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

I would like to note the fact that I did not seek to call a division or a vote on the second reading, as is customary in this place, because I support the objectives of the bill, I support the reasons why the government has brought it forward and I support everything that has been said in here tonight in terms of why we would want to take these weapons out of the arsenals of the world's militaries. And I believe that I have circulated amendments that would allow me, in good conscience, to advise my colleagues to vote for the bill. I will not be, however, voting for the bill on the third reading if none of the amendments pass, for reasons that I made reasonably clear.

Before I put some general questions on the bill to the minister—and I suspect this is going to end up feeling somewhat like deja vu before we are done—I would like to make two acknowledgements. Firstly, I acknowledge the funding commitments that the minister announced. I ran out of time during my second reading contribution to acknowledge the funding commitment that the government has announced for mine-clearing activities and so on. That is extremely welcome, and I am sure that it is welcome in the places where those funds are to be expended. I note also that Australia does have a good record in the areas of mine clearance and so on. Even in some of the work that I have done in this area, it is obvious that Australia has played a very constructive role. Obviously, the reason we will be bringing these amendments forward—and, you could say, the primary reason for developing this convention and then enacting it in domestic legislation—is that prevention is a lot better than mine clearing. Preventing these appalling weapons from being dropped and discarded in the first place is vastly better than spending tens and then hundreds of millions of dollars to dispose of the bomblets.

The second acknowledgement—and I hope the debate can continue tonight as it has begun—is that I believe that everybody who has spoken in this debate so far genuinely wants to rid the world of these weapons. So the comments that I make in critique of the government's approach do not go to the general motivations behind senators in this place tonight, none of whom, I presume, have been directly involved in the negotiations. I did not hear anybody suggesting hesitancy or doubt, I suppose is the point that I am trying to make. There is cross-party consensus in this chamber, and in the House of Representatives, that these weapons should be eradicated.

To briefly mention something that I was going to mention in my second reading contribution, I want to ground the remainder of this debate in an understanding of what it is that we are seeking to abolish, and the reasons why we would do so. This is from a US columnist, writing in 2004, by the name of Paul Rockwell, who provided one of the more concise definitions of these weapons:

A cluster bomb is a 14-foot weapon that weighs about 1,000 pounds—

or 455 kilograms—

When it explodes it sprays hundreds of smaller bomblets over an area the size of two or three football fields. The bomblets are bright yellow and look like beer cans. And because they look like playthings, thousands of children have been killed by dormant bomblets in Afghanistan, Kuwait and Iraq. Each bomblet sprays flying shards of metal that can tear through a quarter inch of steel.

The failure rate, the unexploded rate, is very high, often around 15 to 20 percent. When bomblets fail to detonate on the first round, they become land mines that explode on simple touch at any time.

So, these are the things, these hideous and indiscriminate legacy weapons that lie on battlefields long after the front has moved on, that are the reason we are here tonight.

I would like to put a couple of questions to the minister at the outset. I will put these ones on notice unless, in a flash of brilliance, your advisers have this material on hand. But I would like to bank these questions for—oh yes, nods from the advisors' box! We will see. I am interested to know, quite specifically: firstly, the military forces with whom we have cooperative agreements who are, or have in the last period of time—and I don't mind how we define that—transited through Australian ports or airfields. For example, the United States Navy, probably the French Navy and the Singaporean Air Force.

So it is the number of parties, being foreign military forces, who would potentially be caught by this bill and who also deploy cluster munitions in their armouries. So, if I may, I would like to put that question on notice, through you, Minister, to the department so that we can get a sense of whom we are talking about. Obviously, my remarks this evening will focus on the United States military. We have the closest defence ties with the US government. They have the largest amount of hardware transiting through Australian facilities. That is where I will focus my remarks, but I am interested at the outset to know who else these provisions might impact upon.

The second question that I will put on notice, and I can take some advice as to how complex this will be, is this: which weapons systems and on which platforms does the United States military deploy cluster weapons? The minister is shrugging. I do not know whether this is a 'piece of string' question. If we could take this from 2002, from the invasion of Iraq, which I will come back to and refer to again in a moment, which US platforms deploy cluster weapons—army, navy, air force and marine corps? That is extremely important and the agenda moved on so rapidly, beginning with President Obama's visit late last year that actually outlined a deployment timetable for the US Marine Corps and then for the US Air Force and now it is potentially for the US Navy in the south-west. So the debate becomes not abstract at all and the debate becomes profoundly concrete. To get the facts on the table, which military forces transit through our ports and may be caught by, for example, the provisions relating or not relating to stockpiling and which platforms actually deploy these weapons and which can we disregard for the purposes of the bill? I will give the minister the opportunity to respond as to whether those are seen as being reasonable requests.

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

I think we will take both of those on notice. Let me provide an interim preliminary answer that will be subject, I am sure, to further deliberations. As I comprehend it off the cuff, those militaries that are not a party to the convention and that might have cause to be in Australia or Australia's territorial waters would be confined to the United States of America and France. Obviously, I would not expect to see other major holders or manufacturers and deployers of these sorts of munitions who are not party to the agreement, such as China, Russia, Iran and Brazil, transiting through Australia. So, Senator, I ask if you would be so good as to take that as a preliminary view and we will confirm that.

With respect to your second question, please afford this the same status as obviously there will be professionals inside the Department of Defence who will be able to provide a more forensic answer. As I understand it, cluster munitions in terms of US practice would typically be deployed by either aircraft—and aircraft of course are found across the United States Air Force, the US Navy and the US Marine Corps, as I comprehend it—or artillery. Artillery are found across at least the United States Marine Corps and the United States Army. Please take that as a preliminary view and I will see if we can provide a more refined answer.

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

That was more or less exactly the sort of answer I was expecting, so that is appreciated. I can let the chamber know now that before I move the amendments I do intend to dwell at some length and go through some reasonably detailed questions on why the government has chosen to draft the bill in the way that it has. So I indicate that potentially, depending on the way the debate flows, we may have to go until tomorrow morning and I will understand if the officers from the department are unable to provide that information tonight. I am seeking more fine-grained information than that it is simply deployed by the US Air Force or the US Marine Corps because we are now getting to the point where information is becoming available as to the kinds of aircraft that would be temporarily posted to Tindal, for example, and I would like to know whether they are the sorts of aircraft that could potentially be capable of deploying these weapons.

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

This is to assist the senator in order to provide a more detailed answer. Senator, it sounds like you want to get into the specifics of which platforms, which types of munitions and so forth. That is information I assume we would have to procure from the US, and that is a question we would have to ask of them. So I guess I am just foreshadowing that that might be a challenge in meeting your expectations about when an answer would be provided.

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

The United States, to give it its due, does publish a large amount of this sort of information even in the Jane's series of reviews into different kinds of hardware, so I would be surprised if somebody needs to ring the US Department of Defense to find out that information, but I will leave it to you as you have taken that on notice and I was not expecting an answer tonight. Minister, both you and, I think, Senator Marshall—I am not sure whether Senator Singh did or not—referred to the passage of this legislation as 'a first step', which I think is the phrase that you both used, to uphold our obligations under the convention, which to me suggests that it is in fact partial. I wonder what other steps the government is proposing in order to fully uphold our obligations under the convention if indeed this is only seen as a step.

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

I am advised that there are non-legislative steps that we will be taking to make sure that the convention is understood and enforced. Those sorts of non-legislative steps would include, for instance and as I alluded to in my second reading speech, appropriate adjustments to ADF doctrine and teaching, regulations, directions and rules of engagement—those kinds of non-legislative steps that are required so that we can be confident that the convention is being upheld in every respect.

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

I thank the minister. Minister, I think you indicated in your closing remarks that Defence Minister Smith will make some kind of statement to the parliament or to the general public when—is this it?—we lodge instruments of ratification or something of that sort. Firstly, could you please describe for me if that is the sort of non-legislative measure that you mean. Secondly, why is that not being provided to the parliament as we are debating the bill?

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

As is custom and practice for us under other international legal instruments, Australia will comply with its reporting obligations under the Convention on Cluster Munitions without the need for these obligations to be set out in legislation. The obligations contained in paragraph 8 of articles 3 and 7 of the convention do not require legislative implementation and will be implemented through administrative means.

The bill contains the legislative measures necessary to ensure consistency between Australian law and the convention and is a necessary step before Australia can ratify the convention, but the bill forms one part of the measures necessary for Australia to implement its obligations under this convention. These provisions contain requirements aimed at promoting transparency on states parties implementation of the convention. Paragraph 8 of article 3 requires states parties to submit annual reports regarding cluster munitions that they have acquired or retained for the permitted purposes set out in paragraph 6 of that article—namely, the development of and training in detection, clearance or destruction techniques for the destruction of cluster munitions or for the development of cluster munitions countermeasures. This paragraph also requires states parties to report annually on any cluster munitions that have been transferred to another state party for the permitted purposes under paragraph 6 or for the purpose of destruction. Article 7 of the convention contains further reporting requirements. This article requires states parties to submit annual reports on their implementation of the convention. And, in addition to complying with the reported obligations under the convention, the government will in each annual transparency report reaffirm its commitment to not allow foreign stockpiles of cluster munitions in Australia.

