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Date Introduced: 8 April 1998
House: House of Representatives
Portfolio: Foreign Affairs
Commencement: On a day to be fixed by Proclamation after the
treaty has entered into force.
The Bill implements the provisions of the
Comprehensive Nuclear Test-Ban Treaty.
The world's first nuclear test was conducted by
the United States of America on 16 July 1945 at the Alamagordo Air
Base in New Mexico. That plutonium weapon test, the 'Trinity', was
detonated at 5.29.45am and resulted in an explosion with a yield
the equivalent of 19 kilotons of TNT. The Manhattan Project was the
project that led to the Trinity test.
The Trinity detonation was not make public until
August 6 1945 when a second bomb nicknamed "Little Boy" was
detonated 1850 feet over Hiroshima, Japan with devastating effects.
Estimates have been made that some 70 000 to 130 000 people died as
a result of that explosion. On August 9 1945, a third bomb
nicknamed "Fat Man" was detonated over Nagasaki, Japan. This third
explosion is estimated to have killed approximately 45 000
The nuclear explosions over Hiroshima and
Nagasaki are the only two uses of nuclear weapons in war. However,
since then there have been something approaching 2 000 nuclear
tests.(1) The United States commenced atomic weapons testing
outside its own territory in July 1946 on Bikini Atoll in the
Marshall Islands.(2) Of importance to Australia were the series of
twelve British atmospheric tests conducted in Australia between
1952 and 1957 on the Montebello Islands and at Maralinga and Emu
Plains. The most recent nuclear tests were the controversial series
of tests conducted by France at the Mururoa atoll and the tests by
China(3). French President Jacques Chirac announced on 13 June 1995
that France would resume underground nuclear testing with a series
of eight detonations at Mururoa between September 1995 and May
1996.(4) The announcement by France and the subsequent testing
aroused considerable opposition. One example of this was the move
by New Zealand to apply to the International Court of Justice to
re-open its 1973-74 case against France.
Both New Zealand and Australia had pursued
France in the International Court of Justice in 1973-74 for a
declaration that above-ground nuclear tests infringed their rights.
Much of the argument was concerned with radioactive fallout and
ultimately the court placed much reliance on the fact that the
French authorities had made a number of unilateral statements to
the effect that France would move to underground nuclear testing.
In 1973, France subsequently withdrew its acceptance of the
compulsory jurisdiction of the International Court of Justice. This
meant that a fresh application could not be made to the court and
accordingly New Zealand was forced to take the novel approach of
seeking to re-open the earlier case. New Zealand's 1995 application
to the court was dismissed although the minority judgments of the
court were supportive.(5)
On 24 January 1946, the United Nations General
Assembly by resolution agreed unanimously to establish the Atomic
Energy Commission (the 'AEC'). The AEC was established to examine
the problems and issues raised by the discovery of atomic energy.
At that time, this included four key issues:
First, the free exchange of basic scientific
information for peaceful ends; second, control of atomic energy to
the extent necessary to ensure its use only for peaceful purposes;
third, the elimination of atomic weapons from national armaments;
and fourth, the creation of effective inspection procedures to
ensure compliance with the normative framework
established...[nowadays] such an agenda seems positively
Therefore, calls for a ban on nuclear testing
are by no means a recent phenomenon. In April 1954 the Indian Prime
Minister Jawaharlal Nehru proposed a "standstill agreement" on
nuclear testing. Two years later the Soviet Premier Nikolai
Bulganin called for a permanent halt on nuclear testing (but
without on-site inspections). Following a conference in Geneva in
1958 there was a one year moratorium by USA, the Soviet Union and
Great Britain on the testing of nuclear weapons.
