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2010 - 2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NUCLEAR TERRORISM LEGISLATION AMENDMENT BILL 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
NUCLEAR TERRORISM LEGISLATION AMENDMENT BILL 2011
GENERAL OUTLINE
This Bill implements Australia's outstanding obligations under the International Convention for the
Suppression of Acts of Nuclear Terrorism (the Nuclear Terrorism Convention).
The Bill does this by adding new offences to the Nuclear Non-Proliferation (Safeguards) Act 1987.
The Nuclear Terrorism Convention recognises that acts of nuclear terrorism, including conduct in
relation to radiological material and devices can result in grave consequences for nations and their
peoples and pose a threat to international peace and security. The Nuclear Terrorism Convention
provides a framework for international cooperation in the prevention and investigation of alleged
offences and prosecution and extradition of persons who allegedly commit relevant offences
involving nuclear material and other radioactive substances or devices. International cooperation to
combat nuclear terrorism, including through the work programs of the Global Initiative to Combat
Nuclear Terrorism (established in 2006 by the United States and Russia) and the Nuclear Security
Summit (convened by President Obama in 2010), enables effective and practical measures to be
implemented to prevent terrorist acts and ensure prosecution and punishment of perpetrators.
The Nuclear Terrorism Convention is an important tool in the international fight against terrorism
and the proliferation and use of weapons of mass destruction, as it fills a gap in existing
international regimes by recognising the potential for nuclear weapons, facilities and radioactive
material to be used in acts of terrorism.
Existing provisions in Commonwealth legislation, including provisions in the Nuclear
Non-Proliferation (Safeguards) Act 1987, the Criminal Code Act 1995 (the Criminal Code), and the
Australian Nuclear Science and Technology Organisation Act 1987 implement some of the Nuclear
Terrorism Convention's provisions. For instance, Article 2(3) of the Nuclear Terrorism Convention
does not require specific legislative action by Australia as it is implemented by Part 5.3 of the
Criminal Code. Because key aspects of the conduct prohibited by the Nuclear Terrorism
Convention are consistent with measures Australia has already taken, only limited amendments to
Commonwealth legislation are necessary to fully implement the Nuclear Terrorism Convention.
However, consistent with the requirement of Article 5 of the Nuclear Terrorism Convention to
establish criminal offences as provided in Article 2 of the Nuclear Terrorism Convention, the Bill
creates new criminal offences for:
· possessing radioactive material or a Convention device
· making a Convention device
· using radioactive material
· using or damaging a Convention device or a nuclear facility
· threatening to use radioactive material
· threatening to use or damage a Convention device or a nuclear facility
· demanding another person create radioactive material, a Convention device or a nuclear
facility, and
· demanding another person allow a third person to access or control radioactive material, a
Convention device or a nuclear facility.
Article 3 of the Nuclear Terrorism Convention does not provide for the offences to apply to purely
domestic circumstances. However, the Government is not confined by Article 3 when enacting
legislation, and can rely on the Constitution, including the defence power. To ensure the offences
have appropriate coverage of conduct within Australia the offences will apply to internal conduct
provided at least one of the circumstances in Article 9.1 and 9.2 of the Convention is satisfied.
Schedule 1 contains the main amendments while Schedule 2 of the Bill includes minor updating
amendments largely related to the provisions of the Legislative Instruments Act 2003.
Australia is committed to ratifying the international counter-terrorism instruments as an integral part
of strengthening its legal framework to fight terrorism. Ratifying the Nuclear Terrorism
Convention will send a strong message to the international community and demonstrates Australia's
continued commitment to addressing the threat of terrorism.
FINANCIAL IMPACT STATEMENT
The Bill does not impose any direct financial costs on the Commonwealth or the States or
Territories.
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NOTES ON CLAUSES
General
Except where otherwise indicated, a reference to a `section', `subsection' or `paragraph' in these
notes is a reference to a section, subsection or paragraph in the Nuclear Non-Proliferation
(Safeguards) Act 1987.
Clause 1 Short Title
This is a formal clause that provides for the citation of the Bill. This provides that the Bill, once
passed, may be cited as the Nuclear Terrorism Legislation Amendment Act 2011.
Clause 2 Commencement
This clause provides for the commencement of the provisions in the Bill.
Subclause 2(1)
The opening words of subclause 2(1) provide that each provision of the Act specified in column 1
of the table commences, or is taken to have commenced, in accordance with column 2 of the table,
and that any other statement in column 2 has effect according to its terms.
Item 1 of the table specifies that sections 1 to 3 (the machinery provisions of the Bill) and anything
in the Act not elsewhere covered by the table will commence on the day the Act receives the Royal
Assent.