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

Minister, could you describe for us why the government has taken the approach of embedding that as a policy decision rather than embedding it in the bill? You will be aware that some of the very strong criticism that has been made of this bill is that it is effectively a 'trust us' approach, in that the bill allows behaviour to which the government then says, 'No, our policy is not for that to be allowed.' That is the fundamental problem that I have with the drafting of the bill. I will go to those when we go through it clause by clause, because my amendments are explicitly around closing these loopholes. Minister, you have just stood up and said: 'But of course that is not our intention. Of course, we will not do that.' I am not seeking to verbal you, but that would be inconsistent with the operation of the convention.

I should put Senator Nash on notice that I will be seeking her view on whether this is also coalition policy or whether this policy might change subsequent, for example, to a change of government. That is why we embed these things in law: so we do not have to worry about arbitrary policy decisions that could change according to contingency. So, Minister, I will return to this at length unless your answer is profound and brilliant. Why don't we just enshrine this in law instead of trusting ministerial statement that may come at some future time?

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

The government's intention, and the purpose of the bill, is to give effect to the provisions of the Convention on Cluster Munitions which reflect international agreement on the prohibition of those munitions. The convention was negotiated by approximately 49 countries and adopted by 107 countries, including Australia, and it was developed in close consultation with representatives of civil society. The primary purpose of the bill is to create criminal offences in Australian law for the conduct that the international community has agreed should be permitted. The bill uses the language of the convention wherever possible in order to ensure that all conduct that is prohibited by the convention is the subject of a criminal offence under Australian law. In conclusion, the government's view is that the bill is accomplishing the task set out for it, and it could be described as the centrepiece of a number of measures which keep faith with Australia's support for the convention.

Fiona Nash (NSW, National Party, Shadow Parliamentary Secretary for Regional Education) Share this | Link to this | Hansard source

The opposition is obviously broadly supportive of the government in this. I think the shadow minister clearly outlined the position on this in his speech earlier, and that would indicate our intent.

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

Senator Nash, I will forgive you because this bill is not within your portfolio responsibilities and you probably had no part in it. However, Senator Brandis spoke for a grand total of about four minutes and simply lined the coalition up with the government and then sat down—

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

That was a profound contribution.

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

It was a concise but profoundly disappointing contribution from the coalition and it gave us no comfort whatsoever. Senator Marshall and Senator Singh also mentioned the civil society groups that I listed in my second reading contribution. They all paid respect to the huge amount of work that has gone into getting this convention off the ground and getting parties to sign up to it but are now advising this chamber against voting for the bill. Is it the government's view that those groups are wrong, when they say—and I can provide more detailed quotations if that would be helpful—this bill is not at all consistent with the language of the convention which has a universal obligation not to have anything to do with these weapons at all within certain carve outs that we have all described thus far around interoperability and so on? Is it your view in fact that those groups are simply wrong? Are they misled?

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

I suppose, Senator, I would say we have a difference of opinion. I think, as you have said in your remarks, there is broad consensus about the convention, its aims and Australia's support for those aims. There is then a difference of opinion about how we have set about the task of enacting them.

You did warn, as we went into committee stage, that parts of tonight might seem like a re-enactment of estimates and, of course, we have had the discussion there about the interoperability provisions, which I am sure we will revisit shortly. There are obviously points of difference. The government has listened to those points of difference, as of course we have listened to the points made by the Greens. There is simply a difference of opinion about the efficacy of what you are proposing. But it is the government's firm view that these provisions, together with the other measures I have described, ensure that Australia will be upholding that convention in every material respect.

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

( Let us go to a specific case study around interoperability, and perhaps we will dwell here for a while and then come back to the issue of stockpiling and transiting through Australian airspace, waters and territory at a later time. I want to start with the question of interoperability, because I suspect it is the key sticking point. Would the minister care to comment on the very serious allegations, which were documented in a startling amount of detail in cables released through the Fairfax press by the Wikileaks publishing organisation, that Australia worked behind the scenes to undermine the objectives of the convention. When it was unable to do that on behalf of the United States, it resorted to implementing this bill in a way that is essentially structurally flawed. The allegations which I refer to were reported on 2 May 2011, so I guess the government has had plenty of time to contemplate those allegations. I will quote very briefly from a piece by Philip Dorling that ran in the Age on that day:

Diplomatic cables … reveal that, in 2007, Kevin Rudd's newly elected government immediately told the US it was prepared to withdraw from the negotiations if key 'red line' issues were not addressed - especially the inclusion of a loophole to allow signatories to the convention to co-operate with military forces still using cluster bombs.

Minister, the reason that this is significant is that Australia—and I deeply believe this—has no intention of kitting out the ADF with cluster weapons. This is not to do with us at all. I had an exchange with Defence, probably during that session that you were representing the government at the estimates table, about the ADF retaining a small quantity of these weapons—just a sample of live weapons—to train our troops. I have actually seen this happen at al-Minhad in the UAE. I have seen the kind of training that they undergo on how to recognise these things, particularly when they find their way into IEDs and so on. I completely understand and support the retention of a small representative sample of these sorts of things so that the ADF can train and know how to disarm them and so on. I do not propose to dwell there. My question is: if we have no further use for these weapons ourselves, apart from training, why would we be prepared to withdraw from the treaty if these red line issues were not addressed?

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

The first point I would make is that I do not accept the proposition that Australia sought to weaken or undermine the convention. Secondly, I would not think it reasonable to describe the interoperability provisions as a loophole. The view of the Australian government regarding the interoperability provisions in the convention is a matter of public knowledge. It is well understood. It is something that, indeed, you and I have discussed at estimates, I think, on several occasions.

Australia's position during the negotiations, and it remains so today, is that the ability to maintain interoperability with countries not party to the convention—and obviously the United States is a signal one of those—is central to the protection of Australia's national security as well as international security. Australia drafted the draft provision underpinning the current text of article 21, and the government is confident of the interpretation of the text which it was closely involved in formulating. The Australian government co-authored a discussion paper that was circulated at the Wellington negotiating conference in 2008, and that paper advocated for an interoperability provision in order to address the concerns of countries who, in the short-to-medium term, intended to continue to cooperate with countries who had no intention of becoming a party to the convention—and of course that includes the United States.

I suppose, in summary, Senator, we differ about your use of language in terms of 'undermining' the treaty or in 'developing loopholes'. We do not believe that is what we have done, and that is not reflected in either our utterances or our accomplishment to date. It is plain and, I think, generally understood that Australia continues to have an alliance relationship with the United States, and the interoperability provision is a key part of ensuring that we can keep faith with the convention and that alliance.

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

Minister, can you confirm for us—and I will quote directly from one of the US embassy cables dated 27 February 2008—whether or not:

Australia would welcome U.S. assistance in identifying African countries with potential interoperability issues who can be recruited to vote with the Like-minded and in reviewing the proposed interoperability text.

Unless this is being mistranslated or misreported by the US embassy here in Canberra—is Australia seeking US advice on which African countries we should lobby in order to find countries that we might be able to line up to weaken the treaty. Is it true? And what advice was provided by the US, if that is the case?

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

Firstly, let me say, I am familiar with the Wikileaks cable which you are referring to, so bear that in mind in my answer. But it seems to me that what you are essentially describing is a perfectly mundane process, and that mundane process is, firstly, the Australian government forms a view about the importance of an interoperability provision. Obviously, the United States would share our view insofar as it affects our alliance and the work our militaries do together.

Having formed an Australian government view about the worth of an interoperability provision—and there is no secret in that; we have argued for it long and hard—we then set about the task of building international support for our view. I do not see that as a revelation. I think really you are referring to the mundane conduct of diplomacy and the political task in international forums of Australia, once it has formed a view, then explaining it and building support for it.

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

Minister, if it would help—I know it will take a little while and we can come back to this—I am more than happy to table the document that I am reading from that contains verbatim quotes from the cables, because I do propose to refer to them from time to time. Would that assist?

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

I have no objection.

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

I seek leave to table the document.

Leave granted.

Just to be clear, what I sought leave to table is an article by NAJ Taylor. There is a certain amount of editorialising at the top that you will just have to forgive and you will probably profoundly disagree with it. The remainder of the four-page document is simply verbatim transcripts of the State Department cables. I will table that now, Minister, and then I might come back to this topic once you have had a chance to look at it.

I want to come to another matter that we have had a brief engagement with. I am not sure whether or not you were at the table, Minister. It is around Australian air support during the Iraq conflict. One of our most important contributions to the shock and awe campaign that took us into Baghdad in that year were FA18 Hornet aircraft on air combat patrol and strike missions. We also flew Orion surveillance aircraft, C130 Hercules and B707 lift operations, but it is the FA18 missions that I want to refer to specifically. My understanding is that our FA18 aircraft did not use cluster munitions in Iraq but that we did fly close support for US ground forces who were firing these weapons indiscriminately into urban areas. Could you please confirm whether or not that is the case?

