Division Division 7 - Chemical Weapons (Prohibition) Act 1994 - Manner of conducting international compliance and challenge inspections—facility agreements and managed access | Zoe
An Act relating to the prohibition of the development, production, stockpiling or use of chemical weapons and the control of certain chemicals capable of being used as chemical weapons, and related provisions
Part 1—Preliminary
1 Short title
This Act may be cited as the Chemical Weapons (Prohibition) Act 1994.
2 Commencement
(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.
3 Object of Act
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.
4 Extension to external Territories
This Act extends to the external Territories.
5 Extra‑territorial operation of Act
(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.
6 Act binds the Crown
(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.
7 Definitions
(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.
8 Approved forms and approved procedures
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.
8A Electronic lodgment
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.
8B Regulations may define consumption, processing and production of chemicals
(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.
9 Conduct by directors, employees and agents
(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.
10 Determining aggregate amounts of chemicals
(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.
11 Application of Act
(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.
11A Application of the Criminal Code
Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Part 2—Offences relating to chemical weapons
12 Offences relating to chemical weapons
(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.
13 Notification of finding of substances or articles believed to be chemical weapons
(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.
14 Forfeiture and seizure of chemical weapons
(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.
Part 3—Permits and notifications concerning certain facilities
15 Outline of this Part
(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.
Division 1—Permits
16 When is a permit required?
(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.
17 Applications for permits
(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.
18 Grant of permits
(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.
19 Special considerations relating to permits for the operation of facilities in respect of Schedule 1 chemicals
(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.
19A Automatic renewal of permits
(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.
20 Non‑automatic renewal of permits
(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.
21 Renewals not able to be dealt with within time
(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.
22 Conditions relating to a permit facility
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.
23 Variation of permits
(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.
24 Transfer of permits
(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.
24A Transfer of permits—notification by previous 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.
25 Revocation of permits
(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.
26 Notice of certain decisions
(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.
27 Review of decisions
(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 the Administrative Review Tribunal Act 2024.
Division 2—Notifications
28 When is a notification required?
(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.
29 Making notifications required under section 28
(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.
Part 4—Record keeping and information gathering
30 Record keeping obligations in relation to certain facilities
(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.
31 Director may seek information for declarations and consultation purposes
(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.
Part 5—Verification procedures
32 Outline of this Part
(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.
Division 1—Compliance inspections by national inspectors
33 Compliance purpose
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.
34 Inspection powers
(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.
35 Compliance inspections by national inspectors
(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.
36 Period within which compliance inspection may be carried out
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.
Division 2—International compliance inspections
37 International compliance purpose
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.
38 International inspection powers
(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.
39 Routine international compliance inspections of Schedule 1 facilities
(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.
40 Routine international compliance inspections of facilities dealing with Schedule 2 chemicals
(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.
41 Routine international compliance inspections of facilities dealing with Schedule 3 chemicals
(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.
42 Routine international compliance inspections of OCP facilities
(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.
43 Inspectors not entitled to exercise powers under this Division in certain circumstances
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.
44 Incidence of routine international compliance inspections
The regulations may specify the incidence of the inspection of different kinds of declared facilities under this Division.
Division 3—Challenge inspections
45 Challenge inspection purposes
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.
46 Challenge inspection powers
(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.
47 Challenge inspections
(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.
48 Observers
(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.
49 Clarification procedures
(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.
Division 4—Warrants relating to compliance and challenge inspections
50 Compliance inspection warrants
(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.
51 International compliance inspection warrants
(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.
52 Challenge inspection warrants
(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.
53 Duration of inspection period
(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.
54 Ministerial extension of inspection periods
(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.
55 Challenge inspection warrant to authorise presence of an observer
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.
Division 5—Offence‑related searches and seizures
56 Definition
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.
57 Offence‑related searches and seizures
(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.
58 Offence‑related warrants
(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.
59 The things that are authorised by search warrant
(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.
60 Specific powers available to national inspectors executing warrants
(1) The national inspector executing a warrant or a person assisting may:
(a) for a purpose incidental to the execution of the warrant; or
(b) if the occupier of the premises consents in writing;
take photographs (including video recordings) of the premises or of things at the premises.
