Defence—acts by Australians in military cooperation with countries not party to Convention on Cluster Munitions
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:
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
the act is not connected with the Commonwealth:
using a cluster munition; or
developing, producing or otherwise acquiring a cluster munition; or
stockpiling or retaining a cluster munition; or
transferring a cluster munition; and
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.
A defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3).
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).
This section relates to paragraphs 3 and 4 of Article 21 of the Convention on Cluster Munitions.
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