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

Last night I put on notice by way of questions to the Parliamentary Secretary for Defence and/or the department a fairly large amount of material. I am wondering, at the outset, whether the minister can provide us with any answers that might have been submitted overnight or this morning.

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

The answer is no—we do not yet have it.

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

Nothing?

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

I think no is the easiest answer. There is some publicly available material that I have looked at but, in terms of a formal response to questions on notice, we do not have an answer for you this morning.

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

That makes it difficult to proceed. One of the things I was after—probably the most important—concerned the references I provided last night. I do not understand why this would not have been forthcoming during the morning, unless it was not given priority, but I sought the minister's advice on whether the government agrees with the statements made in three reference documents that I provided last night about the number of cluster weapons and submunitions that were fired into Iraq in 2003, and which Australian SAS, Regular Army and RAAF forces supported that action. Let us pick up those ones in particular. Has the minister been given the opportunity, or has anyone else bothered, to look at those documents and assess whether they are accurate or not?

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

I have looked at advice given by the Congressional Research Service to the US Congress on 27 June 2012, and that may very well be a document Senator Ludlam is familiar with. In any event, it uses statistics that are the same as those he has cited. So I think for the purposes of this morning, subject to me getting formal advice from the department the only information I have before me is that the statistics Senator Ludlam is using are right. This document talks about 13,000 munitions by US and United Kingdom forces in the first three weeks of the conflict in 2003. For the purposes of today I am happy to take those statistics as agreed between us.

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

I thank the minister—he has left himself some wriggle room in case figures come back that are different. The other question of great consequence that I put to him last night was whether I am correct in assuming that the Royal Australian Air Force flew close support for the US units that were using those weapons on the way into Baghdad. I listed a number of cities and towns along the way. I believe that is of central importance in this debate.

For senators who were not present and for those in the gallery who might be listening, this debate went quite late last night. If we asked 100 Australians randomly in the street whether we should support the Convention on Cluster Munitions, 100 people would come back and say of course we should. We heard unanimous support from government and coalition senators last night, saying it is timely that we sign onto this instrument.

Unless the minister can persuade me otherwise, I believe that under the convention as it is sought to be embedded in domestic law and as currently drafted Australian military units could directly support, for the sake of argument as it appears to have happened before, US military units firing cluster weapons into areas indiscriminately, leaving these things littering the landscape. It would not be prevented by the drafting of the bill before us. We had a lot of debate about this last night, and I sought to have some matters taken on notice to see if they could be clarified.

The central fact of the matter is that there is nothing in the drafting of this bill that would prevent exactly that situation from occurring again—not in Iraq, obviously, but in any other battlefield that we find ourselves co-deployed with US military units. We could be directly planning and supporting missions in which cluster weapons are used, which would violate not just the spirit but also the letter of the convention. If it turns out I am wrong, I will sit down and we can close out this debate and get on with it—but the drafting of the bill as it is presently formulated would allow precisely those things to occur.

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

I do not really have much to add to where we got to in the debate last night, Senator Ludlam. I will repeat the position we reached. The events in 2003 occurred well before the convention, so obviously Australia, at that time, did not have any obligations under the convention. We have not made any assessment about how current convention obligations might have affected military operations in 2003.

I repeat the point I made at the conclusion of last night—that in the view of the government this convention, and our support for it, is an important step forward. We believe the interoperability provisions found in this legislation are critically important both to the workings of the treaty itself and to Australia's alliance relationship with the United States. As I also said last night, if interoperability provisions like this were not found in the bill and were not countenanced by the convention, that would, in our judgement, greatly weaken the convention and support for it. You would be creating a situation in which any nation which had an alliance relationship with any one of the United States, Russia, China, Iran, India, Pakistan, Brazil or a plethora of other nations might feel unable to support the convention. We think that would reduce the value of the convention—we would be dealing with a convention with far fewer signatories and which therefore exerted far less influence towards the creation of an international norm where these weapons are not used. There is nothing new in all that, Senator Ludlam—I am simply repeating the case I put to you last night.

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

I indicate to senators that we are still asking general questions about the bill, as was Senator Xenophon last night. I want to move us through and get to our amendments. We will return to this issue briefly when I move the amendments which will fix this gap in the bill—a gap the parliamentary secretary did not quite concede exists but which I strongly contend does.

I will to move on to the second of the three primary areas of concern I identified last night: the transiting and stockpiling of cluster weapons in Australia. We are not concerned about that being done by Australians—because, as we have established, Australia want nothing to do with these things, and that is a sound principle—but by an ally. This conversation is not academic, it is not abstract and it is not hypothetical. We have invited, we discovered last November, the United States Marine Corps to establish a presence in the north. I have also had it confirmed—I think, at the last estimates hearings—that the United States Air Force has been invited to establish a presence at Tindal. There are obviously ongoing discussions occurring which we are not party to—no-one in the Australian public is—concerning the US naval presence in Cockburn Sound in the south-west of WA and Queensland residents will also be aware that there are discussions occurring about US military presence at Australian facilities.

I do not want to get caught up in a debate about what is and what is not a base. It is quite clear that the US presence in Australia, as it is ramped up, will be flying under an Australian flag. That is something the Australian government has decided is important for the optics of the arrangements, I suspect. Nonetheless, the US military will be stationed here in various forms. They will be parking materiel and equipment here. So it is not good enough that the bill, as it is drafted, exempts the military personnel of states which are not party to the convention from its prohibitions while they are on Australian territory.

We can go, if the parliamentary secretary chooses, to the operative part of the bill. It allows states which are not party to the convention, but which are engaged in military cooperation with the ADF, to stockpile cluster munitions in bases, aircraft and ships in Australia. Let us start there. Parliamentary Secretary, you can either treat Darwin as a case study or you can keep your answer in the abstract if you prefer, but I want to know how this bill is going to operate. Will it be unlawful for the US to stockpile cluster weapons in transit from place to place on Australian soil?

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

Firstly, I repeat that there are no US bases in Australia. There are joint facilities.

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

I asked you not to do that.

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

I am resisting the temptation to head down that road, too, Senator Ludlam. I also make clear that Australia has never had stockpiles of these weapons. I know you understand that, Senator Ludlam, but it is important to put it on the record.

I repeat that the bill uses the language found in the convention. For our part, we say that the bill, in its intent and in its operation, effects everything the convention is intended to effect. The convention itself permits military cooperation and operations between states parties and countries not party to the convention. That is a point worth highlighting, I think. Such military cooperation or operations may entail the use by foreign countries of their own assets on Australian territory or the entry of foreign ships or aircraft into Australian territory.

