Explanatory Memorandum
(Circulated by authority of the Minister for Foreign Affairs, The Hon Alexander Downer MP)OUTLINE
The Foreign Affairs and Trade Legislation Amendment Bill 1997 (Bill) is an omnibus Bill which makes substantive amendments to the following four Acts administered within the portfolio:
- a.
- Chemical Weapons (Prohibition) Act 1994 (Chemical Weapons Act);
- b.
- International Organizations (Privileges and Immunities) Act 1963 (International Organisations Act)
- c.
- Nuclear Non-Proliferation (Safeguards) Act 1987 (Nuclear Safeguards Act); and
- d.
- Passports Act 1938.
The change in spelling to Organ isation from Organ ization in the International Organisations Act also requires consequential amendments to the Administrative Decisions (Judicial Review) Act 1977, the Consular Privileges and Immunities Act 1972, the Fringe Benefits Tax Assessment Act 1986, the Income Tax Assessment Act 1936, and the Migration Act 1958.
Chemical Weapons Act
The amendment to the Chemical Weapons Act allows for privileges and immunities for observers to "challenge inspections" which may be conducted under the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC). Observers are representatives of a country requesting an on-site challenge inspection for the purpose of resolving questions of possible non-compliance with the CWC. This amendment rectifies an oversight in the original Act.
International Organisations Act
Amendments to the International Organisations Act update a nearly 35 year old Act. They are necessary to keep pace with the increasing number and diversity of international organisations and to allow for sales tax exemptions for international organisations which have their headquarters in Australia. The amendments make up the bulk of the Bill and fall into three categories.
The first of these comprise general administrative and policy amendments. The definition of an international organisation which can be eligible for privileges and immunities is tightened. A related amendment closes a potential loophole by limiting to 12 months the life of any regulation under which standard diplomatic privileges and immunities can be conferred on persons who are engaged on specified missions or attending specified conferences in Australia. At the same time, the issue of recognition as legal persons for domestic law purposes of international organisations is separated from eligibility for privileges and immunities. The new provision allows organisations satisfying much broader criteria to be recognised without according them privileges and immunities. The unrelated change in spelling to "Organisation(s)" brings the Act into conformity with Government legislative drafting practice.
A second category of amendments overcomes a specific legal difficulty created by the interaction of the International Organisations Act with the Acts Interpretation Act 1901. Frequently the precise date of entry into force of the treaty establishing an international organisation cannot be predicted in advance. In such situations, the regulations relating to the new organisation generally cannot validly be made until the treaty is already in force for Australia. This may put Australia in technical breach of its international obligations until the regulations are in force. The amendment provides an alternative mechanism whereby the regulations can be made as soon as Australia's obligations are known. Another amendment removes particular transitional difficulties encountered in the infrequent cases when an organ of an existing international organisation becomes a new organisation in its own right. It provides for the new organisation to succeed to the privileges and immunities of the existing one for a period of up to a year.
The third category of amendments gives effect to certain specific international obligations. First, it allows privileges and immunities to be conferred on international law tribunals, their members and staff and persons appearing before them. Secondly, it allows for exemptions from sales tax on goods sold to international organisations with their headquarters in Australia, as provided for in the headquarters agreements negotiated with the organisations concerned.
Nuclear Safeguards Act
Changes to the Nuclear Safeguards Act strengthen nuclear safeguards by implementing the provisions of a Protocol to the Agency Agreement between the International Atomic Energy Agency (IAEA) and Australia. The Protocol provides for expanded declarations and increased access in relation to locations where nuclear material is customarily used.
Passports Act 1938
The Passports Act 1938 amendment tightens the provision relating to the offence of making false statements in relation to passport applications. It includes recklessness as a mental element in forming the intention to commit the offence.
Financial Impact Statement
Chemical Weapons Act
The amendment to the Chemical Weapons Act is not expected to have any financial impact. Theoretically, the standard diplomatic exemptions from taxes and customs duties accorded to an observer would be revenue foregone. However, such an inspection is unlikely. In any event, under the challenge inspection regime an observer may be in Australia for only a few days and would not be in a position to claim significant exemptions. It is not appropriate for these potential taxation concessions to be provided by direct outlays as the CWC prescribes the standard diplomatic exemptions for observers.
