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Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2007

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2004-2005-2006

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

LAW AND JUSTICE LEGISLATION AMENDMENT (MARKING OF PLASTIC EXPLOSIVES) BILL 2006

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock, MP)



LAW AND JUSTICE LEGISLATION AMENDMENT (MARKING OF PLASTIC EXPLOSIVES) BILL 2006

 

 

GENERAL OUTLINE

 

The Law and Justice Legislation Amendment (Marking of Plastic Explosives) Bill 2006 (the Bill) seeks to give effect to the Convention on the Marking of Plastic Explosives for the Purpose of Detection (Montreal, 1991) (the Convention).  This will enable the Government to accede to this Convention.

 

The Convention arose as a consequence of the bombing of Pan Am Flight 103 over Lockerbie, Scotland, in December 1988.  It was drafted and is administered by the International Civil Aviation Organization (ICAO).

 

The Convention opened for signature in Montreal on 1 March 1991 by States participating in the International Conference on Air Law held at Montreal from 12 February to 1 March 1991 (Article 13.1).  The Convention has been in force since 21 June 1998 and as at March 2006, had 123 Parties.

 

The Convention is one of the final United Nations counter-terrorism instruments to be acceded to by Australia.  Accession to the Convention will signify Australia’s continued strong commitment to combat the threat of terrorism both within and outside Australia.

 

The Convention aims to deter the misuse by terrorists, of plastic explosives, by requiring that a detection agent or odourant, be incorporated into the manufacture of plastic explosives. 

 

The Convention obliges State Parties to take necessary and effective measures to prohibit and prevent the manufacture in its territory, the movement into or out of its territory, and the possession and transfer, of unmarked plastic explosives.

 

This Bill proposes to insert new offences into Chapter 4 of the Criminal Code Act 1995 entitled, ‘The integrity and security of the international community and foreign governments’.  Consistent with the general approach of the Criminal Code, the amendments will assemble these serious offences in the central statute.

 

The Bill makes it an offence to manufacture, import, export, traffic in, or possess plastic explosives which have not been marked with a detection agent as prescribed within the terms of the Technical Annex to the Convention.

 

The Bill however provides exemptions to the main offences, where the plastic explosives are manufactured or held in limited quantities for use in authorised research, development and testing of plastic explosives, for forensic science purposes and authorised training exercises, or where the plastic explosives are destined to be incorporated into an authorised military device within three years from the date of the Convention’s entry into force for Australia.

 

The Bill adheres to the Convention in providing that existing stocks of unmarked plastic explosives may be used up within three years from the date of the Convention’s entry into force.

 

Consistent with the Convention, is the provision in the Bill, which provides that the unmarked plastic explosives manufactured and held for authorised defence purposes, and not incorporated into an authorised military device shall be used, destroyed, marked or rendered permanently ineffective, within fifteen years from the date of the Convention’s entry into force.

 

The Bill preserves the existing powers of law enforcement officers, including Customs officials and the Australian Federal Police, in relation to terrorism offences.

 

The Bill is not intended to override any existing State or Territory legislation or offences dealing with plastic explosives.

 

 

Abbreviations used in the Explanatory Memorandum

 

Convention                          Convention on the Marking of Plastic Explosives for the         Purpose of Detection (done at Montreal, 1991)

 

AAT                                     Administrative Appeals Tribunal

 

AFP Act                               Australian Federal Police Act 1979

 

ASIO Act                            Australian Security Intelligence Organisation Act 1979

 

Crimes Act                           Crimes Act 1914

 

Criminal Code                      Schedule to the Criminal Code Act 1995

 

Customs Act                        Customs Act 1901

 

Foreign Evidence Act          Foreign Evidence Act 1994

 

Surveillance Devices Act     Surveillance Devices Act 2004

 

TI Act                                  Telecommunications (Interception) Act 1979

 



LAW AND JUSTICE LEGISLATION AMENDMENT (MARKING OF PLASTIC EXPLOSIVES) BILL 2006

 

FINANCIAL IMPACT STATEMENT

 

 

There are no financial implications arising from the offence provisions in this Bill. 

 

However, there are expected to be some financial implications arising from some non-offence provisions of the Bill.  The extent of the financial implications is difficult to quantify. 

 

The Bill adopts Article 4.2 of the Convention and provides that existing stocks of plastic explosives not held by military or police authorities, are destroyed, consumed for purposes consistent with the Convention, marked or rendered permanently ineffective, within three years from the date of the Convention’s entry into force. 

 

The Bill also adopts Article 4.3 of the Convention and provides that existing stocks of plastic explosives held by military and police authorities that are not incorporated as an integral part of a duly authorised military device, are destroyed, consumed for purposes consistent with the Convention, marked or rendered permanently ineffective, within fifteen years from the date of the Convention’s entry into force.

 

A principle feature of the Bill, which requires the marking of plastic explosives with a prescribed marker or detection agent, is expected to impact upon the costs of production of plastic explosives.   The Convention requires that 1.0% of the most commonly used marker, DMNB, be incorporated into a plastic explosive. 

 

The main impact of these costs will be borne by ADI Limited, the main producer and supplier in Australia of plastic explosives, and by the Department of Defence. 

 

Costs will also be incurred in compliance with the Convention and in particular in monitoring and regulation of stocks of plastic explosives.  It is expected that the responsibilities for these costs will be borne individually by each organisation with stocks of plastic explosives. 

 

Costs are likely to be incurred by manufacturers and entities who store plastic explosives, in complying with the provisions requiring specific packaging and labelling of marked plastic explosives.

 

To assist both government and non-government sectors in complying with the terms of the Convention, the Bill adopts the terms of the Convention which provide for the use of existing stocks of unmarked plastic explosives for a certain period.  These provisions will assist both sectors in minimising costs associated with compliance with the terms of the Convention.

 

Schedule 2 of the Bill provides generally for the Australian Customs Service to have appropriate powers to regulate, investigate, search and seize in relation to unmarked plastic explosives.  These powers are similar in scope to those contained in the Law and Justice Legislation Amendment (Serious Drug and Other Measures) Act 2005

 

The financial implications to the Australian Customs Service associated with these powers are not expected to be significant.

 

It is possible that the Australian Customs Service will also incur costs associated with the regulation of the import and export of marked plastic explosives, once plastic explosives are included as prohibited imports and prohibited export under the Customs (Prohibited Imports) Regulations 1956 and the Customs (Prohibited Exports) Regulations 1958 .  

 

Section 72.17 of the Bill creates an offence for a person to manufacture a plastic explosive and not package and legibly display details, including the date of manufacture, on the package.  Costs associated with the requirement to package and display the date of manufacture are not expected to be significant.



LAW AND JUSTICE LEGISLATION AMENDMENT (MARKING OF PLASTIC EXPLOSIVES) BILL 2006

 

 

NOTES ON CLAUSES

 

Clause 1:  Short Title

 

This clause is a formal provision specifying the title of the Bill.

 

Clause 2:  Commencement

 

The Clause sets out when the various parts of the Bill commence.

 

Sections 1-3 of the Bill (the short title, the commencement and the schedules provision) will commence on the day the Bill receives Royal Assent.

 

Schedules 1, 2 and 3 of the Bill commence on the day after the end of six months from the day the Act receives Royal Assent and the date upon which the Convention comes into force.  The Minister must announce in the Gazette the day on which the Convention comes into force for Australia.  If the Convention does not come into force for Australia, Schedules 1, 2 and 3 will not commence.

 

Clause 3: Schedule(s)

 

This clause explains that the Schedules to this Bill will amend or repeal the Acts set out in those Schedules in accordance with the provisions of each Schedule.

 

Schedule 1 provides for amendments to the Criminal Code.

 

Schedule 2 provides for amendments to the Customs Act.

 

Schedule 3 provides for necessary consequential amendments to the AFP Act, the ASIO Act, the Crimes Act, the Foreign Evidence Act, the Surveillance Devices Act and the TI Act. 

 



 

Schedule 1 - Amendment to the Criminal Code

 

Item 1

 

The Bill inserts a new Subdivision B into Division 72 of the Criminal Code.  The existing heading for Division 72 is ‘Division 72 - International terrorist activities using explosive or lethal devices’, and reflects the international aspect of the offences in this Division.

 

The Bill proposes to insert new offences into Division 72 relating to the control over the manufacture, possession, import and export and trafficking of plastic explosives. 

 

Item 1 removes the existing heading of ‘Division 72 - International terrorist activities using explosive or lethal devices’ and substitutes a more appropriate heading of ‘Division 72 - Explosives and lethal devices’, to reflect that the offences within the Division have an international and domestic focus.

