CRIMINAL CODE AMENDMENT (CLUSTER MUNITIONS PROHIBITION) BILL 2010 Explanatory Memorandum
CRIMINAL CODE AMENDMENT (CLUSTER MUNITIONS PROHIBITION) BILL 2010
2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMINAL CODE AMENDMENT (CLUSTER MUNITIONS PROHIBITION) BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
CRIMINAL CODE AMENDMENT (CLUSTER MUNITIONS PROHIBITION)
BILL 2010
OUTLINE
This Bill includes the legislative measures necessary to ensure consistency
between Australian law and the Convention on Cluster Munitions (the
Convention). The Convention opened for signature on 3 December 2008 and
entered into force on 1 August 2010, the first day of the sixth month after
the month in which the thirtieth instrument of ratification, acceptance,
approval or accession was deposited with the Secretary-General of the
United Nations. Australia signed the Convention on 3 December 2008 but has
not yet ratified it. Enactment of this Bill, along with other non-
legislative measures, will place Australia in a position to ratify the
Convention.
The Convention bans cluster munitions that cause unacceptable harm to
civilians, and establishes a framework for cooperation and assistance that
ensures adequate provision of care and rehabilitation for victims,
clearance of cluster munition contaminated areas, risk education and
destruction of stockpiles.
In accordance with Australia's domestic treaty approval process, the
legislation necessary to give effect to the Convention must be passed by
both Houses of Parliament and have received Royal Assent before Australia
can ratify the Convention. This Bill enacts the necessary legislative
measures by amending the Criminal Code Act 1995 (the Code).
Under Article 1 of the Convention, States Parties undertake never under any
circumstances to:
. use cluster munitions or explosive bomblets.
. develop, produce, otherwise acquire, stockpile, retain or transfer to
anyone, directly or indirectly, cluster munitions or explosive
bomblets, or
. assist, encourage or induce anyone to engage in any activity
prohibited to a State Party under the Convention.
Article 9 of the Convention requires States Parties to take all appropriate
legal, administrative and other measures to implement the Convention,
including the imposition of penal sanctions to prevent and suppress any
activity prohibited to a State Party under the Convention undertaken by
persons or on territory under the State Party's jurisdiction or control.
This Bill creates an offence of using, developing, producing, otherwise
acquiring, stockpiling, retaining or transferring a cluster munition or
explosive bomblet. The Bill also creates an offence of assisting,
encouraging or inducing someone else to do any of those acts.
Paragraph 6 of Article 3 of the Convention permits States Parties to retain
or acquire a limited number of cluster munitions for the development of,
and training in, cluster munition detection, clearance or destruction
techniques, or for the development of cluster munition counter-measures.
The Bill empowers the Minister for Defence to authorise the retention or
acquisition of a limited number of cluster munitions for these purposes.
Paragraph 7 of Article 3 of the Convention, permits States Parties to
transfer cluster munitions to another State Party for the purpose of
destruction, as well as for the purposes
described in paragraph 6 of Article 3. The Bill provides a defence for
persons who transfer cluster munitions to a State Party for the purposes of
destruction, or the purposes described in paragraph 6 of Article 3.
The Bill also provides a defence to persons who, without delay, notify a
police officer or member of the Australian Defence Force that they wish to
transfer the munitions to a member of the ADF or other Commonwealth public
official.
Paragraph 3 of Article 21 of the Convention qualifies the key prohibitions
specified in Article 1 of the Convention. The effect of paragraph 3 is
that certain acts are permitted in the context of military cooperation and
operations with States not party to the Convention, who may engage in
activities that would be prohibited to a State party. Paragraph 4 of
Article 21 restricts the scope of paragraph 3 by re-introducing some legal
restrictions, namely that even in military cooperation and operations with
non-States Parties, States Parties are not permitted to develop, produce,
acquire, stockpile, transfer or use cluster munitions, or expressly request
the use of cluster munitions in cases where the choice of munitions used is
within the State Party's exclusive control. The Bill provides a defence
for persons who undertake prohibited conduct in the course of military
cooperation or operations with non-States Parties, as long as the act does
not constitute any of the conduct mentioned in paragraph 4 of Article 21 of
the Convention.
As the military personnel of a country that is not party to the Convention
are not required to comply with the Convention, the Bill creates a defence
for military personnel or others connected with the armed forces of a non-
State Party who undertake prohibited conduct while in Australian territory,
or while on a foreign ship or aircraft that is in Australian territory.
The Bill also provides that a court may order the forfeiture to the
Commonwealth of any cluster munition or explosive bomblet involved in the
offence of using, developing, producing, otherwise acquiring, stockpiling,
retaining or transferring a cluster munition or explosive bomblet.
Financial impact statement
The amendments in this Bill will have no direct impact on Government
revenue.
Australia has no operational stockpiles of cluster munitions, so no
stockpile destruction costs arise. No additional cost would arise from
maintaining samples of cluster munitions permitted for training and counter-
measure purposes. However, once the Convention is ratified, Australia
could incur additional costs associated with the clearance and destruction
of any cluster munition remnants in Australian territory or in territory
under Australian control. The level of cost will be determined by the most
efficient and safe disposal methods and the numbers of cluster munitions
involved. The Department of Defence is undertaking an analysis of the
potential costs involved.
