Division 2AOffences relating to nuclear terrorism

An Act to make provision in relation to the non‑proliferation of nuclear weapons and to establish, in accordance with certain international treaties and agreements to which Australia is a party, a system for the imposition and maintenance of nuclear safeguards in Australia, and for related matters ## Part I—Preliminary #### 1 Short title This Act may be cited as the Nuclear Non‑Proliferation (Safeguards) Act 1987. #### 2 Commencement (1) Sections 1 and 2 shall come into operation on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act shall come into operation on such day as is, or on such respective days as are, fixed by Proclamation. #### 3 Objects of Act (1) The principal object of this Act is to give effect to certain obligations that Australia has as a party to the Non‑Proliferation Treaty, the Agency Agreement, the Supplementary Agency Agreements and the prescribed international agreements. (2) A further object of this Act is to give effect to certain obligations that Australia has as a party to the Physical Protection Convention. (3) A further object of this Act is to give effect to certain obligations that Australia has as a party to the Nuclear Terrorism Convention. #### 4 Interpretation (1) In this Act, unless the contrary intention appears: > Agency means the International Atomic Energy Agency established by the Agency Statute. > Agency Agreement means the Agreement between Australia and the International Atomic Energy Agency for the Application of Safeguards in connection with the Treaty on the Non‑Proliferation of Nuclear Weapons, being the Agreement which was signed on behalf of Australia on 10 July 1974, a copy of which is set out in Schedule 3, and: (a) subject to subsection (3), includes that Agreement as amended from time to time; and (b) subject to section 4A, includes that Agreement as modified from time to time by the Supplementary Agency Agreements. > Agency inspector means a person declared, pursuant to subsection 57(2), to be an Agency inspector for the purposes of this Act. > Agency Statute means the Statute of the International Atomic Energy Agency, being the Statute which was signed on behalf of Australia on 14 December 1956 and, subject to subsection (3), includes that Statute as amended from time to time. > amendment, in relation to a document, means an amendment of the text of the document. > appoint includes re‑appoint. > approved form means a form approved by the Minister. > article includes document, substance or equipment. > associated equipment means equipment or plant that: (a) is specially designed, manufactured or built for use, or is specially suited (whether with or without modification or adaptation) for use, in: (i) nuclear activities; or (ii) the production of nuclear weapons or other nuclear explosive devices; and (b) is included in a class of equipment or plant that is declared by the Minister, in writing, to be associated equipment for the purposes of this definition; and includes a component or part of such equipment or plant. > associated item means: (a) associated material; (b) associated equipment; or (c) associated technology. > associated material means any material (other than nuclear material, associated equipment or associated technology) that: (a) is of a kind specially suited for use in nuclear activities, the construction of a nuclear reactor or the production of nuclear weapons or other nuclear explosive devices; and (b) is included in a class of material that is declared by the Minister, in writing, to be associated material for the purposes of this definition. > associated technology means any document that contains information (other than information that is lawfully available, whether within Australia or outside Australia and whether for a price or free of charge, to the public or a section of the public): (a) that is applicable primarily to the design, production, operation, testing or use of: (i) equipment or plant for: (A) the enrichment of nuclear material; (B) the reprocessing of irradiated nuclear material; or (C) the production of heavy water; or (ii) nuclear weapons or other nuclear explosive devices; or (b) to which a prescribed international agreement applies and that is of a kind declared by the Minister, in writing, to be information to which this definition applies; and includes any photograph, model or other thing from which such information may be obtained or deduced. > Australian aircraft means: (a) an aircraft registered, or required to be registered, under regulations made under the Civil Aviation Act 1988; or (b) an aircraft that is owned by, or is in the possession or control of, the Commonwealth or an authority of the Commonwealth; or (c) an aircraft of any part of the Defence Force (including an aircraft that is being commanded or piloted by a member of that Force in the course of the member’s duties as such a member). > Australian safeguards system means the system of accounting for and control of nuclear material and associated items that is established by: (a) this Act; (b) the regulations; and (c) orders and directions under section 73. > Australian ship means: (a) a ship registered in Australia; or (b) an unregistered ship that has Australian nationality. > authority means an authority granted under section 18. > Commonwealth officer means: (a) a person appointed or engaged under the Public Service Act 1999; or (b) an officer or employee of a prescribed authority of the Commonwealth; (c) the holder of an office established by a law of the Commonwealth; or (d) a member of the Defence Force. > containment device means a wall, container or other physical barrier, or other device, that is being used, pursuant to a condition of a permit or pursuant to an order or direction under section 73, to prevent, restrict or control the movement of or access to: (a) nuclear material or an associated item; or (aa) a nuclear facility; or (b) information relating to: (i) the location of nuclear material or an associated item or the quantity of nuclear material or associated material at a particular location; or (ii) the safeguards aspects of the design or operation of a nuclear facility, containment device or surveillance device. > Director means the Director of Safeguards. > enrich, in relation to nuclear material, means increase: (a) the abundance in the material of one isotope of an element in relation to the abundance of another isotope or other isotopes of that element; or (b) the ratio in the material of one isotope of an element to the total of the isotopes of that element. > Foreign Affairs Minister means the Minister administering the Diplomatic Privileges and Immunities Act 1967. > identity card means an identity card issued under section 58. > Immigration Minister means the Minister administering the Migration Act 1958. > inspector means a person appointed as an inspector under subsection 57(1). > international agreement includes an international treaty or convention. > international organisation means: (a) an organisation of which 2 or more countries, or the Governments of 2 or more countries, are members; (b) an organisation that is constituted by the representatives of 2 or more countries, or the Governments of 2 or more countries; or (c) an organisation established by, or a group of organisations constituted by: (i) organisations of which 2 or more countries, or the Governments of 2 or more countries, are members; or (ii) organisations that are constituted by the representatives of 2 or more countries, or the Governments of 2 or more countries. > Non‑Proliferation Treaty means the Treaty on the Non‑Proliferation of Nuclear Weapons, being the Treaty which was signed on behalf of Australia on 27 February 1970, a copy of the English text of which is set out in Schedule 2, and, subject to subsection (3), includes that Treaty as amended from time to time. > nuclear activities means: (a) the operation of a nuclear reactor, whether for the purposes of generating power or otherwise; (b) the enrichment of nuclear material; (c) the reprocessing of irradiated nuclear material; or (d) any other activity (including storage) that forms part of the nuclear fuel cycle. > nuclear facility means a facility within the meaning of the Agency Agreement. > nuclear fuel cycle has the same meaning as it has when used in the Agency Agreement. > nuclear material has the same meaning as in the Agency Agreement. > Nuclear Terrorism Convention means the International Convention for the Suppression of Acts of Nuclear Terrorism, done at New York on 13 April 2005, as amended and in force for Australia from time to time. > Note: In 2012, the text of the Convention was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au). > offence against this Act includes: (a) an offence against the regulations; (b) an offence against section 6 of the Crimes Act 1914 in relation to an offence against this Act or the regulations; and (c) an offence against section 11.1, 11.4 or 11.5 of the Criminal Code in relation to an offence against this Act or the regulations. > permit means a permit under section 13, 16, 16A or 16B. > Physical Protection Convention means the Convention on the Physical Protection of Nuclear Material, being the Convention which was signed on behalf of Australia on 22 February 1984, a copy of the English text of which is set out in Schedule 4, and, subject to subsection (3), includes that Convention as amended from time to time. > prescribed authority of the Commonwealth means an authority of the Commonwealth prescribed by the regulations for the purposes of this definition. > prescribed international agreement means: (a) an agreement the title of which is set out in Schedule 5; or (b) an agreement between Australia and a foreign country or foreign countries in relation to nuclear safeguards or the peaceful use of nuclear material or associated items, being an agreement that is prescribed by the regulations for the purposes of this definition; and, subject to subsection (3), includes such an agreement as amended from time to time. > Register means the Register of Permit and Authority Holders kept in accordance with section 69. > reprocess, in relation to irradiated nuclear material, means separate uranium or plutonium from fission products in the material. > Supplementary Agency Agreement has the meaning given by section 4A. > surveillance device means a seal, camera, closed‑circuit television system or other device that is being used, pursuant to a condition of a permit or pursuant to an order or direction under section 73, to detect: (a) movements of nuclear material or an associated item; or (aa) movements of a person or thing past or through a containment device; or (ab) circumvention of a containment device or surveillance device; or (b) interference with a containment device or surveillance device; or (c) the falsification of records relating to: (i) the location of nuclear material or an associated item; or (ii) the quantity of nuclear material or associated material at a particular location. (2) A reference in the definition of prescribed international agreement in subsection (1) to a foreign country includes a reference to an international organisation. (3) An amendment to the Agency Agreement, the Agency Statute, the Non‑Proliferation Treaty, the Physical Protection Convention or a prescribed international agreement: (a) does not have effect for the purposes of this Act unless the amendment is declared by the regulations to have effect for the purposes of this Act; and (b) takes effect for the purposes of this Act from the day on which the regulations referred to in paragraph (a) take effect or such later day as is specified in those regulations. (4) Where the Board of Governors of the Agency makes a determination of the kind referred to in the definition of special fissionable material, or source material, in Article XX of the Agency Statute (a copy of the English text of which is set out in Schedule 1), the determination does not have effect for the purposes of this Act unless and until the regulations declare that the determination is to have effect for the purposes of this Act. (5) Where regulations are made for the purposes of subsection (4) in relation to a determination of the Board of Governors of the Agency, the determination shall be taken, for the purposes of the definition of nuclear material in the Agency Agreement, to be accepted by Australia. (6) Where a person gives another person, or allows another person to take, possession of associated technology, the first‑mentioned