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This Act may be cited as the Nuclear Non‑Proliferation (Safeguards) Act 1987.
Sections 1 and 2 shall come into operation on the day on which this Act receives the Royal Assent.
The remaining provisions of this Act shall come into operation on such day as is, or on such respective days as are, fixed by Proclamation.
The principal object of this Act is to give effect to certain obligations that Australia has as a party to the Non‑Proliferation Treaty, the Agency Agreement, the Supplementary Agency Agreements and the prescribed international agreements.
A further object of this Act is to give effect to certain obligations that Australia has as a party to the Physical Protection Convention.
A further object of this Act is to give effect to certain obligations that Australia has as a party to the Nuclear Terrorism Convention.
In this Act, unless the contrary intention appears:
Agency means the International Atomic Energy Agency established by the Agency Statute.
Agency Agreement means 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, being the Agreement which was signed on behalf of Australia on 10 July 1974, a copy of which is set out in Schedule 3, and:
subject to subsection (3), includes that Agreement as amended from time to time; and
subject to section 4A, includes that Agreement as modified from time to time by the Supplementary Agency Agreements.
Agency inspector means a person declared, pursuant to subsection 57(2), to be an Agency inspector for the purposes of this Act.
Agency Statute means the Statute of the International Atomic Energy Agency, being the Statute which was signed on behalf of Australia on 14 December 1956 and, subject to subsection (3), includes that Statute as amended from time to time.
amendment, in relation to a document, means an amendment of the text of the document.
appoint includes re‑appoint.
approved form means a form approved by the Minister.
APS Code of Conduct means the Code of Conduct (within the meaning of the Public Service Act 1999).
article includes document, substance or equipment.
associated equipment means equipment or plant that:
is specially designed, manufactured or built for use, or is specially suited (whether with or without modification or adaptation) for use, in:
nuclear activities; or
the production of nuclear weapons or other nuclear explosive devices; and
is included in a class of equipment or plant that is declared by the Minister, in writing, to be associated equipment for the purposes of this definition;
and includes a component or part of such equipment or plant.
associated item means:
associated material;
associated equipment; or
associated technology.
associated material means any material (other than nuclear material, associated equipment or associated technology) that:
is of a kind specially suited for use in nuclear activities, the construction of a nuclear reactor or the production of nuclear weapons or other nuclear explosive devices; and
is included in a class of material that is declared by the Minister, in writing, to be associated material for the purposes of this definition.
associated technology means any document that contains information (other than information that is lawfully available, whether within Australia or outside Australia and whether for a price or free of charge, to the public or a section of the public):
that is applicable primarily to the design, production, operation, testing or use of:
equipment or plant for:
the enrichment of nuclear material;
the reprocessing of irradiated nuclear material; or
the production of heavy water; or
nuclear weapons or other nuclear explosive devices; or
to which a prescribed international agreement applies and that is of a kind declared by the Minister, in writing, to be information to which this definition applies;
and includes any photograph, model or other thing from which such information may be obtained or deduced.
Australian aircraft means:
an aircraft registered, or required to be registered, under regulations made under the Civil Aviation Act 1988; or
an aircraft that is owned by, or is in the possession or control of, the Commonwealth or an authority of the Commonwealth; or
an aircraft of any part of the Defence Force (including an aircraft that is being commanded or piloted by a member of that Force in the course of the member’s duties as such a member).
Australian safeguards system means the system of accounting for and control of nuclear material and associated items that is established by:
this Act;
the regulations; and
orders and directions under section 73.
Australian ship means:
a ship registered in Australia; or
an unregistered ship that has Australian nationality.
authority means an authority granted under section 18.
Commonwealth officer means:
a person appointed or engaged under the Public Service Act 1999; or
an officer or employee of a prescribed authority of the Commonwealth;
the holder of an office established by a law of the Commonwealth; or
a member of the Defence Force.
containment device means a wall, container or other physical barrier, or other device, that is being used, pursuant to a condition of a permit or pursuant to an order or direction under section 73, to prevent, restrict or control the movement of or access to:
nuclear material or an associated item; or
a nuclear facility; or
information relating to:
the location of nuclear material or an associated item or the quantity of nuclear material or associated material at a particular location; or
the safeguards aspects of the design or operation of a nuclear facility, containment device or surveillance device.
Director means the Director of Safeguards.
enrich, in relation to nuclear material, means increase:
the abundance in the material of one isotope of an element in relation to the abundance of another isotope or other isotopes of that element; or
the ratio in the material of one isotope of an element to the total of the isotopes of that element.
Foreign Affairs Minister means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
identity card means an identity card issued under section 58.
Immigration Minister means the Minister administering the Migration Act 1958.
inspector means a person appointed as an inspector under subsection 57(1).
international agreement includes an international treaty or convention.
international organisation means:
an organisation of which 2 or more countries, or the Governments of 2 or more countries, are members;
an organisation that is constituted by the representatives of 2 or more countries, or the Governments of 2 or more countries; or
an organisation established by, or a group of organisations constituted by:
organisations of which 2 or more countries, or the Governments of 2 or more countries, are members; or
organisations that are constituted by the representatives of 2 or more countries, or the Governments of 2 or more countries.
