Nick Xenophon (SA, Independent) Share this | Hansard source

The first rule of cross-examination, yes, and I have no idea what the minister will say in relation to this. Just to recap in terms of some first principles so that the premise of this question is not misunderstood. We have the offence in proposed section 72.38 about doing acts with cluster munitions, in particular with respect to subclause (2) that a person commits an offence if the first person 'assists, encourages or induces' another person to do any of the following acts with cluster munition: use it, develop it, stockpile it, transfer it to anyone; the other person does the act and the first person intends that the act be done. The key words there are 'assists, encourages or induces'. You have the defence in proposed section 72.41, where it is a defence 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 on Cluster Munitions'. If we then go to the convention we see that the preamble to the convention makes this reference:

Determined to put an end for all time to the suffering and casualties caused by cluster munitions at the time of their use, when they fail to function as intended or when they are abandoned.

So that failure rate is clearly referred to in the preamble. Article 1 makes specific reference to the general obligations. It states:

Each State Party undertakes never under any circumstances to:

  (a) Use cluster munitions;

  (b) Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions;

  (c) Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.

From a general drafting principle, and it has been 36 years since I did statutory interpretation at law school—