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This is a Bill, not an Act. For current law, see the Acts databases.


CRIMINAL CODE AMENDMENT (CLUSTER MUNITIONS PROHIBITION) BILL 2010

2010
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Criminal Code Amendment (Cluster
Munitions Prohibition) Bill 2010
No. , 2010
(Attorney-General)
A Bill for an Act to criminalise some acts involving
certain munitions, and for related purposes
i Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 No. , 2010
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Criminal Code Act 1995
3
Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 No. , 2010 1
A Bill for an Act to criminalise some acts involving
1
certain munitions, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Criminal Code Amendment (Cluster
5
Munitions Prohibition) Act 2010.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
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
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in Column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Criminal Code Act 1995 Schedule 1
Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 No. , 2010 3
Schedule 1--Criminal Code Act 1995
1
2
1 At the end of Division 72 of the Criminal Code
3
Add:
4
Subdivision C--Cluster munitions and explosive bomblets
5
72.37 Purpose
6
The purpose of this Subdivision is to create offences relating to
7
cluster munitions and explosive bomblets and give effect to the
8
Convention on Cluster Munitions.
9
72.38 Offences relating to cluster munitions
10
Doing acts with a cluster munition
11
(1) A person commits an offence if the person does any of the
12
following with a cluster munition:
13
(a)
uses
it;
14
(b) develops, produces or otherwise acquires it;
15
(c) stockpiles or retains it;
16
(d) transfers it to anyone.
17
Penalty: Imprisonment for 10 years.
18
Promoting acts with a cluster munition
19
(2) A person (the first person) commits an offence if:
20
(a) the first person assists, encourages or induces another person
21
to do any of the following acts with a cluster munition:
22
(i)
use
it;
23
(ii) develop, produce or otherwise acquire it;
24
(iii) stockpile or retain it;
25
(iv) transfer it to anyone; and
26
(b) the other person does the act; and
27
(c) the first person intends that the act be done.
28
Penalty: Imprisonment for 10 years.
29
Schedule 1 Criminal Code Act 1995
4 Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010 No. , 2010
Geographical jurisdiction
1
(3) Section 15.2 (extended geographical jurisdiction--category B)
2
applies to an offence against this section.
3
Relationship with other provisions
4
(4) Division 11 does not apply in relation to an offence against
5
subsection (2).
6
Note 1:
Later sections of this Subdivision set out defences.
7
Note 2:
This section relates to Articles 1 and 9 of the Convention on Cluster
8
Munitions.
9
72.39 Defence--acquisition or retention authorised by Defence
10
Minister
11
(1) Section 72.38 does not apply to the acquisition or retention of a
12
cluster munition authorised under subsection (2).
13
Note:
A defendant bears an evidential burden in relation to the matter in
14
subsection (1): see subsection 13.3(3).
15
(2) The Minister administering the Explosives Act 1961 may authorise,
16
in writing, specified members of the Australian Defence Force or
17
other specified Commonwealth public officials to acquire or retain
18
specified cluster munitions for one or more of the following
19
purposes:
20
(a) the development of, and training in, cluster munition and
21
explosive submunition detection, clearance or destruction
22
techniques;
23
(b) the development of cluster munition counter-measures;
24
(c) the destruction of the munitions.
25
Note 1:
For specification by class see the Acts Interpretation Act 1901.
26
Note 2:
This section relates to paragraphs 6 and 7 of Article 3 of the
27
Convention on Cluster Munitions.
28
(3) The regulations may prescribe requirements relating to
29
authorisations under subsection (2).
30
(4) An authorisation made under subsection (2) is not a legislative
31
instrument.
32
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
1
power under that subsection to:
2
(a) the Secretary of the Department administered by that
3
Minister; or
4
(b) an SES employee in that Department.
5
Note:
For the definition of SES employee see the Acts Interpretation Act
6
1901.
7
72.40 Defence--transfer for destruction etc.
8
Transfer to foreign party to Convention on Cluster Munitions
9
(1) Section 72.38 does not apply to the transfer of a cluster munition to
10
a party to the Convention on Cluster Munitions for one or more of
11
the following purposes:
12
(a) the development of, and training in, cluster munition and
13
explosive submunition detection, clearance or destruction
14
techniques;
15
(b) the development of cluster munition counter-measures;
16
(c) the destruction of the munition.
17
Note 1:
A defendant bears an evidential burden in relation to the matter in
18
subsection (1): see subsection 13.3(3).
19
Note 2:
This subsection relates to paragraph 7 of Article 3 of the Convention
20
on Cluster Munitions.
21
Intended transfer to Australian Defence Force
22
(2) Subsections (3) and (4) have effect if:
23
(a) a person has a cluster munition; and
24
(b) the person gives notice to a police officer or member of the
25
Australian Defence Force that the person wishes to transfer
26
the munition to a member of the Australian Defence Force or
27
other Commonwealth public official; and
28
(c) the person gives notice without delay after the first time the
29
person has the cluster munition after the commencement of
30
this subsection.
31
(3) Subsection 72.38(1) does not apply to the person stockpiling or
32
retaining the cluster munition at any time before the person
33
transfers it to a member of the Australian Defence Force or other
34
Commonwealth public official.
35
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
1
cluster munition to a member of the Australian Defence Force or
2
other Commonwealth public official.
3
Note:
A defendant bears an evidential burden in relation to the matters in
4
subsection (2) and whichever of subsections (3) and (4) is relevant:
5
see subsection 13.3(3).
6
72.41 Defence--acts by Australians in military cooperation with
7
countries not party to Convention on Cluster Munitions
8
A person who is an Australian citizen, is a member of the
9
Australian Defence Force or is performing services under a
10
Commonwealth contract does not commit an offence against
11
section 72.38 by doing an act if:
12
(a) the act is done in the course of military cooperation or
13
operations with a foreign country that is not a party to the
14
Convention on Cluster Munitions; and
15
(b) the act is not connected with the Commonwealth:
16
(i) using a cluster munition; or
17
(ii) developing, producing or otherwise acquiring a cluster
18
munition; or
19
(iii) stockpiling or retaining a cluster munition; or
20
(iv) transferring a cluster munition; and
21
(c) the act does not consist of expressly requesting the use of a
22
cluster munition in a case where the choice of munitions used
23
is within the Commonwealth's exclusive control.
24
Note 1:
A defendant bears an evidential burden in relation to the matter in this
25
section: see subsection 13.3(3).
26
Note 2:
The expression offence against section 72.38 is given an extended
27
meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and
28
subsection 11.6(2).
29
Note 3:
This section relates to paragraphs 3 and 4 of Article 21 of the
30
Convention on Cluster Munitions.
31
72.42 Defence--acts by military personnel of countries not party to
32
Convention on Cluster Munitions
33
(1) Section 72.38 does not apply to the stockpiling, retention or
34
transfer of a cluster munition that:
35
(a) is done by:
36
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
1
is not a party to the Convention on Cluster Munitions;
2
or
3
(ii) a person who is connected with such forces as described
4
in subsection (2) and is neither an Australian citizen nor
5
a resident of Australia; and
6
(b) is done in connection with the use by those forces of any of
7
the following in Australia in the course of military
8
cooperation or operations with the Australian Defence Force:
9
(i)
a
base;
10
(ii) an aircraft of any part of those forces or an aircraft being
11
commanded or piloted by a member of those forces in
12
the course of his or her duties as such a member;
13
(iii) a ship of any part of those forces or a ship being
14
operated or commanded by a member of those forces in
15
the course of his or her duties as such a member.
16
Note:
A defendant bears an evidential burden in relation to the matter in this
17
section: see subsection 13.3(3).
18
(2) This subsection covers a person with any of the following
19
connections with the armed forces of a foreign country that is not a
20
party to the Convention on Cluster Munitions:
21
(a) the person is employed by, or in the service of, any of those
22
forces;
23
(b) the person is serving with an organisation accompanying any
24
of those forces;
25
(c) the person is attached to or accompanying those forces and is
26
subject to the law of that country governing any of the armed
27
forces of that country.
28
72.43 Forfeiture of cluster munition
29
(1) This section applies if a court:
30
(a) convicts someone of an offence against subsection 72.38(1);
31
or
32
(b) makes an order under section 19B of the Crimes Act 1914
33
relating to an offence against subsection 72.38(1).
34
Note: The
expression
offence against subsection 72.38(1) is given an
35
extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3
36
and subsection 11.6(2).
37
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
1
munition involved in the offence.
2
(3) A cluster munition ordered to be forfeited to the Commonwealth
3
becomes the Commonwealth's property.
4
72.44 Application of this Subdivision to explosive bomblets
5
This Subdivision applies in relation to explosive bomblets in the
6
same way as it applies in relation to cluster munitions.
7
72.45 Definitions
8
In this Subdivision:
9
cluster munition has the meaning given by paragraph 2 of Article
10
2 of the Convention on Cluster Munitions.
11
Convention on Cluster Munitions means the Convention on
12
Cluster Munitions done at Dublin on 30 May 2008.
13
Note:
In 2010, the text of the Convention was accessible through the
14
Australian Treaties Library on the AustLII website
15
(www.austlii.edu.au).
16
explosive bomblet has the meaning given by paragraph 13 of
17
Article 2 of the Convention on Cluster Munitions.
18
explosive submunition has the meaning given by paragraph 3 of
19
Article 2 of the Convention on Cluster Munitions.
20
police officer means:
21
(a) a member of the Australian Federal Police (within the
22
meaning of the Australian Federal Police Act 1979); or
23
(b) a special member of the Australian Federal Police (within the
24
meaning of that Act); or
25
(c) a member (however described) of a police force of a State or
26
Territory.
27
transfer has the meaning given by paragraph 8 of Article 2 of the
28
Convention on Cluster Munitions.
29
Note:
Imports and exports are some examples of transfers.
30

 


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