An Act to give effect to certain obligations that Australia has as a party to the South Pacific Nuclear Free Zone Treaty, and for related purposes
Part I—Preliminary
1 Short title
This Act may be cited as the South Pacific Nuclear Free Zone Treaty Act 1986.
2 Commencement
(1) Sections 1 to 7 (inclusive) shall come into operation on the day on which this Act receives the Royal Assent.
(2) 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.
3 Principal object of Act
The principal object of this Act is to give effect to certain obligations that Australia has as a party to the South Pacific Nuclear Free Zone Treaty.
4 Interpretation
(1) In this Act, unless the contrary intention appears:
Australia includes the external Territories.
Australian aircraft means:
(a) an aircraft registered or required to be registered under regulations made under the Civil Aviation Act 1988;
(b) an aircraft that is owned by, or is in the possession or control of, the Commonwealth or an authority of the Commonwealth; or
(c) 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 ship means:
(a) a ship registered in Australia; or
(b) an unregistered ship that has Australian nationality.
authorised officer means a person appointed as an authorised officer under subsection 19(3).
foreign aircraft has the same meaning as it has when used in the Treaty.
foreign ship has the same meaning as it has when used in the Treaty.
identity card means:
(a) in relation to an inspector—an identity card issued under section 58 of the Nuclear Non‑Proliferation (Safeguards) Act 1987; and
(b) in relation to an authorised officer—an identity card issued under section 20 of this Act.
inspector means a person appointed as an inspector under subsection 57(1) of the Nuclear Non‑Proliferation (Safeguards) Act 1987.
nuclear explosive device has the same meaning as in the Treaty.
offence against this Act includes:
(a) an offence against section 6 of the Crimes Act 1914 in relation to an offence against this Act; and
(b) an offence against section 11.1, 11.4 or 11.5 of the Criminal Code, being an offence in relation to an offence against this Act.
South Pacific Nuclear Free Zone Treaty means the treaty of that title that was done at Rarotonga and signed on behalf of Australia on 6 August 1985, a copy of which is set out in the Schedule, and, subject to subsection (2), includes that treaty as amended from time to time.
stationing has the same meaning as in the Treaty.
Treaty means the South Pacific Nuclear Free Zone Treaty.
Treaty inspection means an inspection by a Treaty inspector, in accordance with Annex 4 to the Treaty, in respect of a complaint brought against Australia pursuant to the Treaty.
Treaty inspector means a person declared, pursuant to subsection 19(1), to be a Treaty inspector for the purposes of this Act.
(2) An amendment to the Treaty:
(a) 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
(b) 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.
5 Conduct by directors, employees or agents
(1) 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.
(2) Any conduct engaged in on behalf of a body corporate:
(a) by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b) 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.
(3) 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.
(4) Conduct engaged in on behalf of a person other than a body corporate:
(a) by an employee or agent of the person within the scope of his or her actual or apparent authority; or
(b) 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.
(5) 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.
(6) 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.
6 Act to extend to external Territories
This Act extends to every external Territory.
7 Act to bind Crown
This Act binds the Crown in right of the Commonwealth, of each of the States, of the Northern Territory and of Norfolk Island, but nothing in this Act renders the Crown liable to be prosecuted for an offence.
7A Application of the Criminal Code
Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Part II—Prohibitions in relation to nuclear explosive devices
8 Manufacture, production and acquisition of nuclear explosive devices prohibited
(1) A person who undertakes or engages in the manufacture or production of a nuclear explosive device is guilty of an offence against this subsection.
(2) A person who acquires a nuclear explosive device is guilty of an offence against this subsection.
9 Research and development relating to manufacture or production of nuclear explosive devices prohibited
A person who undertakes or engages in research or development for the purpose of, or directed towards, the manufacture or production (whether by that person or otherwise) of a nuclear explosive device is guilty of an offence against this section.
10 Possession of, or control over, nuclear explosive devices prohibited
A person who:
(a) possesses a nuclear explosive device; or
(b) has control over a nuclear explosive device;
is guilty of an offence against this section.
11 Stationing of nuclear explosive devices in Australia prohibited
A person who stations, or does any act or thing to facilitate the stationing of, a nuclear explosive device in Australia is guilty of an offence against this section.
12 Testing of nuclear explosive devices prohibited
A person who undertakes or carries out a test of a nuclear explosive device is guilty of an offence against this section.
13 Facilitation of manufacture, production, acquisition or testing of nuclear explosive devices prohibited
A person who does any act or thing to facilitate the manufacture, production, acquisition or testing by any person (including a foreign country) of a nuclear explosive device (whether in or outside Australia) is guilty of an offence against this section.
14 Application of offence provisions outside Australia
(1) Sections 8, 9, 10, 12 and 13 extend to an act or thing done outside Australia if the act or thing is done:
(a) by the Commonwealth, a State or a Territory or an authority of the Commonwealth, a State or a Territory; or
(b) on an Australian ship or an Australian aircraft.
(2) Subsection (1) shall not be read as derogating from the effect of the Crimes at Sea Act 2000.
15 Visits of foreign ships and aircraft etc.
(1) Nothing in this Part makes it unlawful for a person (including the Commonwealth, a State or a Territory or an authority of the Commonwealth, a State or a Territory) to allow or facilitate:
(a) a visit to a port in Australia by a foreign ship;
(b) a visit to an airfield in Australia by a foreign aircraft;
(c) navigation through Australian waters by a foreign ship; or
(d) the transit through the airspace over Australia by a foreign aircraft;
whether or not Australia is required under international law to allow that visit, navigation or transit.