(2) If a warrant in relation to premises is being executed, the national inspector executing the warrant and a person assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily stop its execution and leave the premises:
(a) for not more than one hour; or
(b) for a longer period if the occupier of the premises consents in writing.
(3) If:
(a) the execution of a warrant is stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal; and
(c) the warrant is still in force;
the execution of the warrant may be completed.
61 Use of equipment to examine or process things
(1) The national inspector executing a warrant or a person assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of things found at the premises in order to determine whether they are things that may be seized under the warrant.
(2) If:
(a) it is not practicable to examine or process the things at the warrant premises; or
(b) the occupier of the premises consents in writing;
the things may be moved to another place so that the examination or processing can be carried out in order to determine whether they are things that may be seized under the warrant.
(3) If things containing electronically stored information are moved to another place for the purpose of examination or processing under subsection (2), the national inspector executing the warrant must, if it is practicable to do so:
(a) inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and
(b) allow the occupier or his or her representative to be present during the examination or processing.
(4) The national inspector executing the warrant or a person assisting may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant if the national inspector or person assisting believes, on reasonable grounds, that:
(a) the equipment is suitable for the examination or processing; and
(b) the examination or processing can be carried out without damage to the equipment or the thing.
62 Use of electronic equipment at premises
(1) The national inspector executing a warrant or a person assisting may operate electronic equipment located at the premises to see whether evidential material is accessible by doing so if he or she believes, on reasonable grounds, that the operation of the equipment can be carried out without damage to the equipment.
(2) If the national inspector executing the warrant or a person assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can, by using facilities at the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents so produced; or
(c) if the material can be transferred to a disk, tape or other storage device that:
(i) is brought to the premises; or
(ii) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;
operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises.
(3) The national inspector executing the warrant may seize equipment under paragraph (2)(a) only if:
(a) it is not practicable to put the material in documentary form as mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph (2)(c); or
(b) possession of the equipment by the occupier could constitute an offence.
(4) If the national inspector executing the warrant or a person assisting believes, on reasonable grounds, that:
(a) evidential material may be accessible by operating electronic equipment at the premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.
(5) The national inspector executing the warrant or a person assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.
(6) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
(7) If the national inspector executing the warrant or a person assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to the magistrate who issued the warrant for an extension of that period.
(8) The national inspector executing the warrant or a person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier may be heard in relation to the application.
(9) The provisions of this Division relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension.
63 Warrants by telephone or other electronic means
(1) A national inspector may make an application to a magistrate for a warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2) The magistrate may require communication by voice to the extent that is practicable in the circumstances.
(3) An application under this section must include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn.
(4) If an application is made to a magistrate under this section and the magistrate, after considering the information and having received and considered such further information (if any) as the magistrate requires, is satisfied that:
(a) a warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the magistrate may complete and sign the same form of warrant that would be issued under section 58.
(5) If the magistrate decides to issue the warrant, the magistrate is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.
(6) The national inspector must then complete a form of warrant in terms substantially corresponding to those given by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the warrant was signed.
(7) The national inspector must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the magistrate the form of warrant completed by the inspector and, if the information referred to in subsection (3) was not sworn, that information duly sworn.
(8) The magistrate is to attach to the documents provided under subsection (7) the form of warrant completed by the magistrate.
(9) If:
(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised; and
(b) the form of warrant signed by the magistrate is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
64 Retention of things which are seized
(1) Subject to any contrary order of a court, if a national inspector seizes a thing under section 58 or 63, the national inspector must return it if:
(a) the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; or
(b) if the thing was seized under a warrant issued under section 58 or 63:
(i) the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; or
(ii) the period of 60 days after its seizure ends;
whichever occurs first;
unless the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
(2) If a thing is seized under a warrant issued under section 58 or 63, at the end of the 60 days specified in subsection (1), the national inspector must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it unless:
(a) proceedings in respect of which the thing may afford evidence were begun before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or
(b) the national inspector may retain the thing because of an order under section 65; or
(c) the national inspector or another person is authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy or dispose of the thing.
65 Court of summary jurisdiction may permit a thing to be retained
(1) If a thing is seized under a warrant issued under section 58 or 63, and:
(a) before the end of 60 days after the seizure; or
(b) before the end of a period previously specified in an order of a court under this section;
proceedings in respect of which the thing may afford evidence have not commenced, the national inspector may apply to a court of summary jurisdiction for an order that he or she may retain the thing for a further period.
