Scott Ludlam (WA, Australian Greens) Share this | Hansard source

Thanks, Minister. With that caveat attached, that is fair enough. This is formalising what will in fact be unlawful for a person to undertake henceforth. That is my reading of it.

However, we come to section 72.41—and this is where I think this debate hinges in its entirety, so I am just going to quote what 72.41 does. It says:

A person who is an Australian citizen, is a member of the Australian Defence Force or is performing services under a Commonwealth contract does not commit an offence—

In other words, is exempt from the section that I quoted to you previously—

… against section 72.38 by doing an act if:

(a) the act is done in the course of military cooperation or operations with a foreign country that is not a party to the Convention on Cluster Munitions;—

For the time being, let us let the US government stand in—

… and

(b) the act is not connected with the Commonwealth:

  (i) using a cluster munition; or

  (ii) developing, producing or otherwise acquiring a cluster munition; or

  (iii) stockpiling or retaining a cluster munition; or

  (iv) transferring a cluster munition; and …

My understanding of that is that if I am an FA18 pilot, it is 2003 and I am flying close support on my way into Baghdad; and units of the US Army or Marine Corps below me are firing cluster weapons indiscriminately into urban areas; and I have not called on them to do that but I am flying close support for those units, then I would be protected, even if this bill had been in force in 2003. Minister, is that a correct reading of this bill?