person shall, for the purposes of this Act, be taken to have communicated to that other person the information that is contained in, or that may be obtained or deduced from, that associated technology. (7) Declarations made under the definitions of associated equipment, associated material and associated technology in subsection (1) are legislative instruments. (10) A reference in this Act to an inspection by an Agency inspector includes a reference to access by the inspector. #### 4A Supplementary Agency Agreements (1) For the purposes of this Act, Supplementary Agency Agreement means an IAEA agreement that is additional to the Agency Agreement, and includes such an IAEA agreement as amended from time to time. (2) An IAEA agreement, or an amendment of an IAEA agreement, does not have effect for the purposes of this Act unless the agreement or amendment, as the case may be, is declared by the regulations to have effect for the purposes of this Act. (3) An IAEA agreement, or an amendment of an IAEA agreement, takes effect for the purposes of this Act from: (a) the day on which the regulations referred to in subsection (2) take effect; or (b) such later day as is specified in those regulations. (4) In this section: > IAEA agreement means an agreement between Australia and the International Atomic Energy Agency, but does not include: (a) the Agency Agreement; or (b) an agreement that amends the Agency Agreement. #### 5 Conduct by directors, employees or agents (1) Where it is necessary, for the purposes of this Act, to establish the state of mind of a body corporate in respect of conduct engaged in, or deemed by subsection (2) to have been engaged in, by the body corporate, it is sufficient to show that a director, employee or agent of the body corporate, being a director, employee or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind. (2) Any conduct engaged in on behalf of a body corporate: (a) by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent; shall be deemed, for the purposes of this Act, to have been engaged in by the body corporate. (3) Where it is necessary, for the purposes of this Act, to establish the state of mind of a person in relation to conduct deemed by subsection (4) to have been engaged in by the person, it is sufficient to show that an employee or agent of the person, being an employee or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind. (4) Conduct engaged in on behalf of a person other than a body corporate: (a) by an employee or agent of the person within the scope of his or her actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the first‑mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent; shall be deemed, for the purposes of this Act, to have been engaged in by the first‑mentioned person. (5) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person’s reasons for the person’s intention, opinion, belief or purpose. (6) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory. #### 6 Act to extend to external Territories This Act extends to every external Territory. #### 7 Act binds the Crown (1) This Act binds the Crown in each of its capacities. (2) This Act does not make the Crown liable to be prosecuted for an offence. #### 8 Application of Act (other than Division 2A of Part III) (1A) This section does not apply in relation to Division 2A of Part III (which deals with offences relating to the Nuclear Terrorism Convention). (1) The provisions of this Act have effect in relation to all nuclear material. (2) The provisions of this Act have effect in relation to all associated items. (3) Without prejudice to their effect by virtue of subsection (2), the provisions of this Act have effect in relation to an associated item: (a) control of which is appropriate to give effect to obligations that Australia has as a party to the Non‑Proliferation Treaty, the Agency Agreement, a Supplementary Agency Agreement or a prescribed international agreement (including the obligation that Australia has under Article II of the Non‑Proliferation Treaty not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices); (b) that is owned by, or is in the possession or control of, a trading corporation or foreign corporation; (c) that is situated in a Territory or is 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; (d) that is in the course of trade or commerce: (i) between Australia and places outside Australia; (ii) among the States; or (iii) within a Territory, between a State and a Territory or between 2 Territories; (e) that is supplied to the Commonwealth or an authority or instrumentality of the Commonwealth; (f) that is owned by, or is in the possession or control of, the Commonwealth or an authority or instrumentality of the Commonwealth; or (g) that is in the course of transmission through postal, telegraphic, telephonic or a like service. (4) Without prejudice to their effect by virtue of subsection (3), the provisions of this Act have effect in relation to an associated item that is owned by, or is in the possession or control of, a trading corporation in the course of the trading activities of the trading corporation. (5) Without prejudice to their effect by virtue of subsection (2), the provisions of this Act have effect in relation to an associated item control of which is appropriate to give effect to obligations that Australia has as a party to the Physical Protection Convention. (6) The provisions of this Act have effect in relation to all information of the kinds referred to in the definition of associated technology in subsection 4(1). (7) Without prejudice to their effect by virtue of subsection (6), the provisions of this Act have effect in relation to information of the kinds referred to in the definition of associated technology in subsection 4(1): (a) control of which is appropriate to give effect to obligations that Australia has as a party to the Non‑Proliferation Treaty, the Agency Agreement or a prescribed international agreement (including the obligation that Australia has under Article II of the Non‑Proliferation Treaty not to manufacture or otherwise acquire nuclear weapons or other explosive nuclear devices); (b) communicated by a trading corporation or foreign corporation; (c) communicated in a Territory or communicated by: (i) a resident of a Territory; or (ii) a corporation established by or under a law of a Territory; (d) communicated in the course of trade or commerce: (i) between Australia and places outside Australia; (ii) among the States; or (iii) between a State and a Territory or between 2 Territories; (e) communicated by an authority or instrumentality of the Commonwealth; or (f) communicated in the course of transmission through postal, telegraphic, telephonic or a like service. (8) Without prejudice to their effect by virtue of subsection (7), the provisions of this Act have effect in relation to information of the kinds referred to in the definition of associated technology in subsection 4(1) communicated by a trading corporation in the course of the trading activities of the trading corporation. (9) Without prejudice to their effect by virtue of subsection (6), the provisions of this Act have effect in relation to information of the kinds referred to in the definition of associated technology in subsection 4(1) control of which is appropriate to give effect to obligations that Australia has as a party to the Physical Protection Convention. (10) In this section: > foreign corporation has the same meaning as in paragraph 51(xx) of the Constitution. > postal, telegraphic, telephonic or a like service has the same meaning as in paragraph 51(v) 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. #### 8A Application of the Criminal Code Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act. > Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. ## Part II—Control of nuclear material, associated items and related facilities #### 9 Nuclear material to which this Part applies This Part applies to all nuclear material other than: (a) nuclear material in respect of which a declaration under subsection 11(1) is in force; (b) nuclear material in respect of which a declaration under subsection 11(3) is in force; and (c) nuclear material that, in accordance with the regulations, is nuclear material of a kind to which this Part does not apply. #### 10 Associated items to which this Part applies This Part applies to associated items other than: (a) items in respect of which a declaration under subsection 11(7) is in force; and (b) items that, in accordance with the regulations, are associated items of a kind to which this Part does not apply. #### 11 Exemption and termination declarations (1) The Minister may, subject to subsection (2), declare, in writing, that nuclear material specified in the declaration is nuclear material that is exempt from the application of this Part. (2) The Minister shall not make a declaration under subsection (1) exempting nuclear material from the application of this Part unless: (a) the Agency has, in accordance with Articles 37 and 38 of the Agency Agreement, exempted the nuclear material from safeguards; and (b) the making of the declaration is not inconsistent with Australia’s obligations under any prescribed international agreement. (3) The Minister may, subject to subsection (4), declare, in writing, that the application of this Part to nuclear material specified in the declaration is terminated. (4) The Minister shall not make a declaration under subsection (3) terminating the application of this Part to nuclear material unless: (a) safeguards have, in accordance with Articles 11, 12, 13 and 36 of the Agency Agreement, terminated in respect of the nuclear material; and (b) the making of the declaration is not inconsistent with Australia’s obligations under any prescribed international agreement. (5) The Minister may, in writing, vary or revoke a declaration made under subsection (1) or (3). (6) The Minister shall revoke a declaration made under subsection (1) exempting nuclear material from the application of this Part if the nuclear material: (a) is processed or stored together with nuclear material to which this Part applies; or (b) is returned to use in nuclear activities. (7) The Minister may, subject to subsection (8), declare, in writing, that an associated item specified in the declaration is an associated item that is exempt from the application of this Part. (8) The Minister shall not make a declaration under subsection (7) exempting an associated item from the application of this Part unless the making of the declaration is not inconsistent with Australia’s obligations under any prescribed international agreement. (9) The Minister may, in writing, vary or revoke a declaration made under subsection (7). (10) A declaration, or a variation or revocation of a declaration, made under this section is a legislative instrument. #### 12 Application for permit (1) A person may make application for the grant of a permit by lodging an application, in accordance with the approved form, with the Director. (2) Where a person makes application pursuant to subsection (1), the Director: (a) may, by notice in writing to the person, require the person to provide to the Director, within such period, being a period of not less than 14 days, as is specified in the notice, such information relating to the application as is specified in the notice; and (b) shall, after having considered the application and any information provided pursuant to paragraph (a), give a report in writing to the Minister in relation to the application. (3) Where a person who makes application pursuant to subsection (1) fails to comply with a request made by the Director pursuant to paragraph (2)(a), the Director shall include a statement giving particulars of that failure in the report made to the Minister in relation to the application pursuant to paragraph (2)(b). #### 13 Permit to possess nuclear material or associated items (1) Subject to sections 14 and 15, the Minister may, in writing, grant to a person a permit to possess: (a) nuclear material; or (b) an associated item; to which this Part applies. (2) A permit under subsection (1) is granted subject to such restrictions and conditions as the Minister specifies in the permit. (3) Without limiting the generality of subsection (2), a permit under subsection (1) may be granted subject to restrictions and conditions in respect of one or more of the following: (a) the nuclear material, or the class of nuclear material, or the associated item or items, or the class of associated items, as the