Senate debates

Tuesday, 21 August 2012


Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010; In Committee

1:15 pm

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

I will speak to each of them in turn. I now move amendment (1) on sheet 7084, which relates to intention:

(1)   Schedule 1, item 1, page 3 (line 28), omit paragraph 72.38(2)(c), substitute:

  (c)   the first person knew or should have known that the act would be done.

It is not a matter that I have discussed at length so I will briefly describe for the benefit of senators why I am doing this. This amendment is to the section of the bill that relates to promoting acts with cluster munitions, so it goes to our positive obligations under the terms of the convention. A person commits an offence if a person knew or should have known that the act would be done. That is common language for recklessness. This bill sets a very high threshold for liability requiring that a person intended that an act be done in order to be liable for one of the offences. This refers specifically to proposed section 72.38. Under this standard, individuals would not be liable for conduct if, for example, they were aware that their conduct would result in cluster munitions use—so there is knowledge—or in a substantial unjustifiable risk of use, so recklessness. Using an intention standard in 72.38, this makes it very difficult to hold individuals liable for use, production, transfer and stockpiling of cluster munitions or assistance with these prohibited acts. This is even if they knew or should have known that their conduct could lead to one of these activities. This result is in direct opposition to JSCOT's recommendation to prevent inadvertent participation in the use, or assistance in the use, of cluster munitions by Australia. So I hope the minister can see the distinction that I am drawing here even though it may seem to be a fine one. It is between inadvertent participation and reckless participation. I will remind the chamber, because I am still open to referring this bill back to JSCOT as we discussed last night, that JSCOT, in its report No. 103 of 2009, said:

… The Committee also acknowledges concerns regarding the potential for Australia to inadvertently participate in the use or assist in the use of cluster munitions, despite the provisions of the Convention. The Committee is concerned that some of the terms contained in the Convention are not clearly defined and may provide an avenue by which Australia could participate in actions which may contravene the humanitarian aims of the Convention. The Committee therefore considers that the Australian Government and the ADF should address these issues when drafting the domestic legislation required to implement the Convention, and when developing policies by which the personnel of the Australian Defence Force operate …

The Committee recommends that the Australian Government and the Australian Defence Force (ADF) have regard to the following issues when drafting the legislation required to implement the Convention … , and when developing policies under which the personnel of the ADF operate:

      To cut to the chase, this amendment implements that latter recommendation by JSCOT. This amendment would effectively implement that in full. I know—and I spoke at length on this last night and earlier this afternoon about the facts—how horrified I was to discover that what I thought was lazy drafting or inadvertent loopholes that have crept into the bill were actually deliberately placed there at the behest of the United States government, as was demonstrated by the release of the state department cables by WikiLeaks. In this instance I think perhaps it is simply poor drafting. I do not sense any underlying conspiracy here and I am merely attempting to improve the drafting to tighten up what I believe leaves us very open to a very wide interpretation or a very high bar being put in place. So I commend this amendment to the chamber.


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