George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

(Quorum formed) The coalition supports the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 as another positive step in encouraging the action initiated by the Howard government. Australia was one of the original signatories to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction. In 1998, the Australian parliament gave effect to the mine ban convention which required the Australian Defence Force to destroy Australia's stockpile of antipersonnel landmines, and the Howard government took this step several years before the necessary deadline. The Howard government also supported these initiatives with funding of $100 million over 10 years. This was backed up in 2005 with a further $75 million over five years.

The coalition believes that the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 is another positive step in continuing the action initiated by the Howard government. We welcome the fact that the Australian government was among the initial signatories to the convention on cluster munitions in Oslo in 2008. On 18 November 2009, the member for Curtin, the Hon. Julie Bishop, stated the coalition's support for the prompt ratification of the convention. The convention, she said:

… will expand international efforts to reduce the harmful impacts of explosives on civilians. It will also help promote the development of those countries worst affected, many of which are in our region. … It is a sad reality that the region in which Australia finds itself has fallen victim to the scourge of landmines and unexploded ordnance. Areas that could be used for agricultural or commercial activity, for example, continue to lie unused.

The coalition is pleased to note that the current bill addresses the concerns raised by the Department of Defence and the recommendations of the Senate Standing Committee on Foreign Affairs, Defence and Trade in its inquiry into the prohibition of cluster munitions. That inquiry took place in 2006.

It is crucial to our long-term national security interests and to the safety of Australian Defence Force personnel that we maintain the right to retain or acquire a limited number of munitions for the development of and training in cluster munition detection, clearance or destruction techniques, or the development of cluster munition countermeasures. Importantly, the bill also protects Australia's right to engage in joint military operations with non-state parties.

The coalition supported this bill in the House of Representatives. We do not plan to seek amendments in the Senate. The Senate Foreign Affairs, Defence and Trade Legislation Committee recommended that the bill be passed. The government's submission to the inquiry stated that the bill was consistent with the earlier recommendations of the Joint Standing Committee on Treaties.

I note that the Greens propose amendments to the bill in the belief that the bill does not reflect the spirit of the convention. In 2006, the Greens and Democrats co-sponsored the Cluster Munitions (Prohibition) Bill 2006 to prevent ADF members from deploying cluster munitions. It was referred to the Senate Standing Committee on Foreign Affairs, Defence and Trade, which recommended that the bill not be passed—that is, the Greens-Democrat bill. In its submission to the committee concerning that bill, the Department of Defence noted, 'If enacted, the Greens bill will put Australia at a serious military disadvantage in future conflicts which would be detrimental to our national interest.'

It is the coalition's view that the bill now before the Senate addresses these concerns and that the purpose of the present bill would be substantially thwarted were the Greens amendments to be passed. For these reasons, the coalition support the bill and will oppose the proposed amendments.

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

The Greens do not support this deceptive, misguided and outright offensive bill—the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010. I will address some of the comments that Senator Brandis has just made. It is interesting that, by way of supporting his argument about why the Senate should not look at the Greens amendments, he spoke of a bill that is not even before the parliament. When we get to the committee stage, I will address the detailed arguments and the reasons I believe this bill should pass this chamber if it is amended. But, in its present form, we are better off without the bill. Considering the role that the Australian government has played, or the role it said it has played, in supporting the outlawing of these hideous weapons, that is a sad thing to have to come in here and say—that not just Australia but the global community and those who have worked for a decade to bring this convention into force are now saying that they would rather Australia did not ratify it because of the example this sets. This is not a point of view that the Greens have arrived at alone.

As an Australian Greens senator and as a member of the crossbench, sometimes I feel I come in here to try to explain in detail my point of view on a bill that I strongly oppose, so that senators from other parties will understand why it is that we oppose the bill. In this instance, that is not why I am going to bother. I know very well that senators from both the old parties also deeply oppose this bill. One of the reasons that it has taken so long to bring this bill to the chamber is that there was substantial dissent both from the coalition and from the Labor caucus room about what they had been hearing about the bill and its inherent flaws. So I do not feel as though I need to explain to other senators why we should not be voting for this bill in its present form. Nonetheless, I am going to do so to place it on the record so that others looking back at the Hansard in years to come will understand that this chamber voted for this bill in the full knowledge that it is badly flawed.

Human Rights Watch and the Harvard Law School said:

The Bill creates a defense for many acts during such operations that on their face violate the convention.

Not only does the drafting of this bill violate the spirit of the convention; it violates its letter. In fact, the Australian government is attempting to pass legislation that would bring us into accord with the convention—and no doubt there will be a press release from the minister either very late tonight or sometime tomorrow morning, depending on when this bill passes, cheerleading the government's accession to the convention. The government should not be too surprised at the total absence of applause from the arms control community and those who have been shepherding and watch-dogging this convention from the day it was conceived to these sorry events.