case requires, in relation to which the permit is to have effect; (b) the period for which the permit is to have effect; (c) the locations for which the permit is to have effect and the procedures to be followed if nuclear material or an associated item is to be transported from one location to another (including requirements for the giving of notice to the Minister, the Director or any carrier engaged by the holder of the permit); (d) the measures to be taken to ensure the physical security of nuclear material or an associated item; (da) the taking of measures that are consistent with Australia’s obligations under the Physical Protection Convention; (e) the persons, or class of persons, who are to be allowed access to nuclear material or an associated item and the conditions on which access to nuclear material or an associated item is to be allowed; (f) the steps to be taken, and the records to be kept, to account for nuclear material or an associated item; (g) the uses to which nuclear material or an associated item may be put; (h) the enrichment of nuclear material or the reprocessing of irradiated nuclear material; (j) the reports to be furnished, and the inspections to be permitted, in respect of nuclear material or an associated item; (k) the transfer by the holder of the permit to another person of property in, or possession or control of, nuclear material or an associated item; (m) if the permit is a permit to possess associated technology—the communication of the information contained in, or that may be obtained or deduced from, the associated technology; (n) the alteration, dispersal or disposal of nuclear material or an associated item; (o) if nuclear material or an associated item is to be held at a nuclear facility—the provision to the Director of information in order to allow inspectors or Agency inspectors to comply with health and safety procedures applicable at the facility. (4) Without limiting the generality of paragraph (3)(f), a condition of a permit under subsection (1) in respect of the records to be kept to account for nuclear material or an associated item may make provision in relation to: (a) the form and content of such records; (b) the period for which such records are to be kept; and (c) the system of measurement to be used in the preparation of such records. (5) Without limiting the generality of paragraph (3)(j), a condition of a permit under subsection (1) in respect of the reports to be furnished in respect of nuclear material or an associated item may make provision in relation to: (a) the form and content of such reports; (b) special reports to be made in relation to unusual or anomalous incidents or circumstances and the form and contents of such special reports; (c) the time within which such reports and special reports are to be made; and (d) the persons who are to verify or authenticate such reports and special reports. (6) Without limiting the generality of paragraph (3)(j), a condition of a permit under subsection (1) in respect of the inspections to be permitted in respect of nuclear material or an associated item may make provision in relation to inspections by Agency inspectors pursuant to the Agency Agreement or a Supplementary Agency Agreement. (7) Without limiting the generality of subsection (2), a condition in respect of the doing of an act or thing may be imposed by reference to the approval or consent of a specified person being obtained before the act or thing may be done. (8) A permit granted under subsection (1) shall have endorsed on it or attached to it a statement to the effect that, subject to the Administrative Review Tribunal Act 2024 and to subsection 22(8) of this Act, application may be made to the Administrative Review Tribunal, by or on behalf of a person whose interests are affected by a decision by the Minister, pursuant to subsection (2) of this section, imposing a condition or restriction on the grant of a permit, for review of the decision. (9) A failure to comply with the requirements of subsection (8) in relation to a decision shall not be taken to affect the validity of the decision. (10) Subject to subsection 22(1), the Minister may, in writing, vary a permit granted under subsection (1). (11) A variation to a permit under subsection (10) takes effect on the day on which notice of the variation is given to the holder of the permit under subsection 22(1) or such later day as is specified in the instrument of variation. #### 14 Permit not to be granted to owner or operator of nuclear facility unless Director satisfied as to certain matters The Minister shall not grant a permit under section 13 to the owner or operator of a nuclear facility unless the Director has included in the report made by the Director, pursuant to paragraph 12(2)(b), in relation to the application for the grant of the permit: (a) a statement to the effect that the Director is satisfied that the person applying for the grant of the permit has provided the Director with all information that the Director has required the person to provide in relation to the application pursuant to paragraph 12(2)(a); and (b) a statement to the effect that the Director is satisfied that: (i) appropriate procedures can be applied at the facility for the implementation of the Australian safeguards system in relation to nuclear material and associated items to be located at the facility; and (ii) adequate physical security can be applied to nuclear material and associated items at the facility. #### 15 Permit not to be granted where nuclear material etc. to be held outside nuclear facility unless Director satisfied as to certain matters Where nuclear material or an associated item is to be held otherwise than at a nuclear facility, the Minister shall not grant a permit under section 13 in relation to the nuclear material or associated item unless the Director has included in the report made by the Director, pursuant to paragraph 12(2)(b), in relation to the application for the grant of the permit a statement to the effect that the Director is satisfied that the person applying for the grant of the permit has provided the Director with all information that the Director has required the person to provide in relation to the application pursuant to paragraph 12(2)(a). #### 16 Special transport permit (1) The Minister may, in writing, grant to a person a permit to possess: (a) nuclear material; or (b) an associated item; to which this Part applies, being material or an item specified in the permit, for the purpose of transporting the material or item from a location specified in the permit to another location specified in the permit. (2) A permit under subsection (1) is granted subject to such restrictions and conditions as the Minister specifies in the permit. (3) Without limiting the generality of subsection (2), a permit under subsection (1) may be granted subject to restrictions and conditions in respect of: (a) the period for which the permit is to have effect; (b) the means, and the route, by which the nuclear material or associated item is to be transported; (c) the measures to be taken to ensure the physical security of the material or item; (d) the steps to be taken, and the records to be kept, to account for the material or item; and (e) the reports to be furnished in respect of the transport of the material or item. (4) Without limiting the generality of paragraph (3)(d), a condition of a permit under subsection (1) in respect of the records to be kept to account for nuclear material or an associated item may make provision in relation to: (a) the form and content of such records; (b) the period for which such records are to be kept; and (c) the system of measurement to be used in the preparation of such records. (5) Without limiting the generality of paragraph (3)(e), a condition of a permit under subsection (1) in respect of the reports to be furnished in respect of the transport of nuclear material or an associated item may make provision in relation to: (a) the form and content of such reports; (b) special reports to be made in relation to unusual or anomalous incidents or circumstances and the form and contents of such special reports; (c) the time within which such reports and special reports are to be made; and (d) the persons who are to verify or authenticate such reports and special reports. (6) Without limiting the generality of subsection (2), a condition in respect of the doing of an act or thing may be imposed by reference to the approval or consent of a specified person being obtained before the act or thing may be done. (7) A permit granted under subsection (1) shall have endorsed on it or attached to it a statement to the effect that, subject to the Administrative Review Tribunal Act 2024 and to subsection 22(8) of this Act, application may be made to the Administrative Review Tribunal, by or on behalf of a person whose interests are affected by a decision by the Minister, pursuant to subsection (2) of this section, imposing a condition or restriction on the grant of a permit, for review of the decision. (8) A failure to comply with the requirements of subsection (7) in relation to a decision shall not be taken to affect the validity of the decision. (9) Subject to subsection 22(1), the Minister may, in writing, vary a permit granted under subsection (1). (10) A variation of a permit pursuant to subsection (9) takes effect on the day on which notice of the variation is given to the holder of the permit under subsection 22(1) or such later day as is specified in the instrument of variation. #### 16A Permit to establish facility Grant of permit (1) The Minister may grant a written permit for work to be carried out to establish a facility described in paragraph 28A(1)(a), but only if the Director’s report under paragraph 12(2)(b) relating to the application for the permit states that the Director is satisfied that: (a) the applicant for the permit has provided the Director with all information the applicant was required under paragraph 12(2)(a) to provide in relation to the application; and (b) appropriate procedures could be applied at the facility for the implementation of the Australian safeguards system in relation to nuclear material and associated items to be stored or used at the facility; and (c) adequate physical security could be applied to nuclear material and associated items at the facility. > Note: Paragraph 28A(1)(a) describes the following facilities: (a) a nuclear facility; (b) a facility for the carrying out of nuclear activities; (c) a facility for the use of associated equipment to which this Part applies. Restrictions and conditions (2) The permit is granted subject to the restrictions and conditions specified in it. (3) The permit may specify restrictions and conditions in respect of: (a) design of the facility to facilitate: (i) the operation of the Australian safeguards system in relation to the facility; and (ii) the physical security of nuclear material or an associated item that is to be stored or used in the facility; and (b) inspection of the work and the facility by inspectors and Agency inspectors; and (c) reports relating to the work and the facility (including reports on incidents affecting the work or the facility). (4) A condition in respect of the doing of an act or thing may be specified by reference to the approval or consent of a specified person being obtained before the act or thing may be done. (5) Subsections (3) and (4) do not limit the restrictions and conditions that may be specified in the permit. Variation of permit (6) The Minister may vary in writing the permit. The variation takes effect on the day on which notice of the variation is given under subsection 22(1) to the holder of the permit or on a later day specified in the variation. #### 16B Permit to decommission facility Grant of permit (1) The Minister may grant a written permit for work to be carried out to decommission the whole or a part of a facility described in paragraph 28A(1)(a), but only if the Director’s report under paragraph 12(2)(b) relating to the application for the permit states that the Director is satisfied that: (a) the applicant for the permit has provided the Director with all information the applicant was required under paragraph 12(2)(a) to provide in relation to the application; and (b) appropriate procedures could be applied for the implementation of the Australian safeguards system in relation to nuclear material and associated items that, during the decommissioning, are to be removed from the facility or otherwise dealt with; and (c) adequate