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

The Greens do not support this deceptive, misguided and outright offensive bill—the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010. I will address some of the comments that Senator Brandis has just made. It is interesting that, by way of supporting his argument about why the Senate should not look at the Greens amendments, he spoke of a bill that is not even before the parliament. When we get to the committee stage, I will address the detailed arguments and the reasons I believe this bill should pass this chamber if it is amended. But, in its present form, we are better off without the bill. Considering the role that the Australian government has played, or the role it said it has played, in supporting the outlawing of these hideous weapons, that is a sad thing to have to come in here and say—that not just Australia but the global community and those who have worked for a decade to bring this convention into force are now saying that they would rather Australia did not ratify it because of the example this sets. This is not a point of view that the Greens have arrived at alone.

As an Australian Greens senator and as a member of the crossbench, sometimes I feel I come in here to try to explain in detail my point of view on a bill that I strongly oppose, so that senators from other parties will understand why it is that we oppose the bill. In this instance, that is not why I am going to bother. I know very well that senators from both the old parties also deeply oppose this bill. One of the reasons that it has taken so long to bring this bill to the chamber is that there was substantial dissent both from the coalition and from the Labor caucus room about what they had been hearing about the bill and its inherent flaws. So I do not feel as though I need to explain to other senators why we should not be voting for this bill in its present form. Nonetheless, I am going to do so to place it on the record so that others looking back at the Hansard in years to come will understand that this chamber voted for this bill in the full knowledge that it is badly flawed.

Human Rights Watch and the Harvard Law School said:

The Bill creates a defense for many acts during such operations that on their face violate the convention.

Not only does the drafting of this bill violate the spirit of the convention; it violates its letter. In fact, the Australian government is attempting to pass legislation that would bring us into accord with the convention—and no doubt there will be a press release from the minister either very late tonight or sometime tomorrow morning, depending on when this bill passes, cheerleading the government's accession to the convention. The government should not be too surprised at the total absence of applause from the arms control community and those who have been shepherding and watch-dogging this convention from the day it was conceived to these sorry events.

Former Prime Minister Fraser says:

… the government has drafted legislation scattered with alarming loopholes that, to my mind, directly undermine the spirit and intention of the convention.

General Peter Gration, former Chief of the Defence Force, said:

… the wording used in our legislation goes well beyond [that required for interoperability with US] and in fact it doesn't follow a couple of the key things that the convention is about …

That is a former CDF—someone who cares deeply about Australia's military capabilities. Paul Barratt, former secretary of the defence department, said:

Legislation in these terms is clearly at odds with a convention whose central purpose is to prevent the use of cluster munitions …

Mr Acting Deputy President Bishop, you guided the Senate Foreign Affairs, Defence and Trade Legislation Committee, if I am not wrong, in its examination of this bill, which I guess was more than a year ago now. It was referred to that committee because the Scrutiny of Bills Committee said the legislation in its present form is actually strikingly at odds with what the Joint Standing Committee on Treaties had to come up with. Although we will be alone, I suspect, later tonight or tomorrow when this bill is put to the vote in terms of numbers in the chamber—I have not consulted with the crossbench—we are not alone in terms of the numbers of people whose hopes have been violated by the government choosing to bring this bill back in this unamended form.

Why is this important? I believe many senators, apart from me and some of my Greens colleagues, had the good fortune to meet Soraj Ghulam Habib, an Afghan boy who lost both his legs and part of one of his hands as a child and was left for dead. His cousin was killed in the same blast. These weapons are indiscriminate. If you wanted to design a weapon that targeted civilian children, I am not sure you could come up with something better than these devices. When senators stand up and address this bill, they will claim a horror equal to mine in the fact that these weapons are deployed, and I suspect they will claim that they want to see the elimination of these weapons. Indeed that is why Australia is signing up to the convention.

The fact is that we are signing up to a convention in a way that fundamentally sabotages its objectives. It is not just me saying that. There are voices from here in Australia and around the world who have followed this convention from its initial drafting to today and they are saying, 'This is the wrong way. We must go back.' Soraj was left for dead. His cousin was dead. He was taken to the morgue where an uncle realised he was alive and pulled him out of there. He is now one of the world's foremost advocates for this convention, for the elimination of these horrific weapons from the arsenals of countries around the world.

Australia has a good record on this account in that it experimented with the use of cluster weapons quite some time ago. I believe it was not even a documented decision that originated from a policy level but, in fact, that the ADF did not want them. They had no use for weapons of this kind—indiscriminate weapons—that lie on the battlefield long after the conflict or the front has passed and continue to maim and kill people. So the ADF gave them up. We have never deployed them in our arsenal to any great degree. On the other hand, our great and powerful ally, the United States, takes the opposite view and has refused to become a party to the convention. That is where one of the great and most problematic issues around this legislation as currently drafted arises.