Former Prime Minister Fraser says:

… the government has drafted legislation scattered with alarming loopholes that, to my mind, directly undermine the spirit and intention of the convention.

General Peter Gration, former Chief of the Defence Force, said:

… the wording used in our legislation goes well beyond [that required for interoperability with US] and in fact it doesn't follow a couple of the key things that the convention is about …

That is a former CDF—someone who cares deeply about Australia's military capabilities. Paul Barratt, former secretary of the defence department, said:

Legislation in these terms is clearly at odds with a convention whose central purpose is to prevent the use of cluster munitions …

Mr Acting Deputy President Bishop, you guided the Senate Foreign Affairs, Defence and Trade Legislation Committee, if I am not wrong, in its examination of this bill, which I guess was more than a year ago now. It was referred to that committee because the Scrutiny of Bills Committee said the legislation in its present form is actually strikingly at odds with what the Joint Standing Committee on Treaties had to come up with. Although we will be alone, I suspect, later tonight or tomorrow when this bill is put to the vote in terms of numbers in the chamber—I have not consulted with the crossbench—we are not alone in terms of the numbers of people whose hopes have been violated by the government choosing to bring this bill back in this unamended form.

Why is this important? I believe many senators, apart from me and some of my Greens colleagues, had the good fortune to meet Soraj Ghulam Habib, an Afghan boy who lost both his legs and part of one of his hands as a child and was left for dead. His cousin was killed in the same blast. These weapons are indiscriminate. If you wanted to design a weapon that targeted civilian children, I am not sure you could come up with something better than these devices. When senators stand up and address this bill, they will claim a horror equal to mine in the fact that these weapons are deployed, and I suspect they will claim that they want to see the elimination of these weapons. Indeed that is why Australia is signing up to the convention.

The fact is that we are signing up to a convention in a way that fundamentally sabotages its objectives. It is not just me saying that. There are voices from here in Australia and around the world who have followed this convention from its initial drafting to today and they are saying, 'This is the wrong way. We must go back.' Soraj was left for dead. His cousin was dead. He was taken to the morgue where an uncle realised he was alive and pulled him out of there. He is now one of the world's foremost advocates for this convention, for the elimination of these horrific weapons from the arsenals of countries around the world.

Australia has a good record on this account in that it experimented with the use of cluster weapons quite some time ago. I believe it was not even a documented decision that originated from a policy level but, in fact, that the ADF did not want them. They had no use for weapons of this kind—indiscriminate weapons—that lie on the battlefield long after the conflict or the front has passed and continue to maim and kill people. So the ADF gave them up. We have never deployed them in our arsenal to any great degree. On the other hand, our great and powerful ally, the United States, takes the opposite view and has refused to become a party to the convention. That is where one of the great and most problematic issues around this legislation as currently drafted arises.

The bill, as it is drafted, allows Australian forces to store, transport and assist in the use of cluster weapons. It does not allow outlaw direct and indirect investment in companies producing these weapons. These are not accidental loopholes or accidental flaws. Of course they are not.

We are one of 108 countries that signed the 2008 convention on cluster munitions. A large number of other countries also signed on the same day. We know the idea is going to sound, perhaps, a little extreme that Australia would simply adopt the negotiating tactics of a party that not only deployed cluster weapons but was refusing to sign onto the convention and was insisting that it will continue to deploy these weapons because, in its view, they still had some residual utility. Of course, I am referring to the United States.

Heaven forbid that Australia, as a party to the convention, would simply do the United States government's bidding on its way through the negotiations. I particularly refer to the drafting of article 21. We know that this is not some outlandish conspiracy theory. We know word for word exactly what the Australian government was up to and we know this because of the cable releases that were put into the public domain by the Wikileaks organisation. It is ironic that today—18 hours after its editor-in-chief, Julian Assange, has been granted political asylum and is speaking from the window of an embassy in London about his desire to call the dogs off on whistleblowers around the world—we are reminded of exactly why this organisation and those like it are so important, not just the Wikileaks organisation, of course, but also those mainstream media organisations that took those releases, understood their importance and ran them on the front pages of the world's newspapers.

We know, for example, through cable traffic between our US embassy in Washington and here in Canberra that Australia was doing just that. We were simply running sock-puppet arguments on behalf of the United States government, seeking to undermine the very objectives of the treaty. It was not just us alone; we worked with a number of other like-minded countries seeking to do the bidding of the United States government to effectively allow a number of key flaws in the bill. As far as these concern Australia, the two major ones are interoperability—that is, how do we participate and collaborate with United States military operations when we are a party to the convention and they are not?—and what the boundaries are.