physical security could be applied to nuclear material and associated items that, during the decommissioning, are to be removed from the facility or otherwise dealt with. > Note: Paragraph 28A(1)(a) describes the following facilities: (a) a nuclear facility; (b) a facility for the carrying out of nuclear activities; (c) a facility for the use of associated equipment to which this Part applies. Restrictions and conditions (2) The permit is granted subject to the restrictions and conditions specified in it. (3) The permit may specify restrictions and conditions in respect of: (a) inspection of the work and the facility by inspectors and Agency inspectors; and (b) reports relating to the work and the facility (including reports on incidents affecting the work or the facility). (4) A condition in respect of the doing of an act or thing may be specified by reference to the approval or consent of a specified person being obtained before the act or thing may be done. (5) Subsections (3) and (4) do not limit the restrictions and conditions that may be specified in the permit. Variation of permit (6) The Minister may vary in writing the permit. The variation takes effect on the day on which notice of the variation is given under subsection 22(1) to the holder of the permit or on a later day specified in the variation. #### 17 Application for authority to communicate information (1) A person may make application for the grant of an authority under subsection 18(1) by lodging an application, in accordance with the approved form, with the Director. (2) Where a person makes application pursuant to subsection (1), the Director: (a) may, by notice in writing to the person, require the person to provide to the Director, within such period, being a period of not less than 14 days, as is specified in the notice, such information relating to the application as is specified in the notice; and (b) shall, after having considered the application and any information provided pursuant to paragraph (a), make a report in writing to the Minister in relation to the application. (3) Where a person who makes application pursuant to subsection (1) fails to comply with a request made by the Director pursuant to paragraph (2)(a), the Director shall include a statement giving particulars of that failure in the report made to the Minister in relation to the application pursuant to paragraph (2)(b). #### 18 Authority to communicate information (1) Subject to subsection (2), the Minister may, in writing, authorise a person to communicate to another person information of a kind referred to in the definition of associated technology in subsection 4(1). (2) The Minister shall not grant an authority under subsection (1) unless the Director has included in the report made by the Director, pursuant to paragraph 17(2)(b), in relation to the application for the grant of the authority a statement to the effect that the Director is satisfied that the person applying for the grant of the authority has provided the Director with all information that the Director has required the person to provide in relation to the application pursuant to paragraph 17(2)(a). (3) An authority under subsection (1) is granted subject to such restrictions and conditions as the Minister specifies in the authority. (4) Without limiting the generality of subsection (3), an authority under subsection (1) may be granted subject to restrictions and conditions in respect of: (a) the information, or the class of information, in relation to which the authority is to have effect; (b) the persons, or class of persons, to whom information may be communicated; (c) the period for which the authority is to have effect; and (d) conditions as to the giving of notice of, and the obtaining of consents for, the communication of information. (5) An authority granted under subsection (1) shall have endorsed on it or attached to it a statement to the effect that, subject to the Administrative Review Tribunal Act 2024 and to subsection 22(8) of this Act, application may be made to the Administrative Review Tribunal, by or on behalf of a person whose interests are affected by a decision by the Minister, pursuant to subsection (3) of this section, imposing a condition or restriction on the grant of an authority, for review of the decision. (6) A failure to comply with the requirements of subsection (5) in relation to a decision shall not be taken to affect the validity of the decision. (7) Subject to subsection 22(1), the Minister may, in writing, vary an authority granted under subsection (1). (8) A variation of an authority pursuant to subsection (7) takes effect on the day on which notice of the variation is given to the holder of the authority under subsection 22(1) or such later day as is specified in the instrument of variation. #### 19 Revocation of permit or authority (1) Subject to subsection 22(1), the Minister may, in writing, revoke a permit or authority if the holder of the permit or authority: (a) contravenes a condition, or fails to observe a restriction, subject to which the permit or authority is granted; (b) contravenes a direction given or an order made under section 73; or (c) is convicted of an offence against this Act. (2) Subsection (1) extends to a contravention or failure that occurs outside Australia. (3) The Minister shall revoke a permit or authority if the person to whom the permit or authority was granted requests the Minister, in writing, to do so. (4) The revocation of a permit or authority under this section takes effect: (a) in a case where the permit or authority is revoked under subsection (1)—on the day on which notice of the revocation is given to the holder of the permit or authority under subsection 22(1) or such later day as is specified in the instrument of revocation; or (b) in a case where the permit or authority is revoked under subsection (3)—on the day on which the instrument of revocation is executed or such later day as is specified in that instrument. #### 20 Notification of grant, variation or revocation of permit or authority (1) Where the Minister grants, varies or revokes a permit or authority, the Minister shall publish notice in writing in the Gazette of the grant, variation or revocation, as the case may be. (2) A notice under subsection (1) in relation to the grant, variation or revocation of a permit or authority shall include such particulars in relation to the grant, variation or revocation, as the case may be, as are prescribed by the regulations or, in the absence of regulations prescribing such particulars, such particulars of the grant, variation or revocation, as the case may be, as the Minister thinks fit. (3) The grant, variation or revocation of a permit or authority shall not be called in question on the ground that there has been a failure to comply with subsection (1) or (2) of this section in relation to the grant, variation or revocation, as the case may be. #### 21 Effect of grant of permit or authority The grant to a person of a permit or authority does not make it lawful for the person to do any act or thing that, apart from this Act, is unlawful under another law of the Commonwealth or under a law of a State or Territory. #### 22 Review of decisions (1) Where: (a) the Minister makes a decision refusing to grant a permit or a decision under subsection 18(1) refusing to grant an authority; (b) a condition on the grant of a permit or of an authority under section 18 requires the approval or consent of a person specified in the permit or authority in respect of the doing of an act or thing and the person makes a decision refusing to give such an approval or consent; (c) the Minister makes a decision varying a permit or a decision under subsection 18(7) varying an authority; (d) the Director makes a decision not to include, in a report in relation to an application for a permit or authority, a statement of the kind referred to in paragraph 14(a) or (b) or section 15 or in subsection 16A(1), 16B(1) or 18(2), as the case requires; or (e) the Minister makes a decision under subsection 19(1) revoking a permit or authority; the person making the decision shall, not later than 30 days after the day on which the decision is made, give notice in writing of the decision and of the grounds for the decision to: (f) in a case to which paragraph (a) applies—the person who applied for the grant of the permit or authority; (g) in a case to which paragraph (b) or (c) applies—the holder of the permit or authority; (h) in a case to which paragraph (d) applies—the person who applied for the grant of the permit or authority; or (j) in a case to which paragraph (e) applies—the holder of the permit or authority. (2) A notice referred to in subsection (1) shall include a statement to the effect that, subject to the Administrative Review Tribunal Act 2024 and to subsection (8) of this section, 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. (3) A failure to comply with the requirements of subsection (2) in relation to a decision shall not be taken to affect the validity of the decision. (4) Subject to subsection (8), an application may be made to the Administrative Review Tribunal for review of: (a) a decision of a kind referred to in subsection (1); (b) a decision by the Minister imposing a condition or restriction on the grant of a permit; (c) a decision by the Minister, pursuant to subsection 18(3), imposing a restriction or condition on the grant of an authority; or (d) a decision by the Minister, pursuant to section 73, giving directions to be complied with by the holder of a permit or authority. (5) The Minister may certify, in writing, that in his or her opinion it is in the public interest that responsibility for a decision of a kind referred to in subsection (1) or in paragraph (4)(b), (c) or (d) (whether a decision of the Minister or of another person) that is specified in the certificate should reside solely with the Minister and that the decision should not be reviewable by the Administrative Review Tribunal. (6) Where the Minister issues a certificate under subsection (5), the Minister shall include in the certificate a statement of the grounds on which the certificate is issued. (7) Where the Minister issues a certificate under subsection (5) in relation to a decision, the Minister shall give notice in writing of the issuing of the certificate to: (a) in a case where the decision is a decision of a kind referred to in subsection (1)—the person to whom notice of the making of the decision is required to be given in accordance with subsection (1); or (b) in a case where the decision is a decision of a kind referred to in paragraph (4)(b), (c) or (d)—the holder of the permit or authority, as the case requires. (8) While a certificate under subsection (5) is in force in relation to a decision, subsection (4) does not apply in relation to the decision. (9) The Minister shall cause a copy of a certificate issued under subsection (5) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which a certificate is issued. (10) In this section, decision has the same meaning as it has in the Administrative Review Tribunal Act 2024. ## Part III—Offences ### Division 1—General offences #### 23 Possession of nuclear material or associated item without permit (1) Subject to section 24, a person who, without reasonable excuse: (a) possesses nuclear material, or an associated item, to which Part II applies; and (b) does not, at the time of the possession, hold a permit under section 13 or 16 that authorises the person to possess the material or item, as the case may be; commits an offence against this subsection punishable, upon conviction, by imprisonment for not more than 10 years. (2) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (1) of this section. (3) Subsection (2) shall not be read as derogating from the effect of the Crimes at Sea Act 2000. (4) Subsection (1) does not apply to the possession of associated technology by a Commonwealth officer or a prescribed authority of the Commonwealth in the course of: (a) the collection, maintenance or assessment, on behalf of the Australian Government, of information relating to nuclear activities or to disarmament; or (b) the giving of information or advice to the Australian Government in relation to nuclear activities or to disarmament. (5) Without limiting the generality of subsection (4), subsection (1) does not apply to the possession of nuclear material or an associated item by: (a) the Director; or (b) an inspector or Agency inspector; in the course of the performance of a function or duty, or