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

If I need to correct anything I say in this answer I will obviously do that on notice, but my strong understanding and recollection is that our air forces and, indeed, all of our forces did not use, deploy or engage in operations with cluster munitions. My recollection is that you were given that undertaking at estimates by the Chief of Air Force, but I stand corrected if—

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

That is right.

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

And I guess I would take issue with your proposition that the United States has used these weapons indiscriminately. That is not the language; that is not my view. But, to the extent that US forces did deploy these weapons in 2003 in the Iraq campaign, my firm understanding is that Australian forces were not engaged in or working with that work and those deployments of cluster munitions.

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

With Senator Ludlam's indulgence, I would like the Parliamentary Secretary for Defence to clarify. When you say you reject the characterisation that those weapons were used indiscriminately by the United States but they were used, isn't there an argument that the very use of cluster munitions is itself an indiscriminate act?

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

Senator, I guess we now run the risk of you and I having an 'enthusiastic amateurs' conversation about the military deployment of these—

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

You're not an amateur; you're the representative of the government.

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

Is the deployment of a cluster munition indiscriminate by definition? I guess the United States would characterise the deployment of munitions when they are deployed against enemy armoured formations or in a counterartillery role—but I am not here to debate the US deployment of these weapons and I am not here to debate the effect of those weapons, and not for a moment am I going to put myself forward as an expert in how these things are deployed. I guess I am taking issue with the use of inflammatory language that I think does not do justice to the longstanding commitment of the United States to using minimal force and precision weapons wherever possible. I think their record in trying to avoid collateral damage is a worthy one and stands in contrast to many other nations and, indeed, many other nations who deploy cluster munitions.

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

At the risk of changing the subject, because I fully intend to come directly back to this, I am interested to know, because I am going to refer to this document a fair bit, whether or not the minister or the officers have a copy of the supplementary information that the Department of Defence provided to the Foreign Affairs, Defence and Trade Committee? We banked a number of questions on notice to the department during the course of our inquiry. Do you have those at the table?

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

Yes.

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

That is fine; it saves me from tabling them, although I can do that if the opposition or Senator Xenophon would appreciate a copy.

Minister, to come back to the shock and awe aerial bombing campaign, like Senator Xenophon I thought the reason we were staying up late to debate this bill is because these weapons, like chemical weapons, biological weapons and nuclear weapons, are indiscriminate by nature. Perhaps it was just careless language on your part, Minister, to use that word but I found it unfortunate. These weapons are indiscriminate. That is why we are here; that is why we are seeking to ban them. The reason I take you up on the instance of the shock and awe campaign and the close support missions that our RAAF pilots flew as we were invading Iraq is that this is precisely a use case for interoperability that is not in the abstract—this is a real one.

I am drawing on an article by Chris Doran dated 3 March last year in which he makes the case, quoting Human Rights Watch work, that United States ground forces on their way into Baghdad in the shock and awe campaign were used 'in direct support' of forces that were firing 'extensive cluster bomb munitions on defenceless civilian populations'. He said:

An extensive Human Rights Watch investigation conducted in Iraq found that 'Unlike Coalition air forces, American and British ground forces used cluster munitions extensively in populated areas … use of these weapons … was widespread along the battle route to Baghdad … with significant numbers of civilian casualties in southern Iraq including al Hilla, Najaf, Kerbala, Nasiriyah, and Baghdad.

Human Rights Watch found that the 'targeting of residential neighbourhoods with these area effect weapons … represented one of the leading causes of civilian casualties in the war'. A USA Today four-month study conducted in Iraq found that the US dropped or fired nearly 11,000 cluster bombs or cluster weapons during the invasion—

the 14-foot monsters that we were talking about before—

containing between 1.7 and 2 million bomblets. Britain used 2,000 more.

This is the article I was quoting from before, the Paul Rockwell piece, where I describe what these things are. Minister, would you describe this as an instance of interoperability?

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

I guess the first thought I have is that weapons used indiscriminately are automatically in breach of humanitarian law as it presently exists. I am saying that weapons used indiscriminately in any circumstance is a breach of humanitarian law.

Senator Ludlam interjecting—

The TEMPORARY CHAIRMAN: Order, Senator Ludlam! Just listen to the answer perhaps.

I guess my second point is that Australia and Australian forces would never cooperate with military forces that are using weapons indiscriminately.

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

Is the minister familiar with the Human Rights Watch Report that I was citing a moment ago?

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

No, I am not.

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

Does the minister believe that that report, which he has obviously not had time to review—not being aware of it, which is fair enough—is in error? If not, what is the basis for his confidence? Can the minister confirm one way or the other whether the RAAF flew close support missions for US ground forces that deployed cluster weapons on the way into Baghdad?

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

The answer is no, I do not know what arrangements were made. We are talking about the air campaign of 2003 and no, I do not know.

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

Minister, will you take that question on notice? I would have thought that it is of central importance to the debate tonight. Just to be clear, so that you know, and the officers know, what the question is that I am putting to you: during the 'shock and awe' campaign in 2003, did the RAAF provide air support for US ground forces that used cluster weapons on the way into Iraq?

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

Yes, I am very happy to take that on notice. Senator Ludlam, I have a dim recollection that you asked that question of the Royal Australian Air Force in estimates and they provided you with a definitive answer. But it is a dim recollection, so with no more greater confidence than that I will take the question on notice.

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

I thank the minister. I have got the transcript here and the department at the time did take the question on notice. I have the answer in front of me, but in no way would I describe it as definitive. So I look forward to the minister's provision of an answer. No doubt you will be aware of why I am pursuing this line of questioning. The US does not treat these weapons as exotic or extraordinary; they are standard part of kit a little bit like depleted uranium, and I guess the ADF use that in the same way. We tried it and we decided that we wanted nothing to do with it, but we still work very closely with military forces that do, and I guess we agree to disagree as to the indiscriminate nature of weapons of that kind. But here for me is a very, very important case of what we mean when we flip the word 'interoperability' around. What it means is that the Australian government can collaborate closely with forces using these weapons that we are seeking to ban. I guess the threshold question that we are here to debate tonight is: how close or how distant does the ADF have to be before it meets the objective of the treaty?

To take a slightly different tack, one of our positive obligations under the text of the treaty is that we are meant to be out now advocating that the military forces around the world, including our allies who use these weapons, stand them down. I think the minister gave me the example of the United States and France as those that will transit Australia, so let us start with them. Can the minister provide us with any evidence of what the Australian government has done to persuade the US to cease deployment of cluster weapons?

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

Firstly, I suppose, I should set out that this legislation and the principles underpinning it are obviously before us and the government has articulated those. It is not open to me nor is it conducive, in my opinion, for us to then embark on an analysis of hypotheticals.

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

No, it's a real case.

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

It is a hypothetical.

The TEMPORARY CHAIRMAN: Just ignore the interjections, Senator Feeney.

I am such a helpful person, Chair.

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

And I'm trying to be a helpful interjector.

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

A helpful interjector, that is right, Senator. I guess I should say at the outset that the government will confine itself to dealing with these issues in terms of the principles and their intent, and then, looking forward, the government would be assisted by the detail of what is transpiring case by case and obviously legal advice to inform it.

Having said that, let me then turn to how Australia will promote the principles established by the convention and work to discourage countries not party to the convention from using cluster munitions. I suppose it is fair to say that in this matter, as in so many others, Australia sees itself as promoting and seeking to promote international norms that move all of us, the whole of the international community, towards a better state. Obviously there are a number of major powers—indeed, one might say most of the major powers—that are not signatories to this convention, but not for a moment does that deter the government from its resolve to abide by the convention and to promote the international norms that it seeks to internationalise and normalise.

In dealing with our obligations under the treaty, we may discharge them in either bilateral or multilateral forums, through oral or written communications, in the conduct of the government and its work across the whole gamut of international fora aimed at dissuading or advising countries not party to the convention against using cluster munitions.

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

I thank the minister for responding with the general principles around the way in which the government sees that it could exercise its positive obligations. I just draw you back to what my actual question was. What have we done in the instance of the United States government? Can the minister provide the chamber with any tangible evidence of any action that it has taken in order to attempt to persuade—in any matter, great or small—the United States government to stand these weapons down?

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

To date, what has transpired is that the Australian government has formally and officially advised the United States government that it has signed the convention. Australian officials have met with the US embassy to advise them of our support for the convention. To the best of my knowledge, that is as far as the matter has advanced to date.

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

Is the minister able to provide us on notice with a copy of the advice that was posted or delivered to the United States?

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

Let me take that on notice. We need to find out whether it was correspondence. I am certainly advised that the matter was discussed between officials. I will ascertain what documentation there is around that meeting.