The Australian Greens support the notion that, while we may in the future, and certainly have on many occasions in the past, seek to conduct joint operations with the US government, it should not in itself preclude us from joining the treaty. It should be possible to come up with a form of language that says we can participate in joint operations, as we are in Afghanistan, but we will have nothing to do with the deployment or use of cluster weapons. Therefore, the principle of interoperability is sound. It is drafted into the treaty in language that is reasonably sound and was tortuously negotiated and now it has been dramatically undermined and turned 180 degrees in the wrong direction by the drafting in this bill.

In this case, Wikileaks again showed why we need organisations like this. This kind of sick behaviour does not go on behind closed doors but is exposed to public scrutiny so that we know that, while government spokespeople on the one hand are saying, 'We are all for it; let's get signed up; let's make sure that these weapons are banned', on the other hand we are negotiating as though we deployed these things ourselves.

We were not successful in undermining the language in the treaty. In fact, that is not how the negotiations turned out at all. The convention is a ban, and the language is universal—it is a ban. We have positive obligations as a signatory to the convention to encourage others to forgo the use of these horrific weapons as well. So Australia in that instance was unsuccessful in watering down the terms of the convention that it is now seeking to ratify. The fallback position, obviously, is to embed in domestic legislation precisely the grotesque loopholes that we were trying to write into the convention itself. We did not succeed in undermining the convention on behalf of all the states' parties that wanted to sign up the vast majority of the world's people. Instead, we have this rather grubby little attempt acting at drafting it into the domestic legislation. It is the job of this chamber to fix those flaws.

I had hoped, certainly in response to what I knew, that I would hear Senator Birmingham speak on the final passage of this bill, because I would have been very, very interested to hear his views. However, I understand he will not be present for the debate tonight, which is a great shame. From the Labor Party's point of view, there are many people I know who have grave concerns about this bill and that is one of the reasons it has been delayed for so long. Perhaps Senator Marshall can enlighten us when he is able to speak. Perhaps not. Perhaps everybody is happy. Perhaps you were persuaded by your briefings and the bill is fine and all of our concerns are overblown.

However, in my view the bill needs to be redrafted and we have amendments that will give this effect, to reflect the continued application of the convention's prohibitions, including the prohibition of assistance during situations of interoperability. The version of the thumbnail sketch that was put to me is that the way this bill is drafted—and I will take these issues up in detail when we get to the committee stage—is that we can carry the weapon onto the field, we can load it and we can help aim it as long as somebody else's finger is on the trigger when it is fired. That is in direct violation of the explicit drafting in the convention.

If that is the case, by all means back away and we can get a statement from the Minister for Defence tomorrow saying: 'As objectionable and horrific as these devices are, we still support their use by other parties.' Alternatively, come clean and say that this bill has been drafted with intentional loopholes to enable our ally to use them during joint operations which would directly implicate Australian forces. Also—and our second tranche of amendments will cover these issues—the bill needs to be amended in relation to jurisdiction issues which explicitly allow foreign forces to use Australian territory to stockpile and transit cluster bombs.

Perhaps two years ago, when this legislation was first conceived of, that all seemed to be somewhat academic. Now we have a US Marine Corps base gradually being assembled quite close to Darwin. We have a US Air Force base being established at Tyndall. No doubt government spokespeople will jump up later and have a go at me for using the word 'base'. But, to be honest, this looks like a duck and quacks like a duck: US Air Force bombers and fighter jets are being based at Tyndall in the Northern Territory. Persistent rumours blew out into the open a couple of weeks ago about a US naval facility in Cockburn Sound. That is my home port as well.

So the idea of US forces transiting themselves and these weapons through Australian ports, through Australian facilities, and stockpiling them is not academic at all. This bill explicitly allows the United States or other foreign military forces to stockpile these weapons about which the Australian government will later tonight or tomorrow put out a press statement saying, 'Oh, we oppose their existence at all. We hope they are banned.' Yet we are okay with them being stockpiled here in Australia. If my reading of the drafting of the bill is incorrect, then I look forward to having that pointed out. Otherwise, I look forward to the support of senators on both sides when we put the amendments to the vote.

The third major area of amendment is something that I would have thought would have been the easiest to fix. It is the one that the Wikileaks revelations are silent upon and that I thought might be a genuine drafting error rather than a deliberate attempt to sabotage the objectives of the convention. This refers to investment. We have obligations under the treaty to ban all forms, both direct and indirect, of investment in cluster munitions. This echoes calls most persuasively put during the inquiry by the Australian Council of Super Investors on behalf of the Australian financial industry, who came to us and said, 'You have to tighten the provisions in this bill.'

