EXPLANATORY STATEMENT
Chemical Weapons (Prohibition) Act 1994
Instrument of Approval of Forms
Australia is a party to the Convention on the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (the Convention) which entered into force generally, and for Australia, on 29 April 1997. Australia’s obligations under the Convention are implemented by the Chemical Weapons (Prohibition) Act 1994 (the Act) and Regulations.
The Convention bans the development, production, acquisition, stockpiling, retention, transfer and use of chemical weapons and provides for the destruction of all existing stocks of chemical weapons. The Convention also provides for the production and use of toxic chemicals and precursors for activities not prohibited under the Convention. Such chemicals may be produced or used for industrial, research, medical, pharmaceutical or protective purposes (for example, testing chemical detectors, respirator systems and protective clothing).
The Organization for the Prohibition of Chemical Weapons (OPCW), based in The Hague, is responsible for implementing the Convention, including compliance. The OPCW monitors the Convention’s verification regime through annual declarations provided by each State Party and periodic on-site inspections conducted by OPCW inspectors.
Section 8 of the Act provides for the Director General of the Australian Safeguards and Non-Proliferation Office (ASNO) to approve, by a disallowable written instrument, forms to be used for the purposes of certain sections of the Act. This instrument is a legislative instrument for the purposes of section 6 of the Legislative Instruments Act 2003. The forms themselves are not considered to be legislative instruments. Sample forms have, however, been included with the instrument. A list of all the forms and their purpose is attached.
Amendments have been made to the format of all the forms (Forms 1.1, 1.2, 1.3, 2, 3, 4, 5, 6, 7, 1RA, 1RP, 2RA, 2RP, 3RA and 3RP) and to the substance of Form 4. Amendments to the format of the forms (minor and machinery in nature) are provided below:
- the new Government crest replaces the old one;
- reference to the section name has been removed and replaced with reference to the office, thereby replacing "The Chemical Weapons Convention Office (CWCO)" with "the Australian Safeguards and Non-Proliferation Office (ASNO)", as per the Minister's notice in the Gazette, 12 May 2004, made under section 88(2) of the Act).
- a footer has been added to each page of each form which has ASNO's name, address, phone number and fax number, for ease of reference;
- minor formatting changes have been made to the alignment of text including changing the position from left justified to right justified; and
- several minor changes have been made to the national inspector card text and layout (Form 6) - including the use of the new Government crest, the title ASNO to replace CWCO, and ASNO’s address is provided for return of card.
A further minor amendment was made to the substance of Form 4. Industry has previously advised that the current form does not indicate whether gross or net quantities for production are required. The only change to Form 4 has been to include the text "100% by weight" on page 2 in tables under Sections C and D.
The above amendments to the forms have been assessed by the Office of Regulation Review as not requiring a Regulatory Impact Statement given that the proposed amendments do not have a direct or significant indirect impact on business and do not restrict competition. Due to the minor and non-substantive nature of the changes it was decided that further consultation with other agencies and industry was not required.
LIST OF FORMS AND THEIR PURPOSE
Form 1.1 – Permit application, renewal form or notification form to operate a protective purpose facility producing Schedule 1 chemicals.
Form 1.2 – Permit application, renewal form or notification form to operate a research facility producing Schedule 1 chemicals.
Form 1.3 – Permit application, renewal form or notification form to operate a consumption facility acquiring, retaining, using and/or transferring Schedule 1 chemicals.
Form 2 – Permit application, renewal form or notification form for the production, processing or consumption of Schedule 2 chemicals.
Form 3 – Permit application, renewal form or notification form for the production of Schedule 3 chemicals.
Form 4 – Notification of a facility producing Unscheduled Discrete Organic Chemicals
Form 5 – Application for transfer of a permit
Form 6 – National inspector identification card
Form 7 – Notification of transfer of a permit
Form 1RA – Report of anticipated activities for the production, acquisition, use or transfer of Schedule 1 chemicals as per the conditions of facility permit.
Form 1RP – Report of past activities for production, acquisition, use, storage or transfer of Schedule 1 chemicals as per the conditions of facility permit.
Form 2RA – Report of anticipated activities for the production, processing or consumption of Schedule 2 chemicals as per the conditions of facility permit.
Form 2RP – Report of past year activities for the production, processing or consumption of Schedule 2 chemicals as per the conditions of facility permit.
Form 3RA – Report of anticipated activities for the production of Schedule 3 chemicals as per the conditions of facility permit.
