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Monday, 20 August 2012
Page: 5864

Senator LUDLAM (Western Australia) (21:42): I thank the minister for that response. I think we have got the debate back on the rails. Minister, I draw your attention to the submission by the ICRC to the Senate Foreign Affairs, Defence and Trade Legislation Committee regarding the amendments that we are debating tonight. At the bottom of page 1 of the ICRC submission—I am happy to table this document as well if that would assist—they say the following:

While Article 21 permits military cooperation and operations between States Parties and States not party, it is equally important to note that the article also seeks to further the goals of the Convention. Paragraphs 1 and 2 of Article 21 require each State Party to promote the norms of the Convention, encourage States not party to adhere to the instrument and to use its best efforts to discourage such States from using cluster munitions.

I will pause there at the end of that paragraph because it is my understanding, based on information that you gave to us before, that to date, as at this stage, the Australian government has not sought to do that. It has notified the United States of our intentions, but at no time that the minister was able to cite have we been promoting the norms or encouraging—I guess the operative word here is 'encouraging'—states not party to adhere to the instrument and using our best efforts et cetera. We do not appear to have done that. Then, and perhaps even more troubling, the ICRC go on to say the following:

In the view of the ICRC these two aspects of Article 21 (furthering the goals of the treaty and permitting continued military cooperation and operations with States not party) must be read together and taken into account when developing national implementing legislation. Excessively broad exceptions or defences created under paragraphs 3 and 4 of Article 21—

which I believe are the ones the minister has been citing this evening—

would conflict with and undermine the purpose of paragraphs 1 and 2.

I guess it all depends on the emphasis that you place on the different parts of the convention. The submission goes on:

The ICRC believes that any exceptions or defences to the Convention's prohibitions based on paragraphs 3 and 4 of Article 21, must be construed narrowly so as not to contravene the Convention or undermine the objective of Article 21 and the objectives of the Convention itself.

Minister, I have quoted from their submissions at some length partly because of their standing in the international community regarding matters relating to the laws of war. They put up a strong submission that said they had not had the opportunity to see or comment on the bill before it entered parliament. They made some comments that we can address later in the debate around stockpiling and transiting through Australian territory. But their submission on interoperability is that these clauses, as drafted, read those sections 3 and 4 much too widely and that they are in fact undermining the basic premise of the convention itself. As you have just acknowledged, the ADF's view is correct that Australia can plan operations in which cluster weapons are used with a state that is not a party to this convention and can participate in military operations in which cluster munitions are used.

Minister, surely this is reading the concept of interoperability so broadly as to undermine the basic objectives of the treaty. I apologise for dwelling on this point, but it is the fundamental hinge on which the dissent expressed by so many organisations including the Greens and Senator Xenophon rests. We can plan operations in which they will be deployed; we can conduct operations in which cluster weapons will be used: why are we bothering to sign the treaty? Why are we here?