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14001 Cat. No. 97 2941 0 ISBN 0644 519886
1998
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COMPREHENSIVE NUCLEAR TEST-BAN TREATY BILL 1998
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Foreign Affairs, The Hon Alexander Downer MP)
COMPREHENSIVE NUCLEAR TEST-BAN TREATY BILL 1998
OUTLINE
The purpose of this Bill is to give effect to Australia's obligations as a party to the Comprehensive Nuclear Test-Ban Treaty (CTBT). The Treaty was opened for signature on 24 September 1996 and will enter into force 180 days after the 44 States (of which Australia is one) listed in annex 2 to the Treaty have deposited their instruments of ratification with the Secretary-General of the United Nations, but in no case earlier than two years after its opening for signature. Australia has signed the Treaty but has not yet ratified it.
The Treaty bans for all time the carrying out of a nuclear weapon test explosion or any other nuclear explosion. The Bill prohibits the causing of any nuclear explosion at any place under Australian control and establishes a penalty of up to life imprisonment for an offence against the provision. The Bill also prohibits Australian nationals from causing a nuclear explosion in any place outside Australian control.
The Treaty provides for a stringent verification regime involving the establishment of a global monitoring network comprising the International Monitoring System (IMS - involving over 300 facilities using seismic, radionuclide, hydroacoustic and infrasound technologies) and the International Data Centre (IDC - the central point for collection and processing of IMS data). The Treaty directs the establishment of 21 IMS facilities on Australian territory.
The Bill requires the Commonwealth Government to facilitate verification of compliance with the Treaty provisions, including the obligation to facilitate the establishment and operation of Australian monitoring stations and the provision of data from them. The Bill provides that the Commonwealth with the authority to establish IMS stations, and make provision for access to them for CTBT monitoring purposes. The Bill also makes provision for the Minister for Foreign Affairs to enter into arrangements with the CTBT Organization (Organization) to facilitate cooperation in relation to monitoring stations under Australian control.
The Treaty requires a State Party to establish or designate a National Authority in order to manage national implementation of the CTBT and the establishment and operation of IMS facilities on its national territory. The Bill makes provision for the establishment of the Australian National Authority within the Portfolio of the Minister for Foreign Affairs.
Australia is under an obligation to allow Organization inspectors pursuant to Article IV to inspect any place in Australia or the external Territories in an on-site inspection. The Bill provides comprehensive powers for inspection arrangements, including the right for inspectors to collect and remove samples and the right to undertake drilling. Access to facilities by inspectors for challenge inspections is by consent of the occupier or by warrant issued by a magistrate.
The Bill grants the Organization legal capacity. The Bill also provides for the power to make regulations with respect to privileges and immunities for the Organization and its officials under Australian law in accordance with the Treaty.
FINANCIAL IMPACT
Signatories to the CTBT are charged for the cost of operating the Organization in accordance with the UN scale of assessments, but weighted to reflect the number of Treaty signatories. Assessed contributions will pay for the establishment, upgrade and maintenance of the verification regime and operation of the Organization in Vienna. Prior to entry into force, a Preparatory Commission to the Organization will carry out the necessary preparations for the effective implementation of the Treaty. Australia's assessed contribution for calendar years 1996 and 1997 was A$0.54 million, and for 1998 the assessed contribution is A$1.345 million. Out-year assessments will be influenced by signatories' decisions on the rate of establishment of the Treaty's global verification regime but are estimated at A$1.56 million per year.
The cost of operating a National Authority within the Australian Safeguards Office is estimated at an additional $0.190m per year.
NOTES ON CLAUSES
PART 1 - PRELIMINARY
Clause 1 - Short Title
This clause would provide for the Act to be cited as the Comprehensive Nuclear Test-Ban Treaty Act 1998.
Clause 2 - Commencement
It is not certain at what time the Comprehensive Nuclear Test-Ban Treaty (“Treaty”) will enter into force for Australia as this depends on ratification of the Treaty by a number of States Parties. Accordingly, this clause would provide that the Act would commence on a day to be fixed by Proclamation. The clause would prevent the Proclamation from fixing a day which is before the date on which the Treaty enters into force.
Clause 3 - External Territories
This clause would provide that the Act extends to Australia's external territories.
