Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
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)
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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).
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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.
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