The defence which is found in proposed section 72.42 protects foreign military personnel of countries which are not party to the convention while such personnel are in Australia. This section obviously takes into account that Australia engages in military cooperation and operations with some countries which are not party to the convention—obviously the United States is one of those. But those kinds of military cooperation and joint operations are expressly permitted by article 21 of the convention. The defence in the bill recognises that foreign military personnel are not required to comply with an international legal obligation to which their own country has not consented. I think that is reasonably straightforward. It is essential that Australia be able to continue to cooperate with countries which have not signed the convention.

The government has made clear that it has not and will not permit other countries to stockpile cluster munitions in Australia. I trust that is an important undertaking for you to have on the record, Senator Ludlam.

There are currently no foreign stockpiles of cluster munitions in Australia and, as a matter of policy, the government confirmed on 23 November 2011 that it has not and will not authorise such stockpiling. The government will confirm this commitment in a public statement at the time of Australia's ratification of the convention and in Australia's annual statements under the convention.

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

I suspect this is slightly unorthodox, but as we have representatives of the coalition here this afternoon—you might want to seek some advice from your shadow spokesperson—I invite the coalition to establish what their policy is. The problem with not embedding this in law, which is the reason we turn up here, is that policy decisions can change. Policies can change according to political whim and they can change with a change of government. So I invite the coalition to put on the record whether it is their policy, should they win government, to also prohibit, not in law but in policy, the stockpiling of cluster weapons in the possession of other states.

Mitch Fifield (Victoria, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I am sure that our relevant shadow and his office are tuned in at the moment and that when they are next in the chamber they will oblige you.

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

Thank you for that. Yes—who would want to miss it! How could you possibly not be watching! Minister, why has it been decided to embed this commitment as a policy undertaking rather than simply write it into the law, as many other state parties have done?

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

Because the bill is designed to give effect to the Convention on Cluster Munitions, and so the bill keeps faith with the convention. What we are now talking about is a question of policy that goes above and beyond the convention. The government obviously has a firm view, a view that should give you comfort, that I think is aligned with your own view, but that is a matter of policy. It is not something that is required or sought in the convention itself.

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

Minister Feeney, Austria has stated:

… foreign stockpiling of cluster munitions on the national territory of States Parties is prohibited by the Convention. … Should a State Party to the Convention allow a foreign state to stockpile cluster munitions on its territory, this action would be in violation with the provision entailed in Article 1 paragraph c that prohibits assistance …

Does the minister or his advisers agree with that view?

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

Austria has taken that position. Obviously, it is utterly entitled to take that position. I can only repeat the Australian government's view, which is that we have introduced legislation into this parliament that keeps faith with the convention and the requirements of the convention, and we have not seen the need to go above and beyond the convention in that particular regard.

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

So the minister has not endorsed the Austrian position?

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

No.

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

That is extremely concerning. Colombia noted:

The government 'absolutely rejects … any manner of … storage of foreign cluster bombs in Colombian territory' …

Guatemala wrote that it considered:

… the stockpiling of cluster munitions of other countries in the territory of a State Party to the Convention, as well as the investment in its production is prohibited according to Article 1 of the Convention.

Slovenia stated:

'[In] our view the Convention … contains the prohibition of … stockpiling of cluster munitions by third countries on the territory of each State Party. Therefore, such activities are illegal and not allowed on the territory of the Republic of Slovenia.'

The Australian government have said: 'No, trust us. We won't let that happen, not on our watch.' We do not yet have a position from the coalition. But I take no comfort whatsoever from that. The Minister for Defence could stand up the day after tomorrow and say, 'We changed our minds,' and this legislature would be able to do nothing about it. Why has Australia taken a position that is so contrary to that of these other signatories? Why are we maintaining this wriggle room? I do not understand. I trust the minister when he tells me that that is not something the Australian government would do, but I do not understand why we are leaving this loophole wide open in the law. This is our opportunity to fix it.

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

It is not a loophole, Senator Ludlam. This is a piece of legislation that keeps faith with the convention and encompasses the interoperability provisions that we need as a matter of practical application to our alliance with the United States. And I do not accept that the government are out of step with other countries in the way you have asserted. Obviously, you have plucked out some examples, but there are of course many other examples we could talk about. We could talk about China, Russia and the Republic of Korea. We could talk about Israel. We could talk about Egypt, India and Pakistan. Clearly, this is a complicated question and there are different and complicated circumstances in different parts of the world. The government are ensuring that the convention is faithfully implemented by Australian law, and as a matter of policy we are telling you how we intend to realise that. Australia's interpretation of the convention is similar to that of other governments, including those of the United Kingdom, Canada and France, and each country implements its obligations in accordance with its domestic processes and requirements. I do not pretend to be an expert on how Guatemala or Austria makes its decisions and reaches its conclusions about this matter, but I can certainly talk about how Australia has done so. The government are very proud of the fact that we have supported this convention, brought legislation to this parliament that would give life to our support for ratifying the convention.

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

Minister, the operative part of the bill that I am referring to, section 72.42, states, as you are no doubt aware:

Section 72.38—

which is the fairly comprehensive list of things that are prohibited—

does not apply to the stockpiling, retention or transfer of a cluster munition that:

(a) is done by:

(i) a member of the armed forces of a foreign country that is not a party to the Convention on Cluster Munitions—

for example, the US would be caught by that—

or

(ii) a person who is connected with such forces as described in subsection (2) and is neither an Australian citizen nor a resident of Australia …

So serving personnel with the US Marine Corps, for example, or their contractors, are explicitly allowed to stockpile these weapons in Australia under that section of the act. Why?

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

The government do not support deleting section 72.42. We say that the effect of deleting section 72.42 would be that visiting military personnel of countries who are not party to the convention would be prohibited from any conduct relating to cluster munitions while in Australia, and this would significantly limit Australia's ability to undertake military cooperation and operations with such countries, as permitted by the convention. The amendment you propose would also have the effect of requiring those personnel to comply with an international legal obligation to which their sending country has not consented.

Proposed section 72.42 of the bill gives practical effect to the range of conduct permitted by article 21 of the convention. Deleting section 72.42 would limit Australia's ability to cooperate with countries not party to the convention, as permitted by article 21 of the convention. Australia engages in military cooperation and operations with countries not party to the convention, both overseas and in Australia, with the United States obviously being the outstanding example. Maintaining interoperability with the United States and other coalition forces is central to the protection of Australia's national security and international security.

