Chemical Weapons (Prohibition) Act 1994 (Cth)
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Contents
This Act may be cited as the
Chemical Weapons (Prohibition) Act 1994 .
(1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.
(2) Subject to subsections (3) and (4), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.
(3) 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.
(4) 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:
(a) that is proclaimed for the purpose of this subsection; and
(b) 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.
(1) 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.
Note: Extended geographical jurisdiction applies to the offence against section 12.
(2) 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.
(1) This Act binds the Crown in all its capacities.
(2) Nothing in this Act renders the Crown liable to be prosecuted for an offence.
(1) 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:
(a) that is covered by a permit required under subsection 16(1) and designated in the permit as a consumption facility; or
(b) 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:
(a) 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
(b) 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:
(a) at which the production, acquisition, retention or use, or from which the transfer, of a Schedule 1 chemical takes place; or
(b) at which the production, processing or consumption of a Schedule 2 chemical takes place; or
(c) 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:
(a) 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
(b) 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:
(a) means a person authorised by the national inspector to assist in the execution of the warrant; and
(b) 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):
(a) that is covered by a permit required under subsection 16(1) and designated in the permit as a protective facility; or
(b) that was so covered and designated but is now covered by a notification required under subsection 28(1).
research facility means a facility:
(a) that is covered by a permit required under subsection 16(1) and designated in the permit as a research facility; or
(b) 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) a single small‑scale facility; or
(b) a protective facility; or
(c) a research facility; or
(d) 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:
(a) if the chemical is listed in Part A of Schedule 2 to the Convention and designated with an
“ * ” —1 kilogram; or(b) if the chemical is listed in Part A of Schedule 2 to the Convention but is not designated with an
“ * ” —100 kilograms; or(c) 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):
(a) that is covered by a permit required under subsection 16(1) and designated in the permit as a single small‑scale facility; or
(b) 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.
(2) 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:
(a) on a specified kind of data storage device; or
(b) by way of a specified kind of electronic transmission.
(1) 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.(2) 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.(3) 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.Note: For specification by class, see subsection 13(3) of the
Legislation Act 2003 .
(1) 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:
(a) 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
(b) that the director, employee or agent had the state of mind.
(2) Conduct engaged in on behalf of a body corporate:
(a) by a director, employee or agent of the body corporate within the scope of the person’s 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, 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.
(3) 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:
(a) 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
(b) that the employee or agent had the relevant state of mind.
(4) Conduct engaged in on behalf of an individual:
(a) by an employee or agent of the person within the scope of the actual or apparent authority of the employee or agent; 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 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.
(5) If:
(a) an individual is convicted of an offence; and
(b) 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.
(6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
(7) 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.
(8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
(1) In determining:
(a) the total amount of Schedule 1 chemicals that will be, or were, produced, acquired, retained or used at, or transferred from, a facility; or
(b) 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
(8) A method prescribed under this section may involve disregarding a chemical when produced at or below a specified concentration.
(9) Subsection (8) does not limit subsection (3), (4), (5), (6) or (7).
Note: For specification by class, see subsection 13(3) of the
Legislation Act 2003 .
(1) The provisions of this Act have effect in relation to all chemical weapons, all scheduled chemicals and all unscheduled discrete organic chemicals.
(2) Without prejudice to their effect because of subsection (1), the provisions of this Act have effect in relation to chemical weapons, scheduled chemicals and unscheduled discrete organic chemicals:
(a) to the extent that the production of which, or the dealing with which, needs to be prevented or regulated to give effect to Australia’s obligations as a party to the Convention; or
(b) that are owned by, or in the possession or control of, the Commonwealth, or of an authority or instrumentality of the Commonwealth; or
(c) that are supplied to the Commonwealth, or to an authority or instrumentality of the Commonwealth; or
(d) that are owned by, or in the possession or control of, a trading corporation or a foreign corporation; or
(e) that are situated in a Territory or owned by or in the possession or control of:
(i) a resident of a Territory; or
(ii) a corporation established by or under a law of a Territory; or
(f) that are in the course of trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2 Territories.
(3) Without prejudice to their effect because of subsection (2), the provisions of this Act have effect in relation to chemical weapons, scheduled chemicals or unscheduled discrete organic chemicals that are owned by, or are in the possession or control of, a trading corporation in the course of the trading activities of the trading corporation.
(4) In this section:
foreign corporation has the same meaning as in paragraph 51(xx) 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.
Note: Chapter 2 of the
Criminal Code sets out the general principles of criminal responsibility.
(1) A person must not intentionally:
(a) develop, produce, otherwise acquire, stockpile or retain chemical weapons; or
(b) transfer, directly or indirectly, chemical weapons to another person; or
(c) use chemical weapons; or
(d) engage in any military preparations to use chemical weapons; or
(e) assist, encourage or induce, in any way, another person to engage in any activity prohibited to a State Party under the Convention; or
(f) use riot control agents as a method of warfare.
Penalty: Imprisonment for life.
(2) Section 15.2 of the
Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (1) of this section.
(1) If a person finds a substance or article, whether in Australia or an external Territory, or on, or in the seas above, the continental shelf adjacent to Australia or an external territory, that the person believes may be a chemical weapon, the person must immediately notify:
(a) the Director; or
(b) a constable;
of the finding, and of the whereabouts, of the substance or article concerned.
Penalty: Imprisonment for 1 year.
(2) If the person notifies a constable, it is the responsibility of the constable to notify the Director of the matter notified to the constable.
(1) If any chemical weapon is developed, produced, otherwise acquired, stockpiled, retained or transferred in contravention of section 12, the weapon is forfeited to the Commonwealth.
(2) A constable may, without warrant, seize any substance or article (including a substance or article notified to the Director or a constable under section 13) which is forfeited or which the constable has reasonable grounds to believe is forfeited to the Commonwealth as a chemical weapon under subsection (1), and take it before a court of summary jurisdiction.
(3) If articles are taken before a court of summary jurisdiction under subsection (2), the court must inquire into the matter and:
(a) if the court is satisfied that the substance or article is forfeited—must order that the substance or article be condemned; or
(b) if the court is not so satisfied—must order that the substance or article be delivered to such person as the court is satisfied is entitled to the substance or article.
(4) A court of summary jurisdiction may, before inquiring into a matter in accordance with subsection (3), require notice of the inquiry to be given to such persons as the court thinks fit.
(5) If any prosecution is pending, an order for the condemnation or the delivery to a person of a substance or article relating to the prosecution must not be made until the prosecution is determined.
(6) A substance or article seized under subsection (2) must be stored in accordance with the approved procedures until an order is made under subsection (3).
(7) A condemned chemical weapon must be destroyed or otherwise dealt with in accordance with approved procedures as soon as practicable after it is determined that it is condemned.
(8) Until it is so destroyed or otherwise dealt with, a condemned chemical weapon must be stored in accordance with approved procedures.
(1) The purpose of this Part is to ensure that the Director has knowledge of dealings with chemicals that facilitate the making of Australia’s periodic declarations under the Convention.
(2) Division 1 deals with the grant, and renewal, of permits for persons who anticipate producing or otherwise dealing with scheduled chemicals in quantities such that the production or dealing needs to be part of the declaration process. The Division does not deal with persons in their production or other dealing with unscheduled discrete organic chemicals.
(3) Division 2 sets up a notification system to ensure that the Minister is informed of the production or other dealing with unscheduled discrete organic chemicals during the previous year in quantities such that that production or dealing needs to be part of the declaration process. The notification requirements also extend to notification in circumstances where a permit under Division 1 was in force in respect of a particular year, but the permit will not be in force in respect of the next year.
(1) The operator of a facility requires a permit under this subsection to operate the facility during a particular year if Schedule 1 chemicals (other than excluded Schedule 1 chemicals) are likely to be produced, acquired, retained or used at, or transferred from, the facility during the year.
(2) The operator of a facility requires a permit under this subsection to operate the facility during a particular year if an amount of Schedule 2 chemical exceeding, in the aggregate, the Schedule 2 permit threshold for that chemical is likely to be produced, processed or consumed at a plant comprising, or comprising part of, the facility during the year.
(3) The operator of a facility requires a permit under this subsection to operate the facility during a particular year if an amount of a Schedule 3 chemical exceeding, in the aggregate, 30 tonnes of that chemical is likely to be produced at a plant comprising, or comprising part of, the facility during the year.
(4) For the purposes of subsection (1), Schedule 1 chemicals are excluded chemicals in relation to a facility and to a year if:
(a) the total amount of those chemicals likely to be acquired, retained or used at, or transferred from, the facility during the year does not exceed 100 grams; and
(b) Schedule 1 chemicals will not be produced at the facility during that year; and
(c) the Schedule 1 chemicals are intended only to be put to research, medical or pharmaceutical purposes.
(5) A reference in this section to a year during which chemicals will be produced, acquired, retained or otherwise dealt with (however that dealing is described) includes a reference to a year that occurs in part before the day on which this section commences.
(1) A person who requires a permit must apply to the Minister for a permit under subsection 18(1) to operate a facility during a year by giving to the Controller, by such day as is prescribed, an application, in the approved form, containing such information as is required by the form. A failure to apply by that day does not affect the validity of the application.
Note: However, if a person fails to apply by that day, the Director may name the person in the annual report: see section 96.
(2) The Controller may, by written notice, request an applicant to give the Controller additional information within a period specified in the notice.
(3) If the applicant does not give the Controller the additional information within the period specified in the notice, the application is taken to have been withdrawn.
(4) If the Controller is satisfied with the information (including any additional information) given by an applicant, the Controller must give a report to the Minister that includes the Controller’s recommendation as to whether the permit should be granted.
