CRIMINAL CODE AMENDMENT (CLUSTER MUNITIONS PROHIBITION) BILL 2010

i Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 No. , 2010

Contents

1 Short

title

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2 Commencement

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3 Schedule(s)

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Schedule 1--Criminal Code Act 1995

Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 No. , 2010 1

A Bill for an Act to criminalise some acts involving

certain munitions, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Criminal Code Amendment (Cluster

Munitions Prohibition) Act 2010.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 No. , 2010

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

The day the Convention on Cluster

Munitions, done at Dublin on 30 May 2008,

comes into force for Australia.

The Minister must announce by notice in the

Gazette the day the Convention comes into

force for Australia.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in Column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Criminal Code Act 1995 Schedule 1

Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 No. , 2010 3

Schedule 1--Criminal Code Act 1995

1 At the end of Division 72 of the Criminal Code

Add:

Subdivision C--Cluster munitions and explosive bomblets

72.37 Purpose

The purpose of this Subdivision is to create offences relating to

cluster munitions and explosive bomblets and give effect to the

Convention on Cluster Munitions.

72.38 Offences relating to cluster munitions

Doing acts with a cluster munition

(1) A person commits an offence if the person does any of the

following with a cluster munition:

(a)

uses

it;

(b) develops, produces or otherwise acquires it;

(d) transfers it to anyone.

Penalty: Imprisonment for 10 years.

Promoting acts with a cluster munition

(2) A person (the first person) commits an offence if:

(a) the first person assists, encourages or induces another person

to do any of the following acts with a cluster munition:

(i)

use

it;

(ii) develop, produce or otherwise acquire it;

(iii) stockpile or retain it;

(iv) transfer it to anyone; and

(b) the other person does the act; and

Penalty: Imprisonment for 10 years.

Schedule 1 Criminal Code Act 1995

4 Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 No. , 2010

Geographical jurisdiction

(3) Section 15.2 (extended geographical jurisdiction--category B)

applies to an offence against this section.

Relationship with other provisions

(4) Division 11 does not apply in relation to an offence against

subsection (2).

Note 1:

Later sections of this Subdivision set out defences.

Note 2:

This section relates to Articles 1 and 9 of the Convention on Cluster

Munitions.

72.39 Defence--acquisition or retention authorised by Defence

Minister

(1) Section 72.38 does not apply to the acquisition or retention of a

cluster munition authorised under subsection (2).

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (1): see subsection 13.3(3).

(2) The Minister administering the Explosives Act 1961 may authorise,

in writing, specified members of the Australian Defence Force or

other specified Commonwealth public officials to acquire or retain

specified cluster munitions for one or more of the following

purposes:

(a) the development of, and training in, cluster munition and

explosive submunition detection, clearance or destruction

techniques;

(b) the development of cluster munition counter-measures;

Note 1:

For specification by class see the Acts Interpretation Act 1901.

Note 2:

This section relates to paragraphs 6 and 7 of Article 3 of the

Convention on Cluster Munitions.

(3) The regulations may prescribe requirements relating to

authorisations under subsection (2).

(4) An authorisation made under subsection (2) is not a legislative

instrument.

Criminal Code Act 1995 Schedule 1

Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 No. , 2010 5

(5) The Minister described in subsection (2) may delegate his or her

power under that subsection to:

(a) the Secretary of the Department administered by that

Minister; or

(b) an SES employee in that Department.

Note:

For the definition of SES employee see the Acts Interpretation Act

1901.

72.40 Defence--transfer for destruction etc.

Transfer to foreign party to Convention on Cluster Munitions

(1) Section 72.38 does not apply to the transfer of a cluster munition to

a party to the Convention on Cluster Munitions for one or more of

the following purposes:

(a) the development of, and training in, cluster munition and

explosive submunition detection, clearance or destruction

techniques;

(b) the development of cluster munition counter-measures;

Note 1:

A defendant bears an evidential burden in relation to the matter in

subsection (1): see subsection 13.3(3).

Note 2:

This subsection relates to paragraph 7 of Article 3 of the Convention

on Cluster Munitions.

Intended transfer to Australian Defence Force

(2) Subsections (3) and (4) have effect if:

(a) a person has a cluster munition; and

(b) the person gives notice to a police officer or member of the

Australian Defence Force that the person wishes to transfer

the munition to a member of the Australian Defence Force or

other Commonwealth public official; and

person has the cluster munition after the commencement of

this subsection.

(3) Subsection 72.38(1) does not apply to the person stockpiling or

retaining the cluster munition at any time before the person

transfers it to a member of the Australian Defence Force or other

Commonwealth public official.

