Australian Legislation

Australian Draft Bill on cluster bombs

Australia is about to pass legislation in order to ratify the Convention on Cluster Munitions, and CMC Australia (CMCA) has several concerns that the proposed text does not reflect the spirit of the Convention on Cluster Munitions.

Main concerns with the Australian draft legislation

The overriding concern is that the proposed legislation demonstrates a weak interpretation of the Convention. As such it is not consistent with the spirit of the Convention which strives “to unequivocally, and for all time, end the suffering caused by cluster munitions.”

    * Interoperability because the proposed legislation may allow Australian forces to assist with activities that are prohibited by the Convention.  The spirit of article 21 in the Convention on Cluster Muntions was to protect troops of signatory countries from prosecution for actions by other nations not party to the conventions. It was never intended to allow either limited or unlimited collaboration with non-signatory parties.
    * Jurisdiction because the proposed legislation allows foreign forces to use Australian territory to stockpile and transit cluster bombs. This is clearly facilitating the use of cluster bombs.
    * Retention because the proposed legislation allows Australia to retain cluster bombs without specifying any reporting obligations and setting a minimum number.
    * Positive Obligations because the proposed legislation does not mention any of the positive obligations to assist in clearance, victim assistance and to universalise the treaty.
    * The proposed legislation does not prohibit indirect investments in cluster bombs.

Australian and the Convention on Cluster Munitions

Australia participated in all International meetings leading up to the Oslo Conference except for the first meeting in Oslo in 2007. On December 3rd Australia signed the convention in Oslo. On March 12 2009 the National Interest Analysis was tabled with following hearings in June. On 18 August JSCOT issued the Report 103 supporting ratification. On 27 October 2010 the Criminal Code Amendment Bill was introduced in the House of Representatives, and on 22 November the Bill was introduced in the Senate. The Selection of Bills Committee found the Bill to be ‘inconsistent with recommendations made by 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. January 21 was the deadline for submissions from civil society and others. Senate Foreign Affairs, Defence and Trade Committee is currently working on the evidence submitted. The Senate Committee will conduct a Public Hearing on 3 March, where a number of witnesses will be called in. The Committee is due to report on the bill to the Senate on 24 of March. The legislation is expected to be discussed shortly after[1]. Once the bill is passed, Australia becomes a full State Party to the Convention on Cluster Munitions.

The voting members of the Committee are: Senator Mark Bishop, Chair (Labor, WA), Senator Russell Trood, Deputy Chair (Liberal, QLD), Senators Michael Forshaw (Labor, NSW), Steve Hutchins (Labor, NSW), Helen Kroger (Liberal, VIC), Scott Ludlam (Greens, WA). After being debated in the Senate the bill will be voted on by parliament.

Fix the Bill campaign

Members of the CMC Australia as well as overseas actors have made more than 15 submissions to the Senate Committee of Foreign Affairs, Defence and Trade, enumerating our concerns with the proposed legislation. As an adjunct to this we believe it is essential to educate and engage key Senate members, MPs, media and other key players. Therefore we are conducting lobby meetings with voting members of the Senate Committee as well as other key Parliamentarians from the House of Representatives so they can better understand the issue and areas of concerns.  We hope to ensure that the voting members of the committee will be able to ask all relevant and important questions to the witnesses during the public hearing on 3 March. Putting the cluster bomb bill on the agenda is vital, and CMC Australia is therefore currently also working on getting broad media coverage on the issue. Later CMC Australia will organise a parliamentary briefing in Canberra between 22 March and June, depending on when the Senate will debate the cluster bomb bill. It is still unclear when this will happen.

Goals

  • To ban cluster bombs in Australia, its region and the world.
  • To promote strong Australian legislation and implementation that reflects the spirit and intent of the Convention on Cluster Munitions.
  • To educate and engage Senate members, MPs, Political leaders, media and other key stakeholders about the convention on cluster munitions.

Short term objectives

  1. Organise a Parliamentary Briefing for senators, MPs and political leaders
  2. Organise a reception in conjunction with the Parliamentary Briefing .
  3. Organise a cluster munitions photo exhibition for the briefing at Parliament House.
  4. Achieve print media coverage in each capital city, national TV and radio coverage, a variety of online opinions.
  5. Increase the membership and commitment from civil society in Australia.
  6. Organise a CMCA working group with CMCA members that will conduct weekly meetings until Fix the Bill actions are completed.
  7. Keep the wider CMCA group engaged and updated on the process.

