Decoding government-speak on the cluster bomb bill

The federal government has made the same few statements for almost two years in responding to criticism of its Cluster Munitions Prohibition Bill. Some of its claims are misleading statements of opinion presented as facts, while one oft-repeated line has been shown by the US embassy cables released by Wikileaks to be false.

The Bill was introduced into parliament in late 2010 to enable Australia to ratify the Convention on Cluster Munitions, the most significant international disarmament treaty negotiated since the landmine ban treaty in 1997. Both treaties are important because they were negotiated outside the United Nations yet have been effective in stigmatising the use of these inhumane weapons, which cause long-lasting unacceptable harm to civilian populations. (Read more about cluster bombs and why they have been banned.)

There are two serious problems with the draft legislation. It's supposedly giving effect to a Convention which seeks to eradicate cluster bombs, yet it allows Australian troops to actively assist countries that haven't signed up to the Convention (in practice, the USA) with the use of cluster bombs. It also has explicit wording enabling the USA to stockpile its cluster bombs on Australian soil and to transit them through our ports and airspace.

The Bill passed the lower house with little scrutiny and entered the Senate in November 2010. Due to the Bill's inconsistencies with recommendations made by the Joint Standing Committee on Treaties, it was referred to the Senate Foreign Affairs, Defence and Trade committee for review. The committee called for submissions, conducted a public hearing, and produced a report which noted many suggestions for improvement made by civil society but nevertheless recommended the Bill be passed without amendment. One committee member, WA Greens Senator Scott Ludlam, tabled a dissenting report.

The Bill is scheduled for debate in the Senate this week. If passed, it will become law.

Line 1: "This legislation faithfully implements the Convention on Cluster Munitions."

Three ministers and their departments have been involved with this legislation: Attorney-General, Defence, and Foreign Affairs, and they have trotted out this line repeatedly. It is an opinion with which many respected organisations and individual experts disagree.

International Committee of the Red Cross: "…section 72.41 of the Australian Bill raises substantial concerns… which would contravene the Convention and undermine its goals..." AND "allowing the foreign stockpiling of cluster munitions on Australian soil… would undermine the objectives of the Convention…"

Australian Red Cross: "The Bill …would permit the use of cluster munitions in a manner that weakens the aims and objectives of the Convention…" AND "[s72.41] could in fact allow the intentional violation of the Convention" AND "[s72.42] allows acts generally prohibited in the Convention to occur on the territory of a State party."

Human Rights Watch and Harvard Law School IHRC: "the Bill creates a defense for many acts during such operations that on their face violate the convention" AND "Section 72.42(1)… should be removed because it runs counter to Articles 1 and 9 of the convention."

Rt Hon Malcolm Fraser, former Prime Minister: "the government has drafted legislation scattered with alarming loopholes that, to my mind, directly undermine the spirit and intention of the convention."

General Peter Gration, former Chief of the Defence Force: "the wording used in our legislation goes well beyond [that required for interoperability with US] and in fact doesn't follow a couple of the key things that the convention is about…"

Paul Barratt, former Secretary of Defence Department: "Legislation in these terms is clearly at odds with a convention whose central purpose is to prevent the use of cluster munitions…".

Forty-seven eminent Australians with relevant expertise have also disagreed with the government.

Line 2: "States party to the Convention may continue military cooperation and engagement with countries that are not party to the Convention. The ability to maintain interoperability is central to the maintenance of Australia's national security."

The Convention (in article 21) protects the troops of countries like Australia from being prosecuted should they inadvertently become involved in cluster bomb use while on joint operations with countries that have not signed up to the Convention. However, it goes against the entire purpose of the Convention to argue, as the government does, that article 21 means Australian forces can knowingly help the US plan cluster bomb attacks and assist in the use of the very weapons we have supposedly committed ourselves to banning.

Raising "national security" in this context is disingenuous. It would be awful if Australian national security did depend on us assisting in the use of cluster bombs and permitting them to be stockpiled on our soil but, as the above experts have made clear, this is not the case.

As Frank Brennan highlights, New Zealand has done a better job with its legislation, which allows participation in joint military operations without undermining the Convention's absolute prohibition on assistance with the use of cluster bombs.

Line 3: "Australia has been a strong advocate of an international ban on cluster munitions. Australia was an active player in the negotiations and one of the first countries to sign the Convention."

Australia was not an early supporter of a ban on cluster munitions and at a UN conference in November 2006 it didn't vote in favour of a proposal for an instrument "that addresses the humanitarian concerns posed by cluster munitions." The nations that did support this proposal later met outside the UN, hosted by Norway, to discuss what eventually became the Convention on Cluster Munitions. Australia did not attend the initial meeting of this group.

Nor did Australia act nobly once it did get involved. Lyn Allison, former leader of the Australian Democrats, and instigator of a previous Bill attempting to achieve an Australian ban on cluster munitions, said in the Canberra Times on 27 May 2008, "It would almost be better if we weren't involved at all. Our input has been shameful, placing military concerns ahead of humanitarian needs. Instead of listening to the legitimate pleas of medical and de-mining groups, the Government has kowtowed to army honchos."

The US embassy cables released by Wikileaks amply illustrate that Australia did become "an active player in the negotiations," but not in the way the government implies. Australia worked to water down key aspects of the treaty as part of a "like-minded" group aligned with the USA (which has stated it sees cluster munitions as a legitimate weapon and has no intention of signing the Convention). Shamefully, Australia lobbied Asian nations, including Vietnam, affected by cluster bombs, to push for the weaker wording and labelled countries and NGOs arguing for a total ban as "hardline." The Age reported that Nobel Peace laureate Jody Williams, who led the campaign to ban landmines, accused Australia of being part of a "bad guys' cabal."

Australia, creditably, worked to ensure provisions on victim assistance and land clearance were included in the treaty. Although, given the line Australia pushed to enable it to operate jointly with the US even as the US was using cluster bombs, future victims might have been better served had the Australian delegation spent more time pushing for wording that ensured cluster bombs wouldn't be dropped in the first place.

To clarify the treaty signing spin: Australia was one of ninety-four nations that signed the Convention the day it opened for signature.

Line 4: "The Australian Government will not approve the stockpiling of cluster munitions in Australia by foreign governments."

After sustained criticism on the hosting of foreign stockpiles, the Defence Minister announced last November that the government will issue a policy statement at the time of Australia's ratification of the Convention stating that the government will not approve the stockpiling of cluster munitions in Australia. This is better than not having such a statement. However, the government has not amended the section of the legislation which explicitly permits countries not party to the Convention to stockpile cluster bombs here. Section 72.42 says:

"Section 72.38 [lists the criminal offences under the Bill] does not apply to the stockpiling, retention or transfer of a cluster munition that is done by a member of the armed forces of a foreign country that is not a party to the Convention on Cluster Munitions…"

Thus the government has created a confusing situation where it says it won't approve foreign stockpiles yet has drafted legislation which plainly allows such stockpiling to occur. In an interview with ABC Radio last November, Stephen Smith refused to explain the contradiction created by his statement, relying on above 'line 1' to deflect the question.

Given the serious flaws in this legislation, and the government's earlier actions behind the scenes to weaken the global ban on these weapons, it's hard to fathom how the government reconciles its actions with its claims that Australia is a "strong supporter of" and "committed to" the Convention. Yet no doubt we'll hear these exact same lines used yet again when the Senate debate starts.