(2) No act done in relation to a nuclear explosive device that is on:
(a) a foreign ship exercising a right under international law to navigate through Australian waters;
(b) a foreign aircraft exercising a right under international law of transit through the airspace over Australia;
(c) a foreign ship visiting a port in Australia;
(d) a foreign aircraft visiting an airfield in Australia;
(e) a foreign ship navigating through Australian waters with the concurrence or acquiescence of the Commonwealth; or
(f) a foreign aircraft in transit through the airspace over Australia with the concurrence or acquiescence of the Commonwealth;
constitutes an offence against subsection 8(2) or section 10, 11 or 13.
(3) Section 10 does not apply to or in relation to a nuclear explosive device of a foreign country, being a nuclear explosive device that is outside Australia.
(4) The reference in subsection (2) to an act done in relation to a nuclear explosive device includes a reference to the possession of, or having control over, a nuclear explosive device.
(5) A reference in this section to a visit by a foreign ship to a port in Australia includes a reference to such a visit by a ship for the purposes of dry‑docking.
(6) A visit by a foreign ship to Australia for the purposes of dry‑docking otherwise than at a port shall be deemed, for the purposes of this section, to be a visit by that ship to a port in Australia for the purposes of that dry‑docking.
(7) A reference in this section to navigation through Australian waters includes a reference to presence in those waters (whether or not in the course of navigation through those waters).
(8) In this section, Australian waters means:
(a) the territorial sea of Australia; and
(b) the sea on the landward side of the territorial sea of Australia.
16 Penalties for offences
The penalty on conviction of an offence against subsection 8(1) or (2) or section 9, 10, 11, 12 or 13 is:
(a) if the offender is a natural person—a fine not exceeding $100,000 or imprisonment for a period not exceeding 20 years, or both; or
(b) if the offender is a body corporate—a fine not exceeding $500,000.
Part III—Safeguards in relation to nuclear material and prevention of dumping at sea of radioactive wastes and other radioactive matter
17 Safeguards in relation to nuclear material
(1) Provision for the imposition and maintenance of safeguards in relation to nuclear material, pursuant to Australia's obligations under Articles 4 and 8 of, and Annex 2 to, the Treaty, is made in the Nuclear Non‑Proliferation (Safeguards) Act 1986.
(2) Subsection (1) does not derogate from the operation of the Nuclear Non‑Proliferation (Safeguards) Act 1986.
(3) In this section, nuclear material has the same meaning as in the Nuclear Non‑Proliferation (Safeguards) Act 1986.
18 Prevention of dumping at sea of radioactive wastes and other radioactive matter
(1) Provision for the prevention of the dumping at sea of radioactive wastes and other radioactive matter, pursuant to Australia's obligations under Article 7 of the Treaty, is made in the Environment Protection (Sea Dumping) Act 1981.
(2) Subsection (1) does not derogate from the operation of the Environment Protection (Sea Dumping) Act 1981.
Part IV—Inspections
Division 1—Treaty inspectors and authorised officers
19 Treaty inspectors and authorised officers
(1) Where the Minister is satisfied that a person has, in accordance with Annex 4 to the Treaty, been appointed as a special inspector for the purpose of investigating a complaint brought against Australia pursuant to the Treaty, the Minister shall, in writing, declare the person to be a Treaty inspector for the purposes of this Act.
(2) Where the Minister declares a person to be a Treaty inspector for the purposes of this Act, the Minister shall give the person a copy of the declaration.
(3) The Minister may, in writing, appoint a person as an authorised officer for the purposes of this Act.
(4) The Minister may, in the Minister's discretion:
(a) determine terms and conditions of appointment, including remuneration and allowances, of a person appointed under subsection (3); and
(b) at any time terminate such an appointment.
20 Identity cards
(1) The Minister may issue to an authorised officer an identity card in a form approved by the Minister.
(2) Where a person in possession of an identity card issued to the person under subsection (1) ceases to be an authorised officer, the person shall forthwith return the identity card to the Minister or a person nominated by the Minister.
Penalty: $100.
(3) An offence under subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Division 2—Inspections and searches
21 Facilitation by inspectors of Treaty inspections
(1) A reference in this section to a relevant power shall be read as a reference to a power to:
(a) search land or premises or a vessel, aircraft or vehicle;
(b) inspect or examine a matter or thing;
(c) take samples of a matter or thing;
(d) examine a document;
(e) take extracts from, or make copies of, a document; or
(f) do any other act or thing necessary or convenient to be done in order to facilitate a Treaty inspection.
(2) An inspector may:
(a) with the consent of the occupier of any land or premises; or
(b) pursuant to a warrant issued under subsection (5) in respect of any land or premises;
enter upon the land, or upon or into the premises, and exercise any relevant power for the purpose of facilitating a Treaty inspection.
(3) An inspector may:
(a) with the consent of the person in control of any vessel, aircraft or vehicle; or
(b) pursuant to a warrant issued under subsection (5) in respect of any vessel, aircraft or vehicle;
enter the vessel, aircraft or vehicle, and exercise any relevant power for the purpose of facilitating a Treaty inspection.
(4) Where an inspector may enter a vessel, aircraft or vehicle under subsection (3), the inspector may, for the purpose of effecting that entry and for the purpose of exercising a relevant power for the purpose of facilitating a Treaty inspection, stop and detain the vessel, aircraft or vehicle.
(5) Where an information on oath is laid before a Magistrate alleging that there are reasonable grounds for an inspector having access to any land, premises, vessel, aircraft or vehicle, in order to exercise relevant powers in relation to the land, premises, vessel, aircraft or vehicle for the purpose of facilitating a Treaty inspection, and the information sets out those grounds, the Magistrate may issue a warrant, in accordance with the appropriate form prescribed for the purposes of this subsection, authorising an inspector named in the warrant, with such assistance as the inspector thinks necessary, and if necessary by force:
(a) to enter upon the land or upon or into the premises, vessel, aircraft or vehicle; and
(b) to exercise relevant powers in relation to the land, premises, vessel, aircraft or vehicle, as the case requires, for the purpose of facilitating the Treaty inspection.
