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senate vote 2012-08-21#3
Edited by
mackay staff
on
2017-01-27 22:20:24
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Title
Bills — Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010; in Committee- Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010- In Committee - New defence
Description
<p class="speaker">Mark Furner</p><p>The committee is considering the Criminal Code Amendment (Cluster Munitions Prohibitions) Bill 2010 and Australian Greens amendments (5) and (6) on sheet 7084 moved by Senator Ludlam.</p> <p class="speaker">Scott Ludlam</p>- The majority voted against an [amendment](http://www.openaustralia.org.au/senate/?gid=2012-08-21.60.1) introduced by Greens Senator [Scott Ludlam](https://theyvoteforyou.org.au/people/senate/wa/scott_ludlam) (WA), which means it was unsuccessful.
- ### What did this amendment do?
- Senator Ludlam [explained](http://www.openaustralia.org.au/senate/?gid=2012-08-21.60.1):
- > *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.*
- ### What is this bill?
- The bill will bring the [Convention on Cluster Munitions](https://en.wikipedia.org/wiki/Convention_on_Cluster_Munitions) into Australian law by, for example, creating offences in relation to cluster munitions and explosive bomblets.
- Read more in the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1011a/11bd072).
- ### Amendment text
- > *(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.*
<p>We now come to the two remaining substantive amendments. I hope by now I have managed to persuade Senator Feeney that it is not enough for this chamber to unite in failure to vote down these Greens amendments but that in fact we still have the opportunity, as the clock runs down, to correct two grievous flaws in the bill such that the civil society groups who have shepherded this convention from inception to signing are now saying that they would rather Australia did not ratify, that they would rather this legislation did not pass. I suspect that, if the following two amendments (5) and (6) that we are now debating on sheet 7084 were to pass, that opposition would turn to support and that the Australian government could genuinely hold its head high and collect the accolades that it would deserve.</p><p>I understand there is a conference that the minister would want to be able to present our credentials to in the matter of this convention, but he would be doing it in the context of the groups who have been supporting the process and the convention will be opposed to the passage of this legislation. I think that is a tremendously sad indictment on the way that the Australian government has put the interests of the United States, which seeks to continue to deploy these horrific weapons, against the interests of the people who are maimed and killed by these weapons. I cannot be much more blunt than that. In fact, what we are seeing is a systematic sabotage of the convention. These are not accidental loopholes. These are not drafting errors.</p><p>Senator Feeney, I am reluctant to move to ask the chair to put the question on amendment 5, which relates specifically to interoperability, without some definition on the question that I put on notice last night and again early in the afternoon when we reconvened about the degree to which the Royal Australian Air Force supported operations in which the US used cluster weapons on their way into Baghdad. I wonder whether you could provide us any information.</p> <p class="speaker">David Feeney</p><p>First things first, perhaps, Senator. I do have some preliminary information for you on that last point, so let me move directly to that. Please regard this as a preliminary response taken on notice. We may come back to you with further particulars. What I have for you as of this moment concerns the provision by Australia of air support to the United States during the 2003 Iraq conflict. I firstly note that the following information was provided by the Department of Defence in response to a question by Senator Ludlam during the 2011 budget estimates hearings, and so I guess I might be about to repeat information you have already received on notice as a consequence of those estimates hearings.</p><p>In 2003 Defence was aware that the US and other coalition partners had cluster munitions and that it was possible these would be used during combat operations in Iraq. While the use of munitions by Australia's coalition partners was subject to general international humanitarian law considerations, the use of cluster munitions was not prohibited at that time. The Australian Defence Force provided a range of air capability during that operation. This included FA18 Hornet aircraft in the air combat patrol and strike missions, AP3C Orions conducting maritime patrol and surveillance, C130 Hercules providing intratheatre airlift and the B707 conducting strategic lift. Australia does not possess operational stocks of cluster munitions and Australian FAA18 aircraft did not use cluster munitions in Iraq.</p><p>I also have a preliminary response regarding your question about which weapons systems and on which platforms the United States military deploys cluster munitions. The government's response is that the Australian government does not comment on other government's specific military capabilities.