Mr McCLELLAND (6:11 PM) —I acknowledge in the presence of the Minister for Foreign Affairs that he did make a tremendous effort in the ratification of the Rome statute and also in the development of the International Criminal Court Bill 2002 and the passage of it through the government party room. While acknowledging that, I must say that—and this is in response to the minister's comments towards the end—it is a shame that this government has retreated from the role that Australia could play in the international arena. I think it is fair to say that in modern history, at least since the Second World War, Australia has well and truly played above its weight on the international stage.

I have some pride in the international efforts of the late Dr Evatt—and, I suppose, it is because he was the member for Barton at the time—and his role in the establishment of the United Nations and his role in the wording of the Universal Declaration of Human Rights, promoting in particular not only the reference to political and civil rights but also the reference to socioeconomic rights. He was a statesman, irrespective of personal idiosyncrasies, and we have had a number of statespersons since that time. As a result of their efforts—which we should acknowledge in this House—Australia has well and truly been able to play on the first grade field where, without those efforts, our size and our location would have meant otherwise. In other words, we have achieved tremendous international success as a result of the skill, the effort and the dedication of a number of individuals.

While at the outset I acknowledged the contribution of the Minister for Foreign Affairs and also the Attorney-General, I am the first to acknowledge that different political pressures within political parties can impede decisions. I think, however, that they are still recovering on the international stage from the government's three-person performance, with the Minister for Immigration and Multicultural and Indigenous Affairs, where they attacked international bodies because they dared to criticise Australia. We can all take on board the make-up of international bodies, their procedures and so forth, but the appropriate course of action is to pay arguments their due respect, note the response to those arguments and do what you can to address any problems that you perceive in procedures.

While acknowledging the efforts of the Minister for Foreign Affairs, I regret to say that his attack on international institutions has been somewhat opportunistic. In the national interest, I would like to see him desist from that and work on re-establishing Australia's reputation as not a major power but a significant power because of our determination, our dedication, our balance and our effort. All these things have given Australia tremendous diplomatic influence. Commonsense suggests that, if you have that diplomatic influence, all kinds of other benefits will come to the Australian community, including economic benefits.

Addressing the alarm in the community with respect to this bill: the bill does not usurp Australia's sovereignty. The precondition to exercise of the jurisdiction is that the domestic country is unable or unwilling to deal with matters that are before it in terms of these very serious crimes against humanity. We are effectively talking about non-states. We are not talking about the states of Australia, New Zealand, Canada, Great Britain or the European nations; we are talking about non-states such as Somalia and East Timor after the Indonesian forces moved out. We are talking about an absence of law. An absence of the rule of law is effectively the pre-condition to the International Criminal Court having jurisdiction.

I want to dismiss very firmly the notion that in some way this International Criminal Court will apply to trivial circumstances or to circumstances of political controversy. It has been suggested, for instance, that it may apply to the government's decided policy in respect of refugees. That clearly is a fallacy. The preamble to the Rome statute indicates that the whole purpose of the International Criminal Court will be to address `the most serious of crimes' and not pedantry, as some people have insulted us by suggesting in their arguments against the bill.

The preamble is an acknowledgment by the international community—and we literally see it on television these days—that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity. We have all seen that. You have two choices, quite frankly: you can say, `Well, I'm here in Australia safe and secure, and that's a terrible shame,' or you can get in there with the international community and do something about it. That is precisely why the International Criminal Court has been established.

In perhaps even more dramatic times—after the Second World War as compared with the time we are looking at, which is after the terrorist attacks in New York—the international community said, `We've got to come together.' There has been tremendous oppression and injustice in the world. As an international community, we need to do something about it not only because of the morality but literally because it is in our interest to do so. Oppression, the denial of rights, the suppression of humanity—indeed, the committing of atrocities against humanity—inevitably breeds conflict. In these days of international communication and travel, conflict inevitably affects the globe. I think it is fair to say that the most controversial issue within the Australian political system is that of asylum seekers. Clearly, most of those who are seeking asylum in Australia come here because of some conflict. The origins of those conflicts inevitably lie in some abuse of human rights and, in worst case scenarios, in some unimaginable crimes against the people who have come here.

The other thing I want to address in this speech is the view that in some way the International Criminal Court is going to prevent our military from undertaking the role that they have performed with great distinction as peacekeepers and that we would in some way be putting them at risk of prosecution under this court. The military has rejected that argument. In fairness to the Minister for Defence, Senator Hill—a fellow for whom I have some respect—has also dismissed that argument as being fanciful. In fact, the military very much supports Australia's ratification of this treaty and the legislation necessary for that to occur.

My colleague Kevin Rudd has referred to the reservations of the government. I endorse his comments. The opposition do have some concerns with regard to those reservations but, in the national interest, we think it is vitally important that this parliament passes the legislation this week so that Australia again can have a role in the establishment of the court. Quite frankly, there is any number of eminent Australians who could serve on the court with great distinction.

Returning to this argument as to the position of the Australian military, they argue, and it has to be commonsense, that the mere existence of the court and the fact that there are these highly skilled, highly trained prosecutors attached to the court will be a disincentive to those countries who might otherwise commit their own atrocities against Australian forces if they fall into captive hands. So there is already a disincentive. The court will have a disincentive towards nations that we may come into conflict with and which may capture Australian forces. They point out, for instance, on the reverse side of the equation, the history of the Korean conflicts and the conflicts in Vietnam, where Australian servicemen were held in very spurious circumstances, having allegations made against them that they committed atrocities—that they were the perpetrators of crimes against humanity or were the perpetrators of war crimes. They were held on very spurious grounds rather than being treated as legitimate prisoners of war under the Geneva conventions. The military points out that, if that argument was made after the establishment of the court, the international community could say, `All right, you've got your allegations, you've got your arguments to that effect, but the appropriate place for those to be resolved is in the international court, not in your kangaroo court.' That is the second argument that the military point to.

Again, I come back to the issue of the jurisdiction of the court being activated only in circumstances where the domestic state is incapable or unable to prosecute and try people—it is focused on individuals—for offences that they commit. The military points out that, if there were any transgression of these international principles of decency by Australian troops, then inevitably they would be tried under Australian law and, quite frankly, the existence of the International Criminal Court would be irrelevant to that process. Once they are tried, even if acquitted, the court has no jurisdiction.

The military also points out the reality of occupation forces in countries such as Somalia and, again, East Timor, where there is an absence of prosecutors and an absence of a legal system. The military actually have to get in there and build the legal systems, with prosecutors. That in itself obviously takes up resources and time. The fact that someone is arrested or detained by the military inevitably is a source of drawing in further conflict. They quite properly say that, if they can get, for instance, the warlords in Somalia out of the equation—take them out of the country—you remove at that point a source of conflict. Also, if you take the example of East Timor, a tremendous amount of valuable work was done by the Australian defence forces in collecting and preserving evidence for subsequent prosecutions for war crimes. Again, the military points out that, if you have the expertise of prosecutors attached to the International Criminal Court, it would relieve them of that responsibility and they could focus more on building the infrastructure of the nation.

All these reasons unquestionably indicate that the Australian parliament is doing the right thing by passing this legislation. Clearly, it needs to be done urgently. It is regrettable that it is being left to the eleventh hour. It needs to be done. All we are saying is, `Look, there is a great opportunity for this nation to develop and build upon the reputation we already have.' This government, quite frankly, is letting the side down—the side being the Australian people. You have to do better than this. This is important, but it really should have been done in a much better way.