Cluster Munitions Prohibition Act 2009

1: Title
This Act is the Cluster Munitions Prohibition Act 2009.
2: Commencement
1: This Act comes into force on a date appointed by the Governor-General by Order in Council.
2: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 2(1) brought into force 1 August 2010 clause 2 Cluster Munitions Prohibition Act Commencement Order 2010 Section 2(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
1: Preliminary provisions
3: Purpose
The purpose of this Act is to implement New Zealand's obligations under the Convention.
4: Obligations to which persons exercising power or discretion must have regard
A person who is exercising a power or discretion under this Act must have regard to New Zealand's obligations under the Convention.
5: Interpretation
1: In this Act, unless the context otherwise requires,— Armed Forces section 2(1) authorised cluster munition section 15 chief executive cluster munition section 6 Convention Schedule Customs officer section 5(1) dispenser enforcement officer section 2(1) explosive bomblet
a: that is not self-propelled; and
b: that weighs less than 20 kilograms; and
c: that is designed to function by detonating an explosive charge prior to, on, or after impact; and
d: that, in order to perform its task, is dispersed or released by a dispenser explosive submunition
a: that is designed to function by detonating an explosive charge prior to, on, or after impact; and
b: that, in order to perform its task, is dispersed or released by a cluster munition funds
a: means assets of every kind, whether tangible or intangible, moveable or immoveable, however acquired; and
b: includes legal documents or instruments (for example, bank credits, travellers' cheques, bank cheques, money orders, shares, securities, bonds, drafts, and letters of credit) in any form (for example, in electronic or digital form) evidencing title to, or an interest in, assets of any kind mine section 2(1) Minister Ministry officer section 7 Police employee section 4 self-deactivating self-destruction mechanism
a: secures the destruction of that munition; and
b: functions automatically; and
c: is in addition to the munition's primary initiating mechanism transfer
a: includes—
i: importation into, and exportation from, New Zealand; and
ii: the transfer of title to, and control over, cluster munitions; but
b: does not include the transfer of territory containing cluster munition remnants unexploded submunition
2: Unless the context otherwise requires, terms and expressions used and not defined in this Act but defined in the Convention have the same meaning as in the Convention. Section 5(1) Customs officer amended 1 October 2018 section 443(3) Customs and Excise Act 2018
6: Meaning of cluster munition
A cluster munition
a: includes those explosive submunitions; but
b: does not include—
i: a mine; or
ii: a munition or submunition that is designed—
A: to dispense flares, smoke, pyrotechnics, or chaff; or
B: to produce electrical or electronic effects; or
iii: a munition that is designed exclusively for an air defence role; or
iv: a munition that, in order to avoid indiscriminate effects and the risks posed by unexploded submunitions, has all of the following characteristics:
A: each munition contains fewer than 10 explosive submunitions:
B: each explosive submunition weighs more than 4 kilograms:
C: each explosive submunition is designed to detect and engage a single target object:
D: each explosive submunition is equipped with an electronic self-destruction mechanism:
E: each explosive submunition is equipped with an electronic self-deactivating feature.
7: Meaning of officer
In this Act, unless the context otherwise requires, officer
a: a Police employee:
b: a member of the Armed Forces:
c: a Customs officer:
d: an enforcement officer.
8: Act binds the Crown
This Act binds the Crown.
9: Application of Act in New Zealand and elsewhere
1: This Act applies to all acts done or omitted in New Zealand.
2: This Act also applies to all acts done or omitted outside New Zealand by—
a: a New Zealand citizen; or
b: a person who is ordinarily resident in New Zealand but not the citizen of any State; or
c: a member of the Armed Forces; or
d: a body corporate, or a corporation sole, incorporated in New Zealand.
3: Nothing in this section limits the application of section 7 8 8A
2: Activities related to cluster munitions
1: Offences and exceptions related to cluster munitions
10: Offences relating to cluster munitions
1: A person who does any of the following things commits an offence:
a: uses a cluster munition:
b: develops, produces, or otherwise acquires a cluster munition:
c: possesses, retains, or stockpiles a cluster munition:
d: transfers a cluster munition, directly or indirectly, to another person:
e: in any way assists, encourages, or induces another person to engage in any conduct described in any of paragraphs (a) to (d).
2: A person commits an offence who provides or invests funds with the intention that the funds be used, or knowing that they are to be used, in the development or production of cluster munitions.
3: A member of the Armed Forces also commits an offence if he or she expressly requests the use of cluster munitions when—
a: he or she is engaged in operations, exercises, or other military activities with the armed forces of a State that is not a party to the Convention; and
b: the choice of munitions used is within the exclusive control of the Armed Forces.
