Tuesday, 21 August 2012
Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010; In Committee
We now come to the two remaining substantive amendments. I hope by now I have managed to persuade Senator Feeney that it is not enough for this chamber to unite in failure to vote down these Greens amendments but that in fact we still have the opportunity, as the clock runs down, to correct two grievous flaws in the bill such that the civil society groups who have shepherded this convention from inception to signing are now saying that they would rather Australia did not ratify, that they would rather this legislation did not pass. I suspect that, if the following two amendments (5) and (6) that we are now debating on sheet 7084 were to pass, that opposition would turn to support and that the Australian government could genuinely hold its head high and collect the accolades that it would deserve.
I understand there is a conference that the minister would want to be able to present our credentials to in the matter of this convention, but he would be doing it in the context of the groups who have been supporting the process and the convention will be opposed to the passage of this legislation. I think that is a tremendously sad indictment on the way that the Australian government has put the interests of the United States, which seeks to continue to deploy these horrific weapons, against the interests of the people who are maimed and killed by these weapons. I cannot be much more blunt than that. In fact, what we are seeing is a systematic sabotage of the convention. These are not accidental loopholes. These are not drafting errors.
Senator Feeney, I am reluctant to move to ask the chair to put the question on amendment 5, which relates specifically to interoperability, without some definition on the question that I put on notice last night and again early in the afternoon when we reconvened about the degree to which the Royal Australian Air Force supported operations in which the US used cluster weapons on their way into Baghdad. I wonder whether you could provide us any information.
First things first, perhaps, Senator. I do have some preliminary information for you on that last point, so let me move directly to that. Please regard this as a preliminary response taken on notice. We may come back to you with further particulars. What I have for you as of this moment concerns the provision by Australia of air support to the United States during the 2003 Iraq conflict. I firstly note that the following information was provided by the Department of Defence in response to a question by Senator Ludlam during the 2011 budget estimates hearings, and so I guess I might be about to repeat information you have already received on notice as a consequence of those estimates hearings.
In 2003 Defence was aware that the US and other coalition partners had cluster munitions and that it was possible these would be used during combat operations in Iraq. While the use of munitions by Australia's coalition partners was subject to general international humanitarian law considerations, the use of cluster munitions was not prohibited at that time. The Australian Defence Force provided a range of air capability during that operation. This included FA18 Hornet aircraft in the air combat patrol and strike missions, AP3C Orions conducting maritime patrol and surveillance, C130 Hercules providing intratheatre airlift and the B707 conducting strategic lift. Australia does not possess operational stocks of cluster munitions and Australian FAA18 aircraft did not use cluster munitions in Iraq.
I also have a preliminary response regarding your question about which weapons systems and on which platforms the United States military deploys cluster munitions. The government's response is that the Australian government does not comment on other government's specific military capabilities.
Having said that, I did note in that open source document from the Congressional Research Service I cited earlier today that there was some analysis by the US Congress on that very question. I will happily pass Senator Ludlam a copy of that. In essence I think it said that every single US airframe might be applied to the task. I will get that to him when I find it.
I might briefly respond to some of the more, dare I say it, political points that Senator Ludlam made before he asked those two specific questions of me. Senator Ludlam has obviously heard from me on several occasions about the reasoning behind the Australian government adopting the approach that it has. We will be holding our head high; we are proud of the fact that we are supporting the convention. We believe it is an important step forward for the international community and we will be proud to be a part of it. For the reasons I have already articulated I think any philosophy that says we would rather have 100 per cent of nothing than 80 per cent of something is misconceived, and, if there are those organisations that now say the convention would be better off not going ahead, I guess all I would say to them is that this is a constructive, practical and real way forward and I fear the alternative strategy would lead us to achieving nothing whatsoever.
I thank the minister for providing answers to those questions—or an answer to the first, at least, if not the second. If I have misled the minister or if he has misconstrued the comment that I made, can I make it clear that the civil society groups, including principally the Cluster Munition Coalition, are not saying that we would be better off without the convention. I apologise if that was the impression that I gave. They are strongly of the view that we are better off without Australia as a party under the formulation that has been drafted into this bill.
One of the reasons they believe that—I suppose the belief is twofold—is that it means that Australia effectively has ratified the convention while undermining its fundamental objectives. Secondly, should this legislation be taken as template legislation by other parties seeking to ratify the convention, our bad habits would then be spread around the world. So it is not that they are against the convention; it is that they are against the way in which the Australian government has sought to interpret it. That really is the key issue.
