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Chapter 2 - Background
2.1
This chapter gives an overview of Australia's
nuclear non-proliferation obligations under international treaties and outlines
its current non-proliferation legislation. It then details the July 2005
amendments to the international Convention on the Physical Protection of
Nuclear Material to which the bill is a response.
The Treaty on the Non-Proliferation of Nuclear Weapons
2.2
The Treaty on the Non-Proliferation of Nuclear Weapons (NPT) was
negotiated in the mid-1960s between the United States, the Soviet Union and the
Eighteen Nation Committee on Disarmament. The NPT came into force in 1970 and
currently has 189 States Parties. The Treaty sets down the obligation of
nuclear weapons states 'not to transfer' nuclear weapons and not to assist any
non-nuclear weapon state 'to manufacture or acquire such weapons
or devices' (Article 1). It also defines the responsibilities of non-nuclear
weapons states not to receive or manufacture nuclear weapons (Article II) and
to apply International Atomic Energy Agency (IAEA) safeguards to all nuclear
activities carried out within their territories (Article III).[1] Australia became a Party to the
NPT in January 1973 and signed a Safeguards Agreement with the IAEA in July
1974.[2]
The Convention on the Physical Protection of Nuclear Material
2.3
Australia also has international obligations to
safeguard nuclear material under the Convention on the Physical Protection of
Nuclear Material. The Convention sets standards for the international transport
of nuclear material used for peaceful purposes. It defines serious offences
involving nuclear materials which parties to the Convention must make
punishable. This includes 'the receipt, possession, use, transfer, alteration,
disposal or dispersal of nuclear material' without lawful authority (Article
7(1a)) and a threat 'to use nuclear material to cause death or serious injury
to any person or substantial property damage' (Article 7(1e)). The Convention
also specifies certain levels of physical protection needed during international
transport of nuclear material (Articles 3 and 4 and Annex 1).[3] This requires Australia and the
other signatories to the Convention to 'take appropriate steps within the
framework of its national law and consistent with international law'.[4] The Convention was opened for
signature in 1980 and entered into force on 8 February 1987. Notably, the
original document did not address the protection of nuclear facilities and
deals only in a limited way with the domestic use, storage or transportation of
nuclear material.[5]
Nuclear Non-Proliferation (Safeguards) Act 1987
2.4
The Nuclear Non-Proliferation (Safeguards) Act 1987 gives
legislative effect to Australia's non-proliferation obligations under the NPT,
under the Safeguards Agreement with the IAEA and under the Physical Protection
Convention.[6]
Part II of the Act provides for a system of permits for the possession and
transport of nuclear material (section 16), the establishment of a facility (section
16A) and the authority to communicate information relating to nuclear
technology (section 18). Section 13 allows the Minister for Foreign Affairs to
grant a permit for a person to possess nuclear material. Section 14 makes
Ministerial approval for a permit contingent on the Director General of
Safeguards in the Australian Safeguards and Non-Proliferation Office (ASNO)
being satisfied that 'appropriate procedures' and 'adequate physical security'
can be applied to the nuclear material.[7]
2.5
Part III of the Act deals with offences and corresponding punishments.
Division 1 of Part III lists general offences. These include:
- the possession of nuclear material without a permit (section 23);
- a breach of duty to ensure the security of nuclear technology (section
25A);
- unauthorised communication of information (section 26);
- communication of information that prejudices the security of
nuclear material (section 26A)
- establishment of a facility without a permit (section 28A);
- false or misleading statements to a Minister, Director or Agency
inspector (section 30);
- obstruction of an Agency inspector (section 31); and
- unauthorised access to areas where access is restricted under
permit (Section 31A).
Division 2 of Part III
lists offences relating to the Physical Protection Convention. These include:
- stealing nuclear material (section 33);
- demanding nuclear material by threats (section 34);
- use of nuclear material causing injury to persons or damage to
property (section 35);
- threat to use nuclear material (section 36); and
- threat to commit an offence under Section 33 (section 37).
