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…"