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

I thank the minister. Australia and the United States are at odds in this matter, you would have to say, if you were going to put it diplomatically. We believe these weapons should be abolished and we do not believe they should be used or stockpiled by the ADF. The United States government believes—not in the abstract—that these weapons should be deployed, that they have military utility and that they intend to continue to use them and not sign up. The evidence—and I wonder whether by now, Minister, you have had a chance to take a quick look at the cables that I put on the table a short while ago—makes it abundantly evident that the Australian government is running the agenda of the United States in the negotiations. How exactly does Australia reconcile the fact that we are coming from two vastly different positions—if that is to be believed, and let us naively assume just for the moment that it is? How does the government run the agenda of the US in those negotiations when in fact our intentions are diametrically opposed?

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

I just do not accept the foundations of your question. I do not accept that there is anything going on here other than the Australian government having formed the view that the convention is appropriate for us and an appropriate instrument for us to support, with us conveying to our United States friends that our commitment to the military alliance remains undiminished. I have not read through those WikiLeaks documents you have given me, but you are right to say the United States is not intending to desist from using these weapons, as I comprehend it. You might very well say the same about a range of other powers, and I note you do not speak of those, but I think they are worthy of attention too.

The United States policy on cluster munitions—as we understand it—is that the United States are likely to continue to retain cluster munitions in their military inventory and reserve the right to use those in future conflicts. They have articulated the notion that cluster munitions would most likely be used in high-intensity conventional warfare, particularly against armoured forces, and, of course, that is typical of state-on-state conflict. Notwithstanding this, the United States have adopted a cluster munitions policy which aims to minimise the potential unintended harm to civilians and civilian infrastructure. That is the sort of move that the Australian government welcomes as a good beginning. The US policy includes a commitment to cease use by 2018 of cluster munitions that, after arming, result in more than one per cent unexploded ordinance across the range of intended operational environments.

We have made our views plain. We have made them plain to our United States friends. The United States obviously has its policy, as, of course, so too do China, Russia, Iran and others. We will continue to advocate in international fora that this convention represents an international norm that the whole community of nations should observe.

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

I would like to follow up on what Senator Feeney, representing the government, said in his response to Senator Ludlum. He makes reference to the United States policy that by 2018 less than one per cent of these cluster munitions will have that failure. We know that one of the reasons why cluster munitions are so vile, not just in their operation, is in the cases when they do not work. We know they often fail to detonate on impact and they contaminate large areas of land with highly dangerous, unexploded submunitions—and I am relying on information provided to us in the Bills Digestand that this contamination has both immediate and longer term impacts on civilian populations and on the rehabilitation of vital infrastructure including roads, schools, markets and farms. We also know that incredibly expensive and arduous clearance activities are taking place—again, I am referring to material provided in the Bills Digest. Can Senator Feeney indicate what his understanding is of the current failure rate of cluster munitions overall, given that the United States is aiming for one per cent by 2018? That is my first question.

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

Senator, I agree with how you have characterised this issue in the framing of your question. From the literature I have read, I think the current failure rate for the United States munitions is something in the order of five per cent. One per cent is their target by 2018. Of course, it goes without saying that any failure rate is a grievous thing. I understand that cluster munitions deployed by other countries, manufactured from other places, can have failure rates of up to 30 per cent.

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

I am grateful to Senator Feeney for his response. Even a five per cent figure—even a one per cent figure—is very concerning, because the very nature of cluster munitions is that one cluster munition can spread to hundreds of submunitions, with the damage that that can inflict. Given that the failure rate can be up to 30 per cent, which is quite staggering and quite frightening when you consider the terrifying impact that it has, can Senator Feeney advise to what extent he is satisfied, or the government is satisfied, that the United States position that the failure rate will go from five per cent, as referred to by the United States, to one per cent will be achieved. How will that be achieved? It is only six years away. Is that something that the Australian government has been briefed on? If so, is the Australian government satisfied that that one per cent target, which many would find still staggering, will be achieved? How can that be achieved in the six-year period?

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

The short answer is no. The Australian government view is plain: we are opposed to the use of cluster munitions, the stockpiling of cluster munitions and the deployment of cluster munitions. The view of the Australian government is plainly that these weapons are inappropriate and that there is no acceptable failure rate. I gave you the statistics reflecting the position of the United States. Has the United States explained to Australia how it intends to achieve the one per cent target? Not to my knowledge, but I will take that on notice. But it is obviously a matter for the United States. Our position is not to negotiate with the United States or discuss with the United States its plans to reduce the failure rate. I think the position of the Australian government in international forums very plainly is to call upon all of the significant weapons manufacturers and stockpilers—of course, I speak of the United States as well as Russia, China, Iran and others—to abide by the international norm of not using these weapons and of applying the convention.

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

Further to that, does the parliamentary secretary consider it not unreasonable that Australia, given its pivotal, key strategic relationship with the United States of America—I do not think there is any question that it is our most strategic and important relationship, particularly in relation to defence, with the close cooperation between the two nations and the announcement made in November last year by the Prime Minister and President Obama of marines being stationed or deployed on a rotating basis, if you like, in the Northern Territory—could at least ask the United States, given their continuing heavy reliance on cluster munitions, the five per cent failure rate, our treaty obligations and the fact that this bill itself has been introduced by the government, what they are doing to at least reduce the failure rate of these munitions? I am surprised that that is not something that on a government-to-government level, given our close and pivotal relationship with the United States, we would be asking. Isn't that a reasonable question to ask the United States about how they will get from five per cent to one per cent?

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

The Australian government is not embarking on a process of trying to normalise or sanitise the production and deployment of these weapons. In supporting the convention, we are not saying that there is a reasonable and an unreasonable extent to which these weapons can be used or deployed. Australia is making its position plain. We support the convention. We support the articles of the convention and the obligations therein. So, no, I do not think it is unusual that we have not negotiated or discussed with the United States its plans in this area. As I say, I will take it on notice. Perhaps that has happened at official level. I am not aware of it. Obviously what we are striving for—what I think all of us are striving for here—is to establish an international norm where the use of these weapons by anyone is unacceptable. Obviously the United States, like the other powers that I have referred to, has to weigh those judgments, and it obviously is doing that. But the Australian position is very plain: we support the convention. We are not going to embark on a process of trying to say there are good cluster munitions and bad cluster munitions. We support the convention.

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

Senator Feeney's answer raises an issue about the effectiveness of this legislation in the absence of the amendments proposed by the Australian Greens. My understanding from material that I have been provided is that, in report No. 103 of the Joint Standing Committee on Treaties in May 2009, JSCOT recommended ratification of the convention. However, it expressed concern 'that some of the terms contained in the convention are not clearly defined and may provide an avenue by which Australia could participate in actions which may contravene the humanitarian aims of the convention'. It went on:

The Committee therefore considers that the Australian Government and the ADF should address these issues when drafting the domestic legislation required to implement the Convention, and when developing policies by which the personnel of the Australian Defence Force operate.

I am relying on the Bills Digest in relation to this. JSCOT recommended that particular regard should be given to 'preventing inadvertent participation in the use, or assistance in the use, of cluster munitions by Australia'. Given what the parliamentary secretary has said in relation to the whole issue of the aims of the convention and the concerns expressed by the Joint Standing Committee on Treaties in May 2009—when there were, I think, some quite heavy caveats given, or perhaps warnings sounded, by the committee about there being a potential avenue by which Australia could participate in actions which could contravene the humanitarian aims of the convention—to what extent does the government say that those matters have been addressed in this legislation so that there is not a potential contravention of the humanitarian aims of the convention?

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

The government gave careful consideration to JSCOT's recommendation regarding inadvertent participation and assistance in the use of cluster munitions. In its response to JSCOT's report the government noted that the convention does not prohibit inadvertent participation in the use, or assistance in the use, of cluster munitions. Rather, article 1 of the convention prohibits states parties from using cluster munitions and also prohibits assistance in the use of cluster munitions.

This prohibition is subject to the exceptions contained in article 21 of the convention. Paragraph 3 of article 21 states:

Notwithstanding the provisions of Article 1 of this Convention and in accordance with international law, States Parties, their military personnel or nationals, may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party.

Paragraph 4 of article 21 states that states parties are nonetheless prohibited from themselves using, developing, producing or otherwise acquiring, stockpiling or transferring cluster munitions, or expressly requesting the use of cluster munitions in cases where the choice of munitions used is within their exclusive control. In this context the bill does not include an offence of inadvertently participating in the use, or assistance in the use, of cluster munitions.

The bill uses the same language as the convention, and this ensures that the bill accurately reflects the provisions of the convention. Sections 72.38 and 72.41 of the bill give effect to article 1 and paragraphs 3 and 4 of article 21 of the convention. Section 72.38 contains offences that cover the range of conduct prohibited in article 1, including the use and assistance in the use of cluster munitions. The physical elements of the offences found in section 72.38 must be done intentionally.