(1) Subject to section 19, after considering the Controller’s report, the Minister may, by written notice given to the applicant, grant, or refuse to grant, the applicant a permit to operate the facility during the year to which the application relates.
(2) A permit is to be granted in respect of one year only, but may be automatically renewed under section 19A.
(3) A permit comes into force:
(a) on the day it is granted; or
(b) on such earlier day as the Minister specifies in the permit; or
(c) on such later day as the Minister specifies in the permit;
and remains in force until the end of the year in respect of which it is granted.
(4) A permit must set out the effect of section 19A.
(5) A permit is granted subject to such conditions as the Minister specifies in the permit.
(6) If a permit in respect of the operation of a facility during a year is granted after the commencement of the year and the permit is granted subject to conditions, those conditions only apply in respect of the operation of the facility after the grant of the permit.
(7) This section does not prevent more than one permit being granted in respect of a facility other than a Schedule 1 facility.
(8) The grant to a person of a permit does not make it lawful for the person to do an act that, apart from this Act, is unlawful under another law of the Commonwealth or under a law of a State or Territory.
(1) If a person makes application for a permit to operate a facility so far as concerns the production, acquisition, retention or use of Schedule 1 chemicals at the facility, or the transfer of Schedule 1 chemicals from the facility, that permit may, if it authorises production, and whether or not it authorises any other of those activities, differ according to:
(a) the quantity of the chemicals intended to be produced; and
(b) the purposes for which all the chemicals to which the permit will relate are to be applied.
(2) A permit to operate a facility during a year in respect of Schedule 1 chemicals must not be granted unless the chemicals concerned are to be applied for research, medical, pharmaceutical or protective purposes.
(3) A permit to operate a facility:
(a) if it authorises the production of more than 10 kilograms of Schedule 1 chemicals may only; and
(b) if it authorises the production of a lesser amount of Schedule 1 chemicals may;
be granted in respect of the facility to be designated in the permit as the single small‑scale facility.
(4) A permit to operate a facility:
(a) if it authorises the production during a year of less than 10 kilograms of Schedule 1 chemicals; and
(b) all the chemicals to which the permit relates are to be applied for protective purposes;
may be granted in respect of the facility to be designated in the permit as the single protective facility.
(5) A permit to operate a facility:
(a) if it authorises the production during a year of less than 10 kilograms of Schedule 1 chemicals; and
(b) all the chemicals to which the permit relates are to be applied for research, medical or pharmaceutical purposes;
may be granted in respect of the facility to be designated in the permit as a research facility.
(6) A permit to operate a facility:
(a) if it does not authorise the production at the facility, during a year, of any Schedule 1 chemical; and
(b) if it authorises the acquisition, retention or use at, or transfer from, the facility during that year, of more than 100 grams of Schedule 1 chemicals;
may be granted in respect of the facility to be designated as a consumption facility.
(7) The fact that a facility may be designated in a particular manner does not require it to be so designated.
(8) A facility must not be designated in a permit as a single small‑scale facility unless:
(a) production is to be carried out in reaction vessels in production lines not configured for continuous operation; and
(b) the volume of any reaction vessel is not more than 100 litres; and
(c) the total volume of all reaction vessels with a volume of more than 5 litres is not more than 500 litres.
(9) The Minister must not grant more than one permit to operate a facility designated as the single small‑scale facility.
(10) The Minister must not grant more than one permit to operate a facility designated as the single protective facility.
(11) The Minister may grant permits to operate more than one facility designated under subsection (5) as a research facility or designated under subsection (13) as a consumption facility.
(12) The Minister must not grant permits such that the total amount of Schedule 1 chemicals produced, acquired, retained or used at, or transferred from, all Schedule 1 facilities during a year is, or could be, more than one tonne.
(13) The Minister must not grant permits such that the total amount of Schedule 1 chemicals produced, acquired, retained or used at, or transferred from, all Schedule 1 facilities at any time exceeds one tonne.
(1) If a permit is in force immediately before the end of a particular year because:
(a) the permit was granted under section 18 in respect of that year; or
(b) the permit was renewed under section 20 in respect of that year;
the permit is taken to be renewed in respect of each of the next 4 years.
(2) The permit is renewed subject to the conditions attaching to the permit before renewal.
(1) A holder of a permit that was renewed for 4 years under section 19A may, by such day as is prescribed, apply to the Minister for the renewal of the permit in respect of the year (the
eligible year ) following the last of those 4 years.(1A) An application under subsection (1) is to be made by giving the Controller a renewal application, in the approved form, containing such information as is required by the form.
(1B) A failure to apply by the day prescribed for the purposes of subsection (1) does not affect the validity of the application.
Note: However, if a person fails to apply by that day, the Director may name the person in the annual report: see section 96.
(2) The Controller may, by written notice, request the permit holder to give the Controller additional information within a period specified in the notice.
(3) If the permit holder does not give the Controller the additional information within the period specified in the notice, the application is taken to have been withdrawn.
(4) If the Controller is satisfied with the information (including any additional information) given by the permit holder, the Controller must give a report to the Minister that includes the Controller’s recommendation as to whether the permit should be renewed.
(5) After considering the Controller’s report the Minister may, by written notice given to the permit holder, renew, or refuse to renew, the permit in respect of the eligible year.
(6) A permit renewed under subsection (5) is renewed subject to the conditions attaching to the permit before renewal or to such other conditions as the Minister specifies in the permit.
(1) If:
(a) a person makes an application for renewal of a permit; but
(b) the application has not been finally determined before the start of the year to which it relates;
this Act has effect, until the application is determined, as if the permit had been renewed under subsection 20(5).
(2) If a permit that is treated as having been renewed is actually renewed under subsection 20(5), the renewed permit is taken to have been in force for the whole of the year to which it relates.
The conditions to which a permit to operate a facility may be expressed to be subject include, but are not limited to, the operator of a facility must:
(a) comply with the terms of any facility agreement in force in respect of that facility; and
(b) if the facility is a Schedule 1 facility—ensure that there is no transfer of a Schedule 1 chemical to a non State Party; and
(c) if the facility is a Schedule 2 facility—ensure that there is no transfer of a Schedule 2 chemical to a non State Party; and
(d) ensure that any limitations required by the Convention on the transfer of a Schedule 3 chemical to a non State Party are complied with; and
(e) comply with such other conditions, consistent with Australia’s obligations under the Convention, as are set out in the permit.
(1) Subject to subsection 27(1), the Minister may, by written notice, vary a permit.
(2) A variation to a permit takes effect on the day on which the notice of the variation is given to the permit holder under subsection 26(2) or such later day as is specified in the instrument of variation.
(1) If:
(a) because the ownership of a facility is to be transferred; or
(b) for any other reason;
a person other than the permit holder in relation to a facility will become the operator of that facility, that person may make application to the Minister for the transfer to that person of the permit by giving the Controller an application, in the approved form, containing such information as is required by the form.
(2) The Controller may, by written notice, request the applicant for transfer to give the Controller additional information within a period specified in the notice.
(3) If the applicant does not give the Controller the additional information within the period specified in the notice, the application for transfer is taken to have been withdrawn.
(4) If the Controller is satisfied with the application (including any additional information) given by the applicant, the Controller must give a report to the Minister that includes the Controller’s recommendation as to whether the permit should be transferred.
(5) After considering the Controller’s report, the Minister may, by written notice given to the applicant, grant, or refuse to grant, the application for transfer.
(6) If the Minister agrees to transfer the permit to that person:
(a) this Act has effect as if all dealings with chemicals by the previous permit holder were dealings with chemicals by the new permit holder; but
(b) nothing in paragraph (a) implies that any breach of the Act or of the regulations, or of the conditions of the permit, by the previous permit holder will be taken to be a breach of the Act or of the regulations, or of the conditions of the permit, by the new permit holder.
(1) If:
(a) because the ownership of a facility is to be transferred; or
(b) for any other reason;
the permit holder in relation to a facility will no longer be the operator of that facility, the permit holder must notify the Minister of that fact by giving the Controller notice in the approved form containing such information as is required by the form.
(2) The obligation imposed on the permit holder by subsection (1) is taken to be a condition of the permit.
(1) The Minister may, in writing, revoke a permit if the permit holder, or any person acting on the permit holder’s behalf:
(a) is convicted of an offence against this Act or the regulations made under this Act; or
(b) is convicted of an offence against the Customs (Prohibited Exports) Regulations so far as the exportation of a scheduled chemical is concerned; or
(c) is convicted of an offence against the Customs (Prohibited Imports) Regulations so far as the importation of a scheduled chemical is concerned; or
(d) contravenes a condition subject to which the permit is granted or renewed.
(2) Subsection (1) extends to a conviction or contravention because of an act to which subsection 5(1) refers.
(3) The Minister must revoke a permit granted if the permit holder asks the Minister, in writing, to do so.
(4) The revocation of a permit under this section takes effect:
(a) if the permit is revoked under subsection (1)—on the day on which the notice of the revocation is given to the holder of the permit under subsection 26(1) or such later day as is specified in the instrument of revocation; or
(b) if the permit is revoked under subsection (3)—on the day on which the instrument of revocation is made or on such later day as is specified in that instrument.
(1) This section applies if the Minister makes:
(a) a decision under subsection 18(1) refusing to grant a permit; or
(aa) a decision under subsection 18(3) to specify, or not to specify, the day a permit comes into force; or
(b) a decision under section 20 refusing to renew a permit; or
(c) a decision to impose a condition on a permit granted under section 18 or renewed under section 20; or
(d) a decision under section 23 varying a permit; or
(e) a decision under section 24 refusing to transfer a permit; or
(f) a decision under section 25 revoking a permit.