 

Item 2

 

Item 2 inserts a new subheading into Division 72 of ‘Subdivision A - International terrorist activities using explosive or lethal devices’.  The new subheading reflects that the current provisions contained in Division 72 are now provided for in Subdivision A of that Division.

 

Items 3, 4, 5, 6 and 7

 

These Items are consequential amendments providing that the existing provisions of Division 72 of the Criminal Code will now be contained within Subdivision A of that Division.

 

Section 72.7 of the Criminal Code has a current heading of ‘Bringing proceedings under this Division’.  Item 6 also notes that this heading will be altered with the word ‘Division’ in the heading being substituted with ‘Subdivision’. 

 

Item 8

 

Item 8 inserts a new Subdivision B into Division 72 of the Criminal Code.  Subdivision B will be headed ‘Plastic explosives’ and will contain provisions for offences of trafficking, importing, exporting, manufacturing and possessing unmarked plastic explosives and broadly give effect to the terms of the Convention.

 

Proposed section 72.11           Purpose

 

Proposed section 72.11 describes the purpose of Subdivision B of Division 72 of the Criminal Code, which is to create offences relating to the unmarked plastic explosives and to give effect to the terms of the Convention.

 

In this proposed section, the Convention is referred to as the ‘Convention on the Marking of Plastic Explosives’, and not in its full form, as there is a complete definition of the Convention in the proposed Definitions section 72.36.

 

The Note below the main provision of section 72.11 explains that the Convention requires the introduction of detection agents into plastic explosives so as to render the explosives detectable by vapour detection means, and that this is known under the Convention as the marking of the explosives.

 

Proposed section 72.12           Trafficking in unmarked plastic explosives etc.

 

This proposed section creates an offence for a person to traffic in a substance, which is a plastic explosive and where the plastic explosive breaches a marking requirement. 

The term ‘traffic’ in a substance is defined fully in the proposed Definitions in section 72.36.

 

This section also requires that for a person to commit an offence of trafficking, the trafficking is not authorised under proposed sections 72.18, 72.19, 72.20, 72.21, 72.22 or 72.23.  These sections provide for special authorisations to be applied for exemptions under the Subdivision.

 

The marking requirements referred to in paragraph 72.12(1)(c) are provided for in proposed section 72.33.  A ‘marking requirement’ is defined in the proposed Definitions in section 72.36 as having the meaning given by section 72.33. 

 

The marking requirement may also be cross referenced to the Note inserted below proposed section 72.11 which explains that the Convention requires a detection agent to be introduced into a plastic explosive so as to render the explosive detectable by vapour detection means and that this process is known as the marking of the explosive.

 

In creating this offence, section 72.12 gives effect to Article 3.1 and Article 4.1 of the Convention which require a State Party to take necessary and effective measures to prohibit and prevent the movement into or out of its territory of unmarked explosives (Article 3.1) and to exercise strict and effective control over the possession and transfer of possession of unmarked plastic explosives which have been manufactured in or brought into its territory (Article 4.1). 

 

This proposed section extends the concept of ‘movement in or out of a territory’ to commercial trafficking.  A separate offence of importing or exporting of an unmarked plastic explosive is provided for in proposed section 72.13.

 

Paragraph 72.12(1)(a) does not specify a fault element for the physical act of trafficking in a substance.  In these circumstances, section 5.6 of the Criminal Code provides that where a fault element is not specified in relation to the physical element, the fault element is intention. 

 

The proposed subsection 72.12(2) explains that the fault element for the offence of trafficking in a substance and where the plastic explosive breaches a marking requirement under paragraphs 72.12(2)(a) and (b), is recklessness.  Subsection 72.12(2) has been included so as to avoid any doubt as to the fault element with respect to this offence. 

 

Under section 5.4 of the Criminal Code, a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

 

Proposed subsection 72.12(3) provides that strict liability is to apply to paragraphs (1)(c) and (d).  This is appropriate because those trafficking in such dangerous substances are in an industry where it is a reasonable expectation that they enquire about the regulation requirements, including authorisation mechanisms.  It would be onerous for the prosecution to prove a person was aware of the requirements.  Where the person accused is mistaken, section 9.2 of the Criminal Code provides that the person is not criminally responsible. 

 

The proposed penalty for breach of this section is imprisonment of 10 years.  This penalty is consistent with similar offences relating to Tier 2 goods in the Customs Act.  Tier 2 goods may include firearms, munitions and military warfare items including combat vests, knives, daggers, chemical compounds, anti-personnel sprays and gases, fissionable or radioactive substances, human body tissue and fluids, items of child pornography or of child abuse material and counterfeit credit, debit and charge cards.

 

The proposed section 72.12 contains two Notes below the main provisions in the section.   

 

Note 1 directs the reader to the specific elements of the marking requirements under proposed section 72.33.

 

Note 2 directs the reader to section 72.16 which provides for defences to an offence under section 72.12.

 

Proposed section 72.13    Importing or exporting unmarked plastic explosives etc

 

This proposed section makes it an offence for a person to import or export a substance which is a plastic explosive and where the plastic explosive breaches a marking requirement.  The marking requirements are set out in the proposed section 72.33.

 

In creating this offence, proposed section 72.13 gives effect to Article 3.1 and Article     4.1 of the Convention which require a State Party to take necessary and effective measures to prohibit and prevent the movement into or out of its territory of unmarked explosives (Article 3.1) and to exercise strict and effective control over the possession and transfer of possession of unmarked plastic explosives which have been manufactured in or brought into its territory (Article 4.1). 

 

Subsection 11.1(1) of the Criminal Code provides that a person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

 

This would mean that a person who attempted to traffic (under section 72.12), import or export (in 72.13) manufacture (72.14) or possess unmarked plastic explosives (72.15), would be guilty of attempting to commit that or those offences under 72.12, 72.13, 72.14 and 72.15, as if the offence or offences had been committed.

 

Paragraph 72.13(1)(a) does not specify a fault element for the physical act of this offence.  In these circumstances, section 5.6 of the Criminal Code provides that where a fault element is not specified in relation to the physical element, the fault element is intention. 

 

The proposed subsection 72.13(2) states that the fault element for the other parts of the offence, under paragraphs 72.13(2)(a) and (b), is recklessness.  In a prosecution for this offence, it would have to be proved beyond reasonable doubt that a person was reckless as to whether the substance was a plastic explosive and the plastic explosive breached a marking requirement. Subsection 72.13(2) has been included so as to avoid any doubt as to the fault element with respect to this offence.

 

This is appropriate because those trafficking in such dangerous substances are in an industry where it is a reasonable expectation that they enquire about the regulation requirements, including authorisation mechanisms.  It would be onerous for the prosecution to prove a person was aware of the requirements.  Where the person accused is mistaken, section 9.2 of the Criminal Code provides that the person is not criminally responsible. 

 

The proposed penalty for an offence under this section is 10 years imprisonment.  This penalty is consistent with similar offences relating to Tier 2 goods in the Customs Act.  Tier 2 goods may include firearms, munitions and military warfare items including combat vests, knives, daggers, chemical compounds, anti-personnel sprays and gases, fissionable or radioactive substances, human body tissue and fluids, items of child pornography or of child abuse material and counterfeit credit, debit and charge cards.

 

The proposed section 72.13 contains two Notes: 

 

Note 1 directs the reader to the specific elements of the marking requirements under proposed section 72.33.

 

Note 2 directs the reader to section 72.16 which provides for defences to an offence under section 72.13.

 

Proposed section 72.14           Manufacturing unmarked plastic explosives etc

 

This proposed section makes it an offence to engage in the manufacture of a substance or exercise control or direction over the manufacture of a substance where the substance is a plastic explosive and the plastic explosive breaches a marking requirement (as set out in proposed section 72.24).

 

In creating this offence, the proposed section gives effect to one of the main obligations of the Convention, Article 2, which states that each State Party must take the necessary and effective measures to prohibit and prevent the manufacture in its territory of unmarked explosives. 

 

The aim of this section is to create an offence for an individual who is engaged in the manufacturing process as well as a person who lies behind the individual who is engaging in the manufacturing process, such as an employer, leader, manager, director, controller or another such person.

 

The proposed penalty for an offence under this section is 2 years imprisonment.

 

Paragraph 72.14(1)(a) does not specify a fault element for the physical act of this offence.  In these circumstances, section 5.6 of the Criminal Code provides that where a fault element is not specified in relation to the physical element, the fault element is intention. 