To its great credit, the Future Fund was divested not just of companies that were directly implicated in making these weapons but of companies that were indirectly implicated—and the Future Fund is very well aware that the drafting of this legislation, which obviously was not in force at the time that it made its decision, would not have required it to do that. So there is another gigantic loophole. This one I hope is an error; this one may not have been intentional. There is no strategic reason for it. There is nothing about enabling investment in these weapons necessarily that involves sucking up to the United States, so if that is not what it is about then I very much look forward to hearing the reasons it has been drafted as it is.

The inquiry of the Joint Standing Committee on Foreign Affairs, Defence and Trade, which our Acting Deputy President, Senator Bishop, chaired, heard from witnesses right across from the spectrum, such as the financial industry and the Cluster Munition Coalition, who have spent such a long period of time representing a very large number of civil society groups here in Australia and around the world. They gave compelling evidence on behalf of their membership. At that stage I do not believe we had seen those Wikileaks revelations, and it appeared to the committee that the evidence as presented was that this must have been a giant mistake—that they must have been drafting errors. So, as drafting errors, they could be fixed, and we came up with propositions for doing that.

Then, a short while after that, we were informed that in fact they were not errors at all. These loopholes were there for a reason. They have been drafted that way to make sure that the bill is essentially in violation of the objectives of the convention itself. We agreed with and shared the concerns of the Cluster Munition Coalition, who pointed to the fact that the Convention on Cluster Munitions states that parties should never, under any circumstances, engage in prohibited activities related to cluster weapons. That includes joint operations in which we are complicit in using these weapons—as we were during Operation Desert Storm on the way into Baghdad.

The convention also insists that you will not be stockpiling stores of these weapons for deployment by a non-state party. What possible rationale could there be for leaving that possibility wide open? What New Zealand has done in this regard in its implementation of legislation which went into force in 2009 allows for joint military operations while preserving the convention's prohibitions. There are ways of doing this. Of course there are. New Zealand's law criminalises all activities prohibited by the convention's article 1. On the issue of foreign forces stockpiling these weapons on Australian soil, we need to take a look at the way Austria, Colombia, Guatemala and Slovenia brought the convention into domestic law and found ways of not undermining the basis objectives of the treaty.

In terms of investment, we have an amendment that would solve the investment issue—that would simply make it illegal to inadvertently perhaps, or intentionally, invest. As the country's financial community spoke about so compellingly at the committee hearing, this bill should not pass in its current form. I look forward to contributions from other senators explaining why they think the bill should pass in its current form, when it has been so dramatically critiqued by people who know a great deal more about the way that this convention was designed to operate. The convention is designed to be universal and it is designed for the eradication of these horrific weapons. There are no ifs or buts. Other countries have shown that there are ways of preserving interoperability without damaging the way that this convention was intended to come into force. Surely it is not beyond the wisdom of this legislature and this Senate—and people are watching this chamber tonight—to fix the flaws in this dramatically unfortunate bill that simply should never have seen the light of day. If it is the government's intention to sabotage the cluster weapons convention then at least have the guts to come out and say so. I thank the chamber.

Lisa Singh (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak to the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010. This bill ratifies the Convention on Cluster Munitions, which Australia signed on 3 December 2008. Such a convention, and its implementation across the globe, are well overdue. Under the convention, a cluster munition is defined as a conventional munition that is designed to disperse or release explosive submunitions. In reality, cluster munitions are canisters dropped by aircraft and open in midair, scattering numerous small explosive devices over huge distances. Their use in areas inhabited by civilians usually results in large numbers of civilian injuries and deaths, and hinders development by making areas of agricultural land inaccessible and generally limiting movement.

I strongly believe that the use of cluster munitions is reprehensible. Their military utility in preventing the movement of troops pales in comparison to the devastating effect they have on civilian populations. The casualties of cluster munitions are indiscriminate, and the victims are disproportionately innocent people caught up in and around conflict zones. Cluster munitions continue to cause untold pain and tragedy in theatres of war in which open conflict has long since ended. The persistence of bomblets and munition remnants long after deployment has ended makes the effects and legacy of war almost impossible to leave behind.