Section 72.41 provides that a person who is an Australian citizen, ADF member or Commonwealth contractor does not commit an offence under section 72.38 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, and as long as the act is not connected with Australia using, developing, producing or otherwise acquiring, stockpiling, retaining or transferring a cluster munition or expressly requesting the use of cluster munitions where the choice of munitions used is within Australia's exclusive control.

The limitations contained in this provision, known as the interoperability provision, will ensure that Australia and Australians will continue to act consistently with the objects and the purpose of the convention even when undertaking cooperative activities with countries that are not obliged to comply with the convention. Obviously, the United States is the example of the moment.

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

I am glad you have started quoting sections of the bill to us. I will continue in kind. We will just step through this, and I will invite the minister now to jump at the point where he hears me misinterpret a section of the act. I just want to step through the sections that the minister just quoted to us: 72.38 of the bill—offences relating to cluster munitions. It appears to me to have been drafted more and less using exactly the same language as the convention. It is comprehensive. There is nothing there that I would consider has been left out. That is what Australia will henceforth be bound to. Is that a correct reading of section 72.38?

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

Yes. Obviously, it applies to individuals and not to countries.

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

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

Let me perhaps take you to how the government comprehends this issue. I will resist the invitation to deal with the hypothetical you have—

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

No, it's a real instance.

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

You are talking about 2003 and we are talking about a convention here of 2012. Bear with me and then, of course, we will fight to the death to defend your democratic right to keep questioning me.

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

Thank you.

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

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

Minister, for once I am finding the committee stage of this bill extremely helpful. It is not every debate that I get to stand up and say that. This is actually highly instructive. In fact, you have confirmed the point that I have taken. If I may make this request just to save time in the debate: can we set aside any further assurances from the minister that Australian forces will be permitted to deploy or use cluster weapons? I completely and fully understand that we have no intention of doing that. I have heard that from you; I have heard that from the department; I have heard that from men and women in uniform who have put it on the record. The case that I am interested in—and the minister referred to this repeatedly on his way through that explanation—is our ability to work with forces who are non-state parties to the convention.

I also understand why article 21 got in there. I might disagree with it but there were arguments made at the time that without some form of words, which eventually landed at article 21, this convention would not have got up at all. I understand. Perhaps from Australia's point of view the government might argue, 'No article 21—then we cannot play because we still feel we may perhaps in the future want to invade more countries at the behest of the United States.' We have some form in that; maybe we will want to continue to do that in future. Who knows? Perhaps we will be called on to invade Iran. But let us not get distracted.

If I could remind you gently, Minister, the reason we go into the committee stage is to establish how these bills will work. I attempted not to use a hypothetical; I attempted to use a very timely real-world case. Minister, with respect to the fact that you have not yet been able to return with some answers as to whether the RAAF flew close support for US ground forces using these weapons, as we obviously have not been going all that long—would that behaviour be prohibited under this bill? My explicit reading of it is that it would not. None of the exceptions in section 72.41 would prevent an Australian RAAF pilot, who had not called in the cluster weapon strike, nonetheless supporting an operation in which they are used. If there is an exception in section 72.41 which would prevent that behaviour—in other words, if it is the government's point of view that, if that conduct occurred in 2003, it would certainly be expressly prohibited in any future military operation—could the minister point me to the exclusion that would cause a material difference?

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

Unfortunately I am not really able to assist you, Senator. There are too many hypotheticals in your scenario. But I should think that the detail I just provided would give you adequate comfort, because there we have described the conduct of Australian personnel and the requirements upon them when they operate with non-states parties. That is as much detail as we are in a position to give.

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

Maybe I could have expressed the question more clearly. I respect the reason we do not like to drift off into hypotheticals because of the way these debates will be interpreted later. Would this bill, should it become an act—and I am still holding out some faint hope that sense will prevail but we will see—prevent the ADF from participating in operations with non-states parties who are using cluster munitions? At the moment you have framed your answers like so: 'Look, maybe they have them in the arsenal but we are assuming they are not actually using them,' but there is nothing in my reading of the parts of the bill that we are referring to tonight—expressly sections 72.41 and 72.38—that would prevent the scenario I am describing. Call it hypothetical if you will. Human Rights Watch, the International Red Cross and a number of other observers believe this occurred in 2003. With respect to the fact that the United States government intends to remain a non-states party to this convention, can you tell us what would preclude a RAAF squadron performing exactly the kind of thing that I have described in 2003—or would that be permitted? It is not really hypothetical. It is about your interpretation of the bill.

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

Again, all I can really do is commend the wording of proposed section 72.41 to you. As I said in my answer earlier, notwithstanding the interoperability provisions, 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 a party to the convention. That is obviously deeply significant. It is an offence for a person to use, develop, produce, acquire, stockpile or retain cluster munitions even when engaged in combined operations. The interoperability 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.

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

Minister, what if the ADF unit is supporting a US military unit that is using cluster weapons, as was the case—you can refer to it if you wish; I do not mind—with the invasion of Iraq, where we were doing none of the things that you have just listed? We were not using, we were not deploying, we were not stockpiling, retaining, developing or producing. We were not doing any of those things. We were flying support for units using cluster munitions. It is a really simple question. The minister is across this stuff. You are in a representational capacity but you do know this bill inside out. You also know the sector very well in your ministerial capacity. This is exactly the kind of case. Would this prevent the ADF from operating in direct support of a unit using cluster weapons? It is just a yes or no.

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

Alas, it is never as simple as a yes or no, Senator. I think we would be deeply remiss if we started to go through imaginary and hypothetical military circumstances and a group of civilians like us started to try to define these matters. Senator, let me take you to the convention and say that it is important that the convention is read as a whole and given its ordinary meaning, as it is appropriate to when speaking of international treaties. It is important to note that subarticle 3 of article 21 creates an exception to article 1, but then subarticle 4 limits the scope of the exception. By limiting the scope of the exception it makes it clear that certain things that would be prohibited, but for the fact of the exception created by subarticle 3, are not prohibited because subarticle 4 picks up some of the conduct in article 1 and makes it clear that, notwithstanding the general exception, a country cannot engage in that conduct. So, when the convention is read and taken as a whole, it is the government's view that the convention itself does permit certain conduct and that what is prohibited is more narrow than the general prohibition in article 1. That is faithfully picked up in the bill. So it is the government's view that that means that the conduct found in subarticle 4 of article 21 remains prohibited, notwithstanding the otherwise general exception, but that other conduct is not prohibited.

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

Minister, I cannot take anything away from this exchange other than, if Australia were again to find itself in the position of supporting US units firing cluster weapons into civilian areas, we would not be prevented and that this accession to the convention would not prohibit or preclude us from doing just that.

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

I do not want the parliamentary secretary to traverse areas that have already been traversed but I do want to pin down this issue, if he would clarify it. I think it is always dangerous for someone of legal training to ask a question about which they have no idea what the answer will be.

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

The first rule of cross-examination.

Nick Xenophon (SA, Independent) Share this | Link to 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—

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

I was in primary school.

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

Senator Ludlum was in primary school. It has been 36 years since I did statutory law interpretation—and not a word from Senator Back on that either—but, in terms of general principles, if this piece of legislation is intended to ratify the terms of this convention, which is quite explicit as to its key obligation, which relates to 'never under any circumstances should a state party assist, encourage or induce anyone to engage in any activity', leaving aside any issues of hypotheticals of Iraq, and I do not think anyone can say that the Iraq war was a hypothetical event—

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

I was not the Parliamentary Secretary for Defence.

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

I will not hold Senator Feeney responsible for Australia's involvement in the Iraq war, where we as a nation were joined at the hip with George W Bush. I will give him that.

Isn't there a difficulty here that, by virtue of the defence in 72.41, it is fundamentally inconsistent with part 1(c) of article 1 of the convention? That is the first question. I have a second question, in order to save time and be helpful to the committee. Reference was made to JSCOT, to the Joint Standing Committee on Treaties, and it expressed concern that some of the terms in the convention are not clearly defined and may provide an avenue by which Australia could participate in actions which may contravene the humanitarian aims of the convention. Did the government seek advice from JSCOT once this bill was drafted? I have no idea what the answer is, but was there a subsequent JSCOT inquiry into the provisions of this bill, particularly in relation to the interplay between 72.41, 72.38, part 1(c) of article 1 of the convention, and the preamble to the convention, which says:

… 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

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

Firstly, Senator Xenophon, with regard to your first question, I hope I can give you comfort insofar as the wording found in paragraphs 3 and 4 of article 21 of the convention is concerned. The wording of those parts of the convention is then reproduced in the bill, in 72.41. The government would submit that we have kept faith with the convention by using the same wording and the same phraseology.

With regard to your second question, JSCOT did not have a subsequent inquiry as I understand it, but the government did pay careful attention and consideration to JSCOT's recommendation regarding the definition of certain terms used in the convention. The government's view is that these terms should be read according to their plain English meaning. These terms are used in the convention but are not defined. In accordance with principles of treaty interpretation and as stated in the explanatory memorandum to this bill, these terms must be read in accordance with their ordinary meaning. Consequently, it was not necessary to define these terms in here.