(6) A Magistrate shall not issue a warrant under subsection (5) unless:
(a) the informant or some other person has given to the Magistrate, either orally or by affidavit, such further information (if any) as the Magistrate requires concerning the grounds on which the issue of the warrant is being sought; and
(b) the Magistrate is satisfied that there are reasonable grounds for issuing the warrant.
(7) There shall be stated in a warrant issued under subsection (5):
(a) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and
(b) a day, not being later than one month after the day of issue of the warrant, upon which the warrant ceases to have effect.
22 Treaty inspections by Treaty inspectors
(1) A reference in this section to a relevant power shall be read as a reference to a power to:
(a) inspect or examine a matter or thing;
(b) take samples of a matter or thing;
(c) examine a document;
(d) take extracts from, or make copies of, a document; or
(e) do any other act or thing necessary or convenient to be done in order to carry out a Treaty inspection.
(2) For the purposes of carrying out a Treaty inspection, a Treaty inspector may, with the consent of the occupier of any land or premises, enter upon the land, or upon or into the premises, and exercise any relevant power.
(3) For the purposes of carrying out a Treaty inspection, a Treaty inspector may, with the consent of the person in control of a vessel, aircraft or vehicle, enter the vessel, aircraft or vehicle, and exercise any relevant power.
(4) Where a warrant is issued to an inspector (in this subsection referred to as the relevant inspector) under subsection 21(5) authorising the exercise of powers in relation to any land, premises, vessel, aircraft or vehicle for the purpose of facilitating a Treaty inspection, a Treaty inspector may accompany the relevant inspector when the relevant inspector enters upon the land or upon or into the premises, vessel, aircraft or vehicle, and may, for the purposes of carrying out the Treaty inspection, exercise any relevant power.
23 Powers of authorised officers
(1) A reference in this section to a relevant power shall be read as a reference to a power to:
(a) inspect or examine a matter or thing;
(b) take samples of a matter or thing;
(c) examine a document;
(d) take extracts from, or make copies of, a document; or
(e) do any other act or thing necessary or convenient to be done for the purposes of observing, in accordance with Annex 4 to the Treaty, the carrying out of a Treaty inspection.
(2) For the purposes of observing, in accordance with Annex 4 to the Treaty, the carrying out of a Treaty inspection, an authorised officer may, with the consent of the occupier of any land or premises, enter upon the land, or upon or into the premises, and exercise any relevant power.
(3) For the purposes of observing, in accordance with Annex 4 to the Treaty, the carrying out of a Treaty inspection, an authorised officer may, with the consent of the person in control of a vessel, aircraft or vehicle, enter the vessel, aircraft or vehicle, and exercise any relevant power.
(4) Where a warrant is issued to an inspector (in this subsection referred to as the relevant inspector) under subsection 21(5) authorising the exercise of powers in relation to any land, premises, vessel, aircraft or vehicle for the purpose of facilitating a Treaty inspection, an authorised officer may accompany the relevant inspector when the relevant inspector enters upon the land or upon or into the premises, vessel, aircraft or vehicle, and may, for the purpose of observing the carrying out of the Treaty inspection, exercise any relevant power.
24 Inspectors may require information etc.
(1) An inspector may request a person whom the inspector finds committing, or whom the inspector suspects on reasonable grounds of having committed, an offence against this Act to state that person's full name and usual place of residence.
(2) Where an inspector makes a request of a person under subsection (1), the inspector shall produce the inspector's identity card for inspection by the person and, if the inspector fails to do so, the person is not obliged to comply with the request.
(3) Subject to subsection (2), a person who, without reasonable excuse, fails to comply with a request made of the person by an inspector under subsection (1) is guilty of an offence against this section punishable, on conviction, by a fine not exceeding $1,000.
(4) An offence under subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
25 Offence‑related searches and seizures
(1) Where an inspector has reasonable grounds for suspecting that there may be on any land or premises any article or thing that may afford evidence as to the commission of an offence against this Act, the inspector may:
(a) with the consent of the occupier of the land or premises; or
(b) pursuant to a warrant issued under subsection (4);
enter upon the land, or upon or into the premises, and:
(c) search the land or premises for any such article or thing; and
(d) seize any such article or thing found upon the land or upon or in the premises.
(2) Where an inspector has reasonable grounds for suspecting that there is in any vessel, aircraft or vehicle any article or thing that may afford evidence as to the commission of an offence against this Act, the inspector may:
(a) with the consent of the person in control of the vessel, aircraft or vehicle; or
(b) pursuant to a warrant issued under subsection (4);
enter the vessel, aircraft or vehicle and:
(c) search the vessel, aircraft or vehicle for any such article or thing; and
(d) seize any such article or thing found in the vessel, aircraft or vehicle.
(3) Where an inspector may enter a vessel, aircraft or vehicle under subsection (2), the inspector may, for the purpose of effecting that entry and for the purpose of exercising a power referred to in paragraph (2)(c) or (d), stop and detain the vessel, aircraft or vehicle.
(4) Where an information on oath is laid before a Magistrate alleging that there are reasonable grounds for suspecting that there may be upon any land or upon or in any premises, vessel, aircraft or vehicle, any article or thing that may afford evidence as to the commission of an offence against this Act and the information sets out those grounds, the Magistrate may issue a search warrant, in accordance with the appropriate form prescribed for the purposes of this subsection, authorising an inspector named in the warrant, with such assistance as the inspector thinks necessary, and if necessary by force:
(a) to enter upon the land or upon or into the premises, vessel, aircraft or vehicle;
(b) to search the land, premises, vessel, aircraft or vehicle for any such article or thing; and
(c) to seize any article or thing that the inspector:
(i) finds upon the land or upon or in the premises, vessel, aircraft or vehicle; and
(ii) believes on reasonable grounds may be an article or thing connected with that offence.