(2) The Minister must, not later than 30 days after the day on which the decision is made, give written notice of the decision, and of the reasons for the decision:
(a) if paragraph (1)(a) applies—to the person who applied for the grant of the permit; or
(b) if paragraph (1)(e) applies—to the person who applied for the transfer of the permit; or
(c) otherwise—to the permit holder.
(3) A notice under subsection (2) must include a statement to the effect that, subject to the
Administrative Review Tribunal Act 2024 , application may be made to the Administrative Review Tribunal for review of the decision to which the notice relates by or on behalf of a person whose interests are affected by the decision.(4) A failure to comply with the requirements of subsection (2) in relation to a decision does not affect the validity of the decision.
(1) An application may be made to the Administrative Review Tribunal for review of a decision covered by subsection 26(1).
(2) In this section:
decision has the same meaning as in theAdministrative Review Tribunal Act 2024 .
(1) The operator of a facility must notify the facility to the Minister under this subsection if a permit to operate the facility during a particular year is or was held in accordance with a requirement of subsection 16(1) but no such permit will be in force in respect of the next year.
(2) The operator of a facility must notify the facility to the Minister under this subsection if:
(a) a permit to operate the facility during a particular year is or was held in accordance with a requirement of subsection 16(2) but no such permit will be in force in respect of the next year; or
(b) subsection (3) applies in respect of that facility.
(3) This subsection applies in respect of a facility if:
(a) a permit is not required under subsection 16(2) to operate the facility during the year in which this section commences; but
(b) such a permit would have been required under that subsection to operate the facility during any one or more of the 3 years before that year if this Act had been in force at the time.
(4) The operator of a facility must notify the facility to the Minister under this subsection if:
(a) a permit to operate the facility during a particular year is or was held in respect of the facility in accordance with a requirement of subsection 16(3) but no such permit will be in force in respect of the next year; or
(b) subsection (5) applies in respect of that facility.
(5) This subsection applies in respect of a facility if:
(a) a permit is not required under subsection 16(3) to operate that facility during the year in which this section commences; and
(b) such a permit would have been required under that subsection to operate the facility during the year before that year if this legislation had been in force at the time.
(6) The operator of a facility must notify the facility to the Minister if either:
(a) the amount of unscheduled discrete organic chemicals produced at the facility during the year before the notification (whether that year ended before or after this section commences) was more than 200 tonnes; or
(b) the amount of a particular unscheduled discrete organic chemical:
(i) that was produced at a plant comprising, or comprising part of, the facility during that year; and
(ii) that contained one or more of the elements phosphorus, sulphur or fluorine;
was more than 30 tonnes.
(7) Subsection (6) does not apply if the facility was, in the year before the year in which it is notified, producing hydrocarbons or explosives in a manner specified in the regulations.
(8) In this section:
explosive has the meaning prescribed by the regulations.
hydrocarbon has the meaning prescribed by the regulations.
(1) A person must notify a facility referred to in section 28 to the Minister, in the circumstances required by that section, by giving the Controller notice in the approved form relating to that facility containing such information as is required by the form.
(2) A notification must be given by such day as is prescribed.
(3) A person commits an offence if:
(a) the person refuses or fails to do an act; and
(b) the refusal or failure causes a contravention of subsection (1) or (2).
Penalty: Imprisonment for 1 year.
(3A) Subsection (3) does not apply if the person has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (3A). See subsection 13.3(3) of the
Criminal Code .
(1) This section applies to a facility if there is or was a permit to operate the facility during a particular year.
(2) The operator of a facility to which this section applies must:
(a) give the Director, by such day as is prescribed, a report in the approved form containing such information as is required by the form in relation to:
(i) the location, ownership and operation of the facility during the particular year; and
(ii) the plant or plants comprising, or comprising part of, the facility during a particular year; and
(iii) the chemicals dealt with at that facility during that particular year; and
(iv) the purposes to which those chemicals are put; and
(v) such other matters relevant to a declaration required to be given by Australia to the Organization under the Convention as are prescribed; and
(b) keep such records in relation to the facility, plants, the chemicals referred to in paragraph (a), as are required by the regulations; and
(c) prepare and give to the Director from those records, in such circumstances, and by such day, as is prescribed, a periodic report in the approved form containing such information as is required by the form; and
(d) prepare and give to the Director from those records, in such circumstances, and by such day, as is prescribed, a special report in the approved form containing such information as is required by the form.
(3) A person commits an offence if:
(a) the person refuses or fails to do an act; and
(b) the refusal or failure causes a contravention of subsection (2).
Penalty: Imprisonment for 2 years.
(3A) Subsection (3) does not apply if the person has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (3A). See subsection 13.3(3) of the
Criminal Code .(4) The regulations relating to the keeping of records referred to in paragraph (2)(b) may include, but are not limited to, regulations relating to:
(a) the form and content of such records; and
(b) the period for which such records are to be kept.
(1) This section applies if the Director thinks that a person, including the operator of a facility to which section 30 applies, is capable of giving information that is relevant to a declaration required to be given by Australia to the Organization under the Convention.
(2) The Director may, by written notice given to the person, require the person to give such information to the Director:
(a) if the person is a natural person—by writing signed by the person; or
(b) if the person is a body corporate—by writing signed by an officer authorised to sign on behalf of the body corporate;
within such reasonable period and in such manner as is specified in the notice.
(3) The Director may, by written notice given to a person, require the person to give to the Director particular documents, or documents of a particular kind, specified in the notice, within such reasonable period as is specified in the notice.
(4) A person must comply with a notice given to the person under this section.
(4A) A person commits an offence if:
(a) the person refuses or fails to do an act; and
(b) the refusal or failure causes a contravention of subsection (4).
Penalty: Imprisonment for 1 year.
(4B) Subsection (4A) does not apply if the person has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (4B). See subsection 13.3(3) of the
Criminal Code .(4C) Subsection (4A) does not apply to the extent that the person is not capable of complying with the notice.
Note: The defendant bears an evidential burden in relation to the matter in subsection (4C). See subsection 13.3(3) of the
Criminal Code .(5) The power of the Director under this section to require a person to give information or documents to the Director is in addition to:
(a) any obligation to give information or documents that the person may have under section 30; or
(b) any other power the Director has under this Act to require the person to give information or documents.
(1) Divisions 1, 5 and 6 ensure compliance with the Act through compliance inspections by national inspectors and offence‑related searches and seizures.
(2) Divisions 2, 3 and 7 facilitate routine international compliance inspections and challenge inspections by Organization inspectors in accordance with the Convention.
(3) Division 4 provides for warrants relating to compliance inspections, international compliance inspections and challenge inspections where consent entry is refused.
(4) Division 8:
(a) requires the Minister to enter into a facility agreement for Schedule 1 facilities; and
(b) allows the Minister to enter into facility agreements for Schedule 2 or 3 facilities or OCP facilities.
A reference in this Division to a compliance purpose is a reference to the purpose of:
(a) determining whether the provisions of this Act and the regulations have been or are being complied with at a declared facility; or
(b) determining whether the conditions applicable to a permit in force in respect of a declared facility have been or are being complied with by the permit holder; or
(c) in relation to a declared facility, other than a Schedule 1 facility—confirming the absence of any Schedule 1 chemical; or
(d) ensuring the proper functioning at a declared facility of any monitoring equipment installed in the course of an international compliance inspection or under a facility agreement.
(1) A reference in this Division to an inspection power is a reference to a power to:
(a) search a declared facility; or
(b) inspect or examine a matter or thing; or
(c) take samples of a matter or thing; or
(d) measure a matter or thing; or
(e) examine a document (including a record kept in accordance with the requirements of this Act, the regulations or the condition of a permit); or
(f) take extracts from, or make copies of, a document (including a record of a kind referred to in paragraph (e)); or
(g) operate any equipment, including electronic equipment, located at the facility if the national inspector believes, on reasonable grounds, that the equipment can be operated without damaging it.
(2) A power referred to in paragraph (1)(a), (b), (c), (d) or (g) may only be exercised in a manner that the national inspector believes, on reasonable grounds, to be in accordance with safety procedures applicable at the facility.
(1) A national inspector may:
(a) with the consent of the occupier of a declared facility; or
(b) under a warrant issued under section 50 in respect of a declared facility;
enter the facility, and exercise, on or in the facility, any inspection powers for a compliance purpose.
(2) A national inspector is not entitled to exercise any powers in relation to a declared facility in the circumstances set out in paragraph (1)(a) if:
(a) the occupier of the facility has required the national inspector to produce his or her identity card for inspection by the occupier; and
(b) the national inspector fails to comply with the requirement.
(3) The regulations may specify the incidence of inspection of different kinds of declared facilities under this Division.
A compliance inspection may only be carried out:
(a) during a period when there is a facility agreement in force in relation to that facility; or
(b) if there is no facility agreement in force in relation to that facility—during a permit year or notification year in relation to that facility or during the year next following that permit year or notification year.
A reference in this Division to an international compliance purpose is a reference to the purpose of:
(a) determining whether the provisions of this Act and the regulations have been or are being complied with at a declared facility; or
(b) determining whether the conditions applicable to a permit in force in respect of a declared facility have been or are being complied with by the permit holder; or
(c) in relation to a declared facility other than a Schedule 1 facility—confirming the absence of any Schedule 1 chemical; or
(d) ensuring the proper functioning at a declared facility of any monitoring equipment installed in the course of a previous international compliance inspection or under a facility agreement; or
(e) facilitating an inspection of a declared facility by an Organization inspector in accordance with the Convention and any applicable facility agreement.
