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Non-Proliferation Legislation Amendment Bill 2006 [2007]

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2004-2005-2006

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

THE SENATE

 

 

 

 

 

 

 

 

 

 

 

 

 

NON-PROLIFERATION LEGISLATION AMENDMENT BILL 2006

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Foreign Affairs,

the Honourable Alexander Downer MP)



NON-PROLIFERATION LEGISLATION AMENDMENT BILL 2006

 

OUTLINE

 

The Non-Proliferation Legislation Amendment Bill 2006 (referred to in this Explanatory Memorandum as the “ Bill ”) implements Australia’s commitment to strengthened international measures for the physical protection of nuclear material and facilities.  Further, it provides for machinery changes to improve the application of existing non-proliferation arrangements.

 

The Bill amends the Nuclear Non-Proliferation (Safeguards) Act 1987 (the Safeguards Act) to:

•          implement new requirements of the amendments to the Convention on the Physical Protection of Nuclear Material (Physical Protection Convention), agreed in July 2005;

•          regulate, with respect to nuclear safeguards, the decommissioning of a nuclear facility to ensure that Australia is able to meet its international obligations to the International Atomic Energy Agency under the Additional Protocol; and

•          make penalties for the most serious offences consistent with penalties under comparable Commonwealth non-proliferation legislation and to provide a significant deterrent to the commission of such offences.

 

The Bill amends the Safeguards Act, the Comprehensive Nuclear-Test-Ban Treaty Act 1998 (the CTBT Act) and the Chemical Weapons (Prohibition) Act 1994 (the CWP Act) to extend the geographical jurisdiction for offences related to proliferation of nuclear and chemical weapons respectively.  The Bill also makes a consequential amendment to the Australian Federal Police Act 1979 (“the AFP Act”).

 

 

FINANCIAL IMPACT STATEMENT

 

The measures dealt with by the Bill will have little or no financial impact. 

 



            NON-PROLIFERATION LEGISLATION AMENDMENT BILL 2006

 

NOTES ON CLAUSES

Clause 1: Short title

Clause 1 specifies that the Act may be cited as the Non-Proliferation Legislation Amendment Act 2006.

Clause 2: Commencement

Clause 2(1) of the Bill provides that each provision of the Bill specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table.  Any other statement in column 2 is taken to have effect according to its terms. 

 

Item 1 of the table provides that sections 1 to 3 and anything in the Act not elsewhere mentioned in the table commence on the day on which the Act receives Royal Assent.

 

Item 2 of the table provides that Schedule 1, items 1 to 27 commence the day after the Act receives Royal Assent.

 

Item 3 of the table provides that Schedule 1, item 28 will commence at the day on which the amendments done to the Physical Protection Convention take effect for the purposes of the Nuclear Non-Proliferation (Safeguards) Act 1987 in accordance with paragraph 4(3)(b) of that Act.  However, the provision(s) do not commence at all if that event does not occur.  The purpose of item 28 is to update the definition of nuclear facility in item 27 when the amended Physical Protection Convention enters into force for Australia.

 

Item 4 of the table provides that Schedule 1, items 29 to 54 commence the day after the Act receives Royal Assent.

 

Clause 3: Schedule(s)

 

Clause 3 provides that each Act that is specified in a Schedule to the Bill is amended or repealed as set out in that Schedule and any other item in a Schedule has effect according to its terms.

 

Schedule 1 provides that the Nuclear Non-Proliferation (Safeguards) Act 1987 , the Comprehensive Nuclear Test-Ban Act 1998 , the Chemical Weapons (Prohibition) Act 1994 and the Australian Federal Police Act 1979 are amended as set out in that Schedule.

 

 



SCHEDULE 1 - Amendments

 

Australian Federal Police Act 1979

 

Item 1: Subsection 4(1) (subparagraph (a)(v) of the definition of protective service offence)

 

The Australian Federal Police Act 1979 (“the AFP Act”) is consequentially amended to clarify application of the power of a protective service officer to effect an arrest without a warrant.  Subsection 4(1) subparagraph (a)(v) of the definition of protective service offence of the AFP Act provides that this power applies to all offences under the Safeguards Act other than offences which are specified as excluded.  Item 1 adds a reference to the newly created offence under section 29A(1) of the Safeguards Act to the list of excluded offences.

