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

As I said, Senator, as we commenced today, those are issues on which I have undertaken to get back to you. We have taken those questions on notice. Of course, I guess a nuanced but important one is that we would not say, and I suspect you would not say, that they were used against civilian populations. But as to how and when they were used in the course of 2003, we are awaiting advice.

With respect to your amendment more broadly, the proposed amendment is intended to replace the interoperability defence currently found in the bill and, as a consequence, the government does not support the proposed amendment. We talked a lot last night and today about that interoperability defence. The government does not consider that the defence that applies to mere participation accurately gives effect to the convention. Such an amendment would therefore be inconsistent with the purpose of the bill, which is of course to give effect to that convention. The convention does not prohibit mere participation or unintended or inadvertent participation in acts by a non-state party that would be prohibited to a state party. The bill uses the same language as the convention—a point I keep making because it should engender your confidence in the bill—to ensure that all conduct that is prohibited by the convention is the subject of a criminal offence under Australian law. Further, the term 'mere participation' is not defined and would be subject to interpretation. Creating a defence for mere participation ignores the limitations placed by the convention on the kinds of activities that can be undertaken in the course of military cooperation in operations with countries not party to the convention.

Creating a defence or mere participation also risks removing criminal liability for a broader range of conduct than is permitted by the convention. Again, I say the bill uses the same language as the convention to ensure that the bill accurately reflects the provisions found in the convention and reflects international agreement on the prohibition of cluster munitions.