(1) A reference in this Division to an international inspection power is a reference to a power to:
(a) search a declared facility; or
(b) take photographs (including video recordings), or make sketches, of the facility, of any equipment or any matter or thing on or in the facility; or
(c) inspect or examine a matter or thing; or
(d) take samples of a matter or thing; or
(e) measure a matter or thing; or
(f) examine a document (including a record kept under this Act or the regulations or under a condition of a permit); or
(g) take extracts from, or make copies of, a document (including a record of a kind referred to in paragraph (f)); or
(h) operate equipment, including electronic equipment, located at the facility, if the national inspector believes, on reasonable grounds, that the equipment can be operated without damaging it; or
(i) take onto a facility any equipment or material that is approved by the Organization and reasonably required for the purpose of exercising a power under any of the above paragraphs.
(2) A power referred to in paragraph (1)(a), (b), (c), (d), (e), (h) or (i) may only be exercised in a manner that the national inspector believes, on reasonable grounds, to be in accordance with safety procedures applicable at the facility.
(1) Subject to subsection (2), an international compliance inspection of a Schedule 1 facility may be carried out at any time.
(2) A national inspector and an Organization inspector may, subject to any facility agreement or arrangements for managed access referred to in Division 7:
(a) with the consent of the operator of a Schedule 1 facility; or
(b) under a warrant issued under section 51 in respect of the facility;
enter the facility and exercise, on or in the facility, any international inspection powers for international compliance purposes.
(3) In addition to their international inspection powers, the national inspector and Organization inspector may install and operate continuous on‑site monitoring equipment that is approved by the Organization at the Schedule 1 facility if the national inspector believes, on reasonable grounds, that it can be done in accordance with safety procedures applicable at the facility.
Note: For the obligations of a national inspector in relation to not delaying or otherwise hindering the carrying out of an international compliance inspection, see section 95 of this Act and paragraph 41 of Part II of the Verification Annex to the Convention.
(1) Subject to subsection (2), an international compliance inspection of a facility may be carried out during a year, if:
(a) the operator of the facility is likely to produce, process or consume during that year or the next year, at a plant comprising, or comprising part of, the facility, a quantity of a Schedule 2 chemical that is more than 10 times the Schedule 2 permit threshold for that chemical; or
(b) there was produced, processed or consumed, during any of the 3 years before that year, at a plant comprising, or comprising part of, the facility a quantity of a Schedule 2 chemical that is more than 10 times the Schedule 2 permit threshold for that chemical.
(2) A national inspector and an Organization inspector may, subject to any facility agreement or arrangements for managed access referred to in Division 7:
(a) with the consent of the operator of the facility; or
(b) under a warrant issued under section 51 in respect of the facility;
enter the facility and exercise, on or in the facility, any international inspection powers for international compliance purposes.
(3) In addition to their international inspection powers, the national inspector and Organization inspector may install and operate on‑site monitoring instruments that are approved by the Organization at the Schedule 2 facility for the duration of the inspection, if the national inspector believes, on reasonable grounds, that it can be done in accordance with safety procedures applicable at the facility.
Note: For the obligations of a national inspector in relation to not delaying or otherwise hindering the carrying out of an international compliance inspection, see section 95 of this Act and paragraph 41 of Part II of the Verification Annex to the Convention.
(1) Subject to subsection (2), an international compliance inspection of a facility may be carried out during a year, if:
(a) the operator of the facility is likely to produce, during that year or the next year:
(i) at the plant or plants comprising the facility—more than 200 tonnes of any Schedule 3 chemical; and
(ii) at any particular plant comprising, or comprising part of, the facility, more than 30 tonnes of that Schedule 3 chemical; or
(b) there was produced, during the year before that year:
(i) at the plant or plants comprising the facility—more than 200 tonnes of any Schedule 3 chemical; and
(ii) at a particular plant comprising, or comprising part of, the facility, more than 30 tonnes of that Schedule 3 chemical.
(2) A national inspector and an Organization inspector may, subject to any facility agreement or arrangements for managed access referred to in Division 7:
(a) with the consent of the operator of a Schedule 3 facility; or
(b) under a warrant issued under section 51 in respect of the facility;
enter the facility and exercise, on or in the facility, any international inspection powers for international compliance purposes.
Note: For the obligations of a national inspector in relation to not delaying or otherwise hindering the carrying out of an international compliance inspection, see section 95 of this Act and paragraph 41 of Part II of the Verification Annex to the Convention.
(1) Subject to subsection (2), an international compliance inspection of an OCP facility may be carried out at any time during the period:
(a) beginning on the day of notification of the facility under section 28; and
(b) ending 90 days after the start of the year following the year in which that notification occurred.
(2) A national inspector and an Organization inspector may, subject to any facility agreement or arrangements for managed access referred to in Division 7:
(a) with the consent of the operator of an OCP facility; or
(b) under a warrant issued under section 51 in respect of the facility;
enter the facility and exercise, on or in the facility, any international inspection powers for international compliance purposes.
Note: For the obligations of a national inspector in relation to not delaying or otherwise hindering the carrying out of an international compliance inspection, see section 95 of this Act and paragraph 41 of Part II of the Verification Annex to the Convention.
Neither a national inspector nor an Organization inspector is entitled to exercise any inspection powers in the circumstances set out in paragraph 39(2)(a), 40(2)(a), 41(2)(a) or 42(2)(a) in relation to a declared facility if:
(a) the occupier of the facility has required the national inspector to produce his or her identity card and the Organization inspector to produce written proof of his or her identity for inspection by the occupier; and
(b) either or both of the national inspector or the Organization inspector fail to comply with the requirement.
The regulations may specify the incidence of the inspection of different kinds of declared facilities under this Division.
A reference to a challenge inspection purpose is a reference to the purpose of facilitating a challenge inspection by an Organization inspector in accordance with:
(a) Article IX of the Convention; and
(b) if the challenge inspection is of a declared facility—any applicable facility agreement.
(1) A reference in this Division to a challenge inspection power is a reference to a power to:
(a) search premises that comprise a challenge inspection site; or
(b) take photographs (including video recordings), or make sketches, of the site or of equipment or any other matter or thing on or in the site; or
(c) monitor the exit of all vessels, aircraft or vehicles (other than personnel or personal vehicles) leaving the site; or
(d) inspect or examine a matter or thing; or
(e) take samples of a matter or thing; or
(f) measure a matter or thing; or
(g) examine a document (including a record kept under this Act or the regulations or under a condition of a permit); or
(h) take extracts from, or make copies of, a document (including a record of a kind referred to in paragraph (g)); or
(i) verify the proper functioning or calibration of any equipment (including any equipment that forms part of on‑site monitoring equipment); or
(j) install and operate on‑site monitoring equipment; or
(k) question personnel working on the site for the purposes of this Act; or
(l) operate equipment, including electronic equipment, located at the site, if the national inspector believes, on reasonable grounds, that the equipment can be operated without damaging it; or
(m) take onto the site any equipment or material that is approved by the Organization and that is reasonably required for the purpose of exercising a power under any of the above paragraphs; or
(n) do any other act or thing necessary or convenient to be done in order to carry out a challenge inspection in accordance with Article IX of the Convention.
(2) A power referred to in paragraph (1)(a), (b), (c), (d), (e), (f), (i), (j), (l), (m) or (n) may only be exercised in a manner that the national inspector believes, on reasonable grounds, to be in accordance with safety procedures applicable at the challenge inspection site.
(1) If Australia is informed of a challenge inspection of premises in Australia or an external Territory under Article IX of the Convention, the Minister may make a declaration in writing:
(a) that the challenge inspection is a challenge inspection for the purposes of this Act; and
(b) that the premises specified in the declaration are a challenge inspection site for the purposes of this Act.
(2) A national inspector and an Organization inspector may, subject to any facility agreement or arrangements for managed access referred to in Division 7:
(a) with the consent of the occupier of a challenge inspection site; or
(b) under a warrant issued under section 52 in respect of a challenge inspection site;
enter the premises comprising the challenge inspection site and exercise, on the site, any challenge inspection powers for a challenge inspection purpose.
(3) Neither a national inspector nor an Organization inspector is entitled to exercise any powers in the circumstances referred to in paragraph (2)(a) in relation to a challenge inspection site if:
(a) the occupier of the site has required the national inspector to produce his or her identity card and the Organization inspector to produce written proof of his or her identity for inspection by the occupier; and
(b) either or both of the national inspector or the Organization inspector fail to comply with the requirement.
Note: For the obligations of a national inspector in relation to not delaying or otherwise hindering the carrying out of a challenge inspection, see section 95 of this Act and paragraph 41 of Part II of the Verification Annex to the Convention.
(1) This section applies if the Minister is satisfied that a person has, in accordance with the Convention, been designated by a State Party as an observer in relation to a challenge inspection, for the purposes of this Act.
(2) The Minister must, in writing, declare the person designated by the State Party to be an observer for the purposes of this Act.
(3) If the Minister declares a person to be an observer, the Minister must give the person a copy of the declaration.
(4) Subject to subsection (5), an observer for the purposes of this Act may accompany a national inspector and an Organization inspector while they are exercising any challenge powers in relation to a challenge inspection site for the purposes of this Act.
(5) An observer is not entitled to enter a challenge inspection site, or any particular part of that site, if:
(a) the occupier of the site has informed the Director, in writing, that the observer is to be excluded from the site or from that part of the site; and
(b) the Director, by notice in writing given to the observer, informs the observer to that effect.
