Stuart Robert (Fadden, Liberal Party, Shadow Minister for Defence Science, Technology and Personnel) Share this | Link to this | Hansard source

I am pleased to rise to make some comments on the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010. I am aware, of course, that the provisions of this bill were referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee as recently as October this year for inquiry and report, with the report due to come through in the autumn period of 2011. According to the Selection of Bills Committee, the bill may be inconsistent with the recommendations made by the Joint Standing Committee on Treaties when it reviewed the convention in the 42nd Parliament. The proposal to refer the bill to the committee was then signed by Senator Rachel Siewert.

This is a significant issue with respect to our international obligations. The bill includes the legislative measures necessary to give effect to the Convention on Cluster Munitions. We were one of the first countries to sign the convention on 3 December 2008. It is an important convention; there is no question about that. We certainly took an active role in negotiating the convention. I think we all agree that the long- and short-term impacts of using cluster munitions, especially in population-centric areas, can have devastating effects on the community. We have all seen representations and images of either artillery-launched or air-launched cluster munitions and what they can do if five to 10 per cent of those small bomb munitions do not explode. We all understand the cost this has on civilian life, especially on the children who come into contact with a cluster munition. However, it is important to ensure that we explore all areas of the bill and that, if indeed there are defence concerns, we address those concerns appropriately and sensitively, cognisant of the use of these munitions in relation to our armed forces and allies. At present, we have almost 3,000 combat troops, men and women, deployed overseas.

Whilst the bill will enjoy the support of the coalition in the House, we have reserved and will continue to reserve our right to amend the bill in the Senate, subject to any of the findings of the Senate inquiry that may have an impact on our defence posture or, indeed, our defence capabilities going forward. I will certainly keep my comments brief in that respect. We will wait on the report from the Senate inquiry. On the surface, the bill does not appear to raise any major concerns; hence, it will pass through the House with the concurrence and support of the coalition. But I do reiterate that we will reserve our right to amend the bill in the Senate should any untoward consequences arise from a view to go forward with the treaty.

Michelle Rowland (Greenway, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in support of the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010. This is an amendment to the Criminal Code Act 1995. You realise the seriousness of the nature of the subject matter of this bill when you look at what it is amending. It is amending division 72 of the Criminal Code, which, as you may well know, Mr Deputy Speaker Murphy, has some of the most heinous crimes listed in this part, including explosives and lethal devices.

This bill amends Australian domestic law to ensure consistency with the Convention on Cluster Munitions. Australia signed this convention in December 2008 as part of our commitment to a world free from cluster munitions. A cluster munition is defined in the convention, but I think it is very neatly summarised by the United Nations Development Program, which states:

Cluster munitions are weapons that, when launched or dropped by aircraft, disperse large numbers of sub munitions over wide areas that can be the size of two to four football fields. These sub munitions, or bomblets, are usually designed to explode upon impact. Often they fail to do so and remain unexploded and unstable on the ground.

Certainly, for me at least, that definition sends a shiver up my spine.

The passage of this bill will place Australia in a position to ratify the convention. The convention is very significant as it prohibits all use, stockpiling, production and transfer of cluster munitions. The convention also provides for adequate provision of care and rehabilitation for victims, clearance of cluster munition contaminated areas, risk education and destruction of stockpiles. At the heart of the convention is a commitment to:

… put an end for all time to the suffering and casualties caused by cluster munitions at the time of their use, when they fail to function as intended or when they are abandoned …

This legislation forms one part of the measures necessary for Australia to implement the convention. The government is also working to ensure that the doctrine, procedures, rules and directives of the Australian Defence Force are consistent with the convention. Moreover, through the Mine Action Strategy, the government fulfils its obligation to support victims and to clear and destroy munition remnants. As part of this strategy, the government has committed $100 million over the next four years to reduce the threat and socioeconomic impact of landmines, cluster munitions and other explosive remnants of war.

I note that this bill was introduced into the parliament by the Attorney-General during Disarmament Week. Disarmament Week was established by the United Nations in 1978 as a way of promoting awareness about the need to disarm and to highlight the severe and adverse consequences of the arms race. While growing up, I thought that the arms race was insidious. I was personally very disturbed by the threat of war, but I realise today that even more insidious is the death and maiming that occurs from war. It is not just a threat; it is actually occurring.