The effects are seen in our own neighbourhood. Between 1964 and 1973, over 260 million munitions were dropped on Laos, comprising over two million tonnes of ordnance. Of those, around 80 million munitions failed to explode, resulting in approximately 300 new casualties from unexploded ordnance each year. Despite constant efforts by a number of government and non-government organisations in Laos, the vast majority of those munitions remain; many undocumented, many undiscovered. They are often discovered too late, when children dig them up, lured by the shiny, toy-like appearance of the small bomblets, or when they are unearthed in land clearing or ploughing on farmland. This is something I discussed last week with a delegation of parliamentarians from Laos who joined us here in our parliament. It is one of the main issues that are still in discussion: how to have that ongoing use of agricultural land in Laos but at the same time ensure the safety of their people when so many cluster munitions remain under the ground. The story of one young Laotian man speaks very much to the circumstances of thousands of families across Laos. He said:

We were walking down the road on the way to the school when my friend saw a small bulb. He didn't know what it was. He picked it up and passed it to me. I didn't know that it was a bomblet. I took it from him and tried to open it to see what it was. It detonated immediately. My friends ran back to our village to get help, and left me where I was, unconscious.

After I don't know how long, my family arrived. They put me in a car and took me to the Vientiane Province hospital in Louksambouk. I woke there, fourteen hours later.

Eventually, the doctors amputated both my hands, because they had been so severely injured in the accident. My eyes were injured also. At first I could not see at all, but within time, fifty per cent of my eyesight returned, only to deteriorate again. Now I am blind.

I spent one and a half months at the hospital. My family had to sell two buffalo for 120,000 kip, borrow 6,000,000 kip and use their entire life savings (about 16,000,000 kip) to pay for my medical care.

Phongsavath Manithong is now a Ban Advocate for Handicap International, where his story is recorded. Phongsavath's accident occurred on his 16th birthday, robbing him of the life he had expected. This young man has turned his tragedy to advocacy, though, becoming a champion for the abolition of cluster munitions. But many victims do not survive their encounters with bomblets; still others do not have the capacity or support to rebuild their lives after the carnage that has been brought upon them.

Further afield, cluster munitions were used by the Russian Federation in their 2008 conflict with Georgia over South Ossetia. That conflict lasted just a single week, but of course munitions cannot heed the call to stand down. Those weapons ensure that war continues to be waged well into peacetime. In 2006, the month-long conflict between Israel and Lebanon saw no less than four million cluster munitions dropped into southern Lebanon, resulting in 654 casualties up to December 2011; one in five of which have been children. And, most recently, in only the past few weeks, Human Rights Watch has been able to confirm that the Assad regime has employed cluster munitions against Syrian civilians in Jabal Shahshabu. There should be no doubting that, more than any other conventional armament, these are weapons of ill-conscience. That is why the cluster munitions convention is so important: to prevent future tragedies and future casualties of these terrible weapons.

This bill is designed to give effect to the convention under Australian law, introducing criminal offences relating to the use, development, production, acquisition, stockpiling, retention and transfer of cluster munitions, as specified in the convention. I regard the bill as a starting point for Australia's support for the goal of ending the use of cluster munitions, complemented by diplomatic efforts and our international aid program.

I do want to recognise the role of civil society in pushing for both the convention and the strongest form of legislation to prevent the use of cluster munitions. I have received representations from individuals and groups from across the country, all of whom are driven to their advocacy in order to prevent damage to the most vulnerable people caught up in war zones. I especially want to recognise the Cluster Munition Coalition of Australia and their members, including the Medical Association for the Prevention of War, Soroptimist International UK programme Action Committee and the Women's International League for Peace and Freedom, who have all endeavoured to make me aware of the complexities of the cluster munitions and disarmament issues.

As a number of those non-government organisations have noted, this bill also includes defences for a range of conduct permitted under the convention to allow Australia to continue to work with our allies, and to train in the detection and disarmament of cluster munitions. These defences are designed to protect Australian soldiers from prosecution for inadvertent assistance with cluster munitions when deployed with the forces of nonparties to the convention. These defences are not designed to enable Australian forces to actively participate or assist with the use of cluster munitions, and the legal prohibition on Australian forces making the decision to use cluster munitions will definitely remain.

Moreover, Australian Defence Force doctrine, procedures, rules and directives, which are properly not included in this legislative process, will reflect the notion that Australian forces should not be involved in operations involving cluster munitions. Indeed, this notion must be, and is, reflected across the government's priorities in ways that are not restricted to the ratification of this convention in law. The Australian government's investment fund, the Future Fund, has divested itself of holdings in 10 companies related to the production of cluster munitions. As a matter of foreign policy the Australian government will continue to urge foreign governments, especially our partners in the United States, not to use cluster munitions and to accede to this convention. As part of our effort towards cluster munitions disarmament, Australia has already committed $100 million of support to countries affected by landmines, cluster munitions and other explosive remnants of war under the Mine action strategy for the Australian aid program 2010-2014.