 

The proposed subsection 72.14(2) states that the fault element for the other parts of the offence, under paragraph 72.14(2)(a) and (b), is recklessness.  In a prosecution for this offence, it would have to be proved beyond reasonable doubt that a person was reckless as to whether the substance was a plastic explosive and the plastic explosive breached a marking requirement.  Subsection 72.14(2) has been included so as to avoid any doubt as to the fault element with respect to this offence.

 

This is appropriate because those trafficking in such dangerous substances are in an industry where it is a reasonable expectation that they enquire about the regulation requirements, including authorisation mechanisms.  It would be onerous for the prosecution to prove a person was aware of the requirements.  Where the person accused is mistaken, section 9.2 of the Criminal Code provides that the person is not criminally responsible. 

 

The proposed section 72.14 contains two Notes: 

 

Note 1 directs the reader to the specific elements of the marking requirements under proposed section 72.33.

 

Note 2 directs the reader to section 72.16 which provides for defences to an offence under section 72.14.

 

Proposed section 72.15           Possessing unmarked plastic explosives etc.

 

This proposed section makes it an offence for a person to possess a substance which is a plastic explosive where the plastic explosive breaches the marking requirement. 

 

The term, ‘marking requirement’ is defined in the proposed Definitions in section 72.36 as having ‘the meaning given by section 72.33’.  Note 2 below the main provision of this section also directs the reader to the existence of provisions relating to marking requirements, in proposed section 72.33.  The marking requirements in section 72.33 are more fully explained in the commentary relating to that section.

 

In creating this offence, this proposed section aims to give effect to Article 4.1 of the Convention which requires a State Party to take necessary and effective measures to exercise strict and effective control over the possession and transfer of possession of unmarked explosives which have been manufactured in or brought into its territory prior to the entry into force of the Convention, so as to prevent their diversion or use for purposes inconsistent with the objectives of the Convention.

 

Paragraph 72.15(1)(a) does not specify a fault element for the physical act of possessing a substance.  In these circumstances, section 5.6 of the Criminal Code provides that where a fault element is not specified in relation to the physical element, the fault element is intention. 

 

The proposed subsection 72.15(2) states that the fault element for the other parts of the offence, under paragraphs 72.15(2)(a) and (b), is recklessness.  In a prosecution for this offence, it would have to be proved beyond reasonable doubt that a person was reckless as to whether the substance was a plastic explosive and the plastic explosive breached a marking requirement.  Subsection 72.15(2) has been included so as to avoid any doubt as to the fault element with respect to this offence.

 

This is appropriate because those trafficking in such dangerous substances are in an industry where it is a reasonable expectation that they enquire about the regulation requirements, including authorisation mechanisms.  It would be onerous for the prosecution to prove a person was aware of the requirements.  Where the person accused is mistaken, section 9.2 of the Criminal Code provides that the person is not criminally responsible. 

 

The proposed penalty for an offence under this section is 2 years imprisonment.

 

Note 1 directs the reader to the specific elements of the marking requirements under proposed section 72.33.

 

Note 2 directs the reader to section 72.16 which provides for defences to an offence under section 72.15.

 

Proposed section 72.16           Defences

 

Proposed section 72.16 sets out the defences available to a person charged with an offence against 72.12, 72.13, 72.14 or 72.15 and where the prosecution alleges that the plastic explosive breached a particular marking requirement.  Proposed section 72.16 provides that in these circumstances it is a defence if the defendant proves he or she had no reasonable grounds for suspecting that the plastic explosive breached that marking requirement.

 

Proposed section 72.33 sets out the two marking requirements under the legislation.  A full explanation of the marking requirements is provided under proposed section 72.33.

 

The Note under the main provision of proposed 72.16, explains that the defendant bears a legal burden in relation to proving the contrary.  The Note refers to section 13.4 of the Criminal Code.

 

Section 13.4 of the Criminal Code provides that a legal burden of proof is imposed on the defendant if and only if the law expressly specifies that there is a legal burden of proof or requires the defendant to prove the matter or creates a presumption that the matter exists unless the contrary is proved.  

 

Section 13.5 of the Criminal Code provides that a legal burden of proof on the defendant must be discharged on the balance of probabilities. 

 

A legal burden of proof for the proposed defences is warranted because the accused is handling dangerous plastic explosives, where it is reasonable to expect that he or she will have appropriate training and expertise to establish the technical and personal experience required of the defence.  All are matters which would be difficult for the prosecution to prove in the negative if a lower evidential burden applied and was discharged by the defence.

 

A second Note refers the reader to section 72.33 which outlines the marking requirements.

 

Proposed subsection 72.16(2) provides that if a person is charged with an offence under 72.12, 72.13 or 72.15 and the prosecution alleges that the plastic explosive breached a marking requirement, it is a defence if the defendant proves that, at the time of the alleged offence, the plastic explosive contained a detection agent and the concentration of that detection agent was not less than the minimum manufacture concentration for the detection agent, and the detection agent was homogenously distributed throughout the plastic explosive.

 

A Note explains that the defendant bears a legal burden in relation to proving the contrary.  The Note refers to section 13.4 of the Criminal Code.

 

A second Note refers the reader to section 72.33 which outlines the marking requirements.

 

A third Note refers the reader to section 72.34 which outlines the minimum manufacture concentration. 

 

Proposed section 72.17   Packaging requirements for plastic explosives

 

This proposed section creates an offence to be applied to a person manufacturing a substance which is a plastic explosive and for the person not to package the substance and legibly display information on the package, within 24 hours after the manufacture of the plastic explosive.  Paragraph 72.17(1)(c) requires that the plastic explosive be contained, enclosed or packaged in a wrapper and that the wrapper contain particular information on it.

 

The information required to be legibly displayed on the outer surface of the wrapper includes the words ‘plastic explosive’ in upper case lettering, the date of manufacture of the plastic explosive, the type of plastic explosive if it is a prescribed type, the name of the detection agent and the concentration of that detection agent expressed as a percentage by mass. 

 

This proposed section broadens the scope of the Convention.  Current labelling specifications from Australian Standards (DEF(AUST)5615), UN Recommendations on the Transport of Dangerous Goods (ISBN 92-1-139092-3) and the Australian Explosives Code (ISBN 0-642-41486-6) do not require that the packaging identify the product as a ‘plastic explosive’.  Instead, the product may be identified generally as an ‘explosive’ or a ‘demolition’ product.

 

The creation of this offence is aimed at minimising confusion between a package of plastic explosives and any other explosive product, and to ensure that specific details of the product are easily identified. 

 

The offence places the onus of ensuring compliant packaging and labelling on the manufacturer of the plastic explosive.  The offence is aimed at the actual manufacturer of the plastic explosive and not the director or controller behind the manufacturing, as is the case with the ‘manufacturing’ offence in proposed section 72.14.

 

Paragraph 72.17(1)(a) does not specify a fault element for the physical act of possessing a substance.  In these circumstances, section 5.6 of the Criminal Code provides that where a fault element is not specified in relation to the physical element, the fault element is intention. 

 

The proposed subsection 72.17(2) states that the fault element for the requirements of the offence, under paragraph 72.17(2)(b) and (c), is recklessness.  In a prosecution for this offence, it would have to be proved beyond reasonable doubt that a person was reckless as to whether the substance was a plastic explosive and failed, within a reasonable time after the manufacture of the plastic explosive, to cause the package to be appropriately labelled with the labelling requirements prescribed in subparagraphs 72.17(2)(c)(i) to (v). 

 

The proposed penalty for an offence under this section is 2 years imprisonment.

 

Proposed section 72.18           Authorisation for research etc

 

Proposed subsection 72.18(1) provides for exemptions to the offences of trafficking,  importing, exporting and possessing plastic explosives (contained in subsections 72.12, 72.13, 72.14 and 72.15 respectively), where the activities are covered by a written authorisation in force under subsection 72.18(2) written by a responsible Minister.

 

A ‘responsible Minister’ is defined in proposed section 72.36 as meaning either the Minister or the Minister for Defence.  The reference in the definition to ‘the Minister’ would be the Attorney-General, who currently administers this Division of the Criminal Code.

 

Subsection 72.18(3) provides that an authorisation given under subsection 72.18(1) must specify the grounds on which it is given.

 

The three categories of exemptions which a responsible Minister may authorise under subsection 72.18(2) are explained further:

 

1.       Paragraph 72.18(2)(a) provides for the first category of exemption.

 

This exemption is intended to enable the authorised manufacture, traffic, import, export and possession of unmarked plastic explosives where the unmarked plastic explosives are used for authorised research, development, testing of new or modified explosives, development or testing of explosives detection equipment, training in explosives detection and for forensic science purposes.

