Criminal Code Amendment (Cluster Munitions
Prohibition) Bill 2010
Dissenting Report
By Senator Scott Ludlam, the Australian Greens
The Criminal Code (Cluster Munitions Prohibition) Bill
gives effect to Australia's implementation of the Convention on Cluster
Munitions. The Convention on Cluster Munitions prohibits use, production,
transfer and stockpiling of cluster munitions as well as assistance with any of
these activities. Under the Convention's obligations, state parties are
required to clear their territory of cluster munition remnants, assist victims
and provide cooperation and assistance to other state parties.
Australia was an active participant in the negotiation
of the Convention on Cluster Munitions and among its original signatories. The Criminal Code Amendment (Cluster Munitions
Prohibition) Bill 2010 was introduced in the House of Representatives on
October 27, 2010 and in the Senate on November 22, 2010. The Selection of Bills
Committee found the Bill to be 'inconsistent with recommendations made by the
Joint Standing Committee on Treaties (JSCOT),' and on October 28, 2010 the
Senate referred the Bill to the Senate Committee on Foreign Affairs, Defence
and Trade for inquiry and report.
The Greens have concerns with a
number of the majority committee's conclusions particularly with regards
interoperability, investment, stockpiling and retention of munitions.
In terms of interoperability the
Australian Greens are not convinced that the report's findings go anywhere near
far enough. The majority committee report finds that the Bill, 'Cannot be
considered in isolation from other positive measures that Australia has
taken'. It remains satisfied that, 'Positive obligations are a matter of
administrative rather than legislative action' and it comments that 'the
article's positive obligations serve as a compelling incentive to ensure that
states parties and their personnel engaged in joint military operations are a
matter of administrative rather than legislative action.' The report goes on to
say that it 'Recognises that the article's positive obligations serve as a
compelling incentive to ensure that states parties and their personnel engaged
in joint military operations abide by the spirit of the Convention. When taken
in this broader context, the committee is satisfied that the concerns about a
lack of balance or silence on positive obligations in the bill are resolved.'
The Greens share the concerns of
the Cluster Munition Coalition (Australia) who point to the fact that the
Convention on Cluster Munitions states parties should never 'under any
circumstances' engage in prohibited activities related to cluster munitions.
This bill does not include the phrase 'under any circumstances' and the Greens
are concerned that as currently drafted, Australian personnel may be permitted
to refuel planes carrying cluster munitions, participate in the planning of
attacks involving cluster munitions or create rules of engagement that permit
use of the weapon. The Greens believe that Section 72.41 should be revised to
ensure that military operations with non-states parties do not become a
loophole in the Bill's language.
The Greens agree with the views of Human Rights Watch
who recommend that the Committee revise
the Bill to reflect the continued application of the Convention’s prohibitions
- including the prohibition on assistance - during situations of
interoperability. Implementing this interpretation will be consistent with the
text of the convention and will uphold the Convention’s object and purpose of
eliminating cluster munitions and the humanitarian harm they cause.
The Greens echo the views of Human Rights Watch, who
pointed out in their submission that, 'New Zealand’s implementation legislation,
enacted in 2009, allows for joint military operations while preserving the Convention’s
prohibitions. It would serve as a good model for Australia’s legislation. The
New Zealand law criminalizes all activities prohibited by the Convention’s
Article 1. It also creates an offence for expressly requesting the use of
cluster munitions during joint operations “if the choice of munitions used is
within the exclusive control of the Armed Forces." Without creating
exceptions to its strong prohibitions, the New Zealand law clarifies that it
does not preclude mere participation in joint military operations.'
In terms of stockpiling and
retaining cluster munitions and allowing them to transit cluster munitions
through Australian territory, the Greens are not convinced by the majority committee's
position that, 'People's concerns about the operation of sections 72.41 and
72.42 could be allayed by the government better publicising the work that it is
doing to encourage non-party states to adhere to or endorse the Convention and
the way it uses its best efforts to discourage others from using cluster
munitions.'
The Greens share the concerns of the Cluster Munition
Coalition (Australia) who point out in their submission that, 'According to Article 9 of the Convention, “Each State
Party shall take all appropriate legal, administrative and other measures to
implement this Convention, including the imposition of penal sanctions to
prevent and suppress any activity prohibited to a State Party under this
Convention undertaken by persons or on
territory under its jurisdiction or control”. The CMC is concerned that the Bill exempts the military personnel of
non-states parties from the Convention’s prohibitions while they are on
Australian territory. The CMC is also concerned that the Bill allows non-states
parties in military cooperation with the Australian Defence Force to stockpile
cluster munitions on bases, aircraft, and ships in Australia. Finally, the CMC
is concerned that the Bill explicitly allows for the transit of cluster
munitions by permitting transit by ship or plane through Australian territory
by non-states parties in military cooperation with the ADF.
The Greens agree with the CMC that Section 72.42 (1)
should be deleted as this section directly violates Articles 1 and 9 of the
Convention. Allowing foreign forces to
stockpile cluster munitions violates the prohibition on assistance because it
facilitates stockpiling and can potentially aid in the use of cluster
munitions.
