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Wednesday, 18 February 1987
Page: 209


Senator GARETH EVANS (Minister for Resources and Energy)(7.02) —in reply-This has been inevitably a wide ranging debate and I thank a number of honourable senators for their contributions to it. It may be recalled that the Nuclear Non-Proliferation (Safeguards) Bill 1986 gives effect to all Australia's international non-proliferation obligations which require domestic legislation. These obligations arise under the Treaty on the Non-Proliferation of Nuclear Weapons, under Australia's safeguards agreement with the International Atomic Energy Agency, under Australia's bilateral nuclear safeguards agreements with other countries and the European Atomic Energy Community, and also under the Physical Protection Convention which has not yet been ratified but very shortly will be. The Bill also provides the legislative basis for the operation of the Australian Safeguards Office in administering Australia's safeguards system.

This is a somewhat unique piece of legislation. I do not think there is any equivalent for it elsewhere in the world. As I have said, it brings together all our domestic obligations that are a part of this complex interrelationship of international obligations on this tremendously important question. Inevitably, given this kind of subject matter, the debate tends to get wide ranging and I certainly do not propose to embark upon any kind of summary or attempt to deal with the issues which were raised, for example, in relation to the South Pacific Nuclear Free Zone and related matters of that kind which are only tangentially relevant to the Bill now before us.

In winding up I want to confine my remarks just to a few words about the Nuclear Non-Proliferation Treaty and its effectiveness which has been called into question by a number of speakers and I also want to respond, as I think appropriate, to a number of particular matters and questions that were raised by Senator Durack in his opening speech for the Opposition. It may be that we can shorten the Committee stage as a result of my dealing with these matters at this time.


Senator Durack —Provided you answer them properly.


Senator GARETH EVANS —There is every chance. The Nuclear Non-Proliferation Treaty which opened for signature in 1968 and which came into force in 1970 with now, I think, 136 signatories represents, as has often been said, a bargain between the nuclear and non-nuclear states. Under Article 2, the non-nuclear states renounced their intention to acquire nuclear weapons and, under Article 3, they accepted what are described as full scope IAEA safeguards on all nuclear activities within their territories in order to verify the observance of their obligations under Article 2. By contrast, under Article 1 of the Treaty, the nuclear weapons states undertook not to transfer nuclear weapons to a non-nuclear state or to assist such a state to acquire them. In return for those undertakings the nuclear weapons states and other countries also recognised under Article 4 the right of all countries to use nuclear energy for peaceful purposes. Under Article 6 there is a general undertaking to work for a reduction in nuclear proliferation not only horizontally, that is, by way of extension to other countries that do not presently have nuclear weapons but also, as Senator Crowley was saying, vertically; that is to say, the reduction of the stockpiles of weapons held by the existing weapons states.

I do not believe that there is justification for the criticism that one hears from time to time directed against this treaty and which surfaced in the responses of a few speakers in the course of this debate. It is perfectly true that so far as the obligation to wind back vertical proliferation is concerned the record has not been spectacularly successful. On the contrary, it has been a matter of profound disappointment that the United States of America and the Union of Soviet Socialist Republics-the two leading nuclear weapons states-have found it so manifestly impossible to honour the spirit of their alleged commitment to arms reduction. It is a tragedy that Reykjavik and other enterprises of this kind have so far borne such little fruit but we remain hopeful that that process will continue and we are doing our best as a nation to support reductions by the super-powers.

So far as horizontal proliferation is concerned it has to be said that the record has been very much more successful that many people hoped would be the case a generation ago. Around 30 years ago it was anticipated that by the 1980s there could be as many as 20 or 30 nuclear weapons states. But the reality is, of course, that there are still only five acknowledged nuclear weapons states, although there are varying degrees of concern about the performance in this respect of a number of other countries, including, conspicuously in recent times, Israel, but also South Africa, Argentina, Brazil, India and Pakistan. It should be noted that all of the countries are `vigorously antagonistic opponents' of the Nuclear Non-Proliferation Treaty, which is a point that, in a sense, has its own significance. It says much for the fundamental reality and significance of the treaty that it should be subject to so much negative attention by those countries that are obviously reluctant to observe its terms.

But certainly the Treaty has been regarded as significant by many countries in enhancing their sense of security when countries around them have been prepared to enter into and accept its terms. Certainly Australia has regarded the thing as being very significant by virtue of the regional acceptance of the Non-Proliferation Treaty by countries of the Association of South East Asian Nations and countries of the South Pacific as well. For people to argue as they do that the NPT is meaningless because it has failed totally and assuredly to prevent the horizontal proliferation of nuclear weapons is somewhat akin to the old suggestion and argument that one should not have a system of law because there will always be criminals. The point manifestly does not follow.

