Document ID: chunk:federal_register_of_legislation:C2025C00060:section:4:p5
Version: federal_register_of_legislation:C2025C00060
Segment Type: section
Provision Reference: s 4 (pt 5/44)
Character Range: 183787–186449

21 of the Convention on Cluster Munitions.

72.42  Defence—acts by military personnel of countries not party to Convention on Cluster Munitions
 (1) Section 72.38 does not apply to the stockpiling, retention or transfer of a cluster munition that:
 (a) is done by:
 (i) a member of the armed forces of a foreign country that is not a party to the Convention on Cluster Munitions; or
 (ii) a person who is connected with such forces as described in subsection (2) and is neither an Australian citizen nor a resident of Australia; and
 (b) is done in connection with the use by those forces of any of the following in Australia in the course of military cooperation or operations with the Australian Defence Force:
 (i) a base;
 (ii) 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;
 (iii) 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.
Note: A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).
 (2) This subsection 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 on Cluster Munitions:
 (a) the person is employed by, or in the service of, any of those forces;
 (b) the person is serving with an organisation accompanying any of those forces;
 (c) 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.

72.43  Forfeiture of cluster munition
 (1) This section applies if a court:
 (a) convicts someone of an offence against subsection 72.38(1); or
 (b) makes an order under section 19B of the Crimes Act 1914 relating to an offence against subsection 72.38(1).
Note: The expression offence against subsection 72.38(1) is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(2).
 (2) The court may order forfeiture to the Commonwealth of any cluster munition involved in the offence.
 (3) A cluster munition ordered to be forfeited to the Commonwealth becomes the Commonwealth's property.

72.44  Application of this Subdivision to explosive bomblets
  This Subdivision applies in relation to explosive bomblets in the same way as it applies in relation to cluster munitions.

72.45  Definitions
  In this Subdivision:
cluster munition has the meaning given by paragraph 2 of Article 2 of the Convention on Cluster Munitions.
Convention on Cluster Munitions means the