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Tuesday, 18 August 2009
Page: 5217


Senator BIRMINGHAM (4:18 PM) —On behalf of the Joint Standing Committee on Treaties, I present report No. 103, Treaties tabled on 12 March and 13 May 2009, and I seek leave to move a motion in relation to the report.

Leave granted.


Senator BIRMINGHAM —I move:

That the Senate take note of the report.

In addition to remarks that I would like to make shortly, I seek leave to have a tabling statement on behalf of Senator McGauran incorporated into Hansard.

Leave granted.

The statement read as follows—

Mr President, I present Report 103 of the Joint Standing Committee on Treaties. The report reviews three treaty actions:

  • the Agreement between Australia and the Socialist Republic of Vietnam concerning the Transfer of Sentenced Persons;
  • the Convention on Cluster Munitions; and
  • the Agreement on Employment of Spouses and Dependants of Diplomatic and Consular Personnel between Australia and the Portuguese Republic.

In each case the Committee has supported the proposed treaties and recommended that binding treaty action be taken.

Mr President, I will direct most of my remarks to the Convention on Cluster Munitions.

Cluster munitions are bombs, artillery shells and rockets that fragment into small bomblets known as submunitions. One cluster munition can spread up to hundreds of submunitions.

Cluster munitions are the subject of a convention because their broad area of effect and the fact that submunitions often fail to detonate mean they have a significant impact on civilian populations. Their use results in large areas of land contaminated with highly dangerous unexploded submunitions.

In the short term, unexploded submunitions expose civilians returning to areas of conflict to the danger of being killed or injured. There have been over 13,000 recorded civilian casualties from discarded submunitions.

In the longer-term, the suspected presence of unexploded cluster munitions prevents the use and rehabilitation of vital infrastructure, including roads, schools, markets and farms, until expensive and arduous clearance activities have taken place.

The Convention was signed in December 2008 and will come into force six months after it has been ratified by 30 States. As of July 2009, 98 states had signed the Convention and 14 states had ratified.

The Convention will require Australia to:

  • never develop, produce, acquire, stock or transfer cluster munitions;
  • never assist anyone in any activity prohibited under the Convention;
  • only retain limited stocks used for training purposes;
  • provide assistance to cluster munitions victims in areas under Australia’s jurisdiction or control;
  • provide to other States Parties technical, material and financial assistance to clear unexploded submunitions, and for the economic and social recovery needed as a result of the use of cluster munitions in these jurisdictions;
  • criminalise any activity prohibited under the Convention; and
  • encourage other States not party to the Convention to sign and ratify, with the goal of attracting universal adherence.

Mr President, as with any important measure of this sort, the chief thing is how to ensure the implementation follows both the letter and the spirit of the Convention.

The Committee is concerned that some of the terms contained in the Convention are not clearly defined and may provide an avenue by which Australians could inadvertently contravene the humanitarian aims of the Convention.

To prevent this, the Australian Government and the Australian Defence Force should ensure that, when drafting the domestic legislation implementing the Convention, and when developing policies by which the personnel of the ADF operate, the humanitarian aims of the Convention cannot be legally contravened.

To achieve this, the Committee recommends that the Australian Government and the ADF have regard to certain issues when drafting the legislation required to implement the Convention on Cluster Munitions, and when developing policies under which the personnel of the ADF operate. These issues are

  • 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.

The Committee is of the view that ratification of the Convention will reaffirm Australia’s commitment to limiting the impact of armed conflict on civilian populations, and will significantly improve the lives of people affected by cluster munitions. The Convention will also permit Australia to continue to cooperate militarily with its allies.

Mr President, the Agreement between Australia and the Socialist Republic of Vietnam concerning Transfer of Sentenced Persons permits Australians imprisoned in Vietnam, and Vietnamese nationals imprisoned in Australia, to apply to serve the remainder of their sentences in their home country.

The purpose of the scheme is to reintegrate prisoners into society by allowing them to apply to serve their sentences in their home country, without the language and cultural barriers which can reduce their prospects of rehabilitation.

This agreement applies to the 28 Australians serving sentences in Vietnam and 684 Vietnamese-born prisoners in Australian prisons. The Committee is of the view that it will provide humanitarian support to these prisoners.

