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senate vote 2012-08-21#1
Edited by
mackay staff
on
2017-01-27 21:57:11
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Title
Bills — Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010; in Committee- Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 - In Committee - Ban investment
Description
<p class="speaker">Scott Ludlam</p><p>Last night I put on notice by way of questions to the Parliamentary Secretary for Defence and/or the department a fairly large amount of material. I am wondering, at the outset, whether the minister can provide us with any answers that might have been submitted overnight or this morning.</p> <p class="speaker">David Feeney</p>- The majority voted against an [amendment](http://www.openaustralia.org.au/senate/?id=2012-08-21.4.2) introduced by Greens Senator [Scott Ludlam](https://theyvoteforyou.org.au/people/senate/wa/scott_ludlam) (WA), which means it was unsuccessful.
- ### What did this amendment do?
- This amendment would ban investment in "*the development or production of cluster munitions or explosive submunitions*". As Senator Ludlam explained:
- > *The bill should explicitly ban investment because it assists with a prohibited act. I struggle to see how that could be a controversial statement. Many other countries specifically ban direct and indirect investment in cluster munitions in their legislation. By 'indirect' we mean an investment in a parent company that may, through a company that it has a holding in, in fact be manufacturing components or manufacturing cluster weapons themselves.*
- ### What is this bill?
- The bill will bring the [Convention on Cluster Munitions](https://en.wikipedia.org/wiki/Convention_on_Cluster_Munitions) into Australian law by, for example, creating offences in relation to cluster munitions and explosive bomblets.
- Read more in the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1011a/11bd072).
- ### Motion text
- > *(2) Schedule 1, item 1, page 3 (after line 29), after subsection 72.38(2), insert:*
- >> *(2A) An entity regulated by the [Australian Securities and Investments Commission](https://en.wikipedia.org/wiki/Australian_Securities_and_Investments_Commission) or by the [Australian Prudential Regulation Authority](https://en.wikipedia.org/wiki/Australian_Prudential_Regulation_Authority) commits an offence if it directly or indirectly:*
- >>> *(a) provides funds to a person or an entity; or*
- >>> *(b) invests funds in an entity;*
- >> *involved in the development or production of cluster munitions or explosive submunitions.*
<p>The answer is no—we do not yet have it.</p> <p class="speaker">Scott Ludlam</p><p>Nothing?</p> <p class="speaker">David Feeney</p><p>I think no is the easiest answer. There is some publicly available material that I have looked at but, in terms of a formal response to questions on notice, we do not have an answer for you this morning.</p> <p class="speaker">Scott Ludlam</p><p>That makes it difficult to proceed. One of the things I was after—probably the most important—concerned the references I provided last night. I do not understand why this would not have been forthcoming during the morning, unless it was not given priority, but I sought the minister's advice on whether the government agrees with the statements made in three reference documents that I provided last night about the number of cluster weapons and submunitions that were fired into Iraq in 2003, and which Australian SAS, Regular Army and RAAF forces supported that action. Let us pick up those ones in particular. Has the minister been given the opportunity, or has anyone else bothered, to look at those documents and assess whether they are accurate or not?</p> <p class="speaker">David Feeney</p><p>I have looked at advice given by the Congressional Research Service to the US Congress on 27 June 2012, and that may very well be a document Senator Ludlam is familiar with. In any event, it uses statistics that are the same as those he has cited. So I think for the purposes of this morning, subject to me getting formal advice from the department the only information I have before me is that the statistics Senator Ludlam is using are right. This document talks about 13,000 munitions by US and United Kingdom forces in the first three weeks of the conflict in 2003. For the purposes of today I am happy to take those statistics as agreed between us.</p> <p class="speaker">Scott Ludlam</p><p>I thank the minister—he has left himself some wriggle room in case figures come back that are different. The other question of great consequence that I put to him last night was whether I am correct in assuming that the Royal Australian Air Force flew close support for the US units that were using those weapons on the way into Baghdad. I listed a number of cities and towns along the way. I believe that is of central importance in this debate.</p><p>For senators who were not present and for those in the gallery who might be listening, this debate went quite late last night. If we asked 100 Australians randomly in the street whether we should support the Convention on Cluster Munitions, 100 people would come back and say of course we should. We heard unanimous support from government and coalition senators last night, saying it is timely that we sign onto this instrument.