David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Hansard source

I thank the various senators who have made contributions to this debate. In fact, I had the good fortune to hear all of them. The Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 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.

I wish to respond to some comments made by Senator Ludlam. The senator alleged that while the convention is sound, the bill does not faithfully reflect the convention. In fact, the bill uses the same language as the convention in order to ensure that all conduct that is prohibited by that convention is the subject of a criminal offence under Australian law, unlike the amendments proposed by the Greens party. In particular, section 72.41 of the bill on the interoperability defence uses the language of article 21 of the convention. Senator Ludlam has also raised the notion that Australia sought to undermine the negotiations on the convention. Australia's position both during the negotiations and today is that the ability to maintain interoperability with countries not party to the convention is central to the protection of Australia's national security as well as international security.

This bill includes the legislative measures necessary to give effect to the convention on cluster munitions, a convention which the Australian government strongly supports. Australia is committed to ensuring the strongest possible ban on cluster munitions. As set out in the government's policy statement, this bill is an essential step in Australia becoming a state party to the convention on cluster munitions and faithfully implements the convention. As a state party, Australia will be prohibited from stockpiling cluster munitions. Section 72.42 of the bill provides that certain acts by foreign military personnel of countries that are not party to the convention are not offences under section 72.38 of the bill when the act is done in connection with the use of a base, foreign aircraft or foreign ship in Australian territory. These acts include stockpiling or retaining a cluster munition or transferring a cluster munition.

Notwithstanding section 72.42, visiting forces would not be excused from prosecution if they use, develop, produce or acquire cluster munitions in Australia. Section 72.42 is 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.

There are currently no foreign stockpiles of cluster munitions in Australia. As a matter of policy, the government has not and will not authorise such stockpiling. 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.

Section 72.41 of the bill provides that certain acts by Australian citizens, Australian Defence Force members or Commonwealth contractors are not offences against section 72.38 of the bill if the act is done in the course of military cooperation or operations with a country that is not a party to the convention. 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. ADF personnel serving alongside defence forces of other countries remain subject to Australian domestic and international legal obligations and national policy requirements, which are applied through ADF doctrine, procedures, rules and directives.

It is important to retain sections 72.41 and 72.42 to ensure the continuation of Australia's military cooperation and engagement with the countries that are not party to the convention, as permitted by article 21 of that convention. The ability to maintain interoperability is central to the protection of Australia's national security. In line with our positive obligations under the convention, Australia will continue to discourage the use of cluster munitions by countries that are not a party to the convention. Australia will continue to work 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 very important work.

The bill creates a new range of offences to reflect the conduct that is prohibited by the convention. These offences include using, developing, producing, acquiring, stockpiling, retaining or transferring a cluster munition. These offences ensure that using a cluster munition is a crime both in Australia and for Australians overseas. The bill does not provide any defence for a person who uses a cluster munition. This reflects the convention's primary objective of prohibiting states' parties from using cluster munitions in all circumstances.

The offences in the bill carry a maximum penalty of 10 years imprisonment for individuals, or $330,000 for bodies corporate. This tough penalty reflects the serious nature of the offences created by the bill. The bill also creates defences to the offences, reflecting the range of conduct that is permitted by the convention. The convention permits continued military cooperation and operations between states parties and countries not party to the convention, subject to some restrictions. Continued cooperation between states parties and countries not party to the convention is central to the protection of Australia's national security as well as international security. For example, maintaining such interoperability is essential for Australia to be able to participate in United Nations mandated missions involving countries not party to the convention. This was a view shared by many countries during the negotiation of the convention. Therefore, consistent with the convention, the bill allows Australia to continue to maintain cooperative military relationships with countries that are not parties to the convention.

The bill is one of the measures necessary to give effect to the convention. In line with the convention, Australia will continue to urge countries not party to the convention not to use cluster munitions and encourage them to sign the convention. Australia will also continue to work with non-government organisations, which make a significant contribution to the universalisation of the convention. Once Australia ratifies the convention, the government will comply with the reporting obligations under the convention, which will ensure transparency in how Australia is implementing it. Consistent with Australian treaty practice, Australia's reporting obligations under the convention will be implemented through administrative means. Australia has a strong record in disarmament and international action to ban weapons that are excessively injurious or that have indiscriminate effects. Although Australia has not yet ratified the convention, it is already playing a constructive role to support the convention's humanitarian objectives. The convention is a remarkable humanitarian achievement, and this bill is a significant step towards Australia meeting its obligations under this important convention. I commend the bill to the Senate.