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Weapons of Mass Destruction (Prevention of Proliferation) Bill 1994



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Date Introduced: 9 November 1994

House: Senate

Portfolio: Foreign Affairs and Trade

Commencement: Proclamation, or 6 months after Royal Assent, whichever is the earlier.

Purpose

The purpose of the Bill is to supplement existing customs controls on the export of material which could be used in weapons of mass destruction, by restricting the provision of services or the export of ordinary commercial goods, which might be used to make, develop or store weapons of mass destruction.

Background

'Weapons of mass destruction' is a term used to describe nuclear, biological and chemical weapons which are capable of resulting in mass destruction of the population.

Australia is a party to three international treaties which are concerned with the control and reduction of weapons of mass destruction. The Treaty on the Non-Proliferation of Nuclear Weapons was ratified by Australia on 23 January 1973. It is substantially implemented by the Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth). The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, was ratified by Australia on 5 October 1977 and is substantially implemented by the Crimes (Biological Weapons) Act 1976 (Cth). The Convention on the Prohibition of the Development, Production, Stockpiling and use of Chemical Weapons and on their Destruction was ratified on 6 May 1994, but has not yet come into force internationally. It will be substantially implemented by the Chemical Weapons (Prohibition) Act 1994 (Cth), which will come into force on a date to be proclaimed, or upon the Convention coming into force.

In addition to these three treaties and their associated legislation, which place limits on the use and transfer of chemical, nuclear and bacteriological material, Australia is involved in at least four international groups which aim to control the international transfer of such materials.

The first group of which Australia is a member, is the Zangger Committee, which was formed in the early 1970s. It was formed by countries who are suppliers of nuclear materials, with the aim of interpreting the general provisions of the Nuclear Non-Proliferation Treaty which deal with the control of exports of equipment for use in the production of 'special fissionable material'. It has developed a list of equipment, the export of which should be subject to safeguards. 1

The second group is the Nuclear Suppliers Group which was formed in 1974. It comprises most European countries, the United States, Canada Japan and Australia. The Group has developed guidelines for the export of nuclear-related equipment and technology, aimed at preventing the proliferation of nuclear weapons. In 1992 the Group agreed on 'Guidelines for Transfers of Nuclear-Related Dual-Use Equipment, Material and Related Technology'. 2 These guidelines are aimed at controlling material which has 'legitimate non-nuclear uses, but if diverted, could make a major contribution to nuclear explosive and unsafeguarded nuclear fuel activities'.

The third group is the Missile Technology Control Regime which was established in 1987. It comprises a group of countries which have agreed to a basic set of guidelines on the export of missile technology. Participating countries have agreed to incorporate these guidelines in their national export regulations. In July 1990 Australia joined this group, which now numbers 25 countries.

The fourth group is known as the 'Australia Group'. This group was established by Australia to facilitate the establishment of a Chemical Weapons treaty and to deal with the export of material for the making of chemical weapons until such a treaty comes into force. The Australia Group first met in September 1987, and now comprises approximately 25 members, constituting 80% of the world's chemical suppliers. The Group has developed a list of chemicals which require export controls.

In order to meet its international obligations imposed both by treaties and these more informal international groups, Australia has enacted legislation (as mentioned above) to deal with nuclear, chemical and bacteriological material within Australia. It has also imposed export controls through the Customs (Prohibited Exports) Regulations, under the Customs Act 1901. However, it is impractical to require export permits for common commercial exports which have legitimate usages in other countries, but which may also assist in the construction of weapons of mass destruction. This Bill is designed to fill that gap by putting the onus on exporters not to export such goods if they know or suspect on reasonable grounds that they will be used to assist in the development of weapons of mass destruction. The Bill also covers the provision of services, such as expertise in the technology necessary to make such weapons.

Main Provisions

Application of the Bill: Clause 4 provides that the Bill will extend to the external Territories, and clause 8 provides that it will bind the Commonwealth, as well as the States, the Australian Capital Territory, the Northern Territory and Norfolk Island.

Clause 6 provides that the Bill will not only apply to acts or omissions in Australia, but also to acts or omissions done outside Australia by:

Australian citizens;

people who ordinarily reside in Australia; and

bodies incorporated in Australia.

At international law, Australia would not have jurisdiction to legislate in relation to things that happen outside Australia, unless it had this connection with Australian citizens, residents or companies.

Constitutional basis for the Bill: Clause 7 sets out the constitutional basis for the Bill. It relies on the following constitutional powers:

the external affairs power (s. 51(xxix)) to the extent that it gives effect to the Biological Weapons Convention, the Nuclear Non-Proliferation Treaty and the Chemical Weapons Convention, or to the extent that the matters are external to Australia or matters of international concern;

the defence power (s. 51(vi));

the corporations power (s. 51(xx)); and

the trade and commerce power (s. 51(i)).