International Organisations Act
The tightening of eligibility criteria for privileges and immunities of ordinary international organisations will marginally reduce revenue forgone in future years. The financial impact of the extension of such eligibility to tribunals will be small and sporadic. It is dependent on the number of such tribunals that come into existence and contingent on their members visiting Australia or holding hearings in Australia. Such occurrences are expected to be rare and brief.
The authorisation of sales tax exemptions for international organisations headquartered in Australia will have an impact. The net effect for the revenue of any international organisations attracted to Australia in future wholly or partly by the availability of this exemption is positive. Indirectly, the revenue forgone would be considerably outweighed by the income tax paid by Australian residents employed at the organisations' headquarters, together with the additional revenue generated at the margin by the injection of substantial additional demand into the Australian economy by the headquarters' presence in Australia and consequent consumption of goods and services. In general, it is not appropriate for the revenue directly forgone to be provided by way of outlay. This would involve an unprecedented negotiation (or renegotiation) of the relevant treaty. This is invariably a resource intensive process with uncertain prospects of achieving an acceptable outcome.
Partial sales tax exemptions are an integral part of the headquarters agreements negotiated with the two international organisations already headquartered in Australia. There is an existing tax ruling in respect of one of these, therefore, any additional impact on the revenue would be limited. For the existing headquarters, there would be an estimated one-off direct cost to revenue of between $5 000 and $10 000, depending on when this exemption comes into force. This reflects delayed establishment costs of the recently arrived organisation. Thereafter, the net annual cost would be of the order of $2 000 - 5 000.
Nuclear Safeguards Act
Increased resources (being equipment and domestic travel) will be required to implement the expanded inspection regime under the Nuclear Safeguards Act. The Australian Safeguards Office (ASO) expects to absorb these increased requirements within its current budget.
Passports Act 1938
The amendment to the Passports Act 1938 will impose no direct or indirect cost. It should improve compliance with the Act and, if necessary, improve chances of successful prosecution for breach of the Act. This would reduce compliance costs.
Consequential Amendments
The only financial impact of the consequential amendments of the change in spelling of Organisations in the other Acts will be administration and reprinting costs.
Glossary
The following abbreviations are used throughout this Explanatory Memorandum:
ASO means the Australian Safeguards Office
Chemical Weapons Act means the Chemical Weapons (Prohibition) Act 1994
CWC means the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction
IAEA means the International Atomic Energy Agency
International Organisations Act means the International Organizations (Privileges and Immunities) Act 1963
Nuclear Safeguards Act means the Nuclear Non-Proliferation (Safeguards) Act 1987
OPCW means the Organization for the Prohibition of Chemical Weapons
Protocol means the Protocol additional to the Agreement between Australia and the IAEA for the Application of Safeguards in connection with the Treaty on the Non-Proliferation of Nuclear Weapons
Notes on Clauses
Clause 1 - Short Title
The Bill may be cited as the Foreign Affairs and Trade Legislation Amendment Bill 1997.
Clause 2 - Commencement
Commencement days for the Act vary depending upon the legislation which is being amended.
Subclause 2(1) provides for the day of Royal Assent as the default commencement day.
Subclause 2(2) allows for commencement of amendments to the Nuclear Safeguards Act to be delayed, if necessary, until the first supplementary IAEA agreement has been signed on behalf of Australia. This is to ensure Parliament does not impose obligations until Australia has formally undertaken these obligations with the IAEA. The constitutionality of Parliament passing legislation prior to Australia incurring obligations was endorsed in Richardson v Forestry Commission (1988) 164 CLR 261.
Subclause 2(3) provides for the amendment to the Passports Act 1938 to commence 28 days after the day of Royal Assent, in accordance with the legislative convention for provisions relating to offences.
Clause 3 - Schedules
This clause specifies that each Act set out in Schedule 1 or 2 is amended as set out in the applicable items.
Schedule 1 - Amendments of Acts relating to matters dealt with by the Department of Foreign Affairs and Trade
Chemical Weapons Act
Item 1 - Privileges and Immunities of Observers
New section 101A allows for privileges and immunities for observers, who are representatives of the State Party requesting a "challenge inspection". An inspection would be conducted by the inspectors of the Organization for the Prohibition of Chemical Weapons (OPCW). The CWC requires that observers are accorded privileges and immunities largely similar to those accorded OPCW inspectors (CWC Verification Annex Part II, paragraph 15). These privileges and immunities are, in turn largely, a subset of those accorded under the Vienna Convention on Diplomatic Relations. The Chemical Weapons Act already provides for privileges and immunities for OPCW inspectors. It also provides for observers to be declared as such by the Minister. However, it did not provide for privileges and immunities for observers.