the exercise of a power, under this Act or the regulations. (6) Subsection (1) does not apply to the possession of associated technology by a Commonwealth officer in the course of: (a) the performance of a function or duty, or the exercise of a power, under the Patents Act 1990 or regulations under that Act; or (b) the performance of duties in the Patent Office. #### 24 Special provisions for carriers (1) Subsection 23(1) does not apply to the possession by a person of nuclear material or an associated item if: (a) the person is in possession of the material or item solely in the capacity of a carrier for the purpose of transporting the material or item on behalf of another person; and (b) the material or item is of a kind prescribed by the regulations for the purpose of this subsection. (2) Where it appears that: (a) a person (in this section referred to as the carrier) was in possession of nuclear material or an associated item solely in the capacity of a carrier for the purpose of transporting the material or item on behalf of another person; and (b) the carrier did not, at the time of the possession, hold a permit under section 13 or 16 that authorised the carrier to possess the material or item, as the case may be; the carrier does not commit an offence against section 23 by reason of possessing the material or item without such a permit unless it is proved that the carrier knew, at that time, that the material or item was nuclear material or an associated item, as the case requires. #### 25 Breach of condition of permit or authority etc. (1) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct: (i) contravenes a condition, or fails to observe a restriction, subject to which a permit or authority is granted; or (ii) contravenes a direction given or an order made under section 73. Penalty: Imprisonment for 2 years. (1A) Subsection (1) does not apply if the person has a reasonable excuse. > Note: A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3) of the Criminal Code. (1B) In subsection (1): > engage in conduct means: (a) do an act; or (b) omit to perform an act. (2) Subsection (1) extends to a contravention or failure that occurs outside Australia. (3) Subsection (2) shall not be read as derogating from the effect of the Crimes at Sea Act 2000. #### 25A Breach of duty to ensure security of associated technology (1) A person commits an offence if: (a) the person is authorised to deal with associated technology to which Part II applies by the holder of a permit to possess the associated technology; and (b) the person has not been granted a permit to possess the associated technology; and (c) the person is required to ensure the physical security of the associated technology; and (d) the person engages in conduct; and (e) the conduct contravenes the requirement. Penalty: Imprisonment for 2 years. (2) In this section: > engage in conduct means: (a) do an act; or (b) omit to perform an act. (3) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (1) of this section. #### 26 Unauthorised communication of information (1) Where: (a) a person, without reasonable excuse, communicates to another person information of a kind referred to in the definition of associated technology in subsection 4(1); and (b) the communication: (i) is not required or authorised by this Act; and (ii) is not made in accordance with an authority granted under section 18; the first‑mentioned person commits an offence against this subsection punishable, upon conviction, by imprisonment for not more than 10 years. (2) Subsection (1) does not apply to the communication of information by a Commonwealth officer or a prescribed authority of the Commonwealth in the course of: (a) the collection, maintenance or assessment, on behalf of the Australian Government, of information relating to nuclear activities or to disarmament; or (b) the giving of information or advice to the Australian Government in relation to nuclear activities or to disarmament. (3) Without limiting the generality of subsection (2), subsection (1) does not apply to the communication of information by: (a) the Director; or (b) an inspector or Agency inspector; in the course of the performance of a function or duty, or the exercise of a power, under this Act or the regulations. (4) Subsection (1) does not apply to the communication of information by a Commonwealth officer in the course of: (a) the performance of a function or duty, or the exercise of a power, under the Patents Act 1990 or regulations under that Act; or (b) the performance of duties in the Patent Office. (4A) Subsection (1) does not apply to the communication of information that is in accordance with a prescribed international agreement. > Note: A defendant bears an evidential burden in relation to the matter in subsection (4A) (see subsection 13.3(3) of the Criminal Code). (5) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (1) of this section. #### 26A Communication prejudicing security of nuclear material or associated item (1) A person commits an offence if: (a) the person communicates information to someone else; and (b) the person knows that the communication could prejudice the physical security of nuclear material, or an associated item, to which Part II applies. Penalty: Imprisonment for 8 years. (2) Subsection (1) does not apply if the communication is authorised by a person who has been granted a permit to possess the nuclear material or associated item. > Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code). (3) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (1) of this section. #### 27 Minister to be given certain notices in respect of exempt nuclear material (1) A person shall, before: (a) processing or storing exempt nuclear material together with nuclear material to which Part II applies; or (b) returning exempt nuclear material to use in nuclear activities; give notice in writing to the Minister of the proposed processing, storage or return to use in nuclear activities, as the case may be. (2) Where: (a) a person: (i) processes or stores exempt nuclear material together with nuclear material to which Part II applies; or (ii) returns exempt nuclear material to use in nuclear activities; and (b) the person has not given the Minister notice, in accordance with subsection (1), of the proposed processing, storage or return to use in nuclear activities, as the case may be; the person commits an offence against this section punishable, upon conviction, by imprisonment for not more than 2 years. (3) In this section, exempt nuclear material means nuclear material that is, by virtue of a declaration under subsection 11(1), nuclear material to which Part II does not apply. #### 28 Interference with containment or surveillance devices A person who interferes with: (a) a containment device or surveillance device; or (b) the operation of a containment device or surveillance device; with the intention of adversely affecting the operation of the device commits an offence against this section punishable, upon conviction, by imprisonment for not more than 2 years. #### 28A Establishment of facility without permit (1) A person commits an offence if: (a) the person causes work to be carried out to establish a facility that is: (i) a nuclear facility; or (ii) a facility for the carrying out of nuclear activities; or (iii) a facility for the use of associated equipment to which Part II applies; and (b) the work consists of: (i) construction of the facility; or (ii) modification of an existing facility that is not a facility described in paragraph (a); and (c) the person does not hold a permit for the work to be carried out. Penalty: Imprisonment for 5 years. (2) To avoid doubt, intention is the fault element for paragraph (1)(a). #### 29 Information in relation to design for modification of nuclear facility (1) A person shall, before commencing to carry out a significant modification of a nuclear facility, give notice in writing to the Director of the proposed modification. (2) Where a person commences to carry out a significant modification of a nuclear facility and at the time when the modification commences: (a) the person: (i) has not given the Director notice, in accordance with subsection (1), of the proposed modification; or (ii) has not provided to the Director such information in relation to the design for the proposed modification as the Director, in writing, requests; or (b) the prescribed period in relation to the modification has not elapsed since the information referred to in subparagraph (a)(ii) was provided to the Director; the person commits an offence against this subsection, punishable upon conviction by imprisonment for not more than 2 years. (3) Regulations made for the purposes of paragraph (2)(b): (a) may prescribe different periods in relation to different classes of modification; and (b) shall not prescribe a period greater than 6 months. (4) For the purposes of this section, a modification of a nuclear facility shall be taken to be a significant modification of the facility if and only if the modification affects the implementation of the Australian safeguards system in relation to nuclear material or associated items located, or to be located, at the facility. #### 29A Decommissioning of facility without permit (1) A person commits an offence if: (a) the person causes work to be carried out to decommission the whole or a part of a facility described in paragraph 28A(1)(a); and (b) the person does not hold a permit for the work to be carried out. Penalty: Imprisonment for 5 years. (2) To avoid doubt, intention is the fault element for paragraph (1)(a). #### 30 False or misleading statements etc. (1) A person who: (a) makes to the Minister, the Director, an inspector, an Agency inspector or another person exercising a power, or performing a function or duty, in relation to this Act a statement, either orally or in writing, that is to the knowledge of the person false or misleading in a material particular; or (b) presents to the Minister, the Director, an inspector, an Agency inspector or another person exercising a power, or performing a function or duty, in relation to this Act a book, document or other record that is to the knowledge of the person false or misleading in a material particular; commits an offence against this subsection punishable, upon conviction, by imprisonment for not more than 2 years. (2) Without limiting the generality of subsection (1), a reference in that subsection to the making of a statement or the presenting of a book, document or other record shall be read as including a reference to making a statement or presenting a book, document or other record pursuant to a condition of a permit or authority. (3) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (1) of this section. #### 31 Obstruction of Agency inspector (1) A person who obstructs or hinders an Agency inspector in the performance of a duty or function, or the exercise of a power, under this Act or the regulations commits an offence against this subsection punishable, upon conviction, by imprisonment for not more than 2 years. (2) Nothing in subsection (1) shall be taken to affect the operation of section 147.1 or 149.1 of the Criminal Code to or in relation to the Director or an inspector. #### 31A Unauthorised access to areas etc. to which access is restricted under permit (1) A person commits an offence if: (a) the person enters an area or gets onto or into a vehicle, aircraft or ship; and (b) the holder of a permit is required by a condition on the permit: (i) to restrict access to the area, vehicle, aircraft or ship to persons who have been authorised by the holder; and (ii) to mark the area, vehicle, aircraft or ship with signs indicating that entering or getting onto or into it without the authorisation of the holder of a permit is an offence under this Act; and (c) the area, vehicle, aircraft or ship is clearly marked with signs indicating that entering or getting onto or into it without the authorisation of the holder of a permit is an offence under this Act. Penalty: Imprisonment for 6 months. (2) Strict liability applies to paragraphs (1)(b) and (c). (3) Subsection (1) does not apply if the person is authorised by the holder of the permit described in paragraph (1)(b) to enter the area or get onto or into the vehicle, aircraft or ship. > Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code). (4) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (1) of this section. ### Division 2—Offences relating to the Physical Protection Convention #### 32 Definitions In this