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

I will, perhaps surprisingly, accept the minister's admonishment. The reason I focus on the United States is that that is the party behind which we marched into one theatre of conflict after another in the latter half of the 20th century and early in the 21st century. I am absolutely happy to acknowledge that a number of other parties who have not sought to join this treaty have used these disastrous weapons in war. The minister seeks to cast my field of vision wider, but I am well aware that there are many other states in the world who have either sought to sabotage or undermine the convention or not joined it, intending to stand outside it and continue to deploy these weapons in war. When I was in Afghanistan, I was shown cluster munitions that they are still digging out that were dropped during the Soviet invasion of Afghanistan. They still kill and maim people.

I have no illusions whatsoever about the United States somehow standing alone against the rest of the world. The point I have been making and the reason I have focused obviously on the United States is not that they need to be singled out as the only power left deploying these weapons, but they are the only power I am aware of who deployed them while actively engaged beside the ADF. That totally undermines the objectives of the convention.

It is not just that we would remain interoperable—I understand and believe those reasons are legitimate—but that we would plan and conduct operations with the US in which cluster weapons were used. Believe me: if we get into a conflict and are standing shoulder to shoulder with troops from the Russian army firing cluster weapons into metropolitan areas and—not targeting, because these weapons cannot be targeted—damaging civilian populations, I suspect that not only I, but Senator Feeney as well, would have strong views about it.

The reason we have spent so much time debating the example of the United States is that we have a live case study before us. You have not been able to tell me that this bill, should it come into force, would prevent exactly those things which happened in 2003 from occurring again. There is nothing in the bill which would preclude assets of the Royal Australian Air Force, pilots, from flying close support operations for US units using cluster weapons. If that is the case then, quite frankly, there are clauses in this bill which are not worth the paper they are printed on. Stand up and saying that we totally support the articles of the convention is, I think, directly misleading if those articles would not preclude the kinds of behaviour we saw in 2003.

On a number of occasions the minister referenced article 21 of the convention and you have also said the language in the bill is identical to articles from the convention. Normally, obviously, that is accepted practice and the sort of thing we would support. I wonder, though, whether the minister has heard of a gentleman called Earl Turcotte. He is somebody I greatly admire. He is the former head of the Canadian delegation. The Canadians and the Australians were two of the delegations, as identified in the WikiLeaks cable drop, who were running around behind the scenes trying to line up countries as diverse as those in central Africa, Vietnam—which is so thoroughly offensive that it is difficult to know where to start—and a number of other countries to do the bidding of the United States government so that the US could continue to deploy these weapons. I know the minister will refute that suggestion but I am going to continue to make it because I think it is self-evidently true.

Mr Turcotte largely wrote article 21—the key principle, the key get-out clause the government has relied upon. He then resigned from public service in Canada because of the way Canada and Australia are now wilfully misrepresenting his work. That is, between ourselves and, arguably, the government of Canada, we are going directly against what he had argued in good faith for. He said:

It is critically important to note—

I have made this point a couple of times in this debate, but Mr Turcotte does it much more eloquently—

that the interoperability provision contained in paragraph 3—

in the article the minister has cited—

is heavily restricted by the categorical prohibitions contained in paragraph 4 not to develop, produce, otherwise acquire, stockpile, transfer or use cluster munitions or to expressly request the use of cluster munitions. Paragraph 3 is further restricted by the positive obligations on States Parties contained in paragraphs 1 and 2 of the Article—

which the minister probably now knows by heart—

including: to notify States not party of obligations under the Convention,—

which we have done—

to encourage States not party to become party to the Convention,—

which we have not done—

to promote the norms it establishes and to make best efforts to discourage States not party to this Convention from using cluster munitions.

Apart from the fact that the horrific area effect of these weapons was the same in 2003 as it is today, you could perhaps forgive, in a legalistic and technical sense, the Australian government, on the eve of the invasion of Iraq—the shock and awe campaign—for not tugging at the sleeve of Uncle Sam and saying: 'Hold on. Are you aware that these weapons are horrific and take a massive civilian casualty toll, particularly on children?' You could perhaps forgive the Australian government for not doing that because there was then no written instrument which told us to do so. Now there is.

I come back to a question which I think the minister responded to somewhat ambiguously. What have we done to make best efforts to discourage states not party to this convention from using cluster munitions—apart from making sure the loopholes the US was demanding actually found their way (a) into the convention and (b) into the bill? Earl Turcotte went on to say:

Article 21 clearly does not allow activities during combined military operations with States not Party that would obviate or qualify the fundamental object and purpose of the Convention. Quite the opposite, it reinforces them, while ensuring that the armed forces of States Parties are not held legally liable for activities contrary to the Convention which may be carried out by the forces of States not party.

That is where I think the minister has set up some straw man arguments in saying that everybody would walk away if we had our way and these amendments were carried. Quite clearly, we are not trying to do that. We want everybody in the tent, including those who, maybe through some change of administration down the track, might decide that their current posture is simply a terrible mistake and that these weapons do not have military utility or that that utility is vastly overweighed by the suffering these weapons cause.

I have quoted from Mr Turcotte at some length because he resigned after seeing the framing language he got into article 21 of the convention turned around, abused and wilfully misinterpreted by countries such as Australia. That, I think, is the sharp end of this debate. Minister, I will put a question to you and then we will move to the amendment. Were you aware that the framer and the drafter of article 21 had resigned in disgust because of how wilfully his work and his words have been misinterpreted by governments such as ours.