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Chapter 3 - Provisions of the Bill
3.1
The provisions of the bill are to implement Australia's commitment to
international measures which increase the physical protection of nuclear
material and facilities. In particular, the bill is intended to meet the new
requirements of the July 2005 amendments to the Convention on the Physical
Protection of Nuclear Material (Physical Protection Convention). As noted in
Chapter 2, the amended Convention makes it legally binding for States to
protect nuclear facilities and material on peaceful domestic use, storage and
transport. To this end, the bill makes amendments to the Nuclear
Non-Proliferation (Safeguards) Act 1987, the Comprehensive Nuclear Test
Ban Treaty Act, the Chemical Weapons (Prohibition) Act 1994, the Australian
Federal Police Act 1979, the Extradition Act 1988 and the Mutual
Assistance in Criminal Matters Act 1987.[1]
3.2
Most of the bill's amendments are made to the Nuclear
Non-Proliferation (Safeguards) Act 1987. This Act gives legislative effect
to Australia's international nuclear non-proliferation obligations, establishes
a system of permits for the possession and transportation of nuclear material
and provides a legislative basis for the Australian Safeguards Office.[2]
The bill inserts a new subsection 13(3)(da) into this Act stating that a permit
to possess nuclear material may be granted provided 'that measures are taken
that are consistent with Australia's obligations under the Physical Protection
Convention'. The bill also amends this Act to:
- introduce new offences and increase penalties for various
offences under the Part III of the Act;
- extend the geographical scope of jurisdiction for various
offences under Part III; and
- require a permit to decommission of a facility.
New offences under the Nuclear Non-Proliferation (Safeguards) Act 1987
3.3
The bill introduces three new offences and imprisonment penalties under
the Safeguards Act.
- Under a new section 29A, a person found guilty of decommissioning
a facility without a permit faces an imprisonment penalty of five years (see
paragraph 3.7).
- Under a new section 34A, a person commits an offence if s/he
carries, sends or moves nuclear material into or out of Australia or a foreign
country. A person found guilty of this offence faces an imprisonment penalty of
10 years.
- Under a new section 35A, a person found guilty of interfering
with the operation of a nuclear facility—and who does so intending or knowing
that the act will cause injury or damage to property—faces an imprisonment
penalty of 20 years.
Lengthened penalties under Nuclear Non-Proliferation (Safeguards) Act 1987
3.4
The bill also lengthens the maximum term of various imprisonment
offences under Part III of the Nuclear Non-Proliferation (Safeguards) Act
1987. It contains five provisions to lengthen existing imprisonment
penalties in the Act.
- Under section 23 (1), the maximum imprisonment term for a person
found guilty of possessing nuclear material without a permit will be lengthened
from 'not more than five years' to 'not more than ten years'.
- Under section 26(1), the maximum imprisonment term for a person
found guilty of communicating information about nuclear technology (as defined
in section 4(1) of the Act) will be lengthened from 'not more than two years'
to 'not more than ten years'.
- Under section 26A(1), the imprisonment penalty for a person found
guilty of communicating information that compromises the security of nuclear
material will be lengthened from two years to eight years.
- Under section 31(1), the maximum imprisonment term for a person
found guilty of obstructing or hindering an Agency inspector in the performance
of a duty under the Act will be lengthened from 'not more than six months' to
'not more than 'two years'.
- Under section 35, the maximum imprisonment term for a person
found guilty of using nuclear material to cause serious damage to any person or
substantial damage to property will be lengthened from 10 years to 20 years.
Extending the geographical scope of jurisdiction for offences under various
Acts
3.5
The bill also amends the Nuclear Non-Proliferation (Safeguards) Act
1987 to broaden the geographical scope of jurisdiction for various offences
under Part III of the Act. These amendments are based on category B of section
15.2 of the Criminal Code. This section defines an offence as occurring
wholly or partly in Australia or wholly outside Australia when the person is a
citizen or resident of Australia.[3]
The bill's purpose in extending geographical jurisdiction is to strengthen Australia's
ability to act against the proliferation of nuclear and chemical weapons.[4]
The bill amends subsections of the Nuclear Non-Proliferation (Safeguards)
Act 1987 dealing with:
- the possession of nuclear material (subsection 23(2));
- a breach of duty to ensure security of associated technology (subsection
25A(3));
- unauthorised communication of information (subsection 26(5));
- communication prejudicing security of nuclear material or
associated item (subsection 26(5));
- the making of false or misleading statements in relation to the
Act (subsection 30(3)); and
- unauthorised access to areas to which access is permitted under
permit (subsection 31A(4)).
3.6
The Bill also amends section 8 of the Comprehensive Nuclear Test-Ban
Treaty Act 1998 and sections 5(1) and 12 of the Chemical Weapons
(Prohibition) Act 1994 to extend geographical jurisdiction based on Section
15.2 of the Criminal Code.
Permit to decommission a facility
3.7
The bill inserts a new section 16B into the Nuclear Non-Proliferation
(Safeguards) Act 1987 to allow the Minister to grant a written permit to
decommission the whole or part of a nuclear facility. Under this subsection,
the Bill requires that the permit to decommission a facility must be approved
by the Director of Safeguards (as per subsection 12(2) of the Act). The
Director must also be satisfied that appropriate safeguards could be applied
during the decommissioning and that adequate physical security could be applied
to nuclear material during the decommissioning.[5]
The bill also inserts a new section 29A that makes it an offence for a person
to decommission the whole or part of a facility without holding a permit.
Bringing Australia's legislation into line with the Physical Protection
Convention
3.8
The Explanatory Memorandum (EM) makes clear that a key purpose of these
amendments is to ensure consistency of Australian legislation with the amended
Physical Protection Convention (see chapter 2). The bill's amendments relate to
the substance, the terminology and the timing of Convention's amendments. The
EM notes that:
-
the new section 34A relating to offences carrying, sending or
moving nuclear material 'is inserted only to ensure consistency of Australian
legislation with the language of the amended Convention';
- the bill's amendment to section 36 of the Nuclear
Non-Proliferation (Safeguards) Act 1987 to punish threats to use nuclear
material to cause damage 'to the environment' is '[c]onsistent with the
requirements of the amended Physical Protection Convention';[6]
- the bill repeals the Act's definition of 'nuclear facility' in
section 32 to be replaced by 'an express definition using the words of the
amended Convention'.[7]
The new section replaces the term 'nuclear material' with the term 'nuclear
facility' and provides a definition of what constitutes a nuclear facility.
Summary
3.9
If passed, the effect of the Non-Proliferation Legislation Amendment
Bill 2006 will be threefold. First, it will introduce three new offences under
the Safeguards Act relating to decommissioning a nuclear facility without a
permit, trafficking nuclear material and interfering with the operation of a nuclear
facility. Second, the bill increases various imprisonment penalties for
offences under the Act. Third, the bill also extends the geographical scope of
jurisdiction for various offences which will mean that Australian citizens
residing overseas will be imprisoned if found guilty of these offences. These
amendments strengthen Australia's regime for domestic security in the use,
storage and transport of nuclear material and assist in multilateral efforts to
this end.
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