Consular Privileges and Immunities Act 1972
Item 2 - Spelling of "organisation(s)"
This spelling change is consequential to Item 9.
International Organisations Act
Items 3 to 9 amend the International Organisations Act. Item 10 affects that Act's operation.
Item 3 - International Organisations to which the Act applies - Definition
New subsection 5(2) defines the concept of "representing Australia" and "representing a country other than Australia" for the purposes of paragraph 5(1)(b). A person is taken to represent any country if he or she is nominated by the government of that country and is subject to direction by that government as to how his or her rights as member, such as voting, are to be exercised (whether or not in practice the member is left to exercise his or her own discretion in this regard). Subsection 5(3) provides, basically, that if the organisation is established by an agreement to which Australia and at least one other country is party, then the restrictions of subsection 5(2) do not apply.
By necessary implication, subsection 5(2) operates to the exclusion of subsection 3(3). The condition in new subsection 5(2) cannot be fulfilled by a person not nominated by his or her own government but nonetheless deemed to be a "representative" by the operation of subsection 3(3).
Subsection 5(4) is a general savings provision to ensure the continued validity of existing regulations.
Subsection 5(5) allows differentiation between organs of the one organisation in terms of their privileges and immunities. This specifically provides a contrary intention, within the meaning of subsection 3(1), for the definition of international organisation to which this Act applies. That definition otherwise includes organs of the organisation. This provision permits Australia to give full effect to treaties establishing international organisations in those cases where different organs of the same organisation are required to have different privileges and immunities conferred upon them.
- International Organisations to which the Act applies - Succession
New subsection 5(6) provides for the succession of a newly independent devolved organ of an international organisation to the privileges and immunities of that organisation. An organ of an international organisation may cease to be such an organ by reason only of becoming in its own right an international organisation to which the Act applies (a new organisation). The privileges and immunities of the parent organisation continue to apply to the new organisation as if it were still an organ of the parent organisation. The privileges and immunities of persons connected with the new organisation likewise continue to apply. Such succession can only occur if Australia or a person representing Australia is a member of the new organisation. Paragraph 5(6)(d) permits the contrary intention to be indicated in a regulation conferring privileges and immunities on the parent organisation.
As the agreement establishing the new organisation may specify different privileges and immunities from those of the organisation that spawned it, the extension of the old privileges and immunities will usually be only a temporary solution. The preserved regulations would normally be replaced by new regulations tailored to the privileges and immunities requirements of the agreement establishing the new organisation. In any event, if no new regulations are made, the effect of this provision ceases after 12 months.
Item 4 - Sunsetting of regulations under section 7
There has been some doubt as to whether section 7, under which regulations may be made granting diplomatic privileges and immunities to persons performing missions or attending international conferences in Australia, applies only to short-term missions. The item resolves this issue by bringing about the automatic sunsetting of such regulations, after 12 months.
New subsections 7(4) and (5) distinguish between regulations made in future, which cease to be in force after 12 months, and regulations already in force, which cease to be in force 12 months after the commencement of the item.
Item 5 - Tribunals
International tribunals are generally constituted in such a way that Australia or a person representing Australia is not as of right capable of being permanently a member (that is, without the need to stand for election). Hence, they do not satisfy the test in section 5 for "an international organisation to which this Act applies". Moreover, the statutes establishing such tribunals usually prescribe specific privileges and immunities for certain classes of persons such as members and officers of the tribunal and counsel and witnesses appearing before the tribunal, who do not fit within the Schedules to the Act. Except when the tribunal is a direct emanation of an international organisation already enjoying privileges and immunities under the Act, such as the United Nations, Australia has been unable to discharge its obligations under the statutes of tribunals to which it is party to accord to the tribunals and associated persons the privileges and immunities prescribed therein.
New subsection 9B(1) remedies that problem by permitting a tribunal to be given the privileges and immunities prescribed in the tribunal's statute or foundation document. Persons associated with the tribunal including, for example, members ad hoc for the duration of their duties, may likewise be given the privileges and immunities prescribed in that document. The definition of international tribunal in subsection 9B(3) requires that it is established by or under an agreement to which Australia is party.