(2) If the court is satisfied that it is necessary for the national inspector to continue to retain the thing:
(a) for the purposes of an investigation as to whether an offence has been committed; or
(b) to enable evidence of an offence to be secured for the purposes of a prosecution;
the court may order that the national inspector may retain the thing for a period specified in the order.
(3) Before the court hears the application, it may require notice of the application to be given to such persons as the court thinks fit.
Division 6—Miscellaneous provisions relating to warrants
66 Announcement before entry
(1) Before the national inspector executing a warrant or a person assisting the national inspector enters:
(a) a declared facility under paragraph 39(2)(b), 40(2)(b), 41(2)(b) or 42(2)(b); or
(b) a challenge inspection site under paragraph 47(2)(b); or
(c) premises under paragraph 57(1)(b);
the national inspector or person assisting the national inspector must:
(d) announce that he or she is authorised by the warrant to enter the facility, site or premises; and
(e) give any person at the premises an opportunity to allow entry into or onto the facility, site or premises.
(2) The national inspector executing a warrant or a person assisting the national inspector is not required to comply with subsection (1) if he or she believes, on reasonable grounds, that immediate entry to the premises is required to ensure that the effective execution of the warrant is not frustrated.
67 Availability of assistance and use of force in executing warrant
In executing a warrant:
(a) the national inspector executing the warrant may obtain such assistance; and
(b) the national inspector or a person who is assisting in executing the warrant may use such force against persons and things;
as is necessary and reasonable in the circumstances.
68 Details of warrant to be given to occupier etc.
If a warrant in relation to a declared facility, a challenge inspection site or other premises is being executed and the occupier of the facility, site or premises is present at the facility, site or premises, the national inspector executing the warrant must make available a copy of the warrant to the occupier or other person.
69 Copies of seized things to be provided
(1) Subject to subsection (2), if a national inspector executing a warrant or a person assisting seizes under a warrant:
(a) a document, film, computer file or other thing that can be readily copied; or
(b) a storage device, the information in which can be readily copied;
that inspector or person assisting must, if requested to do so by the permit holder or the occupier of the premises or another person who apparently represents the permit holder or occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.
(2) Subsection (1) does not apply if the thing that has been seized was seized under paragraph 62(2)(a) or (b).
70 Compensation for damage to electronic equipment
(1) If:
(a) damage is caused to an instrument or other equipment as a result of being operated as mentioned in paragraph 34(1)(g), 38(1)(h) or 46(1)(l) or subsection 61(4) or 62(1); and
(b) the damage was caused as a result of:
(i) insufficient care being exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care being exercised by the person operating the equipment;
compensation for the damage is payable to the owner of the instrument or other equipment.
(2) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and his or her employees and agents, if they were available at the time, had provided any warning or guidance as to the operation of the instrument or other equipment that was appropriate in the circumstances.
71 Offence of making false statements in applications for warrant
A national inspector must not make, in an application for a warrant, a statement that the inspector knows to be false or misleading in a material particular.
Penalty: Imprisonment for 2 years.
72 Offences relating to telephone warrants
A national inspector must not:
(a) state in a document that purports to be a form of warrant issued under section 63 the name of a person as the magistrate issuing the warrant unless that magistrate issued the warrant; or
(b) state in a form of warrant under that section a matter that, to the person’s knowledge, departs in a material particular from the form authorised by the magistrate issuing the warrant; or
(c) purport to execute, or present to a person, a document that purports to be a form of warrant under section 63 that the person knows:
(i) has not been approved by the magistrate issuing the warrant; or
(ii) to depart in a material particular from the terms authorised by the magistrate issuing the warrant; or
(d) give to the magistrate a form of warrant under section 63 that is not the form of warrant that the inspector purported to execute.
Penalty: Imprisonment for 2 years.
Division 7—Manner of conducting international compliance and challenge inspections—facility agreements and managed access
73 Initial inspection plan
(1) An international compliance or challenge inspection must be carried out in the manner that is least intrusive consistent with achieving the purposes of the inspection.
(2) After an initial briefing (whether or not involving a preliminary inspection) and to facilitate the more detailed inspection of premises under an international compliance or challenge inspection, the persons comprising the inspection team must prepare and give to the Director an initial inspection plan specifying the activities proposed to be carried out by the inspection team and the places to which access is desired.