The final thing I would say about the NPT is that there is plenty of evidence that the parties to it-the great majority of the countries of the world-have observed its strictures and have taken its terms very seriously indeed. So far as matters such as the non-diversion of uranium and nuclear material from civil to military purposes are concerned there has been no diversion ever recorded from any safeguarded facility by the International Atomic Energy Agency. I and the Government believe that this impressive safeguards record reflects the political influence of the system as a deterrent as well as the technical effectiveness of safeguards themselves. It is that particular system that this Bill is directed towards shoring up as best we can within Australia.

Let me now quickly deal with a number of the matters that were raised by Senator Durack. He sought an indication as to when the Physical Protection Convention would be ratified. Consultations are currently taking place with the states concerning administrative procedures under that convention. It is expected that Australia will be able to ratify it when those consultations are complete and when that portion of the Bill dealing with this aspect is brought into force. This may take some few more months. Dealing with the states is always difficult in this respect but we hope that the issue will be resolved in a matter of weeks. Certainly we are anxious to proceed as rapidly as we can to that ratification.

Senator Durack secondly sought information on the results and publicity regarding holdings of safeguardable nuclear material, equipment or technology. I can say that as a result of the publicity following the introduction of the Bill the Australian Safeguards Office has received approximately 150 responses from persons holding nuclear material and associated items. Major holders are the Australian Atomic Energy Commission and the uranium mining companies. There are small holdings of material coming within the definition by organisations such as the Commonwealth Scientific and Industrial Research Organisation, universities, hospitals with radiotherapy equipment, industrial radiography firms and school laboratories.

Senator Durack expressed a concern that academic freedom might be affected by the requirement to have permits for associated technology. I think it would be most useful and certainly quickest for me to seek to have incorporated in Hansard an exchange of correspondence I had a little while ago with the New South Wales Council for Civil Liberties in which those questions were raised in a quite detailed way and were subject to a quite detailed reply. I seek leave to have that correspondence incorporated in Hansard.


Senator Durack —Is that a letter from Mr Robertson?


Senator GARETH EVANS —Yes. I gave Senator Durack a copy of that some time ago. If the honourable senator wants to raise anything further in the Committee stage, we will deal with it then.

Leave granted.

The documents read as follows-

COUNCIL FOR CIVIL LIBERTIES

149 St Johns Road, Glebe 2037

Telephone: 660-7562

October 21, 1986

Senator Gareth Evans,

Minister for Resources and Energy,

Parliament House,

Canberra, A.C.T. 2600

Dear Minister,

NUCLEAR NON PROLIFERATION

(SAFEGUARDS) BILL 1986

The Council congratulates you upon the replacement of the Atomic Energy Act 1953 with this Bill. We are pleased to see that the concerns we expressed about the cold war provisions of that Act have been substantially met. There is, however, one difficulty with the Bill which we would appreciate the Government addressing.

Clause 26 of the Bill punishes the disclosure of documents containing information concerning the secondary processing of nuclear material or the ``design, production, operation, testing or use'' of nuclear weapons or other such explosive devices. The clause also punishes the disclosure of documents ``to which a prescribed international agreement applies and that is of a kind declared by the Minister, in writing, to be information to which'' the definition of associated technology applies.

The first category of document, the disclosure of which is punishable, is objectionable on the grounds of width and uncertainty. For example, the publication of the fact that Indonesia has tested a nuclear weapon would be a criminal offence if the source of the information was not ``lawfully available, whether within Australia of outside Australia, to the public or a section thereof''. It is highly unlikely that the testing of a nuclear weapon by Indonesia would be published by the Indonesian Government to the world at large, and it is most probable that the discovery of such information would be contrary to Indonesian law. Most rational people would agree that the interests of non proliferation of nuclear weaponry are probably better served by the disclosure of the extent or likelihood of such proliferation than otherwise.

The second category of information, the disclosure of which is punishable, is supplied not by the Bill but, in the most amorphous manner possible, by ministerial declaration. This is an extraordinary provision which permits the creation of serious criminal offences by executive rather than parliamentary action, the foundation for which may be an international agreement whose contents will rarely reach the degree of precision ordinarily required for the definition of criminal offences.