Australia will be required to contribute to the costs of Meetings of States
Parties, Review Conferences and Amendment Conferences for the Convention,
in accordance with the United Nations scale of assessment. Once Australia
ratifies the Convention, it will also be required to contribute to the
costs incurred by the Secretary-General of the United Nations in performing
tasks required by Articles 7 and 8 of the Convention (dealing with
reporting mechanisms and measures to facilitate and clarify compliance), in
accordance with the United Nations scale of assessments.
The Convention does not impose any financial obligations on Australia
regarding international cluster munition clearance efforts or the provision
of assistance to victims of cluster munitions outside of Australia.
Australia's voluntary financial contributions to these international
efforts are currently largely funded as part of Australia's Mine Action
Strategy. Australia's Mine Action Strategy supports efforts to reduce the
threat and socio-economic impact of cluster munitions, primarily by funding
AusAID bilateral programs.
Abbreviations used in the Explanatory Memorandum
Acts Interpretation Act Acts Interpretation Act 1901
ADF Australian Defence Force
AFP Australian Federal Police
Australian Federal Police Act Australian Federal Police Act 1979
Convention Convention on Cluster Munitions (done at Dublin on 30 May 2008)
Code Schedule to the Criminal Code Act 1995
Crimes Act Crimes Act 1914
Explosives Act Explosives Act 1961
Legislative Instruments Act Legislative Instruments Act 2003
Public Service Act Public Service Act 1999
CRIMINAL CODE AMENDMENT (CLUSTER MUNITIONS PROHIBITION)
BILL 2010
NOTES ON CLAUSES
Clause 1: Short Title
Clause 1 specifies that when the Bill is enacted, it is to be cited as the
Criminal Code Amendment (Cluster Munitions Prohibition) Act 2010.
Clause 2: Commencement
This clause sets out when the various parts of the Act are to commence.
Proposed sections 1 to 3 of the Bill will commence on the day the Act
receives Royal Assent. The amendments to the Criminal Code Act 1995 (the
Code) set out in Schedule 1 of the Bill are to commence on the day the
Convention on Cluster Munitions (the Convention) enters into force for
Australia. Under paragraph 2 of Article 17 of the Convention, it will
enter into force for Australia on the first day of the sixth month after
Australia deposits its instrument of ratification.
Clause 3: Schedule(s)
This clause explains that the Schedules to this Bill will amend or repeal
the Acts set out in those Schedules in accordance with the provisions of
each Schedule.
Schedule 1 provides for amendments to the Code.
Schedule 1: amendments to the Criminal Code Act 1995
Item 1
The Bill inserts a new Subdivision C in Division 72 of the Code. The
heading for Division 72 is 'Division 72 - Explosives and lethal devices',
and is consistent with the lethal nature of cluster munitions. The heading
of proposed Subdivision C is 'Cluster munitions and explosive bomblets'.
This heading reflects the fact that the provisions of the Convention apply
to both cluster munitions and explosive bomblets.
The Bill proposes to insert new offences and other provisions into Division
72, relating to the use, development, production, acquisition, stockpiling,
retention or transfer of cluster munitions.
Proposed section 72.37 - Purpose
Proposed section 72.37 describes the purpose of Subdivision C of Division
72 of the Code, which is to create offences relating to cluster munitions
and explosive bomblets and to give effect to the Convention.
In this proposed section, the Convention is referred to as 'the Convention
on Cluster Munitions'. There is a complete definition of the Convention in
proposed section 72.45.
This proposed section refers to 'cluster munitions and explosive bomblets'.
All other proposed sections refer only to 'cluster munitions'. Proposed
section 72.44 states that proposed Subdivision C to Division 72 applies in
relation to explosive bomblets in the same way as it applies in relation to
cluster munitions.
Proposed section 72.38 - Offences relating to cluster munitions
Proposed section 72.38 sets out two offences relating to cluster munitions,
as well as the applicable extended geographical jurisdiction, and the
relationship between one of the proposed offences and other provisions in
the Code.
Proposed subsection 72.38(1) makes it an offence if a person uses,
develops, produces, otherwise acquires, stockpiles, retains or transfers a
cluster munition. The maximum penalty for this offence is 10 years
imprisonment.
Under Article 9 of the Convention, States Parties are required to impose
penal sanctions to prevent and suppress any activity prohibited to a State
Party under the Convention when undertaken by persons or on territory under
the State Party's jurisdiction or control. The language used in proposed
subsection 72.38(1) reflects the language of subparagraphs (a) and (b) of
paragraph 1 of Article 1 of the Convention, which provide that States
Parties undertake never in any circumstances to use, develop, produce,
otherwise acquire, stockpile, retain or transfer cluster munitions.
The terms 'use', 'develop', 'produce', 'acquire', 'stockpile' and 'retain'
are used in their plain English sense. The term 'transfer' is defined in
proposed subsection 72.45. While there is some overlap between the terms
(for example, the term 'stockpile' is a specific subset of the term
'retain'), proposed subsection 72.38(1) intentionally uses the same
language of the Convention, to ensure that all conduct that is prohibited
by the Convention is the subject of a criminal offence under Australian
law.
Proposed subsection 72.38(1) does not specify a fault element for the act
of using, developing, producing, acquiring, stockpiling, retaining or
transferring a cluster munition. Section 5.6 of the Criminal Code provides
that where a fault element is not specified in relation to the physical
element, the fault element is intention.