Item 2 of the table specifies that Part 1 of Schedule 1 will commence on a single day to be fixed by
Proclamation. Item 2 provides further that the Proclamation must not specify a day that occurs
before the day on which the International Convention for the Suppression of Acts of Nuclear
Terrorism, done at New York on 13 April 2005, enters into force for Australia.
Item 2 further provides that if the provision(s) do not commence within one month of the Nuclear
Terrorism Convention entering into force for Australia, they commence on the first day after the
end of that period.
This item also provides that if the provision(s) commence the first day after the end of the one
month period after the Nuclear Terrorism Convention enters into force for Australia, the Minister
must announce by notice in the Gazette the day on which the provision commenced. The item
clarifies that such a notice is not a legislative instrument.
The form of this provision will ensure that the Bill does not commence operation until the Nuclear
Terrorism Convention has entered into force for Australia. The provisions of a notice in the Gazette
to be given in the absence of a Proclamation, provides for greater transparency as to the date of
commencement of the relevant provisions. The statement that such a notice is not a legislative
instrument would be declaratory since such a notice is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003.
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Item 3 of the table provides that Part 2 of Schedule 1 will commence at the same time as the
provisions covered by Item 2. It further sets out that if Item 33 of Schedule 2 to the Extradition and
Mutual Assistance in Criminal Matters Legislation Amendment Act 2011 (Mutual Assistance
Amendment Act) commences at or before that time, the provision does not commence at all.
A Bill for the Mutual Assistance Amendment Act was introduced into the Parliament on
6 July 2011. The relevant item in Schedule 2 of the Mutual Assistance Act would streamline the
`political offence' definition in the Extradition Act 1988 (Extradition Act) by ensuring that
exceptions to the definition are generally contained in regulations, rather than in the Extradition
Act, thereby providing a general approach to the issue of exclusions from the meaning of political
offences. The terms of this item will ensure that should that relevant item in the Mutual Assistance
Amendment Act take effect prior to the commencement of this item, that amendment will not be
overridden.
Subclause 2(2)
This is a machinery provision in standard form. It provides that the information set out in column 3
of the table in subclause 2(1) - which is currently blank but which will provide information on the
date of the commencement of the items in it - is not to form part of the Act but may be updated in
any published version of the Act.
Clause (3) Schedule(s)
This is a machinery provision in standard form. It provides that the Acts specified in the Schedules
to the Act are amended or repealed as set out in the applicable items and that any other item in a
Schedule to the Act has effect according to its terms.
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Schedule 1 - Amendments relating to nuclear terrorism
Part 1 - Main amendments
Nuclear Non-Proliferation (Safeguards) Act 1987
Item 1: At the end of section 3
This Item amends section 3 of the Nuclear Non-Proliferation (Safeguards) Act 1987, which sets out
the objects of that Act. The Item adds a new subsection 3(3), providing that a further object of the
Nuclear Non-Proliferation (Safeguards) Act 1987 is to give effect to certain obligations of the
Nuclear Terrorism Convention.
Item 2: Subsection 4(1)
This item adds a definition of `Foreign Affairs Minister' to subsection 4(1) of the Nuclear
Non-Proliferation (Safeguards) Act 1987. The definition provides that Foreign Affairs Minister
means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
This definition is relevant to proposed new section 38J in proposed amendments under item 7,
which authorises the Foreign Affairs Minister to issue evidentiary certificates.
Item 3: Subsection 4(1)
This item adds a definition of `Immigration Minister' to subsection 4(1) of the Nuclear
Non-Proliferation (Safeguards) Act 1987. The definition provides that Immigration Minister means
the Minister administering the Migration Act 1958.
This definition is relevant to proposed new section 38J in proposed amendments under item 7,
which authorises the Immigration Minister to issue certain certificates.
Item 4: Subsection 4(1)
This item adds a definition of `Nuclear Terrorism Convention' to subsection 4(1) of the Nuclear
Non-Proliferation (Safeguards) Act 1987. The definition provides that Nuclear Terrorism
Convention means the International Convention for the Suppression of Acts of Nuclear Terrorism,
done at New York on 13 April 2005 as amended and in force in Australia from time to time.
This provision clarifies the precise Convention to which the relevant provisions in the Nuclear
Non-Proliferation (Safeguards) Act 1987 refer and also enables the use of the shorter form
reference to the Nuclear Terrorism Convention elsewhere in the Nuclear Non-Proliferation
(Safeguards) Act 1987.
For transparency and to assist the reader, there is a note referring readers to the text of the Nuclear
Terrorism Convention which was available in 2011 in the Australian Treaties Library on the
AustLII website - .