While Disarmament Week may have been established in response to the arms build-up that came to characterise the Cold War, the continued use of cluster munitions sadly means disarmament remains an important issue for the international community. Cluster munitions kill, and they kill indiscriminately. They lead to the destruction of innocent lives in a most horrific and graphic manner. The United Nations Development Program’s Bureau for Crisis Prevention and Recovery estimates that cluster munitions have caused over 10,000 injuries or deaths across the world. I can think of nothing more senseless than the death of a child, and certainly the death of a child in this manner. I note a report from the organisation called the Cluster Munitions Coalition. This is not a report from decades ago, during the various conflicts in the Mekong region; it is a report from March 2010. It states:

Five children were killed and one injured when a cluster submunition exploded in a village in Lao PDR’s Champasak province on 22 February 2010. The incident highlights the need for urgent action to assist survivors and ensure the clearance of cluster munition remnants when states parties to the treaty banning cluster bombs gather for their first official meeting in the Lao capital, Vientiane, this November.

               …            …            …

According to Lao government sources, a group of eight children found a … cluster submunition while they were feeding buffalo in rice paddies about 2 km from the village … near the border with Thailand. The device exploded while the children were playing with it in a hut on stilts in the rice paddies. The blast instantly killed five of the children and injured one, while two who were farther away were not harmed. The US widely used … cluster submunitions—also called pineapple bombs because of their resemblance to the fruit—in bombing raids over Lao PDR in the 1960s and 70s.

I will talk in a minute how some children actually think that these munitions are balls or other toys that they can play with. It simply drives home the insidious nature of these things.

Since World War II cluster munitions have targeted over 30 countries and territories, including Iraq, Afghanistan, Kosovo, Lebanon, Chechnya and Western Sahara. Their use has had devastating impacts, not just on human life but on the ongoing sustainability of these countries. They have had a detrimental impact on food security, for example. They contaminate arable land and kill livestock. Food insecurity, as we all know, is already a significant problem in war-torn countries, and the use of cluster munitions simply makes the problem worse. They have a long-term devastating impact on communities, causing severe damage and destruction to shelter and water, again leading to health and hygiene problems.

Put simply, cluster munitions cause damage so significant that they hinder the economic growth and development of emerging countries. Much of the work that we do through international agencies like the World Bank to implement practical measures to improve the lives of people in emerging economies will be undone as long as these weapons of insidious destruction continue. They create poverty in countries that are already plagued by poverty. It is also alarming that at least 75 countries have stockpiled billions of cluster munitions. Indeed, the convention says that the states parties to the convention are:

Deeply concerned also at the dangers presented by the large national stockpiles of cluster munitions retained for operational use and determined to ensure their rapid destruction …

According to the UNDP, most of these cluster munitions are of the type known to have high failure rates. As I mentioned, cluster bombs often fail to explode upon impact. This has significant long-term consequences for communities that are turned into minefields. I mentioned the Lao PDR. Thirty years after the conflict in Laos efforts are still taking place to clear the 75 million unexploded cluster bombs across the country. In July 2003 UNICEF warned that more than 1,000 children had been injured by weapons such as cluster bombs since the end of the war in Iraq. According to Carol de Rooy, the then UNICEF representative in Iraq:

Cluster bombs come in interesting shapes that are attractive to children. Many children are injured or killed because they see a shiny metal object, sometimes in the shape of a ball, and they have to go and pick it up and play with it.

The thought of innocent young lives being lost at the hands of unexploded cluster munitions is deeply saddening, and I am deeply disturbed by the thought of innocent lives being lost in this way. That is why I welcome the efforts of this government to move as quickly as possible towards lodging Australia’s instrument of ratification for the Convention on Cluster Munitions.