(5) A Magistrate shall not issue a warrant under subsection (4) unless:
(a) the informant or some other person has given to the Magistrate, either orally or by affidavit, such further information (if any) as the Magistrate requires concerning the grounds on which the issue of the warrant is being sought; and
(b) the Magistrate is satisfied that there are reasonable grounds for issuing the warrant.
(6) There shall be stated in a warrant issued under subsection (4):
(a) the purpose for which the warrant is issued, including a reference to the nature of the offence in relation to which the entry and search are authorised;
(b) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night;
(c) a description of the kind of articles or things to be seized; and
(d) a day, not being later than one month after the day of issue of the warrant, upon which the warrant ceases to have effect.
(7) Where an inspector seizes any article or thing pursuant to subsection (1) or (2), the inspector may retain the article or thing until the expiration of a period of 60 days after the seizure or, if proceedings for an offence against this Act in respect of which the article or thing may afford evidence are instituted within that period, until the proceedings (including any appeal to a court in relation to those proceedings) are terminated.
(8) The Minister may authorise any article or thing seized under subsection (1) or (2) to be released to the owner, or to the person from whom the article or thing was seized, either unconditionally or on such conditions as the Minister thinks fit, including conditions as to the giving of security for payment of the value of the article or thing if it is forfeited under section 31.
26 Warrants may be granted by telephone
(1) Where, by reason of circumstances of urgency, an inspector considers it necessary to do so, the inspector may make an application for a warrant under subsection 25(4), by telephone, in accordance with this section.
(2) Before so making application, an inspector shall prepare an information of a kind referred to in subsection 25(4) that sets out the grounds on which the issue of the warrant is being sought, but may, if it is necessary to do so, make the application before the information has been sworn.
(3) Where a Magistrate to whom an application under subsection (1) is made is satisfied:
(a) after having considered the terms of the information prepared in accordance with subsection (2); and
(b) after having received such further information (if any) as the Magistrate requires concerning the grounds on which the issue of the warrant is being sought;
that there are reasonable grounds for issuing the warrant, the Magistrate shall complete and sign such a search warrant as the Magistrate would issue under section 25 if the application had been made in accordance with that section.
(4) Where a Magistrate signs a warrant under subsection (3):
(a) the Magistrate shall inform the inspector of the terms of the warrant and the date on which and the time at which it was signed, and record on the warrant the reasons for the granting of the warrant; and
(b) the inspector shall complete a form of warrant in the terms given to the inspector by the Magistrate and write on it the name of the Magistrate and the date on which and the time at which the warrant was signed.
(5) Where an inspector completes a form of warrant in accordance with subsection (4), the inspector shall, not later than the day next following the date of expiry of the warrant, give to the Magistrate who signed the warrant the form of warrant completed by the inspector and the information duly sworn in connection with the warrant.
(6) Upon receipt of the documents referred to in subsection (5), the Magistrate shall attach to them the warrant signed by the Magistrate and deal with the documents in the manner in which the Magistrate would have dealt with the information if the application for the warrant had been made in accordance with section 25.
(7) A form of warrant duly completed by an inspector in accordance with subsection (4) is, if it is in accordance with the terms of the warrant signed by the Magistrate, authority for any entry, search, seizure or other exercise of a power that the warrant so signed authorises.
(8) Where it is material, in any proceedings, for a court to be satisfied that an entry, search, seizure or other exercise of power was authorised in accordance with this section, and the warrant signed by a Magistrate in accordance with this section authorising the entry, search, seizure or other exercise of power is not produced in evidence, the court shall assume, unless the contrary is proved, that the entry, search, seizure or other exercise of power was not authorised by such a warrant.
27 Emergency searches and seizures
(1) Subject to subsection (2), where an inspector believes on reasonable grounds that:
(a) there is situated upon any land, or upon or in any premises, vessel, aircraft or vehicle any article or thing that the inspector believes on reasonable grounds will afford evidence of the commission of an offence against this Act; and
(b) the exercise of powers under this section is necessary to prevent the concealment, loss or destruction of the article or thing;
the inspector may, with such assistance as the inspector thinks fit, and if necessary by force:
(c) enter upon the land or upon or into the premises, vessel, aircraft or vehicle;
(d) search for the article or thing; and
(e) seize the article or thing.
(2) An inspector shall not exercise powers under subsection (1) unless the power is exercised in circumstances of such seriousness and urgency as to require and justify the immediate exercise of those powers without the authority of a warrant issued under section 25.
(3) The reference in subsection (2) to a warrant issued under section 25 includes a reference to such a warrant issued in accordance with section 26.
(4) Where an inspector may enter a vessel, aircraft or vehicle under subsection (1), the inspector may, for the purpose of effecting that entry and for the purpose of exercising a power referred to in paragraph (1)(d) or (e), stop and detain the vessel, aircraft or vehicle.
(5) Where an inspector seizes any article or thing pursuant to subsection (1), the inspector may retain the article or thing until the expiration of a period of 60 days after the seizure or, if proceedings for an offence against this Act in respect of which the article or thing may afford evidence are instituted within that period, until the proceedings (including any appeal to a court in relation to those proceedings) are terminated.
(6) The Minister may authorise any article or thing, seized under subsection (1) to be released to the owner, or to the person from whom the article or thing was seized, either unconditionally or on such conditions as the Minister thinks fit, including conditions as to the giving of security for payment of the value of the article or thing if it is forfeited under section 31.
28 Persons to assist inspectors
(1) Subject to subsection (2), where an inspector has entered upon any land or upon or into any premises, vessel, aircraft or vehicle under section 21, 25 or 27, the occupier of the land or premises or the person in charge of the vessel, aircraft or vehicle, as the case requires, shall, if requested by the inspector to do so, provide reasonable assistance to the inspector for the purposes of the exercise of the inspector's powers under that section in respect of the land, premises, vessel, aircraft or vehicle, as the case requires.
Penalty: $1,000 or imprisonment for 6 months, or both.