Proposed subsection 72.38(2) makes it an offence for a person to assist,
encourage or induce another person to use, develop, produce, otherwise
acquire, stockpile, retain or transfer a cluster munition. In order to
commit an offence against subsection 72.38(2), the other person must do the
act of using, developing, producing, otherwise acquiring, stockpiling,
retaining or transferring (proposed paragraph 72.38(2)(b)), and the person
must have intended that the act of using, developing, producing, otherwise
acquiring, stockpiling, retaining or transferring be done (proposed
paragraph 72.38(2)(c).
Proposed subsection 72.38(2) reflects the language of subparagraph (c) of
paragraph 1 of Article 1 of the Convention, which provides that States
Parties undertake never in any circumstances to assist, encourage or induce
anyone to engage in any activity prohibited to a State Party under the
Convention.
Proposed paragraph 72.38(2)(a) does not specify a fault element for the act
of assisting, encouraging or inducing. Section 5.6 of the Criminal Code
provides that where a fault element is not specified in relation to the
physical element, the fault element is intention.
The elements in paragraphs 72.38(2)(a) and (b) ensure that accidental or
innocent assistance, encouragement or inducement is not an offence against
subsection 72.38(2).
The maximum penalty for an offence against subsection 72.38(2) is 10 years
imprisonment. This is the same maximum penalty as an offence against
subsection 72.38(1), and is consistent with the equal treatment given by
the Convention to all conduct prohibited under Article 1.
Proposed subsection 72.38(3) states that the extended geographical
jurisdiction set out in section 15.2 of the Code (category B) will apply to
the offences set out in proposed section 72.38. Section 15.2 is in Part
2.7 of the Code, which provides general jurisdictional provisions,
including for the application of extended geographical jurisdiction.
Category B jurisdiction enables an offence to operate when the conduct
constituting the alleged offence occurs:
. wholly or partly either in Australia or on board an Australian
aircraft or an Australian ship
. wholly outside Australia and a result, whether or not the complete
result, of that conduct occurs either in Australia, or on board an
Australian aircraft or an Australian ship
. wholly outside Australia, and the defendant is an Australian citizen,
Australian resident, or a body corporate incorporated under an
Australian law, and, if the defendant is an Australian resident, there
is a corresponding offence in the law of the local jurisdiction (being
the jurisdiction in which the offence was committed), or
. wholly outside Australia, and the relevant conduct constitutes an
ancillary offence, and the conduct constituting the primary offence to
which that alleged ancillary offence relates occurs, or is intended to
occur, wholly or partly either in Australia or on board an Australian
aircraft or Australian ship, and, if the defendant is an Australian
resident, there is a corresponding offence in the law of the local
jurisdiction (being the jurisdiction in which the offence was
committed).
Category B jurisdiction captures the conduct of persons who are Australian
citizens or residents at the time of the alleged offence. The application
of category B jurisdiction would mean that, regardless of where the conduct
constituting the offence occurs, if the person engaging in that conduct is
an Australian citizen or body corporate, that person would be able to be
prosecuted in Australia. The extension of jurisdiction in this way gives
effect to the obligation on States Parties under Article 9 to enact penal
sanctions to prevent and suppress prohibited conduct undertaken by persons
or on territory under its jurisdiction or control.
Proposed subsection 72.38(4) provides that Division 11 of the Code does not
apply in relation to an offence against subsection 72.38(2). Division 11
of the Code sets out provisions which extend criminal responsibility where
a person undertakes conduct that is ancillary to the commission of a
primary offence. It is not appropriate for the provisions in Division 11
of the Code to apply to proposed subsection 72.38(2) because of the
ancillary nature of the conduct which amounts to the proposed offence in
that subsection.
The first note in proposed section 72.38 states that defences to the
offences are set out in later sections of proposed Subdivision C. These
defences are in proposed sections 72.39 to 72.42.
The second note in proposed section 72.38 states that the section relates
to Articles 1 and 9 of the Convention. As stated above, Article 1 of the
Convention sets out the conduct prohibited to States Parties, and Article 9
of the Convention places an obligation on States Parties to enact penal
sanctions to prevent or suppress conduct prohibited to States Parties.
Proposed section 72.39 - Defence - acquisition or retention authorised by
Defence Minister
Proposed section 72.39 empowers the Minister for Defence to authorise the
acquisition or retention of a limited number of cluster munitions for
destruction or for certain purposes permitted by the Convention, and
creates a defence for a person who acts in accordance with such an
authorisation.
Proposed subsection 72.39(1) provides that section 72.38 (containing
offences) does not apply to the acquisition or retention of a cluster
munition authorised under proposed subsection 72.39(2). The effect of this
subsection is that a person may acquire or retain a cluster munition
without committing an offence against proposed section 72.38 where they
have been authorised to do so by the Minister for Defence under proposed
subsection 72.38(2).
The note in proposed subsection 72.39(1) makes clear that a defendant bears
an evidential burden in relation to the matter in subsection (1), as set
out in subsection 13.3(3) of the Code. Subsection 13.3(3) of the Code
states that a defendant who wishes to deny criminal responsibility by
relying on any exception, exemption, excuse, qualification or justification
provided by the law creating an offence - such as proposed subsection
72.39(1) - bears an evidential burden in relation to that matter. The term
'evidential burden' is defined in subsection 13.3(6) as the burden of
adducing or pointing to evidence that suggests a reasonable possibility
that a matter exists or does not exist.