2.6
Under the Australian Protective Services Act 1987, protective
service officers can arrest without warrant people whom they suspect on
reasonable grounds of committing offences under the Safeguards Act.[8]
Non-Proliferation Legislation Amendment Bill 2003
2.7
A number of provisions in this bill relate directly to legislation
introduced with the passing of the Non-Proliferation Legislation Amendment Bill
2003 (sections 25A, 26A, 28A and 31A). The bill was introduced into the House
of Representatives on 26 June 2003 and assented to on 12 December 2003. The purpose of the bill was to strengthen the Safeguards Act and amend the Comprehensive
Nuclear Test-Ban Treaty Act 1998 (CTBT Act) in anticipation of the
enforcement of the Comprehensive Nuclear Test Ban Treaty's (CTBT) ban on
nuclear weapons tests. Australia's CTBT Act makes it an offence punishable with
life imprisonment to cause a nuclear weapon test explosion or any other nuclear
explosion.[9]
2.8
The bill made several amendments to the Safeguards Act. It inserted
Section 16A allowing the Minister to grant a permit for a nuclear facility,
Section 28A making it an offence to establish a nuclear facility without a
permit and the offences under Sections 25A, 26A and 31A (see paragraph 2.4).
The Bill also amended the CTBT Act to enable key provisions of the Act to be
proclaimed prior to the entry into force of the CTBT.[10]
2.9
In 2003, the Senate Foreign Affairs, Defence and Trade Legislation Committee
inquired into the Non-Proliferation Legislation Amendment Bill 2003. In its
report on the bill, the committee noted concerns that the insertion of section
26A could prevent information about nuclear activities being released in the
public interest. It also cited concerns that the provision could be made 'to
restrict information flows and intimidate potential whistle blowers'.[11]
In response, Dr Andrew Leask of the Australian Safeguards and
Non-Proliferation Office, Department of Foreign Affairs and Trade emphasised
that the amendment was designed to protect only information which could
prejudice the physical security of a nuclear facility. He argued that
whistleblowers retained the avenues of an internal complaint or either of Australia's
two nuclear regulators. Dr Leask also argued that the amended section 31A
relating to unauthorised access would not make 'any impact at all on lawful,
legitimate protest'.[12]
As Chapter 4 notes, the Committee's majority report cited Dr Leask's arguments.
However, separate dissenting reports from Labor Party and Democrat Senators
held strong reservations about the provisions' potential to limit the right to
protest and the role of whistleblowers. An amendment to the Explanatory
Memorandum satisfied Labor Senators' concerns on this matter (see Chapter 4).
Amendments to the Physical Protection Convention—8 July 2005
2.10
On 8 July 2005, delegates from 89 countries agreed on changes to
strengthen the Physical Protection Convention. The amended Convention makes it
legally binding for States to protect nuclear facilities and material on
peaceful domestic use, storage and transport. The amendments strengthen
requirements for the protection of nuclear material and nuclear facilities
against criminal or terrorist attack.[13]
There were four main amendments to the Convention:
- a new Article 2A established a series of fundamental principles
to be applied to protect nuclear material against theft and sabotage and to
rapidly recover any missing or stolen nuclear material;
- an amendment to Article 5 strengthen cooperation among States in
the event of actual or threatened theft of nuclear material or sabotage of
nuclear material;
- the creation of new offences under Article 7 of the Convention
relating to the trafficking of nuclear material and the sabotage of nuclear
facilities with the intent to cause death, injury or damage by exposure to radiation;
- new Articles 11A and 11B dealing with extradition and mutual
legal assistance in relation to offences under Article 7 of the Convention that
stipulate states cannot refuse to extradite or provide mutual legal assistance
for an offence under Article 7 on the sole ground that it is a political
offence under domestic law.[14]
2.11
In a statement to the Convention, the Australian Safeguards
Non-Proliferation Office supported the proposed amendments:
The Australian Government is committed to addressing international
concerns about nuclear terrorism, smuggling and sabotage, and to protecting
people and the environment from any impacts associated with such activities.
The amended Physical Protection Convention aims to address these issues more
comprehensively than the existing convention. Australia has played a leading
role in developing these changes, and to encourage universal adherence should
be among the first to ratify and implement them.[15]
2.12
In its submission to this inquiry, DFAT highlighted that 'Australia has always
taken a broad view of its obligation under the Treaty on the Non-Proliferation
of Nuclear Weapons...[and] many of the provisions of the amended Convention
already apply...through the Safeguards Act'.[16]
DFAT also noted that in order to fully implement the amendments and ratify the
Convention, 'further requirements strengthening domestic security and
counterterrorism arrangements' are necessary. The Non-Proliferation Legislation
Amendment Bill was drafted for this purpose.
2.13
In its report of 9 October 2006, the Joint Standing Committee on
Treaties supported the amendments to the Convention 'as a framework to
facilitate the increased cooperation between States in the protection of
nuclear materials'. The Committee recommended that binding treaty action be
taken.[17]
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