(2) Where an inspector makes a request of a person under subsection (1), the inspector shall produce the inspector's identity card for inspection by the person and, if the inspector fails to do so, the person is not obliged to comply with the request.
29 Inspectors, Treaty inspectors and authorised officers to produce evidence of identity
(1) Where an inspector exercises a power under section 21, 25 or 27 (otherwise than pursuant to a warrant) in relation:
(a) land or premises;
(b) a vessel, aircraft or vehicle; or
(c) an article or thing;
the inspector shall forthwith produce the inspector's identity card for inspection by the person (if any) who is in charge of the land, premises, vessel, aircraft or vehicle or in possession of the article or thing and, if the inspector fails to do so, the inspector ceases to be authorised to exercise that power.
(2) Where a Treaty inspector exercises a power under section 22 in relation to any land, premises, vessel, aircraft or vehicle, the Treaty inspector shall forthwith produce for inspection by the person (if any) who is in charge of the land, premises, vessel, aircraft or vehicle, a copy of the declaration made, pursuant to subsection 19(1), in respect of the Treaty inspector and, if the Treaty inspector fails to do so, the Treaty inspector ceases to be authorised to exercise that power.
(3) Where an authorised officer exercises a power under section 23 in relation to any land, premises, vessel, aircraft or vehicle, the authorised officer shall forthwith produce for inspection by the person (if any) who is in charge of the land, premises, vessel, aircraft or vehicle the authorised officer's identity card and, if the authorised officer fails to do so, the authorised officer ceases to be authorised to exercise that power.
Part V—Miscellaneous
30 Delegation by the Minister
(1) The Minister may either generally or as otherwise provided by the instrument of delegation, by writing signed by the Minister, delegate to an officer of the Department all or any of the Minister's powers under this Act (other than this power of delegation).
(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Minister.
(3) A delegation under this section does not prevent the exercise of a power by the Minister.
31 Forfeiture
(1) Where a court:
(a) convicts a person of an offence against this Act; or
(b) makes an order under section 19B of the Crimes Act 1914 in respect of a person charged with an offence against this Act;
the court may order the forfeiture to the Commonwealth of any article or thing used or otherwise involved in the commission of the offence.
(2) Any article or thing ordered by a court to be forfeited under this section becomes the property of the Commonwealth and may be sold or otherwise dealt with in accordance with the directions of the Minister and, pending the giving of such a direction by the Minister, the article or thing shall be kept in such custody as the Minister directs.
32 Offence against 2 or more provisions
(1) Where the act of a person is an offence against a provision of this Act and is also an offence against another provision of this Act, the person may be prosecuted and convicted for either of those offences, but the person is not liable to be punished more than once in respect of the same act.
(2) A reference in subsection (1) to an offence against a provision of this Act includes a reference to:
(a) an offence against section 6 of the Crimes Act 1914 in relation to an offence against a provision of this Act; and
(b) an offence against section 11.1, 11.4 or 11.5 of the Criminal Code, being an offence in relation to an offence against a provision of this Act.
33 Consent to prosecutions
(1) A reference in this section to relevant proceedings is a reference to proceedings for the commitment of a person for trial on indictment for an offence against a provision of Part II.
(2) Relevant proceedings shall not be instituted except with the consent in writing of the Attorney‑General or a person authorised by the Attorney‑General, in writing, to give such consents.
(3) Notwithstanding that a consent has not been given in relation to relevant proceedings in accordance with subsection (2):
(a) a person may be charged with an offence against a provision of Part II;
(b) a person may be arrested for such an offence, and a warrant for such an arrest may be issued and executed; and
(c) a person so charged may be remanded in custody or on bail;
but no further step in such proceedings shall be taken in relation to the offence until such a consent has been given.
(4) Nothing in subsection (3) shall prevent the discharging of the accused if proceedings are not continued within a reasonable time.
(5) A reference in this section to an offence against a provision of Part II includes a reference to:
(a) an offence against section 6 of the Crimes Act 1914 in relation to an offence against a provision of that Part; and
(b) an offence against section 11.1, 11.4 or 11.5 of the Criminal Code, being an offence in relation to an offence against a provision of that Part.
34 Hearing in camera etc.
(1) At any time before or during the hearing of proceedings before a court in relation to an offence against this Act, the Judge or Magistrate may, if satisfied that such a course is expedient in order to prevent the disclosure of information of a kind referred to in the definition of associated technology in subsection 4(1) of the Nuclear Non‑Proliferation (Safeguards) Act 1986:
(a) order that some or all of the members of the public shall be excluded during the whole or a part of the proceedings;
(b) order that no report of the whole or a specified part of the proceedings shall be published; and
(c) make orders, and give directions, prohibiting or restricting access, either before, during or after the proceedings, to any affidavit, exhibit, information or other document used in the proceedings that is on a file in the court or in the records of the court.
(2) A person who contravenes an order made, or direction given, under subsection (1) is guilty of an offence against that subsection punishable, upon conviction, by:
(a) if the offender is a natural person—a fine not exceeding $10,000 or imprisonment for a period not exceeding 5 years, or both; or
(b) if the offender is a body corporate—a fine not exceeding $50,000.
(3) Upon the termination of proceedings before a court in relation to an offence against this Act, any document containing information of a kind referred to in the definition of associated technology in subsection 4(1) of the Nuclear Non‑Proliferation (Safeguards) Act 1986 that would otherwise form part of the records of the court shall, as soon as practicable after the termination of those proceedings, be delivered into the possession and control of the Minister.
(4) A reference in this section to proceedings before a court shall be read as including a reference to committal proceedings in relation to an indictable offence.