Clause 4 - Australian Ships and Aircraft
This clause would extend the Act to acts or omissions on board ships and aircraft registered in Australia or owned or possessed by the Commonwealth, a State or a Territory.
Clause 5 - Act binds the Crown
This clause would provide that the Act binds the Crown in all its capacities but that the Crown would not be liable to be prosecuted for an offence.
Clause 6 - Application of Criminal Code
This clause would provide that Chapter 2 of the Criminal Code of the Commonwealth applies to all offences created by the Act.
Clause 7 - Definitions
This clause would set out definitions for terms used in the Act.
PART 2 - BAN ON NUCLEAR EXPLOSIONS
Clause 8 - Offence of causing a nuclear explosion
Australia is obliged under Article 1 of the Treaty to prohibit and prevent a nuclear weapon test explosion or any other nuclear explosion. This clause would implement the provisions of Article 1 by making it an offence for a person to cause a nuclear weapon test explosion or any other nuclear explosion.
Clause 9 - Exterritorial operation of offence
Article 3 of the Treaty requires State Parties to prohibit persons in their territory, in places under their control and nationals wheresoever placed from causing, encouraging or participating in the carrying out of nuclear test explosions or any other nuclear explosion. This clause would implement Article 3 of the Treaty by providing that clause 6 applies whether the explosion or the conduct which causes it takes places within or outside Australia. The clause would provide, however, that only an Australian citizen can be guilty of an offence under clause 6 if both the explosion and the relevant conduct takes place outside Australia.
PART 3 - INSPECTIONS
Division 1 - Outline of part
Clause 10 - Outline of part
This clause would provide an outline of Part 3 of the Act.
Division 2 - International Inspections
Clause 11 - Requests for on-site inspections
Article IV paragraph 34 of the Treaty provides that each State Party has the right to request on-site inspections in accordance with the Treaty and the Protocol. This clause would provide that the Minister may declare an inspection to be an on-site inspection and a premises to be an inspection site for the purposes of the Act. The clause would also provide the authority for and conditions under which both a national inspector and an accompanying Organization inspector could enter an inspection site to exercise on-site inspection powers. Access to an inspection site would be with the consent of the occupier or under a warrant issued in accordance with Part 3 Division 4 of the Act. The warrant provisions are structured so that responsibility for obtaining and executing a warrant would lie with the national inspector (see clause 21 (1)). However, to ensure that the Organization inspector would be able to undertake the on-site inspection without frustration, the national inspector would be under an obligation to execute the warrant in a way that accorded with all lawful directions given by the Organization inspector (see clause 21 (3)). The powers of the Organization inspector under clause 11 (2) of the Act would be able to exercised through directions to the national inspector. Clause 11 (3) (b) would require the national inspector to accompany the Organization inspector on any on-site inspection where access to the premises has been authorised by a warrant.
Clause 12 - On-site inspection powers
Paragraph 69 of the Protocol to the Treaty sets out a range of inspection activities contemplated under the Treaty. This clause would set out the specific on-site inspection powers that both a national inspector and an Organization inspector would be able to exercise during an on-site inspection. The purpose of the clause would be to provide a broad authority to undertake inspection acts in accordance with Article IV of the Treaty.
Clause 13 - On-site inspection purposes
This clause would provide a definition of an on-site inspection purpose which is stated in the Treaty to be a purpose solely for clarifying whether a nuclear weapon test explosion or any other nuclear explosion has been carried out in violation of Article I of the Treaty and to gather any facts which might assist in identifying any possible violator.
Clause 14 - Organization inspectors
This clause would provide that the Minister must declare a person to be an Organization inspector provided the Minister is satisfied that a person has been designated as an Organization inspector for the purposes of an on-site inspection under the Act.
Clause 15 - Observers
This clause would give effect to the provisions of paragraph 61 of Article IV of the Treaty which provides for an observer representing the State Party requesting the on-site inspection or another State Party to accompany the Organization inspection team on an on-site inspection. The Minister may refuse to accept a nominated observer. If, however, the Minister is satisfied the observer has been proposed in accordance with the Treaty and the Minister decides to accept the proposed observer, a written declaration must be provided by the Minister. A copy of the declaration must be provided to the observer.