(6) An observer is not entitled to enter a challenge inspection site or to observe a national inspector and an Organization inspector exercising challenge inspection powers if:
(a) the occupier of the site has required the observer to produce written proof of his or her identity for inspection by the occupier; and
(b) the observer fails to comply with the requirement.
(1) This section applies where another State Party, without instituting challenge inspection procedures, has sought clarification from Australia, either directly or through the Organization, concerning the question whether there has been a breach of the Convention at particular premises.
(2) In a case to which this section applies, the Director may, with the consent of the occupier of the premises, give to the person holding an equivalent position to the Director in the State Party seeking clarification, or to the Organization, such information or documents concerning dealings with chemicals at, or transfer of chemicals from, the premises as will assist to clarify the matter.
(3) In a case to which this section applies, a national inspector may, with the consent of the occupier of the premises, conduct an inspection of the premises in the same manner and exercising the same powers as if:
(a) the inspection had been declared to be a challenge inspection; and
(b) the premises had been declared to be a challenge inspection site;
but without the necessity for Organization inspectors to be present while the inspection is conducted.
(4) For the purposes of a particular inspection, the challenge inspection procedures applicable to an inspection by consent apply subject to such of the prescribed modifications as the Director determines in writing are to apply.
(5) After conducting such an inspection the national inspector may, with the consent of the occupier of the premises concerned, report the results of the inspection to the State Party seeking clarification, either directly or through the Organization.
(6) In a case to which this section applies, the Director may, on behalf of Australia, enter into an arrangement with the person holding an equivalent office in the State Party seeking clarification, with the agreement of the occupier of the premises concerned, for a joint inspection of the premises to be carried out by national inspectors accompanied by foreign country inspectors nominated by the other State Party.
(7) The Director may make an arrangement under subsection (6), whether or not information or documents have been sought under subsection (2), or an inspection carried out under subsection (3).
(8) If the Minister is satisfied that, a person has, in accordance with the arrangements in subsection (6), been designated by a State Party as a foreign country inspector to Australia, the Minister may, in writing, declare the person to be a foreign country inspector for the purposes of this section.
(9) If the Minister declares a person to be a foreign country inspector for the purposes of this section, the Minister may give the person a copy of the declaration.
(10) The national inspector and the foreign country inspector may conduct an inspection of the premises in the same manner as if a challenge inspection were being conducted but, for the purposes of that inspection, the challenge inspection procedures applicable to an inspection by consent apply subject to such of the prescribed modifications as the Director determines in writing are to apply.
(11) Modifications under subsection (4) or (10) must not be such as reduce the rights given by this Act to the occupier of the premises concerned.
(12) The Director must not specify, in a determination under subsection (4) or (10), a particular modification that relates to a particular inspection unless, having regarding to the circumstances of that inspection, the Director is satisfied that it is appropriate to specify that modification.
(1) A national inspector may apply to a magistrate under this section for a compliance inspection warrant in relation to a declared facility.
(2) A magistrate may issue a compliance inspection warrant in relation to a declared facility if the magistrate is satisfied, by information on oath, that it is reasonably necessary to exercise inspection powers for a compliance purpose.
(3) A warrant issued under this section must:
(a) describe the premises to which the warrant relates; and
(b) state the name of the national inspector responsible for executing the warrant; and
(c) specify the period for which the warrant remains in force, which must not be more than 7 days; and
(d) state whether the entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and
(e) state the purpose for which the warrant is issued.
(4) Paragraph (3)(c) does not prevent the issue of successive warrants in relation to the same premises.
(1) A national inspector may apply to a magistrate under this section for an international compliance inspection warrant in relation to a declared facility.
(2) A magistrate may issue an inspection warrant in relation to a declared facility if the magistrate is satisfied, by information on oath, that it is reasonably necessary to exercise international inspection powers for an international compliance purpose.
(3) A warrant issued under this section must:
(a) describe the declared facility to which the warrant relates; and
(b) state the name of the national inspector responsible for executing the warrant; and
(c) specify the period within which, in accordance with the Convention, entry under the warrant must be effected; and
(d) if the warrant relates to a Schedule 1 facility—state the period for which the inspection team is entitled, in accordance with the facility agreement in place in relation to that facility, to be present at the facility for the purposes of the inspection; and
(e) if the warrant relates to a declared facility other than a Schedule 1 facility—state the period for which, in accordance with section 53 and subject to any extension by the Minister, the inspection team is entitled to be present on the premises for the purposes of the inspection; and
(f) state the purpose for which the warrant is issued.
(1) A national inspector may apply to a magistrate under this section for a challenge inspection warrant in relation to a challenge inspection site.
(2) A magistrate may issue a challenge inspection warrant in relation to a challenge inspection site if the magistrate is satisfied, by information on oath, that it is reasonably necessary to exercise challenge inspection powers for a challenge inspection purpose.
(3) A warrant issued under this section must:
(a) describe the premises to which the warrant relates; and
(b) state the name of the national inspector responsible for executing the warrant; and
(c) if there has been no prior entry of the premises by consent—specify the period within which, in accordance with the Convention, entry under the warrant must be effected; and
(d) state the period for which, in accordance with section 53 and subject to any extension by the Minister, the inspection team is entitled to be present on the premises for the purposes of the inspection; and
(e) state the purpose for which the warrant is issued.
(1) The total period of an international compliance inspection of a declared facility must not exceed:
(a) in the case of a Schedule 2 facility—96 hours, or such longer period as the Minister, before the end of that 96 hours, authorises in writing; or
(b) in the case of a Schedule 3 facility or an OCP facility—24 hours, or such longer period as the Minister, before the end of that 24 hours, authorises in writing.
(2) The total period of a challenge inspection of any premises must not exceed 84 hours, or such longer period as the Minister, before the end of that 84 hours, authorises in writing.
(3) For the purposes of this section, the regulations may specify when an international compliance inspection starts and ends.
(4) For the purposes of this section, the regulations may specify when a challenge inspection starts and ends.
(1) If, on application in writing by the Director, the Minister is satisfied that an extension of an inspection period for an international compliance inspection or a challenge inspection is justified, the Minister may authorise the inspection to continue beyond the period referred to in section 53 for such period as the Minister specifies in writing.
(2) If the Minister authorises the extension of an inspection beyond the period referred to in section 53, the Minister must give a copy of the notice authorising the extended period of the inspection to the occupier of the facility and, in a case where the inspection is carried out in whole or in part under a warrant, to the magistrate who issued the warrant.
A challenge inspection warrant in relation to a challenge inspection site may, subject to any restrictions under subsection 48(5), authorise an observer to accompany a national inspector and Organization inspectors in their exercise of challenge inspection powers for a challenge inspection purpose.
In this Division, unless the contrary intention appears:
evidential material means an article or thing that may afford evidence as to the commission of an offence against this Act, including such a thing in electronic form.
warrant premises means premises in relation to which a warrant is in force.
(1) If a national inspector has reasonable grounds for suspecting that there may be on any premises particular evidential material, the inspector may:
(a) with the consent of the occupier of the premises; or
(b) under a warrant issued under section 58 or 63;
enter the premises and:
(c) search the premises for the evidential material; and
(d) if the inspector finds the evidential material on the premises—seize the evidential material found on the premises.
(2) A national inspector is not entitled to exercise any powers under paragraph (1)(a) in relation to premises if:
(a) the occupier of the premises has required the national inspector to produce his or her identity card for inspection by the occupier; and
(b) the national inspector fails to comply with the requirement.
(1) A national inspector may apply to a magistrate for a warrant under this section in relation to particular premises.
(2) Subject to subsection (3), a magistrate may issue a warrant to search premises if the magistrate is satisfied, by information on oath, that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, any evidential material at the premises.
(3) A magistrate must not issue the warrant unless a national inspector has given the magistrate, either orally (on oath or affirmation) or by affidavit, any further information the magistrate may require about the grounds on which the issue of the warrant is being sought.
(4) A warrant issued under this Division must:
(a) state the offence to which the warrant relates; and
(b) describe the premises to which the warrant relates; and
(c) describe the kinds of evidential material that are to be searched for under the warrant; and
(d) state the name of the national inspector responsible for executing the warrant; and
(e) state the period for which the warrant remains in force, which must not be more than 7 days; and
(f) state whether the warrant may be executed at any time or only during particular hours.
(5) The warrant should also state that it authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (4)(c)) found at the premises that the national inspector executing the warrant or a person assisting believes on reasonable grounds to be:
(a) evidential material in relation to an offence to which the warrant relates; or
(b) a thing relevant to another offence under this Act;
if the national inspector or person assisting believes, on reasonable grounds, that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.
(6) Paragraph (4)(e) does not prevent the issue of successive warrants in relation to the same premises.
(7) If an application for the warrant is made under section 63, this section applies as if:
(a) subsection (2) referred to 48 hours rather than 72 hours; and
(b) paragraph (4)(e) referred to 48 hours rather than 7 days.
(1) A warrant that is in force in relation to premises authorises the national inspector executing the warrant and a person assisting:
(a) to enter the warrant premises and, if the premises are a conveyance, to enter the conveyance, whatever it is; and
(b) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and
(c) to seize other things found at the premises in the course of the search that the national inspector or a person assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) evidential material in relation to another offence against this Act;
if the national inspector or person assisting believes on reasonable grounds that seizure of the things are necessary to prevent their concealment, loss or destruction or their use in committing an offence.
(2) If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.
(3) If things are seized under a warrant, the warrant authorises the national inspector executing the warrant to make the things available to officers of other agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence under another law of the Commonwealth or of a State or Territory to which the things relate.