I cannot help but again assert the point that you are asking something of this Senate which is not asked of us by the convention itself and which would not apply elsewhere or in military alliance relationships, whether they be with China, Russia, Pakistan, India or whoever. There are currently no foreign stockpiles of cluster munitions in Australia and, as a matter of policy, we have confirmed that we will not authorise such stockpiling. We say that deleting section 72.42 would render the interoperability provision in the convention meaningless. That, of course, would have the effect of seriously damaging our alliance relationship with the United States. We have all talked about why that would be undesirable. So notwithstanding the defence found in proposed section 72.42, we say visiting forces would not be excused from prosecution if they use, develop, produce or acquire cluster munitions in Australia.

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

I am happy to cede the call to Senator Birmingham because I know he wanted to be here for the debate last night and I have put a question through your duty senator inquiring into coalition policy, which I know is a bit unorthodox, because the Australian government is refusing to enshrine a fairly important point into law. Parliamentary Secretary, what flexibility is created by giving us the policy undertaking that we have now, which you have indicated will go into writing when we formally ratify? What do we gain by doing that? What flexibility do we gain? What would be possible, given that undertaking in policy, that would not be possible if we simply removed these offending clauses? I do not understand how making a policy commitment to not stockpile these weapons here is any different from a strategic or operational point of view from enshrining it in law. If there is no difference, let us just put it into the bill.

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

This is not about flexibility; it is about this bill achieving its purpose, its intent—that is, supporting the convention and meeting the requirements of the convention. We think it is entirely appropriate and that, indeed, the most effective way to deal with matters outside that single purpose is to deal with them as matters of policy. While we might differ about the means, we do not differ about the ends. Our policy is clear and it will be repeated in the regular transparency requirements that the bill engenders. We say that the bill is meeting its core purpose—that is, to meet the requirements of the convention.

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to this | Hansard source

I had hoped to make a contribution on this bill during the second reading debate but unfortunately was unable to do so due to conflicting commitments. I do not propose to give a speech here on the second reading and abuse the committee process. I have not had a chance, unfortunately, to review all of last night's Hansard or Senator Ludlam's questions to necessarily pursue lines of questioning with the minister that would not potentially overlap what Senator Ludlam has done, but I do want to put a couple of things on the record. There is very strong interest across the chamber in ensuring that not just the detail of the Convention on Cluster Munitions but also the intent of the Convention on Cluster Munitions is adhered to by this and future governments.

This was an agreement negotiated by governments across party lines, a negotiation which commenced under the Howard government and was continued and ultimately finalised under the Rudd government. Australia's desire to be part of this follows in a very proud tradition, which I think we need to uphold in this country, of leading the world in looking at weapons that have particular negative humanitarian consequences from their use. An outstanding example is the leadership role Australia played historically in relation to the debate on the use of landmines. There are many parallels which can and should be drawn and I hope there will be further parallels in future to which we can look to see that Australia's success in leading the world, in condemning, reducing and eliminating wherever possible the use of landmines, is replicated by Australia ultimately leading the world in condemning, reducing and ultimately eliminating, hopefully, the use of cluster munitions.

This bill, as you can tell by its date, has been around for some time. It was introduced into the parliament back in 2010. That is evidence of the fact that there have been not just formal parliamentary inquiries around this legislation but concerns expressed across parties and from outside the parliament through different organisations as to whether this bill does entirely meet the detail of the treaty and the agreement on cluster munitions and, of course, the intent of the Convention on Cluster Munitions.

I highlight just one of the submissions to the Senate Standing Committee on Foreign Affairs, Defence and Trade inquiry, held way back in January 2010, a submission from the Australian Red Cross. The Red Cross highlighted a number of concerns which have been the subject of at least some of questioning I managed to pick up on in the debate today and I am sure were subject to speeches and questioning last night, concerns about whether the bill in particular addresses issues of interoperability and stockpiling in a manner which puts appropriate boundaries around Australia's engagement.

The Red Cross submission says:

Paragraphs 3 & 4 of Article 21 outline the manner in which States Party may engage in military cooperation with States not Party to the Convention and paragraphs 1 & 2 of Article 21 impose positive obligations on States Party to amongst other things “make its best efforts to discourage States not party to this Convention from using cluster munitions.” It is important then to read the two parts of the Article together and ensure that the implementation of paragraphs 3 & 4 do not conflict with paragraphs 1 & 2.

The Red Cross argues that this bill does not achieve a balance in the application of the different paragraphs and articles of the convention. If the parliamentary secretary feels that he has anything to add on how the bill does in fact successfully balance or attempt to balance the two requirements in the convention to accept issues around cooperation while Australia makes its best efforts to discourage the use of cluster munitions, I would welcome any further assurances that he can provide. The Red Cross did recommend and urge that the relevant sections of the legislation, in particular section 72.41, be construed more narrowly and use words that are used elsewhere in the world. As the submission says, this could be done:

… for example by having it apply only to "mere participation" and acts that are unintended or inadvertent or that only have a remote or indirect relationship with the prohibited conduct.

The Red Cross also highlighted—and this has been addressed in the debate—some concerns around stockpiling, maintenance and transit of cluster munitions in Australian territory, and I note the assurances that the parliamentary secretary has given there. I had a chance to have a quick look at the parliamentary secretary's closing speech in the second reading debate, and I understand that Senator Ludlam was just questioning whether the government has committed as a matter of policy to not authorising and not allowing such stockpiling of cluster munitions. I understand also that the parliamentary secretary said that the government will confirm its commitment in a public statement both at the time of Australia's ratification of the convention and in Australia's annual transparency report under the convention.

I am not sure—and perhaps he can explain—how the public statement that the parliamentary secretary has committed to make at the time of Australia's ratification of the convention will differ from the statement he made in the second reading debate. Perhaps he can also explain why, if there is to be any difference, that statement is not being made now as part of this legislative process to provide the comfort which many seek that Australia upholds a strong position on not allowing stockpiling.

Senator Ludlam posed a question on that front to the opposition and, as he knows, it is not my role within the opposition to commit the opposition to such a policy. However, he can have this individual senator's assurance that I expect that the opposition would continue with such a clear policy if the government were to honour its word—and Senator Feeney's word—in this legislative process. I hope that, the government having at least set a standard at a minimum level with this legislation—which some will say is not adequate—and then having gone further in government policy as the parliamentary secretary is committing to do, a progression occurs and that there is never a backward step and that changes to policy only further strengthen Australia's commitment to the elimination of the use of cluster munitions.