Division: > nuclear facility has the same meaning as in the Physical Protection Convention. > nuclear material has the same meaning as in the Physical Protection Convention. #### 33 Stealing nuclear material A person shall not: (a) steal; (b) fraudulently misappropriate; (c) fraudulently convert to that person’s own use; or (d) obtain by false pretences; any nuclear material. Penalty: Imprisonment for 10 years. #### 34 Demanding nuclear material by threats etc. A person shall not demand that another person give nuclear material to the first‑mentioned person or some other person by force or threat of force or by any form of intimidation. Penalty: Imprisonment for 10 years. #### 34A Carrying, sending or moving nuclear material (1) A person commits an offence if the person carries, sends or moves nuclear material into or out of Australia or a foreign country. Penalty: Imprisonment for 10 years. (2) Subsection (1) does not apply if the carrying, sending or moving is done with lawful authority. > Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code). #### 35 Use of nuclear material causing death or injury to persons or damage to property or the environment A person shall not use nuclear material to cause: (a) the death of, or serious injury to, any person; or (b) substantial damage to property or to the environment. Penalty: Imprisonment for 20 years. #### 35A Acts against nuclear facilities etc. A person commits an offence if: (a) the person does an act that is directed against a nuclear facility or that interferes with the operation of a nuclear facility; and (b) the person does so intending that the act will cause, or knowing that the act is likely to cause: (i) the death of, or serious injury to, any person; or (ii) substantial damage to property or to the environment; by exposure to radiation or by the release of radioactive substances. Penalty: Imprisonment for 20 years. #### 36 Threat to use nuclear material A person shall not: (a) threaten; (b) state that it is his or her intention; or (c) make a statement from which it could reasonably be inferred that it is his or her intention; to use nuclear material: (d) to cause the death of, or injury to, any person; or (e) to cause damage to property or to the environment; or (f) to commit an offence against section 35A. Penalty: Imprisonment for 10 years. #### 37 Threat to commit offence A person shall not: (a) threaten; (b) state that it is his or her intention; or (c) make a statement from which it could reasonably be inferred that it is his or her intention; to do any act that would be a contravention of section 33, or section 35A, in order to compel a person (including an international organisation or the Government of Australia or of a foreign country) to do or refrain from doing any act or thing. Penalty: Imprisonment for 10 years. #### 38 Extension of application of offence provisions (1) Subject to subsection (2), this Division extends to an act or thing done outside Australia. (2) Proceedings against a person for an offence against a provision of this Division in respect of an act or thing done outside Australia (other than an act or thing to which subsection (3) applies) shall not be commenced unless: (a) the person is present in Australia; and (b) the following are satisfied: (i) the act or thing was done in the territory of a foreign country that was, at the time when the act or thing was done, a State Party to the Physical Protection Convention; (ii) the act or thing was done after the time when the Physical Protection Convention first required the foreign country to make the doing of the act or thing a punishable offence; and (c) the following are satisfied: (i) Australia was, at the time when the act or thing was done, a State Party to the Physical Protection Convention; (ii) the act or thing was done after the time when the Physical Protection Convention first required Australia to make the doing of the act or thing a punishable offence; and (d) the person has not been prosecuted (whether in Australia or in a foreign country) in respect of the doing of the act or thing; and (e) Australia has not extradited the person to a foreign country in respect of the doing of the act or thing. (3) This subsection applies to an act or thing done outside Australia if the act or thing is done: (a) on an Australian ship or Australian aircraft; or (b) in the course of international nuclear transport of nuclear material in a case where Australia is the State where the shipment originates or the State of ultimate destination; or (c) by an Australian citizen; or (d) by an individual who is a resident of Australia; or (e) by a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory. (4) Subsection (1) shall not be read as derogating from the effect of the Crimes at Sea Act 2000. (5) In subsection (3), international nuclear transport, State where the shipment originates and State of ultimate destination have the same respective meanings as they have in the Physical Protection Convention. ### Division 2A—Offences relating to nuclear terrorism #### 38A ADF members not liable for prosecution Nothing in this Division makes a member of the Australian Defence Force acting in connection with the defence or security of Australia liable to be prosecuted for an offence. #### 38B Definitions In this Division: > Convention device has the same meaning as device has in the Nuclear Terrorism Convention. > government facility has the same meaning as State or government facility has in the Nuclear Terrorism Convention. > nuclear facility has the same meaning as in the Nuclear Terrorism Convention. > radioactive material has the same meaning as in the Nuclear Terrorism Convention. #### 38C Possessing radioactive material or Convention device, or making Convention device Possession of radioactive material or Convention device (1) A person commits an offence if: (a) the person possesses material or a thing; and (b) the material or thing is radioactive material or a Convention device; and (c) the person intends to use the material or device, or to make it available to be used, to cause: (i) the death of, or serious bodily injury to, an individual; or (ii) substantial damage to property or to the environment. Penalty: Imprisonment for 20 years. Making a Convention device (2) A person commits an offence if: (a) the person makes a thing; and (b) the thing is a Convention device; and (c) the person intends to use the device, or to make it available to be used, to cause: (i) the death of, or serious bodily injury to, an individual; or (ii) substantial damage to property or to the environment. Penalty: Imprisonment for 20 years. #### 38D Using radioactive material, or using or damaging Convention device or nuclear facility Using radioactive material (1) A person commits an offence if: (a) the person uses material; and (b) the material is radioactive material; and (c) the person intends the use of the material: (i) to cause the death of, or serious bodily injury to, an individual; or (ii) to cause substantial damage to property or to the environment; or (iii) to compel a person or group of persons (including an international organisation or a legislative, executive or judicial institution of the Commonwealth, a State or a Territory, or of a foreign country) to do or refrain from doing any act or thing. Penalty: Imprisonment for 20 years. Using or damaging Convention device (2) A person commits an offence if: (a) the person uses or damages a thing; and (b) the thing is a Convention device; and (c) the person intends the use of, or damage to, the thing: (i) to cause the death of, or serious bodily injury to, an individual; or (ii) to cause substantial damage to property or to the environment; or (iii) to compel a person or group of persons (including an international organisation or a legislative, executive or judicial institution of the Commonwealth, a State or a Territory, or of a foreign country) to do or refrain from doing any act or thing. Penalty: Imprisonment for 20 years. Using or damaging nuclear facility (3) A person commits an offence if: (a) the person uses or damages a facility; and (b) the facility is a nuclear facility; and (c) the use or damage causes radioactive material to be released, or creates a risk of radioactive material being released; and (d) the person intends the use of, or damage to, the facility: (i) to cause the death of, or serious bodily injury to, an individual; or (ii) to cause substantial damage to property or to the environment; or (iii) to compel a person or group of persons (including an international organisation or a legislative, executive or judicial institution of the Commonwealth, a State or a Territory, or of a foreign country) to do or refrain from doing any act or thing. Penalty: Imprisonment for 20 years. #### 38E Threats and demands (1) A person commits an offence if the person threatens to do an act that would be an offence against section 38D. Penalty: Imprisonment for 20 years. (2) A person (the offender) commits an offence if: (a) the offender demands that another person: (i) create material, a thing or a facility; or (ii) allow the offender, or another person, access to, or control of, material, a thing or a facility; or (iii) make material, a thing or a facility available to the offender or another person; and (b) the material, thing or facility is (or would, if created, be) radioactive material, a Convention device or a nuclear facility; and (c) the demand is made by force or threat of force, or by any form of intimidation. Penalty: Imprisonment for 20 years. #### 38F Jurisdictional requirement A person commits an offence under this Division only if one or more of the following paragraphs applies: (a) the conduct constituting the alleged offence occurs: (i) wholly or partly in Australia; or (ii) wholly or partly on board an Australian ship or an Australian aircraft; (b) at the time of the alleged offence, the person is an Australian citizen; (c) at the time of the alleged offence, the person is a stateless person whose habitual residence is in Australia; (d) the conduct is subject to the jurisdiction of another State Party to the Nuclear Terrorism Convention established in accordance with paragraph 1 or 2 of Article 9 of the Convention, and the person is in Australia; (e) the alleged offence is committed against a government facility of the Commonwealth, or of a State or Territory, that is located outside Australia; (f) the alleged offence is committed against: (i) an Australian citizen; or (ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; (g) by engaging in the conduct constituting the alleged offence, the person intends to compel a legislative, executive or judicial institution of the Commonwealth, a State or a Territory to do or omit to do an act. > Note: A person commits an offence under this Division even if the conduct occurs in circumstances to which the Nuclear Terrorism Convention does not apply because of Article 3. #### 38G Double jeopardy and foreign offences If a person has been convicted or acquitted of an offence in respect of conduct under the law of a foreign country, the person cannot be convicted of an offence under this Division in respect of that conduct. #### 38H Attorney‑General’s consent needed to bring proceedings for offence under this Division (1) Proceedings for an offence under this Division must not be commenced without the Attorney‑General’s written consent. (2) However, a person may be arrested, charged, remanded in custody, or released on bail, in connection with an offence under this Division before the necessary consent has been given. #### 38J Evidentiary certificates (1) The Foreign Affairs Minister may issue a certificate stating any of the following matters: (a) that the Nuclear Terrorism Convention entered into force for Australia on a specified day; (b) that the Convention remains in force for Australia or any other State Party on a specified day; (c) a matter relevant to the establishment of jurisdiction by a State Party under paragraph 1 or 2 of Article 9 of the Convention. (2) The Immigration Minister may issue a certificate stating that: (a) a person is or was an Australian citizen at a particular time; or (b) a person is or was a stateless person whose habitual residence is or was in Australia at a particular time. (3) In any proceedings for an offence under this Division, a certificate under this section is prima facie evidence of the matters in the certificate. ### Division 3—Miscellaneous #### 39 Forfeiture (1) Where a court: (a) convicts a person of an offence against this Act; or (b) makes an order under section 19B of the Crimes Act 1914 in respect of a person charged with an offence against this Act; the court may order the forfeiture to the Commonwealth of any article used or otherwise involved in the commission of the offence. (2) Any 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 and, pending the giving of such a direction by the Minister, the article shall be kept in such custody as the Minister directs. #### 40 Hearing in camera etc. (1) At any time before or during the hearing of proceedings before a court in relation to an offence against this Act, the Judge or Magistrate may, if satisfied that such a course is expedient in order to prevent the disclosure of information of a kind referred to in the definition of associated technology in subsection 4(1) or of information of a kind whose disclosure could prejudice the physical security of nuclear material or an associated item: (a) order that some or all of the members of the public shall be excluded during the whole or a part of the proceedings; (b) order that no report of the whole or a specified part of the proceedings shall be published; or (c) make orders, and give directions, prohibiting or restricting access, either before, during or after the proceedings, to any affidavit, exhibit, information or other document used in the proceedings that is on the file in the court or in the records of the court. (2) A person who contravenes an order made, or direction given, under subsection (1) commits an offence against that subsection punishable, upon conviction, by imprisonment for not more than 5 years. (3) Upon the termination of proceedings before a court in relation to an offence against this Act, any document containing information of a kind described in subsection (1) that would otherwise form part of the records of the court shall, as soon as practicable after the termination of those proceedings, be delivered into the possession and control of the Director. (4) In this section a reference to proceedings before a court shall be read as including a reference to committal proceedings in relation to an indictable offence. (5) For the purposes of this section, proceedings shall not be taken to have terminated until: (a) in the case of proceedings other than committal proceedings in relation to an indictable offence—the time for bringing an appeal arising from those proceedings has expired or an appeal arising from those proceedings has been brought and has been determined; or (b) in the case of committal proceedings in relation to an indictable offence—the trial in relation to the offence has been determined and the time for bringing an appeal arising from those proceedings has expired or an appeal arising from those proceedings has been brought and has been determined. #### 41 Register of Permit and Authority Holders to be evidence of certain matters (1) In a proceeding, the production of the Register, or of a document certified by the Director to be a true copy of the Register, is prima facie evidence: (a) that a person whose name has been entered in the Register as a person to whom a relevant permit has been granted became the holder of that permit on the day entered in the Register as the day on which the grant of that permit took effect and: (i) if there is entered in the Register the day on which the revocation, expiration or cessation of that permit took effect—continued to be the holder of that permit until the day so entered; or (ii) in any other case—is the holder of that permit and has been the holder of that permit since that first‑mentioned day; (b) that a person is not the holder, and has never been the holder, of a relevant permit, if his or her name has not been entered in the Register as a person to whom a relevant permit has been granted; and (c) that a person whose name has been entered in the Register as a person to whom a relevant permit of a particular kind has been granted was not the holder of a relevant permit of that kind on any day that is not included in: (i) the relevant period applicable to that permit; or (ii) if the name of the person has been entered in the Register as a person to whom 2 or more relevant permits of that kind have been granted—any of the relevant periods applicable to those permits. (2) The production in a proceeding of a document purporting to be a copy of the Register and to be certified by the Director to be a true copy is prima facie evidence that it is such a copy and that it has been so certified. (3) In this section: > relevant period, in relation to a relevant permit, means the period from and including the day entered in the Register as the day on which the permit took effect to and including the day immediately preceding the day entered in the Register as the day on which the revocation, expiration or cessation of that permit took effect. > relevant permit means a permit or an authority under section 18. ## Part IV—Administration ### Division 1—Director of Safeguards #### 42 Director of Safeguards (1) There shall be a Director of Safeguards. (2) The Director shall be appointed by the Governor‑General. (3) The Director shall be appointed for such period, not exceeding 5 years, as is specified in the instrument of appointment, but is eligible for reappointment. (5) The Director holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Governor‑General. (6) The Director may be referred to by another title specified by the Minister by notice in the Gazette. #### 43 Functions of Director The functions of the Director are: (a) to ensure the effective operation of the Australian safeguards system; (b) to carry out, on behalf of Australia, the obligations that Australia has under the Agency Agreement, the Supplementary Agency Agreements and the prescribed international agreements to report in relation to the operation of the Australian safeguards system; (c) to monitor compliance with the provisions of the prescribed international agreements by parties other than Australia; (d) to undertake, co‑ordinate and facilitate research and development in relation to nuclear safeguards; (e) to advise the Minister on matters relating to the operation of the Australian safeguards system; (f) to carry out such duties, and to exercise such powers, as are conferred on the Director by or under this Act or the regulations or any other law of the Commonwealth; and (g) to do anything incidental or conducive to the performance of any of the functions referred to in the preceding paragraphs. #### 44 Directions of Minister The Director shall, in performing his or her functions and exercising his or her powers, comply with any directions given to him or her by the Minister. #### 45 Remuneration and allowances (1) The Director shall be paid such remuneration as is determined by the Remuneration Tribunal, but if no determination of that remuneration by the Tribunal is in operation the Director shall be paid such remuneration as is prescribed. (2) The Director shall be paid such allowances as are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973. #### 46 Leave of absence (1) The Director has such recreation leave entitlements as are determined by the Remuneration Tribunal. (2) The Minister may grant the Director leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines. #### 47 Resignation The Director may resign from office by writing signed by the Director and delivered to the Governor‑General. #### 48 Termination of appointment (1) The Governor‑General may terminate the appointment of the Director for misbehaviour or physical or mental incapacity. (2) If the Director: (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; (b) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; (c) engages, except with the approval of the Minister, in paid employment outside the duties of the office of Director; or (d) fails, without reasonable excuse, to comply with his or her obligations under section 49; the Governor‑General shall terminate the appointment of the Director. #### 49 Disclosure of interests The Director shall give written notice to the Minister of all direct or indirect pecuniary interests that the Director has or acquires in any business whether in Australia or elsewhere or in any body corporate carrying on any such business. #### 50 Acting Director The Minister may appoint a person to act as Director: (a) during a vacancy in the office of Director, whether or not an appointment has previously been made to the office; or (b) during any period, or during all periods, when the Director is absent from Australia or is, for any reason, unable to perform the duties of the office of Director. > Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. #### 51 Annual report by Director (1) The Director shall, as soon as practicable after 30 June in each year, prepare and furnish to the Minister a report in relation to the operations of the Director during that year. (2) A report shall include the following information in respect of the period to which the report relates: (a) for all nuclear material and associated items of Australian origin transferred from Australia to any foreign jurisdiction or between foreign jurisdictions: (i) the total quantities in each stage of the nuclear fuel cycle; and (ii) the intended end‑use; of the nuclear material and the items transferred to each jurisdiction; (b) the quantities, categories and intended end‑use of all nuclear material and associated items within Australia; and (c) any unreconciled differences in quantities of: (i) nuclear material of Australian origin, wherever situated; or (ii) nuclear material within Australia, regardless of origin; and an explanation of those differences. (3) In subsection (2), foreign jurisdiction means a foreign country or the European Atomic Energy Community. (4) The Minister shall cause a copy of a report furnished 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 receives the report. #### 52 Additional reports The Director: (a) shall furnish to the Minister such reports or information in relation to the operations of the Director as the Minister requires; and (b) may furnish to the Minister such other reports or information in relation to the operations of the Director as the Director considers appropriate. #### 53 Delegation by Director (1) The Director may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Director, delegate to an inspector or a member of the staff referred to in section 55 all or any of the Director’s powers under this Act or the regulations, other than this power of delegation. (2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act or the regulations, be deemed to have been exercised by the Director. (3) A delegation under this section does not prevent the exercise of a power by the Director. ### Division 2—Australian Safeguards Office #### 54 Australian Safeguards Office (1) There is hereby established an Office to be known as the Australian Safeguards Office. (2) The Australian Safeguards Office shall consist of the Director and the staff referred to in section 55. (3) The Office may be referred to by another name specified by the Minister by notice in the Gazette. This subsection has effect despite subsection (1). #### 55 Staff The staff required to assist the Director in carrying out or giving effect to the provisions of this Act shall be persons engaged under the Public Service Act 1999. #### 56 Engagements of consultants etc. (1) The Director may, on behalf of the Commonwealth and with the approval of the Minister or a 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 engagement of a person engaged by the Director under subsection (1) are such as are determined by the Director. ### Division 3—Inspectors and Agency inspectors #### 57 Inspectors and Agency inspectors (1) The Minister may, in writing, appoint a person as an inspector for the purposes of this Act. (2) Where the Minister is satisfied that a person has, in accordance with the Agency Agreement or a Supplementary Agency Agreement, been designated by the Agency as an Agency inspector to Australia, the Minister shall, in writing, declare the person to be an Agency inspector for the purposes of this Act. (3) Where the Minister declares a person to be an Agency inspector for the purposes of this Act, the Minister shall give the person a copy of the declaration. (4) The Minister may, in the Minister’s discretion: (a) determine terms and conditions of appointment, including remuneration and allowances, of a person appointed under subsection (1); and (b) at any time terminate such an appointment. #### 58 Identity cards (1) The Director