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Bills Digest No. 190 1997-98
Comprehensive Nuclear Test-Ban Treaty Bill 1998

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

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 people.

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:

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 that:

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 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 blasts.(12)

In the past, it has been acknowledged that a monitoring system can not, of course, prevent nuclear testing:

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 501).

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.

On-site inspections

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 21.

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.

Clarification procedures

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 section 22.

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 warrant.

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 46).

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 for.

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 site.

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 information.

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 71).

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 years.

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 System.

1. 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.
2. Grief, N. Nuclear Tests and International Law in Nuclear Weapons and International Law (1987) 217-244.
3. Press Release of Prime Minister John Howard MP of 8 June 1996 condemning the latest nuclear test by China.
4. 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.
5. 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).
6. Woodliffe, J. Nuclear weapons and non-proliferation: The legal Aspects in Nuclear Weapons and International Law (1987) 84-110.
7. France refused to sign this treaty.
8. Grief, N. Nuclear Tests and International Law in Nuclear Weapons and International Law (1987) 217-244 at 237.
9. Reid, R. Associated Press Report of 11 September 1996.
10. Press Release of Mr Alexander Downer MP, Minister for Foreign Affairs, 7 April 1998.
11. Teller, E et al The Constructive Uses of Nuclear Explosives (1968) at 46.
12. Nuclear Test Ban Monitoring, (1997) Homepage of the National Academy of Sciences, 2.
13. 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.

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ISSN 1328-8091
© Commonwealth of Australia 1998

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