 

The overall purpose of this first category of exemptions under paragraph 72.18(2)(a) is to give effect to the terms of subparagraph 2.a, b and c of Part 1 of the Technical Annex to the Convention.  Paragraph 2 of Part 1 of the Technical Annex provides that explosives used for the purposes set out in the paragraph are not considered plastic explosives as long as they are held, used or incorporated for the ‘research, development, testing, training, etc’ purposes set in subparagraphs 2.a to d inclusive.

 

2.       The second category of exemption is set out under paragraph 72.18(2)(b) which provides that a responsible Minister must not give an authorisation under subsection 72.18(2) unless the responsible Minister is satisfied that both:

(i)                  the plastic explosive is an integral part of an explosive device that was manufactured exclusively for defence purposes; and

(ii)                the explosive device is to be used exclusively for defence purposes.

 

3.       third category of exemption is set out under paragraph 72.18(2)(c) which provides that a responsible Minister must not give an authorisation unless satisfied that the plastic explosive will, within 3 years after commencement of the section, become an integral part of an explosive device manufactured exclusively for defence purposes.

 

The purpose of this exemption under paragraph 72.18(2)(c) is to give effect to subparagraph 2.d of Part 1 of the Technical Annex which provides that plastic explosives which are destined to be incorporated as an integral part of duly authorised military ‘devices’ within three years after the Convention’s coming into force are not to be considered ‘plastic explosives’.  Subparagraph 2.d of Part 1 of the Technical Annex also states that such ‘devices’ produced in this three year period shall be deemed to be authorised military devices within paragraph 4 of Article 4 of the Convention. 

 

Paragraph 4 of Article 4 of the Convention provides that a State Party shall take necessary measures to destroy, as soon as possible, unmarked explosives which are discovered and which are not referred to in preceding Articles, other than stocks of unmarked explosives held by authorities performing military or policy functions and which are incorporated as an integral part of duly authorised military devices at the date of the Convention’s entry into force.

 

The proposed subsection 72.18(1) notes that the defendant bears the evidential burden in relation to the matter in subsection (1).  The note also refers to subsection 13.3(3) of the Criminal Code which provides that a defendant wishing to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter and that the exception, exemption, excuse, qualification or justification need not accompany the destruction of the offence.

 

Subsection 13.3(6) of the Criminal Code defines ‘evidential burden’ as the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

 

Conditions and restrictions

 

Subsections 72.18(4) and (5) set out the conditions and restrictions to a responsible Minister’s authorisation issued under subsection 72.18(1). 

 

Subsection 72.18(4) provides that an authorisation of a responsible Minister issued under subsection 72.18(1) must specify the grounds upon which it is given.

 

Subsection 72.18(5) provides the Minister must not give an authorisation under subsection 72.18(1) on the grounds covered in subsection 72.18(2) unless the authorisation is subject to a condition imposing a limit on the quantity of the plastic explosive. 

 

Criteria

 

Proposed subsection 72.18(6) sets out the criteria that a responsible Minister must consider when considering the granting of an authorisation under this section. 

 

In exercising a power conferred under this section, in relation to trafficking, the importing, exporting, manufacturing or possessing a plastic explosive, a responsible Minister must have regard to matters including the Convention, whether the traffic, importing, exporting, manufacturing or possessing is reasonable and any other such matters (if any) as the responsible Minister considers relevant.

 

This proposed section provides a responsible Minister with broad powers in considering an authorisation for exemption.

 

A responsible Minister’s power to authorise an exemption under this section may be delegated to those particular persons referred to under the delegation power in proposed sections 72.28 and 72.29.

 

A decision by a responsible Minister to refuse to issue an authorisation or to specify a condition or restriction in an authorisation made under subsection 72.18(1) may be reviewed, upon an application, by the AAT, as provided by proposed section 72.30.  However subsection 72.30(2) provides that an application to review a decision to specify a condition or restriction in an authorisation may only be made by a person to whom the authorisation applies. 

 



Proposed section 72.19           Authorisation for defence and police purposes - 15 year limit

 

This proposed section seeks to give effect to the terms of the Convention and in particular, to Article 4.3. 

 

Article 4.3 of the Convention provides that each State Party shall take necessary measures to ensure that all stocks of explosives manufactured prior to the Convention’s entry into force, and held by military and police authorities and which are not incorporated as an integral part of a duly authorised military device, are destroyed, consumed for purposes not inconsistent with the terms of the Convention, marked or rendered permanently ineffective, within 15 years from the date of the Convention’s entry into force.

 

Proposed subsection 72.19(1) provides for exemptions to the offences of trafficking, importing, exporting and possessing unmarked plastic explosives where an authority has been issued by a responsible Minister, for use for defence and police purposes. 

 

Under proposed subsection 72.19(1), a responsible Minister may provide a written authorisation for trafficking in, importing, exporting or possessing an unmarked plastic explosive that was manufactured before the commencement of this section or manufactured after the commencement of this section in accordance with an authorisation given under subsection 72.21(2).

 

An authorisation under subsection 72.21(2) may be given by a responsible Minister in order to allow for a 12 month period for the manufacture, or trafficking, or possession of a plastic explosive manufactured after the commencement of section 72.21.

 

Proposed subsection 72.19(2) provides that a responsible Minister may not give an authorisation under subsection 72.19(1) unless the responsible Minister is satisfied that the plastic explosive is exclusively for use in connection with the operation of the Australian Defence Force, the operation in Australia of a visiting force (within the meaning of the Defence (Visiting Forces) Act 1963 ), or the operation of the Australian Federal Police or the police force or police service of a State or Territory.

 

In considering an application for an authorisation under this subsection, and where the authorisation may affect the operation of the police service of a State or Territory, the responsible Minister or his delegate (exercising the delegated power under section 72.27 or 72.28) will, in practice, consult with the relevant State or Territory that may be affected by the authorisation.

 

The important element in the authorisation power under proposed subsection 72.19(2) is that the plastic explosive is used ‘exclusively for or in connection with’ those purposes listed under paragraphs (a) to (c).

 

The Minister’s authorisation giving effect to Article 4.2 of the Convention is proposed to be extended to visiting foreign defence forces, to enable the possibility of existing stocks of plastic explosive held by the Australian Defence Force, to be used in joint military exercises.

 

Conditions and restrictions

 

Proposed subsection 72.19(3) allows the Minister to issue an authorisation subject to conditions and restrictions which are specified in the authorisation.

 

Criteria

 

Proposed subsection 72.19(4) provides that in exercising the authorisation power under this section in relation to the trafficking, importing, exporting or possessing a plastic explosive, a responsible Minister must have regard to the Convention, whether the trafficking, import, export or possession is reasonable and any other matters that the responsible Minister considers relevant.

 

Sunset

 

Proposed subsection 72.19(5) is a sunset provision, providing that this section ceases to have effect at the end of 15 years after its commencement.  This provision gives effect to the 15 year time limit provided under Article 4.3 of the Convention.

 

Proposed section 72.20           Authorisation for existing stocks - 3 year limit

 

Proposed section 72.20 is intended to give effect to Article 4.2 of the Convention which provides that each State Party shall take necessary measures to ensure all stocks of plastic explosives not held by authorities performing military or police functions are destroyed or consumed for purposes not inconsistent with the objectives of the Convention, marked or rendered permanently ineffective, within 3 years from the date of the Convention’s entry into force.

 

The effect of proposed 72.20 and Article 4.2 is to allow stocks of plastic explosives manufactured before the Convention’s entry into force and held by private industry to be used within the 3 year period.

 

Authorisation

 

Proposed subsection 72.20(1) provides that a responsible Minister may authorise in writing, the trafficking, import, export or possession of a plastic explosive that was manufactured before the commencement of this section.

 

Conditions and restrictions

 

Proposed subsection 72.20(2) provides that an authorisation given under subsection 72.20(1) is subject to the conditions and restrictions specified in the authorisation.

 

Under proposed subsection 72.20(3), a responsible Minister must not give an authorisation under proposed subsection 72.20(1) unless the authorisation is subject to a condition that, within 3 years after commencement of the section, the plastic explosive will not exist or will be made permanently ineffective.

 

The purpose of this condition is to give effect to the obligations intended under Article 4.2 of the Convention.

 

Criteria

 

Proposed subsection 72.20(4) provides that in considering whether to authorise an exemption in relation to trafficking, importing, exporting or possessing a plastic explosive, a responsible Minister must have regard to the Convention, whether the traffic, import, export or possession is reasonable and any other such matters as the responsible Minister considers relevant.  These are similar criteria to which a responsible Minister must have regard to under section 72.18 and 72.19.