Subsection 9B(2) allows the new section to be used even if the tribunal is eligible for privileges and immunities as a direct emanation of an international organisation already enjoying privileges and immunities under the Act. The range of privileges and immunities available to it under section 6 and the Schedules to the Act will often be of limited relevance, and, to the extent that it is relevant, incomplete and thus unsatisfactory as a means of discharging Australia's international obligations.
By virtue of subsection 33(3A) of the Acts Interpretation Act 1901, regulations need not provide privileges and immunities for all the classes of persons listed in subsection 9B(1), but may confine them to some of those classes only.
Item 6 - Sales tax exemptions for headquarters
The headquarters agreements negotiated by Australia with the two international organisations headquartered in Australia provide for Australia to exempt from sales tax goods purchased by the organisations for their official use upon the sale of which to the organisations sales tax would otherwise be payable by the vendor. There is doubt as to the extent to which the International Organisations Act allows the Commonwealth to meet this obligation. This item resolves the question by allowing for a general exemption from sales tax on goods for the official use of international organisations with headquarters in Australia.
New subsection 11A(5) ensures that there is no implied mutual exclusion between privileges and immunities for an international organisation under this section and under section 6. In effect, the new section is an adjunct to section 6 for a limited class of international organisations, that is, those with headquarters in Australia.
This item operates prospectively only. A related item (Item 10) deals with recovery of amounts referable to sales tax paid before the commencement of this item.
Item 7 - Conferral of juridical personality and legal capacity
Conferral of juridical capacity on a given international organisation is authorised by subparagraph 6(1)(a)(i) of the International Organisations Act which requires that the organisation meet the definition, in subsection 3(1), of an international organisation to which this Act applies, that is, to be eligible also for privileges and immunities. This item removes that requirement and so allows a much wider range of international organisations to have their legal status clarified and function as ordinary non-privileged legal persons under Australian domestic law. They could be subject to civil and criminal jurisdiction, enter into contracts and buy, own and sell property.
Item 8 - Simultaneous entry into force of treaty and regulations
The effect of Part XII of the Acts Interpretation Act 1901 on the regulations under the International Organisations Act is twofold. Firstly, it requires that the commencement of any regulation must either be expressed to occur on a date certain or take place on gazettal of the regulation, but not on the happening of a specified event such as the coming into force for Australia of an international agreement, even though the regulations are for the purpose of discharging Australia's obligations under the agreement.
This has created problems, particularly in relation to multilateral treaties. Entry into force of these treaties is often stipulated to depend on the fulfilment of the condition that a certain number of ratifications be deposited. In such situations Australia has had the choice of either refraining from becoming an original party or enacting the necessary regulations after the entry into force of the treaty, so putting Australia technically in breach of the treaty until this is done.
Secondly, a reference in a regulation to another document, such as an international agreement, may only be to an instrument that has actually come into existence, not one that is in merely in draft form and may, at least in theory, never enter into force. This could lead to a logical deadlock, each part of the process requiring the prior fulfilment of the other, unless entry into force of the regulations is set for a date well into the future and the Commonwealth somehow contrives to have the agreement itself enter into force for Australia on that date.
The previous options as to commencement dates in paragraph 48(1)(b) of the Acts Interpretation Act 1901 are contained in subclause 9(1) of the Legislative Instruments Bill 1997, as before Parliament on the date of introduction of this Bill. However, these options are now expressly stated in subclause 9(2) to yield to any contrary provision in another enabling Act. New subsection 13(2) constitutes such a provision. It will be possible for regulations granting privileges and immunities to an international organisation to be expressed to enter into force on a day fixed by Ministerial determination. This day will generally be the date on which the relevant treaty comes into force for Australia. It may not be an earlier date.
This will allow regulations to be made as soon as Australia's obligations are known but to come into force only when the treaty itself does. The date fixed by the determination cannot precede the entry into force of the treaty for Australia. This eliminates the possibility that the regulations would be invalid because the membership condition in section 5 has not yet been fulfilled.
Item 9 - Spelling of "organisation(s)"
The spelling of "organisation(s)" throughout the International Organisations Act is modernised to accord with Government legislative drafting practice. This involves consequential amendments in Item 2 and in Schedule 2 to other Acts where the name of the Act is cited or the concept of international organisation is defined.
