Bills Digest no. 51 1976
Crimes (Biological Weapons) Bill 1976
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
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Crimes (Biological Weapons)
Date introduced: 18 November
House: House of Representatives
The Bill approves the ratification by
Australia of the Convention on the Prohibition of the Development,
Production and Stockpiling of Bacteriological (Biological) and
Toxin Weapons and on their Destruction and enacts the necessary
provisions required by the Convention for that ratification to
The Convention relates to microbial
or other biological agents, or toxins in types or in quantities
that have no justification for prophylactic, protective or other
peaceful purposes and to weapons and equipment designed to use such
agents or toxins for hostile purposes or in armed conflict (Article
States Parties to the Convention
agree not to develop, produce or stockpile such agents (Article I);
to destroy or divert to peaceful purposes within nine months all
such agents or toxins in their possession or under their
jurisdiction or control (Article II); and not to transfer any
such agents or toxins or assist any State or organization to
manufacture them (Article III).
The major requirement is in Article
IV which provides that each State Party shall take any necessary
measures to prohibit and prevent the development, production or
stockpiling of any such agents or toxins within its territory,
under its jurisdiction or under its control anywhere.
Alleged breaches of the Convention
are to be referred to the United Nations Security Council which may
The Convention is now in force. Under
Article XIV (4) it will enter into force for Australia upon
Approval is given by clause 7 to
ratification by Australia of the Convention, a copy of which is set
out in the Schedule. Clause 7 is to come into operation at Royal
Assent (clause 2 (1)).
Clause 8 creates an offence for
corporations or natural persons who do acts declared by sub-clause
8 (1) to be unlawful. The unlawful acts consist of developing,
producing, stockpiling or otherwise acquiring or retaining the
agents or toxins described in the Convention and weapons or
equipment designed to use them. Sub-clause 8 (1) repeats exactly
the words of Article IV of the Convention in describing the agents
and toxins and sub-clause 8 (3) provides that expressions used in
the Convention and in the clause have the same meaning as they do
in the Convention. There are, however, no special interpretation
provisions in the Convention, and it will presumably be for an
Australian court to decide whether a substance is, or is not,
within the meaning of the clause.
The penalties for the offence are set
out in sub-clause 8 (2). For a corporation the penalty is a fine
not exceeding $200,000; for a natural person the penalty is a fine
not exceeding $10,000, or imprisonment for life or for a specified
Although clause 6 of the Bill binds
the Crown in right of the Commonwealth and of the States the
offences created by clause 8 (2) only apply to natural persons and
corporations and thus, in relation to the Commonwealth and State
Governments, the Bill has moral force only.
The Bill extends to the external
Territories (clause 4) and covers acts and omissions by Australian
citizens outside Australia and the external Territories (clause 5).
This is in accordance with the requirements of Article IV requiring
prohibition of the unlawful acts within the territory of Australia,
under its jurisdiction or under its control anywhere.
Offences against clause 8 (2) and
offences of aiding and abetting (Crimes Act, section 5), inciting
(Crimes Act, section 7A) or attempts to commit offences (Crimes
Act, section 7) may only be prosecuted with the consent of the
Attorney-General or a person authorized by him (sub-clause 10 (3))
although charges may be made and persons arrested without such a
consent (sub-clause 10 (4)). All such offences are indictable
offences and may not be tried summarily (clause 10 (1)) except in
accordance with a State or Territory law whereby a person who
pleads guilty at committal proceedings may be dealt with by a
higher court otherwise than on indictment (clause 10 (2)).
Offences committed within a State are
to be dealt with by the State courts; otherwise a court of
competent jurisdiction may deal with offences (clause 11).
There are special evidentiary
provisions in clause 12 to permit an analyst appointed by the
Minister to give a certificate of his analysis of any substance as
prima facie evidence if copies have been given to the
accused; if so, the analyst may be cross-examined on the contents
of the certificate. Regulations may also be made to give the
accused the right to have an analysis made of samples of the agent
or toxin concerned in the offence. (clause 13 (b)).
Clause 9 deals with forfeiture of
substances which are, in the opinion of a Commonwealth, State or
Territory policeman, covered by the Bill.
Clause 8 and the other related
clauses are to operate on a date to be fixed by Proclamation being
a date not earlier than the day the Convention is ratified (clause
2 (2)). The source of legislative power for the Bill is the
external affairs power (Constitution, section 51 (xxix)) and this
ensures that the obligations of Australia under the Convention are
in existence before the provisions of the Bill which depend on
these obligations come into operation.
Law and Government Group
18 November 1976
Bills Digest Service
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