Cluster Munitions Implementation Legislation

January 2, 2011

In November 2010, Parliament tabled the “Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010” to implement Australia’s obligations under the Convention on Cluster Munitions.

While ALHR welcomed the tabling it remained concerned that the legislation in its present form would bring Australia in potential breach of its obligations, and undermine the effectiveness of the Convention.


In this submission to the Senate Foreign Affairs, Defence and Trade Committee, ALHR recommended amendments to better reflect the terms of the Convention, to bring the legislation into line with the correct interpretation of Australia?s obligations under the Convention, and to act as a model for other nations to emulate

Specifically, ALHR called on the Committee to recommend the strengthening of the prohibition clause by inserting the words ?never in any circumstances? as appears in article 1 of the Convention, the insertion of an objects section to assist in interpretation of the statute, the replacement of the intent requirement in the offence provision with a recklessness standard, and a clarification of the ?interoperability? provisions (cl 72.41 and 72.42) to protect the integrity of the treaty by maintaining the prohibition on assistance. Moreover, we called on the Committee to send a strong recommendation to the government to remove the provision allowing for the transfer and stockpiling of these heinous weapons on Australian sovereign territory by non-state parties.

ALHR also endorsed the broader submission of Human Rights Watch


ALHR produced a supplementary submission, which called on the Committee to recommend amendments that would:
– apply ‘recklessness’ as the standard for criminal liability in relation to offences
– prohibit assistance to non-State Parties during joint military exercises
– remove provisions which ahve the effect of legalising unconditional foreign stockpiling on Australian territory by non-State Parties
– implement the Convention’s requirement that State Parties retain only the ‘minimum number absolutely necessary’ of cluster munitions
– resolve the ambiguity in the Bill over whether indirect investment in cluster munitions constituted an offence
ALHR called on the Committee to consider implementing stand-alone legislation to realise Australia’s Convention obligations, rather than merely amending the Criminal Code Act 1995.

The supplementary submission also reiterated ALHR’s original recomendations regarding inclusion of an objects clause and the words ‘never in any circumstances’ to align the Bill with Australia’s treaty obligations.