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senate vote 2012-08-21#4
Edited by
mackay staff
on
2017-01-27 22:56:40
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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 - Acts by non-party country
Description
<p class="speaker">Scott Ludlam</p><p>This is the last Greens amendment. The Greens oppose section 72.42 in schedule 1 in the following terms:</p><p class="italic">(6) Schedule 1, item 1, page 6 (line 32) to page 7 (line 28), section 72.42 TO BE OPPOSED.</p>- The majority voted in favour of a [motion](http://www.openaustralia.org.au/senate/?id=2012-08-21.155.2) to keep section 72.42 unchanged. In parliamentary jargon, they voted for that section to "stand as printed".
- This vote was put after Greens Senator [Scott Ludlam](https://theyvoteforyou.org.au/people/senate/wa/scott_ludlam) (WA) moved [that it be opposed](http://www.openaustralia.org.au/senate/?gid=2012-08-21.163.1).
- ### What is section 72.42?
- In the [original bill](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Fbills%2Fr4487_first-reps%2F0001%22;rec=0#7c59fca0d7994b74ac5aa2d47aa57c61), section 72.42 is:
- > *72.42 Defence—acts by military personnel of countries not party to Convention on Cluster Munitions*
- > *(1) Section 72.38 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; 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; and*
- >> *(b) is done in connection with the use by those forces of any of the following in Australia in the course of military cooperation or operations with the Australian Defence Force:*
- >>> *(i) a base;*
- >>> *(ii) an aircraft of any part of those forces or an aircraft being commanded or piloted by a member of those forces in the course of his or her duties as such a member;*
- >>> *(iii) a ship of any part of those forces or a ship being operated or commanded by a member of those forces in the course of his or her duties as such a member.*
- >> *Note: A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).*
- > *(2) This subsection covers a person with any of the following connections with the armed forces of a foreign country that is not a party to the Convention on Cluster Munitions:*
- >> *(a) the person is employed by, or in the service of, any of those forces;*
- >> *(b) the person is serving with an organisation accompanying any of those forces;*
- >> *(c) the person is attached to or accompanying those forces and is subject to the law of that country governing any of the armed forces of that country.*
- ### 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).
<p>I advise the Senate that I am going to speak to it only briefly because Senator Feeney and I have already canvassed these issues at great length. So, for senators who just came into the chamber and are not sure what you just voted on, we just voted to assist the United States government to continue dropping cluster weapons, which is a great shame because that is directly in contravention of the convention.</p><p>The amendment we will shortly put to the vote is about allowing the US government, or others, I guess—as Senator Feeney quite rightly pointed out, it is not just the United States that deploys these awful things—to host them in Australia. The bill explicitly permits the hosting, stationing and stockpiling of these weapons on Australian soil; however, we were told earlier in the day that it is government policy that this not occur. The bill as drafted—and the drafters of the bill would not have done this by mistake; this is not lazy language; this is something that has been thought about and has been drifting around for at least two years that we are aware of—explicitly permits these materials to be stockpiled on Australian soil. We have the minister's word and we have a commitment that at some stage in the future, probably in the next couple of weeks, I guess, there will be a statement made which will enshrine this vague commitment in some sort of policy.</p><p>We still have not yet heard the coalition's policy. I recognise this is a bit unusual but I might see whether I can get Senator Scullion's attention as we go. We are aware that policies and governments change. It is more difficult to change a law, which would then need the consent of both houses of this parliament, than it is to flip a policy decision, which could of course occur overnight. The minister will be well aware of this.</p><p>Senator Scullion, if I could interrupt your conversation—which is no doubt deeply engrossing!—to ask you to put a coalition policy on the record, because this is something the Australian people need to know. The Australian government has refused to do it. Should the coalition win government, would it be the policy of the coalition to allow stockpiles of cluster weapons to be permitted on Australian soil? Senator Scullion, you can take that on notice if you wish. You are obviously within your rights to completely ignore me. But, in the event that the coalition hold government at some stage in the future, the law will allow US forces in Darwin—obviously, a town close to your own heart—to store these hideous weapons within four or five kilometres of your electorate office. This is something that obviously you would be very keen to know.