74 Initial inspection plan and conduct of inspection to be consistent with facility agreement
If an international compliance or challenge inspection is an inspection of a declared facility in respect of which a facility agreement is in force, the initial inspection plan and the conduct of the inspection must be consistent with that facility agreement.
75 Managed access
If an international compliance or challenge inspection:
(a) is an inspection of a declared facility in respect of which there is no facility agreement in force; or
(b) is an inspection of a place that is not a declared facility;
the inspection team must, in consultation with the Director, modify their initial inspection plan to whatever extent is justified, in accordance with the provisions relating to managed access in Annex 2 to the Convention, so as to ensure the protection of sensitive equipment, information and places that are not related to chemical weapons.
Division 8—Facility agreements
76 Facility agreements
(1) The Minister, on behalf of Australia, must enter into an agreement or arrangement with the Organization in relation to each single small‑scale facility, each protective facility, and each research facility at which it is anticipated that more than 100 grams of Schedule 1 chemicals will be produced during the year to which the permit relates.
(2) The Minister, on behalf of Australia, may enter into an agreement or arrangement with the Organization in relation to any other Schedule 1 facility, or any Schedule 2 or 3 facility or any OCP facility.
(3) An agreement or arrangement that is entered into under subsection (1) or (2) may cover such matters as the Minister thinks necessary to give effect to the Convention.
Part 6—Offences
77 Production etc. of Scheduled chemicals otherwise than in accordance with permit
(1) A person commits an offence if:
(a) the person is required under section 16 to have a permit to operate a facility so far as concerns the production, acquisition, retention or use of Schedule 1 chemicals at that facility, or the transfer of Schedule 1 chemicals from that facility; and
(b) the person produces, acquires, retains or uses Schedule 1 chemicals at that facility, or transfers Schedule 1 chemicals from that facility; and
(c) that conduct is engaged in without, or otherwise than in accordance with, such a permit.
Penalty: Imprisonment for 5 years or 500 penalty units, or both.
(2) A person commits an offence if:
(a) the person is required under section 16 to have a permit to operate a facility so far as concerns the production, processing or consumption of Schedule 2 chemicals at that facility; and
(b) the person produces, processes or consumes Schedule 2 chemicals at that facility; and
(c) that conduct is engaged in without, or otherwise than in accordance with, such a permit.
Penalty: Imprisonment for 2 years or 250 penalty units, or both.
(3) A person commits an offence if:
(a) the person is required under section 16 to have a permit to operate a facility so far as concerns the production of particular Schedule 3 chemicals at that facility; and
(b) the person produces that chemical at that facility; and
(c) that conduct is engaged in without, or otherwise than in accordance with, such a permit.
Penalty: 250 penalty units.
(4) A person commits an offence if:
(a) the person fails to do an act; and
(b) the failure to do the act causes a contravention of section 28.
Penalty: 100 penalty units.
(5) Subsection (4) does not apply if the person has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (4A). See subsection 13.3(3) of the Criminal Code.
78 Breach of condition of permit
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes a condition subject to which a permit is granted.
Penalty: 100 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: The defendant bears an evidential burden in relation to the matter in subsection (4A). See subsection 13.3(3) of the Criminal Code.
(3) An offence under subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
79 Interference with monitoring equipment
If monitoring equipment has been installed at a declared facility, a person who interferes with:
(a) the equipment; or
(b) its operation;
with the intention of adversely affecting the operation of the equipment commits an offence against this section.
Penalty: Imprisonment for 2 years.
80 False or misleading statements and documents
(1) A person who intentionally makes a statement, either orally or in writing, to the Minister, the Director, the Controller, a national inspector, an Organization inspector, a foreign country inspector or another person exercising a power or performing a function or duty in relation to this Act that is false or misleading in a material particular, commits an offence against this subsection.
Penalty: Imprisonment for 2 years.
(2) A person who gives a document to the Minister, the Director, the Controller, a national inspector, an Organization inspector, a foreign country inspector or another person exercising a power or performing a function or duty in relation to this Act, knowing or reckless that the document is false or misleading in a material particular, commits an offence against this subsection.
Penalty: Imprisonment for 2 years.
