1Short title
This Act may be cited as the Chemical Weapons (Prohibition) Act 1994.
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This Act may be cited as the Chemical Weapons (Prohibition) Act 1994.
Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.
Subject to subsections (3) and (4), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.
Subject to subsection (4), if a provision referred to in subsection (2) does not commence on an earlier day, that provision commences on the day on which the Convention enters into force.
Despite the fact that the provisions of Part 5 are proclaimed to commence at an earlier time, the provisions of that Part, in so far as they permit international compliance inspections of OCP facilities, do not operate until a date:
that is proclaimed for the purpose of this subsection; and
that is not earlier than the third anniversary of the day on which the Convention enters into force.
The object of this Act is to give effect to certain obligations that Australia has as a party to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction.
This Act extends to the external Territories.
Subject to this Act, this Act extends to acts done or omitted to be done by an Australian citizen outside Australia and the external Territories or to acts done on board Australian ships and aircraft.
Extended geographical jurisdiction applies to the offence against section 12.
In subsection (1):
Australian ships and aircraft means ships and aircraft registered in Australia or belonging to, or in the possession of, the Commonwealth or a State.
This Act binds the Crown in all its capacities.
Nothing in this Act renders the Crown liable to be prosecuted for an offence.
In this Act, unless the contrary intention appears:
challenge inspection means an inspection declared by the Minister to be a challenge inspection under section 47 and carried out under Division 3 of Part 5.
challenge inspection site means a site that is declared by the Minister to be a challenge inspection site.
Chemical Weapons Convention Office means the Office referred to in section 88.
constable means a member or special member of the Australian Federal Police or a member of the police force of a State or Territory.
consumption facility means a facility:
that is covered by a permit required under subsection 16(1) and designated in the permit as a consumption facility; or
that was so covered and designated but is now covered by a notification required under subsection 28(1).
Controller means the Controller of Permits and Notifications referred to in section 90.
Convention means the Convention (including the annexes to the Convention) a copy of the English text of which is set out in the Schedule, as amended by any amendment to the Convention that is accepted by Australia and a copy of the English text of which is set out in the regulations.
data storage device means any article or material (for example, a disk) from which information is capable of being reproduced with or without the aid of any other article or device.
declared facility means:
in a provision of the Act other than a provision relating to an international compliance inspection—a Schedule 1, 2 or 3 facility or an OCP facility; and
in a provision of the Act relating to an international compliance inspection—a Schedule 1 facility, a facility referred to in section 40 or 41, or an OCP facility.
Director means the Director of the Chemical Weapons Convention Office referred to in section 86.
facility means a particular plant site comprising one or more plants.
facility agreement, in respect of a particular facility, means an agreement or arrangement entered into under section 76 between the Minister, on behalf of Australia, and the Organization setting out detailed inspection procedures to be followed in respect of an international compliance inspection, or a challenge inspection, of that facility:
at which the production, acquisition, retention or use, or from which the transfer, of a Schedule 1 chemical takes place; or
at which the production, processing or consumption of a Schedule 2 chemical takes place; or
at which the production of a Schedule 3 chemical or of an unscheduled discrete organic chemical takes place.
foreign country inspector means a person declared to be a foreign country inspector by the Minister under section 49.
inspection team means the national inspector and any person assisting the national inspector.
international compliance inspection means an inspection carried out under Division 2 of Part 5.
national inspector means the Director or person holding an appointment as a national inspector under section 92.
non State Party means a State that is not a signatory to the Convention.
notification, in relation to a facility and a year, means a notification to the Director required under section 28 in relation to that facility and that year.
notification year means:
in relation to a Schedule 1, 2 or 3 facility—the year when a permit that is, was or would have been in force, gives rise to the obligation to notify; or
in relation to an OCP facility—the year when the level of production gives rise to the obligation to notify.
observer means a person declared by the Minister to be an observer under section 48.
occupier, in relation to a declared facility, challenge inspection site or other premises, includes a person present at the facility, site or premises who apparently represents the occupier.
OCP facility means a facility covered by a notification required under subsection 28(6).
operator, in relation to a facility, means the person having ultimate responsibility, as distinct from day‑to‑day management, in relation to operations carried on at the facility and includes the legal personal representative, administrator and other successor in title of that person.
Organization means the Organization for the Prohibition of Chemical Weapons established under the Convention.
Organization inspector means a person declared by the Minister to be an Organization inspector under section 100.
permit means a permit granted under section 18 and includes such a permit as renewed under section 19A or 20.
permit year, in relation to a Schedule 1, 2 or 3 facility, means a year during which a permit is in force in respect of that facility.
person assisting the national inspector, in relation to the execution of a warrant:
means a person authorised by the national inspector to assist in the execution of the warrant; and
if the inspection is conducted under Division 2 or 3 of Part 5—includes an Organization inspector or a foreign country inspector accompanying the national inspector.
premises includes a place and a conveyance.
protective facility means a facility (if any):
that is covered by a permit required under subsection 16(1) and designated in the permit as a protective facility; or
that was so covered and designated but is now covered by a notification required under subsection 28(1).
research facility means a facility:
that is covered by a permit required under subsection 16(1) and designated in the permit as a research facility; or
that was so covered and designated but is now covered by a notification required under subsection 28(1).
Schedule 1 chemical means a chemical listed in Schedule 1 to the Convention.