</p><p>What is coalition policy on the storage or transit of cluster weapons through Australian airspace, waters or on Australian soil? This is not an academic question. This base is under establishment. It is the joint facility, if that is the accepted language. It is established now—the first contingent of US Marines is here.</p><p>I should acknowledge that the Minister for Defence did say as long ago as November 2011 that the government would make a statement when Australia ratified the convention that the government will not approve the stockpiling of cluster munitions here. So the law explicitly says that it can happen; government policy is that it will not. What is coalition policy? Be aware that a lot of people are listening to this debate. If the coalition chooses not to put a policy on the public record, people will have to interpret that as they can.</p><p>I recognise I have put you on the spot, Senator Scullion. This debate still has some way to run. If you could indicate whether you would be able to get us a position, even if you are not certain what it is, I would greatly appreciate it. You will shortly be voting, I suspect, against an amendment that would close that loophole and enshrine in law what Senator Feeney says is the government's position anyhow and it would certainly be the Australian Greens' position. The government says it will not approve the stockpiling of cluster weapons here. If that is the intention, put it in the bill. That is all we are asking and that is what this amendment would do.</p><p>Why do we still have in this legislation clauses that explicitly permit countries not party to the convention to stockpile these weapons here? If we are for their eradication, that has nothing to do with interoperability; that is about enabling the deployment of the weapons, which is specifically and formally precluded under article 1 of the convention that we say we are signing.</p><p>I said this in my second reading speech, but it does bear repeating. The Harvard International Human Rights Clinic has made this very clear. This is akin to allowing Australian military personnel to load and aim the gun as long as they did not pull the trigger. If that is the case, at least let us say that that is what is going on here. Michelle Fay of the Cluster Munition Coalition has said today in a piece on the website onlineopinion.com.au:</p><p class="italic">The government has created a confusing situation where it says it will not approve foreign stockpiles but it has drafted legislation which plainly allows such stockpiling to occur. So the Greens amendments strike this material from the bill.</p><p>Senator Scullion, I would welcome an indication from you as to whether or not you are able to put a coalition position on the record so that the Australian people are clear, if at some unlikely future time there is a change of government—who knows; these things happen—whether or not the policy will stand or will be overturned.</p> <p class="speaker">Stephen Parry</p><p>Senator Ludlam, before I call any other senator who wishes to speak, I should have pulled you up earlier: comments should be directed to the chair, not directed to senators across the chamber. I appreciate we are in the committee stage, but I remind the Senate of that.</p> <p class="speaker">Scott Ludlam</p><p>Thank you, Chair. I will shortly ask you to put the question, but just to be clear: we have no position from the coalition. We have a position from Senator Birmingham, who was good enough to say he would object. We have a policy vacuum from the coalition, as we do in some other rather important areas. We have a policy commitment from the government which stands in direct contradiction to the drafting of the law. So people will have to make of that what they will. I have certainly made up my mind. I commend this amendment to the chamber.</p> <p class="speaker">Joe Ludwig</p><p>This is an opportunity for the government to put its position in respect of the amendment. We do not support the amendment. The effect of deleting section 72.42 would be that visiting military personnel from countries who are not party to the convention would be prohibited from any conduct relating to cluster munitions while in Australia, significantly limiting Australia's ability to undertake military cooperation operations with such countries as permitted by the convention. The proposed amendment would also have the effect of requiring those personnel to comply with an international legal obligation to which their sending country has not consented. The practical effect would be that it clearly would seek to bind other countries. For the record, I think it is worth saying that 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.