As well as working with partners across the world, including institutions across the UN system, Australia has been a committee donor to partner governments in 16 affected countries in the Asia-Pacific, Middle East and Africa. These include places like the Kingdom of Cambodia, where Australia is also helping to implement the National plan of action for persons with disabilities, including landmine/ERW survivors, and Afghanistan, where the number of people falling victim to landmines thankfully continues to fall.

It also includes supporting organisations like the MiVAC Trust, an organisation started by Australian veterans of the Vietnam War which trains locals, especially women, to safely clear mines from fields and helps to repair some of the damage to infrastructure brought about by war and weaponry. MiVAC receives AusAID funding but equally it receives donations of time, money and energy from the Tasmanian community, and the rest of the Australian community, for its work. Once again, it is this contribution from civil society that has kept this issue on the agenda. I am grateful that my work in the past with MiVAC, the United Nations Association of Australia, the Women's International League for Peace and Freedom and other organisations involved in the peace movement have brought me into contact with some of the people working closely in this area.

This bill is an important part of implementing the cluster munitions convention and bringing pressure to bear on those states which are not yet party to it. I understand the reservations of some of the community on this bill but I believe it is an important piece of legislation. I want to thank my colleagues who so vigorously pursued the non-legislative assurances the government has put in place and which I understand Senator Ludwig will outline in his second reading speech. Ultimately it is my hope that both the international and domestic framework against cluster munitions and other reckless armaments can be strengthened, and that all nations will share our view that cluster munitions should not form part of the arsenal of any defence force that is conscious of its impact on civilians and international law. I commend the bill to the Senate.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010. As weapons go, cluster bombs are particularly obnoxious. It is unfortunate that they were ever invented in the first place and it is even more unfortunate that they have ever been used.

Cluster bombs are a large weapon system containing multiple smaller bomblets—often hundreds of them. They can be dropped from the air or fired from the ground. Cluster bombs are wide-effect weapons. This means that their impact is not limited to one precise target such as a tank. They are housed like peas in a pod. The container opens in the air and scatters the bomblets over a wide area, sometimes the size of several football fields, and this impact is referred to as the footprint. A cluster bomb has an outer bomb casing which breaks open in midair, raining down hundreds of smaller bombs over a large area—as I have said this can be several football fields in size and as far as a kilometre away. According to Handicap International's 2006 study, approximately 98 per cent of all victims of unexploded cluster munitions are civilians; and of that 98 per cent almost one-third are children.

It is unfortunate that there is still armed conflict in many parts of the world. It is unfortunate that there has been armed conflict in many parts of the world. But inevitably whenever there is armed conflict there will be a resolution—often at the cost of many millions of lives, and that is an enormous human tragedy. It is unfortunate that human beings tend to do these things to each other. Once the conflict is over the people involved need to get on with rebuilding their lives, rebuilding their countries and, sometimes, rebuilding their nations. The legacy of cluster bombs, landmines and other obnoxious weapons place a significant handicap on the country's ability to rebuild after armed conflict. As an example, between 1964 and 1973—I was a young child at that time—the United States dropped 260 million cluster submunitions on Laos in a covert mission to destroy North Vietnamese supply lines. Not only did that mission ultimately fail in its strategic aim, bringing into question the need for cluster munitions at all; it also left a deadly legacy. It is estimated that there are 80 million unexploded bombs scattered across the Laos countryside today. The United States bombing campaign on Laos involved 580,000 missions and two million tons of bombs—an average of one bomb every eight minutes for nine years. Those bombs have killed or maimed more than 20,000 people since the war ended and they are a major obstacle to the economic development of one of Asia's poorest nations. Not only was this country not directly involved in that particular armed conflict but now, many decades later, it is still suffering the enormous consequences—with huge tracts of land unusable because of the amount of cluster munitions still unexploded.

It is children in particular who are attracted to these munitions. Often munitions of that age are brightly coloured. They look like toys and are attractive to people from rural and poor communities, who go and touch them.

In Laos today there are still 200 people wounded or killed by those unexploded cluster munitions every year—again, 40 years after they were dropped. Given this deadly heritage, it is not surprising that Laos recently added the ninth millennium development goal, which is to clear its land of unexploded ordnances. It is something with which Australia assists many countries in our region. Australia works with the international community to remediate regions and communities affected by explosive remnants of war, including cluster munitions. The government has allocated $100 million over five years to undertake that work. It is painstaking and dangerous work, and it has left an enormous legacy.