On 5 August 1963, a Limited Test Ban Treaty was
signed in Moscow which prohibited nuclear testing in the
atmosphere, underwater or in outer space. This treaty entered into
force on 10 October 1963 and was also known as the 'Partial Test
Ban Treaty'(7). Five years later the Nuclear Non-Proliferation
Treaty (NPT) was signed (it entered into force on 5 March 1970)
which obliged the contracting parties to neither make nor acquire
nuclear weapons and to pursue negotiations for nuclear disarmament
and arms control. Although the NPT does not expressly mention
nuclear tests, article I, which requires each nuclear weapon state
to refrain from assisting, encouraging or inducing non-nuclear
weapon states to manufacture or acquire weapons arguably means
Any assistance or encouragement to conduct a
nuclear weapon test, given by a nuclear weapon state party to a
non-nuclear weapon state, would violate this obligation.(8)
The NPT did not stop the calls for a
comprehensive test ban treaty. For example, in March 1977, US
President Jimmy Carter announced that he intended to pursue a
comprehensive test ban treaty. Negotiations for the comprehensive
test ban treaty continued on and off until 1996 when the text of
the agreement was finalised. In early September 1996, the United
Nations General Assembly voted 158-3 to approve the comprehensive
test ban treaty. India, Bhutan and Libya voted against it whilst
Cuba, Lebanon, Syria, Tanzania and Mauritius abstained.(9)
The Comprehensive Test-Ban Treaty was opened for
signature on 24 September 1996 and was signed by Australia and the
five declared nuclear powers (the United States, the United
Kingdom, Russia, France and China) on that date. Article XIV of the
treaty provides that the treaty does not enter into force until
either 180 days after the 44 countries listed in Annex 2 to the
treaty have ratified it or 2 years, whichever is the later. Two of
the countries that have already ratified the Treaty are France and
the United Kingdom. Minister for Foreign Affairs Mr Alexander
Downer MP noted on 7 April 1998 that these ratifications were
important and urged China, Russia and the United States to move
quickly to ratification:
...the ratifications yesterday by two of the
five nuclear weapons states will help to accelerate the pace of
ratifications and thus consolidate the powerful international norm
against nuclear testing which the Treaty represents. (10)
The Minister also noted that Australia was
likely to ratify the treaty well before the end of 1998.
Article III of the treaty requires State Parties
to take 'any necessary measures to implement its obligations under
this treaty'. The Bill aims to fulfil this requirement.
In order to detect breaches of the Comprehensive
Nuclear Test Ban, the Treaty establishes a system, called the
International Monitoring System, of seismological stations.
Seismology is the science of detecting and monitoring earthquakes.
The International Monitoring System involves giving the scientific
research community access to the global seismic data obtained from
all the monitoring stations.
The detection system works in part on the fact
that when an underground nuclear explosion occurs, it will
considerably compress the rock or water immediately surrounding the
detonation site(11). The shock waves emanating from the explosion
are detectable by seismological equipment. One of the potential
problems faced by the scientific community with this sort of
monitoring is that it can be difficult to distinguish between small
nuclear explosions and other blasts such as large quarry
In the past, it has been acknowledged that a
monitoring system can not, of course, prevent nuclear testing:
Safeguards cannot prevent a violation of
obligations - the diversion of fissile material - any more than
bank or company audits can prevent a misappropriation of funds. All
they can do is expose infringements or arouse suspicions, in
effect, sound the alarm.(13)
Nevertheless, the increasing use of
computer-modelling to 'test' nuclear weapons and the calls for the
transfer of that computer technology might serve to strengthen the
Comprehensive Nuclear Test Ban Treaty.
Proposed section 8 makes it an
offence to cause a nuclear weapons test or explosion and provides
that the penalty is imprisonment for life. Proposed section
9 extends the operation of the offence provisions to
include Australian citizens causing nuclear weapons explosions
outside Australia. This provision complies with Article III of the
Treaty which requires contracting State Parties to 'prohibit
natural and legal persons' within its control from undertaking any
activity which breaches the terms of the Treaty. The external
affairs power (section 51(xxix) of the Constitution) allows the
extension of the legislation in this fashion (Polyukhovich
v The Commonwealth of Australia and Another (1991) 172 CLR
Article IV of the Treaty establishes an
International Monitoring System (to detect nuclear tests), a system
of consultation and clarification, a system of on-site inspections
and a system of confidence-building measures. The Bill deals with
each of these.