Division 3 - Clarification procedures
Clause 16 - Scope of Division
This clause would set out the scope of Division 3 of the Act. Division 3 would implement the provisions of Article IV paragraph 29 of the Treaty which provides that State Parties should make every effort to clarify and resolve any matter which may cause concern about possible non-compliance with the Treaty.
Clause 17 - Director may give information or documents
This clause would provide that the Director may give his or her counterpart in the State Party seeking clarification, information or documents concerning relevant activities on the premises. The consent of the occupier of those premises would not be required in relation to dealings with such documents.
Clause 18 - Inspections by national inspectors
This clause would permit a national inspector, with the consent of the occupier or under a warrant issued pursuant to clause 22, to conduct an inspection of premises in the same way as an on-site inspection in order to satisfy the concerns of a State Party seeking clarification. The inspection would be undertaken without the presence of an Organization inspector. The Director may modify on-site inspection procedures in relation to a clarification inspection.
Clause 19 - Joint inspections
The clause would provide for joint inspections between national inspectors and foreign country inspectors nominated by the State Party seeking clarification, in the same manner as for on-site inspections. The occupier of the premises must consent to the joint inspection. The Minister has the power to declare a person to be a foreign country inspector if the Minister is satisfied that the person has been designated by the other State Party to be a foreign country inspector.
Clause 20 - Limit on modifications
This clause would provide that modifications of on-site inspection procedures permitted under clause 18 (2) and 19 (5) in relation to clarification requests must not reduce the rights of the occupier.
Division 4 - Inspection warrants and conduct of inspections
Clause 21 - On-site inspection warrants
This clause would provide for the issue of a warrant to a national inspector for an on-site inspection if a magistrate is satisfied it is reasonably necessary to exercise on-site inspection powers for an on-site inspection purpose. This clause would implement paragraph 56 of Article IV of the Treaty. The clause would require a national inspector to apply for a warrant in circumstances where the occupier has not consented to an Organization inspector exercising on-site inspection powers. The national inspector would be obliged to execute a warrant in a way which accords with all lawful directions of the Organization inspector.
Clause 22 - Clarification Inspection Warrants
This clause would provide for the issue of a warrant to a national inspector if the magistrate is satisfied it is reasonably necessary to carry out a clarification inspection under Division 3 of Part 3 of the Act.
Clause 23 - Content of warrants
This clause would set out the contents of a valid warrant issued under Division 4 of Part 3.
Clause 24 - Duration of inspection
This clause would provide for the maximum period within which an on-site inspection must be completed and the period within which a clarification inspection should be completed. The time set out under the clause would run from the date on which either the clarification request or request for an on-site inspection was made. The Minister would have the power to extend the period of an on-site inspection by no more than seventy days from the date of the expiry of the original period.
Clause 25 - Inspections not to be intrusive
This clause would provide that an inspection should have the minimum possible impact possible to effect the purpose of the inspection.
Clause 26 - On-site inspection warrant to authorise presence of an observer
This clause would provide that a warrant may permit an observer to accompany the Organization inspector.
Clause 27 - Initial inspection plan
This clause would provide that the persons who are to conduct an on-site inspection must give the Director an inspection plan before the inspection. This clause would implement Part II of the Protocol of the Treaty.
Clause 28 - Managed access
This clause would provide that the inspection team must modify its initial inspection plan, in accordance with the provisions relating to managed access in Part II of the Protocol to the Treaty, so as to ensure the protection of sensitive equipment, information and places that are not relevant to verifying compliance with the Treaty.
Clause 29 - Other modifications of inspection plan
This clause would permit whatever changes might be necessary to an inspection plan to meet the objectives of the inspection.
Division 5 - Offence-related searches and seizures
Clause 30 - Offence-related searches and seizures
This clause would permit a national inspector to enter any premises and to search for and seize any evidential material found on the premises provided there are reasonable grounds for suspecting there may be evidential material on the premises. The national inspector may enter the premises either with the consent of the occupier or pursuant to a warrant. The occupier may require the national inspector to show his or her identity card before entering the premises.
Clause 31 - Offence-related warrants
This clause would permit a warrant to be issued to a national inspector by a magistrate upon information on oath if the magistrate considers there are reasonable grounds for suspecting there is, or may be within 72 hours, any evidential material at the premises. The clause also sets out the terms of the warrant, including the requirement that it detail the evidential material that is the subject of the warrant. The warrant should also provide for the seizure of a thing which is not the evidential material described in the warrant but which a member of the warrant team believes on reasonable grounds to be evidential material.