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Item 5: Section 8 (heading)
This item amends the heading to section 8 of the Nuclear Non-Proliferation (Safeguards) Act 1987
so that it reads: `8 Application of the Act (Other than Division 2A of Part III)'.
Currently, the heading to section 8 of the Nuclear Non-Proliferation (Safeguards) Act 1987 is
`Application of the Act'. It is necessary to amend the heading because this provision provides those
matters to which the Act currently applies. Section 8 currently provides that the provisions of the
Nuclear Non-Proliferation (Safeguards) Act 1987 have effect in relation to all nuclear material and
all associated items.
The Nuclear Non-Proliferation (Safeguards) Act 1987 also gives effect to a number of Australia's
obligations under a number of conventions to which Australia is a party. Proposed Division 2A of
Part III gives effect to Australia's obligations under the Nuclear Terrorism Convention.
Item 6: Before subsection 8(1)
This item amends section 8 of the Nuclear Non-Proliferation (Safeguards) Act 1987 by inserting a
new subsection 8(1A). New subsection 8(1A) provides that the other subsections in section 8 will
not apply to new Division 2A of Part III (which deals with offences relating to the Nuclear
Terrorism Convention).
Section 8 provides that the provisions of the Nuclear Non-Proliferation (Safeguards) Act 1987
apply to all nuclear and associated materials, and sets out a range of factors to establish the
Commonwealth's constitutional power to legislate in regard to those provisions. However, the
provisions to be inserted into Division 2A of Part III will operate independent of the provisions set
out in section 8 of the Nuclear Non-Proliferation (Safeguards) Act 1987.
Item 7: After Division 2 of Part III
This item inserts new Division 2A into Part III of the Nuclear Non-Proliferation (Safeguards)
Act 1987. Division 2A inserts new offences and relevant definitions and implements Australia's
outstanding obligations under the Nuclear Terrorism Convention.
Proposed new sections 38C, 38D and 38E create new offences to implement Article 5 of the
Nuclear Terrorism Convention. Article 5 requires States Parties to criminalise the conduct set out
in Article 2 of the Nuclear Terrorism Convention. The offences set out in new Division 2A deal
with the offences provided in Article 2 of the Nuclear Terrorism Convention that are not already
provided for in existing provisions in Australian law.
New Section 38A: ADF members not liable for prosecution
Section 38A provides that nothing in Division 2A makes a member of the Australian Defence Force
acting in connection with the defence or security of Australia liable to be prosecuted for an offence.
This provision implements Article 4(2) of the Nuclear Terrorism Convention, which expressly
provides that the Nuclear Terrorism Convention does not govern the conduct of armed forces during
an armed conflict. The exemption from prosecution will ensure a member of the Australian
Defence Force who contravenes one of the offences in the new Division while properly engaged in
combat operations overseas on a duly authorised mission will not be prosecuted for his or her lawful
actions.
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The inclusion of the phrase `acting in connection with the defence or security of Australia' ensures
this exception is limited to cases where the Australian Defence Force member is engaged in conduct
that is legitimate. For example, it will not extend to a serving soldier whose actions are not
connected with the defence or security of Australia or who is otherwise acting unlawfully. This
would include an act by a member of the Australian Defence Force carried out without
authorisation and not in the course of that member's duties.
This provision is in the same form as section 72.2 of the Criminal Code, which provides that a
member of the Australian Defence Force acting in connection with the defence or security of
Australia is not liable to be prosecuted for an offence in relation to explosives and other lethal
devices under Subdivision 72A of the Criminal Code.
New Section 38B: Definitions
Section 38B provides definitions for the purposes of the Division for the following expressions:
· Convention Device
· government facility
· nuclear facility, and
· radioactive material.
In each case, the definitions provide that the expressions defined have the same meaning as the
referenced words or phrases in the Nuclear Terrorism Convention. Some of these definitions are
complex and technical. They are explained further below.
Convention Device has the same meaning as Device in the Nuclear Terrorism Convention, and
means any nuclear explosive device or any radioactive material dispersal or radiation-emitting
device which may, owing to its radiological properties, cause death, serious bodily injury or
substantial damage to property or to the environment.
Government facility has the same meaning as State or government facility in the Nuclear
Terrorism Convention, and includes any permanent or temporary facility or conveyance that is used
or occupied by representatives of a State, members of a Government, the legislature or the judiciary
or by officials or employees of a State or any other public authority or entity or by employees or
officials of an intergovernmental organization in connection with their official duties.
Nuclear facility has the same meaning as Nuclear facility in the Nuclear Terrorism Convention,
and means any nuclear reactor, including reactors installed on vessels, vehicles, aircraft or space
objects for use as an energy source in order to propel such vessels, vehicles, aircraft or space objects
or for any other purpose, or any plant or conveyance being used for the production, storage,
processing or transport of radioactive material.