Where a defendant seeks to raise the defence in proposed subsection
72.39(1), it is appropriate and practical to require the defendant to
adduce or point to evidence that suggests that he or she has been
authorised by the relevant Minister under subsection 72.39(2). This matter
would be within the defendant's personal knowledge.
Proposed subsection 72.39(2) empowers the Minister administering the
Explosives Act (currently, the Minister for Defence) to authorise, in
writing, specified members of the ADF or other specified Commonwealth
public officials to acquire or retain specified cluster munitions for one
or more of the purposes listed in paragraphs (a) to (c). These purposes
are:
. the development of, and training in, cluster munition and explosive
submunition detection, clearance or destruction techniques (paragraph
72.39(2)(a))
. the development of cluster munition counter-measures (paragraph
72.39(2)(b)), and
. the destruction of the munitions (paragraph 72.39(2)(c)).
Paragraphs (a) to (c) of proposed subsection 72.39(2) give effect to
paragraphs 6 and 7 of Article 3 of the Convention. Paragraph 3 of Article
6 permits States Parties to acquire or retain a limited number of cluster
munitions for the development of, and training in, cluster munition
detection, clearance or destruction techniques, or for the development of
cluster munition counter-measures. Paragraph 7 of Article 3 of the
Convention permits States Parties to transfer cluster munitions to another
State Party for the purpose of destruction, or for any of the purposes
described in paragraph 6 of Article 3.
The term 'Commonwealth public official' in the chapeau of proposed
subsection 72.39(2) has the meaning given by the Dictionary of the Code.
One effect of proposed subsection 72.39(2) is that an ADF member or other
Commonwealth public official can be authorised to acquire or retain cluster
munitions for the purposes permitted in the Convention, either from another
State Party to the Convention, or from other sources. For example, an ADF
member or other Commonwealth public official may be authorised to acquire
specified cluster munitions from a person who wishes to transfer those
cluster munitions pursuant to proposed subsection 72.40(2), and therefore
avoid committing an offence against proposed subsection 72.38(1).
Another effect of subsection 72.39(2) is that an ADF member or other
Commonwealth public official may be authorised to acquire (receive) the
cluster munitions of another State Party for the purposes of destruction,
should that State Party wish to transfer those cluster munitions under
paragraph 7 of Article 3. Such an acquisition would not amount to an
offence against section 72.38.
The first note under proposed subsection 72.39(2) refers to the Acts
Interpretation Act for specification by class. Subsections 33(3A) and
46(3) of the Acts Interpretation Act provide that persons can be specified
by class.
The second note under proposed subsection 72.39(2) states that the
subsection relates to paragraphs 6 and 7 of Article 3 of the Convention.
Proposed subsection 72.39(3) states that regulations may prescribe the
requirements relating to an authorisation under subsection 72.39(2).
Proposed subsection 72.39(4) states that an authorisation made under
proposed subsection 72.39(2) is not a legislative instrument. Proposed
subsection 72.39(4) is merely declaratory, and is not an exemption from the
Legislative Instruments Act. An authorisation under proposed subsection
72.39(2) is not of a legislative character, as it is limited to a specified
class of people.
Proposed subsection 72.39(5) provides that the Minister described in
proposed subsection 72.39(2) may delegate his or her power to the Secretary
of the Department administered by that Minister (currently, the Department
of Defence), or an SES employee in that Department.
The note under proposed subsection 72.39(5) states that the term 'SES
employee' has the meaning given to it by the Acts Interpretation Act. In
the Acts Interpretation Act, the term 'SES employee' is defined as having
the same meaning as in the Public Service Act. Section 34 of the Public
Service Act defines an SES employee as those employees of the Australian
Public Service who are classified as SES employees under the Classification
Rules made under section 23 of that Act.
Proposed section 72.40 - Defence - transfer for destruction etc
Proposed section 72.40 creates two defences.
Proposed subsection 72.40(1) provides that section 72.38 does not apply to
the transfer of a cluster munition to a State Party to the Convention for
one or more of the purposes listed in paragraphs (a) to (c). These
purposes are:
. the development of, and training in, cluster munition and explosive
submunition detection, clearance or destruction techniques (paragraph
72.40(1)(a))
. the development of cluster munition counter-measures (paragraph
72.40(1)(b)), and
. the destruction of the munitions (paragraph 72.40(1)(c)).
Paragraphs (a) to (c) of proposed subsection 72.40(1) give effect to
paragraph 7 of Article 3 of the Convention. Paragraph 7 of Article 3 of
the Convention permits States Parties to transfer cluster munitions to
another State Party for the purpose of destruction, or for any of the
purposes described in paragraph 6 of Article 3. The effect of subsection
72.40(1) is that a person may transfer cluster munitions to another State
Party to the Convention for the purpose of destruction, or for any of the
purposes permitted by paragraph 6 of Article 3 of the Convention. Such a
transfer would not amount to an offence against section 72.38.
