Tuesday, 21 August 2012
Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010; In Committee
I move amendment (5):
(5) Schedule 1, item 1, page 6 (lines 7 to 31), omit section 72.41, substitute:
72.41 Defence—participation by Australians in military cooperation with countries not party to Convention on Cluster Munitions
A person who is an Australian citizen, is a member of the Australian Defence Force or is performing services under a Commonwealth contract does not commit an offence against section 72.38 by merely participating in military cooperation or operations with a foreign country that is not a party to the Convention on Cluster Munitions.
Note 1: A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).
Note 2: The expression offence against section72.38 is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(2).
Note 3: This section relates to paragraphs 3 and 4 of Article 21 of the Convention on Cluster Munitions.
This amendment quite clearly goes to what is probably the most flawed part of the bill. Amendment (5) fixes—I do not even know if 'loophole' is an accurate term—a structural sabotaging of the very intent of the convention that we are designing this legislation to enact. So I think calling it a loophole is simply too generous. Calling it a loophole would allow you to imagine that perhaps it was inadvertent and that it had got in there by mistake, and we now know that that is clearly not the case.
The section this amendment seeks to fix allows Australian troops to actively assist countries that have not signed up to the convention to deploy and use these munitions. This occurred in Iraq when the convention did not exist in 2003, and we have discussed that extensively. I would be interested to know whether anybody in the department has bothered to chase up any of the questions I put on notice last night about the weapons platforms that the United States government uses to put these weapons into the field, because that will be helpful information when we come to debating the amendments around stockpiling and transit. But, in particular, I put some specific questions through you, Minister, last night about whether F18 pilots flew close support missions for US ground forces that were using cluster weapons against civilian populations. I would invite the minister now, as the clock runs down towards question time, to address whether he knows that is the case or not.