(5) For the purposes of this section, proceedings shall not be taken to have terminated until:
(a) in the case of proceedings other than committal proceedings in relation to an indictable offence ‑ the time for bringing an appeal arising from those proceedings has expired or an appeal arising from those proceedings has been brought and has been determined; or
(b) in the case of committal proceedings in relation to an indictable offence ‑ the trial in relation to the offence has been determined and the time for bringing an appeal arising from those proceedings has expired or an appeal arising from those proceedings has been brought and has been determined.
35 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Schedule—South Pacific Nuclear Free Zone Treaty
Section 4
The Parties to this Treaty
United in their commitment to a world at peace;
Gravely concerned that the continuing nuclear arms race presents the risk of nuclear war which would have devastating consequences for all people;
Convinced that all countries have an obligation to make every effort to achieve the goal of eliminating nuclear weapons, the terror which they hold for humankind and the threat which they pose to life on earth;
Believing that regional arms control measures can contribute to global efforts to reverse the nuclear arms race and promote the national security of each country in the region and the common security of all;
Determined to ensure, so far as lies within their power, that the bounty and beauty of the land and sea in their region shall remain the heritage of their peoples and their descendants in perpetuity to be enjoyed by all in peace;
Reaffirming the importance of the Treaty on the Non‑Proliferation of Nuclear Weapons (NPT) in preventing the proliferation of nuclear weapons and in contributing to world security;
Noting, in particular, that Article VII of the NPT recognises the right of any group of States to conclude regional treaties in order to assure the total absence of nuclear weapons in their respective territories;
Noting that the prohibitions of emplantation and emplacement of nuclear weapons on the seabed and the ocean floor and in the subsoil thereof contained in the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof apply in the South Pacific;
Noting also that the prohibition of testing of nuclear weapons in the atmosphere or under water, including territorial waters or high seas, contained in the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water applies in the South Pacific;
Determined to keep the region free of environmental pollution by radioactive wastes and other radioactive matter;
Guided by the decision of the Fifteenth South Pacific Forum at Tuvalu that a nuclear free zone should be established in the region at the earliest possible opportunity in accordance with the principles set out in the communique of that meeting;
Agreed as follows:
ARTICLE 1
USAGE OF TERMS
For the purposes of this Treaty and its Protocols:
(a) “South Pacific Nuclear Free Zone” means the areas described in Annex 1 as illustrated by the map attached to that Annex;
(b) “territory” means internal waters, territorial sea and archipelagic waters, the seabed and subsoil beneath, the land territory and the airspace above them;
(c) “nuclear explosive device” means any nuclear weapon or other explosive device capable of releasing nuclear energy, irrespective of the purpose for which it could be used. The term includes such a weapon or device in unassembled and partly assembled forms, but does not include the means of transport or delivery of such a weapon or device if separable from and not an indivisible part of it;
(d) “stationing” means emplantation, emplacement, transportation on land or inland waters, stockpiling, storage, installation and deployment.
ARTICLE 2
APPLICATION OF THE TREATY
1. Except where otherwise specified, this Treaty and its Protocols shall apply to territory within the South Pacific Nuclear Free Zone.
2. Nothing in this Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to freedom of the seas.
ARTICLE 3
RENUNCIATION OF NUCLEAR EXPLOSIVE DEVICES
Each Party undertakes:
(a) not to manufacture or otherwise acquire, possess or have control over any nuclear explosive device by any means anywhere inside or outside the South Pacific Nuclear Free Zone;
(b) not to seek or receive any assistance in the manufacture or acquisition of any nuclear explosive device;
(c) not to take any action to assist or encourage the manufacture or acquisition of any nuclear explosive device by any State.
ARTICLE 4
PEACEFUL NUCLEAR ACTIVITIES
Each Party undertakes:
(a) not to provide source or special fissionable material, or equipment or material especially designed or prepared for the processing, use or production of special fissionable material for peaceful purposes to:
(i) any non‑nuclear‑weapon State unless subject to the safeguards required by Article III.1 of the NPT, or
(ii) any nuclear‑weapon State unless subject to applicable safeguards agreements with the International Atomic Energy Agency (IAEA).
Any such provision shall be in accordance with strict non‑proliferation measures to provide assurance of exclusively peaceful non‑explosive use;
(b) to support the continued effectiveness of the international non‑proliferation system based on the NPT and the IAEA safeguards system.
ARTICLE 5
PREVENTION OF STATIONING OF NUCLEAR EXPLOSIVE DEVICES
1. Each Party undertakes to prevent in its territory the stationing of any nuclear explosive device.
2. Each Party in the exercise of its sovereign rights remains free to decide for itself whether to allow visits by foreign ships and aircraft to its ports and airfields, transit of its airspace by foreign aircraft, and navigation by foreign ships in its territorial sea or archipelagic waters in a manner not covered by the rights of innocent passage, archipelagic sea lane passage or transit passage of straits.
ARTICLE 6
PREVENTION OF TESTING OF NUCLEAR EXPLOSIVE DEVICES
Each Party undertakes:
(a) to prevent in its territory the testing of any nuclear explosive device;
(b) not to take any action to assist or encourage the testing of any nuclear explosive device by any State.
ARTICLE 7
PREVENTION OF DUMPING
1. Each Party undertakes:
(a) not to dump radioactive wastes and other radioactive matter at sea anywhere within the South Pacific Nuclear Free Zone;
(b) to prevent the dumping of radioactive wastes and other radioactive matter by anyone in its territorial sea;
(c) not to take any action to assist or encourage the dumping by anyone of radioactive wastes and other radioactive matter at sea anywhere within the South Pacific Nuclear Free Zone;
(d) to support the conclusion as soon as possible of the proposed Convention relating to the protection of the natural resources and environment of the South Pacific region and its Protocol for the prevention of pollution of the South Pacific region by dumping, with the aim of precluding dumping at sea of radioactive wastes and other radioactive matter by anyone anywhere in the region.
2. Paragraphs 1 (a) and 1 (b) of this Article shall not apply to areas of the South Pacific Nuclear Free Zone in respect of which such a Convention and Protocol have entered into force.