 

Proposed section 72.21           Authorisation for manufacturers - 6 month transitional period

 

The intention of proposed section 72.21 is to allow for a 6 month transitional period to apply in order to enable manufacturers to establish protocols, operations and equipment necessary to comply with the Bill.  Under this exemption, industry may, with a valid authorisation, manufacture, traffic in and possess unmarked plastic explosives manufactured after the commencement of the section. 

 

The effect of this 6 month period and the 6 month commencement of the Bill, is that manufacturers have a total of 12 months from the day on which the Bill receives Royal Assent to comply with sections 72.12, 72.14 and 72.15 of the Bill.

 

There are two limits to the operation of this exemption.  The first is that a responsible Minister’s authorisation will only be granted where a responsible Minister is satisfied that the plastic explosive is to be used exclusively for defence purposes (subsection 72.21(3)).

 

The second limitation on the operation of the proposed section is that it has a sunset clause expiring within 12 months from the date of the commencement of the section (proposed subsection 72.21(5)).

 

Object

 

Proposed subsection 72.21(1) sets out the object of the section, which is to allow manufacturers a 12 month transitional period for compliance with proposed sections 72.12, 72 14 and 72.15.

 

The absence of any reference in proposed subsection 72.21(1) to proposed section 72.13 (import or export of unmarked plastic explosives) is intended to indicate that the 12 month exemption does not apply to the import or export of unmarked plastic explosives under proposed section 72.13.

 

Authorisation

 

Proposed subsection 72.21(2) provides that a responsible Minister may authorise in writing the manufacture, trafficking in, or possession of an unmarked plastic explosive manufactured after the commencement of this section.

 

Proposed subsection 72.21(3) provides that a responsible Minister must not give an authorisation under subsection (2) unless the responsible Minister is satisfied that the plastic explosive is exclusively for use in connection with the operation of the Australian Defence Force, the operation in Australia of a visiting force (within the meaning of the Defence (Visiting Forces) Act 1963) or the operation of the Australian Federal Police or the police force or service of a State or Territory.

 

In considering an application for an authorisation under this subsection, and where the authorisation may affect the operation of the police service of a State or Territory, the responsible Minister or his delegate (exercising the delegated power under section 72.27 or 72.28) will, in practice, consult with the relevant State or Territory that may be affected by the authorisation.

 

Conditions and restrictions

 

Proposed subsection 72.21(4) allows the Minister to issue an authorisation under section 72.21(2) subject to conditions and restrictions as specified in the authorisation.

 

Sunset

 

Proposed subsection 72.21(5) is a sunset provision, providing that this section ceases to have effect at the end of 6 months after its commencement. 

 

Proposed section 72.22           Authorisation for overseas defence purposes - 7 day limit

 

Proposed section 72.22 is intended to allow for circumstances where a member of the Australian Defence Force is unable to obtain an immediate written authorisation for the possession, importation, or trafficking in of an unmarked plastic explosive, but is able to obtain such a written authorisation within 7 days.

 

Proposed subsection 72.22(1) provides that a member of the Australian Defence Force is authorised to possess, import or traffic in or destroy an unmarked plastic explosive if the plastic explosive was obtained in the course of the operation outside Australia of the Australian Defence Force and the member believes on reasonable grounds that there is insufficient time to obtain an authorisation under this subdivision because of an emergency or any other sudden or unexpected circumstances.

 

Proposed section 72.22 is not intended to allow such an authorisation to be extended for the export of unmarked plastic explosives.

 

Proposed subsection 72.22(2) provides a 7 day sunset clause on the operation of an authorisation issued under subsection (1).

 

Proposed section 72.23           Authorisation for overseas Australian Federal Police purposes - 7 day limit

 

This proposed section provides for the same authorisations as are set out in section 72.22, but with application for the Australian Federal Police.

 

Proposed section 72.23 is intended to allow for circumstances where a member of the Australian Federal Police is unable to obtain an immediate written authorisation for the possession, importation, or trafficking in an unmarked plastic explosive, but is able to obtain such a written authorisation within 7 days.

 

Proposed subsection 72.23(1) provides that a member of the Australian Federal Police is authorised to possess, import or traffic in an unmarked plastic explosive if the plastic explosive was obtained in the course of the operation outside Australia of the Australian Federal Police and the member believes on reasonable grounds that there is insufficient time to obtain an authorisation under this Subdivision because of an emergency or any other sudden or unexpected circumstances.

 

Proposed section 72.23 is not intended to allow such an authorisation to be extended for the export of an unmarked plastic explosive.

 

Proposed subsection 72.23(2) provides a 7 day sunset clause for the operation of an authorisation issued under subsection (1).

 

Proposed section 72.24           Forfeited plastic explosives

 

Proposed subsection 72.24(1) provides that if a court convicts a person of an offence under this Subdivision in relation to a plastic explosive or makes an order under section 19B of the Crimes Act in respect of a person charged with a offence under this Subdivision in relation to a plastic explosive, the court may order the forfeiture of the plastic explosive to the Commonwealth.

 

Section 19B of the Crimes Act provides generally that a court may dismiss a charges or charges or discharge a person without proceeding to a conviction in certain circumstances having regard to a person’s character, antecedents, cultural background, age, health or mental condition or the extent, if any, to which the offence is of a trivial nature or the offence was committed under extenuating circumstances. 

 

Proposed subsection 72.24(2) provides that a plastic explosive forfeited under subsection (1) becomes the property of the Commonwealth.

 

Proposed subsection 72.24(3) provides that a plastic explosive forfeited to the Commonwealth under subsection (1) is to be dealt with in such a manner as a responsible Minister directs.

 

Proposed subsection 72.24(4) provides that without limiting subsection (3), a responsible Minister may direct that a plastic explosive forfeited to the Commonwealth under subsection 72.24(1) be destroyed or used exclusively for one or more of the purposes covered by paragraph 72.18(2)(a). 

 

The purposes set out in paragraph 72.18(2)(a) are for research, development or testing of new or modified explosives, development or testing of explosives detection equipment, training in explosives detection or forensic science.

 

The first Note below proposed subsection 72.24(4) refers to section 10.5 (lawful authority).  Section 10.5 of the Criminal Code provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law.

 

The second Note below proposed subsection 72.24(4) refers to section 229 of the Customs Act which provides for the forfeiture of goods that have been unlawfully imported or exported.

 

Proposed section 72.25           Surrendered plastic explosives

 

Proposed section 72.25 is intended to provide for the circumstances where unmarked plastic explosives may be surrendered to the Commonwealth. 

 

Proposed subsection 72.25(1) provides that a person may surrender a plastic explosive to the Commonwealth at a place, and in a manner, prescribed for the purposes of this subsection. 

 

Under proposed subsection 72.25(2), a plastic explosive surrendered under subsection (1) becomes the property of the Commonwealth. 

 

Proposed subsection 72.25(3) provides that a plastic explosive forfeited to the Commonwealth under subsection (1) is to be dealt with in such a manner as a responsible Minister directs.

 

Proposed subsection 72.25(4) provides that without limiting subsection (3), a responsible Minister may direct that a plastic explosive forfeited to the Commonwealth under subsection 72.25(1) be destroyed or used exclusively for one or more of the purposes covered by paragraph 72.18(2)(a). 

 

The Note below proposed subsection 72.25(4) refers to section 10.5 (lawful authority).  Section 10.5 of the Criminal Code provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law.

 

Proposed section 72.26           Destruction of plastic explosives obtained overseas for defence purposes

 

This section provides that a member of the Australian Defence Force may destroy an unmarked plastic explosive if the plastic explosive was obtained in the course of an operation outside Australia of the Australian Defence Force.  Any activity outside Australia would also need to comply with any applicable law of another country.

 

Proposed section 72.27           Destruction of plastic explosives obtained overseas for Australian Federal Police purposes

 

This section provides that a member of the Australian Federal Police may destroy an unmarked plastic explosive if the plastic explosive was obtained in the course of an operation outside Australia of the Australian Federal Police.  Any activity outside Australia would also need to comply with any applicable law of another country.

 

Proposed section 72.28           Delegation by Minister

 

Proposed subsection 72.28(1) allows the Minister, being the Attorney-General, to delegate in writing, all or any of the Minister’s powers of authorising exemptions under sections 72.18, 72.19, 72.20, 72.21, 72.24 and 72.25, to the Secretary, an SES employee, or acting SES employee of the Department, where the employee occupies or acts in a position with a classification of Senior Executive Band 3. 