(3) A reference in subsection (1) to the making of a statement or in subsection (2) to the giving of a document is to be taken to include a reference to the making of a statement or the giving of a document under a condition of a permit.
(4) For the purposes of subsection (1), a statement made on a data storage device, or by way of electronic transmission, is taken to be a statement made in writing.
81 Forfeiture
(1) If a court:
(a) convicts a person of an offence against this Act; or
(b) makes an order under section 19B of the Crimes Act 1914 in respect of a person charged with an offence against this Act;
the court may order the forfeiture to the Commonwealth of any substance or article used or otherwise involved in the commission of the offence.
(2) A substance or article ordered by a court to be forfeited under this section becomes the property of the Commonwealth and may be sold or otherwise dealt with in accordance with the directions of the Minister.
(3) Before the Minister gives a direction, the substance or article must be kept in such custody as the Minister directs.
82 Hearing to be in private in certain circumstances
(1) At any time before or during the hearing of proceedings before a court in relation to an offence against this Act or the regulations, the court may, if the court thinks it appropriate to prevent the disclosure of information relating to chemical technology:
(a) order that some or all of the members of the public are to be excluded during the whole or a part of the proceedings; or
(b) order that no report of the whole or a specified part of the proceedings are to be published; or
(c) make orders, and give directions, prohibiting or restricting access, either before, during or after the proceedings, to any affidavit, exhibit, information or document used in the proceedings that is on the file in the court or in the records of the court.
(2) A person must not contravene an order made, or direction given, under subsection (1).
Penalty: Imprisonment for 2 years.
(3) On the completion of proceedings before a court in relation to an offence against this Act or the regulations, any document containing information relating to chemical technology that would otherwise form part of the records of the court must, as soon as practicable after the completion of those proceedings, be given to the Director.
(4) In this section, a reference to proceedings before a court includes a reference to committal proceedings in relation to an indictable offence.
(5) For the purposes of this section, proceedings are not taken to have been completed until:
(a) in the case of committal proceedings in relation to an indictable offence where the defendant is not committed for trial—the time when the committal proceedings end; or
(b) in the case of committal proceedings in relation to a indictable offence where a person is committed for trial in relation to an offence—the trial in relation to the offence has been determined and the time for bringing an appeal arising from the trial has expired or an appeal arising from the trial has been brought and has been determined; or
(c) otherwise—the time for bringing an appeal arising from those proceedings has expired or an appeal arising from those proceedings has been brought and has been determined.
83 Register of Permits and Notifications
(1) In a proceeding, the production of the Register of Permits and Notifications, or of a document certified by the Director to be a true copy of the Register, is prima facie evidence:
(a) if the name of a person has been entered in the Register as the name of the person to whom a permit in relation to a facility and a year has been granted or transferred—that the person became the permit holder on the day entered on the Register as the day on which the grant or transfer took place; or
(b) if the revocation of a permit granted in relation to a facility and a year is entered in the Register—that the permit was revoked on the day entered in the Register as the day of the revocation; or
(c) if the name of a person has not been entered in the Register as the name of a person to whom a permit in relation to a facility and a year has been granted or transferred—that the person is not, and never has been, the holder of that permit; or
(d) if the name of a person has been entered in the Register as the name of a person who notified a facility under section 29—that the person so notified the facility as the day specified in the Register as the day on which the notification was made; or
(e) if the name of a person has not been entered in the Register as the name of a person who notified under section 29—that the person has not so notified the facility.
(2) The production in a proceeding of a document purporting:
(a) to be a copy of the Register; and
(b) to be certified by the Director to be a true copy of the Register is prima facie evidence that it is such a copy and that it has been so certified.
84 Evidence of analyst
(1) The Minister may appoint a person to be an analyst for the purposes of this Act.
(2) Subject to subsection (4), a certificate signed by an analyst appointed under subsection (1) setting out, in relation to a substance or article, one or more of the following:
(a) when and from whom the substance or article was received;
(b) what labels or other means of identifying the substance or article accompanied it when it was received;
(c) what container the substance or article was in when it was received;
(d) a description of the substance or article received;
(e) that he or she has analysed or examined the substance or article;
(f) the date on which the analysis or examination was carried out;
(g) the method used in conducting the analysis or examination;
(h) the results of the analysis or examination;
is, in any proceedings for an offence against this Act or the regulations, prima facie evidence of the matters in the certificate and the correctness of the results of the analysis or examination.