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

I thank the parliamentary secretary for his answer, but isn't it the case that the government—and I will be guided by Senator Ludlam to some degree on this—did not want JSCOT to look at this bill. Is that the case? Can you confirm that?

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

I think, Senator, you might be hearkening back to a motion moved in the Senate by the Greens party recommending that this matter be looked at again by JSCOT. You are looking at me quizzically, so perhaps you were not hearkening back to that, but I am guessing you were.

I would say, no, the government did not see the need for a further inquiry, but of course in no way do we shy away from or seek that JSCOT desist from analysing this material. JSCOT has its responsibilities. Its members remain faithful to its mandate, and I do not see any difficulty for us in the work of JSCOT or its deliberations here.

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

Just to clarify the record, I have the transcript here from 7 July 2011—that is how long this phase of the debate has been running. On the basis of the contradictions that the Scrutiny of Bills Committee pointed out, and on the basis of the very direct and unequivocal evidence that was provided to the Senate Foreign Affairs, Defence and Trade Legislation Committee a short time after I sought to refer the bill back to the treaties committee—the motion, which I spoke to, was moved on 7 July and I moved for a report by 7 September—I made a brief statement reflecting on the fact that this situation was still resolvable. At that stage I was actually taking the government on good faith that it did not intend to write loopholes into the bill, but perhaps there had been some careless drafting, particularly in the area of investment, which we have not really touched on yet tonight.

The treaties committee is diligent. It is a large committee; it has the expertise; it deals with these kinds of things all the time. It also had prior experience with the matter as a result of its earlier inquiry. I do not have the record of the vote here. I suspect Senator Xenophon was probably sitting on this side of the chamber. Senator Feeney, you were sitting over there with the coalition. You prevented that from going back to the treaties committee. It could have headed off a great deal of grief if we had taken the opportunity then to send this matter back to the treaties committee. I will just test the will of the chamber: if I were to spontaneously move a referral of this matter now to the treaties committee for one last second thought—

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

I second it.

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

I understand I have a seconder in Senator Xenophon. If the minister would like to indicate on which side of the chamber he would advise his colleagues to sit, perhaps we can all go home early?

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

Thank you, Senator Ludlam. Of course, I take your remarks in good faith. I understand, and you understand, that you are well acquainted with sitting on that side of the chamber with the coalition. I have seen it on several tumultuous moments, recently and of course with the CPRS legislation in 2010. Such is the nature of the workings of this chamber that I know you are not a stranger to sitting over there with the coalition to defeat critical reforms.

Let me now, perhaps more temperately, consider your points. Firstly, as I comprehend it, the foreign affairs committee recommended that this legislation be passed by the Senate without amendment, and of course I understand that you wrote a dissenting report to that recommendation. So, from the government's perspective, we would say that that committee has looked at the legislation and discharged its function and produced a report which, on this occasion, the government is in accord with.

With respect to JSCOT, it is not typical for JSCOT to look at legislation; it is of course a treaties committee and its expertise is generally in looking at the wording and implications of treaties. On this occasion, given the uniqueness of this work, it did look at legislation, but I think it is worth the chamber noting that that is atypical of the work of JSCOT.

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

Notwithstanding that it is atypical for JSCOT to look at the wording of legislation, the fact is that there is a precedent here with respect to this piece of legislation in relation to cluster munitions, and the convention on cluster munitions, that JSCOT did look at it. Given the importance—and I say this without any sense of irony—that the government places on our treaty obligations to ensure that we comply with treaties, what harm would there be for this matter to be referred in the next six or 12 months to JSCOT to carefully analyse the wording in the legislation to see whether there is any scope for it to be in any way further amended, subject to further scrutiny for the legislative amendments, given the work that JSCOT has already undertaken in relation to this legislation?

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

I think, as you have heard tonight from Senator Marshall and Senator Singh, that there is no shortage of passionate advocates in the government party room for this legislation and the effect that it will bring about. So ultimately my answer to you, Senator, is that the government come here now, with a bill which we believe is, as I said at the outset, the centrepiece of Australia keeping faith with this convention—a convention that is strongly supported by the government—and I fear that your course of action would ultimately represent delay, and what we are interested in doing is having this legislation pass the parliament and for its very important work to commence as quickly as practicable.

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

I am afraid the parliamentary secretary has misunderstood me—and that is perhaps not a difficult thing to do; it is understandable! But what I was suggesting was not to delay the passage of this bill. I can count, but I think there are some issues of accountability here that need to be dealt with. What I am suggesting is that, given JSCOT's role in looking at the legislation—as atypical as it is, as Senator Feeney has pointed out; but, notwithstanding that, it has occurred: there has been a precedent set for this piece of very important legislation—will the government commit itself, after the passage of this legislation, as appears highly likely, to JSCOT having another look at this, to another referral to JSCOT about this bill, in the context of the concerns raised during the committee stages of this bill?

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

I think the short answer is no. Ultimately, the decision is above my pay grade, and I am perhaps anticipating the answer of my betters, but plainly the government's view would be that this legislation should be passed and that how the legislation is giving effect to the convention is a matter that will be considered by ministers and government down the track. So I am not in a position to give you an undertaking tonight.

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

Is this something that you are in a position to obtain some advice from the government on? It would save a fair degree of the Senate's time if this matter in the next 12 months were referred to JSCOT for a further review and to report back within, say, a period of six months. In other words, it would not be something you would do straightaway, but, once the legislation has been proclaimed, there will be a reasonable period to allow for JSCOT to assess it and for the matters that have been raised, so ably by Senator Ludlam in particular, to be the subject of further scrutiny—given the Joint Standing Committee on Treaties' previous role, atypical as it was, to examine this legislation. I do not think it is an unreasonable request. As you know, I am always reasonable in my requests, Senator Feeney.

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

Senator, I will take the matter on notice and ask the minister. I would draw your attention to my earlier comments about the transparency report and the fact that the work of this convention and its effect in Australia will be regularly reported. I cannot do any better than that for you, I am afraid.

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

Minister, before we move on—and still on the subject of interoperability—I want to take us back briefly to some of the questions I put to you before. I can recall fairly clearly asking you to take on notice whether or not the RAAF had flown support missions for US ground troops that were using these weapons during the invasion of Iraq.

I also seek your advice, on notice, whether overnight the department could examine the Human Rights Watch report that I am citing and describe for us whether they support its conclusions or whether they believe those conclusions are in error. Those were the figures I cited before about the number of weapons that were used, and I gave you a list of places—metropolitan areas and regional cities—into which the weapons were fired on the way towards Baghdad. I am seeking your advice as to whether the government supports the basic premise of that report or whether it rejects the conclusions that were made there.

In particular, I seek the minister's advice as to whether the Australian government agrees with a four-month study by USA Todayperhaps at the conclusion of this debate I can provide the precise citations for the documents that I am reading from, which may assist the officers—that nearly 11,000 of these weapons were used during the invasion, containing between 1.7 million and two million submunitions, and the use by the British government of another 2,000. I will take all of those in sequence on notice, if I could. What I am seeking, unless it is more complex than I am making it sound, is simply a yes or no as to whether the Australian government believes that these reports are credible.

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

When you speak of 'the department' I assume you are talking about the Department of Defence, and this is obviously an Attorney-General's bill—but I will take that as read. Senator, let me take those on notice. I am not in a position to answer either of them now. So, with regard to the Human Rights Watch report you have cited, and the statistics from USA Today, I will see if the department is in a position to provide any further clarity.

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

I go to the convention's article 21, which has been referred to by Senator Feeney, and to its clauses 3 and 4. Article 21(3) states:

… Notwithstanding the provisions of Article 1 of this Convention—

and that is the general prohibition of cost of munitions—

and in accordance with international law, States Parties, their military personnel or nationals, may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party.

My question to Senator Feeney and, by extension, to the Attorney-General's Department is: how does the government interpret that? Does it interpret that you can engage in military cooperation with a party that is not a party to this convention in circumstances where that party is using cluster munitions? But, in terms of how I read the primary aims of this very convention—the key aims, being the fundamental premise of this convention—what they mean is that you can have military cooperation with a party that is not a party to the convention as long as that party is not engaging in the use of cluster munitions. That seems to be an interpretation that would be quite reasonable in the circumstances. So that is a key issue as to the basis of the advice that the government has received in relation to this bill. How does it interpret that particular clause, which I think is fundamental to the shaping of this bill?

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

I am happy to retrace these steps, but I really do not have anything further to add to what I said in answer to a very similar question from Senator Ludlam.

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

It was not identical?

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

No, very similar, and I did protect your dignity with my characterisation of your question there. Notwithstanding the interoperability 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 a party to the convention. This interoperability 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. Senator, you might recall I used some examples, to the extent that I was able to, where 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. I talked about ADF personnel being able to hold senior positions in combined headquarters and participate in mission planning. ADF personnel would still be able to be used in intelligence, logistics and other support roles in 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—air, artillery or naval gunfire—from countries not party to the convention as 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. So aside from those undertakings I am afraid I cannot assist you further.

