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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)


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.

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