House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP)

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:

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use cluster munitions or explosive bomblets.

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develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions or explosive bomblets, or

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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

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:

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wholly or partly either in Australia or on board an Australian aircraft or an Australian ship

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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

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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

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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:

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the development of, and training in, cluster munition and explosive submunition detection, clearance or destruction techniques (paragraph 72.39(2)(a))

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the development of cluster munition counter-measures (paragraph 72.39(2)(b)), and

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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:

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the development of, and training in, cluster munition and explosive submunition detection, clearance or destruction techniques (paragraph 72.40(1)(a))

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the development of cluster munition counter-measures (paragraph 72.40(1)(b)), and

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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:

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where a person has a cluster munition, and

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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

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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

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develop, produce or otherwise acquire cluster munitions

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to itself stockpile or transfer cluster munitions, or

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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:

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done by:

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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

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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

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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:

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a base (subparagraph 72.42(1)(b)(i))

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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

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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:

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the person is employed by, or in the service of, any of those forces

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the person is serving with an organisation accompanying any of those forces, or

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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':

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a munition or submunition designed to dispense flares, smoke pyrotechnics or chaff; or a munition designed exclusively for an air defence role

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a munition or submunition designed to produce electrical or electronic effects

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a munition that, in order to avoid indiscriminate area effects and the risks posed by unexploded submunitions, has all of the following characteristics:

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each munition contains fewer than ten explosive submunitions

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each explosive submunition weighs more than four kilograms

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each explosive submunition is designed to detect and engage a single target object

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each explosive submunition is equipped with an electronic self-destruction mechanism

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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:

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a member of the AFP (within the meaning of the Australian Federal Police Act)

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a special member of the AFP (within the meaning of that Act), or

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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.