(4) A power referred to in this section or in section 57, 60, 61, 62 or 64 may only be exercised in a manner that the national inspector believes, on reasonable grounds, to be in accordance with safety procedures applicable at the premises.
45. The inspection team shall be guided by the principle of conducting the challenge inspection in the least intrusive manner possible, consistent with the effective and timely accomplishment of its mission. Wherever possible, it shall begin with the least intrusive procedures it deems acceptable and proceed to more intrusive procedures only as it deems necessary.
46. The inspection team shall take into consideration suggested modifications of the inspection plan and proposals which may be made by the inspected State Party, at whatever stage of the inspection including the pre‑inspection briefing, to ensure that sensitive equipment, information or areas, not related to chemical weapons, are protected.
47. The inspected State Party shall designate the perimeter entry/exit points to be used for access. The inspection team and the inspected State Party shall negotiate: the extent of access to any particular place or places within the final and requested perimeters as provided in paragraph 48; the particular inspection activities, including sampling, to be conducted by the inspection team; the performance of particular activities by the inspected State Party; and the provision of particular information by the inspected State Party.
48. In conformity with the relevant provisions in the Confidentiality Annex the inspected State Party shall have the right to take measures to protect sensitive installations and prevent disclosure of confidential information and data not related to chemical weapons. Such measures may include,
(a) removal of sensitive papers from office spaces;
(b) shrouding of sensitive displays, stores, and equipment;
(c) shrouding of sensitive pieces of equipment, such as computer or electronic systems;
(d) logging off of computer systems and turning off of data indicating devices;
(e) restriction of sample analysis to presence or absence of chemicals listed in Schedules 1, 2 and 3 or appropriate degradation products;
(f) using random selective access techniques whereby the inspectors are requested to select a given percentage or number of buildings of their choice to inspect; the same principle can apply to the interior and content of sensitive buildings;
(g) in exceptional cases, giving only individual inspectors access to certain parts of the inspection site.
49. The inspected State Party shall make every reasonable effort to demonstrate to the inspection team that any object, building, structure, container or vehicle to which the inspection team has not had full access, or which has been protected in accordance with paragraph 48, is not used for purposes related to the possible non‑compliance concerns raised in the inspection request.
50. This may be accomplished by means of,
51. In the case of facilities declared pursuant to Articles IV, V and VI, the following shall apply:
(a) for facilities with facility agreements, access and activities within the final perimeter shall be unimpeded within the boundaries established by the agreements;
(b) for facilities without facility agreements, negotiation of access and activities shall be governed by the applicable general inspection guidelines established under this Convention;
(c) access beyond that granted for inspections under Articles IV, V and VI shall be managed in accordance with procedures of this section.
52. In the case of facilities declared pursuant to Article III, paragraph 1(d), the following shall apply: if the inspected State Party, using procedures of paragraphs 47 and 48, has not granted full access to areas or structures not related to chemical weapons, it shall make every reasonable effort to demonstrate to the inspection team that such areas or structures are not used for purposes related to the possible non‑compliance concerns raised in the inspection request.
53. In accordance with the provisions of Article IX, paragraph 12, on the participation of an observer in the challenge inspection, the requesting State Party shall liaise with the Technical Secretariat to coordinate the arrival of the observer at the same point of entry as the inspection team within a reasonable period of the inspection team's arrival.
54. The observer shall have the right throughout the period of inspection to be in communication with the embassy of the requesting State Party located in the inspected State Party or in the Host State or, in the case of absence of an embassy, with the requesting State Party itself. The inspected State Party shall provide means of communication to the observer.
55. The observer shall have the right to arrive at the alternative or final perimeter of the inspection site, wherever the inspection team arrives first, and to have access to the inspection site as granted by the inspected State Party. The observer shall have the right to make recommendations to the inspection team, which the team shall take into account to the extent it deems appropriate, Throughout the inspection, the inspection team shall keep the observer informed about the conduct of the inspection and the findings.
56. Throughout the in‑country period, the inspected State Party shall provide or arrange for the amenities necessary for the observer such as communication means, interpretation services, transportation, working space, lodging, meals and medical care. All the costs in connection with the stay of the observer on the territory of the inspected State Party or the Host State shall be borne by the requesting State Party.
57. The period of inspection shall not exceed 84 hours, unless extended by agreement with the inspected State Party.
D. POST‑INSPECTION ACTIVITIES
58. Upon completion of the post‑inspection procedures at the inspection site, the inspection team and the observer of the requesting State Party shall proceed promptly to a point of entry and shall then leave the territory of the inspected State Party in the minimum time possible.
59. The inspection report shall summarize in a general way the activities conducted by the inspection team and the factual findings of the inspection team, particularly with regard to the concerns regarding possible non‑compliance with this Convention cited in the request for the challenge inspection, and shall be limited to information directly related to this Convention. It shall also include an assessment by the inspection team of the degree and nature of access and cooperation granted to the inspectors and the extent to which this enabled them to fulfil the inspection mandate. Detailed information relating to the concerns regarding possible non‑compliance with this Convention cited in the request for the challenge inspection shall be submitted as an Appendix to the final report and be retained within the Technical Secretariat under appropriate safeguards to protect sensitive information.
60. The inspection team shall, not later than 72 hours after its return to its primary work location, submit a preliminary inspection report, having taken into account,
61. A draft final inspection report shall be made available to the inspected State Party not later than 20 days after the completion of the challenge inspection. The inspected State Party has the right to identify any information and data not related to chemical weapons which should, in its view, due to its confidential character, not be circulated outside the Technical Secretariat. The Technical Secretariat shall consider proposals for changes to the draft final inspection report made by the inspected State Party and, using its own discretion, wherever possible, adopt them. The final report shall then be submitted not later than 30 days after the completion of the challenge inspection to the Director‑General for further distribution and consideration in accordance with Article IX, paragraphs 21 to 25.
PART XI
INVESTIGATIONS IN CASES OF ALLEGED USE OF CHEMICAL WEAPONS
A. GENERAL
1. Investigations of alleged use of chemical weapons, or of alleged use of riot control agents as a method of warfare, initiated pursuant to Articles IX of X, shall be conducted in accordance with this Annex and detailed procedures to be established by the Director‑General.
2. The following additional provisions address specific procedures required in cases of alleged use of chemical weapons.
B. PRE‑INSPECTION ACTIVITIES
3. The request for an investigation of an alleged use of chemical weapons to be submitted to the Director‑General, to the extent possible, should include the following information:
(a) the State Party on whose territory use of chemical weapons is alleged to have taken place;
(b) the point of entry or other suggested safe routes of access;
(c) location and characteristics of the areas where chemical weapons are alleged to have been used;
(d) when chemical weapons are alleged to have been used;
(e) types of chemical weapons believed to have been used;
(f) extent of alleged use;
(g) characteristics of the possible toxic chemicals;
(h) effects on humans, animals and vegetation;
(i) request for specific assistance, if applicable.
4. The State Party which has requested an investigation may submit at any time any additional information it deems necessary.
5. The Director‑General shall immediately acknowledge receipt to the requesting State Party of its request and inform the Executive Council and all States Parties.
6. If applicable, the Director‑General shall notify the State Party on whose territory an investigation has been requested. The Director‑General shall also notify other States Parties if access to their territories might be required during the investigation.
7. The Director‑General shall prepare a list of qualified experts whose particular field of expertise could be required in an investigation of alleged use of chemical weapons and constantly keep this list updated. This list shall be communicated, in writing, to each State Party not later than 30 days after entry into force of this Convention and after each change to the list. Any qualified expert included in this list shall be regarded as designated unless a State Party, not later than 30 days after its receipt of the list, declares its non‑acceptance in writing.
8. The Director‑General shall select the leader and members of an inspection team from the inspectors and inspection assistants already designated for challenge inspections taking into account the circumstances and specific nature of a particular request. In addition, members of the inspection team may be selected from the list of qualified experts when, in the view of the Director‑General, expertise not available among inspectors already designated is required for the proper conduct of a particular investigation.
9. When briefing the inspection team, the Director‑General shall include any additional information provided by the requesting State Party, or any other sources, to ensure that the inspection can be carried out in the most effective and expedient manner.
10. Immediately upon the receipt of a request for an investigation of alleged use of chemical weapons the Director‑General shall, through contacts with the relevant States Parties, request and confirm arrangements for the safe reception of the team.
11. The Director‑General shall dispatch the team at the earliest opportunity, taking into account the safety of the team.
12. If the inspection team has not been dispatched within 24 hours from the receipt of the request, the Director‑General shall inform the Executive Council and the States Parties concerned about the reasons for the delay.
13. The inspection team shall have the right to be briefed by representatives of the inspected State Party upon arrival and at any time during the inspection.
14. Before the commencement of the inspection the inspection team shall prepare an inspection plan to serve,
C. CONDUCT OF INSPECTIONS
15. The inspection team shall have the right of access to any and all areas which could be affected by the alleged use of chemical weapons. It shall also have the right of access to hospitals, refugee camps and other locations it deems relevant to the effective investigation of the alleged use of chemical weapons. For such access, the inspection team shall consult with the inspected State Party.
16. The inspection team shall have the right to collect samples of types, and in quantities it considers necessary. If the inspection team deems it necessary, and if so requested by it, the inspected State Party shall assist in the collection of samples under the supervision of inspectors or inspection assistants. The inspected State Party shall also permit and cooperate in the collection of appropriate control samples from areas neighbouring the site of the alleged use and from other areas as requested by the inspection team.