Finally Mr President, the Agreement on Employment of the Spouses and Dependants of Diplomatic and Consular Personnel between the Government of Australia and the Portuguese Republic is a treaty that will permit members of the families of Australia’s diplomatic and consular personnel in Portugal to engage in work.

The Committee is of the view that ratification of the Agreement would be in the interests of the families of Australia’s diplomatic community.

I thank the numerous agencies, individuals and organisations who assisted in the Committee’s inquiries.

I commend the report to the Senate.


Senator BIRMINGHAM —I welcome the decision of the Joint Standing Committee on Treaties to recommend and support a binding treaty action in regard to this matter. This is an important treaty on a very important issue. It is work that has been ongoing since the days of the previous government. Indeed, cluster munitions are terrible devices that unfortunately have caused great harm to thousands over the years. We hope that the progression of this treaty will provide some assistance to reducing their impact throughout the world.

Cluster munitions are gravity bombs, artillery shells and rockets that fragment into small bomblets, known as submunitions. They can spread across large areas, cause widespread damage, and have been proven to be incredibly difficult to clear after conflicts. They can leave a horrible legacy for the civil populations of war zones and, just as Australia led the way in tackling issues around landmines, it is welcome that Australia is again playing such a key role in regard to cluster munitions. This convention was signed in December 2008 and will come into force six months after it has been ratified by 30 states. As of July this year, 98 countries had signed the convention, 14 had ratified it and we hope that, with this recommendation, Australia will shortly join that group.

The extent of damage caused by cluster munitions was highlighted in the report of the joint standing committee from evidence provided by Australian Red Cross which cited a study by Handicap International found that in 2007 there had been 13,306 recorded casualties from cluster munitions, with men and children being the most frequent victims. The longer term damages can have huge impact on the rehabilitation of vital infrastructure, especially that around roads in remote and regional areas, schools, markets, farms, and this provides an expensive and arduous clean-up task for those who assist countries in rebuilding after conflict.

Whilst recommending this treaty be adopted, the committee went to some pains to ensure that the definitions within the treaty are clarified as much as possible, in particular in relation to how the Australian Defence Forces interpret the definitions within them to make sure that there is certainty for our ADF personnel when operating under Australia’s obligations that we accept as part of this treaty. The recommendations include reference to preventing inadvertent participation in the use or assistance in the use of cluster munitions by Australia. I highlight the word ‘inadvertent’ in that recommendation as it is important to recognise that the committee was acknowledging the reality of the situation—that is, that some of Australia’s military partners will, in at least the foreseeable future, potentially continue to use cluster munitions in their operations.

We hope, by signing this treaty, that one day all countries will join up, but we recognise the reality that Australian personnel may find themselves part of the use of such munitions in cooperative operations, as we tend to have around the world. The clarity which I think needs to be given was provided very eloquently by Air Vice Marshal Geoffrey Brown in evidence he provided the committee on 22 June 2009 when he stated:

... the simplest way to understand the interoperability provisions in the Convention is that ADF personnel should not be the first or the last in the chain of command when cluster munitions are used. That is, ADF personnel must not be engaged in actually deploying the cluster munitions—an example is that of a pilot actually dropping cluster munitions—nor should they be at the top of the chain of command with ultimate responsibility for exclusive control over the choice of using cluster munitions.

He went on to recognise that there are a variety of other roles in which ADF personnel may find themselves supporting joint operations and recognising the reality that in conflict zones, where other countries are not party to the treaty, they may find themselves providing assistance. It should not be inadvertent assistance, which the committee has highlighted, and we should know what Australian personnel are getting themselves into. We should protect them at all times by having clarity in the operational instructions given to them but we need to deal in the reality of the situation. Nonetheless, the committee and I strongly welcome the recommendation to take binding treaty action. We hope that this is another step in this treaty coming into force, that it will quickly have the required number of countries on board and indeed that, over time, all of the military powers of the world will, as they have progressively—thankfully—been doing with land mines, accept the importance of banning cluster munitions and deliver a safer world for those who unfortunately find themselves in the conflict zones where these types of weapons are used.

Question agreed to.