Radioactive material has the same meaning as Radioactive material in the Nuclear Terrorism
Convention, and means nuclear material and other radioactive substances which contain nuclides
which undergo spontaneous disintegration (a process accompanied by emission of one or more
types of ionizing radiation, such as alpha-, beta-, neutron particles and gamma rays) and which may,
owing to their radiological or fissile properties, cause death, serious bodily injury or substantial
damage to property or to the environment.
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While the Convention includes a definition of the expression `nuclear material', it is not necessary
to include a definition of that expression in the Bill. That is because nuclear material is a subset of
`radioactive material', which is defined in the Bill as having the same meaning as it has in the
Nuclear Terrorism Convention.
This approach to the definition of these key terms is designed to ensure that the relevant provisions
in Division 2A of Part III of the Nuclear Non-Proliferation (Safeguards) Act 1987 will always be
consistent with the meanings provided for those terms in the Nuclear Terrorism Convention. This
includes where the text of the Nuclear Terrorism Convention, which is readily available at a wide
variety of locations including those that are on-line and free of charge (and including
www.austlii.edu.au as noted at Item 4), is amended.
New Section 38C: Possessing radioactive material or Convention device, or making Convention
device
Section 38C creates two new offences, which, taken together, implement Article 5 of the Nuclear
Terrorism Convention in respect of the provisions of paragraph (a) of Article 2(1) of the Nuclear
Terrorism Convention.
Subsection 38C(1) creates an offence for possession of radioactive material or of a Convention
device if the person intends to use, or make available the use of, that material or thing to cause
death or serious injury or substantial damage to property or the environment.
To prove the offence, the prosecution would be required to prove beyond reasonable doubt that the
person (a) intentionally possessed material or a thing, (b) was aware of a substantial risk that the
material or thing was radioactive material or a Convention device and was in possession of the
material or thing despite that risk, and (c) intended to use or make available the use of that item to
cause either (i) death or serious injury or (ii) substantial damage to property or the environment.
Whether or not the intended outcome occurs is not relevant to a prosecution. That is, the fact that
death or serious injury or substantial damage to property or the environment did not actually occur
will not preclude prosecution of the person for the offence.
For example, if the person was in possession of radioactive material and used that material in an
explosion with the intention of killing individuals attending a conference, that person could be
guilty of an offence under subsection 38C(1), despite the fact that the explosion was ineffective and
resulted in neither the loss of life nor damage to property or the environment.
In contrast, if a person was lawfully in possession of radioactive material, and that material was
stolen by a second person and used to cause an explosion, killing or injuring people, the first person
would not be guilty of an offence under subsection 38C(1) unless the prosecution could prove
beyond reasonable doubt that the first person intended the material to be used by the second person
in that way. Where the first person had taken appropriate security measures to protect the material,
this may be relevant.
To reflect the seriousness of the prohibited conduct, a maximum penalty of 20 years imprisonment
applies to the offences in subsection 38C(1).
Subsection 38C(2) creates an offence for making a Convention device if the person intends to use
that Convention device, or make the Convention device available for use, to cause death or serious
injury or substantial damage to property or the environment.
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To prove the offence, the prosecution would be required to prove beyond reasonable doubt that the
person (a) intentionally made a thing, (b) was aware of a substantial risk that the thing was a
Convention device and made the thing despite that risk, and (c) intended to use or make the device
available for use to cause either (i) death or serious injury to a person or (ii) substantial damage to
property or the environment. Whether or not the intended outcome occurs is not relevant to a
prosecution. That is, the fact that death or serious injury or substantial damage to property or the
environment did not actually occur will not preclude prosecution of the person for the offence.
For example, the first person obtains materials and bomb making instructions from the second
person, who is known to the first person as belonging to an active terrorist organisation. The first
person uses that bomb to cause an explosion with the intention of killing individuals attending a
conference. In those circumstances it is irrelevant whether the first person knew that the bomb was
a Convention device within the meaning of the Nuclear Terrorism Convention and the Nuclear
Non-Proliferation (Safeguards) Act 1987. The first person could still be guilty of an offence under
subsection 38C(1), even if no deaths resulted from the explosion.
To reflect the seriousness of the prohibited conduct, a maximum penalty of 20 years imprisonment
applies to the proposed new offences in subsection 38C(2).
New Section 38D: Using radioactive material, or using or damaging Convention device or nuclear
facility
Section 38D creates three new offences, which, taken together, implement Article 5 of the Nuclear
Terrorism Convention in respect of the provisions of paragraph (b) of Article 2(1) of the Nuclear
Terrorism Convention.