The first note under proposed subsection 72.40(1) makes clear that a
defendant bears an evidential burden in relation to the matter in
subsection (1), as set out in subsection 13.3(3) of the Code. Subsection
13.3(3) of the Code states that a defendant who wishes to deny criminal
responsibility by relying on any exception, exemption, excuse,
qualification or justification provided by the law creating an offence -
such as proposed subsection 72.40(1) - bears an evidential burden in
relation to that matter. The term 'evidential burden' is defined in
subsection 13.3(6) as the burden of adducing or pointing to evidence that
suggests a reasonable possibility that a matter exists or does not exist.
Where a defendant seeks to raise the defence in proposed subsection
72.40(1), it is appropriate and practical to require the defendant to
adduce or point to evidence that suggests the purposes for which he or she
was transferring the cluster munitions. This matter would be within the
defendant's personal knowledge.
The second note under proposed subsection 72.40(1) states that the
subsection relates to paragraph 7 of Article 3 of the Convention.
When read together, proposed subsections 72.40(2), (3) and (4) create a
defence for persons who notify a police officer or ADF member that they
wish to surrender cluster munitions. This defence is intended to encourage
members of the public to contact the police or ADF in order to surrender
cluster munitions, rather than handling the dangerous explosives
themselves. It is important that such individuals are able to safely
surrender those cluster munitions to the appropriate authorities.
Proposed subsection 72.40(2) sets out the circumstances in which a person
can rely on the defences in subsections 72.40(3) and (4). These are:
. where a person has a cluster munition, and
. the person gives notice to a police officer or ADF member that the
person wishes to transfer the munition to a member of the ADF or other
Commonwealth public official, and
. the person gives notice without delay after the first time the person
has the cluster munition after commencement of this subsection.
Proposed subsection 72.40(2) ensures that the defence will apply to persons
who have a cluster munition, no matter when that person obtained the
cluster munition. Subsection 72.40(2) also clarifies that consideration of
whether any delay has occurred in notifying the police or ADF should being
when the person first acquired the cluster munition or when this subsection
commenced, whichever is the later. This subsection will commence at the
same time as all other amendments to the Code in this Bill, namely, on the
day the Convention enters into force for Australia
Proposed subsection 72.40(3) provides that subsection 72.38(1) does not
apply to a person stockpiling or retaining a cluster munition at any time
before the person transfers it to an ADF member or other Commonwealth
public official.
Proposed subsection 72.40(4) provides that subsection 72.38(1) does not
apply to a person who transfers a cluster munition to an ADF member or
other Commonwealth public official.
The defences in proposed subsections 72.40(3) and (4) only apply to
offences against subsection 72.38(1). This is because the acts that would
be involved in the surrender of cluster munitions to an ADF member or other
Commonwealth public official (stockpiling or retaining before the transfer,
and the subsequent transfer) would only amount to an offence against
subsection 72.38(1), and would not amount to an offence against subsection
72.38(2).
An ADF member or other Commonwealth public official who acquires a cluster
munition transferred pursuant to proposed subsection 72.40(4) would need to
be authorised to do so under proposed subsection 72.39(2).
The note under proposed subsection 72.40(2) makes clear that a defendant
bears an evidential burden in relation to the matter in subsection (2) and
whichever of subsections (3) and (4) is relevant, as set out in subsection
13.3(3) of the Code. Subsection 13.3(3) of the Code states that a
defendant who wishes to deny criminal responsibility by relying on any
exception, exemption, excuse, qualification or justification provided by
the law creating an offence - such as proposed subsections 72.40(3) and (4)
- bears an evidential burden in relation to that matter. The term
'evidential burden' is defined in subsection 13.3(6) as the burden of
adducing or pointing to evidence that suggests a reasonable possibility
that a matter exists or does not exist.
Where a defendant seeks to raise the defence in proposed subsection
72.40(2), it is appropriate and practical to require the defendant to
adduce or point to evidence that suggests the purposes for which he or she
was transferring the cluster munitions and the circumstances under which
the transfer occurred, including whether any delay occurred. These matters
would be within the defendant's personal knowledge.
Proposed section 72.41 - Defence - acts by Australians in military
cooperation with countries not party to the Convention on Cluster Munitions
Proposed section 72.41 provides that certain acts done by Australians in
military cooperation and operations with countries that are not party to
the Convention are not offences against proposed section 72.38. This
section gives effect to paragraphs 3 and 4 of Article 21 of the Convention.
Paragraph 3 of Article 21 of the Convention qualifies the key prohibitions
specified in Article 1 of the Convention. The effect of paragraph 3 is
that certain acts are permitted in the context of military cooperation and
operations with States not party to the Convention, even though such acts
could ultimately assist the non-State Party to engage in conduct that is
prohibited by Article 1of the Convention. Paragraph 4 of Article 21
restricts the scope of paragraph 3 by re-introducing some legal
restrictions, namely that even in military cooperation and operations with
non-States Parties, States Parties are not permitted to develop, produce,
acquire, stockpile, transfer or use cluster munitions, or expressly request
the use of cluster munitions in cases where the choice of munitions used is
within the State Party's exclusive control.
The language in the chapeau of proposed section 72.41 states that the
defence applies to Australian citizens, members of the ADF or persons
performing services under a Commonwealth contract. These classes of people
reflect the language of paragraph 3 of Article 21 of the Convention.
Paragraph 3 of Article 21 applies to States Parties, their military
personnel or nationals. In the context of the Convention, the reference to
'States Parties' includes a reference to the entity of the country as well
as all government officials and contractors.
