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Chapter 4 - Main findings
Criticism of the bill
4.1
The committee received two submissions criticising the bill, one from
the Medical Association for the Prevention of War (MAPW) and the other from
Friends of the Earth (FoE). Both submissions highlighted concerns that the
legislation would impact unfairly on legitimate protest activity. Both cited
the Greenpeace action in December 2001 which involved unauthorised entry into Lucas
Heights. The MAPW argued that 'the 46 persons involved in the Greenpeace
action had a clear intent to do no harm and posed no risk to anyone, but could
be subject to extended prison sentences if such legislation were to be applied
inappropriately'.[1]
The FoE reiterated the concerns it made to the 2003 Senate inquiry (see
paragraph 2.9) that Greenpeace's actions 'potentially involve the offence of
obstructing or hindering an Agency inspector in the performance of a duty or
function or exercise of a power'.[2]
4.2
Chapter 2 noted Labor Senators' initial concern with the impact of the
Non-Proliferation Legislation Amendment Bill 2003 on the right to protest and
the role of whistleblowers. However, the government subsequently took account
of these concerns and made a change which made clear that section 26A of the
Act was 'not intended to displace the requirements of recklessness or intention
which are defined in Division 5 of the Criminal Code Act 1995'. This
satisfied Labor Senators that 'legitimate protest activity and the
communication of legitimate protest information would not be at risk of being
inadvertently scooped up by new section 26A'.[3]
4.3
MAPW's submission supported the Bill's measures to minimise risks of
nuclear and chemical weapons proliferation, and to extend jurisdiction of the
legislation as widely as practical. It noted that the alignment of Australian
law with the 2005 Convention is 'commendable'. However, the Association had the
following criticisms and recommendations to make on the substance of the Bill:
- the specification of maximum penalties is 'inappropriate and
inconsistent with the potential extreme seriousness of such crimes';
- permits to decommission facilities should require not only
ministerial approval but also parliamentary scrutiny;
- the Bill's definitions should make unqualified the amount of
radiation or radioactive material, or that the qualifying term 'significant' is
defined 'such as to cover potential exposures of multiple individuals';
- the period for which decommissioning work already commenced be
exempt from full requirements be shortened from 6 months to 1 month; and
- non-proliferation measures in the absence of disarmament measures
are unlikely to succeed. Existing safeguards measures and institutional
arrangements are inadequate for preventing proliferation. The MAPW argued that
'...Australia should join the large majority of governments in the General
Assembly that call for multilateral negotiations leading to an early conclusion
of a nuclear weapons convention'.[4]
Conclusion
4.4
The Non-Proliferation Legislation Amendment Bill 2006 is a strong
response to Australia's new obligations under the amended Physical Protection
Convention. It reflects the active role that Australia took in negotiating the
July 2005 Amendments to the Convention. The system of permits and the list of
offences under the Nuclear Non-Proliferation (Safeguards) Act 1987 already
include elements of some of the new offences required by the amendments. The
bill responds further to the amendments by increasing prison penalties and
extending the geographical scope of jurisdiction for offences under the
Safeguards Act. It also contains three new offences relating to the
decommissioning of a nuclear facility without a permit, trafficking nuclear
material and interfering with the operation of a nuclear facility.
4.5
The committee acknowledges the concerns of the FoE and the MAPW.
However, it believes the bill in its current form adequately meets Australia's
new international obligations under the 2005 Convention to protect nuclear
facilities and material for peaceful domestic use, storage and transport. The
committee strongly supports continued Australian engagement in multilateral
efforts on disarmament and non-proliferation.
Recommendation 1
4.6
The committee recommends that the Senate pass the bill.
SENATOR DAVID JOHNSTON
CHAIR
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