 

Chemical Weapons (Prohibition) Act 1994

 

Items 2, 3: Subsection 5(1)

 

Item 2 amends Section 5 to reflect that specific provisions of the Act provide guidance on its extra-territorial operation. Item 3 notes that extended geographical jurisdiction applies to the offence against section 12.

 

Items 4, 5: Section 8

 

These items remove the requirement that approved forms or procedures made pursuant to the Act are disallowable instruments.  Approved forms or procedures under the Act specify matters that are essentially administrative in character, and do not fit the definition in section 5 of the Legislative Instruments Act 2003 .

 

Items 6, 7: Section 12

 

These items amend section 12 to specify that the geographical scope of jurisdiction for an offence against the section is that set out in Section 15.2 of the Criminal Code (extended geographical jurisdiction - category B).  The geographical jurisdiction for the offence is extended to strengthen Australia’s ability to act against the proliferation of nuclear and chemical weapons.

 

Comprehensive Nuclear Test-Ban Treaty Act 1998

 

Item 8: Section 9

 

This item repeals section 9 and substitutes a provision specifying that the geographical scope of jurisdiction for an offence against section 8 is that set out in Section 15.2 of the Criminal Code (extended geographical jurisdiction - category B).  The geographical jurisdiction for the offence is extended to strengthen Australia’s ability to act against the proliferation of nuclear and chemical weapons.

 

 



Nuclear Non-Proliferation (Safeguards) Act 1987

 

Item 9: Subsection 4(1) (definition of permit )

 

This item amends the definition of a permit to include a permit issued pursuant to new section 16B, at item 13.

 

 

Items 10, 11, 12: Subsection 13(3)

 

Item 11 inserts a paragraph to provide that a permit to possess nuclear material or associated items may, without limiting the generality of subsection 13(2), be made subject to restrictions and conditions to implement Australia’s obligations under the Physical Protection Convention.  Items 10 and 12 amend the language of the subsection to accommodate the paragraph inserted by item 12.  There is no legal consequence for existing provisions.

 

Item 13: After section 16A

 

This item inserts new section 16B to provide that a permit may be issued under the Act with respect to work to decommission a facility defined in paragraph 28A(1)(a).  This addition, along with the corresponding offence provision and inspection powers (see items 23, 45), provides a framework under which activity to decommission such a facility may be regulated under the Australian safeguards system and with respect to physical security of nuclear material and associated items .  A permit under section 16B could be in force with respect to a facility at the same time that a permit under section 13 applies to nuclear material or associated items held at the facility, but would continue in operation after these things had been removed or otherwise dealt with such that the section 13 permit is no longer required.  This new requirement ensures that Australia is able to meet its international safeguards obligations with respect to any facility that is undergoing decommissioning.

 

Item 14: Paragraph 22(1)(d)

 

This item extends the scope of paragraph 22(1)(d) so that if the Director makes a decision not to include, in a report in relation to an application for a permit to decommission a facility, a statement of the kind referred to in paragraph 16B(1), that decision may be subject to review pursuant to section 22 of the Act.

 

Item 15: Subsection 23(1)

 

This item amends the penalty for the offence of possession of nuclear material or an associated item without a permit.  The maximum term of imprisonment for the offence is increased from five to ten years.  The new penalty is consistent with penalties specified for comparable offences in Commonwealth legislation, including the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 , and with the potential seriousness of an offence.

 

 



Item 16: Subsection 23(2)

 

This item harmonises the specification of geographical jurisdiction for the offence in subsection 23(1) with the Criminal Code by using Code terminology.  The geographical scope of jurisdiction for the offence of possession of nuclear material or an associated item without a permit is that set out in Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B).  The geographical jurisdiction for the offence is extended to strengthen Australia’s ability to act against the proliferation of nuclear and chemical weapons.

 

Item 17: Subsection 25A(3)

 

This item specifies that the geographical scope of jurisdiction for the offence of breach of duty to ensure security of associated technology is that set out in Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B).  The geographical jurisdiction for the offence is extended to strengthen Australia’s ability to act against the proliferation of nuclear and chemical weapons.

