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Anti-Personnel Mines Convention Bill 1998

Part 2 Offences relating to anti-personnel mines

   

7   Offence to place, possess, develop, produce, acquire, stockpile or transfer anti-personnel mines

Offence

             (1)  A person is guilty of an offence if:

                     (a)  the person places an anti-personnel mine under, on or near the ground or other surface area; or

                     (b)  the person is knowingly in the possession of an anti-personnel mine; or

                     (c)  the person develops, produces or otherwise acquires an anti-personnel mine; or

                     (d)  the person stockpiles anti-personnel mines; or

                     (e)  the person physically moves an anti-personnel mine; or

                      (f)  the person transfers ownership or control of an anti-personnel mine, whether directly or indirectly, to another person.

Penalty:

                     (a)  if the offender is an individual—600 penalty units or imprisonment for 10 years, or both; or

                     (b)  if the offender is a body corporate—10,000 penalty units.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Exceptions

             (2)  Subsection (1) does not apply to:

                     (a)  the placement, possession, production, acquisition, physical movement or transfer of ownership or control of an anti-personnel mine in accordance with a permission in force under section 8; or

                     (b)  the possession, acquisition, physical movement or transfer of ownership or control of an anti-personnel mine for the purpose of its destruction or permanent deactivation; or

                     (c)  the possession, acquisition, physical movement or transfer of ownership or control of an anti-personnel mine by a person in the course of the person’s duties as a member of the Australian Defence Force, or as a police officer, for:

                              (i)  the purpose of the conduct of criminal proceedings; or

                             (ii)  the purpose of rendering the mine harmless.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

             (3)  Subsection (1) does not apply to anything done by way of the mere participation in operations, exercises or other military activities conducted in combination with an armed force that:

                     (a)  is an armed force of a country that is not a party to the Convention; and

                     (b)  engages in an activity prohibited under the Convention.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code ).

             (4)  Subsection (3) applies to operations, exercises or other military activities, whether or not conducted under the auspices of the United Nations.

Extraterritorial operation

             (5)  This section extends outside Australia, but does not apply in relation to any person outside Australia unless that person is:

                     (a)  an Australian citizen; or

                     (b)  a member of the Australian Defence Force.

8   Minister for Defence may grant permission to retain anti-personnel mines for the development of, and training in, mine detection techniques etc.

Grant of permission

             (1)  The Minister for Defence may, by writing, grant permission for specified anti-personnel mines to:

                     (a)  be placed under, on or near the ground or other surface area, or

                     (b)  be possessed; or

                     (c)  be produced or otherwise acquired; or

                     (d)  be physically moved; or

                     (e)  be the subject of a transfer of ownership or control;

for the purposes of the development of, and training in, any or all of the following:

                      (f)  anti-personnel mine detection techniques;

                     (g)  anti-personnel mine clearance techniques;

                     (h)  anti-personnel mine destruction techniques;

                      (i)  anti-personnel mine deactivation techniques.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

             (2)  The Minister for Defence must ensure that the total number of anti-personnel mines that are the subject of permissions under subsection (1) does not exceed the minimum number absolutely necessary for the purposes of the development of, and training in, any or all of the techniques referred to in that subsection.

Decision-making principles

             (3)  The Minister for Defence must, by writing, formulate principles to be complied with by the Minister for Defence in exercising the power conferred by subsection (1).

             (4)  Before formulating the principles under subsection (3), the Minister for Defence must consult the Minister administering this Act.

             (5)  In exercising the power conferred by subsection (1), the Minister for Defence must comply with the principles formulated under subsection (3).

             (6)  Principles formulated under subsection (3) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901 .

9   Offence not to deliver up anti-personnel mines

Offence

             (1)  A person is guilty of an offence if:

                     (a)  the person is knowingly in the possession of an anti-personnel mine; and

                     (b)  the person does not deliver the mine, without delay, to a member of the Australian Defence Force, or to a police officer, for destruction or permanent deactivation.

Penalty:

                     (a)  if the offender is an individual—600 penalty units or imprisonment for 10 years, or both; or

                     (b)  if the offender is a body corporate—10,000 penalty units.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Exception

             (2)  Subsection (1) does not apply if the person is in the possession of the anti-personnel mine in circumstances that are not prohibited by section 7.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

10   Destruction or deactivation of anti-personnel mines

             (1)  If an anti-personnel mine is delivered to a member of the Australian Defence Force, or to a police officer, in accordance with section 9, the member or officer, as the case may be, must ensure the destruction or permanent deactivation of the mine.

             (2)  The requirement under subsection (1) does not apply to:

                     (a)  an anti-personnel mine that becomes the subject of a permission under section 8 after the mine is delivered to the member or officer; or

                     (b)  an anti-personnel mine that is required to be kept for purposes in connection with the conduct of criminal proceedings.

11   Forfeiture of anti-personnel mines

             (1)  If a court:

                     (a)  convicts a person of an offence against this Part; or

                     (b)  makes an order under section 19B of the Crimes Act 1914 in respect of a person charged with an offence against this Part;

the court may order forfeiture to the Commonwealth of any anti-personnel mine used or otherwise involved in the commission of the offence.

             (2)  An anti-personnel mine ordered by a court to be forfeited under this section becomes the property of the Commonwealth and must be destroyed or permanently deactivated unless it becomes the subject of a permission under section 8.