Non‑Proliferation Treaty means the Treaty on the Non‑Proliferation of Nuclear Weapons, being the Treaty which was signed on behalf of Australia on 27 February 1970, a copy of the English text of which is set out in Schedule 2, and, subject to subsection (3), includes that Treaty as amended from time to time.
nuclear activities means:
the operation of a nuclear reactor, whether for the purposes of generating power or otherwise;
the enrichment of nuclear material;
the reprocessing of irradiated nuclear material; or
any other activity (including storage) that forms part of the nuclear fuel cycle.
nuclear facility means a facility within the meaning of the Agency Agreement.
nuclear fuel cycle has the same meaning as it has when used in the Agency Agreement.
nuclear material has the same meaning as in the Agency Agreement.
Nuclear Terrorism Convention means the International Convention for the Suppression of Acts of Nuclear Terrorism, done at New York on 13 April 2005, as amended and in force for Australia from time to time.
In 2012, the text of the Convention was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
offence against this Act includes:
an offence against the regulations;
an offence against section 6 of the Crimes Act 1914 in relation to an offence against this Act or the regulations; and
an offence against section 11.1, 11.4 or 11.5 of the Criminal Code in relation to an offence against this Act or the regulations.
paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).
permit means a permit under section 13, 16, 16A or 16B.
Physical Protection Convention means the Convention on the Physical Protection of Nuclear Material, being the Convention which was signed on behalf of Australia on 22 February 1984, a copy of the English text of which is set out in Schedule 4, and, subject to subsection (3), includes that Convention as amended from time to time.
prescribed authority of the Commonwealth means an authority of the Commonwealth prescribed by the regulations for the purposes of this definition.
prescribed international agreement means:
an agreement the title of which is set out in Schedule 5; or
an agreement between Australia and a foreign country or foreign countries in relation to nuclear safeguards or the peaceful use of nuclear material or associated items, being an agreement that is prescribed by the regulations for the purposes of this definition;
and, subject to subsection (3), includes such an agreement as amended from time to time.
Register means the Register of Permit and Authority Holders kept in accordance with section 69.
reprocess, in relation to irradiated nuclear material, means separate uranium or plutonium from fission products in the material.
serious misconduct has the meaning given by subsection 48(1A).
Supplementary Agency Agreement has the meaning given by section 4A.
surveillance device means a seal, camera, closed‑circuit television system or other device that is being used, pursuant to a condition of a permit or pursuant to an order or direction under section 73, to detect:
movements of nuclear material or an associated item; or
movements of a person or thing past or through a containment device; or
circumvention of a containment device or surveillance device; or
interference with a containment device or surveillance device; or
the falsification of records relating to:
the location of nuclear material or an associated item; or
the quantity of nuclear material or associated material at a particular location.
A reference in the definition of prescribed international agreement in subsection (1) to a foreign country includes a reference to an international organisation.
An amendment to the Agency Agreement, the Agency Statute, the Non‑Proliferation Treaty, the Physical Protection Convention or a prescribed international agreement:
does not have effect for the purposes of this Act unless the amendment is declared by the regulations to have effect for the purposes of this Act; and
takes effect for the purposes of this Act from the day on which the regulations referred to in paragraph (a) take effect or such later day as is specified in those regulations.
Where the Board of Governors of the Agency makes a determination of the kind referred to in the definition of special fissionable material, or source material, in Article XX of the Agency Statute (a copy of the English text of which is set out in Schedule 1), the determination does not have effect for the purposes of this Act unless and until the regulations declare that the determination is to have effect for the purposes of this Act.
Where regulations are made for the purposes of subsection (4) in relation to a determination of the Board of Governors of the Agency, the determination shall be taken, for the purposes of the definition of nuclear material in the Agency Agreement, to be accepted by Australia.
Where a person gives another person, or allows another person to take, possession of associated technology, the first‑mentioned person shall, for the purposes of this Act, be taken to have communicated to that other person the information that is contained in, or that may be obtained or deduced from, that associated technology.
Declarations made under the definitions of associated equipment, associated material and associated technology in subsection (1) are legislative instruments.
A reference in this Act to an inspection by an Agency inspector includes a reference to access by the inspector.
For the purposes of this Act, Supplementary Agency Agreement means an IAEA agreement that is additional to the Agency Agreement, and includes such an IAEA agreement as amended from time to time.
An IAEA agreement, or an amendment of an IAEA agreement, does not have effect for the purposes of this Act unless the agreement or amendment, as the case may be, is declared by the regulations to have effect for the purposes of this Act.
An IAEA agreement, or an amendment of an IAEA agreement, takes effect for the purposes of this Act from:
the day on which the regulations referred to in subsection (2) take effect; or
such later day as is specified in those regulations.
In this section:
IAEA agreement means an agreement between Australia and the International Atomic Energy Agency, but does not include:
the Agency Agreement; or
an agreement that amends the Agency Agreement.