Item 10 - Sales tax exemptions for headquarters
This is a transitional provision allowing for the refund of amounts equivalent to sales tax already paid by an organisation since establishing its headquarters in Australia where the existing administrative arrangements, such as a taxation ruling issued by the Commissioner of Taxation, have not covered that organisation. Its operation is contingent on regulations being made under new section 11A (see Item 6) within 90 days of the item's commencement, whereupon the organisation concerned has a further 90 days to lodge its claim.
By subitem 10(2), the claim may relate to transactions entered into between the time of the organisation's establishment of its headquarters in Australia and the entry into force of the regulations under section 11A of the International Organisations Act.
Nuclear Safeguards Act
Introduction
The Bill amends the Nuclear Safeguards Act to give effect to Australia's international obligations under a Protocol additional to the Agreement between Australia and the IAEA for the Application of Safeguards in connection with the Treaty on the Non-Proliferation of Nuclear Weapons (the Protocol). Implementation is achieved by extending the Act to incorporate references to the Protocol, allowing for expanded declarations of nuclear and nuclear related activities, expanding the powers of IAEA inspectors under the Act to improve access to nuclear-related sites and clarifying that ASO inspectors can act to facilitate such access.
The Protocol between Australia and the IAEA is expected to enter into force by early 1998. It is based on a Model Protocol, intended to be concluded by all states, which was developed as a comprehensive global response to limitations within the IAEA's classical nuclear safeguards system which were highlighted following the discovery of Iraq's clandestine nuclear weapons program in the aftermath of the Gulf War.
The Model Protocol provides the new standard for comprehensive nuclear safeguards agreements between individual IAEA member states and the IAEA. It contains measures to enhance the IAEA's ability to detect undeclared nuclear activities, principally through new technical methods such as environmental sampling techniques, improved access at nuclear sites, new access rights to nuclear-related sites, and improved availability and analysis of nuclear-related information.
The practical impact of the Protocol in Australia will be very minor. The IAEA will, for example, be able to have access to a uranium mine site or concentration plant in particular circumstances in order to assure the absence of undeclared nuclear material.
The order of Items 11 to 25 in the Bill reflects the existing structure of the Nuclear Safeguards Act. These Notes are ordered following the policy objectives behind the amendments.
Item 11 - Objects of the Act
Subsection 3(1) of the Nuclear Safeguards Act specifies its principal object. Item 11 extends subsection 3(1) to provide that the principal object of the Act includes giving effect to Australia's obligations under Supplementary Agency Agreements. The Protocol is a Supplementary Agency Agreement.
Items 12 to 14 and 16 - Supplementary Agency Agreements
Item 16 establishes a mechanism for giving effect both to the Protocol and to any future agreements which supplement the basic Agency Agreement between Australia and the IAEA (that is, the Agreement between Australia and the International Atomic Energy Agency for the Application of Safeguards in connection with the Treaty on the Non-Proliferation of Nuclear Weapons signed on behalf of Australia on 10 July 1974).
New section 4A(1) creates the concept of Supplementary Agency Agreements. Such Agreements are defined to mean any IAEA agreement that is additional to the Agency Agreement including a Supplementary Agency Agreement as amended from time to time.
Consistent with the terms of subsection 4(3) of the Nuclear Safeguards Act, new section 4A(2) provides that an IAEA agreement, or an amendment of an IAEA agreement, will not have effect for the purposes of the Act unless the agreement or amendment, as the case may be, is declared by the regulations to have effect for the purposes of the Act. Similarly, the new section 4A(3) provides that an IAEA agreement, or an amendment of an IAEA agreement, will take effect for the purposes of the Act from the day on which the regulations referred to in section 4A(2) take effect or such later day as is specified in those regulations.
Together subsections 4A(2) and (3) ensure that an IAEA agreement or an amendment to an IAEA agreement will not automatically have effect for the purposes of the Act. Rather, to be effective the agreement or amendment must be declared by the regulations. Any such declaration will be a legislative (disallowable) instrument. These requirements thus provide an opportunity for Parliamentary scrutiny of any supplementary IAEA agreement or amendment thereto declared under section 4A.
Section 4A(4) clarifies the scope of the term IAEA agreement in section 4A by making it plain that the phrase does not encompass the Agency Agreement itself or an agreement that amends the text of the Agency Agreement. That is, the term IAEA agreement catches all agreements between Australia and the IAEA apart from the basic Agency Agreement and agreements which directly amend the text of the Agency Agreement. An agreement which merely supplements or modifies the effect of or is additional to the Agency Agreement - as opposed to amending it - will thus come within the definition of IAEA agreement in section 4A.