I emphasise that, whilst I still have some concerns about whether the bill meets all of the assurances that the government gives, I think it is important that we recognise that Australia's involvement in the convention through this bill is a very significant step forward in eliminating cluster munitions from the world, and I hope that all senators who approach the matter with good intent ensure that in the years to come we hold the government of the day to account for ensuring that Australia's good intentions are reflected and honoured through our actions and not just our words. I invite the parliamentary secretary to respond to any of the issues I have raised.

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

I take up the invitation, Senator Birmingham. I repeat that the government thanks the opposition for supporting the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010. I guess that the opposition has reached the judgement, as have we, that this bill gets the balance right. Obviously both we and the opposition come to the table with the understanding that we want to keep faith with the convention and that this bill does represent a step forward but that we are at the same time practically minded in that we wish to make sure that the convention does not have the effect of severing our alliance arrangements with the United States.

I repeat that we will be making a statement on cluster munitions, which you, Senator Birmingham, have talked about. The detail in the statement will be absolutely aligned with the undertakings I have given, and government policy will be expressed in the terms I have put them in this debate. I think that a lot of the detail that your question asked for I dealt with last night, and I commend the transcript to you for some of the detail about the balance in proposed sections 72.41 and 72.38 in particular.

I think that we have got the balance right and have said very plainly that this bill realises the convention, that matters above and beyond will be dealt with as a question of policy and that our policy is clear and well understood.

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to this | Hansard source

I thank the parliamentary secretary. I certainly will return to the Hansard from last night. Can the parliamentary secretary please explain to me what form the public statement he is referring to will take? Is there an example that you can give us, Parliamentary Secretary, of what form this commitment via public statement will take so that we have some understanding as to the strength that people can attribute to it as part of Australia's undertakings?

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

When this instrument has been ratified and lodged, the Australian government will make a public statement and that public statement will be in line with the undertakings I have given this chamber. Thereafter the bill itself requires that there be an annual transparency report, and that annual transparency report would repeat the undertakings given in the public statement at the time of ratification.

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to this | Hansard source

I thank the minister and I certainly understand in relation to the annual transparency report the commitment being made by the government. Essentially, the public statement could be the form of a ministerial statement to the House; it could be in the form of a media release; it could be literally anything that contains the words 'public statement'?

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

Yes, that conforms with my understanding.

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

The minister has used the term 'authorisation' of weapons being stockpiled or transited through Australia. I also thank Senator Birmingham; I guess we can only hope that in the unlikely event that there is a change of government next year he ends up as the defence minister and then we can hold him to his word—which I absolutely believe; I know he cares a great deal about these issues. However, we have even less from the coalition than we have from the government. From the government we have a hypothetical policy statement that may be announced at some future stage down the track; from the coalition we have Senator Birmingham assuring us that he loathes these weapons as much as anybody else and would not want to see them stored here.

I am interested to know how we would actually prevent it. How is this going to work in practice? When US warships that may or may not be nuclear armed transit through Australian ports, the US Navy has a policy of neither confirming nor denying that the ships are carrying nuclear weapons. To what degree would we even know about the weapons on these vessels or aircraft moving through Australian waters or airspace, stabled temporarily at Tindal air base or wherever else, in order to issue an authorisation in the first place?

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

Firstly, there is nothing hypothetical about our policy. Our policy is our policy and it is plain. The government strictly monitors the presence of cluster munitions and other explosives on Australian territory. Ships and aircraft owned by foreign armed forces that transit through Australian territory are required to advise the quantity of explosives that they have on board to enable appropriate explosives safety requirements to be met—that is, to ensure that the ship or aircraft is berthed or parked in an appropriate location—and it is standard practice to require such vessels to advise of the total net explosives quantity of munitions that they have on-board rather than the actual type and quantity of specific munitions.

All munitions owned by foreign armed forces that are stored on Australian soil are required to be managed as Commonwealth explosives, in accordance with the Explosives Act 1961 and its subordinate regulations and codes. This requires specific approval for the storage and transportation of these munitions and their inclusion in Defence information holdings. Additionally, munitions are stored in Defence facilities licensed to store explosive ordnance and are managed on the computer system for armaments. As a consequence of that Defence both approves and has full visibility of all foreign armed forces munitions that are stored on Australian soil.

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

I thank the minister. Does that not apply to nuclear weapons? Is that simply a blank box, or is that information provided to the Australian government but just not then provided to people?

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

We are now creeping outside the scope of this debate. Let me say, in a very off-the-cuff way, that as I comprehend it what I have just described is how Australia deals with munitions, not nuclear weapons. There is a relevant treaty—the South Pacific Nuclear Free Zone Treaty—and that bears on the issue of nuclear weapons as well.

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

To come back to the topic of cluster weapons, then, correct me if I am wrong but we are given an inventory of the total amount of ordnance but not broken out by weapon type, so we would not necessarily know if the 14-foot-long cylinder was a single device or in fact was 10,000 small submunitions. Maybe I misunderstood your comment: do we actually know, broken out by weapon type, what is stored on Australian soil? Let us start with that before we deal with naval or air assets. What degree of detail is provided to Australian authorities?

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

I think your understanding of that is correct. We will not be aware of cluster munitions that are aboard foreign planes or vessels transiting through Australia, but we are required to be and we are aware of all munitions stockpiled in Australia, as I described, and we will prohibit the stockpiling of cluster munitions in Australia. The convention does not contradict that approach—it does not go to transiting vessels or planes. As I have described, that is consistent with the convention.

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

Minister, in the instance of an aircraft that was not passing through Australian airspace but was in fact parked at Tindal in the NT for a period of three or four months and the aircraft had these weapons on board, would they be required to report the existence of the different kinds of munitions in that case?

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

The circumstance of that individual aircraft would be taken on a case-by-case basis and it would be dealt with by the government on the basis that we prohibit the stockpiling of cluster munitions in Australia.

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

I thank the minister for that. I think it is still remarkably unsatisfactory. Nothing that the minister has said—and I know you are being as helpful as you can, Minister—has given me any comfort whatsoever as to why we should take this policy commitment, which could be reversed on a whim either by his government or by the one that may or may not follow, when we could simply put an amendment, so I will do so shortly down the track. Chair, I think it might assist the chamber if I formally move the first amendment and we actually start moving through these.