Key concerns with Australia’s proposed ratification legislation Indepth

The Cluster Munition Coalition–Australia (CMCA) believes the proposed text reflects neither the intention nor spirit of the convention. Our main concerns are:

Interoperability. The proposed Australian legislation (Section 72.41) opens the way for Australian forces to assist in activities prohibited by the treaty. Article 21 of the convention was included as a way of making sure forces of States Parties working with allies not party to the treaty can do so without risk of a criminal suit if those allies use cluster munitions. It should not be read to allow complicity in their use, or in assistance or planning for their use. Article 21 is not a get out of jail free card.

Article 21(3) should be understood as a clarification of, and not (as the Explanatory Memorandum to the Bill suggests) a qualification of or exception to Article 1’s prohibitions. In other words, Article 21(3) clarifies that, in the particular context of joint military operations, military personnel may participate in such operations without violating the convention; it does not, however, give them license to violate the prohibitions of convention.  The Australian legislation should be amended to reflect this understanding, the only one consistent with the object and purpose of the convention.

In an annex to its implementing legislation, Norway explained that “the exemption for military cooperation does not authorize states parties to engage in activities prohibited by the convention. (Excerpt from proposition No. 4 (2008–2009) to the Storting, p 23.)

Jurisdiction, covering transit and foreign stockpiles. The proposed Australian legislation (Section 72.42) explicitly allows foreign forces to use Australian territory to stockpile and transit cluster munitions. Permitting foreign stockpiling and transit unlawfully assists with engagement in activities prohibited to a state party (i.e., stockpiling and transfer). The draft Australian legislation is also the only domestic legislation so far to specifically include a provision allowing transit of cluster munitions. It does not reflect the letter or the spirit of the treaty.

Several state parties and signatories have already clarified that they believe the convention does not permit transit. Austria and Germany ban transit in their implementation legislation. (http://www.hrw.org/en/news/2010/11/06/promoting-prohibitions#_ftn29)
In a 2008 statement, the United Kingdom announced that although it did not consider itself legally obligated, in keeping with the convention’s spirit, it would seek the removal of US stockpiles of cluster munitions from UK territory within the eight-year deadline for stockpile destruction. (http://www.hrw.org/en/news/2010/11/06/promoting-prohibitions#_ftn35)

Retention. The proposed Australian legislation (Section 72.39) allows Australia to retain cluster munitions for training and research. The Australian Military and international NGOs tasked with the clearance of cluster munitions do not use live munitions for training. Any munitions used in training are disarmed from their detonating mechanism thus rendering them safe for training. The standard operating procedure for dealing with cluster munitions is to destroy them in place and not move or remove them.

The proposed legislation does not include adequate safeguards if retention is allowed.  It does not specify a maximum number to be retained or any reporting obligations as required in article 3 paragraphs 6 and 8 in the convention.

Most of the stockpilers that have so far joined the convention and expressed a view on this issue have chosen not to retain any cluster munitions. These states include among others Afghanistan, Austria, and Norway. (Cluster Munition Monitor 2010, p.19.)

Investment The proposed legislation fails to include any prohibition on the investment of both public and private funds in companies that manufacture cluster bombs or their principal component parts. The permitting of Australian funds to go to such companies is clearly assisting in their manufacture and should be explicitly prohibited in our legislation.

Several states have banned investment in their implementing legislation including Belgium, Ireland, Luxembourg and New Zealand. Belgium prohibits financial institutions, whether public or private, from investing in companies producing cluster munitions. Ireland prohibits the investment of public money.  Luxembourg and New Zealand criminalize investment by public or private entities in companies that produce cluster munitions, and Ireland bans investment of public money in such companies.  There have been legislative initiatives to ban such investment in Germany, the Netherlands and in Switzerland

Positive obligations. The nature of the draft legislation as an amendment to the Criminal Code allows no mention of our commitment to the positive obligations mandated by the Convention. Article 21(1) and (2) require that states promote universalisation of the Convention with states not party, "make best efforts" to discourage prohibited acts such as cluster munition use, and notify non-state party allies of its obligations under the Convention.

Other obligations include to:

                      # assist in clearance of contaminated areas,
                      # assist victims,
                      # assist other states parties to meet their obligations under the convention,
                      # and work to universalise the convention

The CMCA believes the proposed legislation is a weak interpretation of the convention, and thus fails to uphold and abide by the spirit and intent of the treaty. The stated aim of the convention is “to unequivocally, and for all time, end the suffering caused by cluster munitions.” To achieve this humanitarian aim it is not enough to restrict or limit the use of cluster munitions, we must aim to eradicate them and legislate accordingly in strong and unequivocal terms.