The rationale for this approach is that in addressing the relationship between the Protocol and the Agency Agreement, Article 1 of the Protocol provides that the provisions of the Agency Agreement are to continue to apply to the extent that they are relevant to and compatible with the provisions of the Protocol. However, in the case of conflict between the provisions of the Agency Agreement and those of the Protocol, Article 1 stipulates that the provisions of the Protocol will apply. The Protocol thus has the potential to modify the effect or operation of the Agency Agreement in instances of conflict between the two texts but it could not be said to directly amend the text of the Agency Agreement.
The effect of new subsection 4A(4) is reinforced by the terms of subsection 4(1) of the Act, as amended in accordance with Item 12.
Item 13 inserts a definition of amendment into the Act's interpretation provision (section 4). The definition makes it clear that the term amendment is to be construed narrowly in the Act such that it encompasses actual amendments of the text of a document but does not, for example, include modifications or additions to the operation of a document effected by other documents which do not expressly purport to amend the text of the original document.
Item 14 simply includes a reference to Supplementary Agency Agreement in section 4 to flag the fact that the phrase is actually defined in the new section 4A.
Item 15 - Interpretation: Inspection and Access
The extended access rights provided for in the Protocol go beyond the concept of inspection contained in the Agency Agreement. To address this, item 15 adds a new subsection 4(10) to the interpretation provision of the Nuclear Safeguards Act providing that a reference in the Act to an inspection by an Agency inspector includes a reference to access by the inspector.
Item 17 - Application of Act
Subsections 8(1) and (2) provide that the provisions of the Nuclear Safeguards Act have effect in relation to all nuclear material and all associated items (as defined in section 4) respectively.
Without prejudice to subsection 8(2), subsection 8(3) provides further particulars regarding the application of the Act to an associated item. Thus paragraph 8(3)(a) provides that the provisions of the Act have effect in relation to an associated item the control of which is appropriate to give effect to obligations that Australia has as a party to the Nuclear Non-Proliferation Treaty, the Agency Agreement, or a prescribed international agreement. Item 17 extends this reference to include an associated item the control of which is appropriate to give effect to obligations that Australia has as a party to a Supplementary Agency Agreement.
Item 18 - Permit to possess nuclear material or associated items
Subsections 13(1) and (2) of the Nuclear Safeguards Act provide that the Minister may grant a permit to possess nuclear material or an associated item subject to such conditions as are determined by the Minister and specified in the permit. Pursuant to paragraph 13(3)(j), a permit may include conditions in respect of the reports to be furnished , and inspections to be permitted in respect of nuclear material or an associated item. Subsection 13(6) of the Act provides that, without limiting the generality of paragraph 13(3)(j), a condition of a permit under subsection 13(1) in respect of inspections to be permitted in respect of nuclear material or an associated item may make provision in relations to inspections by Agency (that is, IAEA) inspectors pursuant to the Agency Agreement.
Item 18 extends subsection 13(6) to make it clear that the Minister's power to impose conditions in respect of reports and inspections includes to power to make provision for inspections by IAEA inspectors pursuant to the terms of the Agency Agreement or a Supplementary Agency Agreement.
Item 19 - Functions of the Director
Section 43 of the Nuclear Safeguards Act lists the functions of the Director of Safeguards. In particular, paragraph 43(b) provides a function of the Director is to carry out, on behalf of Australia, the obligations that Australia has under the Agency Agreement and other prescribed international agreements to report in relation to the operation of the Australian safeguards system. Item 19 extends the terms of paragraph 43(b) to include an additional responsibility to carry out reporting obligations under any Supplementary Agency Agreements.
Item 20 - Designation of Inspectors and IAEA inspectors
Subsection 57(2) Nuclear Safeguards Act provides in effect that where the Minister is satisfied that a person has, in accordance with the Agency Agreement, been designated by the IAEA to be an IAEA inspector for Australia, the Minister is required to declare in writing that person to be an IAEA inspector.
Item 20 extends subsection 57(2) to make it plain that where a person has in accordance with a Supplementary Agency Agreement been designated by the IAEA to be an IAEA inspector for Australia the Minister is required to declare in writing that person to be an IAEA inspector.
Item 21 - Safeguards inspections by Australian inspectors
Section 59 of the Nuclear Safeguards Act confers powers on Australian inspectors appointed by the Minister under section 57 of the Act and outlines the circumstances in which an inspector can exercise his/her powers.