Clause 32 - The things that are authorised by a search warrant
This clause would specify the things that are authorised by a search warrant, including searching for, and seizure of, evidential material where there are reasonable grounds to believe seizure is necessary to prevent loss or destruction. If things are seized under the warrant this clause would permit the national inspector to make those things available the representatives of other Commonwealth, State or Territory agencies for the purposes of investigating or prosecuting an offence.
Clause 33 - Specific powers available to warrant teams executing search warrants
This clause would set out specific powers available to a warrant team relating to the conduct of an inspection including the taking of photographs and the power temporarily to stop the search.
Clause 34 - Use of equipment to examine or process things
This clause would authorise a warrant team to bring equipment to a premises if reasonably necessary for the examination or processing of things found at the premises to determine whether they are things that may be seized. The clause would also authorise moving items from the premises either with the consent of the occupier or where it is not practicable to conduct the examination at the premises.
Clause 35 - Use of electronic equipment at premises
This clause would authorise a warrant team to operate equipment located at the premises. The clause would also provide for the securing of equipment which requires expert assistance to operate, if there are reasonable grounds to believe that evidential material may be accessible by operating the equipment which may be destroyed or otherwise interfered with.
Clause 36 - Occupier may observe search
This clause would permit the occupier of any premises to be searched in accordance with the Act to observe the search. If the occupier impedes the search at any stage, he or she loses the right to observe the remainder of the search. The right of the occupier to observe the search would not limit the capacity of the warrant team to search more than one part of the premises at the same time.
Clause 37 - Warrants by telephone or other electronic means
This clause would provide that in an urgent case a national inspector may obtain a warrant from a magistrate by telephone, telex, facsimile or other electronic means. The application would be required to contain all the information provided in a non-electronic application for a warrant but may be made before the information is sworn. The clause would also set out the process by which a properly completed warrant must be lodged with the magistrate after obtaining the telephone warrant.
Clause 38 - Receipts of things seized or moved
This clause would set out the obligation of the warrant team to provide a receipt in relation to any goods seized under a warrant.
Clause 39 - Return of things seized
This clause would provide that an article which is seized may be retained for 60 days and then should be returned to the person from whom it was seized or to the owner, unless the exceptions set out in the clause are satisfied.
Clause 40 - Court of summary jurisdiction may permit a thing to be retained
This clause would provide that a member of a warrant team may seek an extension of the period of retention of an article from a court of summary jurisdiction on the grounds that it is justified for the purposes of an investigation as to whether an offence has been committed.
Division 6 - General rules about warrants
Clause 41 - Announcement before entry
This clause would provide that before a warrant team could enter an inspection site or premises, the national inspector must announce to any person there that the warrant team is authorised to enter unless there are reasonable grounds for believing that the effective execution of the warrant would be frustrated by such a procedure.
Clause 42 - Availability of assistance and use of force in executing a warrant
This clause would permit the national inspector executing a warrant to obtain whatever assistance may be necessary and reasonable in the circumstances. Any member of the warrant team would be authorised to use such force against persons and things as may be necessary and reasonable to execute the warrant.
Clause 43 - Details of warrant to be given to occupier etc.
This clause would require that where the occupier is present at the premises, a national inspector executing a warrant must make a copy of the warrant available to the occupier.
Clause 44 - Copies of seized things to be provided
This clause would provide that a warrant team must provide the occupier, on request, with a copy of information seized under the warrant, provided that the information can be readily copied.
Clause 45 - Compensation for damage to electronic equipment
This clause would provide for compensation to be paid to the owner of equipment damaged during an inspection as a consequence of insufficient care in selecting an operator of the equipment or of the operation of the equipment.
Clause 46 - Making false statements in applications for warrant
This clause would provide that it is an offence for a national inspector to give a false or misleading statement in an application for a warrant.
Clause 47 - Offences relating to telephone warrants
This clause would provide that it would be an an offence for a national inspector to provide inaccurate or misleading information in a document purporting to be a warrant obtained by telephone or other electronic means.
