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Wednesday, 25 February 1987
Page: 745

Mr BRAITHWAITE(6.58) —by leave-I move:

(1) Page 10, after clause 8, insert the following new clause in Part I:

Act not to apply to visiting allied forces

``8A. (1) This Act does not apply in relation to-

(a) ships, aircraft or equipment of a visiting allied force;

(b) a member of a visiting allied force acting in accordance with the member's duty; or

(c) a member of the Defence Force or a Commonwealth officer associated with a visiting allied force acting in accordance with the member's or the officer's duty.

``(2) In this section, `visiting allied force' means an armed force of a foreign country declared by the Minister, by notice in writing published in the Gazette, to be a visiting allied force for the purposes of this section.

``(3) A certificate, signed by the Minister, certifying that a member of the Defence Force or a Commonwealth officer is or was associated with a visiting allied force or is or was acting in accordance with the member's or the officer's duty is evidence of the facts stated in the certificate.

``(4) Where the Minister considers that it is necessary, for the purpose of preventing, detecting or investigating an offence against a law of the Commonwealth or of a State or Territory, or for the purpose of proceedings in relation to such an offence, that a provision of this Act apply in relation to a person or thing referred to in sub-section (1), the Minister may, by notice in writing published in the Gazette, declare that a provision of this Act so applies to the extent and for the time specified in the notice, and the provision shall apply accordingly.''.

(2) Clause 40, page 28, after sub-clause (1) insert the following sub-clause:

``(1a) Where, at any time before or during the hearing of proceedings before a court in relation to an offence against this Act, there is submitted to the Judge or Magistrate a certificate signed by the Minister certifying that the proceedings involve or may involve matters relating to-

(a) ships, aircraft or equipment of a visiting allied force;

(b) a member of a visiting allied force; or

(c) a member of the Defence Force or a Commonwealth officer associated with a visiting allied force,

the Judge or Magistrate shall make orders-

(d) that all members of the public be excluded during the proceedings;

(e) that no report of the proceedings be published; and

(f) prohibiting access, before, during or after the proceedings, to any affidavit, exhibit, information or other document used in the proceedings that is on the file in the court or in the records of the court.''.

(3) Clause 40, page 28, line 29, after ``sub-section (1)'' insert ``or (1a)''.

In speaking to the amendments and also to the Bill as a whole, I have gained the impression-and this has been borne out by the honourable member for Prospect (Dr Klugman)-that the legislation itself is not necessary. We indicated this during the second reading debate. The Nuclear Non-Proliferation (Safeguards) Bill is only as strong as those people who act outside the Treaty, not those who act inside it. We have given examples of the dangers that exist quite innocently around us. It comes back to the point that this legislation is only necessary because the Minister for Resources and Energy (Senator Gareth Evans) has a great love of legislation and amendments. Obviously that comes from his law experience. I have looked at the Senate Hansard and note that the same amendments that we are moving tonight were discussed there. At that time Senator Gareth Evans moved some six amendments to his own Bill. Although he had prepared it, nevertheless he thought that within the time that it took the Bill to pass through the Senate, those six amendments had become necessary in what must be regarded as a very complicated piece of legislation. We still wonder whether it is necessary.

38 It struck us as strange that the two amendments that we moved-they were moved by Senator Durack in the Senate-were not taken up. We believe that our amendments are very necessary to safeguard some of our allies who possess nuclear weapons and nuclear-powered vessels which visit from time to time. It surprises me that the Minister for Science (Mr Barry Jones) has not seen the wisdom of accepting these amendments. If he would, the debate would proceed a lot faster. The Opposition is seriously worried about the extent to which this Bill could be used by a government of any persuasion here to prevent the operation of our defence arrangements with our nuclear allies. It is interesting to note that when the honourable member for Fraser (Mr Langmore) was talking in connection with this he was describing those nuclear allies in less than complimentary terms, which makes me wonder whether he is not only anti-United States but also pro-USSR. The Bill in general requires a permit for the possession or transport of nuclear material, but it would be almost impossible to administer this legislation literally when it comes to the existing defence arrangements that we have with those allies. It is clear that under the ANZUS Treaty and within our traditional Western alliance we have in our defence arrangements allies which are nuclear powers and which do not as a matter of policy state whether their warships carry nuclear weapons. The ANZUS Treaty and other less formal but traditional alliances with our other allies are very important to the defence of this country. That was very much borne out by the second debate.

Some of these countries possess nuclear weapons. They have ships that carry nuclear weapons; they have nuclear-powered ships, and so it goes on. As far as these international agreements are concerned, our allies quite lawfully possess that material. Whether or not some people like it, it happens to be the Government's policy to allow these ships to come to Australia, as it would be the policy of the Opposition. Indeed we welcome them, which is sometimes more than I can say for the Government. It is certainly the Opposition's policy to do this. We well know that a number of people in Australia take very active steps to protest against these particular visits. A very small and probably declining element of the Australian community is prepared to take extreme steps to make its objections to these visits known. I suggest to the Government that it would even be prone to taking the legal steps contained within the Bill before us to try to prevent them occurring-an action which we fear.

The interpretation of this legislation could well be put in question by certain people in Australia for very political reasons. If this situation arose I think there would be a difficulty. There may well be a difficulty in explaining to a court exactly what is intended by this legislation and by the international instruments to which it gives effect. We are concerned that we should make it explicit that this legislation does not apply to our defence arrangements, particularly those dealing with nuclear allies. The suggested amendment seeks to insert in the legislation a provision which makes it quite clear that this Bill and all the international instruments with which it deals will not apply to our defence arrangements and, in particular, to those arrangements with allies who are nuclear armed.

Not only is it not intended that the legislation should apply to these defence arrangements but also as a matter of law it will not apply to those particular allies. The fact that the Government, through Senator Gareth Evans, has confirmed this, as I have said, is some comfort for the future and, hopefully, will add strength to the otherwise powerful legal argument that would be advanced in the courts by the Government if the event that I fear did occur. We believe that it is better that the legislation express this intent and not have it interpreted by some court and judges in the future outside the full knowledge of what the Minister intended at the time. It should be made crystal clear in this legislation exactly what is intended.

The other aspect of the second proposed amendment is that it deals with proceedings before a court related to an alleged offence under this proposed Act, that is, the offence of possession or transport of nuclear material. As our allies would not wish to confirm or deny that nuclear arms are being carried on their warships or their aircraft when they came to Australia, this Bill could potentially have a very serious effect on those defence arrangements. In court proceedings in relation to an offence against the proposed Act involving matters which may relate to visiting ships, aircraft, equipment or members of an allied force the court should be closed. The effect of our proposed amendment is to do this.

I know a clause in the legislation will give the courts power to have a hearing in camera in relation to proceedings under this legislation. However, the Opposition's objection to that is that it is giving a discretion to the courts. As I have already said, the Opposition is not happy about the way in which such discretion might be exercised by some judicial officers. Therefore, it ought to be quite clearly laid down in the legislation in the way that is proposed. The matter of discretion was subject to amendment in the Senate. Discretions might have a part in some law, but it is the authority of this Parliament and the authority of the Government that should be carried without those discretions having to be exercised. For those reasons I hope those amendments find favour with the Government so that it can ensure a speedy passage of the legislation through this House.