An Act to implement the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti‑Personnel Mines and on their Destruction, and for related purposes
Part 1—Introduction
1 Short title
This Act may be cited as the Anti‑Personnel Mines Convention Act 1998.
2 Commencement
(1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation, being a day not earlier than the day on which the Convention enters into force for Australia.
(2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which the Convention enters into force for Australia, it commences on the first day after the end of that period.
3 Simplified outline
The following is a simplified outline of this Act:
• This Act implements the Anti‑Personnel Mines Convention.
• It is an offence to place, possess, develop, produce, acquire, stockpile or transfer anti‑personnel mines.
• If a fact‑finding mission to Australia is authorised under the Convention, the Minister must appoint each member of the mission as an inspector. Inspectors may enter premises, and exercise powers of inspection, for the purpose of finding out whether the Convention has been complied with.
• The Minister may require a person to give information that is relevant to Australia’s reporting obligations under the Convention.
4 Definitions
In this Act, unless the contrary intention appears:
anti‑handling device means a device that:
(a) is intended to protect a mine; and
(b) is part of, linked to, attached to or placed under the mine; and
(c) activates when an attempt is made to tamper with or otherwise intentionally disturb the mine.
anti‑personnel mine means a mine that:
(a) is designed, intended or altered so as:
(i) to be placed under, on or near the ground or other surface area; and
(ii) to be exploded by the presence, proximity or contact of a person; and
(b) is capable of incapacitating, injuring or killing one or more persons.
However, a mine that is designed, intended or altered so as to be detonated by the presence, proximity or contact of a vehicle as opposed to a person, and that is equipped with an anti‑handling device, is taken not to be an anti‑personnel mine as a result of being so equipped.
Note: A mine that has been permanently deactivated is not an anti‑personnel mine since it is not capable of incapacitating, injuring or killing a person.
Part Part 3 - Anti-Personnel Mines Convention Act 1998 - Powers of fact‑finding missions | Zoe
Australia, when used in a geographical sense, includes the external Territories.
Convention means the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti‑Personnel Mines and on their Destruction (a copy of the English text of which is set out in Schedule 1), as amended by any amendment of the Convention that has entered into force for Australia (a copy of the English text of which is set out in the regulations).
Defence Department means the Department of State that deals with defence and that is administered by the Defence Minister.
Defence Minister means the Minister administering section 1 of the Defence Act 1903.
inspector means a person appointed as an inspector under section 12.
mine means a munition (other than a command‑detonated munition) designed, intended or altered so as:
(a) to be placed under, on or near the ground or other surface area; and
(b) to be exploded by the presence, proximity or contact of a person or a vehicle.
munition has the technical meaning generally accepted within the defence community.
occupier, in relation to premises, includes a person present at the premises who is in apparent control of the premises.
police officer means:
(a) a member or special member of the Australian Federal Police; or
(b) a member of the police force of a State or Territory.
premises includes the following:
(a) a structure, building, aircraft, vehicle or vessel;
(b) a place (whether enclosed or built on or not);
(c) a part of a thing referred to in paragraph (a) or (b).
transfer ownership or control, in relation to an anti‑personnel mine, does not include the transfer of the ownership or control of land containing emplaced anti‑personnel mines.
5 Crown to be bound
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an offence.
6 External Territories
This Act extends to all the external Territories.
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 commits 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 Defence Minister may grant permission to retain anti‑personnel mines for the development of, and training in, mine detection techniques etc.
Grant of permission
(1) The Defence Minister 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 33(3AB) of the Acts Interpretation Act 1901.
(2) The Defence Minister 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 Defence Minister must, by legislative instrument, formulate principles to be complied with by the Defence Minister in exercising the power conferred by subsection (1).
(4) Before formulating the principles under subsection (3), the Defence Minister must consult the Minister administering this Act.
(5) In exercising the power conferred by subsection (1), the Defence Minister must comply with the principles formulated under subsection (3).
9 Offence not to deliver up anti‑personnel mines
Offence
(1) A person commits 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.
Part 3—Powers of fact‑finding missions
12 Appointment of inspectors
Members of fact‑finding mission
(1) If a fact‑finding mission to Australia is authorised under Article 8 of the Convention, the Minister must, by instrument in writing, appoint each member of the mission as an inspector.
Domestic inspectors
(2) The Minister may, by instrument in writing, appoint any of the following persons as an inspector:
(a) a person who is appointed or employed by the Commonwealth;
(b) a person who is appointed or employed by a State or Territory.
Note: Inspectors appointed under subsection (2) are not part of fact‑finding missions.
(3) In exercising powers or performing functions as an inspector, an inspector appointed under subsection (2) must comply with any directions of the Minister.
(4) A person appointed as an inspector under subsection (2) must not exercise powers or perform functions as an inspector unless the person is accompanied by an inspector appointed under subsection (1).
(5) Before exercising the power conferred by subsection (2), the Minister must consult the Defence Minister.