17. Samples of importance in the investigation of alleged use include toxic chemicals, munitions and devices, remnants of munitions and devices, environmental samples (air, soil, vegetation, water, snow, etc.) and biomedical samples from human or animal sources (blood, urine, excreta, tissue etc.).
18. If duplicate samples cannot be taken and the analysis is performed at off‑site laboratories, any remaining sample shall, if so requested, be returned to the inspected State Party after the completion of the analysis.
If the inspection team during an inspection deems it necessary to extend the investigation into a neighbouring State Party, the Director‑General shall notify that State Party about the need for access to its territory and request and confirm arrangements for the safe reception of the team.
20. If the inspection team deems that safe access to a specific area relevant to the investigation is not possible, the requesting State Party shall be informed immediately. If necessary, the period of inspection shall be extended until safe access can be provided and the inspection team will have concluded its mission.
21. The inspection team shall have the right to interview and examine persons who may have been affected by the alleged use of chemical weapons. It shall also have the right to interview eyewitnesses of the alleged use of chemical weapons and medical personnel, and other persons who have treated or have come into contact with persons who may have been affected by the alleged use of chemical weapons. The inspection team shall have access to medical histories, if available, and be permitted to participate in autopsies, as appropriate, of persons who may have been affected by the alleged use of chemical weapons.
D. REPORTS
22. The inspection team shall, not later than 24 hours after its arrival on the territory of the inspected State Party, send a situation report to the Director‑General. It shall further throughout the investigation send progress reports as necessary.
23. The inspection team shall, not later than 72 hours after its return to its primary work location, submit a preliminary report to the Director‑General. The final report shall be submitted to the Director‑General not later than 30 days after its return to its primary work location. The Director‑General shall promptly transmit the preliminary and final reports to the Executive Council and to all States Parties.
24. The situation report shall indicate any urgent need for assistance and any other relevant information. The progress reports shall indicate any further need for assistance that might be identified during the course of the investigation.
25. The final report shall summarize the factual findings of the inspection, particularly with regard to the alleged use cited in the request. In addition, a report of an investigation of an alleged use shall include a description of the investigation process, tracing its various stages, with special reference to:
(a) the locations and time of sampling and on‑site analyses; and
(b) supporting evidence, such as the records of interviews, the results of medical examinations and scientific analyses, and the documents examined by the inspection team.
26. If the inspection team collects through,
E. STATES NOT PARTY TO THIS CONVENTION
27. In the case of alleged use of chemical weapons involving a State not Party to this Convention or in territory not controlled by a State Party, the Organization shall closely cooperate with the Secretary‑General of the United Nations. If so requested, the Organization shall put its resources at the disposal of the Secretary‑General of the United Nations.
ANNEX 3
ANNEX ON THE PROTECTION OF CONFIDENTIAL INFORMATION (“CONFIDENTIALITY ANNEX”)
CONTENTS
Page
A. | GENERAL PRINCIPLES FOR THE HANDLING OF CONFIDENTIAL INFORMATION | 109 |
B. | EMPLOYMENT AND CONDUCT OF PERSONNEL IN THE TECHNICAL SECRETARIAT | 111 |
C. | MEASURES TO PROTECT SENSITIVE INSTALLATIONS AND PREVENT DISCLOSURE OF CONFIDENTIAL DATA IN THE COURSE OF ON‑SITE VERIFICATION ACTIVITIES | 111 |
D. | PROCEDURES IN CASE OF BREACHES OR ALLEGED BREACHES OF CONFIDENTIALITY | 112 |
A. GENERAL PRINCIPLES FOR THE HANDLING OF CONFIDENTIAL INFORMATION
1. The obligation to protect confidential information shall pertain to the verification of both civil and military activities and facilities. Pursuant to the general obligations set forth in Article VIII, the Organization shall:
(a) require only the minimum amount of information and data necessary for the timely and efficient carrying out of its responsibilities under this Convention;
(b) take the necessary measures to ensure that inspectors and other staff members of the Technical Secretariat meet the highest standards of efficiency, competence, and integrity;
(c) develop agreements and regulations to implement the provisions of this Convention and shall specify as precisely as possible the information to which the Organization shall be given access by a State Party.
2. The Director‑General shall have the primary responsibility for ensuring the protection of confidential information. The Director‑General shall establish a stringent regime governing the handling of confidential information by the Technical Secretariat, and in doing so, shall observe the following guidelines:
(a) information shall be considered confidential if:
(i) it is so designated by the State Party from which the information was obtained and to which the information refers; or
(ii) in the judgement of the Director‑General, its unauthorized disclosure could reasonably be expected to cause damage to the State Party to which it refers or to the mechanisms for implementation of this Convention;
(b) all data and documents obtained by the Technical Secretariat shall be evaluated by the appropriate unit of the Technical Secretariat in order to establish whether they contain confidential information. Data required by States Parties to be assured of the continued compliance with this Convention by other States Parties shall be routinely provided to them. Such data shall encompass:
(i) the initial and annual reports and declarations provided by States Parties under Articles III, IV, V and VI, in accordance with the provisions set forth in the Verification Annex;
(ii) general reports on the results and effectiveness of verification activities; and
(iii) information to be supplied to all States Parties in accordance with the provisions of this Convention;
(c) no information obtained by the Organization in connection with the implementation of this Convention shall be published or otherwise released, except, as follows:
(i) general information on the implementation of this Convention may be compiled and released publicly in accordance with the decisions on the Conference of the Executive Council;
(ii) any information may be released with the express consent of the State Party to which the information refers;
(iii) information classified as confidential shall be released by the Organization only through procedures which ensure that the release of information only occurs in strict conformity with the needs of this Convention. Such procedures shall be considered and approved by the Conference pursuant to Article VIII, paragraph 21(i);
(d) the level of sensitivity of confidential data or documents shall be established, based on criteria to be applied uniformly in order to ensure their appropriate handling and protection. For this purpose, a classification system shall be introduced, which by taking account of relevant work undertaken in the preparation of this Convention shall provide for clear criteria ensuring the inclusion of information into appropriate categories of confidentiality and the justified durability of the confidential nature of information. While providing for the necessary flexibility in its implementation the classification system shall protect the rights of States Parties providing confidential information. A classification system shall be considered and approved by the Conference pursuant to Article VIII, paragraph 21(i);
(e) confidential information shall be stored securely at the premises of the Organization. Some data or documents may also be stored with the National Authority of a State Party. Sensitive information, including,
inter alia , photographs, plans and other documents required only for the inspection of a specific facility may be kept under lock and key at this facility;(f) to the greatest extent consistent with the effective implementation of the verification provisions of this Convention, information shall be handled and stored by the Technical Secretariat in a form that precludes direct identification of the facility to which it pertains;
(g) the amount of confidential information removed from a facility shall be kept to a minimum necessary for the timely and effective implementation of the verification provisions of this Convention; and
(h) access to confidential information shall be regulated in accordance with its classification. The dissemination of confidential information within the Organization shall be strictly on a need‑to‑know basis.
3. The Director‑General shall report annually to the Conference on the implementation of the regime governing the handling of confidential information by the Technical Secretariat.
4. Each State Party shall treat information which it receives from the Organization in accordance with the level of confidentiality established for that information. Upon request, a State Party shall provide details on the handling of information provided to it by the Organization.
B. EMPLOYMENT AND CONDUCT OF PERSONNEL IN THE TECHNICAL SECRETARIAT
5. Conditions of staff employment shall be such as to ensure that access to and handling of confidential information shall be in conformity with the procedures established by the Director‑General in accordance with Section A.
6. Each position in the Technical Secretariat shall be governed by a formal position description that specifies the scope of access to confidential information, if any, needed in that position.
7. The Director‑General, the inspectors and the other members of the staff shall not disclose even after termination of their functions to any unauthorized persons any confidential information coming to their knowledge in the performance of their official duties. They shall not communicate to any State, organization or person outside the Technical Secretariat any information to which they have access in connection with their activities in relation to any State Party.
8. In the discharge of their functions inspectors shall only request the information and data which are necessary to fulfil their mandate. They shall not make any records of information collected incidentally and not related to verification of compliance with this Convention.
9. The staff shall enter into individual secrecy agreements with the Technical Secretariat covering their period of employment and a period of five years after it is terminated.
10. In order to avoid improper disclosures, inspectors and staff members shall be appropriately advised and reminded about security considerations and of the possible penalties that they would incur in the event of improper disclosure.
11. Not less than 30 days before an employee is given clearance for access to confidential information that refers to activities on the territory or in any other place under the jurisdiction or control of a State Party, the State Party concerned shall be notified of the proposed clearance. For inspectors the notification of a proposed designation shall fulfil this requirement.
12. In evaluating the performance of inspectors and any other employees of the Technical Secretariat, specific attention shall be given to the employee’s record regarding protection of confidential information.
C. MEASURES TO PROTECT SENSITIVE INSTALLATIONS AND PREVENT DISCLOSURE OF CONFIDENTIAL DATA IN THE COURSE OF ON‑SITE VERIFICATION ACTIVITIES
13. States Parties may take such measures as they deem necessary to protect confidentiality, provided that they fulfil their obligations to demonstrate compliance in accordance with the relevant Articles and the Verification Annex. When receiving an inspection, the State Party may indicate to the inspection team the equipment, documentation or areas that it considers sensitive and not related to the purpose of the inspection.
14. Inspection teams shall be guided by the principle of conducting on‑site inspections in the least intrusive manner possible consistent with the effective and timely accomplishment of their mission. They shall take into consideration proposals which may be made by the State Party receiving the inspection, at whatever stage of the inspection, to ensure that sensitive equipment or information, not related to chemical weapons, is protected.
