Thank you Senator and Committee members.
I welcome the opportunity to speak to you today on behalf of Human Rights Watch and Harvard Law School's International Human Rights Clinic.
We agree with the government on multiple points: the Convention on Cluster Munitions allows participation in joint military operations with states not party, implementation legislation should not punish inadvertent assistance, and legislation should be consistent with the convention's object and purpose. The current bill, however, goes beyond what Australia needs to participate in joint operations and to protect its troops from liability. It is also inconsistent with the convention's object and purpose, to eliminate cluster munitions and the harm they cause.
The government's submission lays out several scenarios it believes Article 21 and thus Section 72.41 allow, and each of them flouts the prohibition on assistance. According to the government, the ADF could help plan and provide logistical support for the use of cluster munitions. Such actions facilitate the use rather than the elimination of these weapons. Section 72.41 should be amended to clarify that joint military operations are permitted but the absolute prohibition on assistance applies even during such operations.
Section 72.42 condones actions the convention implicitly prohibits. It exempts from prosecution foreign military personnel who transit cluster munitions through and stockpile the weapons on Australian territory. The section runs counter to the convention's purpose and Article 9. At the same time, it does not advance the goals of the Australian government: it protects foreign troops, not Australian ones, from liability, and its exemptions are unnecessary for participation in joint operations. We urge Australia to delete the section and replace it with explicit prohibitions on transit and foreign stockpiling.
The government also notes that the bill prohibits only intentional acts. There is a large gap, however, between the mental states required for an intentional act and excusable accident. We encourage adoption of a recklessness standard, which holds accountable individuals who knew or should have known they were committing a prohibited act. This approach protects unwitting actors while requiring increased care by those with reason to know they may be assisting with prohibited acts.
We can comment on other issues during the question and answer session.