</p> <p class="speaker">Scott Ludlam</p><p>Then, Minister, I fail to understand why you would leave this structural and deliberate loophole in the bill that permits the kind of behaviour that you then ask us to take in good faith you will now allow. It is very strange. People will have to draw their own conclusions as to why the bill specifically permits and authorises behaviour that you then put your hand on your heart and say will not happen. I have no confidence that the Australian government will not then find a reason to change their minds and it will be out of the hands of this legislature. Senator Scullion has been unable to put anything on the record on behalf of the coalition. So, if there is a change of government, again it will have to come back through this chamber. This is a serious opportunity missed to fix a flaw.</p><p>In closing my contribution to the debate—I will not seek to speak on the third reading but instead make some remarks now, before the question is put on this final amendment—I will mention a few things that come to mind about the overall framing of this bill. We have a number of obligations under the Convention on Cluster Munitions that we are not only failing to uphold but also deliberately and quite deceptively sabotaging. There are concerns that the language used in the drafting of this bill can be cut and pasted and used in legislation in other countries. Australia will then be pointed to as a responsible country which has done the right thing; meanwhile, the flaws in this bill will find themselves replicated in other jurisdictions. We have an obligation to notify other states parties, such as the United States government and others—as Senator Feeney has reminded us—to stand down cluster weapons and to remove them from their arsenals. We have done no such thing. We have notified the US government that we will be signing the convention, but we have done nothing at all to encourage the United States to get rid of cluster weapons. We have written a bill that allows us to assist another force to use cluster weapons in joint operations with Australian forces in direct contravention of the articles of the convention that we are signing. We have written a bill that will allow another power to stockpile cluster munitions here—that is, we will allow Australia to be a forward deployment post for cluster weapons on their way to being used in some theatre of war around the world in direct violation of the articles of the convention. Finally, we have left open a loophole to permit indirect investment in companies which are making cluster munitions.</p><p>Why are we bothering? What is the purpose of this legislation? It really pains me to have to advise my colleagues to vote against this legislation when this should be a proud moment—which could have come much faster—in which all sides of politics line up and congratulate the Australian government on bringing the convention forward through the bill. Instead, we have created a bill that has been critiqued here and around the planet by organisations and people who have themselves worked so hard to put the bill together. I will briefly name a number of them.</p><p>These folks have been of a great deal of assistance to us as the debate on this legislation has drawn to its rather ignoble end. In particular I mention John Rodsted and Mette Eliseussen, Lorel Thomas, Sister Patricia Pak Poy, and Matthew Zagor and Mark Zirnsak from the Uniting Church in Melbourne. These folks in Australia have done an enormous amount of work, and I am afraid that they can take no joy in the fact that this bill will pass unamended despite strong reservations hinted at by people such as Senator Birmingham, from the coalition side. I think it is really appalling that dissent within both of the major parties has been squashed. It is just the Greens—and, I presume, Senator Xenophon—on the final vote who are left standing. Internationally, I pay respect to Nobel laureate Jody Williams, to Steve Goose, to Mary Wareham and to Bonnie Docherty, who was woken at five in the morning in DC to provide information for the Senate debate on this legislation.</p><p>Last but not least, I cannot finish this without acknowledging the tireless work of Michelle Fay, who has provided information, arguments and evidence not just to me but also to many people on all sides of politics in this building. Through her long hours of hard work, she has made a lot of people think, but somehow we have not been able to bring you collectively to act. Michelle and others have brought great integrity and passion to bear in representing the views of the people who have been maimed and the families of those who have been killed by these horrific and indiscriminate cluster weapons, which everybody in this chamber insists that they want to see abolished yet we leave flaws in this bill as a result not of careful drafting but of deliberate instruction—and that, I think, is a tragedy. To Michelle and others I say: your arguments and your evidence have convinced me and my Greens colleagues. I thank you and I apologise to you and to all of those who have worked to bring the convention to bear on this legislation. Most importantly, I apologise to those maimed and injured by cluster weapons that the Australian Senate will now be complicit in weakening this important convention. I commend this final amendment to the chamber.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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