</p><p>Having said that, I did note in that open source document from the Congressional Research Service I cited earlier today that there was some analysis by the US Congress on that very question. I will happily pass Senator Ludlam a copy of that. In essence I think it said that every single US airframe might be applied to the task. I will get that to him when I find it.</p><p>I might briefly respond to some of the more, dare I say it, political points that Senator Ludlam made before he asked those two specific questions of me. Senator Ludlam has obviously heard from me on several occasions about the reasoning behind the Australian government adopting the approach that it has. We will be holding our head high; we are proud of the fact that we are supporting the convention. We believe it is an important step forward for the international community and we will be proud to be a part of it. For the reasons I have already articulated I think any philosophy that says we would rather have 100 per cent of nothing than 80 per cent of something is misconceived, and, if there are those organisations that now say the convention would be better off not going ahead, I guess all I would say to them is that this is a constructive, practical and real way forward and I fear the alternative strategy would lead us to achieving nothing whatsoever.</p> <p class="speaker">Scott Ludlam</p><p>I thank the minister for providing answers to those questions—or an answer to the first, at least, if not the second. If I have misled the minister or if he has misconstrued the comment that I made, can I make it clear that the civil society groups, including principally the Cluster Munition Coalition, are not saying that we would be better off without the convention. I apologise if that was the impression that I gave. They are strongly of the view that we are better off without Australia as a party under the formulation that has been drafted into this bill.</p><p>One of the reasons they believe that—I suppose the belief is twofold—is that it means that Australia effectively has ratified the convention while undermining its fundamental objectives. Secondly, should this legislation be taken as template legislation by other parties seeking to ratify the convention, our bad habits would then be spread around the world. So it is not that they are against the convention; it is that they are against the way in which the Australian government has sought to interpret it. That really is the key issue.</p><p>The minister has now confirmed at two different times the key substantive issues that I put to him last night. Firstly, he was reasonably confident that the reports that I cited last night and tabled for senators were reasonably accurate, at least to within an order of magnitude, in terms of the places and the number of weapons that were fired into those Iraqi settlements at the time of the operation that the Australian government supported. I think the figures from last night, from memory, indicated that upwards of two million submunitions were fired into metropolitan areas, and there was an extraordinary death and injury toll attendant on that. The minister has confirmed for us that Defence—I suppose that is on whose behalf he was replying, or at least the Attorney-General's Department—are reasonably comfortable that those reports are accurate. Secondly, he has just confirmed for us that the Royal Australian Air Force flew support missions for the United States military while it was dispersing those weapons into Iraq. My question for the minister now—this is the question on which most of my arguments on this bill hinge—is whether that behaviour would be unlawful under the terms of this bill.</p> <p class="speaker">David Feeney</p><p>I think we are unfortunately going around in circles a little. I have addressed myself to that question previously: I am not going to embark, and I think it would be foolhardy for any government to embark, on a process where we applied our current obligations to military operations that occurred some nine years in the past. I do not think that serves any useful purpose.</p><p>As for Senator Ludlam's contention that the interoperability provision undermines the convention, of course the government rejects that. We say the bill is utterly consistent with the convention, and in fact we have used the language of the convention in crucial places inside the bill so that it conforms precisely with the convention and its intent. Again I repeat that we say the interoperability provision means that we can proudly stand behind this convention while retaining our alliance relationship with the United States. If his proposition were to be advanced then ultimately it would mean that Australia would have to choose between the convention and the US alliance. That is a nonsense.</p><p>Senator Ludlam likes to talk about the US military—that is his cause celebre when considering this bill—but I remind him that the United States as I understand it has not used cluster munitions since 2003, and that is not a boast that other powers can make. The United States does not stand alone in this space and I invite Senator Ludlam to have a wider field of vision. Australia's alliance relationship with the United States should be but one of many facets that deserve his attention.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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