7084

2010-2011

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

Criminal Code Amendment (Cluster Munitions Prohibition) Bill 2010

 

 

(Amendments to be moved by Senator Ludlam on behalf of the Australian Greens in committee of the whole)

(1)     Schedule 1, item 1, page 3 (line 28), omit paragraph 72.38(2)(c), substitute:

                     (c)  the first person knew or should have known that the act would be done.

[intention]

(2)     Schedule 1, item 1, page 3 (after line 29), after subsection 72.38(2), insert:

          (2A)  An entity regulated by the Australian Securities and Investments Commission or by the Australian Prudential Regulation Authority commits an offence if it directly or indirectly:

                     (a)  provides funds to a person or an entity; or

                     (b)  invests funds in an entity;

involved in the development or production of cluster munitions or explosive submunitions.

[ban on direct and indirect investment]

(3)     Schedule 1, item 1, page 4 (lines 18 and 19), omit “to acquire or retain specified cluster munitions”, substitute “to acquire or retain the minimum number of cluster munitions absolutely necessary”.

[authorised acquisition or retention]

(4)     Schedule 1, item 1, page 5 (after line 7), at the end of section 72.39, add:

             (6)  The Minister must submit an annual report to the Secretary-General of the United Nations for each calendar year during which cluster munitions are retained or acquired under subsection (2) or transferred under subsection 72.40(1).

             (7)  A report under subsection (6) must include, but is not limited to, information on:

                     (a)  in the case of cluster munitions retained or acquired under subsection (2):

                              (i)  the proposed purpose or purposes for which the cluster munitions have been acquired or retained;

                             (ii)  the type, quantity and lots numbers of cluster munitions that have been acquired or retained;

                            (iii)  if the cluster munitions have been used for a purpose—the purpose for which the cluster munitions have been used; and

                     (b)  in the case of cluster munitions transferred under subsection 72.40(1):

                              (i)  the name of the party to which the cluster munitions have been transferred;

                             (ii)  the type, quantity and lots numbers of cluster munitions that have been transferred.

             (8)  A report under subsection (6) must be submitted by 30 April of the following year.

[report on authorised acquisition, retention or transfer]

(5)     Schedule 1, item 1, page 6 (lines 7 to 31), omit section 72.41, substitute:

72.41   Defence—participation 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 merely participating in military cooperation or operations with a foreign country that is not a party to the Convention on Cluster Munitions.

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.

[defence—participation in military cooperation or operations]

(6)     Schedule 1, item 1, page 6 (line 32) to page 7 (line 28), section 72.42 TO BE OPPOSED .

[defence—act by military personnel of non-parties]