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Australian Government - Department of Foreign Affairs and Trade

Advancing the interests of Australia and Australians internationally

Australian Government - Department of Foreign Affairs and Trade

Advancing the interests of Australia and Australians internationally

Australian Safeguards and Non-Proliferation Office

Annual Report 1999-2000

Legislation

Nuclear Non-Proliferation (Safeguards) Act 1987

The Nuclear Non-Proliferation (Safeguards) Act 1987 (the Safeguards Act) took effect on 31 March 1987. This Act establishes the statutory office of Director of Safeguards and forms the legislative basis for ASNOs nuclear safeguards activities.

The Safeguards Act gives effect to Australias safeguards obligations under:

  • the NPT;
  • Australias NPT safeguards agreement with the IAEA;
  • agreements between Australia and various countries (and Euratom) concerning transfers of nuclear items, and cooperation in peaceful uses of nuclear energy; and
  • the Convention on the Physical Protection of Nuclear Material (CPPNM).

Control over nuclear material and associated items in Australia is exercised under the Safeguards Act by a system of permits for their possession and transport. Communication of information contained in sensitive nuclear technology is controlled through the grant of authorities.

The Safeguards Act empowers the Minister to grant, vary or revoke permits or authorities, to make declarations or orders in relation to material, equipment or technology covered by the Act, and to appoint inspectors to assess compliance with the Act and with Australias NPT safeguards agreement with the IAEA. The Minister has delegated most of these powers (with certain exceptions such as powers to make declarations and orders) to the Director of Safeguards.

Regulations and declarations under this Act are listed under the Freedom of Information Act 1982 statements on page 92 of this Report.

Nuclear Non-Proliferation (Safeguards) (Consequential Amendments) Act 1988

The Nuclear Non-Proliferation (Safeguards) (Consequential Amendments) Act 1988 took effect on 24 May 1988. It amended the Patents Act 1952 to allow referral from the Patent Office to the Director of Safeguards of patent applications which might constitute associated technology under the Safeguards Act. The amendments give the Director of Safeguards the power to direct that such a patent application lapse if the applicant does not hold an appropriate authority under the Safeguards Act to communicate sensitive information at the time of making the application for the patent.

Nuclear Safeguards (Producers of Uranium Ore Concentrates) Charge Act 1993

In conjunction with an amendment to the Safeguards Act, this legislation imposes an annual charge on uranium producers corresponding to a proportion of ASNOs operating costs. Further details are on page 23.

South Pacific Nuclear Free Zone Treaty Act 1986

The South Pacific Nuclear Free Zone Treaty (SPNFZ) Act 1986 prohibits the manufacture, production, acquisition, stationing and testing of nuclear explosive devices, and R&D relating to manufacture or production of nuclear explosive devices.

The SPNFZ Act establishes the framework for inspections in Australia by Treaty inspectors, and provides for appointment by the Minister for Foreign Affairs of authorised officers to accompany and observe international inspectors while they are in Australia. Inspectors appointed for the purposes of the Safeguards Act are also inspectors under the SPNFZ Act. These inspectors are to assist Treaty inspectors and authorised officers in carrying out Treaty inspections, and investigating possible breaches of the SPNFZ legislation in Australia.

Chemical Weapons (Prohibition) Act 1994

The Chemical Weapons (Prohibition) Act 1994 was enacted on 25 February 1994. Division 1 of Part 7 of the Act (establishing the CWCO and the position of its Director), and sections 95, 96, 97, 99, 102, 103, and 104 were proclaimed on 15 February 1995. Other provisions of the Act which expressly relied on the CWC came into effect on 29 April 1997 when the CWC entered into force. The final parts of the Act, dealing with aspects of the CWC which came into effect in 2000, are to be proclaimed during 2000-2001 (The final parts of the Act were proclaimed in 17 August 2000).

