Document ID: chunk:federal_register_of_legislation:C2012A00114:clause:1_1:p3
Version: federal_register_of_legislation:C2012A00114
Segment Type: clause
Provision Reference: sch 1 cl 1 (pt 3/4)
Character Range: 7768–10377

Munitions; and
 (b) the act is not connected with the Commonwealth:
 (i) using a cluster munition; or
 (ii) developing, producing or otherwise acquiring a cluster munition; or
 (iii) stockpiling or retaining a cluster munition; or
 (iv) transferring a cluster munition; and
 (c) the act does not consist of expressly requesting the use of a cluster munition in a case where the choice of munitions used is within the Commonwealth's exclusive control.
Note 1: A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).
Note 2: The expression offence against section 72.38 is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(2).
Note 3: This section relates to paragraphs 3 and 4 of Article 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