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

We are in your hands, Senator Ludlam, as to how we handle the amendments. The only thing is that the last of your amendments, No. 6,needs to be moved separately.

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

I will speak to each of them in turn. I now move amendment (1) on sheet 7084, which relates to intention:

(1)   Schedule 1, item 1, page 3 (line 28), omit paragraph 72.38(2)(c), substitute:

  (c)   the first person knew or should have known that the act would be done.

It is not a matter that I have discussed at length so I will briefly describe for the benefit of senators why I am doing this. This amendment is to the section of the bill that relates to promoting acts with cluster munitions, so it goes to our positive obligations under the terms of the convention. A person commits an offence if a person knew or should have known that the act would be done. That is common language for recklessness. This bill sets a very high threshold for liability requiring that a person intended that an act be done in order to be liable for one of the offences. This refers specifically to proposed section 72.38. Under this standard, individuals would not be liable for conduct if, for example, they were aware that their conduct would result in cluster munitions use—so there is knowledge—or in a substantial unjustifiable risk of use, so recklessness. Using an intention standard in 72.38, this makes it very difficult to hold individuals liable for use, production, transfer and stockpiling of cluster munitions or assistance with these prohibited acts. This is even if they knew or should have known that their conduct could lead to one of these activities. This result is in direct opposition to JSCOT's recommendation to prevent inadvertent participation in the use, or assistance in the use, of cluster munitions by Australia. So I hope the minister can see the distinction that I am drawing here even though it may seem to be a fine one. It is between inadvertent participation and reckless participation. I will remind the chamber, because I am still open to referring this bill back to JSCOT as we discussed last night, that JSCOT, in its report No. 103 of 2009, said:

… The Committee also acknowledges concerns regarding the potential for Australia to inadvertently participate in the use or assist in the use of cluster munitions, despite the provisions of the Convention. The Committee is concerned 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. 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 …

The Committee recommends that the Australian Government and the Australian Defence Force (ADF) have regard to the following issues when drafting the legislation required to implement the Convention … , and when developing policies under which the personnel of the ADF operate:

To cut to the chase, this amendment implements that latter recommendation by JSCOT. This amendment would effectively implement that in full. I know—and I spoke at length on this last night and earlier this afternoon about the facts—how horrified I was to discover that what I thought was lazy drafting or inadvertent loopholes that have crept into the bill were actually deliberately placed there at the behest of the United States government, as was demonstrated by the release of the state department cables by WikiLeaks. In this instance I think perhaps it is simply poor drafting. I do not sense any underlying conspiracy here and I am merely attempting to improve the drafting to tighten up what I believe leaves us very open to a very wide interpretation or a very high bar being put in place. So I commend this amendment to the chamber.

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

The government's position is that we agree with your understanding that the proposed amendment is intended to alter the standard of fault which applies to an element of the offence of assisting, encouraging or inducing the commission of a prohibited act from 'intention' to 'knowledge'. As indicated, the government does not support your proposed amendment, being the amendment of the Greens Party. As currently drafted, the bill will ensure that all conduct that is prohibited by the convention is the subject of a criminal offence under Australian law. The offences in the bill have been drafted on the basis of a reasonable interpretation of the convention. We consider that a reasonable interpretation of the convention is that a person who assists, encourages or induces another person to undertake prohibited conduct must also intend that the prohibited conduct be done. This interpretation is consistent with the object and purpose of the convention, which is to prohibit the use of cluster munitions. I repeat, Senator, that, as we discussed last night in the committee stage, I think it is entirely unremarkable that Australia consulted with its alliance partner, the United States, and developed a common position insofar as we could maintain our commitment to support the convention while sustaining that alliance. I think, as I said to you last night, there are no revelations in WikiLeaks worthy of that name, rather the mundane conduct of diplomacy between friends.

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

The minister may find it mundane that a party to the convention would be doing the bidding of a party not to the convention that actively deploys and uses in military conflicts these weapons. So as for developing a common position—and maybe I did not quite make myself clear last night—how does the Australian government come to a common position when our objectives are diametrically opposed? The Australian government is telling the public that it wants to see these weapons eradicated from the face of the earth. The United States military has still deployed and used these weapons on civilian populations in recent conflicts. So how exactly do we reconcile and come to a common position in that instance?

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

It is actually very straightforward. Again, I think we are retracing ground that I covered last night. Clearly the government has supported this convention, as indeed has the opposition and the Greens, because we are all committed to the eradication of cluster munitions. Of course, if it were possible, we would also sign a convention that outlawed war. But, tragically, we live in an international environment where things are not quite so simple. While we are resolved to not use, not stockpile, not consider the use of cluster munitions, that is not a view that is shared by a range of countries. You obviously speak of the United States, but there are many others. If you were to insist, as you seem to be, that every country that signs this convention must walk away from its alliance relationships and any view that its military should be interoperable with its major alliance partners, then I would submit that you would not simply see the allies of the United States disadvantaged but of course you would be creating a set of circumstances whereby none of the powers or the allies would sign this treaty and it would be, if you will forgive the phraseology, dead on arrival. It would be a dead letter treaty.

We are committed to changing international norms. We are committed to eradicating these weapons. But it is a nuanced business. Of course, one must also comprehend that for some countries the banning of cluster munitions may simply mean a bigger investment in artillery and rocket barrages. These things are not simple. And while they are a little easier for us because our view is clear and we do not face a territorial threat and these are not weapons we have ever used or ever stockpiled and we have no intention of ever doing so, we understand that the equation in other parts of the world is not so simple. So again I would put it to you that if we were to follow your formula we would find a convention with fewer signatories and we would find a convention that in fact has less of an impact rather than the greater impact you seek.

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

The question is that the amendment moved by Senator Ludlam to schedule 1, item 1, paragraph 72.38(2)(c) be agreed to.

Question negatived.

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

I think the chamber should have reconsidered that one. However, I will move to Greens amendment (2) on sheet 7084:

(2) Schedule 1, item 1, page 3 (after line 29), after subsection 72.38(2), insert:

(2A)   An entity regulated by the Australian Securities and Investments Commission or by the Australian Prudential Regulation Authority commits an offence if it directly or indirectly:

  (a)   provides funds to a person or an entity; or

  (b)   invests funds in an entity;

involved in the development or production of cluster munitions or explosive submunitions.

