defined. The Committee concluded that the amendments in the Bill would provide appropriate protection for civilians while maintaining the capacity to strike against legitimate military targets. The Bill would also harmonise Australian law with the interpretation of international humanitarian law applied by our key allies and coalition partners.

The Chair of the Committee, Mr Michael Sukkar MP, said that:

Item 28 of the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016

Item 28 of the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016 (Cth) (The Law Enforcement Bill) amends the list of ‘criminal law-enforcement agencies’ at subsection 110A(1) of the  Telecommunications (Interception and Access) Act 1979 (TIA Act) to replace the NSW Police Integrity Commission (PIC) with the Law Enforcement Conduct Commission (LECC).

The LECC will bring together the functions of the former Police Integrity Commission, the Police Division of the NSW Ombudsman’s Office and the Inspector of the Crime Commission to streamline police oversight in NSW. For more on these proposed amendments, see our previous article.

Subject to the thresholds set out in the TIA Act, being listed as a criminal law enforcement agency will enable the LECC to apply for stored communications warrants, issue preservation notices and authorise the disclosure of telecommunications data when investigating serious misconduct or serious maladministration.

The Committee endorsed the proposed amendment following consideration of its rationale. In doing so, the Committee noted that the amendment would provide the LECC with powers comparable to those of other integrity bodies within Australia that are already listed as criminal law enforcement agencies.

Both the War Crimes Bill and the Law Enforcement Bill are in the Senate, with the Law Enforcement Bill having passed the Senate on 24 November 2016 and awaiting assent, while the War Crimes Bill is awaiting second reading debate.

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Parliamentary Joint Committee on Intelligence and Security Current Inquiries

Criminal Code Amendment (War Crimes) Bill 2016 [CTH] and secondary materials as reproduced on TimeBase LawOne

Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016 [CTH] and secondary materials as reproduced on TimeBase LawOne