Identity cards
(6) The Minister must issue an identity card to an inspector, in the form prescribed by the regulations. The identity card must contain a recent photograph of the inspector.
(7) A person commits an offence if:
(a) the person has been issued with an identity card; and
(b) the person ceases to be an inspector; and
(c) the person does not immediately return the identity card to the Minister.
Penalty: 1 penalty unit.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(8) An inspector must carry the identity card at all times when exercising powers or performing functions as an inspector.
13 Conditions of appointment as an inspector
(1) An appointment of an inspector under subsection 12(1) is subject to such conditions (if any) as are specified in the instrument of appointment.
(2) The Minister must not impose any conditions under subsection (1) unless the Minister is satisfied that it is necessary to do so for:
(a) the protection of sensitive equipment, information or areas; or
(b) the physical protection and safety of the inspector.
(3) A condition of appointment may provide that the inspector is not authorised to enter specified premises.
Note: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.
(4) A condition of appointment may provide that the inspector is not authorised to exercise specified powers while on specified premises.
Note: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.
(5) Subsections (3) and (4) do not limit subsection (1).
(6) Before exercising a power conferred by this section, the Minister must consult the Defence Minister.
14 Powers available to inspectors for monitoring compliance
(1) For the purpose of finding out whether the Convention has been complied with, an inspector may:
(a) enter any premises; and
(b) exercise the powers set out in subsection 16(1).
(2) An inspector is not authorised to enter premises under subsection (1) unless:
(a) the occupier of the premises has consented to the entry; or
(b) the entry is made under a warrant issued under section 20.
(3) This section has effect subject to section 13.
15 Inspector must produce identity card on request
An inspector is not entitled to exercise any powers under this Part in relation to premises if:
(a) the occupier of the premises has required the inspector to produce his or her identity card for inspection by the occupier; and
(b) the inspector fails to comply with the requirement.
16 General powers of inspectors in relation to premises
(1) The powers an inspector may exercise under paragraph 14(1)(b) are as follows:
(a) to search the premises and anything on the premises;
(b) to inspect, examine, take measurements of, or conduct tests (including by the taking of samples) concerning, anything on the premises that relates to an anti‑personnel mine;
(c) to take photographs or make video or audio recordings or sketches of the premises or anything on the premises;
(d) if the inspector was only authorised to enter the premises because the occupier of the premises consented to the entry—to require the occupier to:
(i) answer any questions put by the inspector; and
(ii) produce any book, record or document requested by the inspector;
(e) if the inspector was authorised to enter the premises by a warrant under section 20—to require any person in or on the premises to:
(i) answer any questions put by the inspector; and
(ii) produce any book, record or document requested by the inspector;
(f) to inspect any book, record or document on the premises;
(g) to take extracts from or make copies of any such book, record or document;
(h) to take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises.
(2) A person commits an offence if:
(a) the person is subject to a requirement covered by paragraph (1)(e); and
(b) the person recklessly contravenes the requirement.
Penalty: 30 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
17 Details of warrant to be given to occupier etc.
(1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the inspector must make available to that person a copy of the warrant.
(2) The inspector must identify himself or herself to that person.
(3) The copy of the warrant referred to in subsection (1) need not include the signature of the magistrate who issued the warrant.
18 Announcement before entry
(1) An inspector must, before entering the premises under a warrant:
(a) announce that he or she is authorised to enter the premises; and
(b) give any person at the premises an opportunity to allow entry to the premises.
(2) An inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required:
(a) to ensure the safety of a person; or
(b) to prevent serious damage to the environment; or
(c) to ensure that the effective execution of the warrant is not frustrated.
19 Occupier entitled to be present during search
(1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is entitled to observe the search being conducted.
(2) The right to observe the search being conducted ceases if the person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
20 Monitoring warrants
(1) An inspector may apply to a magistrate for a warrant under this section in relation to premises.
(2) The magistrate may issue the warrant if the magistrate is satisfied, by information on oath, that it is reasonably necessary that one or more inspectors should have access to the premises for the purposes of finding out whether the Convention has been complied with. This subsection has effect subject to subsection (3).
(3) The magistrate must not issue the warrant unless the inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.
(4) The warrant must:
(a) authorise one or more inspectors (whether or not named in the warrant), with such assistance and by such force as is necessary and reasonable:
(i) to enter the premises; and
(ii) to exercise the powers set out in subsection 16(1) in relation to the premises; and
(b) state whether the entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and
(c) specify the day (not more than 6 months after the issue of the warrant) on which the warrant ceases to have effect; and
(d) state the purpose for which the warrant is issued.
21 Offences relating to warrants
A person commits an offence if:
(a) the person makes a statement in an application for a warrant under section 20; and
(b) the statement is false or misleading in a material particular.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Part 4—Information‑gathering powers
22 Minister may obtain information and documents from persons
(1) This section applies to a person if the Minister has reason to believe that the person has information or a document that is relevant to:
(a) the administration or enforcement of this Act; or
(b) Australia’s obligation to report under Article 7 of the Convention; or
(c) Australia’s obligation to provide information under Article 8 of the Convention.