</p><p>Unless the minister can persuade me otherwise, I believe that under the convention as it is sought to be embedded in domestic law and as currently drafted Australian military units could directly support, for the sake of argument as it appears to have happened before, US military units firing cluster weapons into areas indiscriminately, leaving these things littering the landscape. It would not be prevented by the drafting of the bill before us. We had a lot of debate about this last night, and I sought to have some matters taken on notice to see if they could be clarified.</p><p>The central fact of the matter is that there is nothing in the drafting of this bill that would prevent exactly that situation from occurring again—not in Iraq, obviously, but in any other battlefield that we find ourselves co-deployed with US military units. We could be directly planning and supporting missions in which cluster weapons are used, which would violate not just the spirit but also the letter of the convention. If it turns out I am wrong, I will sit down and we can close out this debate and get on with it—but the drafting of the bill as it is presently formulated would allow precisely those things to occur.</p> <p class="speaker">David Feeney</p><p>I do not really have much to add to where we got to in the debate last night, Senator Ludlam. I will repeat the position we reached. The events in 2003 occurred well before the convention, so obviously Australia, at that time, did not have any obligations under the convention. We have not made any assessment about how current convention obligations might have affected military operations in 2003.</p><p>I repeat the point I made at the conclusion of last night—that in the view of the government this convention, and our support for it, is an important step forward. We believe the interoperability provisions found in this legislation are critically important both to the workings of the treaty itself and to Australia's alliance relationship with the United States. As I also said last night, if interoperability provisions like this were not found in the bill and were not countenanced by the convention, that would, in our judgement, greatly weaken the convention and support for it. You would be creating a situation in which any nation which had an alliance relationship with any one of the United States, Russia, China, Iran, India, Pakistan, Brazil or a plethora of other nations might feel unable to support the convention. We think that would reduce the value of the convention—we would be dealing with a convention with far fewer signatories and which therefore exerted far less influence towards the creation of an international norm where these weapons are not used. There is nothing new in all that, Senator Ludlam—I am simply repeating the case I put to you last night.</p> <p class="speaker">Scott Ludlam</p><p>I indicate to senators that we are still asking general questions about the bill, as was Senator Xenophon last night. I want to move us through and get to our amendments. We will return to this issue briefly when I move the amendments which will fix this gap in the bill—a gap the parliamentary secretary did not quite concede exists but which I strongly contend does.</p><p>I will to move on to the second of the three primary areas of concern I identified last night: the transiting and stockpiling of cluster weapons in Australia. We are not concerned about that being done by Australians—because, as we have established, Australia want nothing to do with these things, and that is a sound principle—but by an ally. This conversation is not academic, it is not abstract and it is not hypothetical. We have invited, we discovered last November, the United States Marine Corps to establish a presence in the north. I have also had it confirmed—I think, at the last estimates hearings—that the United States Air Force has been invited to establish a presence at Tindal. There are obviously ongoing discussions occurring which we are not party to—no-one in the Australian public is—concerning the US naval presence in Cockburn Sound in the south-west of WA and Queensland residents will also be aware that there are discussions occurring about US military presence at Australian facilities.</p><p>I do not want to get caught up in a debate about what is and what is not a base. It is quite clear that the US presence in Australia, as it is ramped up, will be flying under an Australian flag. That is something the Australian government has decided is important for the optics of the arrangements, I suspect. Nonetheless, the US military will be stationed here in various forms. They will be parking materiel and equipment here. So it is not good enough that the bill, as it is drafted, exempts the military personnel of states which are not party to the convention from its prohibitions while they are on Australian territory.</p><p>We can go, if the parliamentary secretary chooses, to the operative part of the bill. It allows states which are not party to the convention, but which are engaged in military cooperation with the ADF, to stockpile cluster munitions in bases, aircraft and ships in Australia. Let us start there. Parliamentary Secretary, you can either treat Darwin as a case study or you can keep your answer in the abstract if you prefer, but I want to know how this bill is going to operate. Will it be unlawful for the US to stockpile cluster weapons in transit from place to place on Australian soil?