 

The Department referred to in this section is the Minister’s Department; which is the Attorney-General’s Department.

 

Proposed subsection 72.28(2) provides that in exercising the power delegated under subsection (1), the delegate is subject to the written directions of the Minister.

 

Proposed section 72.29           Delegation by Minister for Defence

 

Proposed section 72.29 provides for the Minister for Defence’s powers under sections 72.18, 72.19, 72.20, 72.21, 72.24 and 72.25 to be delegated in writing to certain persons within the Department of Defence.

 

Under proposed section 72.29(1) the Minister for Defence’s powers may be delegated to an SES employee, or acting SES employee of the Department of Defence, where the employee occupies or acts in a position with a classification of Senior Executive Band 3, an officer of the Australian Navy who holds the rank of Vice-Admiral or a higher rank, an officer of the Australian Army who holds the rank of Lieutenant-General or a higher rank, an officer of the Australian Air Force who holds the rank of Air Marshal or a higher rank, or an officer of the Australian Defence Force who is on deployment as the Commander of an Australian Task Force, contingent or force element that is operating outside Australia.

 

Under proposed subsection 72.29(2), a delegate must not exercise a power delegated under subsection (1) unless the exercise of the power relates to the operation of the Australian Defence Force, or the operation in Australia of a visiting force (within the meaning of the Defence (Visiting Forces) Act 1963 ), or the operation outside Australia of a person who, under a contract, performs services for the Australian Defence Force.

 

In considering an application for an authorisation under this subsection, and where the authorisation may affect the operation of the police service of a State or Territory, the responsible Minister or his delegate (exercising the delegated power under section 72.27 or 72.28) will, in practice, consult with the relevant State or Territory that may be affected by the authorisation.

 

Under proposed subsection 72.29(3), in exercising a power delegated under subsection (1), a delegate is subject to the written directions of the Minister for Defence.

 

Proposed section 72.30           Review by Administrative Appeals Tribunal of authorisation decisions

 

This proposed section provides that an application may be made to the AAT for review of a decision refusing to give an authorisation for an exemption under subsection 72.18(1), 72.19(1), 72.20(1) or 72.21(2).

 

Proposed subsection 72.21(2) further provides that an application for a review of a decision to specify a condition or restriction in an authorisation under subsection 72.18(1), 72.19(1), 72.20(1) or 72.21(2) may only be made to the AAT by a person to whom the authorisation applies. 

 

Proposed section 72.31 - Geographical jurisdiction

 

Part 2.7 of the Criminal Code provides general jurisdictional provisions, including provision for extraterritorial application of offences in the Criminal Code.  Part 2.7 also provides for specific categories of extended geographical jurisdictions (refer to sections 15.1 to 15.4).

 

Proposed section 72.31 states that the extended Category B jurisdiction provided for in section 15.2 of the Criminal Code, applies to all the offences in this proposed Bill.  That is, it applies to all the offences in the proposed Subdivision B of Division 72 of the Criminal Code.

 

Category B jurisdiction enables an offence to operate:

 

·          when the conduct constituting the alleged offence occurs wholly or partly either in Australia, or on board an Australian aircraft or an Australian ship; or

·          when the conduct constituting the alleged offence occurs wholly outside Australia and a result, whether or not the complete result, of that conduct occurs either in Australia, or on board an Australian aircraft or an Australian ship; or

·          when the conduct constituting the alleged offence occurs wholly outside Australia and the defendant is an Australian citizen, an Australian resident or a body corporate incorporated under an Australian law, and there is a corresponding offence in the law of the local jurisdiction (being the jurisdiction in which the offence was committed); or

·          when the conduct constituting an alleged ancillary offence occurs wholly outside Australia, and the conduct constituting the primary offence to which that alleged ancillary offence relates occurs, or is intended to occur, wholly or partly either in Australia or on board an Australian aircraft or ship.

 

The operation of Category B jurisdiction is limited to capturing the conduct of those who are Australian citizens or residents at the time of the offence.  The application of Category B jurisdiction would mean that, regardless of where the conduct constituting the offence occurs, if the person engaging in that conduct is an Australian citizen or resident, that person would be able to be prosecuted in Australia provided there is a corresponding offence under the law of the jurisdiction where the offence was committed.  The extension of jurisdiction in this way is of particular importance to the proposed trafficking, import and export offences.

 

Proposed section 72.32           Saving of other laws

 

This proposed section states that the proposed Subdivision B of Division 72 of the Criminal Code is not intended to exclude or limit the operation of any other law of the Commonwealth or of a State or Territory.

 

Proposed section 72.32 is also intended to apply to written authorisations issued by the Minister under sections 72.18, 72.19, 72.20, 72.21, 72.22 and 72.23.  The authorisations issued under these sections are only for the purposes of Subdivision B of Division 72 and are not intended to override existing laws including the laws of any State or Territory.  This includes any State or Territory legislation with respect to explosives.

 

Proposed section 72.33           Marking requirements

 

This proposed section is intended to give effect to the general obligation in the Convention to mark plastic explosives. 

 

Proposed subsection 72.33(1) provides that the section sets out two marking requirements for a plastic explosive.

 

Concentration of detection agent at time of manufacture

 

The first marking requirement is provided for in proposed subsection 72.33(2) and relates to the concentration of detection agent at the time of manufacture.

 

Proposed subsection 72.33(2) provides that the first marking requirement is that at the time of manufacture of the plastic explosive, all conditions set out in the subsection were met.  These conditions, set out in paragraphs 72.33(a), (b) and (c), provide that the plastic explosive contained a detection agent, that the concentration of the detection agent in the plastic explosive was not less than the minimum manufacture concentration for the detection agent and that the detection agent was homogenously distributed throughout the plastic explosive.

 

The Note to the subsection indicates that the term ‘minimum manufacture concentration’ is defined in section 72.34.

 

A ‘detection agent’ is defined in proposed paragraph 72.34(a) and the table within that paragraph.

 

The requirement that the plastic explosive must contain a detection agent is consistent with Article 1.2 of the Convention.

 

The requirement for homogenous distribution of the detection agent within paragraph 72.33(2)(c) is consistent with Part 2 of the Technical Annex to the Convention which provides that in each case, the introduction of a detection agent into an explosive shall be done in a manner so as to achieve homogenous distribution in the finished product.

 

Freshness

 

The second marking requirement is provided for in proposed subsection 72.33(3) and relates to the period of time which has elapsed since the manufacture of the plastic explosive. 

 

Proposed subsection 72.33(3) provides that the second marking requirement is that less than ten years have elapsed since the manufacture of the plastic explosive. 

 

A detection agent is a volatile substance and its effectiveness and life is affected by elements including packaging, storage temperature and exposure to light and heat.  The volatility of the detection agent means that its levels of effectiveness are depleted as the marker enters the atmosphere.  A detection agent in a packaged plastic explosive and placed at or near the surface, can enter the atmosphere resulting in a reduced level of the presence of a detection agent in the plastic explosive. 

 

The level of a detection agent in a plastic explosive will start to deteriorate over time, particularly in less than optimal storage facility. 

 

Whilst the Australian Defence Force advised that the authorised shelf life of a primasheet plastic explosive (PE4) was between 5 and 15 years, private industry has advised that there may be a loss of 80% of detection agent from the plastic explosive within two years of manufacture. 

 

The proposed subsection 72.33(3) imposes a ten year period to ensure that a plastic explosive marked with a detection agent, is as fresh as possible and contains as much homogenously distributed detection agent as possible. 

 

The subsection is also designed to ensure that large stockpiles of marked plastic explosives cannot build up, which would allow for a greater opportunity for the deterioration in a detection agent.

 

Interpretation

 

Proposed subsection 72.33(4) provides that for the purposes of applying the first marking requirement under subsection 72.33(2) to a plastic explosive manufactured before the commencement of this section, it is assumed that this section and proposed sections 72.34 (prescribing minimum concentration of detection agents) and 72.36 (containing definitions), were in force at the time of the manufacture of the plastic explosive.

 

Proposed section 72.34           Detection agents and minimum manufacture concentrations

 

Proposed section 72.34 is intended to give effect to Part 2 of the Technical Annex to the Convention which is an integral part of the Convention (Article 10).

 

Proposed subsection 72.34(1) provides a table setting out the name of the prescribed chemical ‘detection agent’ and the ‘minimum manufacture concentration’ for each detection agent.  The ‘minimum manufacture concentration’ for each detection agent is the minimum percentage concentration of the detection agent by mass as prescribed in Part 2 of the Technical Annex.