This is not an issue we have canvassed at length, so I will just briefly speak to it. This amendment relates to the ban on investment. I presume Senator Feeney will shortly jump up in response and assure me that I am misreading the bill, but in fact we have taken advice from the people who actually manage and run the funds and they have said that this is a flaw. This is not, I think, something we are doing at the behest of the United States government, unlike the other, clear faults we have introduced in the bill. Again, I would be inclined to place this in terms of a drafting error, but maybe I am just naive.

The bill should explicitly ban investment because it assists with a prohibited act. I struggle to see how that could be a controversial statement. Many other countries specifically ban direct and indirect investment in cluster munitions in their legislation. By 'indirect' we mean an investment in a parent company that may, through a company that it has a holding in, in fact be manufacturing components or manufacturing cluster weapons themselves. There are not a large number of companies in the world who manufacture these weapons. Most of them, indeed, are subsidiaries of the big arms manufacturers. Perhaps those are the entities in whom this amendment should be dedicated to.

The Treaties Committee recommended at recommendation (2) that the legislation should prevent investment. It is fairly clear. It is supported by the Australian Council of Superannuation Investors who proposed this in its submission to the Senate inquiry. I would encourage all senators to go back and have a look at what the financial community thinks of this bill. Their evidence was compelling. They said that in order to comply with the spirit of the CCM and the recommendation of the Parliamentary Joint Standing Committee on Treaties that the bill must restrict the ability of cluster bomb producers to secure any capital from Australian investors by 'making it illegal for Australian investors to provide financing to such companies'.

We propose that the restriction applies to all Australian institutions regulated by ASIC or APRA. Under our proposal these institutions will be prohibited from lending to companies that produce cluster bombs. In addition, the institutions will be prohibited in trading in securities or investing moneys—their own or on behalf of clients—in companies that produce cluster bombs. Finally, under our proposal the bill will contain a schedule with a list of such companies that will be updated by the Commonwealth as required.

A number of countries have legislation which directly prohibits the manufacture and financing of cluster munitions. I will go through a list of those briefly, but let me just test first of all whether there have been any second thoughts, either on behalf of the government or the coalition, that in fact this is the easiest of the loopholes to close. Senators would be aware through the length of the debate thus far that perhaps the other issues are complex; this one is pretty simple: we do not want to be enabling the financing, direct or indirect, to companies producing cluster weapons. I hope that is an uncontroversial statement. Could I get an indication, please, from the minister if the government intends to support this Greens amendment that would simply tighten up the investment criteria, as the Australian Council of Superannuation Investors have advised. If Senator Humphries wants to indicate a position on behalf of the coalition, I would be grateful as well.

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

No, I am afraid, Senator, the government does not support the proposed amendment. The government repeats its view that this bill gives full effect to the convention—the convention that represents the agreement of the international community on prohibiting cluster munitions. We understand that the proposed amendment would make it an offence for a company to invest in any company that develops or produces cluster munitions, regardless of the investor's knowledge or intent in making that investment, and regardless of whether the invested funds actually assist in the development or production of cluster munitions.

It is the government's view that such an amendment is inconsistent with the convention and inconsistent with the primary purpose of this bill, which of course is to give effect to the convention. 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. The convention does not prohibit all forms of investment in companies that develop or produce cluster munitions. Rather, the convention prohibits the provision of assistance, encouragement or inducement in the development or production of cluster munitions. Some acts of investment would fall within the scope of the convention's prohibition on assistance where the investment in fact assess the development or production of cluster munitions, but any acts of investment that are prohibited by the convention will fall within the scope of the offences in the bill.

The proposed amendment may have potentially wide-ranging effects. Human Rights Watch has estimated that more than 85 companies produce cluster munitions or their key components, and many of these companies of course produce other non-prohibited products. Financial institutions that provide credit for loan facilities to these companies would be in breach of the proposed amendment, and we say that is unworkable and that it goes beyond the scope of the convention itself.

Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Link to this | Hansard source

I am not sure it is the intention of standing orders to facilitate questioning of the opposition in the course of the committee stage of the debate on a bill, but I will oblige without setting a precedent and indicate that the opposition will not be supporting this amendment or, for that matter, any of the other amendments moved by Greens today—in the case of this amendment, for reasons similar to those that were offered by the minister.

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

So when I finally move this motion the Senate will be voting to keep a loophole open that the financial community wants closed—just so that we are well aware that. A number of countries have legislation which directly prohibits the financing and manufacturing of cluster weapons. Australia is going to stay outside that framework and that is profoundly shameful. Luxembourg in 2009 passed its Convention on Cluster Munitions ratification law, and article 3 of that law contains a ban on investments and states:

All persons, businesses and corporate entities are prohibited from knowingly financing cluster munitions or explosive submunitions

In 2008, Ireland's Cluster Munitions and Anti-Personnel Mines Bill explicitly prohibited investment of public money in producers of cluster munitions. In 2009 the New Zealanders, whose enabling legislation I have referenced previously, included a prohibition on investment in companies that manufacture cluster munitions and they are clear about what sort of financing is prohibited—namely:

… assets of every kind, whether tangible or intangible, moveable or immoveable, however acquired; and includes legal documents) or instruments (for example bank credits, travellers’ cheques, bank cheques, money orders, shares—

and so on.

The Netherlands in 2011 passed a motion that called for the prohibition of direct and demonstrable investments in companies that produce, sell or distribute cluster munitions. The UK government issued a ministerial statement in 2009 confirming that 'under the current provisions of the bill, which have been modelled upon the definitions and requirements of the convention, the financing of cluster munitions would be prohibited. The provision of funds directly contributing to the manufacture of these weapons would be prohibited.' Lastly, Belgium produced a schedule in its legislation, and article 2 of that legislation reads:

Also prohibited is the financing of a company under Belgian law or under the law of another country, which is involved in the manufacture, use, repair, marketing, sale, distribution, import, export, stockpiling or transportation of anti-personnel mines and or sub-munitions within the sense of this act, and with a view to distribution thereof.

To this end The King shall, no later than the first day of the thirteenth month following the publication of this act, prepare a public list

(i) of companies that have been shown to carry out an activity as under the previous paragraph;

(ii) of companies holding more than half the shares of a company as under i) and;

(iii) of collective investment institutions holding financial instruments of companies as designated in i) and ii).

So here is a fairly explicit example of the sort of behaviour that Senator Feeney just said we could not possibly bring to bear in an Australian legislative context because companies that manufacture these hideous weapons might also manufacture consumer white goods. Who knows? And we would not want to impact upon them! Actually, I believe we would. That is precisely why we would bring an instrument like this into law: to stigmatise and try to strangle financial oxygen to exactly that kind of behaviour. Either we oppose the manufacture and distribution of these weapons or we do not. Minister, would you briefly provide us with the government's view on why it is good enough for the state parties that I have just listed to do this but, somehow, not possible here in Australia.