The term 'Commonwealth contract' in the chapeau of proposed section 72.41
has the meaning given to it by the Dictionary in the Code, that is, a
contract, to which a Commonwealth entity is a party, under which services
are to be, or were to be, provided to a Commonwealth entity.
Proposed paragraph 72.41(a) provides that the defence applies to acts done
in the course of military cooperation or operations with a foreign country
that is not a party to the Convention. For example, this may include
peacekeeping operations mandated by the United Nations and which involve
both States Parties and non-States Parties to the Convention. The language
of proposed paragraph 72.41(a) reflects the language of paragraph 3 of
Article 21 of the Convention. Paragraph 3 of Article 21 states that,
notwithstanding the provisions of Article 1 of the Convention, and in
accordance with international law, States Parties, their military personnel
or nationals, may engage in military cooperation and operations with
countries not party to the Convention that might engage in activities
prohibited to a State Party.
Proposed paragraph 72.41(b) provides that the defence created by proposed
section 72.41 does not apply to conduct that is connected with the
Commonwealth using, developing, producing, acquiring, stockpiling,
retaining or transferring a cluster munition (proposed subparagraphs
72.41(b)(i) to (iv)). The language of proposed paragraph 72.41(b) reflects
the language of subparagraphs (a) to (c) of paragraph 4 of Article 21 of
the Convention. These subparagraphs state that nothing in paragraph 3 of
Article 21 shall authorise a State Party (which includes a State Party's
military personnel or nationals) to
. develop, produce or otherwise acquire cluster munitions
. to itself stockpile or transfer cluster munitions, or
. to itself use cluster munitions.
Paragraph 4 of Article 21 of the Convention refers to all obligations
contained in Article 1, except 'retaining' cluster munitions. However, it
is reasonable to interpret the Convention to mean that it remains
prohibited for a State Party to retain cluster munitions, otherwise it
would be contrary to the purpose of paragraph 4. Consequently, proposed
subparagraph 72.41(b)(iii) refers to the retention of cluster munitions.
Proposed paragraph 72.41(c) provides that the defence created by proposed
section 72.41 does not apply to an act that that consists of expressly
requesting the use of a cluster munition in a case where the choice of
munitions used is within the Commonwealth's exclusive control. The
language of proposed paragraph 72.41(c) reflects the language of
subparagraph (d) of paragraph 4 of Article 21 of the Convention. This
subparagraph states that nothing in paragraph 3 of Article 21 shall
authorise a State Party to expressly request the use of cluster munitions
in cases where the choice of munitions use is with the State Party's
exclusive control.
Proposed paragraph 72.41(c) contains two concepts: an 'express request' and
a case of 'exclusive control'. If a person's act consists of an express
request in a situation of exclusive control, the defence in proposed
section 72.41 will not be made out. Both concepts must be present in order
for the application of the defence to be excluded. For example, if a
person expressly requests the use of cluster munitions in a case where the
choice of munitions used is not within the exclusive control of the
Commonwealth, they may still raise the defence in proposed section 72.41.
Read together, paragraphs (a) to (c) of proposed section 72.41 have the
effect of creating a defence where an Australian citizen, ADF member of
Commonwealth contractor does an act in the course of military cooperation
or operations with a foreign country that is not a party to the Convention,
except where the Act is connected with the Commonwealth using, developing,
producing, acquiring, stockpiling, retaining or transferring a cluster
munition, or where the act consists of expressly requesting the use of a
cluster munition in a case where the choice of munitions used is within the
Commonwealth's exclusive control.
The first note under proposed section 72.41 makes clear that a defendant
bears an evidential burden in relation to the matter in section 72.41, as
set out in subsection 13.3(3) of the Code. Subsection 13.3(3) of the Code
states that a defendant who wishes to deny criminal responsibility by
relying on any exception, exemption, excuse, qualification or justification
provided by the law creating an offence - such as proposed section 72.41 -
bears an evidential burden in relation to that matter. The term
'evidential burden' is defined in subsection 13.3(6) as the burden of
adducing or pointing to evidence that suggests a reasonable possibility
that a matter exists or does not exist.
Where a defendant seeks to raise the defence in proposed section 72.41, it
is appropriate and practical to require the defendant to adduce or point to
evidence that suggests the purpose and context of his or her conduct.
These matters would be within the defendant's personal knowledge.
The second note under proposed section 72.41 provides that the expression
'offence against section 72.38' is given an extended meaning by subsection
11.2(1), subsection 11.2A(1), section 11.3 and subsection 11.6(2) of the
Code. These provisions of the Code extend criminal responsibility where a
person undertakes conduct that is ancillary to the commission of a primary
offence.
The third note under proposed section 72.41 states that the section relates
to paragraphs 3 and 4 of Article 21 of the Convention.
Proposed section 72.42 - Defence - acts by military personnel of countries
not party to the Convention on Cluster Munitions
Proposed section 72.42 provides that certain acts done by military
personnel of countries not party to the Convention are not offences against
proposed section 72.38. This section takes into account the fact that
Australia engages in military cooperation and operations with some
countries that are not party to the Convention. This military cooperation
and operations may entail the use by foreign countries of bases on
Australian territory, or the entry of foreign ships or aircraft into
Australian territory. The Convention expressly permits the continuation of
such cooperation and operations between States Parties and non-States
Parties in paragraph 3 of Article 21.