The minister has now confirmed at two different times the key substantive issues that I put to him last night. Firstly, he was reasonably confident that the reports that I cited last night and tabled for senators were reasonably accurate, at least to within an order of magnitude, in terms of the places and the number of weapons that were fired into those Iraqi settlements at the time of the operation that the Australian government supported. I think the figures from last night, from memory, indicated that upwards of two million submunitions were fired into metropolitan areas, and there was an extraordinary death and injury toll attendant on that. The minister has confirmed for us that Defence—I suppose that is on whose behalf he was replying, or at least the Attorney-General's Department—are reasonably comfortable that those reports are accurate. Secondly, he has just confirmed for us that the Royal Australian Air Force flew support missions for the United States military while it was dispersing those weapons into Iraq. My question for the minister now—this is the question on which most of my arguments on this bill hinge—is whether that behaviour would be unlawful under the terms of this bill.
I think we are unfortunately going around in circles a little. I have addressed myself to that question previously: I am not going to embark, and I think it would be foolhardy for any government to embark, on a process where we applied our current obligations to military operations that occurred some nine years in the past. I do not think that serves any useful purpose.
As for Senator Ludlam's contention that the interoperability provision undermines the convention, of course the government rejects that. We say the bill is utterly consistent with the convention, and in fact we have used the language of the convention in crucial places inside the bill so that it conforms precisely with the convention and its intent. Again I repeat that we say the interoperability provision means that we can proudly stand behind this convention while retaining our alliance relationship with the United States. If his proposition were to be advanced then ultimately it would mean that Australia would have to choose between the convention and the US alliance. That is a nonsense.
Senator Ludlam likes to talk about the US military—that is his cause celebre when considering this bill—but I remind him that the United States as I understand it has not used cluster munitions since 2003, and that is not a boast that other powers can make. The United States does not stand alone in this space and I invite Senator Ludlam to have a wider field of vision. Australia's alliance relationship with the United States should be but one of many facets that deserve his attention.
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.
It is a matter of public record, so I am, in the broad, aware of it. I think I have put the government's position on this very plainly and there is no point in me restating it. On the question of what non-legislative steps Australia has taken to give effect to the convention, I would remind Senator Ludlam that, while Australia is not yet a party to the convention, we have already taken steps to give effect to it, including by supporting efforts to encourage the universalisation of the convention internationally, particularly in our own Asia-Pacific region, and recognising the positive contribution which civil society plays in encouraging broad participation in the convention. Australia continues to support the Cluster Munition Coalition to undertake advocacy and universalisation work, including in the Asia-Pacific. I think, Senator Ludlam, the issues between us have been well canvassed and I suspect that, having well understood one another's position, we have not yet reached an accord. The government will obviously oppose the amendment.
I thank the parliamentary secretary. We will have to agree to profoundly disagree. But I commend this amendment firmly to the chamber and hope that Senator Scullion has arrived just in time to bring some good sense to the coalition's position and support Greens amendment (5).
This is the last Greens amendment. The Greens oppose section 72.42 in schedule 1 in the following terms:
I advise the Senate that I am going to speak to it only briefly because Senator Feeney and I have already canvassed these issues at great length. So, for senators who just came into the chamber and are not sure what you just voted on, we just voted to assist the United States government to continue dropping cluster weapons, which is a great shame because that is directly in contravention of the convention.
The amendment we will shortly put to the vote is about allowing the US government, or others, I guess—as Senator Feeney quite rightly pointed out, it is not just the United States that deploys these awful things—to host them in Australia. The bill explicitly permits the hosting, stationing and stockpiling of these weapons on Australian soil; however, we were told earlier in the day that it is government policy that this not occur. The bill as drafted—and the drafters of the bill would not have done this by mistake; this is not lazy language; this is something that has been thought about and has been drifting around for at least two years that we are aware of—explicitly permits these materials to be stockpiled on Australian soil. We have the minister's word and we have a commitment that at some stage in the future, probably in the next couple of weeks, I guess, there will be a statement made which will enshrine this vague commitment in some sort of policy.
We still have not yet heard the coalition's policy. I recognise this is a bit unusual but I might see whether I can get Senator Scullion's attention as we go. We are aware that policies and governments change. It is more difficult to change a law, which would then need the consent of both houses of this parliament, than it is to flip a policy decision, which could of course occur overnight. The minister will be well aware of this.
Senator Scullion, if I could interrupt your conversation—which is no doubt deeply engrossing!—to ask you to put a coalition policy on the record, because this is something the Australian people need to know. The Australian government has refused to do it. Should the coalition win government, would it be the policy of the coalition to allow stockpiles of cluster weapons to be permitted on Australian soil? Senator Scullion, you can take that on notice if you wish. You are obviously within your rights to completely ignore me. But, in the event that the coalition hold government at some stage in the future, the law will allow US forces in Darwin—obviously, a town close to your own heart—to store these hideous weapons within four or five kilometres of your electorate office. This is something that obviously you would be very keen to know.
