Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to prohibit the use, possession and manufacture of cluster munitions, and for related purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 06 Dec 2006
Introduced Senate 05 Dec 2006

 

2004‑2005‑2006

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cluster Munitions (Prohibition) Bill 2006

 

No.      , 2006

 

(Senators Allison, Bartlett, Bishop and Bob Brown)

 

 

 

A Bill for an Act to prohibit the use, possession and manufacture of cluster munitions, and for related purposes

  

    


Contents

Part 1—Preliminary                                                                                                               1

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Purpose of Act................................................................................... 2

4............ Extra‑territorial operation of Act........................................................ 2

5............ Act binds the Crown.......................................................................... 2

6............ Definitions.......................................................................................... 2

7............ Application of the Criminal Code...................................................... 3

8............ Constitutional basis for the operation of this Act.............................. 3

9............ Extended standing............................................................................... 3

Part 2—Offences                                                                                                                     4

10.......... Offences relating to cluster munitions................................................ 4

11.......... Support for use of cluster munitions by another country.................. 4

12.......... ADF members deployed with foreign forces..................................... 4

13.......... Order to contravene Act..................................................................... 4

Part 3—Defences                                                                                                                    5

14.......... Clearing of cluster munitions.............................................................. 5

15.......... Education in relation to cluster munitions.......................................... 5

16.......... Decommissioning................................................................................ 5

Part 4—Decommissioning                                                                                                  6

17.......... Minister to decommission munitions................................................. 6

18.......... Report on stockpiles and decommissioning plan............................... 6

19.......... Cluster munitions which have been deployed.................................... 6

 


A Bill for an Act to prohibit the use, possession and manufacture of cluster munitions, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Cluster Munitions (Prohibition) Act 2006.

2  Commencement

                   This Act commences on the day on which it receives the Royal Assent.

3  Purpose of Act

             (1)  The purpose of this Act is to ensure that innocent civilians in conflict zones are not maimed, killed or put at risk, as a result of Australians possessing, using or manufacturing cluster munitions.

             (2)  In particular, this Act prevents members of the Australian Defence Force, whether serving in Australia or outside Australia, and whether serving with the Australian Defence Force or any other defence force, from deploying cluster munitions.

4  Extra‑territorial operation of Act

             (1)  This Act extends to acts done or omitted to be done by an Australian citizen outside Australia and the external Territories or to acts done on board Australian ships and aircraft.

             (2)  In subsection (1):

Australian ships and aircraft means ships and aircraft registered in Australia or belonging to, or in the possession of, the Commonwealth or a State.

5  Act binds the Crown

             (1)  This Act binds the Crown in all its capacities.

             (2)  Nothing in this Act renders the Crown liable to be prosecuted for an offence.

6  Definitions

             (1)  In this Act, unless the contrary intention appears:

cluster munition means munition or device which is specifically designed to cause death or harm by deploying one or more submunitions.

container unit means that part of a cluster munition which is intended to transport one or more submunitions from the point at which the cluster munition is fired to the point at which the submunitions are deployed.

member of the ADF means an officer, soldier, sailor or airman under the Defence Act 1903.

submunition means a munition which is carried within the container unit of a cluster munition, and which is deployed  from that container unit.

7  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

8  Constitutional basis for the operation of this Act

                   This Act applies to matters within the legislative power of the Commonwealth under paragraphs 51(vi) and 51(xxix) of the Constitution.

9  Extended standing

             (1)  This section extends (and does not limit) the common law in relation to standing to seek writs of mandamus, prohibition or certiorari, or an injunction or declaration, under the Constitution or the Judiciary Act 1903.

             (2)  An individual is taken to have standing to seek a writ of mandamus, prohibition or certiorari, or an injunction or declaration, in relation to this Act, if the individual is an Australian citizen and ordinarily resident in Australia or an external Territory.


 

Part 2Offences

10  Offences relating to cluster munitions

                   A person must not intentionally:

                     (a)  develop, produce, otherwise acquire, stockpile or retain cluster munitions, container units or submunitions; or

                     (b)  transfer, directly or indirectly, cluster munitions, container units or submunitions to another person; or

                     (c)  use a cluster munition, container unit or submunition; or

                     (d)  engage in military preparations to use cluster munitions, container units or submunitions.

Penalty:  Imprisonment for life.

11  Support for use of cluster munitions by another country

                   A member of the ADF must not intentionally engage in military preparations to assist a member of the defence force of another country to use cluster munitions, container units or submunitions.

12  ADF members deployed with foreign forces

                   To avoid doubt, sections 10 and 11 of this Act continue to apply to ADF members who are attached to the defence force of another country.

13  Order to contravene Act

                   To avoid doubt, an instruction given to a member of the ADF which would, if obeyed, contravene section 10 or 11 of this Act is not a lawful command for the purposes of section 27 of the Defence Force Discipline Act 1982.


 

Part 3Defences

14  Clearing of cluster munitions

                   Part 2 of this Act does not apply in relation to conduct undertaken with the intention of clearing or rendering safe submunitions which have been deployed but which have not exploded.

15  Education in relation to cluster munitions

                   Part 2 of this Act does not apply in relation to conduct undertaken in order to educate civilians regarding the dangers of approaching or handling cluster munitions, container units or submunitions.

16  Decommissioning

                   Part 2 of this Act does not apply in relation to conduct undertaken in order to decommission or destroy cluster munitions, container units or submunitions in accordance with Part 4 of this Act.


 

Part 4Decommissioning

17  Minister to decommission munitions

                   The Minister with responsibility for defence must cause all cluster munitions, container units and submunitions in the possession or control of the Australian Defence Force to be decommissioned or safely destroyed within one year of the commencement of this Act.

18  Report on stockpiles and decommissioning plan

                   The Minister with responsibility for defence must cause to be tabled in both Houses of the Parliament within three months after the commencement of this Act a report which:

                     (a)  identifies all stockpiles of cluster munitions, container units and submunitions in the possession or control of the Australian Defence Force, whether in Australia or overseas; and

                     (b)  sets out a plan for the decommissioning or safe destruction of all such cluster munitions, container units and submunitions within one year of the commencement of this Act.

19  Cluster munitions which have been deployed

                   If, as a result of an offence under this Act, a cluster munition is deployed, whether in Australia or in another country, then that munition must be cleared, removed or destroyed in accordance with Australia’s obligations under the Protocol on Explosive Remnants of War to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects.