(a) receive or obtain possession of the substance;
(b) have control over the disposition of the substance (whether or not the substance is in the custody of the person);
(c) have joint possession of the substance.
responsible Minister means:
(a) the AFP Minister; or
(b) the Minister for Defence.
second marking requirement has the meaning given by subsection 72.33(3).
traffic in a substance means:
(a) transfer the substance; or
(b) offer the substance for sale; or
(c) invite the making of offers to buy the substance; or
(d) prepare the substance for transfer with the intention of transferring any of it or believing that another person intends to transfer any of it; or
(e) transport or deliver the substance with the intention of transferring any of it or believing that another person intends to transfer any of it; or
(f) guard or conceal the substance with the intention of transferring any of it or the intention of assisting another person to transfer any of it; or
(g) possess the substance with the intention of transferring any of it.
For the purposes of paragraph (d), preparing a substance for transfer includes packaging the substance or separating the substance into discrete units.
transfer means transfer 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.
Subdivision C—Cluster munitions and explosive bomblets
72.37 Purpose
The purpose of this Subdivision is to create offences relating to cluster munitions and explosive bomblets and give effect to the Convention on Cluster Munitions.
72.38 Offences relating to cluster munitions
Doing acts with a cluster munition
(1) A person commits an offence if the person does any of the following with a cluster munition:
(a) uses it;
(b) develops, produces or otherwise acquires it;
(c) stockpiles or retains it;
(d) transfers it to anyone.
Penalty: Imprisonment for 10 years.
Promoting acts with a cluster munition
(2) A person (the first person) commits an offence if:
(a) the first person assists, encourages or induces another person to do any of the following acts with a cluster munition:
(i) use it;
(ii) develop, produce or otherwise acquire it;
(iii) stockpile or retain it;
(iv) transfer it to anyone; and
(b) the other person does the act; and
(c) the first person intends that the act be done.
Penalty: Imprisonment for 10 years.
Geographical jurisdiction
(3) Section 15.2 (extended geographical jurisdiction—category B) applies to an offence against this section.
Relationship with other provisions
(4) Division 11 does not apply in relation to an offence against subsection (2).
Note 1: Later sections of this Subdivision set out defences.
Note 2: This section relates to Articles 1 and 9 of the Convention on Cluster Munitions.
72.39 Defence—acquisition or retention authorised by Defence Minister
(1) Section 72.38 does not apply to the acquisition or retention of a cluster munition authorised under subsection (2).
Note: A defendant bears an evidential burden in relation to the matter in subsection (1): see subsection 13.3(3).
(2) The Minister administering the Explosives Act 1961 may authorise, in writing, specified members of the Australian Defence Force or other specified Commonwealth public officials to acquire or retain specified cluster munitions for one or more of the following purposes:
(a) the development of, and training in, cluster munition and explosive submunition detection, clearance or destruction techniques;
(b) the development of cluster munition counter‑measures;
(c) the destruction of the munitions.
Note 1: For specification by class see the Acts Interpretation Act 1901.
Note 2: This section relates to paragraphs 6 and 7 of Article 3 of the Convention on Cluster Munitions.
(3) The regulations may prescribe requirements relating to authorisations under subsection (2).
(4) An authorisation made under subsection (2) is not a legislative instrument.
(5) The Minister described in subsection (2) may delegate his or her power under that subsection to:
(a) the Secretary of the Department administered by that Minister; or
(b) an SES employee in that Department.
Note: For the definition of SES employee see the Acts Interpretation Act 1901.
72.40 Defence—transfer for destruction etc.
Transfer to foreign party to Convention on Cluster Munitions
(1) Section 72.38 does not apply to the transfer of a cluster munition to a party to the Convention on Cluster Munitions for one or more of the following purposes:
(a) the development of, and training in, cluster munition and explosive submunition detection, clearance or destruction techniques;
(b) the development of cluster munition counter‑measures;
(c) the destruction of the munition.
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (1): see subsection 13.3(3).
Note 2: This subsection relates to paragraph 7 of Article 3 of the Convention on Cluster Munitions.
Intended transfer to Australian Defence Force
(2) Subsections (3) and (4) have effect if:
(a) a person has a cluster munition; and
(b) the person gives notice to a police officer or member of the Australian Defence Force that the person wishes to transfer the munition to a member of the Australian Defence Force or other Commonwealth public official; and
(c) the person gives notice without delay after the first time the person has the cluster munition after the commencement of this subsection.