By virtue of the category B extended geographical jurisdiction which
applies to the offences in proposed section 72.38 (see paragraph 72.38(3)),
the proposed offences will apply to all conduct that constitutes an alleged
offence and occurs wholly or partly either in Australia or on board an
Australian aircraft or an Australian ship (see paragraph 15.2(1)(a)).
Consequently, military personnel of countries that are not party to the
Convention are prima facie subject to Australian criminal jurisdiction if
they stockpile, retain or transfer cluster munitions on their bases, ships
or aircraft in Australian territory.
The military personnel of countries that are not party to the Convention
are not required to comply with the Convention's obligations, and should
not be subject to the offences in proposed section 72.38 while they are in
Australian territory. Proposed section 72.42 provides a defence for the
military personnel of countries that are not party to the Convention to
reflect the fact that they are not required to comply with the Convention's
obligations. However, this defence applies only to the stockpiling,
retention and transfer of cluster munitions. The defence does not apply to
the use, development, production or acquisition of cluster munitions by the
military personnel of countries not party to the Convention while they are
in Australian territory. Such conduct remains prohibited to the military
personnel of countries not party to the Convention while they are in
Australian territory.
Proposed subsection 72.42(1) states that proposed section 72.38 does not
apply to the stockpiling, retention or transfer of a cluster munition that
is:
. done by:
. a member of the armed forces of a foreign country that is not a
party to the Convention (subparagraph 72.42(1)(a)(i)), or
. a person who is connected with such forces as described in
subsection 72.42(2), and who is neither an Australian citizen nor
an Australian resident (subparagraph 72.42(1)(a)(ii)), and
. done in connection with the use by those forces of a base, aircraft or
ship in Australian territory in the course of military cooperation or
operations with the ADF (paragraph 72.42(1)(b)).
Proposed subparagraph 72.42(1)(a)(ii) reflects the fact that some armed
forces may employ civilian contractors to perform some duties. The scope
of subparagraph 72.42(1)(a)(ii) is defined further in proposed subsection
72.42(2).
Paragraph 72.42(1)(b) sets out the circumstances in which a person can
raise the defence in proposed section 72.42. The person undertaking the
stockpiling, retention or transfer must do so in connection with the use by
the relevant armed forces of any of the following in Australia in the
course of military cooperation or operations with the ADF:
. a base (subparagraph 72.42(1)(b)(i))
. 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 (subparagraph 72.42(1)(b)(ii)), or
. 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 (subparagraph 72.42(1)(b)(iii)).
The references to aircraft and ships in subparagraphs (ii) and (iii) will
include non-military aircraft or ships that are piloted, operated or
commanded by a member of the armed forces of a country that is not a party
to the Convention.
The reference to 'Australia' will have the same meaning as given to that
term in the Dictionary of the Code.
The note under proposed subsection 72.42(1) makes clear that a defendant
bears an evidential burden in relation to the matter in subsection (1), as
set out in subsection 13.3(3) of the Code. Subsection 13.3(3) of the Code
states that a defendant who wishes to deny criminal responsibility by
relying on any exception, exemption, excuse, qualification or justification
provided by the law creating an offence - such as proposed section 72.42 -
bears an evidential burden in relation to that matter. The term
'evidential burden' is defined in subsection 13.3(6) as the burden of
adducing or pointing to evidence that suggests a reasonable possibility
that a matter exists or does not exist.
Where a defendant seeks to raise the defence in proposed subsection
72.42(1), it is appropriate and practical to require the defendant to
adduce or point to evidence that suggests the reasons for his or her
presence in Australia, and the context in which his or her conduct
occurred. These matters would be within the defendant's personal
knowledge.
Proposed subsection 72.42(2) defines the persons referred to in
subparagraph 72.42(1)(a)(ii), namely, persons who are connected with the
armed forces of a country that is not party to the Convention, and who are
neither Australian citizens nor Australian residents.
Subparagraph 72.42(2) 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:
. the person is employed by, or in the service of, any of those forces
. the person is serving with an organisation accompanying any of those
forces, or
. the person is attached to or accompanying those forces and is subject
to the law of that country governing any of the armed forces of that
country.
Proposed subparagraph 72.42(2) would cover, for example, a person that is
contracted to perform certain duties for the armed forces of a foreign
country, such as a driver, where that person is not an Australian citizen
or resident.
Proposed section 72.43 - Forfeiture of cluster munitions
Proposed section 72.43 provides for the forfeiture of cluster munitions to
the Commonwealth in certain circumstances.
Proposed subsection 72.43(1) states that section 72.43 applies if a court
convicts a person of an offence against subsection 72.38(1) or makes an
order under section 19B of the Crimes Act in respect of a person charged
with an offence against subsection 72.38(1).
Section 19B of the Crimes Act provides generally that a court may dismiss a
charge or charges or discharge a person without proceeding to a conviction
in certain circumstances, having regard to a person's character,
antecedents, cultural background, age, health or mental condition, or the
extent, if any, to which the offence is of a trivial nature or the offence
was committed under extenuating circumstances.