In particular, paragraph 59(1)(e) of the Act permits an Australian safeguards inspector to exercise his/her powers to facilitate an inspection by an IAEA inspector "in accordance with Articles 71 to 90 (inclusive) of the Agency Agreement".
Item 21 amends paragraph 59(1)(e) so as to omit the specific reference to "Articles 71 to 90 (inclusive) of the Agency Agreement" and substitute a general reference to "the Agency Agreement of a Supplementary Agency Agreement".
The purpose of the amendment is to extend paragraph 59(1)(e) so as to expressly provide that Australian safeguards inspectors can act to facilitate inspections by IAEA inspectors conducted in accordance with the Agency Agreement or a Supplementary Agency Agreement. In doing so however, it proved necessary to omit the specific references to paragraphs 71 to 90 of the Agency Agreement (dealing with the Agency's inspection provisions) because the rights of access provided for under the Protocol are more extensive than the inspections provided for in these paragraphs.
Items 22 to 24 - Safeguards inspections by IAEA inspectors
Section 60 of the Nuclear Safeguards Act sets out the powers of entry and inspection conferred on IAEA inspectors for the purposes of carrying out inspections in accordance with the Agency Agreement. These powers include powers to inspect, take samples, examine documents, measure nuclear material, and to install, operate calibrate and verify containment and surveillance devices. They may enter premises and land with the consent of the occupier or in accordance with an agreement between the Director of Safeguards and the occupier. Also an Australian inspector may take out a warrant to effect entry to facilitate an inspection by an Agency inspector, and an Agency inspector may then accompany the Australian inspector to carry out an inspection.
Under the Protocol IAEA inspectors have a right to extended access to any location on a nuclear site, to various locations included in an expanded declaration on nuclear and nuclear-related activities to be provided by Australia and to other locations in Australia to carry out environmental sampling to assure the absence of undeclared nuclear material and activities. Access on nuclear sites can be short notice, that is, two hours or less, if carried out with a routine inspection (which can be unannounced). At other locations advance notice of at least 24 hours must be given. Access can take place only during regular working hours and the IAEA inspectors must be accompanied by an ASO inspector.
Items 22 to 24 (inclusive) extend the powers of entry and inspection conferred on IAEA inspectors to enable them to carry out inspections in accordance with a Supplementary Agency Agreement.
Specificall y, Item 22 amends paragraph 60(1)(h) (the power to do any other act or thing necessary or appropriate to be done in order to carry out an IAEA inspection under the Agency Agreement) so as to omit the current reference to "Articles 71 to 90 (inclusive) of the Agency Agreement" and substitute a reference to "the Agency Agreement or a Supplementary Agreement".
Similarly, Item 23 amends subsection 60(2) to make it clear that an IAEA inspector may enter premises and land with the consent of the occupier or in accordance with an agreement between the Director of Safeguards to carry out an inspection the IAEA has a right to make under the Agency Agreement or a Supplementary Agency Agreement.
Finally, Item 24 amends subsection 60(3) to allow an IAEA inspector to accompany an Australian inspector who has taken out a warrant to facilitate an IAEA inspection under the Agency Agreement or a Supplementary Agency Agreement.
Item 25 - Powers to be exercised in accordance with international agreements
Section 70 of the Nuclear Safeguards Act broadly provides that the Minister, the Director of Safeguards, inspectors and other persons must exercise their powers, directions, duties or functions under the Act consistently with Australia's obligations under the relevant international agreements.
Item 25 includes Supplementary Agency Agreements in the list of relevant international agreements contained in subsection 70(4).
Passports Act 1938
Item 26 - Penalty for making false statements
Subsection 10(1) of the Passports Act 1938 makes it an offence to make a false or misleading statement for the purpose of obtaining an Australian passport or in support of an application by another for an Australian passport. This amendment adds the mental element of recklessness in forming the intention to commit the offence. Previously, the offence only contained the mental element, "knowingly". This amendment follows an unsuccessful prosecution in which the facts clearly showed recklessness but the Magistrate was not satisfied a false statement had been made knowingly. It is expected that the Criminal Code's interpretation of reckless would apply to the term in the Passports Act 1938.
Schedule 2 - Amendments of Acts relating to matters dealt with by other Departments
All items in this Schedule are consequential to Item 9 of Schedule 1 and merely amend the spelling of "organisation(s)".