Nuclear Non-Proliferation (Safeguards) Regulations (Amendment)

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Legislation au F1998B00159 Regulations Not in force Legislative Instrument

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Nuclear Non-Proliferation (Safeguards) Regulations (Amendment) 1998 No. 173

EXPLANATORY STATEMENT

Statutory Rules 1998 No. 173

Issued by the Authority of the Minister for Foreign Affairs

Nuclear Non-Proliferation (Safeguards) Act 1987

Nuclear Non-Proliferation (Safeguards) Regulations (Amendment)

The Nuclear Non-Proliferation (Safeguards) Act 1987 ("the Act") gives effect to certain of Australia's obligations under international agreements relating to the peaceful use of nuclear material and facilities, including the Safeguards Agreement between Australia and the International Atomic Energy Agency (IAEA) pursuant to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), and various bilateral safeguards agreements.

Section 74 of the Nuclear Non-Proliferation (Safeguards) Act 1987 ("the Act") provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Section 70 of the Act requires actions under the Act to be not inconsistent with Australia's obligations under relevant international agreements, or to have regard to such obligations. Relevant international agreements are listed in subsections 70(4) and (5), or are to be prescribed by regulation for this purpose.

There are several agreements which are relevant to the operation of the Safeguards Act but which had not previously been prescribed, either because it was not considered essential to do so or because the agreements do not have a direct domestic impact, ie in terms of powers, discretions, etc which might be exercised under the Act. However, developments with the Australian Radiation Protection and Nuclear Safety (ARPANS) Bill led to a review of this situation. The ARPANS Bill is to be amended in the Senate, to provide that actions under that legislation are to be consistent with relevant international agreements. Relevant agreements are identified by reference to the processes under the Safeguards Act, ie to be taken into account under the ARPANS legislation it is necessary for an agreement to be prescribed under the Safeguards Act prior to entry into effect of the ARPANS legislation (expected on 1 July 1998). In these circumstances it is preferable to schedule all agreements of possible relevance.

The regulations give effect to:

(i)       the Exchanges of Notes constituting Agreements between Australia and the United States concerning the application of the Agreement concerning Peaceful Uses of Nuclear Energy of 5 July 1979 as a "prescribed international agreement" in terms of the Act, with the date of effect being 2 August 1985;

(ii)       the Agreement on the Privileges and Immunities of the International Atomic Energy Agency, as a "prescribed international agreement" in terms of the Act, with the date of effect being 9 May 1986;

(iii) the South Pacific Nuclear Free Zone Treaty, as a "prescribed international agreement" in terms of the Act, with the date of effect being 11 December 1986;

(iv) the Exchange of Notes constituting an Agreement between Australia and the United States concerning Australian Ores containing Uranium or Thorium (monazite and xenotime) as a "prescribed international agreement" in terms of the Act, with the date of effect being 13 December 1989;

(v)       the Exchange of Notes between Australia and Singapore constituting an Agreement concerning Cooperation in the Physical Protection of Nuclear Material as a "prescribed international agreement" in terms of the Act, with the date of effect being 15 December 1989;

(vi) the Exchange of Notes constituting an Agreement between Australia and Japan to amend the Exchange of Letters constituting an Agreement establishing an Implementing Arrangement pursuant to the Agreement for Co-operation in the Peaceful Uses of Nuclear Energy of 5 March 1982 as a "prescribed international agreement" in terms of the Act with the date of effect being 27 July 1990;

(vii) the Exchange of Notes constituting an Agreement between Australia and Sweden concerning Arrangements applying to Certain (Nuclear) Transfers between Sweden and Third Countries as a "prescribed international agreement" in terms of the Act, with the date of effect being 15 January 1991;

(viii) the Exchange of Notes constituting an Agreement between Australia and the United States to bring International Obligation Exchanges under the Coverage of the Agreement concerning Peaceful Uses of Nuclear Energy, and Agreed Minute, of 5 July 1979 as a "prescribed international agreement" in terms of the Act, with the date of effect being 16 December 1991;

(ix) the Exchange of Notes constituting an Agreement between Australia and Canada to amend, and to provide for International Obligation Exchanges under, the Agreement concerning the Peaceful Uses of Nuclear Energy of 9 March 1981 as a "prescribed international agreement" in terms of the Act, with the date of effect being 10 April 1995.

