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

The government gave careful consideration to JSCOT's recommendation regarding inadvertent participation and assistance in the use of cluster munitions. In its response to JSCOT's report the government noted that the convention does not prohibit inadvertent participation in the use, or assistance in the use, of cluster munitions. Rather, article 1 of the convention prohibits states parties from using cluster munitions and also prohibits assistance in the use of cluster munitions.

This prohibition is subject to the exceptions contained in article 21 of the convention. Paragraph 3 of article 21 states:

Notwithstanding the provisions of Article 1 of this Convention and in accordance with international law, States Parties, their military personnel or nationals, may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party.

Paragraph 4 of article 21 states that states parties are nonetheless prohibited from themselves using, developing, producing or otherwise acquiring, stockpiling or transferring cluster munitions, or expressly requesting the use of cluster munitions in cases where the choice of munitions used is within their exclusive control. In this context the bill does not include an offence of inadvertently participating in the use, or assistance in the use, of cluster munitions.

The bill uses the same language as the convention, and this ensures that the bill accurately reflects the provisions of the convention. Sections 72.38 and 72.41 of the bill give effect to article 1 and paragraphs 3 and 4 of article 21 of the convention. Section 72.38 contains offences that cover the range of conduct prohibited in article 1, including the use and assistance in the use of cluster munitions. The physical elements of the offences found in section 72.38 must be done intentionally.

Section 72.41 provides that a person who is an Australian citizen, ADF member or Commonwealth contractor does not commit an offence under section 72.38 if the act is done in the course of military cooperation or operations with a foreign country that is not a party to the convention, and as long as the act is not connected with Australia using, developing, producing or otherwise acquiring, stockpiling, retaining or transferring a cluster munition or expressly requesting the use of cluster munitions where the choice of munitions used is within Australia's exclusive control.

The limitations contained in this provision, known as the interoperability provision, will ensure that Australia and Australians will continue to act consistently with the objects and the purpose of the convention even when undertaking cooperative activities with countries that are not obliged to comply with the convention. Obviously, the United States is the example of the moment.