ARTICLE 8
CONTROL SYSTEM
1. The Parties hereby establish a control system for the purpose of verifying compliance with their obligations under this Treaty.
2. The control system shall comprise:
(a) reports and exchange of information as provided for in Article 9;
(b) consultations as provided for in Article 10 and Annex 4 (1);
(c) the application to peaceful nuclear activities of safeguards by the IAEA as provided for in Annex 2;
(d) a complaints procedure as provided for in Annex 4.
ARTICLE 9
REPORTS AND EXCHANGES OF INFORMATION
1. Each Party shall report to the Director of the South Pacific Bureau for Economic Co‑operation (the Director) as soon as possible any significant event within its jurisdiction affecting the implementation of this Treaty. The Director shall circulate such reports promptly to all Parties.
2. The Parties shall endeavour to keep each other informed on matters arising under or in relation to this Treaty. They may exchange information by communicating it to the Director, who shall circulate it to all Parties.
3. The Director shall report annually to the South Pacific Forum on the status of this Treaty and matters arising under or in relation to it, incorporating reports and communications made under paragraphs 1 and 2 of this Article and matters arising under Articles 8 (2) (d) and 10 and Annex 2 (4).
ARTICLE 10
CONSULTATIONS AND REVIEW
Without prejudice to the conduct of consultations among Parties by other means, the Director, at the request of any Party, shall convene a meeting of the Consultative Committee established by Annex 3 for consultation and co‑operation on any matter arising in relation to this Treaty or for reviewing its operation.
ARTICLE 11
AMENDMENT
The Consultative Committee shall consider proposals for amendment of the provisions of this Treaty proposed by any Party and circulated by the Director to all Parties not less than three months prior to the convening of the Consultative Committee for this purpose. Any proposal agreed upon by consensus by the Consultative Committee shall be communicated to the Director who shall circulate it for acceptance to all Parties. An amendment shall enter into force thirty days after receipt by the depositary of acceptances from all Parties.
ARTICLE 12
SIGNATURE AND RATIFICATION
1. This Treaty shall be open for signature by any Member of the South Pacific Forum.
2. This Treaty shall be subject to ratification. Instruments of ratification shall be deposited with the Director who is hereby designated depositary of this Treaty and its Protocols.
3. If a Member of the South Pacific Forum whose territory is outside the South Pacific Nuclear Free Zone becomes a Party to this Treaty, Annex 1 shall be deemed to be amended so far as is required to enclose at least the territory of that Party within the boundaries of the South Pacific Nuclear Free Zone. The delineation of any area added pursuant to this paragraph shall be approved by the South Pacific Forum.
ARTICLE 13
WITHDRAWAL
1. This Treaty is of a permanent nature and shall remain in force indefinitely, provided that in the event of a violation by any Party of a provision of this Treaty essential to the achievement of the objectives of the Treaty or of the spirit of the Treaty, every other Party shall have the right to withdraw from the Treaty.
2. Withdrawal shall be effected by giving notice twelve months in advance to the Director who shall circulate such notice to all other Parties.
ARTICLE 14
RESERVATIONS
This Treaty shall not be subject to reservations.
ARTICLE 15
ENTRY INTO FORCE
1. This Treaty shall enter into force on the date of deposit of the eighth instrument of ratification.
2. For a signatory which ratifies this Treaty after the date of deposit of the eighth instrument of ratification, the Treaty shall enter into force on the date of deposit of its instrument of ratification.
ARTICLE 16
DEPOSITARY FUNCTIONS
The depositary shall register this Treaty and its Protocols pursuant to Article 102 of the Charter of the United Nations and shall transmit certified copies of the Treaty and its Protocols to all Members of the South Pacific Forum and all States eligible to become Party to the Protocols to the Treaty and shall notify them of signatures and ratifications of the Treaty and its Protocols.
DONE at Rarotonga, this Sixth day of August, One thousand nine hundred and eighty‑five, in a single original in the English language.
ANNEX 1
SOUTH PACIFIC NUCLEAR FREE ZONE
A. The area bounded by a line—
(1) commencing at the point of intersection of the Equator by the maritime boundary between Indonesia and Papua New Guinea;
(2) running thence northerly along that maritime boundary to its intersection by the outer limit of the Exclusive Economic Zone of Papua New Guinea;
(3) thence generally north‑easterly, easterly and south‑easterly along that outer limit to its intersection by the Equator;
(4) thence east along the Equator to its intersection by the meridian of Longitude 163 degrees East;
(5) thence north along that meridian to its intersection by the parallel of Latitude 3 degrees North;
(6) thence east along that parallel to its intersection by the meridian of Longitude 171 degrees East;
(7) thence north along that meridian to its intersection by the parallel of Latitude 4 degrees North;
(8) thence east along that parallel to its intersection by the meridian of Longitude 180 degrees East;
(9) thence south along that meridian to its intersection by the Equator;
(10) thence east along the Equator to its intersection by the meridian of Longitude 165 degrees West;
(11) thence north along that meridian to its intersection by the parallel of Latitude 5 degrees 30 minutes North;
(12) thence east along that parallel to its intersection by the meridian of Longitude 154 degrees West;
(13) thence south along that meridian to its intersection by the Equator;
(14) thence east along the Equator to its intersection by the meridian of Longitude 115 degrees West;
(15) thence south along that meridian to its intersection by the parallel of Latitude 60 degrees South;
(16) thence west along that parallel to its intersection by the meridian of Longitude 115 degrees East;
(17) thence north along that meridian to its southernmost intersection by the outer limit of the territorial sea of Australia;
(18) thence generally northerly and easterly along the outer limit of the territorial sea of Australia to its intersection by the meridian of Longitude 136 degrees 45 minutes East;
(19) thence north‑easterly along the geodesic to the point of Latitude 10 degrees 50 minutes South, Longitude 139 degrees 12 minutes East;
(20) thence north‑easterly along the maritime boundary between Indonesia and Papua New Guinea to where it joins the land border between those two countries;
(21) thence generally northerly along that land border to where it joins the maritime boundary between Indonesia and Papua New Guinea, on the northern coastline of Papua New Guinea; and
(22) thence generally northerly along that boundary to the point of commencement.