 

Items 18, 19, 20: Breach of duty to ensure security of associated technology

 

Item 20 specifies that the geographical scope of jurisdiction for the offence of unauthorised communication of information is that set out in Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B).  The geographical jurisdiction for the offence is extended to strengthen Australia’s ability to act against the proliferation of nuclear and chemical weapons.  Item 19 provides, however, that the offence does not apply to the communication of information that is done in accordance with a prescribed international agreement.  Item 18 amends the penalty for this offence.  The maximum term of imprisonment for the offence is increased from two to ten years.  The new penalty is consistent with penalties specified for comparable offences in Commonwealth legislation, including the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 , and with the potential seriousness of an offence.

 

Items 21, 22: Communication prejudicing security of nuclear material or associated item

 

Item 22 specifies that the geographical scope of jurisdiction for the offence of communicating information in a way that prejudices the security of nuclear material or an associated item is that set out in Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B).  The geographical jurisdiction for the offence is extended to strengthen Australia’s ability to act against the proliferation of nuclear and chemical weapons.  Item 21 amends the penalty for this offence.  The maximum term of imprisonment for the offence is increased from two to eight years.  The current penalty is not aligned with the seriousness of this offence and the potential consequences of such an act.

 

 



Item 23: After section 29

 

Item 23 inserts a section 29A into the Safeguards Act creating an offence for decommissioning of a facility without permit.  The offence applies to a person who causes work to be carried out to decommission the whole or a part of a nuclear facility , a facility for the carrying out of nuclear activities, or a facility for the use of associated equipment to which Part II of the Act applies.  A penalty of five years imprisonment is specified for the offence which is consistent with the penalty specified for the subsection 28A offence, establishment of facility without permit. 

 

Item 24: At the end of section 30

 

This item specifies that the geographical scope of jurisdiction for the offence of making false or misleading statements etc., is that set out in Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B).  This extends the geographical jurisdiction of the offence to cover conduct by an Australian resident outside Australia as well as ensuring consistency with other offences under the Safeguards Act which specify the geographical scope of jurisdiction.

 

Item 25: Subsection 31(1)

 

This item amends the penalty for the offence of obstructing or hindering an Agency inspector in the performance of a duty or function or exercise of a power.  The maximum term of imprisonment for the offence is increased from six months to two years.  This increase will serve to act as a significant deterrent to committing this offence and compares with the section 28 offence (interference with a containment or surveillance device) which specifies a penalty of 2 years. 

 

Item 26: Subsection 31A(4)

 

This item specifies that the geographical scope of jurisdiction for the offence of unauthorised access by a person to areas etc to which access is restricted under a permit under that Act is that set out in Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B).  The geographical jurisdiction for the offence is extended to strengthen Australia’s ability to act against the proliferation of nuclear and chemical weapons.

 

Items 27; 28: Section 32 (definition of nuclear facility )

 

As provided for in section 2 of the Bill, some items in Schedule 1 that implement elements of the amended Physical Protection Convention will commence before the amended Convention enters into force for Australia.  Some of the new provisions will rely on the definition of nuclear facility that is used in the amended Convention.  However, before the amended Convention enters into force for Australia, the Safeguards Act cannot reference that definition.  Item 27 inserts an express definition using the words of the amended Convention.

 

Item 28 replaces the express definition of nuclear facility inserted by item 27 with a reference to the definition used in the amended Physical Protection Convention.  This item will commence when the amended Convention enters into force for Australia.

 

Item 29: After section 34

 

This item inserts a section 34A into the Safeguards Act creating an offence for carrying, sending or moving nuclear material into or out of Australia or a foreign country.  This item also creates an exemption to that offence if the carrying, sending or moving nuclear material is done with lawful authority and that the defendant bears the evidential proof for relying on this exception.  A penalty of ten years imprisonment is specified for the offence which is consistent with the penalty specified for the comparable section 33 offence, stealing nuclear material.  Since other Commonwealth legislation regulates the importation or exportation of goods fitting the definition of nuclear material , section 34A is inserted only to ensure consistency of Australian legislation with the language of the amended Convention. 