Subsection 38D(1) creates an offence for using radioactive material with the intention of causing
death or serious injury or substantial damage to property or the environment or compelling a person
or group of persons to do or refrain from doing any act or thing.
To prove the offence, the prosecution would have to prove beyond a reasonable doubt that the
person (a) intended to use material, (b) was aware of a substantial risk that the material was
radioactive material and used the material despite that risk, and (c) intended to use or allow the use
of the material to either (i) cause death or serious injury to a person, (ii) cause substantial damage to
property or the environment, or (iii) compel a person or group of persons (including an international
organisation or a legislative, executive or judicial institution of the Commonwealth, a State or a
Territory, or of a foreign Country) to do or refrain from doing any act or thing. Whether or not the
intended outcome occurs is not relevant to a prosecution.
For example, if the person used radioactive material in an explosion with the intention of
compelling the government of a foreign country to release a specified prisoner, that person would
be guilty of an offence under subsection 38D(1), regardless of whether the government of the
foreign country released the prisoner.
To reflect the seriousness of the prohibited conduct, a maximum penalty of 20 years imprisonment
applies to the offences in subsection 38D(1).
Subsection 38D(2) creates an offence for using or damaging a Convention device with the intention
of causing death or serious injury or substantial damage to property or the environment or
compelling a person or group of persons to do or refrain from doing any act or thing.
9
To prove the offence, the prosecution would have to prove beyond a reasonable doubt that the
person (a) intended to use or damage a thing, (b) was aware of a substantial risk that the thing was a
Convention device and used the thing despite that risk, and (c) intended to use or damage to the
thing to either (i) cause death or serious injury to a person, (ii) cause substantial damage to property
or the environment, or (iii) compel a person or group of persons (including an international
organisation or a legislative, executive or judicial institution of the Commonwealth, a State or a
Territory, or of a foreign Country) to do or refrain from doing any act or thing.' Whether or not the
intended outcome occurs is not relevant to a prosecution.
For example, if the person used or damaged a Convention device, causing an explosion, with the
intention of killing a number of persons, that person could be guilty of an offence under
subsection 38D(2), regardless of whether any persons were actually killed.
To reflect the seriousness of the prohibited conduct, a maximum penalty of 20 years imprisonment
applies to the offences in subsection 38D(2).
Subsection 38D(3) creates an offence for using or damaging a nuclear facility with the intention of
causing death or serious injury or substantial damage to property or the environment or compelling
a person or group of persons to do or refrain from doing any act or thing.
To prove the offence, the prosecution would have to prove beyond a reasonable doubt that the
person (a) intended to use or damage a facility, (b) was aware of a substantial risk that the facility
was a nuclear facility and used or damaged the facility despite that risk, and (c) intended to use or
damage to the facility to either (i) cause death or serious injury to a person, (ii) cause substantial
damage to property or the environment, or (iii) compel a person or group of persons (including an
international organisation or a legislative, executive or judicial institution of the Commonwealth, a
State or a Territory, or of a foreign Country) to do or refrain from doing any act or thing. Whether
or not the intended outcome occurs is not relevant to a prosecution.
For example, if the person used or damaged a nuclear facility, causing the death of the workers
inside that facility, it would be immaterial that the person only intended to cause damage to the
building. The person would be guilty of an offence under subsection 38D(3), despite the fact that
the actual outcome differed from the person's intended outcome.
To reflect the seriousness of the prohibited conduct, a maximum penalty of 20 years imprisonment
applies to the proposed new offences in subsection 38D(3).
New Section 38E: Threats and demands
Section 38E creates two new offences which will implement Article 5 in relation to paragraphs (a)
and (b) of Article 2(2) of the Nuclear Terrorism Convention.
Subsection 38E(1) creates an offence for threatening to do an act that would contravene one of the
offences in section 38D.
To prove the offence, the prosecution would have to prove beyond a reasonable doubt that the
person intentionally made a threat to do an act that was prohibited by section 38D. It would not be
necessary for the person to carry out the threat for the offence to be satisfied.
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For example, if the person made a threat to the Australian Government that he or she would cause
an explosion in order to kill a large number of people and cause general fear and terror using
radioactive material or a Convention device, that person would be guilty of an offence under
subsection 38E(1).
To reflect the seriousness of the prohibited conduct, a maximum penalty of 20 years imprisonment
applies to the offences in subsection 38E(1).
Subsection 38E(2) creates an offence for the first person to demand of a second person that the
second person either create radioactive material, a Convention device or a nuclear facility, allow the
first person or a third person access to, or control of, radioactive material, a Convention device or a
nuclear facility, or make radioactive material, a Convention device or a nuclear facility available to
the first person or to a third person. The offence will only be made out where the demand is made
by force, threat of force or any form of intimidation.
