Document ID: chunk:federal_register_of_legislation:C2025C00060:section:4:p3
Version: federal_register_of_legislation:C2025C00060
Segment Type: section
Provision Reference: s 4 (pt 3/44)
Character Range: 178560–181507

person to do any of the following acts with a cluster munition:
 (i) use it;
 (ii) develop, produce or otherwise acquire it;
 (iii) stockpile or retain it;
 (iv) transfer it to anyone; and
 (b) the other person does the act; and
 (c) the first person intends that the act be done.
Penalty: Imprisonment for 10 years.

Geographical jurisdiction
 (3) Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against this section.

Relationship with other provisions
 (4) Division 11 does not apply in relation to an offence against subsection (2).
Note 1: Later sections of this Subdivision set out defences.
Note 2: This section relates to Articles 1 and 9 of the Convention on Cluster Munitions.

72.39  Defence—acquisition or retention authorised by Defence Minister
 (1) Section 72.38 does not apply to the acquisition or retention of a cluster munition authorised under subsection (2).
Note: A defendant bears an evidential burden in relation to the matter in subsection (1): see subsection 13.3(3).
 (2) The Minister administering the Explosives Act 1961 may authorise, in writing, specified members of the Australian Defence Force or other specified Commonwealth public officials to acquire or retain specified cluster munitions for one or more of the following purposes:
 (a) the development of, and training in, cluster munition and explosive submunition detection, clearance or destruction techniques;
 (b) the development of cluster munition counter‑measures;
 (c) the destruction of the munitions.
Note 1: For specification by class see the Acts Interpretation Act 1901.
Note 2: This section relates to paragraphs 6 and 7 of Article 3 of the Convention on Cluster Munitions.
 (3) The regulations may prescribe requirements relating to authorisations under subsection (2).
 (4) An authorisation made under subsection (2) is not a legislative instrument.
 (5) The Minister described in subsection (2) may delegate his or her power under that subsection to:
 (a) the Secretary of the Department administered by that Minister; or
 (b) an SES employee in that Department.
Note: For the definition of SES employee see the Acts Interpretation Act 1901.

72.40  Defence—transfer for destruction etc.

Transfer to foreign party to Convention on Cluster Munitions
 (1) Section 72.38 does not apply to the transfer of a cluster munition to a party to the Convention on Cluster Munitions for one or more of the following purposes:
 (a) the development of, and training in, cluster munition and explosive submunition detection, clearance or destruction techniques;
 (b) the development of cluster munition counter‑measures;
 (c) the destruction of the munition.
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (1): see subsection 13.3(3).
Note 2: This subsection relates to paragraph 7 of Article 3 of the Convention on Cluster Munitions.

Intended transfer to Australian Defence Force