What is coalition policy on the storage or transit of cluster weapons through Australian airspace, waters or on Australian soil? This is not an academic question. This base is under establishment. It is the joint facility, if that is the accepted language. It is established now—the first contingent of US Marines is here.
I should acknowledge that the Minister for Defence did say as long ago as November 2011 that the government would make a statement when Australia ratified the convention that the government will not approve the stockpiling of cluster munitions here. So the law explicitly says that it can happen; government policy is that it will not. What is coalition policy? Be aware that a lot of people are listening to this debate. If the coalition chooses not to put a policy on the public record, people will have to interpret that as they can.
I recognise I have put you on the spot, Senator Scullion. This debate still has some way to run. If you could indicate whether you would be able to get us a position, even if you are not certain what it is, I would greatly appreciate it. You will shortly be voting, I suspect, against an amendment that would close that loophole and enshrine in law what Senator Feeney says is the government's position anyhow and it would certainly be the Australian Greens' position. The government says it will not approve the stockpiling of cluster weapons here. If that is the intention, put it in the bill. That is all we are asking and that is what this amendment would do.
Why do we still have in this legislation clauses that explicitly permit countries not party to the convention to stockpile these weapons here? If we are for their eradication, that has nothing to do with interoperability; that is about enabling the deployment of the weapons, which is specifically and formally precluded under article 1 of the convention that we say we are signing.
I said this in my second reading speech, but it does bear repeating. The Harvard International Human Rights Clinic has made this very clear. This is akin to allowing Australian military personnel to load and aim the gun as long as they did not pull the trigger. If that is the case, at least let us say that that is what is going on here. Michelle Fay of the Cluster Munition Coalition has said today in a piece on the website onlineopinion.com.au:
The government has created a confusing situation where it says it will not approve foreign stockpiles but it has drafted legislation which plainly allows such stockpiling to occur. So the Greens amendments strike this material from the bill.
Senator Scullion, I would welcome an indication from you as to whether or not you are able to put a coalition position on the record so that the Australian people are clear, if at some unlikely future time there is a change of government—who knows; these things happen—whether or not the policy will stand or will be overturned.
Senator Ludlam, before I call any other senator who wishes to speak, I should have pulled you up earlier: comments should be directed to the chair, not directed to senators across the chamber. I appreciate we are in the committee stage, but I remind the Senate of that.
Thank you, Chair. I will shortly ask you to put the question, but just to be clear: we have no position from the coalition. We have a position from Senator Birmingham, who was good enough to say he would object. We have a policy vacuum from the coalition, as we do in some other rather important areas. We have a policy commitment from the government which stands in direct contradiction to the drafting of the law. So people will have to make of that what they will. I have certainly made up my mind. I commend this amendment to the chamber.
This is an opportunity for the government to put its position in respect of the amendment. We do not support the amendment. The effect of deleting section 72.42 would be that visiting military personnel from countries who are not party to the convention would be prohibited from any conduct relating to cluster munitions while in Australia, significantly limiting Australia's ability to undertake military cooperation operations with such countries as permitted by the convention. The proposed amendment would also have the effect of requiring those personnel to comply with an international legal obligation to which their sending country has not consented. The practical effect would be that it clearly would seek to bind other countries. For the record, I think it is worth saying that there are currently no foreign stockpiles of cluster munitions in Australia, and as a matter of policy the government confirmed on 23 November 2011 that it has not and will not authorise such stockpiling.
Then, Minister, I fail to understand why you would leave this structural and deliberate loophole in the bill that permits the kind of behaviour that you then ask us to take in good faith you will now allow. It is very strange. People will have to draw their own conclusions as to why the bill specifically permits and authorises behaviour that you then put your hand on your heart and say will not happen. I have no confidence that the Australian government will not then find a reason to change their minds and it will be out of the hands of this legislature. Senator Scullion has been unable to put anything on the record on behalf of the coalition. So, if there is a change of government, again it will have to come back through this chamber. This is a serious opportunity missed to fix a flaw.