As Human Rights Watch point out in their submission, '
No other state has explicitly allowed for foreign stockpiling in its
implementation legislation, and several nations have said they view the
convention to ban the hosting of foreign stockpiles. Austria stated that the
“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.” Colombia noted that it
“absolutely rejects any manner of ... storage of foreign cluster bombs in
Colombian territory.” Guatemala wrote that it “considers that the stockpiling
of cluster munitions of other countries in the territory of a State Party to
the Convention ... is prohibited according to Article 1 of the Convention.”
Slovenia stated “in our view, the Convention also contains the prohibition of ...
stockpiling of cluster munitions by third countries on the territory of each
State Party. Therefore, such activities are illegal and not allowed on the
territory of the Republic of Slovenia.”
The Greens also want to specify the number
of cluster munitions Australia will retain with an annual report that indicates
the numbers and types of cluster munitions retained in this country.
In terms of investment in companies that
develop or produce cluster munitions, the Greens are not persuaded by the
government's view that it is not appropriate to explicitly prohibit such
investment because the Convention does not contain such a provision. The lack of a prohibition on investment is directly
counter to JSCOT Recommendation 2, which states that the 'legislation should
prevent investment.' The Australian attorney general, in a speech to the House
on November 18, 2010 said that the convention’s prohibition on assistance
extends to investment in companies that produce cluster munitions when the
investor 'intends to assist, encourage or induce the development or production
of cluster munitions....'
The Greens agree with Human Rights Watch who state
that the Bill, 'Should explicitly ban investment because it assists with a
prohibited act, that is, the production of cluster munitions. Production cannot
be curtailed and cluster munitions eliminated if a state party allows direct or
indirect financial support to manufacturers of the weapons. Because private
investors often provide important financial support to such companies, the ban
should extend to private funds.'
Finally, as the Australian Council of Super Investors
(ACSI) points out in its submission, there is no known direct investment in
cluster munitions occurring anywhere in the world, yet direct investment is the
only type of investment that would be captured under the current legislative
wording. ACSI observe that, 'For the avoidance of doubt, the current drafting
will have no practical effect on the financing of cluster bomb production.'
Recommendations:
Recommendation
1
The Bill should be revised to
better reflect the continued application of the Convention’s prohibitions -
including the prohibition on assistance - during situations of
interoperability.
The Greens would recommend
the example of New Zealand’s implementation legislation, enacted in 2009, which
allows for joint military operations while preserving the convention’s
prohibitions. It would serve as a good model for Australia’s legislation. The
New Zealand law criminalizes all activities prohibited by the convention’s
Article 1. It also creates an offence for expressly requesting the use of
cluster munitions during joint operations 'if the choice of munitions used is
within the exclusive control of the Armed Forces.'
Without
creating exceptions to its strong prohibitions, the New Zealand law clarifies
that it does not preclude mere participation in joint military operations. Its
Section 11(6) states: A member of the Armed Forces does not commit an offence
against section 10(1) [which lays out the prohibitions] merely by engaging, in
the course of his or her duties, in operations, exercises, or other military
activities with the armed forces of a State that is not a party to the
Convention and that has the capability to engage in conduct prohibited by
section 10(1).
New
Zealand’s approach explicitly permits joint military operations, something
Australia wants to do. At the same time, it does not create a blanket defense
that excuses prohibited activities, notably assistance, when they are committed
during such operations. In so doing, New Zealand remains true to object and
purpose of the convention and is able to balance its obligations under the
convention with its obligations to its allies that have not yet joined the
convention.
Recommendation
2
The Greens believe that Section
72.41 be deleted and the following wording (see below) should be added in its
place and that sections 72.42 (1) and (2) be deleted as it directly violates
Articles 1 and 9 of the Convention. Allowing
foreign forces to stockpile cluster munitions violates the prohibition on
assistance because it facilitates stockpiling and can potentially aid in the
use of cluster munitions.
Wording
for Section 72.41 to be added:
'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 country not party to the Convention on Cluster Munitions.'
Recommendation
3
The legislation
must explicitly specify the minimum number of cluster munitions to be retained
for training purposes. In addition the
Minister or his or her delegate should submit a detailed annual report to the
Secretary-General of the United Nations for each year during which cluster
munitions are retained, acquired or transferred no later than 30 April of the
following year. The report should include information on the planned and actual
use, type, quantity and lot numbers of cluster munitions acquired or retained
under subsection (2).
Recommendation 4
All investment - direct and indirect, public and private - should be prohibited
by the Act (in line with JSCOT recommendations). A public authority or an entity regulated by the
Australian Securities and Investments Commission (ASIC) or the Australian
Prudential Regulation Authority (APRA) should be deemed to have committed an
offence if it directly or indirectly provides funds to or invests funds in a
corporation involved in the development or production of cluster munitions or
explosive submunitions.
Senator Scott Ludlam
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