 

Items 1 to 4 of the Table contained with proposed subsection 72.34(1) have been replicated from the table contained in Part 2 of the Technical Annex to the Convention.

 

These three detection agents and the minimum concentration levels have been recommended by the ICAO.  The internationally recognised detection agent is 2,3-dimethyl-2,3-dinitrobutane (DMNB), which is described in Item 2. 

 

In September 2004, at the 35 th ICAO Assembly meeting in Montreal, the ICAO noted that the International Explosives Technical Commission (‘the Commission’) had proposed to amend the Technical Annex to the Convention for the purpose of increasing the required minimum concentration of the detection agent, DMNB, from 0.1% to 1.0% by mass.  This increase took effect from 19 December 2005. 

 

Item 4 of the Table makes provision for ‘a substance prescribed for the purposes of this table item’ and for the concentration of the substance also to be prescribed.  The intention of this Item is to make provision for the amendment or inclusion of any new substance to be prescribed as a detection agent by an amendment to the Technical Annex. 

 

Should any new substance be prescribed for the purposes of Item 4, the details of this substance would be prescribed under Regulations made under section 5 of the Criminal Code. 

 

Proposed section 72.35           Presumption as to concentration of detection agents

 

Proposed section 72.35 provides for the presumptions to be made in a prosecution for an offence against this Subdivision.

 

Proposed subsection 72.35(2) provides that if no detection agent can be detected in a sample of a plastic explosive when tested using either a method generally accepted in the scientific community as a reliable means of measuring the concentration of detection agents in plastic explosives, or by a method prescribed for the purposes of this paragraph, it is presumed, unless the contrary is proved, that the plastic explosive breaches the first marking requirement in subsection 72.33(2).

 

The Note explains that the Defendant bears a legal burden in relation to proving the contrary.  The Note refers to Section 13.4 of the Criminal Code.

 

Section 13.4 of the Criminal Code provides that a legal burden of proof is imposed on the defendant if and only if the law expressly specifies that there is a legal burden of proof or requires the defendant to prove the matter or creates a presumption that the matter exists unless the contrary is proved.  In subsection 72.26(2), the Note clearly states that the Defendant has a legal burden to prove the contrary. 

 

Section 13.5 of the Criminal Code provides that a legal burden of proof on the defendant must be discharged on the balance of probabilities. 

 

Proposed section 72.36           Definitions

 

This proposed section contains definitions specific to the proposed Subdivision B of Division 72 of the Criminal Code.

 

The ‘ Convention on the Marking of Plastic Explosives ’ is defined as meaning the Convention on the Marking of Plastic Explosives for the Purpose of Detection, done at Montreal on 1 March 1991.  The definition extends the Convention to include amendments which bind Australia.

 

The Note to this definition provides information as to where the Convention might be accessed on the internet at www.austlii.edu.au

 

An amendment to the Convention is dealt with by the following:

 

Article 7 of the Convention describes the steps with respect to any amendment of the Convention, including the Technical Annex.  This is important in circumstances where Australia, as a Party to the Convention, might wish to object to a proposed amendment. 

 

Under Article 7, any State Party may transmit comments on an amendment to the Council of the International Civil Aviation Organization (the Council) within 90 days from the date of notification of a proposed amendment to the Technical Annex to the Convention.  The Council shall invite any State Party which comments on or objects to the proposed amendment to consult the Commission.

 

The Council may propose the amendment to all State Parties for adoption, after considering the Commission’s report and taking into account the nature of the amendment and comments from State Parties.

 

Under Article 7.3 of the Convention, if five or more State Parties have not given written notification to the Council, of an objection to a proposed amendment within 90 days from the date of notification of the amendment, the proposed amendment shall be deemed to have been adopted and shall enter into force after 180 days or after another period specified in the proposed amendment.  If the proposed amendment has not been adopted in accordance with this paragraph (Article 7.3), the Council may also convene a conference of all State Parties.

 

Under Article 7.4 of the Convention, a State Party which has expressly objected to a proposed amendment may subsequently express its consent to be bound by the provisions of an amendment, by depositing an instrument of acceptance or approval. 

 

Under Article 7.5 of the Convention, the Council shall refer a proposed amendment to the Commission for further consideration where five or more State Parties have objected to the proposed amendment.

 

  Department of Defence is defined to assist in interpreting the correct Department when examining section 72.29.

 

A ‘detection agent’ is defined in section 72.34 and as explained in that section, transposes the definition contained within Part 2 of the Technical Annex to the Convention.

 

An ‘ explosive device ’ is defined for the purposes of proposed subsection 72.18(2). 

 

The definition incorporates the definition of ‘ duly authorised military devices ’ contained within Article 1.4 of the Convention.

 

The first marking requirement has the meaning given by subsection 72.33(2).

 

The terms ‘ export ’ and ‘ import ’ are defined simply and are to be interpreted according to the ordinary meaning of each term.  ‘Export’ specifically includes taking something out of Australia and ‘import’ specifically includes bringing something into Australia.

 

The definition of ‘ high explosive ’ has been prepared with technical assistance from the Department of Defence as well as incorporating the specific definition of the term contained within paragraph 3 of Part 1 of the Technical Annex to the Convention. 

 

The term ‘velocity of detonation’ used in the definition describes how quickly the detonation wave moves through the material.  This may also commonly be described as a ‘detonation wave’.

 

The term ‘ manufacture a substance ’ is defined as any process by which a substance is produced including the process of transforming a substance into a different substance and reprocessing of a substance.  This definition seeks to broaden the definition of ‘manufacture a substance’ to capture all processes that might be associated with manufacturing a plastic explosive.

 

The term ‘ marking requirement ’ has been defined in proposed section 72.33.

 

The term ‘ minimum manufacture concentration ’ is defined in proposed section 72.33 and relates to the levels of detection agent prescribed in the Technical Annex.

 

Minister for Defence’ is clarified to mean to the Minister administering the Defence Act 1903 .

 

plastic explosive ’ has been defined in paragraphs (b) and (c) of the definition, with reference to the specific definition of the term contained in Part 1 of the Technical Annex to the Convention.  Paragraph (a) also adopts the definition of ‘explosive’ and ‘plastic explosive’ contained within Article 1.1 of the Convention.

 

The expert advice within the Department of Defence is that plastic explosives may be shaped into many different forms.  It is the physical characteristic of being malleable and able to be reshaped that makes an explosive a ‘plastic explosive’ rather than another type of explosive. 

It is generally considered that the following explosives would not fall within the definition of ‘plastic explosive’ within this Bill:

 

·          explosives with a water gel base

·          ammonium nitrate based explosives

·          detonation cord

·          explosives described as Types A, B, C and E and classified in the United Nations Recommendations on the Transport of Dangerous Goods - Model Regulations (commonly known as the UN Model Code).

 

possess ’ is defined in the context of possession of a substance, as receive or obtain possession, have control over the disposition (whether or not the substance is in the custody of the person) and have joint possession.

 

responsible Minister’ means the Minister or the Minister for Defence.  This definition has been included to assist in clarifying the use of the term ‘responsible Minister’ throughout the legislation, particularly as it refers to the issuing of authorisations.

 

‘second marking requirement has the meaning given by subsection 72.33(3).

 

traffic ’ in relation to a substance is defined as including the transfer, offer for sale, invite the making of an offer to buy, possession with the intention of transferring any of it or preparing the substance for transfer with the intention of transferring any of it or believing that another person intends to transfer any of it.  Preparing the substance includes packaging it or separating it into discrete units.  The definition also includes transporting or delivering the substance with the intention of transferring any of it or believing that another person intends to transfer any of it, guarding or concealing it with the intention of transferring any of it or intending to assist another person to transfer any of it.

 

transfer ’ is defined as the transfer of ownership or possession.

 

unmarked plastic explosive means a plastic explosive that breaches a marking requirement.

 

wrapper in relation to a plastic explosive, means a wrapper the inner surface of which is in contact with the plastic explosive.

 

Schedule 2 - Amendment to the Customs Act 1901

 

Item 1

 

This item inserts the definition of ‘ unmarked plastic explosive ’ into subsection 4(1) of the Customs Act which provides for definitions of terms used in that Act. 

 

Item 2

 

This item inserts a new sub paragraph (baa) after paragraph (b) of the definition of Customs-related law in section 4B of the Customs Act.  The effect of this amendment is to include the new offences under 72.13 of the Criminal Code providing for the importing or exporting of unmarked plastic explosives, in the definition of Customs-related law .

 

Item 3

 

Subsection 183UA(1) contains definitions of terms used within Division 1 of Part XII of the Customs Act which deals with general search powers of an ‘authorised person’ under section 183UA. 