(2) The Minister may, by written notice given to the person, require the person:
(a) to give to the Minister, within the period and in the manner and form specified in the notice, any such information; or
(b) to produce to the Minister, within the period and in the manner specified in the notice, any such documents; or
(c) to make copies of any such documents and to produce to the Minister, within the period and in the manner specified in the notice, those copies.
(3) A person commits an offence if:
(a) the person is subject to a requirement covered by subsection (2); and
(b) the person recklessly contravenes the requirement.
Penalty: 50 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
23 Copying documents—reasonable compensation
A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement covered by paragraph 22(2)(c).
24 Self‑incrimination
(1) An individual is not excused from giving information or producing a document or a copy of a document under this Part on the ground that the information or the production of the document or copy might tend to incriminate the individual or expose the individual to a penalty.
(2) However:
(a) giving the information or producing the document or copy; or
(b) any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or copy;
is not admissible in evidence against the individual in criminal proceedings other than proceedings under, or arising out of, subsection 22(3) or section 25 or 26.
25 Giving false or misleading information
A person commits an offence if:
(a) the person gives information under section 22; and
(b) the information is false or misleading in a material particular.
Penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
26 Provision of false or misleading documents
(1) A person commits an offence if:
(a) the person produces a document, or a copy of a document, under section 22; and
(b) the document or copy is false or misleading in a material particular.
Penalty: Imprisonment for 12 months.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) Subsection (1) does not apply to a person who produces a document, or a copy of a document, that, to the knowledge of the person, is false or misleading in a material particular if the document or copy is accompanied by a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate:
(a) stating that the document or copy is, to the knowledge of the person, false or misleading in a material particular; and
(b) setting out, or referring to, the material particular in which the document or copy is, to the knowledge of the person, false or misleading.
27 Copies of documents
(1) The Minister may inspect a document or copy produced under this Part and may make and retain copies of, or take and retain extracts from, such a document.
(2) The Minister may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 22(2)(c).
28 Minister may retain documents
(1) The Minister may take, and retain for as long as is necessary, possession of a document produced under this Part.
(2) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Minister to be a true copy.
(3) The certified copy must be received in all courts and tribunals as evidence as if it were the original.
(4) Until a certified copy is supplied, the Minister must, at such reasonable times and places as the Minister thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.
Part 5—Miscellaneous
29 Delegation by Minister or Defence Minister
Delegation by the Minister
(1) The Minister may, by writing, delegate to:
(a) the Secretary of the Department; or
(b) an SES employee, or acting SES employee, whether or not in the Department;
all or any of the Minister’s powers under this Act.
(2) A delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Minister.
Delegation by the Defence Minister
(3) The Defence Minister may, by writing, delegate to:
(a) the Secretary of the Defence Department; or
(b) the Secretary of the Department; or
(c) the Chief of the Defence Force; or
(d) an SES employee, or acting SES employee, whether or not in the Department;
(e) an officer of the Navy who holds the rank of Commodore or a higher rank; or
(f) an officer of the Army who holds the rank of Brigadier or a higher rank; or
(g) an officer of the Air Force who holds the rank of Air Commodore or a higher rank;
the power conferred on the Defence Minister by subsection 8(1).
(4) A delegate covered by paragraph (3)(a), (c), (e), (f) or (g) must not exercise the power delegated under subsection (3) unless the exercise of the power relates to the operation of the Australian Defence Force.
(5) A delegate is, in the exercise of a power delegated under subsection (3), subject to the directions of the Defence Minister.
30 Privileges and immunities
(1) This section applies to a fact‑finding mission to Australia that is authorised by Article 8 of the Convention.
(2) The regulations may confer on the members of the mission such privileges and immunities as are necessary or desirable to give effect to, or facilitate the operation of, that Article.
(3) The privileges and immunities conferred by the regulations are privileges and immunities in relation to the operation of the laws of the Commonwealth and of the laws of the States and Territories.
(4) This section does not limit the International Organisations (Privileges and Immunities) Act 1963.
31 Powers to be exercised in accordance with Convention
(1) A person may exercise a power or perform a duty under this Act only to the extent that the exercise or performance is not inconsistent with Australia’s obligations under the Convention.
(2) A person must, in exercising a power under this Act, have regard to Australia’s obligations under the Convention.
32 Offences
Chapter 2 of the Criminal Code applies to all offences against this Act.
33 Compensation for acquisition of property
(1) If:
(a) apart from this section, the operation of this Act would result in the acquisition of property from a person otherwise than on just terms; and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;
the Commonwealth is liable to pay the person a reasonable amount of compensation in respect of the acquisition.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
(3) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
34 Regulations
The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.