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

I am grateful to Senator Feeney for his response. So does that mean that the government is reading article 21's clause 3 of the convention in the context of allowing those sorts of activities? I am just trying to understand this. I am not an expert on treaties. I have the background of a suburban personal injuries lawyer and I am just trying to understand what this means because my reading of clause 3, by implication when you read it with the other parts of the convention and the preamble to the convention, is that what is being proposed in 72.41—the defence in the bill—is fundamentally inconsistent with the terms of the convention and indeed inconsistent with clause 3, which I think, from a statutory interpretation point of view, needs to be read in conjunction with the preamble and the principle aims and objectives of the convention.

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

Senator, the government's view, when looking at the convention and article 21's clause 3, is that 21(3) is the exception and then clause 4 has the limits upon that exception. That is our view and that is how we read the convention.

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

My question to Senator Feeney is: does the government concede that there is an inherent tension between the preamble to the convention, article 1 of the convention and the defence contained in clause 77.41 of the bill? At the very least it raises questions of an inherent tension between the aims of the convention and the defence. There is an inherent tension in there and it goes back to the quite prescient warning of the Joint Standing Committee on Treaties, which stated:

… some of the terms in the Convention are not clearly defined and may provide an avenue by which Australia could participate in actions which may contravene the humanitarian aims of the Convention.

Doesn't 72.41 actually provide an out and actually provide the basis by which the humanitarian aims of the convention, to which Australia as a nation has signed up, could be undermined at the very least by virtue of 72.41?

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

No, we do not believe that there is such a tension. I think the matter is dispelled by the opening words of 21(3), which says 'notwithstanding the provisions of article 1 of this convention' and then it continues. I think 'notwithstanding the provisions of article 1 of this convention' makes plain that 21(3) is describing an exception and, as I said before, 21(4) is then limiting that exception. I would also make the point, one I made earlier, that in the legislation the bill's 72.41 is of course using the same language as is found in the convention.

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

Madam Chair, doesn't the government concede that the humanitarian aims of the convention, which are clear in the preamble and article 1, could well be undermined by 72.41, notwithstanding what Senator Feeney has said in relation to clause 3 of article 21 which says, 'Notwithstanding the provisions of Article 1'?

Can't that be read quite narrowly to relate to military cooperation with a party that has not signed the convention but is not using cluster munitions in a particular exercise? I will bring this to an end shortly, to the relief of Senator Feeney. Senator Feeney said something about 15 or 20 minutes ago about rules of engagement. That would be relevant, would it not? If you can deal with that issue, I want then to go to the issue of rules of engagement because that goes to the application of the defence and the application of this bill.

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

Senator, I do not think we have a disagreement. The convention is an international agreement. It has been struck and the words are before us. Australia has signed that convention and is obviously now in the process of ratifying it. This bill gives life to the convention for the purposes of Australian law but the convention is an international instrument and we are one of 49 signatories.

Senator Xenophon interjecting—

The TEMPORARY CHAIRMAN: Senator Xenophon, I think if you have a question, it is easier for Hansardif you stand up, and I will acknowledge you.

Just to deal with your point about rules of engagement, Senator Ludlam at an earlier stage asked what other measures above and beyond the legislation are required to realise Australian government support for the treaty. Of course, in answering Senator Ludlam's question I made the point that there are a range of measures that the government will be taking. The convention and its intent need to be enabled through ADF doctrine, ADF directives and potentially rules of engagement. All of those non-legislative measures are very important.

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

And to what extent are those non-legislative measures, the rules of engagement, the ADF doctrines dealt with? I understand that we are dealing with highly professional members of the ADF who have as their primary responsibility the defence of our nation and the safety of our serving men and women, particularly in a front-line situation. To what extent before they are deployed in an operational sense will this convention and this piece of legislation be considered? To what extent is it first and foremost in their minds before our troops are engaged in an operation where cluster munitions may be used?

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

Yes, absolutely. Rules of engagement are the mechanism that the government uses to provide strategic guidance to ADF forces and to ensure that they are complying with the various national and international obligations upon Australia. This convention and this bill would absolutely have to form a part of the consideration of the ADF and, where appropriate, rules of engagement. No question.

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

Hopefully finally in relation to that—and I am very grateful for the patience of Senator Feeney and that of the officers of the department—before troops are put in an operation, will questions be asked of our ally who could be using cluster munitions whether cluster munitions are likely to be used? In other words, is one of the rules of engagement that we ask that question and then consider our treaty obligations in that context? Or is it a question of being in the middle of an operation and cluster munitions suddenly are being used when it was not even asked as to whether they were going to be used or not or if there was a likelihood that they were going to be used? I think that would be a relevant issue to raise.

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

I think this matter is very plain. Australian forces when deployed on operations go through an extensive force preparation process and obviously there is a critically important series of planning and logistical processes around that. In all of that work, as has always been the case, those operations are required to conform with Australia's national and international treaty obligations. So the planning of future operations involving ADF personnel would, as a matter of course, consider our treaty obligations under this convention.

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

Does that mean before an operation the question will be asked as to whether cluster munitions may be used or are likely to be used?

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

Yes.

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

Minister, I indicated before that I was going to provide you with citations for some of the figures that I quoted before. I wonder whether it might not be helpful, by leave, to table the document that I am referring to. It is the article that cites three studies and, in particular, I draw the minister's and the department's attention to citations 3, 4 and 24. I know it is a little unorthodox to seek leave to table it before the minister and Senator Joyce have had a chance to view it, but I will test the view of the chamber now.

Leave granted.

Thank you very much. We can maybe come back to the questions that I have raised. The three documents that I have cited from this study go to the government's view as to the veracity of the figures and the situations described in those three documents. The reason that I have spent so much time dwelling on this is that, despite the attempt by the minister to paint the conflict in Iraq as hypothetical, the war did in fact happen. The invasion of Iraq did in fact happen. It is the view of the authors of the International Red Cross and Human Rights Watch as well as that of a number of the other authors who are cited in this study that not only did that conflict occur but that up to two million submunitions were scattered across metropolitan and regional areas of Iraq in an operation in which the Royal Australian Air Force flew close support for US military units that were firing those weapons into those areas. That is the reason I have dwelt here.

I also want to come to the reason why I asked the minister before whether he had a copy to hand of the responses that the Department of Defence provided to the Foreign Affairs, Defence and Trade Committee when we put some of these very same questions to the department during the committee's inquiry. I will quote from Defence responses (c) and (d). These were responses to questions directed from the chair relating to section 72.41, where we spent most of the evening discussing the matter of interoperability. I seek the minister's views on whether Defence has been correctly quoted here:

In particular, Article 21 will allow Non-States Parties—

and this is Defence's view—

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

Whereabouts are you quoting from?

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

I am quoting from answer 1(c); it is in the bottom half of the paragraph, where Defence states:

In particular, Article 21—

This is referring to the convention rather than the bill—

will allow Non-States Parties (such as the United States) to defend the lives of ADF personnel through close air support, even when cluster munitions might be used.

In part (d), the view of the Defence is:

The bill does not prevent ADF personnel from working in coalition headquarters (conducting planning, providing intelligence and logistics support), in operations where cluster munitions may be used).

So it is the view of the ADF in their answers in 1(c) and (d) that we could still be intimately involved in military operations with a party that is not a state to the convention—which is where I think the minister would kind of like the full stop to occur in the sentence—in military operations with non-states parties where cluster weapons are planned and then used. I ask the minister, as we are running the clock down in the debate this evening, how on earth that conception of the operation of this bill in any way accords with the universal intention of this convention to ban these weapons from the face of the earth?

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

Firstly, I can confirm that that is the Department of Defence's position and that it was put accurately. It is consistent with the explanations I gave earlier in the evening to your questions. So I think insofar as that is concerned we are all on the same page. As to your point about operations, I would say only two things. The first perhaps is a little speculative but it is this: in order for this convention to have secured the international support that it has—and obviously that international support enlivens it as an instrument for effecting real reform around the world—it needed to be a convention that was practicable. As you yourself have pointed out on many occasions tonight, there are a great number of significant nations of which the United States is one and China, Russia, Iran and Brazil are others who are not signatories to this convention. That is obviously a matter of regret and will be a matter for continuing campaigning.

But I guess to follow that reasoning and to make my second point, the interoperability provision, which is ultimately what you are complaining about, is a requirement of the Australian government because, as well as supporting this convention and keeping faith with it and its terms, we are also resolved to maintain our military alliance with the United States and to develop arrangements which mean that that alliance is not prejudiced. There are obviously questions of detail, and you have gone to them tonight, and they are important questions of detail. But the fundamental reality is this: we were not going to support this convention and dismantle the US alliance. I fear that the logical conclusion of your reasoning is that we should apply this convention in a way that destroys that alliance. That is perhaps something you can speak to; but, for our part, this is a convention that we have supported and that we will advocate for, and we are making sure that our alliance arrangements with the United States conform with it.