In closing my contribution to the debate—I will not seek to speak on the third reading but instead make some remarks now, before the question is put on this final amendment—I will mention a few things that come to mind about the overall framing of this bill. We have a number of obligations under the Convention on Cluster Munitions that we are not only failing to uphold but also deliberately and quite deceptively sabotaging. There are concerns that the language used in the drafting of this bill can be cut and pasted and used in legislation in other countries. Australia will then be pointed to as a responsible country which has done the right thing; meanwhile, the flaws in this bill will find themselves replicated in other jurisdictions. We have an obligation to notify other states parties, such as the United States government and others—as Senator Feeney has reminded us—to stand down cluster weapons and to remove them from their arsenals. We have done no such thing. We have notified the US government that we will be signing the convention, but we have done nothing at all to encourage the United States to get rid of cluster weapons. We have written a bill that allows us to assist another force to use cluster weapons in joint operations with Australian forces in direct contravention of the articles of the convention that we are signing. We have written a bill that will allow another power to stockpile cluster munitions here—that is, we will allow Australia to be a forward deployment post for cluster weapons on their way to being used in some theatre of war around the world in direct violation of the articles of the convention. Finally, we have left open a loophole to permit indirect investment in companies which are making cluster munitions.
Why are we bothering? What is the purpose of this legislation? It really pains me to have to advise my colleagues to vote against this legislation when this should be a proud moment—which could have come much faster—in which all sides of politics line up and congratulate the Australian government on bringing the convention forward through the bill. Instead, we have created a bill that has been critiqued here and around the planet by organisations and people who have themselves worked so hard to put the bill together. I will briefly name a number of them.
These folks have been of a great deal of assistance to us as the debate on this legislation has drawn to its rather ignoble end. In particular I mention John Rodsted and Mette Eliseussen, Lorel Thomas, Sister Patricia Pak Poy, and Matthew Zagor and Mark Zirnsak from the Uniting Church in Melbourne. These folks in Australia have done an enormous amount of work, and I am afraid that they can take no joy in the fact that this bill will pass unamended despite strong reservations hinted at by people such as Senator Birmingham, from the coalition side. I think it is really appalling that dissent within both of the major parties has been squashed. It is just the Greens—and, I presume, Senator Xenophon—on the final vote who are left standing. Internationally, I pay respect to Nobel laureate Jody Williams, to Steve Goose, to Mary Wareham and to Bonnie Docherty, who was woken at five in the morning in DC to provide information for the Senate debate on this legislation.
Last but not least, I cannot finish this without acknowledging the tireless work of Michelle Fay, who has provided information, arguments and evidence not just to me but also to many people on all sides of politics in this building. Through her long hours of hard work, she has made a lot of people think, but somehow we have not been able to bring you collectively to act. Michelle and others have brought great integrity and passion to bear in representing the views of the people who have been maimed and the families of those who have been killed by these horrific and indiscriminate cluster weapons, which everybody in this chamber insists that they want to see abolished yet we leave flaws in this bill as a result not of careful drafting but of deliberate instruction—and that, I think, is a tragedy. To Michelle and others I say: your arguments and your evidence have convinced me and my Greens colleagues. I thank you and I apologise to you and to all of those who have worked to bring the convention to bear on this legislation. Most importantly, I apologise to those maimed and injured by cluster weapons that the Australian Senate will now be complicit in weakening this important convention. I commend this final amendment to the chamber.
I will make a final contribution because there may not be another opportunity. I support this amendment as I have the other Greens amendments. But these amendments have failed, so I cannot in good conscience support this bill. This bill gives a veneer of respectability to a quite indecent set of arrangements. The defences contained in this bill basically give the United States carte blanche to use cluster munitions. The convention, which Australia has signed up to, is clear and quite explicit: its purpose is to get rid of cluster munitions—the submunitions and the ordnance that do not explode—because of the devastating impact they have. In some cases, 30 per cent of cluster munitions fail to explode, and five per cent of American-made cluster munitions fail to explode. My concern is that there are so many loopholes and so many outs in this current bill that the bill is rendered largely ineffective.
I pay tribute to Senator Ludlam for the tireless and tremendous work that he has done on this legislation. He has flown the flag for those groups who have genuine concerns and are basically saying that this legislation is worse than nothing because it gives a veneer of respectability to a very indecent industry—that is, the manufacture of cluster munitions. Last night in the Senate we had an extensive debate about the sorts of defences that could be used in the legislation, and I do not think the responses were satisfactory. I do pay tribute to Senator Feeney, who flew the flag for the government last night; I think that Senator Ludwig has only recently taken over.
This legislation does not do what it purports to. There are so many loopholes, so many outs, so many exemptions and so many defences that it really is an insult to the convention to which Australia has signed up to ban cluster munitions.
The CHAIRMAN: The question is that section 72.42 stand as printed.
Bill agreed to.
Bill reported without amendments; report adopted.