In conjunction with other legislation (see under the following heading), the Act gives effect to Australias obligations, responsibilities and rights as a State Party to the CWC.  In particular, the Act:

  • prohibits activities connected to the development, production or use of chemical weapons, including assisting anyone engaged in these activities, whether intentionally or recklessly―such offences are punishable by life imprisonment;
  • establishes permit and notification systems to provide a legal framework for the mandatory provision of data to CWCO (ASNO) by facilities which produce or use chemicals as specified by the Convention, so that ASNO can lodge declarations with the OPCW;
  • provides for routine inspections of declared facilities and challenge inspections of any facility or other place in Australia by OPCW inspectors to verify compliance with the CWC, and for inspections by CWCO to verify compliance with the Act; and
  • provides for procedures should another State Party seek clarification concerning compliance with the Convention by any facility or other person or place in Australia.

Regulations under the Act prescribe procedures and details of other arrangements provided for in the Act. In particular, the Regulations define conditions that are to be met by holders of permits issued under the Act, and for granting privileges and immunities to OPCW inspectors when in Australia to carry out an on-site inspection.

The text of the CWC is reproduced in the Schedule to the Act. The manner in which any powers are exercised under the Act must be consistent with the Convention, and have regard to Australias obligations under it.

The Chemical Weapons (Prohibition) Act 1994was amended on 6 April 1998. The amendments refine administration of the Act by simplifying compliance obligations for facilities requiring permits, clarifying the legislative basis for Australia to implement some of its obligations under the Convention, correcting drafting errors and improving certain procedures, including those related to secrecy. For consistency, concomitant Regulations were amended on 17 December 1998.

Other CWC related legislation

Other aspects of the CWC which required legislation have been, or are being, dealt with under existing legislation, in particular the:

  • Customs (Prohibited Exports) Regulations and Customs (Prohibited Imports) Regulations, to enforce CWC obligations in relation to export and import controls on scheduled chemicals. The Customs (Prohibited Imports) Regulations were amended on 15 December 1999 to extend import licensing arrangements to cover all CWC scheduled chemicals; and
  • International Organisations (Privileges and Immunities) Act 1963, to recognise the OPCW as an international organisation, and to grant appropriate privileges and immunities to its officers when in Australia for official purposes.

Comprehensive Nuclear Test-Ban Treaty Act 1998

The Act gives effect to Australias obligations as a Party to the Comprehensive Nuclear-Test-Ban Treaty (CTBT).  It prohibits the causing of any nuclear explosion at any place under Australian control and establishes a penalty of up to life imprisonment for an offence against the provision. The Act also prohibits Australian nationals from causing a nuclear explosion in any place outside Australian control.

The Act requires the Commonwealth Government to facilitate verification of compliance with the Treaty provisions, including the obligation to arrange for the establishment and operation of Australian monitoring stations and the provision of data from these. It provides the Commonwealth with the authority to establish IMS stations and to make provision for access to them for CTBT monitoring purposes. The Act also makes provision for the Minister for Foreign Affairs to enter into arrangements with the CTBT Organisation to facilitate cooperation in relation to monitoring stations under Australian control.

Australia is under an obligation, pursuant to Article IV of the Treaty, to allow CTBT Organisation inspectors to inspect any place in Australia or the external Territories in an on-site inspection. The Act provides comprehensive powers for inspection arrangements, including the right for inspectors to collect and remove samples and the right to undertake drilling. Access to facilities by inspectors for challenge inspections is by consent of the occupier or by warrant issued by a magistrate.

The Act establishes ACTBO (part of ASNO) as the Australian national authority for the CTBT. The Act grants ACTBO necessary legal capacity and provides for the power to make regulations with respect to privileges and immunities for the CTBT Organisation and its officials under Australian law in accordance with the Treaty.

The Act was assented to on 2 July 1998 but, as provided for in section 2 of the Act, will not come into effect until the CTBT enters into force.

Proposed legislative amendments

It is envisaged that amendments to relevant legislation will be introduced at a convenient time in order to formalise the amalgamation of ASO, CWCO and ACTBO into ASNO and to formally establish the position of Director General, ASNO.

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