To prove the offence, the prosecution would have to prove beyond a reasonable doubt that the
person (a) intended to make the demand and (b) was aware of a substantial risk that the material,
thing or facility the subject of the demand was radioactive material, a Convention device or a
nuclear facility and the person made the demand in relation to that material, thing or facility despite
that risk. The prosecution would also be required to prove beyond reasonable doubt that the person
(c) was reckless to the fact that the manner in which the demand was made amounted to force,
threat of force or intimidation. Whether or not the second person actually created, allowed access
or control or made something as a result of the demand is not relevant to a prosecution.
To reflect the seriousness of the prohibited conduct, a maximum penalty of 20 years imprisonment
applies to the proposed new offences in subsection 38E(2).
New Section 38F: Jurisdictional requirement
Section 38F is designed to ensure Division 2A is consistent with Articles 9(1) and 9(2) of the
Nuclear Terrorism Convention and the proposed new offences come within the legislative power of
the Commonwealth Parliament pursuant to the external affairs and defence powers of the
Constitution.
Consistent with the requirements of Articles 9(1) and 9(2) of the Nuclear Terrorism Convention,
proposed new section 38F sets out the jurisdictional requirements for the new offences.
Section 38F provides that the offences in Division 2A are limited to conduct where one or more of
the following criteria are satisfied:
(a) the conduct constituting the offence occurred either wholly or partly in Australia or on board
an Australian ship or aircraft
(b) at the time of the offence, the offender was an Australian citizen
(c) at the time of the offence, the offender was a stateless person whose habitual residence is in
Australia
(d) another contracting state of the Nuclear Terrorism Convention would have jurisdiction
under the Nuclear Terrorism Convention
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(e) the alleged offence was committed against a government facility of the Commonwealth, or
of a State or a Territory that is physically located outside of Australia
(f) the alleged offence was committed against an Australian citizen or a body corporate
incorporated under the law of the Commonwealth or of a State or a Territory, or
(g) the alleged offender intended to compel an Australian government institution, including
institutions of State and Territory governments, to do or omit to do an act.
Paragraph 38F(a) clarifies that, whether all the conduct constituting the offence occurs in Australia
or some of the relevant conduct occurs in Australia or on board an Australian ship or aircraft and
some of the relevant conduct occurs elsewhere, the offence will still be made out.
For the purposes of paragraph 38F(b), whether or not a person is a citizen will be determined in
accordance with the Australian Citizenship Act 2007.
According to international law, and for the purposes of paragraph 38F(c), a stateless person is a
person who is not considered a national by any State under the operation of its laws. The
circumstances in which a person may lose their nationality will depend on the laws of the State in
question. One example may be where a State deprives a person of nationality following the
commission of a heinous crime by that person. A person's habitual residence is the country where
he or she ordinarily resides. Habitual residence is a matter which is determined on a case-by-case
basis, typically having regard to the extent of a person's stay in a country as well as other factors
which establish a personal or professional connection to the country. This could include, for
example, an intention to permanently reside there.
For the purposes of paragraph 38F(d), the circumstances in which another State Party to the Nuclear
Terrorism Convention has jurisdiction would likely include circumstances such as those set out in
this subsection in relation to that foreign country. A list of States that are Parties to the Nuclear
Terrorism Convention can be found at United Nations Treaties website (http://treaties.un.org/).
Accordingly, for the offences in Division 2A to be made out, in addition to proving all the elements
of the relevant offence, the prosecution would also be required to prove that at least one of the
circumstances listed in section 38F were satisfied.
New Section 38G: Double jeopardy and foreign offences
Section 38G provides that where a person has been tried for conduct under the law of a foreign
country that would contravene one or more of the offences in Division 2A, that person cannot
subsequently be convicted under Division 2A in respect of the same conduct. This provision
implements criminal law and human rights policy as well as one of the principles used by the
Parliament in assessing the impact of legislation on the rights and liberties of persons. It is
consistent with provisions in other Commonwealth legislation, including Criminal Code offences
that include an international element.
New Section 38H: Attorney-General's consent needed to bring proceedings for offence under this
Division
Subsection 38H(1) provides that prosecutions for these offences cannot be commenced without the
written consent of the Attorney-General. This is consistent with a number of existing provisions in
Commonwealth legislation. For example, subsections 71.10(1) and 72.7(1) of the Criminal Code
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require the written consent of the Attorney-General before commencing a prosecution for an
offence in Divisions 71 and 72. Those Divisions contain offences developed to implement the
Convention on the Safety of United Nations and Associated Personnel and the International
Convention for the Suppression of Terrorist Bombings, respectively.