 

Items 30, 31, 32:  Use of nuclear material causing death or injury to persons or damage to property or the environment

 

Items 30 and 31 broaden the scope of the existing section 35 use of nuclear material causing injury to persons or damage to property, to include death or injury to persons or damage to property or the environment.  Item 32 amends the penalty for this offence.  The maximum term of imprisonment for the offence is increased from ten to twenty years.  The current penalty is not aligned with seriousness of this offence and the potential consequences of such an act.

 

Item 33: After section 35

 

This item inserts a section 35A into the Safeguards Act creating an offence where a person does an act that is directed against a nuclear facility or that interferes with the operation of a nuclear facility and the person does so intending the act to cause or is likely to cause the death or serious injury to any person or substantial damage to property or to the environment by exposure to radiation or by release of radioactive substances.  A penalty of twenty years imprisonment is specified for the offence which is consistent with the penalty specified for the comparable section 35 offence reflecting the seriousness of this offence and the potential consequences of such an act.

 

Items 34, 35, 36, 37, 38: Threat to use nuclear material

 

Consistent with the requirements of the amended Physical Protection Convention, items 34, 35, 36 and 37 broaden the scope of the existing section 36 threat to use nuclear material to cause damage to environment.  Item 38 creates a further offence to commit an offence against item 33. 

 

Items 39: Section 37

 

Consistent with the requirements of the amended Physical Protection Convention, this item broadens the scope of the existing section 37 threat to commit an offence to include a further offence for threatening to commit an act against a nuclear facility .

 



Items 40, 41: Section 38

 

These items amend subsection 38(2) so that it applies only if the act or thing was done after a time when the Physical Protection Convention first required the foreign country and Australia to make the doing of the act or thing a punishable offence.

 

Items 42, 43: Subsection 38(3)

 

These items amend subsection 38(3) so that acts or things done outside Australia by an Australian resident or a body corporate incorporated in Australia are not covered by the limitation in subsection 38(2) on bringing proceedings for an act or thing done outside Australia.  Section 38 will now apply to an Australian resident or a body corporate incorporated in Australia in the same way as it applies to an Australian citizen.  The purpose of this amendment is to the make the geographical jurisdiction for the offences specified in Part III, Division 2 consistent with Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B).

 

Items 44, 45: Subsection 59(1)

 

These items amend Paragraph 59(1)(f) to broaden the existing search and seizure provisions under section 59(1)(f) to include ascertaining whether the decommissioning of a facility defined in paragraph 28A(1)(a) is in accordance with information provided to the Director.

 

Item 46: Subsection 59(6)

Item 50: Subsection 61(4)

 

These items modernises the warrant provisions of the Safeguards Act (and align them with the requirements of the CWP and CTBT Acts) by removing the obligation for a magistrate to issue a warrant in accordance with a form prescribed for the purposes of these subsections. 

 

Item 47: After subsection 60(2)

Item 48: Paragraph 60(3)(a)

Item 49: Subsection 60(3)

 

To ensure consistency with Australia’s international obligations, these items broaden the scope of places that Agency inspectors have the right to inspect in accordance with the Agency Agreement or a Supplementary Agency Agreement (e.g., the Additional Protocol) to include vessels, aircraft or vehicle.

 

Item 51: At the end of subsection 72(5)

 

Item 51 provides that where the Director exercises a delegated power to grant a permit under section 16B(1) the Director must be satisfied of the matters described in paragraphs 16B(1)(a), (b) and (c).

 



Item 52: After paragraph 73(2)(ba)

 

The insertion of paragraph 73(2)(bb) by item 52 provides for the Minister to make orders or give directions to be complied with the holder of a permit issued under section 16B.

 

Item 53: Application-communication of information

 

Item 53 makes clear also that the application of subsection 26(4A) applies to communications occurring at or after that commencement of the Schedule (the day after the Bill receives the Royal Assent).

 

Item 54: Application-decommissioning of facility without permit

 

Item 54 makes clear that section 29A applies to all work carried out after the commencement of the Schedule, notwithstanding that the work started before the commencement of the Schedule - except for work carried out in the six months immediately following that commencement.