Chapter 1
Introduction
Referral of inquiry
1.1
On 28 October 2010 the Senate referred provisions of the Criminal Code
Amendment (Cluster Munitions Prohibition) Bill 2010 to the Senate Foreign
Affairs, Defence and Trade Legislation Committee for inquiry and report by 24 March
2011.
Purpose of the bill
1.2
The purpose of the bill is to introduce legislative measures to ensure
consistency between Australian law and the Convention on Cluster Munitions (the
Convention). Its enactment coupled with other non-legislative measures will
place Australia in a position to ratify the Convention.[1]
1.3
The Convention bans the use, stockpiling, acquisition and transfer of
cluster munitions by states parties. It aims to assist the victims of cluster
munitions and includes provisions on the clearance of cluster munitions from areas
of former conflict. Article 9 requires states parties to enact legislation to
criminalise any activity prohibited under the Convention. In keeping with this
undertaking, the Australian Government intends to amend the Criminal Code
Act 1995 (the Code) to create offences and penalties in relation to cluster
munitions and explosive bomblets. The proposed legislation would also provide defences
for certain circumstances and for certain authorisation to be made. These
legislative measures will enable Australia to ratify the Convention.
1.4
The bill inserts a new Subdivision C in Division 72 of the Code. The
heading of proposed Subdivision C is 'Cluster munitions and explosive
bomblets'. The bill proposes to insert new offences and other provisions into
Division 72 relating to the use, development, production, acquisition,
stockpiling, retention or transfer of cluster munitions. The Subdivision will
apply in relation to explosive bomblets in the same way that it does to cluster
munitions.[2]
1.5
The bill contains two main features:
-
offences relating to the use, development, production,
acquisition, stockpiling, retention and transfer of cluster munitions;
-
defences to these offences that reflect a range of conduct that is
permitted by the Convention to enable Australia to maintain and develop its
skill and capabilities in detecting and destroying cluster munitions and to
maintain cooperative military relationships with countries that are not party
to the Convention.
Definitions
1.6
The bill uses the Convention's definition of 'cluster munition' which
is:
...a conventional munition that is designed to disperse or
release explosive submunitions each weighing less than 20 kilograms, and
includes those explosive submunitions. It does not mean the following:
(a)
A munition or submunitions
designed to dispense flares, smoke, pyrotechnics or chaff; or a munition
designed exclusively for an air defence role;
(b)
A munition or submunitions
designed to produce electrical or electronic effects;
(c)
A munition that, in order to avoid
indiscriminate area effects and the risks posed by unexploded submunitions, has
all of the following characteristics:
(i)
Each munition contains fewer than
ten explosive submunitions;
(ii)
Each explosive submunitions weighs
more than four kilograms;
(iii)
Each explosive submunitions is
designed to detect and engage a single target object;
(iv)
Each explosive submunitions is
equipped with an electronic self-destruction mechanism;
(v)
Each explosive submunitions is
equipped with an electronic self-deactivating feature.[3]
1.7
An 'explosive bomblet' is determined in the bill to have the same
meaning as that articulated in Article 2(13) of the Convention.[4]
Similarly, an explosive submunitions for the purposes of the bill has the same meaning
as that provided in Article 2(3) of the Convention.
1.8
The committee notes that the explanatory memorandum contains errors where
it describes a 'cluster munition'. It gives reference to paragraph 2 of Article
21 of the Convention rather than Article 2 concerning definitions. This mistake
is repeated twice on page 17 of the explanatory memorandum.
Convention on Cluster Munitions and Australia's role
1.9
Concerns within the international community regarding the unintended
impact of cluster munitions were raised in the 1970s primarily in the context
of the conflicts of Southeast Asia. However, negotiations towards a treaty on
cluster munitions only began officially in February 2007 when the Oslo Process
was launched. Discussions, which had been on identifying technical solutions to
improve submunitions reliability, shifted towards striving for a total ban on
cluster munitions that cause unacceptable harm to civilians.[5]
1.10
The Convention on Cluster Munitions was adopted in Dublin on 30 May 2008
and entered into force on 1 August 2010. Norway was the first country to sign
the Convention and both Lebanon and Laos, two countries which experienced the
effects of cluster munitions, followed quickly.[6]
Australia signed the Convention at Oslo on 3 December 2008.[7]
The UN Secretary-General, Ban Ki-moon stated the following in relation to the
treaty when it entered into force:
This new instrument is a major advance for the global
disarmament and humanitarian agendas, and will help us to counter the
widespread insecurity and suffering caused by these terrible weapons, particularly
among civilians and children.[8]
1.11
The Convention seeks to prevent future civilian harm caused by cluster
munitions by establishing absolute prohibitions on a number of activities
involving cluster munitions. It serves as a legally binding instrument to
prohibit the use, production, transfer and stockpiling of cluster munitions. It
also establishes a framework for cooperation and assistance to ensure the
adequate provision of care and rehabilitation of victims and, amongst other
things, the destruction of cluster munition stockpiles. Indeed, according to
the preamble, the Convention strives to 'put an end for all time to the
suffering and casualties caused by cluster munitions at the time of their use,
when they fail to function as intended or when they are abandoned'.[9]
For their part, states parties to the Convention are required to interpret
their obligations in a manner which is consistent with the object and purpose
of the Convention.