(3) For the purposes of this section, a document purporting to be a certificate referred to in subsection (2) must, unless the contrary is established, be taken to be such a certificate and to have been duly given.
(4) A certificate must not be received in evidence under subsection (2) in a proceeding for an offence unless the person charged with the offence has been given a copy of the certificate together with reasonable notice of the intention to produce the certificate as evidence in the proceeding.
(5) If, under subsection (2), a certificate of an analyst is admitted in evidence in a proceeding for an offence against this Act or the regulations:
(a) the person charged with the offence may require the analyst to be called as a witness for the prosecution; and
(b) the analyst may be cross‑examined as if he or she had given evidence of the matters stated in the certificate.
(6) Subsection (5) does not entitle a person to require an analyst to be called as a witness for the prosecution unless:
(a) the prosecutor has been given at least 5 days notice of the person’s intention to require the analyst to be so called; or
(b) the Court, by order, allows the person to require the analyst to be so called.
85 Equipment or material approved by Organization
(1) The Director may, by written instrument, certify, for the purposes of this Act, that equipment or material is equipment or material approved by the Organization for use in relation to an international compliance or challenge inspection under this Act.
(2) In any proceedings that relate to the operation of this Act or the regulations, a certificate under subsection (1) is prima facie evidence of the matters in the certificate.
(3) In any proceedings that relate to the operation of this Act or the regulations, a document purporting to be a certificate referred to in subsection (1) must, unless the contrary is established, be taken to be such a certificate and to have been duly given.
Part 7—Administration
Division 1—Director of Chemical Weapons Convention Office
86 Director of the Chemical Weapons Convention Office
(1) The Minister may, by notice in writing, designate:
(a) a particular office within the Department or within an agency for which the Minister is responsible; or
(b) a particular statutory office established under legislation for which the Minister is responsible;
as the office whose occupant is the Director of the Chemical Weapons Convention Office.
(2) The person who, from time to time, holds, or is acting in, the office designated under subsection (1) is the Director of the Chemical Weapons Convention Office.
(3) The Director may be referred to by another title specified by the Minister by notice in the Gazette.
87 Functions of Director
The functions of the Director are:
(a) to ensure the effective operation of this Act; and
(b) to carry out, on behalf of Australia, the obligations that Australia has under the Convention; and
(c) to facilitate inspections of premises in Australia if Australia’s compliance with the Convention is challenged; and
(d) to carry out such duties and exercise such powers as are conferred upon the Director under this Act or the regulations or under any other law of the Commonwealth; and
(e) to do anything incidental or conducive to the performance of any of the functions referred to in paragraphs (a) to (d).
88 The Chemical Weapons Convention Office
(1) The Director, and such other staff of the Department, or of an agency in which the designated office is situated, as the Minister determines, together constitute the Chemical Weapons Convention Office.
(2) The Office may be referred to by another name specified by the Minister by notice in the Gazette.
89 Delegation by Director
The Director may, by signed writing, delegate to a member of the staff referred to in section 88, all or any of the Director’s powers under this Act or the regulations.
Division 2—Controller of Permits and Notifications
90 Controller of Permits and Notifications
The Director must, by notice in writing, designate another office within the Chemical Weapons Convention Office as the Controller of Permits and Notifications.
91 Function of the Controller
The function of the Controller is to process:
(a) applications for permits, renewals and transfers of permits under Division 1 of Part 3; and
(b) notifications to the Minister under Division 2 of that Part.
Division 3—National inspectors and consultants
92 National inspectors
(1) The Director is a national inspector.
(2) The Director may, from time to time, appoint other persons to be national inspectors.
(3) A national inspector may be, but is not required to be, an officer of the Chemical Weapons Convention Office.
93 Identity cards
(1) The Director must have, and must issue to every other national inspector, a card identifying the holder as a national inspector.
(2) An identity card must:
(a) be in an approved form; and
(b) incorporate a recent photograph of the person.
(3) As soon as practicable after a person ceases to be a national inspector the person must return the card to the Director.
Penalty for a contravention of this subsection: 1 penalty unit.
