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

Very good. So what conduct would be excused by the defence found in section 72.41? The bill includes a defence which corresponds to the range of conduct that is permitted by article 21 of the convention. The defence applies to persons whose conduct is done in the course of military cooperation or operations with countries that are not party to the convention. Of course, in those respects your understanding conforms with our own.

However, 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 to the convention. The defence will also not 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.

As a consequence of this provision, ADF personnel will be able to continue to participate in a variety of roles when involved in combined operations with countries not party to the convention who may use cluster munitions, as is permitted by article 21 of the convention. For example, ADF personnel will be able to hold senior positions in combined headquarters and participate in mission planning with countries not party to the convention. ADF personnel could still be employed in intelligence, logistics or other combat support roles during combined operations. ADF personnel may also be deployed to operate with countries not party to the convention or to provide logistical support to non-state party forces. Where necessary, deployed ADF combat units would also be able to call for fire support—from air, artillery or naval gunfire—from countries not party to the convention, so long as the ADF personnel do not expressly request the use of cluster munitions in a situation where the choice of munitions to be used is within their exclusive control. The ability to call for fire support is essential to protection of ADF lives in the field. Protective fire support would be called for to ensure the protection and safety of ADF personnel and assets in the field when faced with imminent threat from enemy forces.

The fact that the convention and the bill permit ADF personnel to undertake certain roles in combined operations does not mean that the ADF personnel will necessarily be doing those jobs. The ADF may place additional restrictions on ADF personnel through directives, rules of engagement and some of those other devices we have already discussed. Australia's rules of engagement may place limits upon the kinds of roles and tasks that our personnel carry out in accordance with the government's strategic direction. Agencies are working to ensure that ADF doctrine, procedures, rules and directives will be consistent with the convention. This process will be completed before Australia ratifies the convention and this legislation commences.

It is also important to remember that, consistent with article 21 and the interoperability defence in the bill, when undertaking these roles ADF personnel will be prohibited from using, transferring, stockpiling, developing, producing or acquiring cluster munitions, or expressly requesting the use of cluster munitions where the choice of munitions used is within Australia's exclusive control. Specifically, ADF personnel will not be permitted to use cluster munitions themselves, even when deployed with the forces of countries not party to the convention.