Proposed sections 11-15 deal
with the regime of on-site inspections. The treaty provides that
State parties have the right to request on-site inspections if
information collected by the International Monitoring System
suggests that there has been some sort of nuclear test. The only
valid reason under article 35 of the Treaty for requesting an
on-site inspection is to clarify whether a nuclear weapon test
explosion (or other nuclear explosion) has been carried out in
breach of the treaty.
The Minister may, upon receiving a request for
an on-site inspection, designate it to be an on-site inspection for
the purposes of the proposed Act. Similarly, the Minister may allow
observers to accompany the inspection team.
On-site inspections include a broad range of
powers to search a site, take photographs, sketches or video
recordings, take samples, question personnel, monitor vehicles
leaving the site, carry out drilling and operate machinery etc.
These powers will be exercisable by a Comprehensive Nuclear
Test-Ban Organization Inspector with the consent of the occupiers
of the site or pursuant to a warrant under proposed section
Under proposed sub-section
11(3) a national inspector must accompany the Organization
inspector if the on-site inspection is done pursuant to a warrant
and may accompany them if it is done without a warrant but the
occupier of the site gives their consent.
The treaty allows other countries who are party
to it to request clarification (in circumstances where they have
not requested an inspection) from Australia regarding possible
breaches of the Treaty at nominated premises. Proposed
section 18 allows national inspectors to exercise the same
search powers as they can for on-site inspections with either the
site-occupier's consent or a court order under proposed
Similarly, it is open to the Director to allow
joint inspections (under proposed section 19) with
Australia's national inspector being accompanied by any inspectors
that the other country's director nominates.
Division 4 - Inspection warrants and Conduct of Inspections
Proposed section 21 allows
national inspectors to apply to a magistrate for a warrant to allow
them to conduct an on-site inspection where the occupier has
refused their consent to the search. The magistrate must be
satisfied by sworn evidence that the warrant is reasonably needed
in order to facilitate an on-site inspection in accordance with
Article IV of the Treaty. The issuing of the warrant is at the
magistrate's discretion. When executing the warrant, the national
inspector must comply with all the lawful orders of the
Organization Inspector as well as the conditions attached to the
The Bill makes it an offence punishable by up to
two years imprisonment for the knowing provision of false or
misleading statements to obtain a warrant (proposed section
Proposed section 22 allows
magistrates to issue warrants (which are substantially similar to
warrants for on-site inspections described above) to authorise the
clarification inspections of sites.
Warrants must be for a specified purpose and
period and must identify the premises to be searched and the name
of the national inspector responsible for executing them
(proposed section 23).
On-site inspections are to be completed within
60 days (or 70 days with Ministerial approval) of Australia
receiving the request. Clarification inspections must be completed
within 48 hours of the request.
Proposed sections 55-61 deal
with the exercise of on-site inspection powers and require the
minimisation of damage, the protection of the safety of persons and
property and the environment. Any damage caused by the inspection
is to be restored if possible or otherwise compensation for the
damage must be paid.
Division 5 - Offence-related searches and seizures
Proposed section 30 allows
national inspectors, upon production of their identity card, to
search premises with the consent of the occupier or pursuant to a
warrant and seize evidential material that they find.
If the national inspector has information which
suggests that evidential material may shortly be on the site, they
can apply to a magistrate under proposed section
31 for a warrant to return to the premises within the next
72 hours. The magistrate, upon hearing the sworn (or affirmed)
information, must be satisfied that there are reasonable grounds
for suspecting that evidential material will be on the premises
before issuing the warrant. Proposed section 31
warrants require additional information to be contained within them
to the other warrants. For example, they require particulars of the
offence and the nature of the evidential material being searched
Proposed section 32 sets out
what the warrants may permit. The entry, search and seizure of
evidential material are all permitted but any time limits set by
the magistrate must be complied with together with any safety
requirements. Proposed sections 33-34 allow the
'warrant team' to take photographs or videos of the premises that
are incidental to the execution of the warrant and to take away
things for examination if they cannot reasonably be examined on
The use of electronic equipment at the site is
permitted by proposed section 35 provided that
such use does not damage equipment at the site. For example,
information stored on computers may be copied to a disk (if this
can be done without damaging anything or interfering with the
information) or, if this is not possible, the warrant team can
either lock the equipment or put a guard on it for up to 24 hours
(or such further period as the magistrate allows) to ensure that
the information is not accessed until such time as the warrant team
is able to secure expert assistance to retrieve the
Proposed section 36 allows the
occupier of the site to observe the search provided that they do
not impede it.