Details of the Regulations are as follows:

Regulation 1 specifies that these regulations commence on June 30 1998.

Regulation 2       states that these regulations amend the Nuclear Non-Proliferation (Safeguards) Regulations.

Regulation 3       provides for replacement of Schedule 1 of the Nuclear Non-Proliferation (Safeguards) Regulations with a new Schedule 1 that lists the existing four prescribed international agreements and adds the prescribed international agreements now given effect to by this amendment.

Overview

The Nuclear Non-Proliferation (Safeguards) Regulations (Amendment) 1998 No. 173, issued under the authority of the Minister for Foreign Affairs, serve to update and expand the existing framework set out in the Nuclear Non-Proliferation (Safeguards) Act 1987. This legislation aims to align Australia's domestic regulations with its international obligations under various nuclear non-proliferation agreements, ensuring consistency and compliance with the commitments made under these treaties. The policy objective is to enhance Australia's capacity to effectively implement and adhere to international safeguards on nuclear material and facilities, thereby contributing to global non-proliferation efforts. These amendments were enacted to address the need for a comprehensive and up-to-date list of prescribed international agreements, particularly in light of the impending changes to the Australian Radiation Protection and Nuclear Safety (ARPANS) Bill. By scheduling all relevant agreements, the regulations facilitate a smoother integration of international obligations into domestic law, thereby supporting Australia's role in the global nuclear governance framework.

Scope and Application

The Nuclear Non-Proliferation (Safeguards) Regulations (Amendment) 1998 pertains to the Nuclear Non-Proliferation (Safeguards) Act 1987, which is designed to implement Australia's obligations under various international agreements concerning the peaceful use of nuclear material and facilities. These agreements include the Safeguards Agreement between Australia and the International Atomic Energy Agency (IAEA) pursuant to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and other bilateral safeguards agreements. The Act applies to all entities and individuals within Australia involved in the production, use, or transfer of nuclear materials, ensuring compliance with international standards and agreements. The regulations extend to the whole of Australia, impacting industries and transactions related to nuclear activities. The regulations amend the existing Nuclear Non-Proliferation (Safeguards) Regulations by updating the list of prescribed international agreements that are necessary for actions under the Act to be consistent with Australia's international obligations. The amendments include several bilateral agreements with countries such as the United States, Japan, Canada, and others, which are now prescribed international agreements under the Act, thereby formalising their relevance for the purposes of the legislation.

Key Provisions

The Nuclear Non-Proliferation (Safeguards) Regulations (Amendment) 1998 No. 173 amends the Nuclear Non-Proliferation (Safeguards) Regulations by adding several international agreements to the list of prescribed agreements under the Nuclear Non-Proliferation (Safeguards) Act 1987. These amendments ensure that Australia's actions under the Act remain consistent with its obligations under these international agreements. Regulation 1 specifies that the amended regulations commence on 30 June 1998. Regulation 2 states that these regulations amend the existing Nuclear Non-Proliferation (Safeguards) Regulations, while Regulation 3 replaces Schedule 1 of the Regulations with a new Schedule 1 that includes the existing four prescribed international agreements and the additional agreements now added by this amendment. The parties or entities governed by the Act must ensure that their actions are consistent with the international agreements prescribed in Schedule 1. This includes adhering to the provisions of the agreements, such as the Safeguards Agreement between Australia and the International Atomic Energy Agency (IAEA) pursuant to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). The amendments also require that any actions taken under the Act must not be inconsistent with Australia's obligations under the relevant international agreements, as stipulated in section 70 of the Act. The agreements listed in Schedule 1 must be taken into account in all actions under the Act, and this is particularly important in light of the Australian Radiation Protection and Nuclear Safety (ARPANS) Bill, which is to be amended to require consistency with relevant international agreements. Breach of the obligations under the Act or the prescribed international agreements may result in civil or criminal consequences, depending on the nature and severity of the breach. The Act itself does not specify particular offences, penalties, or consequences for breach; however, the breaches of international agreements listed in Schedule 1 may attract penalties under the respective agreements or under Australian law if the breach constitutes a criminal offence. For example, violations of the Treaty on the Non-Proliferation of Nuclear Weapons may result in diplomatic or other measures under international law. It is important for parties and entities governed by the Act to be aware of their obligations under the prescribed international agreements and to take all necessary steps to ensure compliance.

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