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Monday, 22 November 2010
Page: 1769


Senator FARRELL (Parliamentary Secretary for Sustainability and Urban Water) (4:55 PM) —I table a revised explanatory memorandum relating to the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Bill 2010. I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010

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, consistently with Australia’s long standing 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.

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.

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 counter-measures.

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 not 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 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 a limited extent - from the criminal offences created in this Bill.

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

This 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 Force 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 post conflict economic and social development.

In recognition of this, the Convention seeks not only to ban the use of cluster munitions, but it also requires States Parties to destroy stockpiles of cluster munitions, assist victims of cluster munitions and clear cluster munition 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 munition remnants in countries that have been affected by the use of cluster munitions.

Under the Strategy, Australia has pledged $100 million from 2010 to 2014 to reduce the threat and socio-economic 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 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.


Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Budget and Other Measures) Bill 2010

This Bill contains one 2010 Budget measure and several other measures. 

The Budget measure in the Bill will enhance the existing arrangements for Special Disability Trusts as part of the Government’s ongoing commitment to people with disability, their families and carers.

Special Disability Trusts were established in 2006 to help families and carers provide for the care and accommodation needs of a family member with a severe disability.  Special Disability Trusts differ from other forms of trust in that they have generous concessions from social security means testing arrangements for the beneficiary and eligible contributors.  This means that a person with a disability who is a beneficiary of a Special Disability Trust will not lose any of their disability support pension unless their assets exceed a generous assets test threshold.

In 2008, the Senate Standing Committee on Community Affairs found that take-up of these arrangements has been lower than expected.  The arrangements developed under the former Coalition Government were not working for people with disability, their families and carers.

In its response to the Committee’s report, the Government committed to a number of changes to Special Disability Trusts in the 2010-11 Budget to provide more flexibility for trust beneficiaries and to make Special Disability Trusts more attractive for families.

Under the current rules, if a person with a disability works for as little as an hour for the ‘relevant minimum wage’ or above, they are not eligible to be a beneficiary of a Special Disability Trust.  This Bill addresses this disincentive for people with disabilities to participate in work and the community.  It will allow eligible people with a disability to work up to seven hours a week at or above the relevant minimum wage, or to work under the supported wage system, and still qualify as a beneficiary of a Special Disability Trust.

Other amendments will significantly expand what trust funds can be used for, such as all medical expenses (including membership costs for private health funds) and maintenance expenses of Special Disability Trust assets. 

Amendments will also allow the trust to make up to $10,000 per year of discretionary spending for the beneficiary’s wellbeing, recreation and independence.  This change addresses the previous restrictive rules that trust funds could only be used for specified care and accommodation expenses, and will increase the social participation of beneficiaries.

The changes contained in this Bill will build on the taxation concessions the Government announced in the 2009-10 Budget in response to the Senate Committee’s report.

The Bill will also include amendments to close a loophole in qualification for disability support pension.  This loophole has allowed continued payment of disability support pension to people who live permanently overseas but return to Australia every 13 weeks in order to retain their pension.

From 1 January 2011, only disability support pensioners permanently residing in Australia will continue to receive the pension, except under limited and specific circumstances.  This change will bring disability support pension into line with other workforce age payments.

Closing this loophole will keep the disability support pension payment system fair and effective.  Any pensioners who have a need to travel overseas for short periods will still have access to the 13-week temporary absence rule.

Another measure in the Bill will clarify the eligibility for family tax benefit Part A of some families with FTB children who are studying overseas full-time.  If the courses these young people are undertaking do not link to an Australian qualification, it is not clear under the current legislation that they should attract family tax benefit Part A.

This Bill puts that policy intention beyond doubt, and ensures that young people studying overseas full-time are treated for family tax benefit purposes in the same way as full-time students undertaking Australian study.

Lastly, the Bill makes some minor amendments, including to address two minor anomalies arising from the pension reform legislation enacted in 2009.  Both amendments are to make sure people get the benefit of the new provisions that they were intended to have.


The ACTING DEPUTY PRESIDENT (Senator Hutchins)—In accordance with standing order 111, further consideration of these bills is now adjourned till the first day of the next period of sittings, which commences in 2011.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.