Where it is necessary, for the purposes of this Act, to establish the state of mind of a body corporate in respect of conduct engaged in, or deemed by subsection (2) to have been engaged in, by the body corporate, it is sufficient to show that a director, employee or agent of the body corporate, being a director, employee or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.
Any conduct engaged in on behalf of a body corporate:
by a director, employee or agent of the body corporate within the scope of his or her 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, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;
shall be deemed, for the purposes of this Act, to have been engaged in by the body corporate.
Where it is necessary, for the purposes of this Act, to establish the state of mind of a person in relation to conduct deemed by subsection (4) to have been engaged in by the person, it is sufficient to show that an employee or agent of the person, being an employee or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.
Conduct engaged in on behalf of a person other than a body corporate:
by an employee or agent of the person within the scope of his or her actual or apparent authority; 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 first‑mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;
shall be deemed, for the purposes of this Act, to have been engaged in by the first‑mentioned person.
A reference in this section 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 person’s 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, of a State or of a Territory.
This Act extends to every external Territory.
This Act binds the Crown in each of its capacities.
This Act does not make the Crown liable to be prosecuted for an offence.
This section does not apply in relation to Division 2A of Part III (which deals with offences relating to the Nuclear Terrorism Convention).
The provisions of this Act have effect in relation to all nuclear material.
The provisions of this Act have effect in relation to all associated items.
Without prejudice to their effect by virtue of subsection (2), the provisions of this Act have effect in relation to an associated item:
control of which is appropriate to give effect to obligations that Australia has as a party to the Non‑Proliferation Treaty, the Agency Agreement, a Supplementary Agency Agreement or a prescribed international agreement (including the obligation that Australia has under Article II of the Non‑Proliferation Treaty not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices);
that is owned by, or is in the possession or control of, a trading corporation or foreign corporation;
that is situated in a Territory or is owned by or in the possession or control of:
a resident of a Territory; or
a corporation established by or under a law of a Territory;
that is in the course of trade or commerce:
between Australia and places outside Australia;
among the States; or
within a Territory, between a State and a Territory or between 2 Territories;
that is supplied to the Commonwealth or an authority or instrumentality of the Commonwealth;
that is owned by, or is in the possession or control of, the Commonwealth or an authority or instrumentality of the Commonwealth; or
that is in the course of transmission through postal, telegraphic, telephonic or a like service.
Without prejudice to their effect by virtue of subsection (3), the provisions of this Act have effect in relation to an associated item that is owned by, or is in the possession or control of, a trading corporation in the course of the trading activities of the trading corporation.
Without prejudice to their effect by virtue of subsection (2), the provisions of this Act have effect in relation to an associated item control of which is appropriate to give effect to obligations that Australia has as a party to the Physical Protection Convention.
The provisions of this Act have effect in relation to all information of the kinds referred to in the definition of associated technology in subsection 4(1).
Without prejudice to their effect by virtue of subsection (6), the provisions of this Act have effect in relation to information of the kinds referred to in the definition of associated technology in subsection 4(1):
control of which is appropriate to give effect to obligations that Australia has as a party to the Non‑Proliferation Treaty, the Agency Agreement or a prescribed international agreement (including the obligation that Australia has under Article II of the Non‑Proliferation Treaty not to manufacture or otherwise acquire nuclear weapons or other explosive nuclear devices);
communicated by a trading corporation or foreign corporation;
communicated in a Territory or communicated by:
a resident of a Territory; or
a corporation established by or under a law of a Territory;
communicated in the course of trade or commerce:
between Australia and places outside Australia;
among the States; or
between a State and a Territory or between 2 Territories;
communicated by an authority or instrumentality of the Commonwealth; or
communicated in the course of transmission through postal, telegraphic, telephonic or a like service.
Without prejudice to their effect by virtue of subsection (7), the provisions of this Act have effect in relation to information of the kinds referred to in the definition of associated technology in subsection 4(1) communicated by a trading corporation in the course of the trading activities of the trading corporation.
Without prejudice to their effect by virtue of subsection (6), the provisions of this Act have effect in relation to information of the kinds referred to in the definition of associated technology in subsection 4(1) control of which is appropriate to give effect to obligations that Australia has as a party to the Physical Protection Convention.
In this section:
foreign corporation has the same meaning as in paragraph 51(xx) of the Constitution.
postal, telegraphic, telephonic or a like service has the same meaning as in paragraph 51(v) of the Constitution.
trading corporation means a trading corporation, within the meaning of paragraph 51(xx) of the Constitution, formed within the limits of the Commonwealth.
Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act.
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
This Part applies to all nuclear material other than:
nuclear material in respect of which a declaration under subsection 11(1) is in force;
nuclear material in respect of which a declaration under subsection 11(3) is in force; and
nuclear material that, in accordance with the regulations, is nuclear material of a kind to which this Part does not apply.
This Part applies to associated items other than:
items in respect of which a declaration under subsection 11(7) is in force; and
items that, in accordance with the regulations, are associated items of a kind to which this Part does not apply.