 

This item makes a technical amendment to paragraph (c) of the definition of ‘ offence ’ under subsection 183UA(1) of the Customs Act.

 

The effect of the proposed item is to broaden the definition of ‘ offence ’ within Division 1 of Part XII of the Customs Act, to include an offence against proposed section 72.13 of the Criminal Code relating to the import or export of unmarked plastic explosives.  The effect of this item is to provide Customs officers with specific powers over the import and export of unmarked plastic explosives. 

 

Item 4

 

This item inserts a new subsection (2AA) in subsection 183UA(2) of the Customs Act.  The proposed subsection 183UA(2AA) provides that for the purposes of Part XII of the Customs Act which deals with powers of customs officers, an offence against section 6 of the Crimes Act 1914 that relates to an offence against the proposed section 72.13 of the Criminal Code, is taken to be an offence against proposed section 72.13 of the Criminal Code.

 

Section 6 of the Crimes Act provides that a person who receives or assists another person, who is, to his or her knowledge, guilty of any offence against a law of the Commonwealth, in order to enable him or her to escape punishment or to dispose of the proceeds of the offence shall be guilty of an offence.  The offence is that of being an accessory after the fact. 

 

This item therefore provides that a person who has committed an offence of being an accessory after the fact under section 6 of the Crimes Act is taken to have committed an offence of importing or exporting unmarked plastic explosives.

 

Proposed Item 5

 

This item inserts a new paragraph (aa) after subsection 183UA(3)(a) of the Customs Act.  The purpose of the proposed subsection 183UA(3A) is to ensure that whenever a power under Part XII of the Customs Act is extended to apply to offences under section 72.13 of the Criminal Code, that power will also extend to apply to offences under sections 141.1, 142.1, 142.2 or 149.1 of the Criminal Code that relate to a section 72.13 offence.  Sections 141.1, 142.1, 142.2 or 149.1 of the Criminal Code contain offences of bribery of a Commonwealth public official, corrupting benefits given to or received by a Commonwealth public official, abuse of public office and obstruction of Commonwealth public officials. 

 

The effect of this item is to make it an offence for a person committing these offences in relation to the import or export of unmarked plastic explosives, to have committed an offence under proposed section 72.13 of the Criminal Code of importing or exporting unmarked plastic explosives.

 

Items 6 - 20

 

The purpose of these proposed items is to broaden the scope of the regulatory powers in Subdivision B of Division 1 of Part XII of the Customs Act to enable the investigation of a possible offence under section 72.13 of the Criminal Code. 

 

The specific powers which these proposed items seek to broaden are the power of:

 

·          a Commander of a Commonwealth ship or aircraft to request to board a ship (proposed Item 6 - 8)

·          a Commander of a Commonwealth aircraft to request the pilot of another aircraft to land for boarding (proposed Item 9)

·          Customs officers to board and search ships and aircraft (proposed Item 10)

·          Customs officers to arrest without warrant, persons found on a ship or aircraft reasonably suspected of having committed a specific offence against section 72.13 of the Criminal Code (proposed Items 11 - 13)

·          Customs officers to detain or move ships or aircraft (proposed Items 14 - 16)

·          Customs officers to move or destroy hazardous ships that are suspected of being involved in the contravention of a specific Act and in particular, of section 72.13 of the Criminal Code (proposed Items 17 - 19), and

·          Customs officers to arrest without warrant a person suspected of smuggling (proposed Item 20).

 

Items 21 and 22

 

Item 21 makes a technical amendment to section 227AA to allow for a division of the section into subsections (1) and (2).

 

Item 22 inserts a new subsection 227AA(2) into section 227AA which provides that to avoid doubt, if, when exercising powers under this Act, an officer obtains evidence of the commission of an offence against Subdivision B of Division 72 of the Criminal Code, then that evidence may be used, or given to another body for use in investigating the offence or proceedings for the prosecution of the offence. 

 

Item 23

 

This item inserts subsection 231(2A) into the Customs Act to provide a narrower interpretation of section 231 so that the offence of unlawful assembly under the section does not apply to, or in relation to, unmarked plastic explosives. 

 

The proposed item inserts a note stating that section 72.13 of the Criminal Code creates an offence of importing or exporting unmarked plastic explosives.  The purpose of this note is to indicate that any offence that may have previously applied under section 231 would operate under the proposed section 72.13 of the Criminal Code. 

 

Item 24

 

This item clarifies that an offence under subsection 233A(1A) would not apply where the goods smuggled, imported or conveyed are unmarked plastic explosives.  The offence under subsection 233A(1A) applies to masters of ships and pilots of aircrafts who use their ships or aircraft or intentionally allow them to be used, in the smuggling, importation or exportation of goods. 

 

This amendment inserts a new subsection 233A(1B) which provides that subsection 233A(1) does not apply if the goods smuggled, imported, exported or conveyed are unmarked plastic explosives. 

 

This item also inserts a note alerting the reader that the section 72.13 of the Criminal Code creates an offence of importing or exporting unmarked plastic explosives.  This would mean that any offence for the importing, exporting or smuggling of unmarked plastic explosives would be dealt with under section 72.13 of the Criminal Code.

 

Schedule 3 - Consequential amendments

 

Australian Federal Police Act 1979

 

Item 1

 

This item inserts the words ‘Subdivision A of’ before the words ‘Division 72’ to ensure that the definition of ‘protective service offence’ in paragraph 4(1)(c) of the AFP Act 1979 applies only to the offences under Subdivision A of Division 72 of the Criminal Code.  This amendment ensures that the provisions in the AFP Act relating to a ‘protective service offence’ are restricted to terrorism offences in the Criminal Code and are not extended to the new offences relating to plastic explosives, under new Subdivision B of Division 72.

 

Subdivision A of Division 72 of the Criminal Code contains offences relating to international terrorist activities using explosive or lethal devices and gives effect to the International Convention for the Suppression of Terrorist Bombings, done at New York on 15 December 1997.

 

Australian Security Intelligence Organisation Act 1979

 

Item 2

 

This item repeals the definition of ‘terrorism offence’ under subsection 4 of the ASIO Act which restricted the definition of ‘terrorism offence’ to an offence against Division 72 or Part 5.3 of the Criminal Code. 

 

This item inserts a new paragraph into the definition of ‘terrorism offence’ to restrict it to offences against Subdivision A of Division 72 of the Criminal Code relating to international terrorist activities and to ensure the definition retains the previous purpose of the definition by retaining the applicability to offences under Part 5.3 of the Criminal Code.  This amendment ensures that the provisions in the ASIO Act relating to a ‘terrorism offence’ are restricted to terrorism offences in the Criminal Code and are not extended to the new offences relating to plastic explosives, under new Subdivision B of Division 72.

 

 

The item retains the previous note stating that a person can commit a terrorism offence against Part 5.3 of the Criminal Code even if no terrorist act (as defined in that Part) occurs.

 

Crimes Act 1914

 

Item 3

 

This item makes a technical amendment to clarify the definition of ‘terrorism offence’ contained within the interpretations under subsection 3(1), to ensure the definition is restricted only to offences under Subdivision A of Division 72 of the Criminal Code and are not extended to the new offences relating to plastic explosives, under new Subdivision B of Division 72.

 

Item 4

 

This item makes a technical amendment to paragraph 15YU(1)(d) to clarify that proceedings under  Part IAE relating to the use of video link evidence in proceedings for terrorism and related offences etc, are restricted only to Subdivision A of Division 72 of the Criminal Code and are not extended to the new offences relating to plastic explosives, under new Subdivision B of Division 72.

 

Surveillance Devices Act 2004

 

Item 5

 

This item ensures that the use of an authorisation for use of a surveillance device without a warrant in certain emergency situations is restricted to an investigation into the offences provided for under paragraph 30(1)(a) and an offence under Division 72 of the Criminal Code, is restricted to an offence under the renamed Subdivision A of Division 72 of the Criminal Code and are not extended to the new offences relating to plastic explosives, under new Subdivision B of Division 72.

 

Telecommunications (Interception) Act 1979

 

Item 6

 

This item makes a technical amendment to subsection 5D(1)(e) by repealing the existing provision and substituting it with a provision which includes an offence against subdivision A of Division 72 of the Criminal Code, within the definition of ‘serious offence’ under subsection 5D(1)(e).  This amendment ensures that the provisions in the TI Act relating to a ‘serious offence’ are restricted to terrorism offences in the Criminal Code and are not extended to the new offences relating to plastic explosives, under new Subdivision B of Division 72.