(4) An offence under subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
94 Engagement of consultants etc.
(1) The Director may, on behalf of the Commonwealth and with the approval of the Minister or of another person authorised in writing by the Minister for the purpose, engage, under agreements in writing, persons having suitable qualifications and experience as consultants to the Director.
(2) The terms and conditions of a person engaged by the Director under subsection (1) are such as are determined by the Director.
Part 8—Miscellaneous
95 Powers to be exercised in accordance with Convention
(1) A person may exercise a power or discretion, or perform a duty or function, conferred on the person under this Act only to the extent that the exercise or performance is not inconsistent with Australia’s obligations under the Convention.
(2) A person must, in exercising a power or discretion conferred by this Act, have regard to Australia’s obligations under the Convention.
96 Annual report by Director
(1) The Director must, as soon as practicable after 30 June in each year, prepare and give to the Minister a report on the operation of this Act during that year.
(1A) If:
(a) a person applied for a permit after the day prescribed for the purposes of subsection 17(1); or
(b) a person applied for a renewal of a permit after the day prescribed for the purposes of subsection 20(1);
the Director may name the person in a report under subsection (1) of this section as a person who made a late application for a permit, or for a renewal of a permit, as the case may be.
(2) The Minister must cause a copy of a report given to the Minister under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister is given the report.
97 Additional reports
The Director:
(a) must give to the Minister such additional reports or information in relation to the operations of the Director under this Act as the Minister requires; and
(b) may give to the Minister such other reports or information in relation to the operations of the Director under this Act as the Director thinks appropriate.
98 Register of Permits and Notifications
(1) The Director must keep a register to be known as the Register of Permits and Notifications.
(2) The Director must enter in the Register the name of each person to whom a permit is granted under section 18, renewed under section 19A or 20 or transferred under section 24, and particulars of the facility to which the permit relates.
(3) The Director must enter in the Register the name of each person by whom a notification is made under section 29 and particulars of the facility to which the permit relates.
(4) If a person is granted a permit under section 18, the Director must enter in the Register particulars of the permit (including particulars of the day on which the permit takes effect).
(5) If a permit is renewed under section 19A or 20, the Director must enter in the Register particulars of the renewal.
(6) If a permit is transferred to a person under section 24, the Director must enter in the Register particulars of the transfer (including particulars of the reasons why, and of the day on which, the permit was transferred).
(7) If a permit granted to a person under section 18 or renewed under section 19A or 20 is revoked or ends, the Director must enter in the Register particulars of the revocation or ending of the permit (including particulars of the day on which the revocation or ending of the permit occurs).
(8) The Register must be kept in a form prescribed by the regulations.
(9) The Director may correct clerical errors in the Register.
99 Delegation by Minister
The Minister may, by signed writing, delegate to:
(a) the Secretary of the Department; or
(b) the Director; or
(c) an SES employee, or acting SES employee, in the Department;
all or any of the Minister’s powers under this Act or the regulations.
100 Organization inspectors
(1) If the Minister is satisfied that a person has, in accordance with the Convention been designated as an Organization inspector or an Organization inspector assistant to Australia, the Minister must, in writing, declare the person to be an Organization inspector for the purposes of this Act.
(2) If the Minister declares the person to be an Organization inspector, the Minister must give the person a copy of the declaration.
101 Privileges and immunities of Organization inspectors and foreign country inspectors
An Organization inspector or a foreign country inspector is to have such privileges and immunities as are prescribed for the purposes of this section.
101A Privileges and immunities of observers
An observer is to have such privileges and immunities as are prescribed for the purposes of this section.
101B Privileges and immunities of other persons
(1) The regulations may provide that any or all of the persons referred to in an agreement:
(a) between Australia and the Organization; and
(b) made under paragraph 50 of Article VIII of the Convention;
are to have such of the privileges and immunities referred to in the agreement as are specified in the regulations.
(2) This section does not limit the International Organisations (Privileges and Immunities) Act 1963.
102 Secrecy
(1) For the purposes of this section, an eligible person is a person who is or has been:
(a) the Secretary of, or other officer of, the Department; or
(b) the Director or the acting Director; or
(c) a member of the staff referred to in section 88; or
(d) engaged as a consultant to the Director; or
(e) a national inspector; or
(f) any other Commonwealth officer.