The note under proposed subsection 72.43(1) provides that the expression
'offence against section 72.38' is given an extended meaning by subsection
11.2(1), subsection 11.2A(1), section 11.3 and subsection 11.6(2) of the
Code. These provisions of the Code extend criminal responsibility where a
person undertakes conduct that is ancillary to the commission of a primary
offence.
Proposed subsection 72.43(2) provides that, where the circumstances in
subsection 72.43(1) exist, a court may order forfeiture to the Commonwealth
of the cluster munitions involved in the offence.
Proposed subsection 72.43(3) provides that a cluster munition forfeited
under proposed subsection 72.43(2) becomes the property of the
Commonwealth.
Proposed subsection 72.43 applies only in relation to an offence against
subsection 72.38(1). This is because an offence against subsection
72.38(2) does not require a person to do any act with a cluster munition.
Consequently, no cluster munition will be involved in the offence.
Proposed section 72.44 - Application of this Subdivision to explosive
bomblets
Proposed section 72.44 provides that the proposed Subdivision C applies in
relation to explosive bomblets in the same as it applies in relation to
cluster munitions. This provision reflects paragraph 2 of Article 1 of the
Convention, which states that paragraph 1 of Article 1 (stating the conduct
prohibited by the Convention) applies, mutatis mutandis, to explosive
bomblets that are specifically designed to be dispersed or released from
dispensers affixed to aircraft. The effect of proposed section 72.44 is
that each reference to a cluster munition in proposed Subdivision C should
be read as a reference to both a cluster munition and an explosive bomblet.
Proposed section 72.45 - Definitions
Proposed section 72.45 sets out the definitions of several terms used in
proposed Subdivision C of Division 72. These definitions are specific to
the proposed Subdivision, and will not apply to the defined terms when they
are used elsewhere in the Code or in other Commonwealth legislation.
The term 'cluster munition' has the meaning given by paragraph 2 of Article
2 of the Convention. Paragraph 2 of Article 21 states that the term
'cluster munition' means a convention munition that is designed to disperse
or release explosive submunitions each weighing less than 20 kilograms, and
includes those explosive submunition. Paragraph 2 of Article 21 excludes
the following from the definition of the term 'cluster munition':
. a munition or submunition designed to dispense flares, smoke
pyrotechnics or chaff; or a munition designed exclusively for an air
defence role
. a munition or submunition designed to produce electrical or electronic
effects
. a munition that, in order to avoid indiscriminate area effects and the
risks posed by unexploded submunitions, has all of the following
characteristics:
. each munition contains fewer than ten explosive submunitions
. each explosive submunition weighs more than four kilograms
. each explosive submunition is designed to detect and engage a single
target object
. each explosive submunition is equipped with an electronic self-
destruction mechanism
. each explosive submunition is equipped with an electronic self-
deactivating feature.
The term 'Convention on Cluster Munitions' means the Convention. The note
under the definition of the term 'Convention on Cluster Munition' notes
that in 2010, the text of the Convention was accessible through the
Australian Treaties Library on the AustLII website (www.austlii.edu.au).
The term 'explosive bomblet' has the meaning given by paragraph 13 of
Article 2 of the Convention. Paragraph 13 of Article 2 of the Convention
states that the term 'explosive bomblet' means a conventional munition,
weighing less than 20 kilograms, which is not self-propelled and which, in
order to perform its task, is dispersed or released by a dispenser, and is
designed to function by detonating an explosive charge prior to, on or
after impact.
The term 'explosive submunition' has the meaning given by paragraph 3 of
Article 2 of the Convention. Paragraph 3 of Article 2 of the Convention
states that the term 'explosive submunition' means a conventional munition
that in order to perform its task is dispersed or released by a cluster
munition and is designed to function by detonating an explosive charge
prior to, on or after impact.
The term 'police officer' is defined as:
. a member of the AFP (within the meaning of the Australian Federal
Police Act)
. a special member of the AFP (within the meaning of that Act), or
. a member (however described) of a police force of a State or
Territory.
This definition is consistent with the definition of the term 'police
officer' in Part 5.3 of the Code, which deals with terrorism offences.
This definition will mean that a person may call a State or Territory or
Federal police officer (as well as an ADF member) in order to notify them
that they wish to transfer cluster munitions in accordance with proposed
subsection 72.40(2).
The term 'transfer' has meaning given by paragraph 8 of the Convention.
Paragraph 8 of Article 2 of the Convention states that a 'transfer'
involves, in addition to the physical movement of cluster munitions into or
from national territory, the transfer of title to and control over cluster
munitions, but does not involve the transfer of territory containing
cluster munitions remnants.
Under this definition, a 'transfer' could occur either where there is a
physical movement of cluster munitions into or from national territory, or
where there is a transfer of title and control over cluster munitions. The
term 'national territory' is referring to the national territory of any
country, not just a State Party's own territory.
The note under the definition of the term 'transfer' explains that imports
and exports are some examples of transfers. This note does not limit the
definition of the term 'transfer'.
The Convention definitions referred to in proposed section 72.45 may use
terms that are also separately defined in Article 2 of the Convention. For
example, the definition of the term 'cluster munition' in paragraph 2 of
Article 2 of the Convention uses the term 'self-destruction mechanism'.
This term is defined in paragraph 9 of Article 2 of the Convention. The
terms used in the Convention definitions that are defined separately in the
Convention should have the meaning given to them by those additional
Convention definitions.