1.12
Australia played an active role in negotiating the Convention throughout
the Oslo Process. The joint government submission highlighted that Australia
'has worked closely with international partners to achieve the strongest
possible ban on these weapons'.[10]
Australia also played a lead role in the preparations for the First Meeting of
States Parties to the Convention held in Vientiane, Laos, in November 2010. The
National Interest Analysis noted the following in relation to Australia's role
in the Oslo Process:
Australia advocated the need to strike a balance between addressing
the impact of cluster munitions that cause unacceptable humanitarian harm and
legitimate military needs, supported a pragmatic approach to clearance
responsibilities and helped to ensure that there were comprehensive and
meaningful victim assistance and rehabilitation provisions.[11]
1.13
Australia has a long history of involvement in mine action activities.
According to AusAID, Australia has contributed over $175 million since 1997
towards global efforts to reduce the threat and impact of landmines and other
explosive ordnance including cluster munitions. Through its aid program,
Australia is recognised as a 'leading contributor to international mine
clearance efforts, victim assistance, mine risk education and integrated mine
action programs'.[12]
This contribution was recognised by witnesses to this inquiry.[13]
Under the new Mine Action Strategy for the Australian aid program 2010–2014,
Australia has pledged $100 million to work towards a 'world free from
landmines, cluster munitions and other explosive remnants of war over the next
five years'.[14]
In the second reading speech, the Attorney-General, the Hon Robert McClelland
MP, recognised that 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'.[15]
1.14
The First Meeting of states parties took place in November 2010 in Lao
PDR, the most heavily bombed country per capita in the world.[16]
1.15
To date, 52 states have ratified the Convention including France,
Germany, Ireland, Lebanon, New Zealand, Spain, and the UK whilst there are 108
signatories.[17]
1.16
Countries that have not agreed to the treaty include the United States
(US), China, Russia, Israel, Brazil, India and Pakistan. They are recognised as
amongst the major producers of cluster munitions and their components
worldwide.[18]
Previous parliamentary inquiries
Senate Standing Committee on
Foreign Affairs, Defence and Trade
1.17
On 31 May 2007, the Senate Standing Committee on Foreign Affairs, Defence
and Trade completed an inquiry into a private senator's bill–the Cluster
Munitions (Prohibition) Bill 2006. The effect of the bill was to ban
Australia's involvement in cluster munitions. The bill was specifically
intended to prevent members of the Australian Defence Force (ADF), whether
serving in Australia or elsewhere, and whether serving with the ADF or any
other defence force, from being involved in the deployment of cluster
munitions.[19]
1.18
The committee was of the view that the bill in its then current form and
without substantial redrafting was not the most appropriate means to address
the problems created by the use of cluster munitions. Whilst recommending that
the bill not be passed, the committee encouraged the government to consider
foreign legislation 'that has been enacted or is currently before foreign
parliaments that relates to the use of cluster munitions with a view to
introducing similar legislation that would be relevant to Australia's
circumstances'.[20]
Joint Standing Committee on Treaties
1.19
In March 2009, Australia tabled a National Interest Analysis in
Parliament which provided an overview of the potential benefits and obligations
arising out of ratification of the Convention. In June the same year, the Joint
Standing Committee on Treaties (JSCOT) conducted an inquiry into the Convention
with a view to Australia becoming a party to it. JSCOT took the view that
ratification of the Convention would 'reaffirm Australia's commitment to
limiting the impact of armed conflict on civilian populations'. It noted
further that ratification 'will significantly improve the lives of people
affected by cluster munitions' whilst enabling Australia to continue to
cooperate military with its allies.[21]
However, JSCOT was particularly concerned that Article 21 of the Convention
'may permit Australian personnel to assist or participate in the use of cluster
munitions'.[22]
It noted that Australia could 'inadvertently participate in the use or assist
in the use of cluster munitions'. Furthermore, that the lack of clarity in
relation to some Convention terms 'may provide an avenue by which Australia
could participate in actions which may contravene the humanitarian aims of the
Convention'.[23]
1.20
Whilst recommending ratification of the Convention, JSCOT also recommended
that the Australian Government and ADF have regard to a number of issues when
developing policies under which ADF personnel would operate, namely:
-
the definition of the terms 'use', 'retain', 'assist',
'encourage' and 'induce' as they apply in Articles 1, 2 and 21 of the
Convention on Cluster Munitions;
-
preventing inadvertent participation in the use, or assistance in
the use, of cluster munitions by Australia; and
-
preventing investment by Australian entities in the development
or production of cluster munitions, either directly, or through the provision
of funds to companies that may develop or produce cluster munitions.[24]
Selection of Bills Committee
1.21
The proposal made to the Senate Standing Committee for the Selection of
Bills to refer the bill for inquiry and report suggested that the bill was 'inconsistent
with recommendations' made by JSCOT when it reviewed the Convention on Cluster
Munitions in the 42nd Parliament.[25]
Submissions
1.22
The committee advertised the inquiry on its website and in The
Australian on 10 and 24 November 2010 and 8 December 2010. The committee
wrote to the Minister for Defence, Minister for Foreign Affairs and the
Attorney-General respectively. The committee also wrote to respective state and
territory governments, inviting them or their departments or related agencies
to make a submission. A number of other organisations, commentators, and
academics were also contacted and invited to make submissions to the inquiry.
The committee received 29 submissions, which are listed at Appendix 1.
Acknowledgements
1.23
The committee thanks those who assisted with the inquiry.
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