PART 4 - MONITORING FACILITIES
Division 1 - Establishing and Operating Monitoring Facilities
Clause 48 - Declaration of Treaty monitoring facilities
Article IV of the Treaty provides that parties undertake the obligation to own and operate a network of monitoring stations as part of an international monitoring system. This clause would give the Minister the power to declare a facility to be a Treaty monitoring facility for the purposes of the Act. To have effect, the Minister's declaration would have to be in writing and a copy of the declaration would have to be published in the Gazette. A Minister can only make a declaration in relation to a facility if he is satisfied that it is necessary to do so to give effect to Australia's obligations under the Treaty.
Clause 49 - Minister may establish and operate monitoring facilities
This clause would permit the Minister to establish a monitoring facility with a view to declaring it to be a Treaty monitoring facility. The Minister would also be empowered to operate a Treaty monitoring facility. To exercise the power under the clause, the Minister would have to be satisfied that it is necessary or desirable to do so in order to give effect to Australia's obligations under the Treaty.
Clause 50 - Minister may enter into arrangements
This clause would provide that the Minister has the power to enter arrangements with any person relating to the establishment or operation of monitoring facilities. Such arrangements could include joint establishment or management of the facility with an Australian or foreign entity including an international organisation. The Minister would be required to consider that entering any arrangement was necessary or desirable in order to give effect to Australia's obligations under the Treaty.
Division 2 - Powers to do certain activities
Clause 51 - Authorisation to gain access to facilities
This clause would permit the Minister to authorise any person regardless of nationality to gain access to a Treaty monitoring facility or to do anything in relation to such a facility. The Minister would have the power to set whatever conditions as may be determined appropriate in relation to such access.
Clause 52 - Inspecting Land
This clause would permit the Minister to enter on or inspect any land and to do anything on the land for the purposes of determining whether a facility should be declared to be a Treaty monitoring facility or whether a particular site would be suitable for a Treaty monitoring facility.
Clause 53 - Establishing facilities
This clause would permit the Minister to enter on or occupy land including privately owned land and to do any other necessary or desirable act in relation to the land for the purpose of establishing a monitoring facility.
Clause 54 - Maintaining facilities
This clause would empower the Minister to carry out maintenance of a monitoring facility. For the purposes of this clause, the Minister would have the power to do anything necessary or desirable to carry out such maintenance including entering private land without the occupier's permission.
Division 3 - Rules about exercising Division 2 powers
Clause 55 - Damage etc. to be minimised
This clause would require the Minister to take all reasonable steps to ensure that, in entering on or occupying any land under Division 2, as little detriment and inconvenience as practicable is caused to occupants of the land and as little damage as practicable is caused to land itself.
Clause 56 - Person must restore land
This clause would require that where any activity has been undertaken in relation to land under Division 2, all reasonable steps would have to be taken to return the land to a condition similar to its condition before the activity began.
Clause 57 - Management of activities
This clause would require that where any activity was undertaken pursuant to Division 2, it should be done properly and with due care to ensure the safety of persons and property. In addition, any activity should be undertaken in a way which caused the minimum possible interference with the use of the land or any public facility. A significant aspect of the clause would be the requirement that care must be taken to ensure that the environment is protected as much as possible from any damage as a consequence of any activity.
Clause 58 - Roads etc. to remain open for passage
This clause would require that where a facility is established under clause 53, and the facility is over a road, bridge, path or navigable water, it is a requirement to ensure that reasonable passage by members of the public can continue notwithstanding the establishment of the facility.
Clause 59 - Notice to owner of land
This clause would set out the circumstances and timeframe within which notices must be given to owners or occupiers of land where it is intended to undertake any activity pursuant to Division 2. It would also identify the information to be included in the notice. An exception to the requirement to give notice would exist in circumstances of an emergency where immediate action is required to protect the safety of persons or property or to ensure there is no breach of Australia's obligations under the Treaty. The clause would also make a specific exception to the requirement of notice in the case of inspections of land where, amongst other matters, no disturbance to the land is involved and the land to be inspected is not part of an area of particular significance to Aboriginal persons.
Clause 60 - Giving Notices
This clause would address circumstances of serving notices where the owner of land is unknown or it is not possible to serve a notice on the owner of the relevant land. The clause would require that the relevant notice be published in a local newspaper and that, if the land is occupied, a notice must be served on the occupier and, if not occupied, the notice should be attached to a conspicuous part of the land.