Subsection 38H(2) clarifies the operation of subsection 38H(1). Subsection 38H(2) is designed to
ensure that, while the consent of the Attorney-General is required in order to commence criminal
proceedings, relevant authorities can take appropriate action in relation to the offender before that
consent is sought or obtained. In particular, authorities may arrest, charge, remand in custody or
release on bail, a person in connection with an offence under Division 2A without the consent of the
Attorney-General. This ensures that necessary and appropriate law enforcement action can be taken
in the usual manner. Further, by including a reference to release on bail, the provision ensures that
the rights of the person are not compromised while the relevant consent is obtained. This is
consistent with a number of existing provisions in Commonwealth legislation. For example,
subsections 71.10(2) and 72.7(2) of the Criminal Code are in similar terms.
New Section 38J: Evidentiary certificates
Section 38J authorises the Foreign Affairs Minister or the Immigration Minister (as defined in
Items 2 and 3 of the Bill) to issue certain evidentiary certificates, and provides that such certificates
are prima facie evidence of the matters they address.
The matters which form the subject of the evidentiary certificates are relevant to the new offences in
Division 2A.
Subsection 38J(1) authorises the Foreign Affairs Minister to issue certificates stating any of the
following matters:
(a) the date on which the Nuclear Terrorism Convention entered into force for Australia
(b) that the Nuclear Terrorism Convention remains in force for Australia or any other State
Party on a specified day
(c) matters relevant to the establishment of jurisdiction by a State Party under Article 9(1) or
Article 9(2) of the Nuclear Terrorism Convention.
Subsection 38J(2) provides that the Immigration Minister may issue a certificate stating that:
(a) a person is or was an Australian citizen at a particular time
(b) a person is or was a stateless person whose habitual residence is or was in Australia at a
particular time.
The evidentiary certificates will be limited to formal or technical matters that are not likely to be in
dispute in a criminal prosecution under Division 2A, but would be difficult to prove under the
normal evidence rules.
There may be instances in which a Minister is unable to issue an evidentiary certificate, including
whether a particular person is or was an Australian citizen at a particular time or whether a
particular person is or was a stateless person whose habitual residence is or was in Australia at a
particular time. In such instances, it will be necessary to adduce other evidence of these matters.
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The use of evidentiary certificates is appropriate in this context, and is consistent with existing
provisions in the Criminal Code, including Divisions 71 and 72 of the Criminal Code, which
contain offences developed to implement the Convention on the Safety of United Nations and
Associated Personnel and the International Convention for the Suppression of Terrorist Bombings,
respectively.
Subsection 38J(3) provides that the certificates are merely prima facie evidence of the matters they
stipulate. Accordingly, the matters stated in the certificates would be subject to challenge by a
defendant.
Part 2 - Consequential amendment
Extradition Act 1988
Item 8: Section 5 (at the end of paragraph (a) of the definition of political offence)
Consistent with Articles 2 and 15 of the Nuclear Terrorism Convention, Item 8 amends the
definition of political offence in section 5 of the Extradition Act 1988 to ensure the offences set out
in Division 2A of the Nuclear Non-Proliferation (Safeguards) Act 1987 are not regarded as political
offences for the purposes of extradition.
Where an offence is regarded at international law as a political offence, a request for extradition or
for mutual legal assistance based on such an offence may be refused on the sole ground that the
request relates to a political offence or an offence connected with a political offence or an offence
inspired by political motives.
The amendment will ensure a person accused of one of the offences set out in Division 2A cannot
avoid extradition on the basis of a claim that the offence is a political offence.
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Schedule 2--Minor technical amendments
The amendments in Schedule 2 update existing provisions in the Nuclear Non-Proliferation
(Safeguards) Act 1987 to ensure they are consistent with relevant provisions in the Legislative
Instruments Act 2003 and the Civil Aviation Act 1988.
Part 1--Amendments relating to the Legislative Instruments Act 2003
Nuclear Non-Proliferation (Safeguards) Act 1987
The amendments in this Part amend existing provisions of the Nuclear Non-Proliferation
(Safeguards) Act 1987 to acknowledge that instruments made under this Act are legislative
instruments within the meaning of paragraph 6(d) of the Legislative Instruments Act 2003.
Item 1: Subsections 4(7) to (9)
Item 1 repeals subsections 4(7) to 4(9) of the Nuclear Non-Proliferation (Safeguards) Act 1987 and
inserts a new subsection 4(7). Existing subsection 4(7) of the Nuclear Non-Proliferation
(Safeguards) Act 1987 provides that certain sections of the Acts Interpretation Act 1901 apply to
declarations made under section 4. Existing subsection 4(8) provides that declarations made under
the section 4 shall not be taken to be statutory rules for the purposes of the Statutory Rules
Publication Act 1903. Existing subsection 4(9) provides that, for the purposes of subsection 5(3B)
of the Statutory Rules Publication Act 1903, reference to the Minister of State for Sport, Recreation
and Tourism shall be read as the Minister administering this Act.