General prohibition on the provision or export of goods or services: Clause 9 provides that where a person supplies goods to another, believing or suspecting on reasonable grounds that the goods may be used in a program for the development, production, acquisition or stockpiling of weapons of mass destruction (a 'WMD program'), the person is guilty of an offence punishable by imprisonment for a maximum of 8 years. The person is not guilty of an offence if the supply of goods is authorised by a permit granted under clause 13 or the Minister has issued the person with a written notice under clause 12 stating that the Minister does not believe or suspect that the goods may be used in a WMD program.

Clause 10 sets out the same prohibition and exemptions concerning the export of goods which are not regulated under the Customs Act 1901.

Clause 11 is the same, except that it concerns the provision of services to another person (rather than goods). The 'provision of services' is defined in clause 4 as including contracts for the performance of work, contracts in relation to the lending of money or provision of financial assistance, the provision of training and other know-how, and procuring others to supply or export goods or provide services.

Clause 15 attributes the belief or suspicion of a director, employee or agent, acting within his or her authority, to the relevant corporation, unless the corporation proves that it took reasonable precautions and exercised due diligence to avoid the conduct. If a corporation is convicted, s. 4B of the Crimes Act 1914 (Cth) allows a court to impose a fine upon it of up to 5 times the maximum fine which could be imposed on an individual.

Ministerial statements: If a person suspects that the goods or services they wish to supply might be used in a WMD program, clause 12 provides that they can request the Minister to provide a written statement as to whether the Minister believes or suspects that this is the case. The Minister must provide such a written statement as soon as possible. If the Minister states that he or she does not have reason to believe or suspect that the goods or services may be used for a WMD program, then the person providing the goods or services is protected from prosecution under clauses 9-11.

Permits: If the Minister does have reason to believe or suspect that goods or services may be used to assist a WMD program, the person who wishes to provide such goods or services may still apply for a permit under clause 13 and the regulations. If the Minister is satisfied that the supply or export of the goods or services would not be contrary to Australia's international or treaty obligations or national interest, he or she may grant a permit for the supply or export of the goods or services. The permit may be subject to conditions, and may be revoked. A permit is also protection against prosecution under clauses 9-11.

Notice prohibiting the supply or export of goods or services: In addition to the general prohibition on supplying or exporting goods or services which may assist a WMD program, clause 14 allows the Minister to send out notices prohibiting a person from supplying or exporting the goods or services to a person or place, or placing conditions upon such activity. The Minister may only issue such notices if he or she has reason to believe or suspect that the goods or services might be used to assist a WMD program and the Minister considers a permit could not be given under clause 13. A notice lasts for 12 months. It is an offence for a person to knowingly supply or export goods or services contrary to a notice. The penalty is imprisonment for a maximum of 8 years.

Injunction: Clause 16 allows the Minister to get an injunction to stop a person from breaching this Bill.

Forfeiture of goods: In addition to criminal penalties, clause 17provides that if a person exports or supplies goods contrary to this Bill, they will be forfeited to the Commonwealth.

A-G's consent for prosecutions: Clause 20 provides that the Attorney-General's consent must be given for the prosecution of an offence under this Bill. This does not prevent a person from being arrested, charged and remanded in custody for such an offence. However, if proceedings are not continued within a reasonable time, the courts may discharge and release the accused.

Comments

The Bill imposes an additional burden on companies to become aware of the ultimate use of goods or services that they might provide or export. Although the criminal provisions require a level of intent of 'belief or suspicion', a jury could attribute 'suspicion' to a company if it held or had access to information which indicates that the goods or services might be used for a WMD program, even if no one in the company had actually turned their mind to it. The company must also take care that one of its directors, employees or agents does not hold such suspicions without alerting the responsible person in the company, otherwise the knowledge of the director, employee or agent could be attributed to the company, resulting in conviction, a fine and confiscation of the goods. This burden on companies should be balanced against the importance of limiting the capacity of countries to construct weapons of mass destruction.

It is not obvious what is a 'reasonable ground' for suspicion. Is it enough that the country to which the goods and services are to be exported is rumoured to be developing weapons of mass destruction? Even in the midst of wars, it is far from clear whether an alleged baby food factory is really making bombs. The advantage of the Bill is that a company in this uncertain position can at least apply to the Minister for a statement upon which it can rely.

Endnotes

1.Muller, H., Fischer, D., and Kotter, W., Nuclear Non-Proliferation and Global Order, Oxford University Press, 1994: 21-2.

2.Stockholm International Peace Research Institute (SIPRI) Yearbook 1993 - World Armaments and Disarmament, Oxford University Press, 1993: 243.

A. Twomey (Ph. 06 277 2432)

Bills Digest Service18 January 1995

Parliamentary Research Service

This Digest does not have any legal status. Other sources should be consulted to determine whether the ill has been enacted and, if so, whether the subsequent ACT reflects further amendments.

Commonwealth of Australia 1995.

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Published by the Department of the Parliamentary Library, 1995.