Document ID: chunk:federal_register_of_legislation:C2025C00060:section:4:p4
Version: federal_register_of_legislation:C2025C00060
Segment Type: section
Provision Reference: s 4 (pt 4/44)
Character Range: 181253–184042

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
 (2) Subsections (3) and (4) have effect if:
 (a) a person has a cluster munition; and
 (b) the person gives notice to a police officer or member of the Australian Defence Force that the person wishes to transfer the munition to a member of the Australian Defence Force or other Commonwealth public official; and
 (c) the person gives notice without delay after the first time the person has the cluster munition after the commencement of this subsection.
 (3) Subsection 72.38(1) does not apply to the person stockpiling or retaining the cluster munition at any time before the person transfers it to a member of the Australian Defence Force or other Commonwealth public official.
 (4) Subsection 72.38(1) does not apply to the person transferring the cluster munition to a member of the Australian Defence Force or other Commonwealth public official.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2) and whichever of subsections (3) and (4) is relevant: see subsection 13.3(3).

72.41  Defence—acts by Australians in military cooperation with countries not party to Convention on Cluster Munitions
  A person who is an Australian citizen, is a member of the Australian Defence Force or is performing services under a Commonwealth contract does not commit an offence against section 72.38 by doing an act if:
 (a) the act is done in the course of military cooperation or operations with a foreign country that is not a party to the Convention on Cluster 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