Clause 61 - Compensation
This clause would ensure that persons suffering any loss or damage as a consequence of any activity under Division 2 should be entitled to receive a reasonable amount of compensation from the Commonwealth. Compensation would be payable in respect of both temporary and permanent damage and in relation to any item taken from the land.
PART 5 - AUSTRALIAN COMPREHENSIVE TEST BAN OFFICE
Division 1 - Establishment of the Office
Clause 62 - Designation of the Office
This clause would permit the Minister to designate a particular agency, or unit within an agency, for which he or she is responsible, as the Australian Comprehensive Test Ban Office. This would implement paragraph 4 of Article III of the Treaty.
Clause 63 - Director of Office
This clause would provide that the designation made by the Minister to establish the Australian Comprehensive Test Ban Office must also designate the holder of a particular position within the agency or unit as the Director of the Office.
Clause 64 - Functions of the Office
This clause would set out the functions of the Australian Comprehensive Test Ban Office including responsibility for ensuring effective operation of the Act and carriage of Australia's obligations under the Treaty.
Clause 65 - Delegation by Director
This clause would allow the Director to delegate any responsibilities under the Act.
Division 2 - National inspectors and consultants
Clause 66 - National inspectors
This clause would provide that the Director is a national inspector and that the Director may appoint other national inspectors who may be members of the Australian Comprehensive Test Ban Office.
Clause 67 - Identity Cards
This clause would provide for the requirement that identity cards be issued for the Director and national inspectors. Contravention of any requirement of the clause would be an offence.
Clause 68 - Engagement of consultants etc.
This clause would allow the Director to engage consultants subject to the approval of the Minister.
PART 6 - MISCELLANEOUS
Clause 69 - Delegation by Minister
This clause would authorise the Minister to delegate any of his or her powers conferred under the Act.
Clause 70 - Powers to be exercised in accordance with Treaty
This clause would provide that the exercise of a power or performance of a duty under the Act must not be inconsistent with the Treaty and must be done with regard to Australia's obligations under the Treaty.
Clause 71 - Annual report by Director
This clause would provide that the Director is required each financial year to give an annual report to the Minister to be laid before each House of the Parliament.
Clause 72 - Additional reports
This clause would provide that the Minister may require additional reports from the Director and that the Director may give the Minister such other reports as the Director thinks appropriate.
Clause 73 - Privileges and immunities
This clause would allow regulations to be made by the Governor-General to confer appropriate privileges and immunities on the Organization, staff of the Organization, observers and any other persons consistent with the terms of Article II paragraph 54 of the Treaty. The purpose of the clause is to allow regulations to establish a privileges and immunities regime not unlike the regime which exists under the International Organisations (Privileges and Immunities) Act 1963. The separate regulatory regime contemplated by the clause reflects the requirement under the Treaty to provide for certain privileges and immunities which would not be able to be extended under the International Organisations (Privileges and Immunities) Act 1963 including the obligations under paragraphs 27 (b), 27 (c) and 27 (d) of the Protocol to the Treaty.
Clause 74 - Secrecy
This clause would provide for the confidentiality of information concerning the affairs of another person acquired in the performance of duties under the Act. The information would not be able to be recorded or communicated except for the purposes of the Act or for complying with Australia's obligations under the Treaty. This prohibition would extend to a recipient of information where the information was communicated with a statement that the information was confidential. The clause would also prohibit the communication of the information in a court proceeding unless it is necessary for the purposes of the Act. The clause would also create an offence in relation to unauthorised of information.
Clause 75 - Expressions in section Clause 74
This clause would define confidential information as information about another person's affairs obtained during an inspection unless the information was publicly available or the person stated he or she would not object to it becoming publicly available. This would not limit the meaning of the term confidential information.
Clause 76 - Australia not liable for acts or omissions of Organization
This clause would provide that nothing in the Act would make Australia liable for any act or omission by the Organization or an Organization inspector in the implementation of the Treaty.
Clause 77 - Organization has legal personality and capacity
This clause would provides that the Organization is a body corporate with perpetual succession that is capable of doing various acts associated with being a legal entity.
Clause 78 - Regulations
This clause would authorises the Governor-General to make regulations generally for the administration of the Act.