(3) Subsection 72.38(1) does not apply to the person stockpiling or retaining the cluster munition at any time before the person transfers it to a member of the Australian Defence Force or other Commonwealth public official.
(4) Subsection 72.38(1) does not apply to the person transferring the cluster munition to a member of the Australian Defence Force or other Commonwealth public official.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2) and whichever of subsections (3) and (4) is relevant: see subsection 13.3(3).
72.41 Defence—acts by Australians in military cooperation with countries not party to Convention on Cluster Munitions
A person who is an Australian citizen, is a member of the Australian Defence Force or is performing services under a Commonwealth contract does not commit an offence against section 72.38 by doing an act if:
(a) the act is done in the course of military cooperation or operations with a foreign country that is not a party to the Convention on Cluster Munitions; and
(b) the act is not connected with the Commonwealth:
(i) using a cluster munition; or
(ii) developing, producing or otherwise acquiring a cluster munition; or
(iii) stockpiling or retaining a cluster munition; or
(iv) transferring a cluster munition; and
(c) the act does not consist of expressly requesting the use of a cluster munition in a case where the choice of munitions used is within the Commonwealth’s exclusive control.
Note 1: A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).
Note 2: The expression offence against section 72.38 is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(2).
Note 3: This section relates to paragraphs 3 and 4 of Article 21 of the Convention on Cluster Munitions.
72.42 Defence—acts by military personnel of countries not party to Convention on Cluster Munitions
(1) Section 72.38 does not apply to the stockpiling, retention or transfer of a cluster munition that:
(a) is done by:
(i) a member of the armed forces of a foreign country that is not a party to the Convention on Cluster Munitions; or
(ii) a person who is connected with such forces as described in subsection (2) and is neither an Australian citizen nor a resident of Australia; and
(b) is done in connection with the use by those forces of any of the following in Australia in the course of military cooperation or operations with the Australian Defence Force:
(i) a base;
(ii) an aircraft of any part of those forces or an aircraft being commanded or piloted by a member of those forces in the course of his or her duties as such a member;
(iii) a ship of any part of those forces or a ship being operated or commanded by a member of those forces in the course of his or her duties as such a member.
Note: A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).
(2) This subsection covers a person with any of the following connections with the armed forces of a foreign country that is not a party to the Convention on Cluster Munitions:
(a) the person is employed by, or in the service of, any of those forces;
(b) the person is serving with an organisation accompanying any of those forces;
(c) the person is attached to or accompanying those forces and is subject to the law of that country governing any of the armed forces of that country.
72.43 Forfeiture of cluster munition
(1) This section applies if a court:
(a) convicts someone of an offence against subsection 72.38(1); or
(b) makes an order under section 19B of the Crimes Act 1914 relating to an offence against subsection 72.38(1).
Note: The expression offence against subsection 72.38(1) is given an extended meaning by subsections 11.2(1) and 11.2A(1), section 11.3 and subsection 11.6(2).
(2) The court may order forfeiture to the Commonwealth of any cluster munition involved in the offence.
(3) A cluster munition ordered to be forfeited to the Commonwealth becomes the Commonwealth’s property.
72.44 Application of this Subdivision to explosive bomblets
This Subdivision applies in relation to explosive bomblets in the same way as it applies in relation to cluster munitions.
72.45 Definitions
In this Subdivision:
cluster munition has the meaning given by paragraph 2 of Article 2 of the Convention on Cluster Munitions.
Convention on Cluster Munitions means the Convention on Cluster Munitions done at Dublin on 30 May 2008.
Note: In 2012, the text of the Convention was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
explosive bomblet has the meaning given by paragraph 13 of Article 2 of the Convention on Cluster Munitions.
explosive submunition has the meaning given by paragraph 3 of Article 2 of the Convention on Cluster Munitions.
police officer means:
(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or
(b) a special member of the Australian Federal Police (within the meaning of that Act); or
(c) a member (however described) of a police force of a State or Territory.
transfer has the meaning given by paragraph 8 of Article 2 of the Convention on Cluster Munitions.
Note: Imports and exports are some examples of transfers.
Division 73—People smuggling and related offences
Subdivision A—People smuggling offences
73.1 Offence of people smuggling
(1) A person (the first person) is guilty of an offence if:
(a) the first person organises or facilitates the entry of another person (the other person) into a foreign country (whether or not via Australia); and
(b) the entry of the other person into the foreign country does not comply with the requirements under that country’s law for entry into the country; and
(c) the other person is not a citizen or permanent resident of the foreign country.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(2) Absolute liability applies to the paragraph (1)(c) element of the offence.
