House of Representatives

Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010

Second Reading Speech

Mr McClelland (Attorney-General)

I move:

That this bill be now read a second time.

I am pleased to introduce the Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010.

This bill includes the legislative measures necessary to give effect to the Convention on Cluster Munitions.

Australia is a strong supporter of the convention.

Australia was one of the first countries to sign the convention on 3 December 2008 and, once the appropriate implementing arrangements are in place, we will proceed to ratify the convention.

Australia took an active role in the negotiation of the convention, consistent with Australia's longstanding practice of taking part in international efforts to reduce the humanitarian impact of armed conflict, especially on civilian populations.

Our active participation in the negotiation of this convention ensured a strong humanitarian outcome that also satisfied Australia's national security concerns.

The convention is a remarkable achievement that came about from recognition by the international community that the time had come to address the tragic impact of cluster munitions.

The long- and short-term impacts of cluster munitions on civilian populations are well known.

Cluster munitions are primarily used against large target areas and are used indiscriminately.

As a consequence, large areas of land can become contaminated with unexploded submunitions.

These areas can be left dangerous and unusable long after conflict has ceased. Stories abound about children being attracted to the coloured explosives long after the hostilities have ceased.

The convention bans the use, development, production, acquisition, stockpiling, retention and transfer of cluster munitions, as well as the assisting, encouraging or inducing of any person to do any act prohibited by the convention.

The bill will amend the Criminal Code to include the provisions necessary for ensuring that Australian law is consistent with the convention.

This bill will add to Australia's already strong legal framework regarding weapons that cause indiscriminate harm, such as the Anti-Personnel Mines Convention Act of 1998.

There are three main features to this bill.

First, the bill will create offences that reflect the range of conduct that is prohibited by the convention.

The bill includes a new offence of using, developing, producing, acquiring, stockpiling, retaining or transferring a cluster munition.

The bill will also create an offence of assisting, encouraging or inducing a person to do any of those acts.

An example of conduct that would fall within this offence is where a person provides financial assistance to, or invests in, a company that develops or produces cluster munitions, but only where that person intends to assist, encourage or induce the development or production of cluster munitions by that company.

These new offences will provide a comprehensive legislative scheme to ban the use of cluster munitions within Australia and by Australians.

These offences will carry a maximum penalty of 10 years imprisonment for individuals, or $330,000 for bodies corporate.

This penalty reflects the serious nature of the offences created by the bill.

Second, the bill will create defences to these offences that reflect the range of conduct that is permitted by the convention. In particular, this will allow Australia to maintain and develop its skills and capabilities in detecting and destroying cluster munitions.

The convention permits states parties to acquire or retain a limited number of cluster munitions for the development of, and training in, detection, clearance or destruction techniques, and for the development of countermeasures.

The convention also allows a state party to transfer cluster munitions to another state party so that they can be destroyed.

The bill will create a defence for persons who acquire or retain cluster munitions for these purposes or for the purpose of destruction when authorised by the Minister for Defence.

The bill will also create a defence for persons who transfer cluster munitions to another state party for the purpose of destruction.

In order to encourage individuals to contact the police or Australian Defence Force in order to surrender cluster munitions rather than handling the dangerous explosives themselves, the bill will create a defence for persons who, without delay, notify the police or Australian Defence Force that they wish to surrender cluster munitions.

These defences will enable Australia to maintain its participation in international cooperative efforts to develop and share knowledge on detection, clearance and destruction techniques.

The bill will, however, continue to allow Australia to maintain cooperative military relationships with countries that are not party to the convention. The ability to maintain this capability is a fundamental pillar of international security and essential for Australia's national security.

It is an important part of both the convention and this bill.

Importantly, the convention permits states parties to continue to undertake military cooperation and operations with countries that are not party to the convention, subject to some restrictions.

The bill will create a defence for persons whose conduct is done in the course of the permitted range of military cooperation and operations.

Notwithstanding this defence, it will be an offence for a person to use, develop, produce, acquire, stockpile or retain cluster munitions, even in the course of combined operations with countries that are a non-party.

This defence will also not apply if a person expressly requests the use of cluster munitions in a situation where the choice of munitions used is within Australia's exclusive control.

This limitation on the defence will ensure that Australia and Australians will continue to act consistently with the object and purpose of the convention, even when undertaking cooperative activities with countries that are not obliged to comply with the convention.

A separate defence will protect visiting personnel from the armed forces of countries that are not a party to the convention, while such personnel are in Australia.

These individuals are not required to comply with the convention's obligations, and are therefore protected-to that limited extent-from the criminal offences that will be created in this bill.

Nonetheless, such visiting forces would not be excused from prosecution if they use, develop, produce or acquire cluster munitions when they are in Australia.

The bill forms one part of the measures necessary for Australia to implement its obligations under the convention.

In addition to this proposed legislation, the government will also ensure that doctrine, procedures, rules and directives of the Australian Defence Forces are consistent with our obligations under the convention.

It is now widely recognised that cluster munitions not only create an ever present danger to civilians long after the conflict has ended, but they also present a dangerous impediment to the provision of humanitarian aid as well as postconflict economic and social development.

In recognition of this, the convention seeks not only to ban the use of cluster munitions, but it also requires state parties to destroy stockpiles of cluster munitions, to assist victims of cluster munitions and to clear cluster munitions in affected areas.

The government will comply with the reporting obligations in the convention, which will ensure transparency and act as a confidence-building measure.

And while Australia has no operational stocks of cluster munitions, the government will continue to support international efforts to alleviate the terrible humanitarian impact of cluster munitions.

The Mine Action Strategy for the Australian aid program supports efforts to assist victims internationally, as well as efforts to clear and destroy cluster munitions that are remnant in countries that have been affected by the use of such munitions.

Under the strategy, Australia has pledged $100 million from 2010 to 2014 to reduce the threat and socioeconomic impact of landmines, cluster munitions and other explosive remnants of war. This contribution will help reduce the deaths and injuries from these devices and improve the quality of life for victims, their adversely affected families and, indeed, entire communities.

This bill is a significant step towards Australia meeting its obligations under this important convention, and will strengthen Australia's legal framework regarding weapons that cause significant and indiscriminate harm to civilians.