B. The areas within the outer limits of the territorial seas of all Australian islands lying westward of the area described in paragraph A and north of Latitude 60 degrees South, provided that any such areas shall cease to be part of the South Pacific Nuclear Free Zone upon receipt by the depositary of written notice from the Government of Australia stating that the areas have become subject to another treaty having an object and purpose substantially the same as that of this Treaty.
ANNEX 2
IAEA SAFEGUARDS
1. The safeguards referred to in Article 8 shall in respect of each Party be applied by the IAEA as set forth in an agreement negotiated and concluded with the IAEA on all source or special fissionable material in all peaceful nuclear activities within the territory of the Party, under its jurisdiction or carried out under its control anywhere.
2. The agreement referred to in paragraph 1 shall be, or shall be equivalent in its scope and effect to, an agreement required in connection with the NPT on the basis of the material reproduced in document INFCIRC/153 (Corrected) of the IAEA. Each Party shall take all appropriate steps to ensure that such an agreement is in force for it not later than eighteen months after the date of entry into force for that Party of this Treaty.
3. For the purposes of this Treaty, the safeguards referred to in paragraph 1 shall have as their purpose the verification of the non‑diversion of nuclear material from peaceful nuclear activities to nuclear explosive devices.
4. Each Party agrees upon the request of any other Party to transmit to that Party and to the Director for the information of all Parties a copy of the overall conclusions of the most recent report by the IAEA on its inspection activities in the territory of the Party concerned, and to advise the Director promptly of any subsequent findings of the Board of Governors of the IAEA in relation to those conclusions for the information of all Parties.
ANNEX 3
CONSULTATIVE COMMITTEE
1. There is hereby established a Consultative Committee which shall be convened by the Director from time to time pursuant to Articles 10 and 11 and Annex 4 (2). The Consultative Committee shall be constituted of representatives of the Parties, each Party being entitled to appoint one representative who may be accompanied by advisers. Unless otherwise agreed, the Consultative Committee shall be chaired at any given meeting by the representative of the Party which last hosted the meeting of Heads of Government of Members of the South Pacific Forum. A quorum shall be constituted by representatives of half the Parties. Subject to the provisions of Article 11, decisions of the Consultative Committee shall be taken by consensus or, failing consensus, by a two‑thirds majority of those present and voting. The Consultative Committee shall adopt such other rules of procedure as it sees fit.
2. The costs of the Consultative Committee, including the costs of special inspections pursuant to Annex 4, shall be borne by the South Pacific Bureau for Economic Co‑operation. It may seek special funding should this be required.
ANNEX 4
COMPLAINTS PROCEDURE
1. A Party which considers that there are grounds for a complaint that another Party is in breach of its obligations under this Treaty shall, before bringing such a complaint to the Director, bring the subject matter of the complaint to the attention of the Party complained of and shall allow the latter reasonable opportunity to provide it with an explanation and to resolve the matter.
2. If the matter is not so resolved, the complainant Party may bring the complaint to the Director with a request that the Consultative Committee be convened to consider it. Complaints shall be supported by an account of evidence of breach of obligations known to the complainant Party. Upon receipt of a complaint the Director shall convene the Consultative Committee as quickly as possible to consider it.
3. The Consultative Committee, taking account of efforts made under paragraph 1, shall afford the Party complained of a reasonable opportunity to provide it with an explanation of the matter.
4. If, after considering any explanation given to it by the representatives of the Party complained of, the Consultative Committee decides that there is sufficient substance in the complaint to warrant a special inspection in the territory of that Party or elsewhere, the Consultative Committee shall direct that such special inspection be made as quickly as possible by a special inspection team of three suitably qualified special inspectors appointed by the Consultative Committee in consultation with the complained of and complainant Parties, provided that no national of either Party shall serve on the special inspection team. If so requested by the Party complained of, the special inspection team shall be accompanied by representatives of that Party. Neither the right of consultation on the appointment of special inspectors, nor the right to accompany special inspectors, shall delay the work of the special inspection team.
5. In making a special inspection, special inspectors shall be subject to the direction only of the Consultative Committee and shall comply with such directives concerning tasks, objectives, confidentiality and procedures as may be decided upon by it. Directives shall take account of the legitimate interests of the Party complained of in complying with its other international obligations and commitments and shall not duplicate safeguards procedures to be undertaken by the IAEA pursuant to agreements referred to in Annex 2 (1). The special inspectors shall discharge their duties with due respect for the laws of the Party complained of.
6. Each Party shall give to special inspectors full and free access to all information and places within its territory which may be relevant to enable the special inspectors to implement the directives given to them by the Consultative Committee.
7. The Party complained of shall take all appropriate steps to facilitate the special inspection, and shall grant to special inspectors privileges and immunities necessary for the performance of their functions, including inviolability for all papers and documents and immunity from arrest, detention and legal process for acts done and words spoken and written, for the purpose of the special inspection.
8. The special inspectors shall report in writing as quickly as possible to the Consultative Committee, outlining their activities, setting out relevant facts and information as ascertained by them, with supporting evidence and documentation as appropriate, and stating their conclusions. The Consultative Committee shall report fully to all Members of the South Pacific Forum, giving its decision as to whether the Party complained of is in breach of its obligations under this Treaty.
9. If the Consultative Committee has decided that the Party complained of is in breach of its obligations under this Treaty, or that the above provisions have not been complied with, or at any time at the request of either the complainant or complained of Party, the Parties shall meet promptly at a meeting of the South Pacific Forum.
