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Open letter to the Defence Minister, Foreign Affairs Minister and Attorney General

By Greg Barns and 46 others - posted Friday, 8 July 2011

Dear Minister Smith, Minister Rudd and Attorney General McClelland

In 2008 you, Minister Smith, signed the Convention on Cluster Munitions for Australia. This important international treaty bans cluster bombs, an indiscriminate class of weapon known to cause significant and long-lasting civilian harm, particularly to children. We wholeheartedly endorse the treaty's aims and congratulate the government on having signed it.

In order to ratify the treaty, Australia must pass legislation to implement the treaty's obligations in our domestic law. However, the proposed legislation, shortly to be debated in the Senate, contains serious flaws which undermine the whole purpose of the treaty.


The treaty contains a clause which allows state parties to continue cooperating in military alliance with countries not party to the treaty. This clause protects troops of state parties if they are inadvertently involved in cluster bomb use during these joint operations. This is necessary and sensible, particularly for Australia, given that our major ally the USA has no intention of joining the ban on cluster bombs.

The problem with the government's proposed legislation is that it goes much further than is necessary to maintain our military alliances. The legislation allows Australian troops to directly and actively assist in the use of cluster bombs. It also explicitly allows non-state parties to stockpile cluster bombs on Australian soil and permits them to transit cluster bombs through Australian ports and airspace. No other ratifying country has provided such a blanket exemption.

These exemptions are unnecessary at best and add little or nothing to our national security. At worst, they run directly counter to the treaty's intent by setting a precedent which explicitly facilitates the ongoing use of cluster bombs.

In a submission to the government, the International Committee of the Red Cross said the abovementioned problems with the proposed legislation "would have the unfortunate consequences of effectively permitting activities that could undermine the objectives of the Convention and contribute to the continued use of cluster munitions rather than further their elimination." We agree.

The goal of the Convention on Cluster Munitions is clear. It aims to eradicate cluster bombs and put an end to the suffering they cause for all time. We therefore seek your support in ensuring that Parliament amends the draft legislation to reflect and fulfil that aim.

Yours sincerely


Greg Barns

Barrister, and National President, Australian Lawyers Alliance

Paul Barratt AO

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About the Author

Greg Barns

Barrister, and National President, Australian Lawyers Alliance

Paul Barratt AO

Former Secretary, Department of Defence, and former Deputy Secretary, Department of Foreign Affairs and Trade

Fr Frank Brennan SJ AO

Professor of Law, Public Policy Institute, Australian Catholic University

Julian Burnside AO QC


Professor Hilary Charlesworth

ARC Laureate Fellow and Director, Centre for International Governance and Justice, ANU

Sr Denise Coghlan RSM AM

Head of the Jesuit Refugee Service, Cambodia

Tim Costello AO

Chief Executive Officer, World Vision Australia

Mary Crock

Professor of Public Law, The University of Sydney

Bonnie Docherty

Harvard Law School International Human Rights Clinic, and Senior Researcher, Human Rights Watch

The Hon John Dowd AO QC

President, ActionAid Australia

Alistair Gee

Executive Director, Act for Peace, NCCA

Dr Norman Gillespie

Chief Executive Officer, UNICEF Australia

General Peter Gration

Former Chief of Defence Force

Jack de Groot

Chief Executive Officer, Caritas Australia

Brigadier Adrian d’Hagé, AM, MC


Michele Harris OAM

Andrew Hewett

Executive Director, Oxfam Australia

Dr Andrew Jacubowicz

Professor of Sociology, University of Technology Sydney

John Jeffries

National Director, CBM Australia

Stephen Keim SC

Barrister-at-Law, and President, Australian Lawyers for Human Rights

Professor John Langmore

School of Social and Political Sciences, University of Melbourne

Archie Law

Chief Executive Officer, ActionAid Australia

Carmen Lawrence

Winthrop Professor, University of Western Australia

Philip Lynch

Executive Director, Human Rights Law Centre (Australia)

Dr Francis Macnab, AM

Executive Minister, St Michael’s Uniting Church, Melbourne

Claire Mallinson

National Director, Amnesty International Australia

Professor William Maley, AM FASSA

Professor Jane McAdam

Director of Research, Faculty of Law, University of NSW

Professor Emeritus Ron McCallum AO

Senior Australian of the Year 2011

Dr Jeff McMullen AM

Writer, Foreign Correspondent, Filmmaker and CEO (Honorary) Ian Thorpe’s Fountain for Youth

Graeme Mundine

Executive Officer, Aboriginal Catholic Ministry

The Hon Alastair Nicholson AO RFD QC

Former Chief Justice of the Family Court; former Judge Advocate General of the Australian Defence Force

Marc Purcell

Executive Director, Australian Council for International Development

Professor Stuart Rees AM

Director, Sydney Peace Foundation

Professor Neal Robinson

Deputy Director, Centre for Arab & Islamic Studies, Australian National University

The Hon Susan Ryan AO

Chair, Australian Human Rights Group

Associate Professor Ben Saul

Faculty of Law, University of Sydney

Professor Gerry Simpson

Director, Asia Pacific Centre for Military Law, University of Melbourne, and Visiting Professor, London School of Economics

Nigel Spence

Chief Executive Officer, ChildFund Australia

Dr Timothy Stephens

Director, Sydney Centre for International Law

Lorel Thomas

National Coordinator, Australian Network to Ban Landmines and Cluster Munitions

Isabel Thomas Dobson

Moderator, Uniting Church in Australia, Synod of Victoria and Tasmania

Christine Walton

Executive Officer, Australian Disability and Development Consortium (ADDC)

Professor Emeritus John Warhurst

School of Politics and International Relations, Australian National University

Dr Bill Williams

President, Medical Association for Prevention of War

Jody Williams

1997 Nobel Peace Prize Laureate, and Campaign Ambassador, International Campaign to Ban Landmines

Matthew Zagor

Senior Lecturer, ANU Law School and board member, Australian Lawyers for Human Rights

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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