New subsection 4(7) of the Nuclear Non-Proliferation (Safeguards) Act 1987 clarifies that
declarations made under the definitions of associated equipment, associated material and associated
technology in subsection 4(1) are legislative instruments, consistent with the Legislative
Instruments Act 2003.
Items 2 and 3: Subsection 11(5) and Subsection 11(9)
Items 2 and 3 amend subsections 11(5) and 11(9) of the Nuclear Non-Proliferation (Safeguards)
Act 1987. Existing subsections 11(5) and 11(9) of the Nuclear Non-Proliferation (Safeguards) Act
1987 provide that the Minister may, by notice in writing published in the Gazette, vary or revoke a
declaration made under subsections 11(1), (3) or (7).
Amended subsections 11(5) and 11(9) of the Nuclear Non-Proliferation (Safeguards) Act 1987 will
require the Minister to vary or revoke a declaration made under subsections 11(1), (3) or (7) in
writing, but will not require that the variation or revocation be in the Gazette. This is consistent
with the provisions for electronic publication in the Legislative Instruments Act 2003.
Item 4: Subsections 11(10) to (12)
Item 4 repeals subsections 11(10) to 11(12) of the Nuclear Non-Proliferation (Safeguards) Act 1987
and inserts a new subsection 11(10). Existing subsection 11(10) of the Nuclear Non-Proliferation
(Safeguards) Act 1987 provides that certain sections of the Acts Interpretation Act 1901 apply to
declarations made under section 11. Existing subsection 11(11) provides that declarations made
under section 11 shall not be taken to be statutory rules for the purposes of the Statutory Rules
Publication Act 1903. Existing subsection 11(12) provides that, for the purposes of
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subsection 5(3B) of the Statutory Rules Publication Act 1903, reference to the Minister of State for
Sport, Recreation and Tourism shall be read as the Minister administering this Act.
New subsection 11(10) of the Nuclear Non-Proliferation (Safeguards) Act 1987 clarifies that a
declaration or a variation or revocation of a declaration made under section 11 of the Nuclear
Non-Proliferation (Safeguards) Act 1987 is a legislative instrument, consistent with the Legislative
Instruments Act 2003.
Item 5: Paragraph 73(1)(a)
Item 5 amends paragraph 73(1)(a) of the Nuclear Non-Proliferation (Safeguards) Act 1987.
Existing paragraph 73(1)(a) of the Nuclear Non-Proliferation (Safeguards) Act 1987 provides that
the Minister may make orders to be complied with by the holders of permits or authorities.
Amended paragraph 73(1)(a) clarifies that the Minister may make orders to be complied with by the
holders of permits or authorities by legislative instrument and that the instrument so made is a
legislative instrument, consistent with the Legislative Instruments Act 2003.
Item 6: Subsections 73(4) to (6)
Item 6 repeals subsections 73(4) to 73(6) of the Nuclear Non-Proliferation (Safeguards) Act 1987.
Existing subsection 73(4) provides that certain sections of the Acts Interpretation Act 1901 apply to
orders made under this section. Existing subsection 73(5) provides that orders made under section
73 shall not be taken to be statutory rules within the meaning of the Statutory Rules Publication
Act 1903. Existing subsection 73(6) provides that, for the purposes of subsection 5(3B) of the
Statutory Rules Publication Act 1903, reference to the Minister of State for Sport, Recreation and
Tourism shall be read as the Minister administering this Act.
The repeal of the subsections reflects the legal position that instruments made under the provisions
are already legislative instruments under paragraph 6(d) of the Legislative Instruments Act 2003.
Part 2--Other amendments
Nuclear Non-Proliferation (Safeguards) Act 1987
Item 7: Subsection 4(1) (paragraph (a) of the definition of Australian aircraft)
Part 2 of Schedule 2 amends the definition of Australian aircraft for the purposes of the Nuclear
Non-Proliferation (Safeguards) Act 1987.
Item 7 repeals existing paragraph (a) of the definition of Australian aircraft in subsection 4(1).
Existing subsection 4(1) of the Nuclear Non-Proliferation (Safeguards) Act 1987 provides that an
Australian aircraft is an aircraft registered in accordance with the Air Navigation Regulations.
New subsection 4(1) provides that an Australian aircraft also includes `an aircraft registered, or
required to be registered, under regulations made under the Civil Aviation Act 1988'. This
amendment provides a more up to date definition for the phrase.
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