Schedule 1 facility means:
a single small‑scale facility; or
a protective facility; or
a research facility; or
a consumption facility.
Schedule 2 chemical means a chemical listed in Schedule 2 to the Convention.
Schedule 2 facility means a facility covered by a permit required under subsection 16(2) or a notification required under subsection 28(2).
Schedule 2 permit threshold, in relation to a Schedule 2 chemical, means:
if the chemical is listed in Part A of Schedule 2 to the Convention and designated with an “*”—1 kilogram; or
if the chemical is listed in Part A of Schedule 2 to the Convention but is not designated with an “*”—100 kilograms; or
if the chemical is listed in Part B of Schedule 2 to the Convention—1 tonne.
Schedule 3 chemical means a chemical listed in Schedule 3 to the Convention.
Schedule 3 facility means a facility covered by a permit required under subsection 16(3) or a notification required under subsection 28(4).
scheduled chemical means a chemical that is listed in Schedule 1, 2 or 3 to the Convention.
single small‑scale facility means a small‑scale facility (if any):
that is covered by a permit required under subsection 16(1) and designated in the permit as a single small‑scale facility; or
that was so covered and designated but is now covered by a notification required under subsection 28(1).
State Party means a State that is a signatory to the Convention.
unscheduled discrete organic chemical means a discrete organic chemical not listed in Schedule 1, 2 or 3 to the Convention.
vehicle includes a hovercraft.
vessel means a ship, boat, raft or pontoon or any other thing capable of carrying persons or goods through water, but does not include a hovercraft.
Unless the contrary intention appears, an expression that is used both in this Act and in the Convention but is not defined in subsection (1) (whether or not a particular meaning is assigned to it by the Convention) has, in this Act, the same meaning as in the Convention.
In this Act, a reference to an approved form or to an approved procedure is a reference to a form that is approved, or to a procedure that is approved, by written instrument, by the Director.
The Director may require or permit an application, notice or report that is to be given to the Controller or Director for the purposes of this Act to be given, in accordance with specified software requirements and specified authentication requirements:
on a specified kind of data storage device; or
by way of a specified kind of electronic transmission.
For the purposes of this Act, the regulations may provide that consumption, in relation to a specified chemical, has the meaning prescribed by the regulations.
For the purposes of this Act, the regulations may provide that processing, in relation to a specified chemical, has the meaning prescribed by the regulations.
For the purposes of this Act, the regulations may provide that production, in relation to a specified chemical, has the meaning prescribed by the regulations.
For specification by class, see subsection 13(3) of the Legislation Act 2003.
If, in a proceeding under this Act in respect of conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate in relation to particular conduct, it is sufficient to show:
that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
that the director, employee or agent had the state of mind.
Conduct engaged in on behalf of a body corporate:
by a director, employee or agent of the body corporate within the scope of the person’s actual or apparent authority; or
by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;
is taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
If, in a proceeding under this Act in respect of conduct engaged in by an individual, it is necessary to establish the state of mind of the individual, it is sufficient to show:
that the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and
that the employee or agent had the relevant state of mind.
Conduct engaged in on behalf of an individual:
by an employee or agent of the person within the scope of the actual or apparent authority of the employee or agent; or
by any other person at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the individual, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;
is taken, for the purposes of this Act, to have been engaged in also by that individual unless that individual establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.
If:
an individual is convicted of an offence; and
the individual would not have been convicted of the offence if subsections (3) and (4) had not been enacted;
the individual is not liable to be punished by imprisonment for that offence.
A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:
the knowledge, intention, opinion, belief or purpose of the person; and
the person’s reasons for the intention, opinion, belief or purpose.
A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.
A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
In determining:
the total amount of Schedule 1 chemicals that will be, or were, produced, acquired, retained or used at, or transferred from, a facility; or
the total amount of Schedule 2 chemicals that will be, or were, produced, processed or consumed, at a facility;
any amount of such a chemical that is, or was, subjected to more than one of those activities at that facility is to be counted once only.
In determining the amount of Schedule 1 chemicals that are produced, acquired, retained or used at, or transferred from, Schedule 1 facilities during a year, an amount of such a chemical that is subjected to any of those activities at more than one Schedule 1 facility during a year is to be counted once only.
For the purposes of this Act, the regulations may prescribe the method for working out the total amount of a specified Schedule 1 chemical that is produced, acquired, retained or used at, or transferred from, a facility during a year.
For the purposes of this Act, the regulations may prescribe the method for working out the total amount of a specified Schedule 2 chemical that is produced, processed or consumed at a plant comprising, or comprising part of, a facility during a year.
For the purposes of this Act, the regulations may prescribe the method for working out the total amount of a specified Schedule 3 chemical that is produced at a plant comprising, or comprising part of, a facility during a year.
For the purposes of paragraph 28(6)(a), the regulations may prescribe the method for working out the total amount of unscheduled discrete organic chemicals produced at a facility during a year.
For the purposes of paragraph 28(6)(b), the regulations may prescribe the method for working out the total amount of a specified unscheduled discrete organic chemical that is produced at a plant comprising, or comprising part of, a facility during a year.
A method prescribed under this section may involve disregarding a chemical when produced at or below a specified concentration.
Subsection (8) does not limit subsection (3), (4), (5), (6) or (7).
For specification by class, see subsection 13(3) of the Legislation Act 2003.
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