15. Inspection teams shall strictly abide by the provisions set forth in the relevant Articles and Annexes governing the conduct of inspections. They shall fully respect the procedures designed to protect sensitive installations and to prevent the disclosure of confidential data.
16. In the elaboration of arrangements and facility agreements, due regard shall be paid to the requirement of protecting confidential information. Agreements on inspection procedures for individual facilities shall also include specific and detailed arrangements with regard to the determination of those areas of the facility to which inspectors are granted access, the storage of confidential information on‑site, the scope of the inspection effort in agreed areas, the taking of samples and their analysis, the access to records and the use of instruments and continuous monitoring equipment.
17. The report to be prepared after each inspection shall only contain facts relevant to compliance with this Convention. The report shall be handled in accordance with the regulations established by the Organization governing the handling of confidential information. If necessary, the information contained in the report shall be processed into less sensitive forms before it is transmitted outside the Technical Secretariat and the inspected State Party.
D. PROCEDURES IN CASE OF BREACHES OR ALLEGED BREACHES OF CONFIDENTIALITY
18. The Director‑General shall establish necessary procedures to be followed in case of breaches or alleged breaches of confidentiality, taking into account recommendations to be considered and approved by the Conference pursuant to Article VIII, paragraph 21(i).
19. The Director‑General shall oversee the implementation of individual secrecy agreements. The Director‑General shall promptly initiate an investigation if, in his judgement, there is sufficient indication that obligations concerning the protection of confidential information have been violated. The Director‑General shall also promptly initiate an investigation if an allegation concerning a breach of confidentiality is made by a State Party.
20. The Director‑General shall impose appropriate punitive and disciplinary measures on staff members who have violated their obligations to protect confidential information. In cases of serious breaches, the immunity from jurisdiction may be waived by the Director‑General.
21. States Parties shall, to the extent possible, cooperate and support the Director‑General in investigating any breach or alleged breach of confidentiality and in taking appropriate action in case a breach has been established.
22. The Organization shall not be held liable for any breach of confidentiality committed by members of the Technical Secretariat.
23. For breaches involving both a State Party and the Organization, a “Commission for the settlement of disputes related to confidentiality”, set up as a subsidiary organ of the Conference, shall consider the case. This Commission shall be appointed by the Conference. Rules governing its composition and operating procedures shall be adopted by the Conference at its first session.
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
The abbreviation key sets out abbreviations that may be used in the endnotes.
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
The
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under section 15V of the
If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.
ad = added or inserted | o = order(s) |
am = amended | Ord = Ordinance |
amdt = amendment | orig = original |
c = clause(s) | par = paragraph(s)/subparagraph(s) |
C[x] = Compilation No. x | /sub‑subparagraph(s) |
Ch = Chapter(s) | pres = present |
def = definition(s) | prev = previous |
Dict = Dictionary | (prev…) = previously |
disallowed = disallowed by Parliament | Pt = Part(s) |
Div = Division(s) | r = regulation(s)/rule(s) |
ed = editorial change | reloc = relocated |
exp = expires/expired or ceases/ceased to have | renum = renumbered |
effect | rep = repealed |
F = Federal Register of Legislation | rs = repealed and substituted |
gaz = gazette | s = section(s)/subsection(s) |
LA = | Sch = Schedule(s) |
LIA = | Sdiv = Subdivision(s) |
(md) = misdescribed amendment can be given | SLI = Select Legislative Instrument |
effect | SR = Statutory Rules |
(md not incorp) = misdescribed amendment | Sub‑Ch = Sub‑Chapter(s) |
cannot be given effect | SubPt = Subpart(s) |
mod = modified/modification | |
No. = Number(s) | commenced or to be commenced |
Chemical Weapons (Prohibition) Act 1994 | 26, 1994 | 25 Feb 1994 | s 1 and 2: 25 Feb 1994 (s 2(1)) s 86–89, 95–97, 99 and 102–104: 15 Feb 1995 (gaz 1995, No GN4) Remainder: 29 Apr 1997 (s 2(4)(b)) | |
Foreign Affairs and Trade Legislation Amendment Act 1997 | 150, 1997 | 17 Oct 1997 | Sch 1 (item 1): 17 Oct 1997 (s 2(1)) | — |
Chemical Weapons (Prohibition) Amendment Act 1998 | 9, 1998 | 6 Apr 1998 | Sch 1 (items 3, 5–15, 17–22, 24–29, 45, 48–50, 55–59, 72–74): 6 Oct 1998 Remainder: 6 Apr 1998 (s 2 (1)) | Sch 1 (items 72–75) |
Public Employment (Consequential and Transitional) Amendment Act 1999 | 146, 1999 | 11 Nov 1999 | Sch 1 (item 284): 5 Dec 1999 (gaz 1999, No S584)(s 2(1) and (2)) | — |
Foreign Affairs and Trade Legislation Amendment (Application of Criminal Code) Act 2001 | 35, 2001 | 28 Apr 2001 | 26 May 2001 (s 2(b)) | s 4 |
Non‑Proliferation Legislation Amendment Act 2003 | 132, 2003 | 12 Dec 2003 | Sch 1: 13 Dec 2003 Remainder: 12 Dec 2003 (s 2(1) item 3) | — |
Non‑Proliferation Legislation Amendment Act 2007 | 50, 2007 | 10 Apr 2007 | Sch 1 (items 2–7): 11 Apr 2007 (s 2(1) item 2) | — |
Statute Law Revision Act 2011 | 5, 2011 | 22 Mar 2011 | Sch 7 (item 32): 19 Apr 2011 (s 2(1) item 19) | — |
Acts Interpretation Amendment Act 2011 | 46, 2011 | 27 June 2011 | Sch 2 (items 323, 324) and Schedule 3 (items 10, 11): 27 Dec 2011 (s 2(1) items 3, 12) | Sch 3 (items 10, 11) |
Statute Law Revision Act (No 1) 2014 | 31, 2014 | 27 May 2014 | Sch 4 (item 62): 24 June 2014 (s 2(1) item 9) | — |
Statute Law Revision Act (No. 1) 2015 | 5, 2015 | 25 Feb 2015 | Sch 3 (items 47‑54): 25 Mar 2015 (s 2(1) item 10) | — |
Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015 | 126, 2015 | 10 Sep 2015 | Sch 1 (item 107): 5 Mar 2016 (s 2(1) item 2) | — |
Statute Law Revision Act (No. 1) 2016 | 4, 2016 | 11 Feb 2016 | Sch 4 (items 1, 44–46): 10 Mar 2016 (s 2(1) item 6) | — |
National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 | 67, 2018 | 29 June 2018 | Sch 2 (item 15): 29 Dec 2018 (s 2(1) item 3) | — |
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 | 38, 2024 | 31 May 2024 | Sch 11 (items 1, 4): 14 Oct 2024 (s 2(1) item 2) | — |
s 5............................................. | am No 50, 2007 |
s 7............................................. | am No 9, 1998 |
s 8............................................. | am No 50, 2007 |
s 8A........................................... | ad No 9, 1998 |
s 8B........................................... | ad No 9, 1998 |
am No 46, 2011; No 126, 2015 | |
s 9............................................. | am No 5, 2015 |
s 10............................................ | am No 9, 1998; No 46, 2011; No 126, 2015 |
s 11A......................................... | ad No 35, 2001 |
s 12............................................ | am No 35, 2001; No 50, 2007 |
s 15............................................ | am No 9, 1998 |
s 17............................................ | am No 9, 1988 |
s 18............................................ | am No 9, 1988 |
s 19A......................................... | ad No 9, 1998 |
s 20............................................ | am No 9, 1998 |
s 24A......................................... | ad No 9, 1998 |
s 26............................................ | am No 9, 1998; No 38, 2024 |
s 27............................................ | am No 38, 2024 |
s 28............................................ | am No 9, 1998 |
s 29............................................ | am No 9, 1998; No 35, 2001; No 4, 2016 |
s 30............................................ | am No 9, 1998; No 35, 2001; No 4, 2016 |
s 31............................................ | am No 35, 2001; No 4, 2016 |
s 39............................................ | am No 9, 1998 |
s 40............................................ | am No 9, 1998 |
s 41............................................ | am No 9, 1998 |
s 42............................................ | am No 9, 1998 |
s 43............................................ | am No 9, 1998 |
s 47............................................ | am No 9, 1998 |
Note to s 47................................ | ad No 9, 1998 |
s 48............................................ | am No 9, 1998 |
s 49............................................ | am No 9, 1998 |
s 53............................................ | am No 9, 1998 |
s 55............................................ | am No 9, 1998 |
s 63............................................ | am No 31, 2014 |
s 76............................................ | am No 9, 1998 |
s 77............................................ | rs No 35, 2001 |
am No 4, 2016 | |
s 78............................................ | rs No 35, 2011 |
am No 4, 2016 | |
s 79............................................ | am No 4, 2016 |
s 80............................................ | am No 9, 1998; No 35, 2001; No 4, 2016 |
s 86............................................ | am No 132, 2003 |
s 88............................................ | am No 132, 2003 |
s 93............................................ | am No 35, 2001 |
s 96............................................ | am No 9, 1998 |
s 98............................................ | am No 9, 1998 |
s 99............................................ | am No 146, 1999; No 5, 2011 |
s 101A....................................... | ad No 150, 1997 |
s 101B....................................... | ad No 9, 1998 |
s 102.......................................... | am No 9, 1998; No 35, 2001; No 5, 2011; No 4, 2016; No 67, 2018 |
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