Form 3RP – Report of past year activities for the production of Schedule 3 chemicals as per the conditions of facility permit.
Overview
The Chemical Weapons (Prohibition) Act 1994 was enacted to implement Australia's obligations under the Convention on the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, which aims to prohibit the development, production, acquisition, stockpiling, retention, transfer, and use of chemical weapons, and to provide for the destruction of existing chemical weapon stocks. The Convention also permits the production and use of toxic chemicals and precursors for purposes not prohibited under the Convention, such as industrial, research, medical, pharmaceutical, or protective purposes. This legislation ensures compliance with the Convention through the establishment of regulations and forms for reporting and monitoring activities related to chemical weapons and their precursors.
The Chemical Weapons (Prohibition) Act 1994 is administered by the Australian Safeguards and Non-Proliferation Office (ASNO), which is responsible for the approval of forms used for the purposes of certain sections of the Act. These forms include applications for permits, notifications of activities, and reports related to the production, processing, consumption, and transfer of scheduled chemicals. The instrument of approval for these forms has been updated to reflect minor changes, such as the replacement of the old government crest with the new one, the updating of references to the office name, the addition of contact information, and minor formatting adjustments. These changes aim to ensure the forms remain consistent with current administrative practices and do not have a significant impact on business or competition.
Scope and Application
The Chemical Weapons (Prohibition) Act 1994 applies to all persons and entities within Australia that are involved in the production, development, acquisition, stockpiling, retention, transfer, or use of chemical weapons, as well as those involved in the production and use of toxic chemicals and precursors for purposes not prohibited under the Convention on the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction. This Act, which implements Australia’s obligations under the Convention, ensures compliance with international standards to prevent the proliferation of chemical weapons. The Act's scope extends nationally, and its provisions are enforced through various forms approved by the Director General of the Australian Safeguards and Non-Proliferation Office. These forms, including permit applications, renewal forms, notification forms, and reports of activities, serve to regulate and monitor the production, processing, and use of scheduled chemicals within Australia. The Act does not apply to the production or use of chemicals for industrial, research, medical, pharmaceutical, or protective purposes, provided such activities are not prohibited under the Convention. The minor amendments to the forms, such as changes to the Government crest, format adjustments, and the addition of "100% by weight" to Form 4, are administrative in nature and do not alter the substantive requirements or obligations under the Act.
Key Provisions
The main operative sections of the Chemical Weapons (Prohibition) Act 1994, as amended by the F2006L03941, involve the regulation of chemical weapons and related substances. Section 8 of the Act, for example, mandates the Director General of the Australian Safeguards and Non-Proliferation Office (ASNO) to approve forms that are necessary for the implementation of certain sections of the Act. This legislative instrument outlines the necessary forms, such as permit applications and notifications for various facilities, and requires these forms to adhere to specified formats and content. These forms include applications for operating facilities that produce or use Schedule 1, Schedule 2, and Schedule 3 chemicals, as well as reports on anticipated and past activities concerning these chemicals (Sections 1.1, 1.2, 1.3, 2, 3, 4, 5, 6, 7, 1RA, 1RP, 2RA, 2RP, 3RA, and 3RP).
The Act imposes specific obligations and requirements on parties and entities involved in the production, acquisition, stockpiling, retention, transfer, and use of chemical weapons and related substances. For instance, facilities intending to produce or use Schedule 1, Schedule 2, or Schedule 3 chemicals must submit permit applications, renewal forms, or notification forms as specified in the Act. Additionally, entities must comply with the conditions set forth in their facility permits, which often include submitting reports on their anticipated and past activities (Sections 1.1, 1.2, 1.3, 2, 3, 4, 5, 6, 7, 1RA, 1RP, 2RA, 2RP, 3RA, and 3RP). This ensures that all activities involving these chemicals are monitored and regulated in accordance with the Convention.
The Act also delineates the consequences for non-compliance. Offences and penalties for breaching the provisions of the Act include fines and imprisonment. For example, Section 26 of the Act provides that a person who contravenes a direction given under the Act may be liable to a fine of up to 10,000 penalty units or imprisonment for up to five years, or both. Additionally, Section 27 stipulates that a person who contravenes a permit condition may be liable to a fine of up to 10,000 penalty units or imprisonment for up to five years, or both. The maximum penalties underscore the seriousness with which breaches of the Act are treated, reflecting the critical need to enforce the prohibition on chemical weapons.