The Convention on Cluster Munitions is a wonderful and important thing for Australia to be involved in, and Australia was key to getting the convention up in the first place. A lot has been made of the disappointment of some the advocates for this convention, and I have met with many of them on numerous occasions. I have taken their concerns very seriously and, as a consequence, I have met with the Attorney-General on a number of occasions, the Minister for Foreign Affairs on many occasions and the Minister for Defence on many occasions about the issue; there have been numerous meetings and discussions. Senator Ludlam said that we might be convinced by the briefings and he would be interested to know that, yes, I have been.

There are a number of concerns about why the nature of the legislation differs from the nature of the legislation in New Zealand and in Great Britain. Clearly, in every country there are different frameworks that underpin different forms of legislation. Legislation needs to be looked at purely in an Australian context to meet the needs of faithfully implementing the convention in the Australian context. Much was made of proposed section 72.42 in the bill. I want to make my assessment very clear. After the multiple briefings I have had—I understand the minister will clarify all these matters and put them into the second reading speech to put it beyond doubt—it is my view that this bill is an essential step to becoming a state party to the Convention on Cluster Munitions and that the bill faithfully implements that convention.

Notwithstanding proposed section 72.42, visiting forces would not be excused from prosecution if they use, develop, produce or acquire cluster munitions in Australia. Proposed section 72.42 is, in my view, consistent with the provisions of the convention and does not amount to the government's authorisation to engage in the specified conduct. The bill does not require Australia to accept stockpiles of cluster munitions on its territory from countries that are not party to the convention. I am advised that, currently, there are no foreign stockpiles of cluster munitions in Australia and, as a matter of policy, I am advised that the government has not and will not authorise such stockpiling. I am further advised that the government will confirm this commitment in a public statement at the time of Australia's ratification of the convention and in Australia's annual transparency report under the convention. I am advised that that will be a very clear public statement at both those times.

It is also important to understand that ADF personnel will not be permitted to use, develop, produce or otherwise acquire cluster munitions, or make the decision to use, develop, produce or otherwise acquire cluster munitions, including while serving on combined operations with defence forces of other countries, in combined headquarters or on exchange with a foreign force. So I understand and advise that there is nothing in this bill that permits Australians to engage in any breach of the convention, and the bill delivers on those commitments. ADF personnel serving alongside defence forces of other countries remain subject to Australian domestic and international legal obligations and national policy requirements. The national policy requirements are applied through ADF doctrine, procedures, rules and directives. As a consequence of the convention, all of those doctrines, procedures, rules and directives will faithfully implement the legislation, which faithfully implements the convention.

It is important to retain proposed section 72.41 and 72.42 to ensure the continuation of Australia's military cooperation and engagement with countries that are not party to the convention. This is permitted by article 21 of the convention. The ability to maintain interoperability is central to the protection of Australia's national security. I would be as happy as everyone else if all countries were prepared to sign on to the convention and ban cluster munitions, but one of our key allies, the United States, at this point has not banned cluster munitions. They are integral to our national defence. We are in alliance with them and our defence forces work all the time with the forces of the United States but, let me just repeat: ADF personnel serving alongside defence forces of other countries still remain subject to Australian domestic and international legal obligations and national policy requirements. So nothing in the legislation permits an Australian who is working with other forces who have not signed the convention to breach this legislation or the convention.

In line with our positive obligations under the convention Australia will continue to discourage the use of cluster munitions by countries that are not party to the convention. So, if we are in the position, which we will be when we are working alongside forces from the US, it is our positive obligation to discourage the use of cluster munitions by that country, and I am advised that we will be active in doing so on an ongoing basis. So, I am happy to support this bill. Initially I did have some concerns with it but, as I have outlined, I am satisfied that the bill has faithfully met our convention obligations.

Proceedings suspended from 18 : 30 to 19 : 30

Before the dinner suspension I had virtually finished what I needed to say about this bill. However, I am looking forward to the minister explaining Australia's policy on interoperability and stockpiling and putting some of those issues to rest.

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

I thank the various senators who have made contributions to this debate. In fact, I had the good fortune to hear all of them. The Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 is a significant step towards Australia meeting its obligations under this important convention and will strengthen Australia's legal framework regarding weapons that cause significant and indiscriminate harm to civilians.

I wish to respond to some comments made by Senator Ludlam. The senator alleged that while the convention is sound, the bill does not faithfully reflect the convention. In fact, the bill uses the same language as the convention in order to ensure that all conduct that is prohibited by that convention is the subject of a criminal offence under Australian law, unlike the amendments proposed by the Greens party. In particular, section 72.41 of the bill on the interoperability defence uses the language of article 21 of the convention. Senator Ludlam has also raised the notion that Australia sought to undermine the negotiations on the convention. Australia's position both during the negotiations and today is that the ability to maintain interoperability with countries not party to the convention is central to the protection of Australia's national security as well as international security.