Schedule 1 Criminal Code Act 1995

6 Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 No. , 2010

(4) Subsection 72.38(1) does not apply to the person transferring the

cluster munition to a member of the Australian Defence Force or

other Commonwealth public official.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (2) and whichever of subsections (3) and (4) is relevant:

see subsection 13.3(3).

72.41 Defence--acts by Australians in military cooperation with

countries not party to Convention on Cluster Munitions

A person who is an Australian citizen, is a member of the

Australian Defence Force or is performing services under a

Commonwealth contract does not commit an offence against

section 72.38 by doing an act if:

(a) the act is done in the course of military cooperation or

operations with a foreign country that is not a party to the

Convention on Cluster Munitions; and

(b) the act is not connected with the Commonwealth:

(i) using a cluster munition; or

(ii) developing, producing or otherwise acquiring a cluster

munition; or

(iii) stockpiling or retaining a cluster munition; or

(iv) transferring a cluster munition; and

cluster munition in a case where the choice of munitions used

is within the Commonwealth's exclusive control.

Note 1:

A defendant bears an evidential burden in relation to the matter in this

section: see subsection 13.3(3).

Note 2:

The expression offence against section 72.38 is given an extended

meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and

subsection 11.6(2).

Note 3:

This section relates to paragraphs 3 and 4 of Article 21 of the

Convention on Cluster Munitions.

72.42 Defence--acts by military personnel of countries not party to

Convention on Cluster Munitions

(1) Section 72.38 does not apply to the stockpiling, retention or

transfer of a cluster munition that:

(a) is done by:

Criminal Code Act 1995 Schedule 1

Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 No. , 2010 7

(i) a member of the armed forces of a foreign country that

is not a party to the Convention on Cluster Munitions;

(ii) a person who is connected with such forces as described

in subsection (2) and is neither an Australian citizen nor

a resident of Australia; and

(b) is done in connection with the use by those forces of any of

the following in Australia in the course of military

cooperation or operations with the Australian Defence Force:

(i)

base;

(ii) an aircraft of any part of those forces or an aircraft being

commanded or piloted by a member of those forces in

the course of his or her duties as such a member;

(iii) a ship of any part of those forces or a ship being

operated or commanded by a member of those forces in

the course of his or her duties as such a member.

Note:

A defendant bears an evidential burden in relation to the matter in this

section: see subsection 13.3(3).

(2) This subsection covers a person with any of the following

connections with the armed forces of a foreign country that is not a

party to the Convention on Cluster Munitions:

(a) the person is employed by, or in the service of, any of those

forces;

(b) the person is serving with an organisation accompanying any

of those forces;

subject to the law of that country governing any of the armed

forces of that country.

72.43 Forfeiture of cluster munition

(1) This section applies if a court:

(a) convicts someone of an offence against subsection 72.38(1);

(b) makes an order under section 19B of the Crimes Act 1914

relating to an offence against subsection 72.38(1).

Note: The

expression

offence against subsection 72.38(1) is given an

extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3

and subsection 11.6(2).

Schedule 1 Criminal Code Act 1995

8 Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 No. , 2010

(2) The court may order forfeiture to the Commonwealth of any cluster

munition involved in the offence.

(3) A cluster munition ordered to be forfeited to the Commonwealth

becomes the Commonwealth's property.

72.44 Application of this Subdivision to explosive bomblets

This Subdivision applies in relation to explosive bomblets in the

same way as it applies in relation to cluster munitions.

72.45 Definitions

In this Subdivision:

cluster munition has the meaning given by paragraph 2 of Article

2 of the Convention on Cluster Munitions.

Convention on Cluster Munitions means the Convention on

Cluster Munitions done at Dublin on 30 May 2008.

Note:

In 2010, the text of the Convention was accessible through the

Australian Treaties Library on the AustLII website

(www.austlii.edu.au).

explosive bomblet has the meaning given by paragraph 13 of

Article 2 of the Convention on Cluster Munitions.

explosive submunition has the meaning given by paragraph 3 of

Article 2 of the Convention on Cluster Munitions.

police officer means:

(a) a member of the Australian Federal Police (within the

meaning of the Australian Federal Police Act 1979); or

(b) a special member of the Australian Federal Police (within the

meaning of that Act); or

Territory.

transfer has the meaning given by paragraph 8 of Article 2 of the

Convention on Cluster Munitions.

Note:

Imports and exports are some examples of transfers.

Commonwealth of Australia Bills

CRIMINAL CODE AMENDMENT (CLUSTER MUNITIONS PROHIBITION) BILL 2010