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

I am happy to respond, Senator. Each signatory to the convention is implementing its obligations under the convention in accordance with its domestic processes and requirements. Some countries—for example, Guatemala, Lebanon, Madagascar, Malawi, Malta, Rwanda and Zambia—consider that article 1 of the convention by implication prohibits all forms of investment in companies that develop or produce cluster munitions. Other countries consider that the convention does not prohibit investment but have nonetheless enacted legislation prohibiting all forms of investment in companies that develop and produce cluster munitions—for example, Belgium and, as I think you cited, Luxembourg.

In the case of Belgium and Luxembourg this legislation was not enacted on the basis of any legal obligation arising under the convention. Countries are not precluded from deciding as a matter of policy to adopt measures regarding investment that go beyond those in the convention. Other countries, such as Austria, Germany and the United Kingdom, have not included a prohibition on investment as part of their legislation to implement the convention. I will conclude by saying that, when one looks at the cases around the world, we see some variation, and I repeat the government's view that what we have before us is a bill that keeps faith with the convention and enacts the requirements of that convention as its primary purpose.

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

In closing, Madam Temporary Chair—and then I will ask you to put the question if there are no other contributions—the Greens agree with Human Rights Watch, who state:

The Bill should explicitly ban investment because it assists with a prohibited act, that is, the production of cluster munitions. Production cannot be curtailed and cluster munitions eliminated if a state party allows direct or indirect financial support to manufacturers of the weapons. Because private investors often provide important financial support to such companies, the ban should extend to private funds.

As I have mentioned a couple of times, the Australian Council of Superannuation Investors provided evidence to the foreign affairs, defence and trade committee that was compelling. In their submission they pointed out that there is no known direct investment in cluster munitions occurring anywhere in the world. On the other hand, direct investment is the only type of investment that would be captured under the current legislative wording. In other words, we are prohibiting a practice that does not exist, but on the kind of practice that does exist—that is, indirect investment in parent companies that have subsidiaries producing these devices—this bill is silent.

I could have seek an undertaking that the minister believes that, and maybe I have misunderstood his comments. ACSI observed that for the avoidance of doubt 'the current drafting will have no practical effect on the financing of cluster bomb production'. Minister, before we put this question to the vote, is it the government's understanding that the current wording of the bill does preclude indirect investment in cluster weapons? Perhaps that could have some bearing on the way in which the courts interpret future actions which are brought to bear.

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

The bill gives effect to the convention in Australian law and is guided and limited by the convention. The bill provides that a person or entity commits an offence if they intentionally assist, encourage or induce a person or entity to develop or produce cluster munitions. This offence would, for example, apply to a person who intentionally provides financial assistance to an entity so that the entity can develop or produce a cluster munition. However, accidental or innocent acts of assistance, encouragement or inducement will not fall within the offences in the bill.

For example, the person who contributes to a superannuation fund which includes investments in companies that may develop or produce cluster munitions would not fulfil the elements of the offence in the bill. The offences in the bill utilise the criminal code standard fault element of intention. The standard fault element should be applied unless there is a reason to depart from it.

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

Minister, if I can put my question to you directly: if I invest in company A, which does not manufacture cluster weapons but which does have a holding in company B, which does manufacture cluster weapons, am I in breach of this bill when it is enacted or not?

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

It would really be of no assistance, and indeed might even be entirely counterproductive, for me to try and provide advice around a scenario like that. There are battalions of folk who are better equipped to manage those sorts of questions in due course. What I can do here, and what I have done, is to articulate our policy and the fact that what we have before this Senate is legislation that keeps faith with the convention. Our view is that you are trying to accomplish certain policy ends that are not found in the convention, and which we say are outside the gamut of this legislation as a consequence.

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

So I can invest in a shell company that does not manufacture cluster weapons but owns entities that do, and the minister somehow wants us to believe that that is in keeping with the spirit of the convention? It is not—it is just not. I am not sure that there is any value either in asking anybody who might still be listening to this debate to pursue this any further, because I think that on the key question the minister has been unable to comfort us—that I can invest in a company that has nothing to do with cluster munitions apart from the fact that it owns a subsidiary entity that does manufacture them, but that will not be in breach of this bill. Why even bother having investment criteria in here? As ACSI pointed out—and these are the people in the industry who know exactly how this game works—the bill as drafted has no practical effect because we do not invest in companies that directly manufacture these weapons, we are investing in the entities that own them as subsidiaries. On that, this bill is silent.

Unless the minister has anything to add, my take away from this debate is that the provisions as drafted will have no practical effect at all. That is certainly what the Australian Council of Superannuation Investors believe. The minister has given us no evidence this afternoon that they are incorrect. If the minister has had nothing further to say, that is fine—I will let the chair put the question to the chamber.

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

The question is that Greens amendment (2), to insert subsection (2A) into 72.38(2) in schedule 1, item 1 be agreed to.

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

I suspect that this will be among the least controversial of the amendments that the Greens have proposed to this bill and it is also one with which I have the least issue. This is simply a technical amendment. The Greens amendment here is section 2239 of the bill which is about the acquisition and retention was raised by the minister in terms of what stockpiles the ADF can hold. What we are seeking to do is ensure that the minimum number of munitions are held by Australia that is absolutely necessary for training purposes.

The text of the bill currently reads that the minister may authorise in writing specified members of the ADF or other specified Commonwealth public officials to acquire or retain cluster munitions for one or more of the following purposes. The Greens amendment simply adds the words 'minimum number' and 'absolutely necessary'. So I will make very clear at this point that this part of the bill proposes that we could acquire cluster munitions that have the Greens support. I have seen at our Minhad air base in the UAE, with ADF personnel showing a visiting party of rather naive MPs from the other side of the world exactly what this could do to people, how it sounds when they go off, how they are incorporated into improvised explosive devices and how we can protect the local population and of course our own troops in the field from these horrific weapons, so I can understand the requirement for training purposes. We are not proposing to modify the list of reasons we might retain the things. We recognise that they are not for deployment and that that is not the intention of this part of the bill.

Nonetheless I think these amendments still have merit. The words 'minimum number' and 'absolutely necessary' provide very clear and explicit guidelines. We are not going to propose buying crate loads of these materials. We are holding onto, as I think the minister expressed in the debate last night, a handful of legacy weapons, many left over from the Russian invasion of Afghanistan and a handful of newer weapons simply to familiarise our forces going into Afghanistan or elsewhere with what these weapons can do and what they look like.