(3) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of people smuggling.
73.2 Aggravated offence of people smuggling (danger of death or serious harm etc.)
(1) A person (the first person) commits an offence against this section if the first person commits the offence of people smuggling (the underlying offence) in relation to another person (the victim) and either or both of the following apply:
(b) in committing the underlying offence, the first person subjects the victim to cruel, inhuman or degrading treatment;
(c) in committing the underlying offence:
(i) the first person’s conduct gives rise to a danger of death or serious harm to the victim; and
(ii) the first person is reckless as to the danger of death or serious harm to the victim that arises from the conduct.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
(2) There is no fault element for the physical element of conduct described in subsection (1), that the first person commits the underlying offence, other than the fault elements (however described), if any, for the underlying offence.
(2A) To avoid doubt, the first person may be convicted of an offence against this section even if the first person has not been convicted of the underlying offence.
73.3 Aggravated offence of people smuggling (at least 5 people)
(1) A person (the first person) is guilty of an offence if:
(a) the first person organises or facilitates the entry of a group of at least 5 persons (the other persons) into a foreign country (whether or not via Australia); and
(b) the entry of at least 5 of the other persons into the foreign country does not comply with the requirements under that country’s law for entry into that country; and
(c) at least 5 of the other persons whose entry into the foreign country is covered by paragraph (b) are not citizens or permanent residents of the foreign country.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
(2) Absolute liability applies to the paragraph (1)(c) element of the offence.
(3) If, on a trial for an offence against subsection (1), the trier of fact is not satisfied that the defendant is guilty of that offence, but is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 73.1(1), the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of an offence against subsection 73.1(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
73.3A Supporting the offence of people smuggling
(1) A person (the first person) commits an offence if:
(a) the first person provides material support or resources to another person or an organisation (the receiver); and
(b) the support or resources aids the receiver, or a person or organisation other than the receiver, to engage in conduct constituting the offence of people smuggling.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(2) Subsection (1) does not apply if the conduct constituting the offence of people smuggling relates, or would relate, to:
(a) the first person; or
(b) a group of persons that includes the first person.
(3) To avoid doubt, the first person commits an offence against subsection (1) even if the offence of people smuggling is not committed.
73.4 Jurisdictional requirement
A person commits an offence against this Subdivision only if:
(a) both:
(i) the person is an Australian citizen or a resident of Australia; and
(ii) the conduct constituting the alleged offence occurs wholly outside Australia; or
(b) both:
(i) the conduct constituting the alleged offence occurs wholly or partly in Australia; and
(ii) a result of the conduct occurs, or is intended by the person to occur, outside Australia.
73.5 Attorney‑General’s consent required
(1) Proceedings for an offence against this Subdivision must not be commenced without the Attorney‑General’s written consent.
(2) However, a person may be arrested, charged, remanded in custody or released on bail in connection with an offence against this Subdivision before the necessary consent has been given.
Subdivision B—Document offences related to people smuggling and unlawful entry into foreign countries
73.6 Meaning of travel or identity document
(1) For the purposes of this Subdivision, a document is a travel or identity document if it is:
(a) a travel document; or
(b) an identity document.
73.7 Meaning of false travel or identity document
(1) For the purposes of this Subdivision, a travel or identity document is a false travel or identity document if, and only if:
(a) the document, or any part of the document:
(i) purports to have been made in the form in which it is made by a person who did not make it in that form; or
(ii) purports to have been made in the form in which it is made on the authority of a person who did not authorise its making in that form; or
(b) the document, or any part of the document:
(i) purports to have been made in the terms in which it is made by a person who did not make it in those terms; or
(ii) purports to have been made in the terms in which it is made on the authority of a person who did not authorise its making in those terms; or
(c) the document, or any part of the document:
(i) purports to have been altered in any respect by a person who did not alter it in that respect; or
(ii) purports to have been altered in any respect on the authority of a person who did not authorise its alteration in that respect; or
(d) the document, or any part of the document:
(i) purports to have been made or altered by a person who did not exist; or
(ii) purports to have been made or altered on the authority of a person who did not exist; or
(e) the document, or any part of the document, purports to have been made or altered on a date on which, at a time at which, at a place at which, or otherwise in circumstances in which, it was not made or altered.