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

Minister, I thank you for your detailed answer and also the patience and grace with which you have responded to the questions that Senator Xenophon and I have been asking. I do not know that we are going to get too much further, but I strongly object to the counterargument that we are somehow seeking to rip up the military alliance with the United States or prevent us from invading countries on the other side of the world at the behest of the United States, if they should call on us to do so again—heaven forbid. But I wonder whether the minister is aware that New Zealand implemented legislation in 2009 through the parliament in Wellington which allowed for joint military operations while preserving the convention's prohibitions. I believe this would serve as a good model for Australia.

The minister may or may not be aware that the huge number of civil society groups that are up in arms over what this chamber is perpetuating tonight were very happy with how the government of New Zealand upheld its obligations. It found a different way of balancing the two obligations that the minister is seeking to represent. I respect, Senator Feeney, that you believe that we have struck an appropriate balance between the articles of the convention and our commitments to joint actions with the United States military. Somehow the New Zealand government managed to criminalise all activities prohibited by the convention's article 1, but also created the kind of balancing provisions that, for example, allow the government of New Zealand to have a deployment in Afghanistan at the moment that no doubt undertakes joint operations with the United States forces, as our contingent in Oruzgan does.

The drafting did not raise concerns by groups like the ICRC, on the cluster weapons convention and so on. Will the minister consider evaluating the drafting of the provisions around interoperability that found their way into New Zealand legislation to see if there is a compromise way forward that could satisfy the civil society groups that Senator Singh spoke so eloquently about and that you yourself, Senator Feeney, have acknowledged in the debate tonight? Will the minister consider looking at ways that other countries have managed to get the balance right?

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

The short answer is no. I will now ask you to endure the longer answer. The government does not consider that a 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 to give effect to the 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 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 and operations with countries not party to the convention. Creating a defence for mere participation also risks removing criminal liability for a broader range of conduct than is permitted by the convention.

Senator, when considering your point about the civil society contribution here, I would only say this. Clearly, those civil society entities that you refer to have campaigned on this issue with zeal and passion for a long time. The government, in supporting the convention and bringing this legislation to the parliament, does, for the most part, support both their intent and their efforts. I guess it is not a surprise that groups like that might take a more, dare I say it, puritanical view about this legislation. But, fundamentally, it is my view that this legislation has struck the right balance and that, working in partnership with those civil society elements into the future, we will together do all we can to make this convention the international norm for all states.

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

Minister, maybe I have a different understanding of the use of the word 'puritanical'. Would you consider the International Committee of the Red Cross as an example of one of the 'puritanical' civil society organisations that I was referring to? I explicitly named the ICRC in my opening remarks.

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

Senator, I am trying to have an honest political discourse with you, not engage in point scoring. I am not in a position, nor would I seek to be, where I would make comment or judgement about that organisation or any other that has done good work in this area. I am simply saying that the expressed views of some of those parties about the interoperability provision is not a surprise. Notwithstanding that, the government believes it has struck the right balance and progressed this issue very critically.

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

Minister, you can be assured that I intend to retain the respectful tone of the debate so far tonight. I was not seeking to score a point. You described the organisations that I introduced to the debate a moment ago as making contributions that were 'puritanical', but I am happy to set that aside. Minister, do you acknowledge that the ICRC is the international authority on international humanitarian law—that is, the laws of war—and they do occupy a unique position in the legal ecology around the laws of war? I just wonder whether the minister would acknowledge that that is the case.

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

The government well understands the role of that entity and of course, as the senator would appreciate, played a critical role in advocating for its establishment.

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

I thank the minister for that response. I think we have got the debate back on the rails. Minister, I draw your attention to the submission by the ICRC to the Senate Foreign Affairs, Defence and Trade Legislation Committee regarding the amendments that we are debating tonight. At the bottom of page 1 of the ICRC submission—I am happy to table this document as well if that would assist—they say the following:

While Article 21 permits military cooperation and operations between States Parties and States not party, it is equally important to note that the article also seeks to further the goals of the Convention. Paragraphs 1 and 2 of Article 21 require each State Party to promote the norms of the Convention, encourage States not party to adhere to the instrument and to use its best efforts to discourage such States from using cluster munitions.

I will pause there at the end of that paragraph because it is my understanding, based on information that you gave to us before, that to date, as at this stage, the Australian government has not sought to do that. It has notified the United States of our intentions, but at no time that the minister was able to cite have we been promoting the norms or encouraging—I guess the operative word here is 'encouraging'—states not party to adhere to the instrument and using our best efforts et cetera. We do not appear to have done that. Then, and perhaps even more troubling, the ICRC go on to say the following:

In the view of the ICRC these two aspects of Article 21 (furthering the goals of the treaty and permitting continued military cooperation and operations with States not party) must be read together and taken into account when developing national implementing legislation. Excessively broad exceptions or defences created under paragraphs 3 and 4 of Article 21—

which I believe are the ones the minister has been citing this evening—

would conflict with and undermine the purpose of paragraphs 1 and 2.

I guess it all depends on the emphasis that you place on the different parts of the convention. The submission goes on:

The ICRC believes that any exceptions or defences to the Convention's prohibitions based on paragraphs 3 and 4 of Article 21, must be construed narrowly so as not to contravene the Convention or undermine the objective of Article 21 and the objectives of the Convention itself.

Minister, I have quoted from their submissions at some length partly because of their standing in the international community regarding matters relating to the laws of war. They put up a strong submission that said they had not had the opportunity to see or comment on the bill before it entered parliament. They made some comments that we can address later in the debate around stockpiling and transiting through Australian territory. But their submission on interoperability is that these clauses, as drafted, read those sections 3 and 4 much too widely and that they are in fact undermining the basic premise of the convention itself. As you have just acknowledged, the ADF's view is correct that Australia can plan operations in which cluster weapons are used with a state that is not a party to this convention and can participate in military operations in which cluster munitions are used.

Minister, surely this is reading the concept of interoperability so broadly as to undermine the basic objectives of the treaty. I apologise for dwelling on this point, but it is the fundamental hinge on which the dissent expressed by so many organisations including the Greens and Senator Xenophon rests. We can plan operations in which they will be deployed; we can conduct operations in which cluster weapons will be used: why are we bothering to sign the treaty? Why are we here?

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

Let me try to take you through. There are a few questions in that, so let me try to deal with them sequentially. Firstly, with respect to the convention, you made the point that we have not yet lobbied, for want of a better word, the United States. My understanding is that that is right, but I guess it is noteworthy that this bill represents the ratification of the convention and, until this bill has been passed, the obligations of the convention do not apply. I guess they will apply thereafter—well, I hope they will. I trust the bill will be passed. At least tonight, I do not think that you are able to say that Australia has not lived up to that part of its obligations under the convention.

In terms of paragraphs 1 and 2, and indeed 3 and 4, of article 21, I guess our view is that we have interpreted the convention narrowly. Indeed, the proof of that is the fact that we have used the very language of the convention in the bill. Thirdly, to your point, 'Why bother signing it?' I think the answer to that is very plain. Australia is signing this convention and declaring its commitment to not stockpile, use, deploy and so forth these weapons. We are joining that body in the international community that says that these weapons are unacceptable. But there are obviously nations—and there are many—who have not yet reached that conclusion and our resolve is not yet matched by their resolve. What this bill does and what we have done in this debate is make clear how Australia will deport itself—and I do not think that a nothing, Senator. I think that is an issue of some significance, and the fact that we cannot speak for the actions of other sovereign nations, whether they be the United States, Russia, China, Iran or whatever, should be no surprise to anyone. I believe that Australia is standing behind this convention, and having it apply to itself and its military operations is of importance.

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

If I can get an indication from the chair that this debate will close in 47 seconds—

The TEMPORARY CHAIRMAN: Indeed!

As much as the minister knows I love to have the last word, the reason I have detained us until this hour and not moved through the Greens amendments—but I indicate that I will start moving through the amendments in the morning—is that we are about to sign onto a convention that promotes the total global elimination of cluster weapons and we are directly and deliberately including clauses that allow us to plan military operations in which they are used and conduct military operations in which they are used, not by Australia but by units supported by Australia. To my view, that is a vast misreading of the intention of the convention, and that is why we will oppose the bill if our amendments are not supported.

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

Senator, if the matter were handled in any other way, then you would essentially be insisting that nobody who is in a military alliance with any one of the United States, China, Russia, Brazil, Iran or India would be able to sign this treaty. You would be creating the conditions whereby this treaty would have very few signatories and would be a dead-letter treaty upon arrival. That is not what we are interested in doing. What the government has done is work to frame a convention that will establish an international norm that countries are able to sign up to, notwithstanding their military alliances with non-state parties, that will create the conditions for this treaty to actually have some impact.

Debate interrupted; progress reported.