The Council can well understand the legitimate concern of the Federal Government to restrict the availability of information on the construction of nuclear weapons in order to prevent their proliferation or use by terrorist groups. The effect of the Bill is, however, much wider than this narrow concern and, as presently drafted, it punishes disclosures of information on topics of public interest where such disclosures have been made in good faith and without any intention to encourage proliferation. We cannot see any difficulty in modifying clause 26 so as to exclude what are undoubtedly unintended consequences.

I am copying this letter to Senators Chaney and Haines as I understand that the Bill will be debated in this Senate session.

I look forward to your reply.

Best regards,

Yours sincerely,

TIM ROBERTSON

Secretary

Senator The Hon. Gareth Evans QC

Minister for Resources and Energy

Parliament House

Canberra, A.C.T. 2600

Mr Tim Robertson

Secretary

Council for Civil Liberties

Box 201, PO

Glebe, N.S.W. 2037

Dear Mr Robertson,

I refer to your letter of 21 October 1986 concerning the Nuclear Non-Proliferation (Safeguards) Bill 1986 and welcome your comments on the Bill.

Clause 26 of the Bill is not intended to have the effect ascribed to it in your letter. The intention of the clause is to control the dissemination of technical information of proliferation significance, not information on topics of public interest, and I believe that the drafting of the clause achieves this effect.

As a preliminary comment, your use of the phrase ``secondary processing'' of nuclear material implies a much wider interpretation of the information being controlled than is in fact the case. The scope of clause 26 is determined by the definition of ``associated technology'' in sub-clause 4 (1) which refers to ``enrichment'' and ``reprocessing''. Both these terms are defined in sub-clause 4 (1) and both have a well understood technical meaning in nuclear terminology. One or both of these processes are essential prerequisites to the production of nuclear weapons.

I do not see that the Bill would in any way inhibit the publication of information that a foreign country has tested a nuclear weapon. Clause 26 does not apply to information that is lawfully available ``in Australia or outside Australia'': there is no requirement that information sourced from within a foreign country has to be lawfully available in that country so long as it is lawfully available in Australia. Moreover, the intention of the clause is to prohibit the dissemination of information that could be applied, as distinct from being merely related, to the testing or to the design, production or use of a nuclear weapon, and could thus assist a country to test or to design, produce or use such a weapon. The operative words in the definition of ``associated technology'' are ``applicable primarily to'' and I believe that the first category of documents defined in the Bill has neither the width nor the uncertainty suggested in your letter.

As regards the second category of information, a ``prescribing international agreement'' is defined in the Bill to mean an agreement listed in Schedule 5 to the Bill or an agreement prescribed by regulation. An agreement that may be prescribed by regulation must be an agreement in relation to nuclear safeguards or the peaceful use of nuclear material or associated items. All such agreements are on the public record. The agreements that are envisaged to be prescribed by regulation are agreements of the same kind as listed in the Bill which might be negotiated and entered into by Australia at some future date. For example, a nuclear safeguards agreement has been signed with Switzerland but it is not yet in force. It will be prescribed by regulation when it does come into force.

Some of the prescribed agreements have a provision controlling the transfer of nuclear technology between the two countries. If a document containing information on such nuclear technology is transferred from the other country Australia will be under an obligation to control that information in accordance with the agreement. The Minister's powers of declaration are therefore strictly limited to information to which the agreement applies and could be effectively exercised only when a particular document is transferred between the two countries.

I am sending copies of this letter to Senators Chaney, Durack and Haines.

Your sincerely,

GARETH EVANS


Senator GARETH EVANS —Senator Durack sought a further explanation of why the legislation is being enacted now, after a system of safeguards has been functioning satisfactorily without legislation for several years. All we can say is that it has been functioning satisfactorily only because of the good will and co-operation of the holders of nuclear material, especially the mining companies and the AAEC. That situation might well be expected to continue, but one cannot guarantee it, and we think it needs shoring up. Moreover, a legally enforceable system is necessary because Australia has international obligations to fulfil and we see it as inappropriate under those circumstances to rely wholly on that evanescent quality of good will for the permanent future.

The final concern that I noted in Senator Durack's speech-he may have others which he wants to pursue, and he can do so in the Committee stage-was that universities and industry may be affected by unnecessary red tape. All we can say here is that the Australian Safeguards Office is a very small unit within my Department which has been functioning very efficiently for a number of years. It is the intention that the issuing of permits and other administrative procedures should be carried out with the minimum of inconvenience consistent with the fulfilment of obligations under the legislation. We simply do not believe that this will prove to be in any way burdensome for any of those concerned. I commend the Bill to the Senate. I again thank honourable senators for their often thoughtful contributions to the debate.

Question resolved in the affirmative.

Bill read a second time.