This bill includes the legislative measures necessary to give effect to the convention on cluster munitions, a convention which the Australian government strongly supports. Australia is committed to ensuring the strongest possible ban on cluster munitions. As set out in the government's policy statement, this bill is an essential step in Australia becoming a state party to the convention on cluster munitions and faithfully implements the convention. As a state party, Australia will be prohibited from stockpiling cluster munitions. Section 72.42 of the bill provides that certain acts by foreign military personnel of countries that are not party to the convention are not offences under section 72.38 of the bill when the act is done in connection with the use of a base, foreign aircraft or foreign ship in Australian territory. These acts include stockpiling or retaining a cluster munition or transferring a cluster munition.

Notwithstanding section 72.42, visiting forces would not be excused from prosecution if they use, develop, produce or acquire cluster munitions in Australia. Section 72.42 is consistent with the provisions of the convention and does not amount to the government's authorisation to engage in the specified conduct. The bill does not require Australia to accept stockpiles of cluster munitions on its territory from countries that are not party to the convention.

There are currently no foreign stockpiles of cluster munitions in Australia. As a matter of policy, the government has not and will not authorise such stockpiling. The government will confirm this commitment in a public statement at the time of Australia's ratification of the convention and in Australia's annual transparency report under the convention.

Section 72.41 of the bill provides that certain acts by Australian citizens, Australian Defence Force members or Commonwealth contractors are not offences against section 72.38 of the bill if the act is done in the course of military cooperation or operations with a country that is not a party to the convention. ADF personnel will not be permitted to use, develop, produce or otherwise acquire cluster munitions or make the decision to use, develop, produce or otherwise acquire cluster munitions, including while serving on combined operations with defence forces of other countries, in combined headquarters or on exchange with a foreign force. ADF personnel serving alongside defence forces of other countries remain subject to Australian domestic and international legal obligations and national policy requirements, which are applied through ADF doctrine, procedures, rules and directives.

It is important to retain sections 72.41 and 72.42 to ensure the continuation of Australia's military cooperation and engagement with the countries that are not party to the convention, as permitted by article 21 of that convention. The ability to maintain interoperability is central to the protection of Australia's national security. In line with our positive obligations under the convention, Australia will continue to discourage the use of cluster munitions by countries that are not a party to the convention. Australia will continue to work with the international community to remediate regions and communities affected by explosive remnants of war, including cluster munitions. The government has allocated $100 million over five years to undertake that very important work.

The bill creates a new range of offences to reflect the conduct that is prohibited by the convention. These offences include using, developing, producing, acquiring, stockpiling, retaining or transferring a cluster munition. These offences ensure that using a cluster munition is a crime both in Australia and for Australians overseas. The bill does not provide any defence for a person who uses a cluster munition. This reflects the convention's primary objective of prohibiting states' parties from using cluster munitions in all circumstances.

The offences in the bill carry a maximum penalty of 10 years imprisonment for individuals, or $330,000 for bodies corporate. This tough penalty reflects the serious nature of the offences created by the bill. The bill also creates defences to the offences, reflecting the range of conduct that is permitted by the convention. The convention permits continued military cooperation and operations between states parties and countries not party to the convention, subject to some restrictions. Continued cooperation between states parties and countries not party to the convention is central to the protection of Australia's national security as well as international security. For example, maintaining such interoperability is essential for Australia to be able to participate in United Nations mandated missions involving countries not party to the convention. This was a view shared by many countries during the negotiation of the convention. Therefore, consistent with the convention, the bill allows Australia to continue to maintain cooperative military relationships with countries that are not parties to the convention.

The bill is one of the measures necessary to give effect to the convention. In line with the convention, Australia will continue to urge countries not party to the convention not to use cluster munitions and encourage them to sign the convention. Australia will also continue to work with non-government organisations, which make a significant contribution to the universalisation of the convention. Once Australia ratifies the convention, the government will comply with the reporting obligations under the convention, which will ensure transparency in how Australia is implementing it. Consistent with Australian treaty practice, Australia's reporting obligations under the convention will be implemented through administrative means. Australia has a strong record in disarmament and international action to ban weapons that are excessively injurious or that have indiscriminate effects. Although Australia has not yet ratified the convention, it is already playing a constructive role to support the convention's humanitarian objectives. The convention is a remarkable humanitarian achievement, and this bill is a significant step towards Australia meeting its obligations under this important convention. I commend the bill to the Senate.

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

The question is that the bill be now read a second time.

Question agreed to.

Bill read a second time.