The bill, as it is drafted, allows Australian forces to store, transport and assist in the use of cluster weapons. It does not allow outlaw direct and indirect investment in companies producing these weapons. These are not accidental loopholes or accidental flaws. Of course they are not.

We are one of 108 countries that signed the 2008 convention on cluster munitions. A large number of other countries also signed on the same day. We know the idea is going to sound, perhaps, a little extreme that Australia would simply adopt the negotiating tactics of a party that not only deployed cluster weapons but was refusing to sign onto the convention and was insisting that it will continue to deploy these weapons because, in its view, they still had some residual utility. Of course, I am referring to the United States.

Heaven forbid that Australia, as a party to the convention, would simply do the United States government's bidding on its way through the negotiations. I particularly refer to the drafting of article 21. We know that this is not some outlandish conspiracy theory. We know word for word exactly what the Australian government was up to and we know this because of the cable releases that were put into the public domain by the Wikileaks organisation. It is ironic that today—18 hours after its editor-in-chief, Julian Assange, has been granted political asylum and is speaking from the window of an embassy in London about his desire to call the dogs off on whistleblowers around the world—we are reminded of exactly why this organisation and those like it are so important, not just the Wikileaks organisation, of course, but also those mainstream media organisations that took those releases, understood their importance and ran them on the front pages of the world's newspapers.

We know, for example, through cable traffic between our US embassy in Washington and here in Canberra that Australia was doing just that. We were simply running sock-puppet arguments on behalf of the United States government, seeking to undermine the very objectives of the treaty. It was not just us alone; we worked with a number of other like-minded countries seeking to do the bidding of the United States government to effectively allow a number of key flaws in the bill. As far as these concern Australia, the two major ones are interoperability—that is, how do we participate and collaborate with United States military operations when we are a party to the convention and they are not?—and what the boundaries are.

The Australian Greens support the notion that, while we may in the future, and certainly have on many occasions in the past, seek to conduct joint operations with the US government, it should not in itself preclude us from joining the treaty. It should be possible to come up with a form of language that says we can participate in joint operations, as we are in Afghanistan, but we will have nothing to do with the deployment or use of cluster weapons. Therefore, the principle of interoperability is sound. It is drafted into the treaty in language that is reasonably sound and was tortuously negotiated and now it has been dramatically undermined and turned 180 degrees in the wrong direction by the drafting in this bill.

In this case, Wikileaks again showed why we need organisations like this. This kind of sick behaviour does not go on behind closed doors but is exposed to public scrutiny so that we know that, while government spokespeople on the one hand are saying, 'We are all for it; let's get signed up; let's make sure that these weapons are banned', on the other hand we are negotiating as though we deployed these things ourselves.

We were not successful in undermining the language in the treaty. In fact, that is not how the negotiations turned out at all. The convention is a ban, and the language is universal—it is a ban. We have positive obligations as a signatory to the convention to encourage others to forgo the use of these horrific weapons as well. So Australia in that instance was unsuccessful in watering down the terms of the convention that it is now seeking to ratify. The fallback position, obviously, is to embed in domestic legislation precisely the grotesque loopholes that we were trying to write into the convention itself. We did not succeed in undermining the convention on behalf of all the states' parties that wanted to sign up the vast majority of the world's people. Instead, we have this rather grubby little attempt acting at drafting it into the domestic legislation. It is the job of this chamber to fix those flaws.

I had hoped, certainly in response to what I knew, that I would hear Senator Birmingham speak on the final passage of this bill, because I would have been very, very interested to hear his views. However, I understand he will not be present for the debate tonight, which is a great shame. From the Labor Party's point of view, there are many people I know who have grave concerns about this bill and that is one of the reasons it has been delayed for so long. Perhaps Senator Marshall can enlighten us when he is able to speak. Perhaps not. Perhaps everybody is happy. Perhaps you were persuaded by your briefings and the bill is fine and all of our concerns are overblown.

However, in my view the bill needs to be redrafted and we have amendments that will give this effect, to reflect the continued application of the convention's prohibitions, including the prohibition of assistance during situations of interoperability. The version of the thumbnail sketch that was put to me is that the way this bill is drafted—and I will take these issues up in detail when we get to the committee stage—is that we can carry the weapon onto the field, we can load it and we can help aim it as long as somebody else's finger is on the trigger when it is fired. That is in direct violation of the explicit drafting in the convention.

If that is the case, by all means back away and we can get a statement from the Minister for Defence tomorrow saying: 'As objectionable and horrific as these devices are, we still support their use by other parties.' Alternatively, come clean and say that this bill has been drafted with intentional loopholes to enable our ally to use them during joint operations which would directly implicate Australian forces. Also—and our second tranche of amendments will cover these issues—the bill needs to be amended in relation to jurisdiction issues which explicitly allow foreign forces to use Australian territory to stockpile and transit cluster bombs.