I commend this amendment to the Senate on the understanding that we are not seeking here to modify the basic premise of this part of the bill but simply to provide a hard and fast cap to reduce any residual ambiguity that this is for anything other than training purposes.

I move amendment (3):

(3)   Schedule 1, item 1, page 4 (lines 18 and 19), omit "to acquire or retain specified cluster munitions", substitute "to acquire or retain the minimum number of cluster munitions absolutely necessary".

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

The government does not support the proposed amendment as we believe it is not necessary to include this requirement in the legislation. Article 9 of the convention allows state parties to take legal, administrative or other measures to implement the convention including the creation of regulations. The government intends to reflect the minimum number requirements in regulations that we believe are an appropriate way to implement the convention. The regulations will reflect the requirement of the convention that the amount of explosive submunitions retained or required by a state party shall not exceed the number absolutely necessary for the purposes permitted in the convention and, Senator, you have spoken to those.

Factors that must be taken into account in decision making, such as the minimum number requirement, can be included in regulations rather than legislation. Proposed subsection 72393 states that regulations may prescribe the requirements relating to authorisation by the minister under subsection 72392. The regulations will reflect the requirement in paragraph 6 of article 3 of the convention that the amounts of explosive munitions retained or acquired by a state party shall not exceed the minimum number absolutely necessary for the purposes permitted in the convention. As you have said, Senator, those purposes are the development of and training in cluster munitions detection, clearance or destruction techniques and the development of cluster munitions countermeasures. These permitted purposes are the same purposes for which an authorisation can be granted under section 7239 of the bill.

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

I commend this amendment to the chamber.

The CHAIRMAN: The question is that amendment (3) on sheet 7084 moved by Senator Ludlam be agreed to.

Question negatived.

The CHAIRMAN: Senator Ludlam, do you wish to proceed with amendment (4)?

Chair, I certainly do. I can think of nothing that I would rather do. I move amendment (4):

(4)   Schedule 1, item 1, page 5 (after line 7), at the end of section 72.39, add:

This amendment is also effectively a technical amendment and will go to amendments (5) and (6), I suspect, after question time, which go to the deeper substantive issues of why we would allow the ADF to continue to plan and conduct missions in which these weapons were used and then again in amendment (6), which relates to transit and stockpiling of these weapons on Australian soil.

Amendment (4), however, simply goes to our belief that the minister should submit an annual report to the Secretary-General of the United Nations that details the matters which we were referring to just before. So the minister or his or her delegate under this amendment would be required to submit a report annually to the Secretary-General of the United Nations for each year in which cluster munitions are retained, acquired or transferred by no later than 30 April of the following year. This report, we believe, should include information on the planned and actual use, type, quantity and lot numbers of cluster munitions acquired or retained under the subsection.

Minister, this is nothing more nor less, in my view, than simply modelling best practice. This is modelling good behaviour. Each state party and those non-state parties that are eventually brought within the ambit of the convention should be encouraged to have precisely this practice. I suspect that long after all state parties have joined this convention and long after these weapons have been banned from the arsenals of the world—and we all, I think, look forward to that day—there will still be in places like Afghanistan, Laos, Vietnam and across former battlefields in Africa and elsewhere tens and hundreds of thousands of these weapons scattered about and there will still be a requirement for defence forces and mine-clearing personnel to retain stockpiles of these weapons. This is something that is going to have to remain in perpetuity. So I understand why we will need to retain very small numbers of these weapons for training purposes, but I believe we should get into the practice now of modelling best practice behaviour, which means accurate reporting to the S-G of the United Nations about exactly what stockpiles we are holding and why. If that practice is reflected in those of other states party to the convention, I think we will all be better off. I commend this amendment to the chamber.

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

Senator Ludlam, the government does not support this proposed amendment, and again we say that it is not necessary to include this requirement in legislation. Article 9 of the convention allows state parties to implement the convention through legal, administrative or other means as appropriate. And, as with its reporting obligations under other international legal instruments, Australia will comply with its reporting obligations under the Convention on Cluster Munitions—and we talked a bit about those last night and again today—without the need for those obligations to be set out in legislation.

The CHAIRMAN: The question is that amendment (4) on sheet 7084 moved by Senator Ludlam be agreed to. Question negatived.

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

I move amendment (5):

(5)   Schedule 1, item 1, page 6 (lines 7 to 31), omit section 72.41, substitute:

72.41 Defence—participation by Australians in military cooperation with countries not party to Convention on Cluster Munitions

     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 against section 72.38 by merely participating in military cooperation or operations with a foreign country that is not a party to the Convention on Cluster Munitions.

Note 1:   A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).

Note 2:   The expression offence against section72.38 is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(2).

Note 3:   This section relates to paragraphs 3 and 4 of Article 21 of the Convention on Cluster Munitions.

This amendment quite clearly goes to what is probably the most flawed part of the bill. Amendment (5) fixes—I do not even know if 'loophole' is an accurate term—a structural sabotaging of the very intent of the convention that we are designing this legislation to enact. So I think calling it a loophole is simply too generous. Calling it a loophole would allow you to imagine that perhaps it was inadvertent and that it had got in there by mistake, and we now know that that is clearly not the case.

The section this amendment seeks to fix allows Australian troops to actively assist countries that have not signed up to the convention to deploy and use these munitions. This occurred in Iraq when the convention did not exist in 2003, and we have discussed that extensively. I would be interested to know whether anybody in the department has bothered to chase up any of the questions I put on notice last night about the weapons platforms that the United States government uses to put these weapons into the field, because that will be helpful information when we come to debating the amendments around stockpiling and transit. But, in particular, I put some specific questions through you, Minister, last night about whether F18 pilots flew close support missions for US ground forces that were using cluster weapons against civilian populations. I would invite the minister now, as the clock runs down towards question time, to address whether he knows that is the case or not.

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

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

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

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

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

Chair, I seek your guidance, as the clock runs down, as to whether you want to take us straight into question time. I strongly dispute the statement that the minister has just made and will persist with this amendment when we come back from question time. But I am aware that the President is in the chamber and I am happy to move forward, if you believe that is the best way.

The CHAIRMAN: Do you want me to put the question? I have enough time to put that question.

I absolutely do not want you to put the question, because I am totally unsatisfied with the response that the minister has put to us.

Progress reported.