The bill will create offences that reflect the range of conduct that is prohibited by the convention. This includes creating a new offence of using, developing, producing, acquiring, stockpiling, retaining or transferring a cluster munition. The bill will also create an offence of assisting, encouraging or inducing a person to commit these acts. As the Attorney-General said in his second reading speech, this offence includes a person providing financial assistance to, or investing in, a company that develops or produces cluster munitions where that person intends to assist, encourage or induce the development or production of cluster munitions by that company. The details of this offence are outlined in proposed subsection 72.38(1). These offences will carry a maximum penalty of 10 years imprisonment for individuals and $330,000 for bodies corporate.

I welcome the provisions on banning investment. I note that Switzerland, for example, recently moved to ban its investment in cluster munitions. They are poised to join a number of other countries that have outlawed these investments. The Cluster Munition Coalition has welcomed this step and has called for more countries to follow suit to eradicate what I think they very rightly describe as the ‘double standard of banning cluster munitions while allowing financial institutions to benefit from their production elsewhere’.

Act for Peace is the international aid agency of the National Council of Churches in Australia. They warn that many financial institutions across the globe provide loans to companies that manufacture cluster munitions. Although I recognise that these financial institutions are not directly funding the production of the munitions, Alistair Gee, the Executive Director of Act for Peace, has warned:

… providing finance to these manufacturers allows them to free up other funds to continue making an internationally banned weapon.

In the spirit of this bill and in the spirit of the Convention on Cluster Munitions, I urge financial institutions to reconsider this practice and cancel the funding they provide to these companies.

In conclusion, this bill builds on Australia’s commitment to a world free from cluster munitions. Our determination to ratify the convention as soon as possible reflects our commitment to pursuing international peace. I commend the bill to the House.

Luke Simpkins (Cowan, Liberal Party) Share this | Link to this | Hansard source

I welcome the opportunity today to speak on the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 and to support the Convention on Cluster Munitions. As is often the case when Australia signs and ratifies very worthy conventions, we are not the problem in a lot of ways. There are other places around the world which we wish would sign and ratify these conventions. While I do not think that the use of cluster munitions by the Australian Defence Force was ever an issue, it is good that we sign and ratify conventions such as this to help add weight and momentum to a very good cause and a safer world.

Cluster munitions are air dropped or ground launched weapons. During their flight they eject submunitions and bomblets. They are called ‘dumb bombs’. There is nothing highly technical about them. They are expended during flight, hit the ground and are designed to kill personnel and destroy vehicles, runways and powerlines—basically a range of different targets. They are designed to all explode on impact, but we know there will be a 10 per cent failure rate, where they do not go off on impact. As the previous member said, these cluster munitions have a terrible history of maiming people. I will mention more about that later.

The Convention on Cluster Munitions was adopted in May 2008. On 1 August 2010 it became binding international law, six months after it was ratified by 30 states. We look forward to Australia ratifying it as soon as possible, once we have passage of this bill. More than 100 states have signed the convention, but of course the next step of ratification is required. Cluster munitions were invented in World War II by the Germans initially, as I understand it. They were almost simultaneously invented by the Americans and others. So they have been around for quite a while. Between the 1970s and the 1990s, some 34 countries were involved in the production of these weapons. The weapons can have as few as two submunitions per round or as many as 2,000. As I said, around 10 per cent are not likely to go off. That indicates very clearly the sorts of weapons that were fired over Laos during the time of the sixties and seventies, which was referred to earlier.

Since the early 2000s, related forms of weapons have been produced which can deactivate or even self-destruct in accordance with the way they are built. So these are smarter weapons but they are not technically defined as cluster munitions under the convention. I understand that, since February 2005, over 13,000 casualties around the world have been attributed to cluster munitions. Of those, 98 per cent have been civilian casualties—the worst kind. Of that 98 per cent, 27 per cent have been children. For weapons designed to have a military purpose, the impact has been the very greatest upon civilians.