Perhaps two years ago, when this legislation was first conceived of, that all seemed to be somewhat academic. Now we have a US Marine Corps base gradually being assembled quite close to Darwin. We have a US Air Force base being established at Tyndall. No doubt government spokespeople will jump up later and have a go at me for using the word 'base'. But, to be honest, this looks like a duck and quacks like a duck: US Air Force bombers and fighter jets are being based at Tyndall in the Northern Territory. Persistent rumours blew out into the open a couple of weeks ago about a US naval facility in Cockburn Sound. That is my home port as well.

So the idea of US forces transiting themselves and these weapons through Australian ports, through Australian facilities, and stockpiling them is not academic at all. This bill explicitly allows the United States or other foreign military forces to stockpile these weapons about which the Australian government will later tonight or tomorrow put out a press statement saying, 'Oh, we oppose their existence at all. We hope they are banned.' Yet we are okay with them being stockpiled here in Australia. If my reading of the drafting of the bill is incorrect, then I look forward to having that pointed out. Otherwise, I look forward to the support of senators on both sides when we put the amendments to the vote.

The third major area of amendment is something that I would have thought would have been the easiest to fix. It is the one that the Wikileaks revelations are silent upon and that I thought might be a genuine drafting error rather than a deliberate attempt to sabotage the objectives of the convention. This refers to investment. We have obligations under the treaty to ban all forms, both direct and indirect, of investment in cluster munitions. This echoes calls most persuasively put during the inquiry by the Australian Council of Super Investors on behalf of the Australian financial industry, who came to us and said, 'You have to tighten the provisions in this bill.'

To its great credit, the Future Fund was divested not just of companies that were directly implicated in making these weapons but of companies that were indirectly implicated—and the Future Fund is very well aware that the drafting of this legislation, which obviously was not in force at the time that it made its decision, would not have required it to do that. So there is another gigantic loophole. This one I hope is an error; this one may not have been intentional. There is no strategic reason for it. There is nothing about enabling investment in these weapons necessarily that involves sucking up to the United States, so if that is not what it is about then I very much look forward to hearing the reasons it has been drafted as it is.

The inquiry of the Joint Standing Committee on Foreign Affairs, Defence and Trade, which our Acting Deputy President, Senator Bishop, chaired, heard from witnesses right across from the spectrum, such as the financial industry and the Cluster Munition Coalition, who have spent such a long period of time representing a very large number of civil society groups here in Australia and around the world. They gave compelling evidence on behalf of their membership. At that stage I do not believe we had seen those Wikileaks revelations, and it appeared to the committee that the evidence as presented was that this must have been a giant mistake—that they must have been drafting errors. So, as drafting errors, they could be fixed, and we came up with propositions for doing that.

Then, a short while after that, we were informed that in fact they were not errors at all. These loopholes were there for a reason. They have been drafted that way to make sure that the bill is essentially in violation of the objectives of the convention itself. We agreed with and shared the concerns of the Cluster Munition Coalition, who pointed to the fact that the Convention on Cluster Munitions states that parties should never, under any circumstances, engage in prohibited activities related to cluster weapons. That includes joint operations in which we are complicit in using these weapons—as we were during Operation Desert Storm on the way into Baghdad.

The convention also insists that you will not be stockpiling stores of these weapons for deployment by a non-state party. What possible rationale could there be for leaving that possibility wide open? What New Zealand has done in this regard in its implementation of legislation which went into force in 2009 allows for joint military operations while preserving the convention's prohibitions. There are ways of doing this. Of course there are. New Zealand's law criminalises all activities prohibited by the convention's article 1. On the issue of foreign forces stockpiling these weapons on Australian soil, we need to take a look at the way Austria, Colombia, Guatemala and Slovenia brought the convention into domestic law and found ways of not undermining the basis objectives of the treaty.

In terms of investment, we have an amendment that would solve the investment issue—that would simply make it illegal to inadvertently perhaps, or intentionally, invest. As the country's financial community spoke about so compellingly at the committee hearing, this bill should not pass in its current form. I look forward to contributions from other senators explaining why they think the bill should pass in its current form, when it has been so dramatically critiqued by people who know a great deal more about the way that this convention was designed to operate. The convention is designed to be universal and it is designed for the eradication of these horrific weapons. There are no ifs or buts. Other countries have shown that there are ways of preserving interoperability without damaging the way that this convention was intended to come into force. Surely it is not beyond the wisdom of this legislature and this Senate—and people are watching this chamber tonight—to fix the flaws in this dramatically unfortunate bill that simply should never have seen the light of day. If it is the government's intention to sabotage the cluster weapons convention then at least have the guts to come out and say so. I thank the chamber.