</p> <p class="speaker">David Feeney</p><p>Firstly, I repeat that there are no US bases in Australia. There are joint facilities.</p> <p class="speaker">Scott Ludlam</p><p>I asked you not to do that.</p> <p class="speaker">David Feeney</p><p>I am resisting the temptation to head down that road, too, Senator Ludlam. I also make clear that Australia has never had stockpiles of these weapons. I know you understand that, Senator Ludlam, but it is important to put it on the record.</p><p>I repeat that the bill uses the language found in the convention. For our part, we say that the bill, in its intent and in its operation, effects everything the convention is intended to effect. The convention itself permits military cooperation and operations between states parties and countries not party to the convention. That is a point worth highlighting, I think. Such military cooperation or operations may entail the use by foreign countries of their own assets on Australian territory or the entry of foreign ships or aircraft into Australian territory.</p><p>The defence which is found in proposed section 72.42 protects foreign military personnel of countries which are not party to the convention while such personnel are in Australia. This section obviously takes into account that Australia engages in military cooperation and operations with some countries which are not party to the convention—obviously the United States is one of those. But those kinds of military cooperation and joint operations are expressly permitted by article 21 of the convention. The defence in the bill recognises that foreign military personnel are not required to comply with an international legal obligation to which their own country has not consented. I think that is reasonably straightforward. It is essential that Australia be able to continue to cooperate with countries which have not signed the convention.</p><p>The government has made clear that it has not and will not permit other countries to stockpile cluster munitions in Australia. I trust that is an important undertaking for you to have on the record, Senator Ludlam.</p><p>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. The government will confirm this commitment in a public statement at the time of Australia's ratification of the convention and in Australia's annual statements under the convention.</p> <p class="speaker">Scott Ludlam</p><p>I suspect this is slightly unorthodox, but as we have representatives of the coalition here this afternoon—you might want to seek some advice from your shadow spokesperson—I invite the coalition to establish what their policy is. The problem with not embedding this in law, which is the reason we turn up here, is that policy decisions can change. Policies can change according to political whim and they can change with a change of government. So I invite the coalition to put on the record whether it is their policy, should they win government, to also prohibit, not in law but in policy, the stockpiling of cluster weapons in the possession of other states.</p> <p class="speaker">Mitch Fifield</p><p>I am sure that our relevant shadow and his office are tuned in at the moment and that when they are next in the chamber they will oblige you.</p> <p class="speaker">Scott Ludlam</p><p>Thank you for that. Yes—who would want to miss it! How could you possibly not be watching! Minister, why has it been decided to embed this commitment as a policy undertaking rather than simply write it into the law, as many other state parties have done?</p> <p class="speaker">David Feeney</p><p>Because the bill is designed to give effect to the Convention on Cluster Munitions, and so the bill keeps faith with the convention. What we are now talking about is a question of policy that goes above and beyond the convention. The government obviously has a firm view, a view that should give you comfort, that I think is aligned with your own view, but that is a matter of policy. It is not something that is required or sought in the convention itself.</p> <p class="speaker">Scott Ludlam</p><p>Minister Feeney, Austria has stated:</p><p class="italic">… foreign stockpiling of cluster munitions on the national territory of States Parties is prohibited by the Convention. … Should a State Party to the Convention allow a foreign state to stockpile cluster munitions on its territory, this action would be in violation with the provision entailed in Article 1 paragraph c that prohibits assistance …</p><p>Does the minister or his advisers agree with that view?</p> <p class="speaker">David Feeney</p><p>Austria has taken that position. Obviously, it is utterly entitled to take that position. I can only repeat the Australian government's view, which is that we have introduced legislation into this parliament that keeps faith with the convention and the requirements of the convention, and we have not seen the need to go above and beyond the convention in that particular regard.</p> <p class="speaker">Scott Ludlam</p><p>So the minister has not endorsed the Austrian position?</p> <p class="speaker">David Feeney</p><p>No.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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