Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Hansard source

in reply—I thank honourable members for their contributions to this debate. I was present when the member for Cowan gave his presentation and his military knowledge was certainly informative and instructive. I appreciate as well the contribution from the shadow minister for foreign affairs and I endorse her comments in respect of the late Princess Diana. In fact I recall that, when I was first elected to parliament, I served as deputy chair of the Joint Standing Committee on Treaties and, during our inquiry into landmines, Princess Diana wrote to the committee commending us on our work. That letter would, I suppose, be with the parliamentary records. It would be quite notable.

The government is pleased to present this bill, which provides the legislative measures necessary to give effect to the Convention on Cluster Munitions—a high priority for the Australian government and indeed, quite evidently from the debate, for all members of the Australian parliament. The convention bans the use, development, production, acquisition, stockpiling, retention and transfer of cluster munitions, as well as the assisting, encouraging or inducing of any person to do any act prohibited by the convention.

There are three main features to the bill. First, the bill creates a new offence of using, developing, producing, acquiring, stockpiling, retaining or transferring a cluster munition. The bill also creates an offence of assisting, encouraging or inducing a person to do any of those acts. An example of the conduct that would fall into this offence is where a person provides financial assistance to, or invests in, a company that develops or produces cluster munitions, but only where that person intends to assist, encourage or induce the development or production of cluster munitions by that company. The offences are serious; they carry a maximum penalty of 10 years imprisonment for individuals or $330,000 for bodies corporate. This penalty reflects, as I have said, the serious nature of the offences that this bill creates.

Second, the bill creates defences to those offences which reflect the range of conduct that is permitted by the convention and recognises the fact that we may be in partnership in respect of military operations. The government has, wherever possible, sought to preserve the language of the convention in the bill in order to ensure that the range of conduct that is prohibited by the convention is the subject of criminal offence under Australian law. The bill creates a defence for persons who acquire or retain cluster munitions for the permitted purposes or for the purpose of destruction when authorised by the Minister for Defence. The bill also creates a defence for persons who transfer cluster munitions to another state party for the purpose of destruction.

In order to encourage individuals to contact the police or the Australian Defence Force in order to surrender cluster munitions, rather than handling the dangerous explosives themselves, the bill creates a defence for persons who, without delay, notify the police or the Australian Defence Force that they wish to surrender cluster munitions. We recognise, however, that continued interoperability with certain non-states parties is consistent with Australia’s national interests and international obligations. Therefore, the bill allows Australia to continue to maintain cooperative military relationships with other countries that are not parties to the convention. Continued cooperation between states parties and non-states parties is central to the protection of international security, as well as Australia’s national security interests. The convention permits continued military cooperation and operations between states parties and non-states parties, subject to some restrictions.

The government also believes that Australian personnel should not face the threat of prosecution for serving alongside allied forces that continue to use cluster munitions. The bill creates a defence for persons whose conduct takes place in the course of the permitted range of military cooperation and operations. Notwithstanding this defence, it will be an offence for a person to use, develop, produce, acquire, stockpile or retain cluster munitions, even in the course of combined operations with countries that are not party.

The defence will also apply if a person expressly requests the use of cluster munitions in a situation where the choice of munitions used is within Australia’s exclusive control. A separate defence protecting visiting personnel from the armed forces of countries that are not party to the convention while such personnel are in Australia is also included. These individuals are not required to comply with the convention’s obligations and are therefore protected, to a limited extent, from the criminal offences of stockpiling, retaining and transferring cluster munitions. Nonetheless, such visiting forces would not be excused from prosecution if they were to use, develop, produce or acquire cluster munitions in Australia.

The convention is a remarkable humanitarian achievement that recognises the tragic impact of cluster munitions particularly on civilian populations and, more often than not, children of those civilian populations.

The bill is a significant step towards Australia meeting its obligations under this important convention and will strengthen Australia’s legal framework regarding weapons that cause significant and indiscriminate harm to civilians.

Question agreed to.

Bill read a second time.

Ordered that the bill be reported to the House without amendment.

See this speech in context