(2) Subject to this section, an eligible person must not either directly or indirectly, except for the purposes of this Act, for the purpose of complying with Australia’s obligations under the Convention, or for the purpose of a prosecution for an offence against this Act:
(a) make a record of, or divulge or communicate to any person, any confidential information concerning the affairs of another person acquired by the eligible person in the performance of duties in relation to this Act; or
(b) produce to any person a confidential document relating to the affairs of another person given for the purposes of this Act; or
(c) make a record of, or divulge or communicate to any person, any confidential information contained in the Register of Permits and Notifications.
(3) An eligible person must not be required to divulge or communicate to a court any information referred to in subsection (2) or to produce in a court any documents referred to in that subsection, except when it is necessary to do so for the purposes of this Act or of a prosecution for an offence against this Act.
(3A) If:
(a) information is divulged or communicated to a person (the recipient) by an eligible person for the purposes of this Act or for the purpose of complying with Australia’s obligations under the Convention; and
(b) at the time the information was divulged or communicated, the eligible person specified that the information was confidential information to which this subsection applies;
the recipient must not, either directly or indirectly:
(c) make a record of the information; or
(d) divulge or communicate the information to another person.
(3B) If:
(a) information is divulged or communicated to a person (the recipient) by an eligible person for the purposes of this Act or for the purpose of complying with Australia’s obligations under the Convention; and
(b) at the time the information was divulged or communicated, the eligible person specified that the information was confidential information to which subsection (3A) applies;
the recipient must not be required to divulge or communicate the information to a court, unless it is necessary to do so:
(c) for the purposes of this Act; or
(d) for the purposes of a prosecution for an offence against this Act.
(3C) If:
(a) a document is produced to a person (the recipient) by an eligible person for the purposes of this Act or for the purpose of complying with Australia’s obligations under the Convention; and
(b) at the time the document was produced, the eligible person specified that the document was a confidential document to which this subsection applies;
the recipient must not, either directly or indirectly:
(c) make a copy of the document; or
(d) produce the document to another person.
(3D) If:
(a) a document is produced to a person (the recipient) by an eligible person for the purposes of this Act or for the purpose of complying with Australia’s obligations under the Convention; and
(b) at the time the document was produced, the eligible person specified that the document was a confidential document to which subsection (3C) applies;
the recipient must not be required to produce the document to a court, unless it is necessary to do so:
(c) for the purposes of this Act; or
(d) for the purposes of a prosecution for an offence against this Act.
(3E) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct contravenes subsection (2), (3A) or (3C).
Penalty: Imprisonment for 2 years.
(3F) In subsection (3E):
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
(4) In this section:
offence against this Act includes an offence created by:
(a) section 6 of the Crimes Act 1914; or
(b) section 11.1, 11.4 or 11.5 of the Criminal Code;
that relates to this Act.
(4A) For the purposes of this section, if in the course of an inspection under Part 5 an eligible person acquires information concerning the affairs of another person, the information is taken to be confidential information unless, at the time the information was acquired:
(a) the information was already available to the public; or
(b) the other person specified that the other person would have no objection if the information were to become available to the public.
However, if an objection is made, but is later withdrawn, the information is taken not to be confidential information at any time after the withdrawal.
(4B) For the purposes of this section, if in the course of an inspection under Part 5 an eligible person acquires a document relating to the affairs of another person, the document is taken to be a confidential document unless, at the time the document was acquired:
(a) the document was already available to the public; or
(b) the other person specified that the other person would have no objection if the document were to become available to the public.
However, if an objection is made, but is later withdrawn, the document is taken not to be a confidential document at any time after the withdrawal.
(5) In this section:
Commonwealth officer has the same meaning as in section 121.1 of the Criminal Code.
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
produce includes permit access to.
this Act includes the regulations.
103 Australia not liable for acts or omissions of Organization etc.
Nothing in this Act makes Australia or the Director liable for any act or omission on the part of the Organization, or of an Organization inspector, in implementing the Convention in Australia.
104 Regulations
The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act;
and, in particular making provision with respect to:
(c) the manner in which any notification by the Director that is required under this Act, or under the regulations to a declared facility is to be effected; and
(d) the imposition of penalties, not exceeding a fine of 10 penalty units, for offences against the regulations; and
(e) the making of reports to the Organization in compliance with Australia’s obligations under the Convention.