For urgent cases, proposed section
37 allows an application for a warrant to be made by
telephone, fax or other electronic means.
A receipt must be issued for each item seized or
moved under the warrant (proposed section 38) and
all seized items must be returned once it is decided that they will
not be used in evidence.
Division 6 - General rules about warrants
The rules for how warrants are to be executed
include the usual precautions such as the requirement that a copy
of the warrant be made available to the occupier, that compensation
be paid for any damage to equipment and that copies of electronic
material seized must be provided to the occupier as soon as
practicable. The use of force to execute the warrant is authorised
by proposed section 42.
Part 4 - Monitoring facilities
The treaty sets up an International Monitoring
System of seismological stations capable of detecting shock waves
from an explosion. This portion of the Bill allows the Minister to
declare certain facilities to be monitoring facilities for the
purposes of the treaty and to enter and inspect potential
'monitoring facilities' sites.
Part 5- Australian Comprehensive Test Ban Office
Proposed sections 62-65
establish the Australian Comprehensive Test Ban Office with will
have the functions of administering the Act and carrying out
Australia's obligations under the Treaty.
Proposed sections 66-68 deal
with national inspectors and consultants for the purposes of the
Act. Proposed section 67 requires national
inspectors to return their identity cards once they cease to hold
that office and there is a penalty of one penalty unit for failing
to do so. One penalty unit is currently $110.00 under section 4AA
of the Crimes Act 1914.
The Director of the Australian Comprehensive
Test Ban Office is required to lodge an annual report with the
Minister who must table it in Parliament (proposed section
Proposed section 74 imposes
secrecy requirements on employees of and consultants to the
Australian Comprehensive Test Ban Office as well as on national
inspectors and other Commonwealth officers. The maximum penalty for
a breach of the secrecy provisions is imprisonment for up to two
Proposed section 78 allows the
Governor-General to make regulations under the Act and
proposed section 73 allows these regulations to
confer either privileges or immunities on the Organization itself
or its office-holders, inspectors or observers.
Schedule 1 of the Bill simply
reproduces the text of the Treaty together with a list of the
seismological stations which comprise the International Monitoring
- As at 31 December 1985 the available information suggested that
1570 nuclear tests had been carried out since the Trinity. Grief,
N. Nuclear Tests and International Law in Nuclear Weapons
and International Law (1987) 217-244.
- Grief, N. Nuclear Tests and International Law in
Nuclear Weapons and International Law (1987) 217-244.
- Press Release of Prime Minister John Howard MP of 8
June 1996 condemning the latest nuclear test by China.
- Australia's Response to France's Decision to Resume Nuclear
Testing in the South Pacific Briefing Paper of August 1995
prepared by Parliamentary and Media Branch, Department of Foreign
Affairs and Trade, p1.
- See New Zealand at the International Court of Justice:
French Nuclear Testing in the Pacific publication of the NZ
Ministry of Foreign Affairs and Trade (1996).
- Woodliffe, J. Nuclear weapons and non-proliferation: The
legal Aspects in Nuclear Weapons and International Law (1987)
- France refused to sign this treaty.
- Grief, N. Nuclear Tests and International Law in
Nuclear Weapons and International Law (1987) 217-244 at 237.
- Reid, R. Associated Press Report of 11 September 1996.
- Press Release of Mr Alexander Downer MP, Minister for Foreign
Affairs, 7 April 1998.
- Teller, E et al The Constructive Uses of Nuclear
Explosives (1968) at 46.
- Nuclear Test Ban Monitoring, (1997) Homepage of the National
Academy of Sciences, 2.
- Dr Blix as quoted in Woodliffe, J Nuclear weapons and
non-proliferation: The legal Aspects in Nuclear Weapons and
International Law (1987) 84-110 at 93.
7 May 1998
Bills Digest Service
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