4: A person who commits an offence against subsection (1), (2), or (3) is liable on conviction
5: Subsection (1) is subject to section 11
6: This section does not limit any of the following:
a: the Anti-Personnel Mines Prohibition Act 1998
b: the provisions of the Arms Act 1983
c: the Hazardous Substances and New Organisms Act 1996 Section 10(4) amended 1 July 2013 section 413 Criminal Procedure Act 2011
11: Exceptions to offences in section 10(1)
1: Despite section 10(1)
a: in the course of his or her employment or duties; and
b: for the purposes of developing, or training persons in, techniques of cluster munition detection, clearance, or destruction; and
c: in compliance with any notice given under section 15
2: Despite section 10(1)
a: in the course of his or her employment or duties; and
b: for the purposes of—
i: destroying it; or
ii: retaining it pending its destruction; or
iii: transferring it so that it can be destroyed.
3: Despite section 10(1)
a: possessing a cluster munition until an officer collects it from him or her or destroys it; or
b: giving the cluster munition to an officer who is to collect it from him or her or destroy it.
4: The circumstances are—
a: that the person complies with section 17
b: that, as soon as practicable after becoming aware that he or she possesses the cluster munition, the person takes all reasonable steps to ensure that it is not used before an officer can collect or destroy it.
5: Despite section 10(1)
a: for the purposes of—
i: destroying it; or
ii: enabling another person to destroy it; or
iii: rendering it harmless; or
iv: enabling another person to render it harmless; and
b: in accordance with the Convention.
6: A member of the Armed Forces does not commit an offence against section 10(1)
12: Application of this subpart to certain explosive bomblets
The provisions of this subpart apply, with any necessary modifications, to explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft, as if those explosive bomblets were cluster munitions.
2: Actions in relation to cluster munitions
13: Seizure, forfeiture, and destruction of cluster munitions
1: A cluster munition in respect of which an offence against section 10
a: may be seized without warrant by an officer; and
b: if not owned by the Crown, is forfeit to the Crown; and
c: must be either—
i: authorised under section 15
ii: destroyed by an officer.
2: A cluster munition to be destroyed under subsection (1)﻿(c)﻿(ii) must be retained, pending destruction, as the Minister thinks fit.
14: Application of Customs and Excise Act 2018 to import and export of cluster munitions
The provisions of the Customs and Excise Act 2018 section 388(1)﻿(a) or (b) section 10(1) subpart 4 Section 14 replaced 1 October 2018 section 443(3) Customs and Excise Act 2018
15: Minister may authorise cluster munitions for certain purposes
1: For the purposes of developing, or training persons in, techniques of cluster munition detection, clearance, or destruction, the Minister may from time to time, by notice in writing, authorise cluster munitions to be used, acquired, possessed, retained, or transferred.
2: The Minister must not make a notice under subsection (1) if the making of the notice will result in the total number of cluster munitions authorised by all notices made under subsection (1) exceeding the number determined for the time being by the Minister under subsection (3).
3: The Minister must from time to time specify, by notice in the Gazette
4: Section 15(4) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
3: Information
16: Purpose of this subpart
The purpose of this subpart is to ensure—
a: that the chief executive has knowledge of dealings with cluster munitions that facilitates the making of New Zealand's reports or clarifications under the Convention; and
b: that New Zealand is otherwise able to fulfil its obligations under the Convention.
17: Supply of information
1: Any person who uses, develops, produces, otherwise acquires, possesses, retains, or transfers a cluster munition must—
a: notify the Minister of the cluster munition as soon as practicable; and
b: keep records in relation to the cluster munition and the purpose to which the cluster munition is put; and
c: prepare from those records, and send to the chief executive, periodic reports relating to the cluster munition that are sufficient to enable the Minister to determine whether the Convention, the provisions of this Act, and any regulations made under this Act are being complied with.
2: A person commits an offence who, without reasonable excuse, refuses or fails to comply with subsection (1).
3: A person commits an offence who, in any document prepared under subsection (1), makes a statement or omits any matter knowing that, or being reckless as to whether, the statement or omission makes the document false or misleading in a material particular.
4: A person who commits an offence against subsection (2) or (3) is liable on
5: Nothing in this section applies to a person whose conduct in relation to a cluster munition is, by reason of section 11(5) Section 17(4) amended 1 July 2013 section 413 Criminal Procedure Act 2011
4: Miscellaneous provisions
18: Attorney-General's consent to prosecutions required
1: No proceedings for any offence against section 10
2: However, a person alleged to have committed an offence against section 10
3: Section 400
19: Regulations
1: The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a: providing for any matter that is necessary or desirable for the purpose of implementing the Convention:
b: prescribing offences in respect of the contravention of, or non-compliance with, any regulations made under this Act:
c: prescribing penalties on
d: providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
2: The Governor-General may from time to time, by Order in Council,—
a: amend the Schedule
b: revoke the Schedule
3: The following are secondary legislation ( see Part 3
a: regulations under this section:
b: an order under subsection (2). The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 19(1)﻿(c) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 19(3) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
20: Consequential amendments to Arms Act 1983
1: This section amends the Arms Act 1983
2: Section 2 cluster munition section 6
3: Section 3(2)﻿(a)
iva: an officer as defined by section 7
4: Section 5(3A) or cluster munitions
5: Section 18(5) or a cluster munition
6: Section 29(2) or a cluster munition anti-personnel mine
7: Section 35(5) or a cluster munition OIC SR 2010/157 2010-08-01 Arms Act 1983