As the member for Greenway has said, the impact of cluster munitions has particularly been felt in Laos. In early 2009, I had the honour to be part of a delegation to an interparliamentary conference in Vientiane, the capital of Laos. While in Vientiane, we had the opportunity to get a better appreciation of the effect that unexploded cluster munitions have had on that country. There have been many deaths and maiming of a great number of children because cluster munitions appear to be very interesting to inquisitive children. Members of our delegation were able to visit a local hospital and rehabilitation centre where people who had been maimed, the survivors of these munitions explosions, were trying to get their lives back in order. That is a terrible tragedy. Apart from these terrible weapons being on the ground, there is the problem of unscrupulous people asking local villagers to look for scrap metal in the forest, in the jungles of Laos. That has encouraged more people to investigate the metallic objects on the ground—again, to their great detriment.

I welcome this bill. The convention bans the use, development, production, acquisition, stockpiling, retention and transfer of cluster munitions, as well as the assisting, encouraging or inducing of any person to do any act prohibited by the convention. Rather than speaking on the main features of this bill, I note the Attorney-General is here and we probably should get on with the process of moving this bill through. I note as well that the shadow minister mentioned that the Senate will be having a closer look at the bill and amendments may well come out of that consideration. It is important.

The convention was ratified on 1 August by 30 nations, meaning that it is already in force. A lot of progress has been made. We should make sure that this bill delivers everything that needs to be delivered. I look forward to it passing, once all these issues have been sorted out and the Senate has properly dealt with it. I thank the House for the opportunity.

Ms Julie Bishop (Curtin, Liberal Party, Deputy Leader of the Opposition) Share this | Link to this | Hansard source

It is perhaps opportune that the Australian parliament is raising the issue of cluster munitions at this time. The happy news of the engagement of Prince William and Kate Middleton and the prince’s offer of his mother’s engagement ring has been a timely reminder to the world of the passion and dedication that Diana, Princess of Wales, demonstrated in her tireless effort to create a world free from landmines. The graciousness and generosity of spirit for which she was known and loved stayed with her at all times through immense personal challenges.

In August 1997, just days before her death, Princess Diana visited Bosnia to draw attention to terrible consequences of landmines, particularly the effect on children. It is in the context of this bill and the news of the royal engagement that the coalition again pays tribute to the work of Princess Diana and shares the disappointment of all that she was not able to personally receive the Nobel Peace Prize awarded to the International Campaign to Ban Landmines, a campaign that she championed so passionately.

The coalition under the Howard government was proud to play an important role in support of Princess Diana’s vision and legacy. Australia was one of the original signatories to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction. In 1998 the Australia parliament gave effect to the mine ban convention, which required the Australian Defence Force to destroy Australia’s stockpile of antipersonnel landmines, and the Howard government took this step several years before the necessary deadline. The Howard government also supported these initiatives with funding of $100 million over 10 years, and this was backed up in 2005 with a further $75 million over five years. Our firm commitment to ending the use of landmines was again highlighted in 2006, when Foreign Minister Downer released an AusAID publication on AusAID mine action.

I believe the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 is another positive step in continuing the action initiated by the Howard government. We welcome the fact that the Australian government was among the initial signatories to the convention of cluster munitions in Oslo in 2008. Speaking in parliament on 18 November 2009, just 12 months ago to the day, I stated the coalition’s support for the prompt ratification of the convention. The convention:

… will expand international efforts to reduce the harmful impacts of explosives on civilians. It will also help promote the development of those countries worst affected, many of which are in our region.

It is a sad reality that the region in which Australia finds itself has fallen victim to the scourge of landmines and unexploded ordnance. Areas that could be used for agriculture or commercial activity, for example, continue to lie unused.

The coalition is pleased to note that the current bill addresses the concerns raised by the Department of Defence and the recommendations of the Senate Standing Committee on Foreign Affairs, Defence and Trade in their inquiry into the prohibition of cluster munitions. That inquiry took place in 2006. It is crucial to our long-term national security interests and the safety of Australian Defence Force personnel that we maintain:

… the right to retain or acquire a limited number of munitions for the development of, and training in, cluster munition detection, clearance or destruction techniques, or the development of cluster munition counter measures.

Importantly, the bill also protects Australia’s right to engage in joint military operations with non-state parties. We note, however, that the provisions of the current bill were referred to the Senate Standing Committee on Foreign Affairs, Defence and Trade on 28 October for inquiry and report. As such, and as my colleague the member for Cowan indicated earlier in this debate, the coalition reserves its right to amend the bill in the Senate should the committee make further recommendations and should such amendment be necessary.

Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

in reply—I thank honourable members for their contributions to this debate. I was present when the member for Cowan gave his presentation and his military knowledge was certainly informative and instructive. I appreciate as well the contribution from the shadow minister for foreign affairs and I endorse her comments in respect of the late Princess Diana. In fact I recall that, when I was first elected to parliament, I served as deputy chair of the Joint Standing Committee on Treaties and, during our inquiry into landmines, Princess Diana wrote to the committee commending us on our work. That letter would, I suppose, be with the parliamentary records. It would be quite notable.

The government is pleased to present this bill, which provides the legislative measures necessary to give effect to the Convention on Cluster Munitions—a high priority for the Australian government and indeed, quite evidently from the debate, for all members of the Australian parliament. The convention bans the use, development, production, acquisition, stockpiling, retention and transfer of cluster munitions, as well as the assisting, encouraging or inducing of any person to do any act prohibited by the convention.

There are three main features to the bill. First, the bill creates a new offence of using, developing, producing, acquiring, stockpiling, retaining or transferring a cluster munition. The bill also creates an offence of assisting, encouraging or inducing a person to do any of those acts. An example of the conduct that would fall into this offence is where a person provides financial assistance to, or invests in, a company that develops or produces cluster munitions, but only where that person intends to assist, encourage or induce the development or production of cluster munitions by that company. The offences are serious; they carry a maximum penalty of 10 years imprisonment for individuals or $330,000 for bodies corporate. This penalty reflects, as I have said, the serious nature of the offences that this bill creates.

Second, the bill creates defences to those offences which reflect the range of conduct that is permitted by the convention and recognises the fact that we may be in partnership in respect of military operations. The government has, wherever possible, sought to preserve the language of the convention in the bill in order to ensure that the range of conduct that is prohibited by the convention is the subject of criminal offence under Australian law. The bill creates a defence for persons who acquire or retain cluster munitions for the permitted purposes or for the purpose of destruction when authorised by the Minister for Defence. The bill also creates a defence for persons who transfer cluster munitions to another state party for the purpose of destruction.

In order to encourage individuals to contact the police or the Australian Defence Force in order to surrender cluster munitions, rather than handling the dangerous explosives themselves, the bill creates a defence for persons who, without delay, notify the police or the Australian Defence Force that they wish to surrender cluster munitions. We recognise, however, that continued interoperability with certain non-states parties is consistent with Australia’s national interests and international obligations. Therefore, the bill allows Australia to continue to maintain cooperative military relationships with other countries that are not parties to the convention. Continued cooperation between states parties and non-states parties is central to the protection of international security, as well as Australia’s national security interests. The convention permits continued military cooperation and operations between states parties and non-states parties, subject to some restrictions.

The government also believes that Australian personnel should not face the threat of prosecution for serving alongside allied forces that continue to use cluster munitions. The bill creates a defence for persons whose conduct takes place in the course of the permitted range of military cooperation and operations. Notwithstanding this defence, it will be an offence for a person to use, develop, produce, acquire, stockpile or retain cluster munitions, even in the course of combined operations with countries that are not party.

The defence will also apply if a person expressly requests the use of cluster munitions in a situation where the choice of munitions used is within Australia’s exclusive control. A separate defence protecting visiting personnel from the armed forces of countries that are not party to the convention while such personnel are in Australia is also included. These individuals are not required to comply with the convention’s obligations and are therefore protected, to a limited extent, from the criminal offences of stockpiling, retaining and transferring cluster munitions. Nonetheless, such visiting forces would not be excused from prosecution if they were to use, develop, produce or acquire cluster munitions in Australia.

The convention is a remarkable humanitarian achievement that recognises the tragic impact of cluster munitions particularly on civilian populations and, more often than not, children of those civilian populations.

The bill is a significant step towards Australia meeting its obligations under this important convention and will strengthen Australia’s legal framework regarding weapons that cause significant and indiscriminate harm to civilians.

Question agreed to.

Bill read a second time.

Ordered that the bill be reported to the House without amendment.