Gavin Marshall (Victoria, Australian Labor Party) Share this | Hansard source

I rise to speak on the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010. As weapons go, cluster bombs are particularly obnoxious. It is unfortunate that they were ever invented in the first place and it is even more unfortunate that they have ever been used.

Cluster bombs are a large weapon system containing multiple smaller bomblets—often hundreds of them. They can be dropped from the air or fired from the ground. Cluster bombs are wide-effect weapons. This means that their impact is not limited to one precise target such as a tank. They are housed like peas in a pod. The container opens in the air and scatters the bomblets over a wide area, sometimes the size of several football fields, and this impact is referred to as the footprint. A cluster bomb has an outer bomb casing which breaks open in midair, raining down hundreds of smaller bombs over a large area—as I have said this can be several football fields in size and as far as a kilometre away. According to Handicap International's 2006 study, approximately 98 per cent of all victims of unexploded cluster munitions are civilians; and of that 98 per cent almost one-third are children.

It is unfortunate that there is still armed conflict in many parts of the world. It is unfortunate that there has been armed conflict in many parts of the world. But inevitably whenever there is armed conflict there will be a resolution—often at the cost of many millions of lives, and that is an enormous human tragedy. It is unfortunate that human beings tend to do these things to each other. Once the conflict is over the people involved need to get on with rebuilding their lives, rebuilding their countries and, sometimes, rebuilding their nations. The legacy of cluster bombs, landmines and other obnoxious weapons place a significant handicap on the country's ability to rebuild after armed conflict. As an example, between 1964 and 1973—I was a young child at that time—the United States dropped 260 million cluster submunitions on Laos in a covert mission to destroy North Vietnamese supply lines. Not only did that mission ultimately fail in its strategic aim, bringing into question the need for cluster munitions at all; it also left a deadly legacy. It is estimated that there are 80 million unexploded bombs scattered across the Laos countryside today. The United States bombing campaign on Laos involved 580,000 missions and two million tons of bombs—an average of one bomb every eight minutes for nine years. Those bombs have killed or maimed more than 20,000 people since the war ended and they are a major obstacle to the economic development of one of Asia's poorest nations. Not only was this country not directly involved in that particular armed conflict but now, many decades later, it is still suffering the enormous consequences—with huge tracts of land unusable because of the amount of cluster munitions still unexploded.

It is children in particular who are attracted to these munitions. Often munitions of that age are brightly coloured. They look like toys and are attractive to people from rural and poor communities, who go and touch them.

In Laos today there are still 200 people wounded or killed by those unexploded cluster munitions every year—again, 40 years after they were dropped. Given this deadly heritage, it is not surprising that Laos recently added the ninth millennium development goal, which is to clear its land of unexploded ordnances. It is something with which Australia assists many countries in our region. Australia works with the international community to remediate regions and communities affected by explosive remnants of war, including cluster munitions. The government has allocated $100 million over five years to undertake that work. It is painstaking and dangerous work, and it has left an enormous legacy.

The Convention on Cluster Munitions is a wonderful and important thing for Australia to be involved in, and Australia was key to getting the convention up in the first place. A lot has been made of the disappointment of some the advocates for this convention, and I have met with many of them on numerous occasions. I have taken their concerns very seriously and, as a consequence, I have met with the Attorney-General on a number of occasions, the Minister for Foreign Affairs on many occasions and the Minister for Defence on many occasions about the issue; there have been numerous meetings and discussions. Senator Ludlam said that we might be convinced by the briefings and he would be interested to know that, yes, I have been.

There are a number of concerns about why the nature of the legislation differs from the nature of the legislation in New Zealand and in Great Britain. Clearly, in every country there are different frameworks that underpin different forms of legislation. Legislation needs to be looked at purely in an Australian context to meet the needs of faithfully implementing the convention in the Australian context. Much was made of proposed section 72.42 in the bill. I want to make my assessment very clear. After the multiple briefings I have had—I understand the minister will clarify all these matters and put them into the second reading speech to put it beyond doubt—it is my view that this bill is an essential step to becoming a state party to the Convention on Cluster Munitions and that the bill faithfully implements that convention.

Notwithstanding proposed section 72.42, visiting forces would not be excused from prosecution if they use, develop, produce or acquire cluster munitions in Australia. Proposed section 72.42 is, in my view, consistent with the provisions of the convention and does not amount to the government's authorisation to engage in the specified conduct. The bill does not require Australia to accept stockpiles of cluster munitions on its territory from countries that are not party to the convention. I am advised that, currently, there are no foreign stockpiles of cluster munitions in Australia and, as a matter of policy, I am advised that the government has not and will not authorise such stockpiling. I am further advised that the government will confirm this commitment in a public statement at the time of Australia's ratification of the convention and in Australia's annual transparency report under the convention. I am advised that that will be a very clear public statement at both those times.

It is also important to understand that ADF personnel will not be permitted to use, develop, produce or otherwise acquire cluster munitions, or make the decision to use, develop, produce or otherwise acquire cluster munitions, including while serving on combined operations with defence forces of other countries, in combined headquarters or on exchange with a foreign force. So I understand and advise that there is nothing in this bill that permits Australians to engage in any breach of the convention, and the bill delivers on those commitments. ADF personnel serving alongside defence forces of other countries remain subject to Australian domestic and international legal obligations and national policy requirements. The national policy requirements are applied through ADF doctrine, procedures, rules and directives. As a consequence of the convention, all of those doctrines, procedures, rules and directives will faithfully implement the legislation, which faithfully implements the convention.

It is important to retain proposed section 72.41 and 72.42 to ensure the continuation of Australia's military cooperation and engagement with countries that are not party to the convention. This is permitted by article 21 of the convention. The ability to maintain interoperability is central to the protection of Australia's national security. I would be as happy as everyone else if all countries were prepared to sign on to the convention and ban cluster munitions, but one of our key allies, the United States, at this point has not banned cluster munitions. They are integral to our national defence. We are in alliance with them and our defence forces work all the time with the forces of the United States but, let me just repeat: ADF personnel serving alongside defence forces of other countries still remain subject to Australian domestic and international legal obligations and national policy requirements. So nothing in the legislation permits an Australian who is working with other forces who have not signed the convention to breach this legislation or the convention.

In line with our positive obligations under the convention Australia will continue to discourage the use of cluster munitions by countries that are not party to the convention. So, if we are in the position, which we will be when we are working alongside forces from the US, it is our positive obligation to discourage the use of cluster munitions by that country, and I am advised that we will be active in doing so on an ongoing basis. So, I am happy to support this bill. Initially I did have some concerns with it but, as I have outlined, I am satisfied that the bill has faithfully met our convention obligations.

Proceedings suspended from 18 : 30 to 19 : 30

Before the dinner suspension I had virtually finished what I needed to say about this bill. However, I am looking forward to the minister explaining Australia's policy on interoperability and stockpiling and putting some of those issues to rest.