may issue to an inspector an identity card in a form approved by the Director. (2) Where a person in possession of an identity card issued to the person under subsection (1) ceases to be an inspector, the person shall forthwith return the identity card to the Director or a person nominated by the Director. Penalty: 1 penalty unit. (3) An offence under subsection (2) is an offence of strict liability. > Note: For strict liability, see section 6.1 of the Criminal Code. ### Division 4—Inspections, searches and seizures #### 59 Safeguards inspections by inspectors (1) A reference in this section to a relevant safeguards purpose shall be read as a reference to the purpose of: (a) ascertaining whether the provisions of this Act and the regulations have been or are being complied with; or (b) ascertaining whether the restrictions and conditions applicable to a permit or authority have been or are being complied with by the person to whom the permit or authority was granted; or (c) ascertaining whether orders made and directions given under section 73 have been or are being complied with; or (d) ensuring the proper functioning of containment devices and surveillance devices; or (e) facilitating an inspection by an Agency inspector in accordance with the Agency Agreement or a Supplementary Agency Agreement; or (f) ascertaining whether the construction of a facility described in paragraph 28A(1)(a) has been or is being carried out in accordance with information provided to the Director under this Act in relation to the construction; or (fa) ascertaining whether the modification of a nuclear facility has been or is being carried out in accordance with information provided to the Director under section 29 in relation to the modification; or (fb) ascertaining whether the decommissioning of a facility described in paragraph 28A(1)(a) has been or is being carried out in accordance with information provided to the Director under this Act in relation to the decommissioning; or (g) doing any act or thing authorised by an authority given pursuant to paragraph 67(1)(d) or 68(1)(e). (2) A reference in this section to a relevant power shall be read as a reference to a power to: (a) search land or premises or a vessel, aircraft or vehicle; (b) inspect or examine a matter or thing; (c) take samples of a matter or thing; (d) examine a document (including a record kept pursuant to this Act or the regulations, pursuant to a condition of a permit or authority or pursuant to an order or direction under section 73); (e) take extracts from, or make copies of, a document (including a record of the kind referred to in paragraph (d)); (f) measure any quantity of nuclear material or associated material; (g) verify the proper functioning or calibration of an instrument (including an instrument that forms part of a containment device or surveillance device); (h) install or operate a containment device or surveillance device; or (j) do any other act or thing necessary or convenient to be done in order to achieve a relevant safeguards purpose. (3) An inspector may: (a) with the consent of the occupier of any land or premises; (b) in accordance with an agreement, whether oral or in writing, between the Director and the occupier of any land or premises; or (c) pursuant to a warrant issued under subsection (6) in respect of any land or premises; enter upon the land, or upon or into the premises, and exercise any relevant power for a relevant safeguards purpose. (4) An inspector may: (a) with the consent of the person in control of any vessel, aircraft or vehicle; or (b) pursuant to a warrant issued under subsection (6) in respect of any vessel, aircraft or vehicle; enter the vessel, aircraft or vehicle and exercise any relevant power for a relevant safeguards purpose. (5) Where an inspector may enter a vessel, aircraft or vehicle under subsection (4), the inspector may, for that purpose and for the purpose of exercising a relevant power for a relevant safeguards purpose, stop and detain the vessel, aircraft or vehicle. (6) Where an information on oath is laid before a Magistrate alleging that there are reasonable grounds for an inspector having access to any land, premises, vessel, aircraft or vehicle, in order to exercise relevant powers in relation to the land, premises, vessel, aircraft or vehicle for relevant safeguards purposes, and the information sets out those grounds, the Magistrate may issue a warrant authorising an inspector named in the warrant, with such assistance as the inspector thinks necessary, and if necessary by force: (a) to enter upon the land or upon or into the premises, vessel, aircraft or vehicle; and (b) to exercise relevant powers in relation to the land, premises, vessel, aircraft or vehicle, as the case requires, for relevant safeguards purposes specified in the warrant. (7) A Magistrate shall not issue a warrant under subsection (6) unless: (a) the informant or some other person has given to the Magistrate, either orally or by affidavit, such further information (if any) as the Magistrate requires concerning the grounds on which the issue of the warrant is being sought; and (b) the Magistrate is satisfied that there are reasonable grounds for issuing the warrant. (8) There shall be stated in a warrant issued under subsection (6): (a) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and (b) a day, not being later than one month after the day of issue of the warrant, upon which the warrant ceases to have effect. #### 60 Safeguards inspections by Agency inspectors (1) A reference in this section to a relevant power shall be read as a reference to a power to: (a) inspect or examine a matter or thing; (b) take samples of a matter or thing; (c) examine a document (including a record kept pursuant to this Act or the regulations, pursuant to a condition of a permit or authority or pursuant to an order or direction under section 73); (d) take extracts from, or make copies of, a document (including a record of the kind referred to in paragraph (c)); (e) measure any quantity of nuclear material; (f) verify the proper functioning or calibration of an instrument (including an instrument that forms part of a containment device or surveillance device); (g) install or operate a containment device or surveillance device; or (h) do any other act or thing necessary or appropriate to be done in order to carry out an inspection that the Agency has the right to make in accordance with the Agency Agreement or a Supplementary Agency Agreement. (2) For the purposes of carrying out an inspection that the Agency has the right to make in accordance with the Agency Agreement or a Supplementary Agency Agreement, an Agency inspector may: (a) with the consent of the occupier of any land or premises; or (b) in accordance with an agreement, whether oral or in writing between the Director and the occupier of any land or premises; enter upon the land, or upon or into the premises, and exercise any relevant power. (2A) For the purposes of carrying out an inspection that the Agency has the right to make in accordance with the Agency Agreement or a Supplementary Agency Agreement, an Agency inspector may, with the consent of the person in control of any vessel, aircraft or vehicle, enter the vessel, aircraft or vehicle and exercise any relevant power. (3) Where: (a) a warrant is issued to an inspector (in this subsection referred to as the relevant inspector) under subsection 59(6) authorising the exercise of powers in relation to land or premises or a vessel, aircraft or vehicle for specified relevant purposes; and (b) those purposes include the purpose of facilitating an inspection by an Agency inspector in accordance with the Agency Agreement or a Supplementary Agency Agreement; an Agency inspector may accompany the relevant inspector when the relevant inspector enters upon the land or upon or into the premises, vessel, aircraft or vehicle and may, for the purposes of carrying out the inspection referred to in paragraph (b), exercise any relevant power. #### 61 Offence‑related searches and seizures (1) Where an inspector has reasonable grounds for suspecting that there may be on any land or premises any article or thing that may afford evidence as to the commission of an offence against this Act, the inspector may: (a) with the consent of the occupier of the land or premises; (b) pursuant to a warrant issued under subsection (4); or (c) pursuant to section 63; enter upon the land, or upon or into the premises, and: (d) search the land or premises for any such article or thing; and (e) seize any such article or thing found upon the land or upon or in the premises. (2) Where an inspector has reasonable grounds for suspecting that there is in any vessel, aircraft or vehicle any article or thing that may afford evidence as to the commission of an offence against this Act, the inspector may: (a) with the consent of the person in control of the vessel, aircraft or vehicle; (b) pursuant to a warrant issued under subsection (4); or (c) pursuant to section 63; enter the vessel, aircraft or vehicle and: (d) search the vessel, aircraft or vehicle for any such article or thing; and (e) seize any such article or thing found in the vessel, aircraft or vehicle. (3) Where an inspector may enter a vessel, aircraft or vehicle under subsection (2), the inspector may, for that purpose and for the purpose of exercising a power referred to in paragraph (2)(d) or (e), stop and detain the vessel, aircraft or vehicle. (4) Where an information on oath is laid before a Magistrate alleging that there are reasonable grounds for suspecting that there may be upon any land or upon or in any premises, vessel, aircraft or vehicle, any article or thing that may afford evidence as to the commission of an offence against this Act and the information sets out those grounds, the Magistrate may issue a search warrant authorising an inspector named in the warrant, with such assistance as the inspector thinks necessary, and if necessary by force: (a) to enter upon the land or upon or into the premises, vessel, aircraft or vehicle; (b) to search the land, premises, vessel, aircraft or vehicle for any such article or thing; and (c) to seize any article or thing that the inspector: (i) finds upon the land or upon or in the premises, vessel, aircraft or vehicle; and (ii) believes on reasonable grounds may be an article or thing connected with that offence. (5) A Magistrate shall not issue a warrant under subsection (4) unless: (a) the informant or some other person has given to the Magistrate, either orally or by affidavit, such further information (if any) as the Magistrate requires concerning the grounds on which the issue of the warrant is being sought; and (b) the Magistrate is satisfied that there are reasonable grounds for issuing the warrant. (6) There shall be stated in a warrant issued under subsection (4): (a) the purpose for which the warrant is issued, which shall include a reference to the nature of the offence in relation to which the entry and search are authorised; (b) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; (c) a description of the kind of documents, substances, equipment or things to be seized; and (d) a day, not being later than one month after the day of issue of the warrant, upon which the warrant ceases to have effect. (7) Where an inspector seizes any article or thing pursuant to subsection (1) or (2), the inspector may retain the article or thing until the expiration of a period of 60 days after the seizure or, if proceedings for an offence against this Act in respect of which the article or thing may afford evidence are instituted within that period, until the proceedings (including any appeal to a court in relation to those proceedings) are terminated. (8) The Director may authorise any article or thing seized under subsection (1) or (2) to be released to the owner, or to the person from whom the article or thing was seized, either unconditionally or on such conditions as the Director thinks fit, including conditions as to the giving of security for payment of the value of the article or thing if it is forfeited under section 39. #### 62 Warrants may be granted by telephone (1) Where, by reason of circumstances of urgency, an inspector considers it necessary to do so, the inspector may make an application for a warrant under subsection 61(4), by telephone, in accordance with this section. (2) Before so making application, an inspector shall prepare an information of a kind referred to in subsection 61(4) that sets out the grounds on which the issue of the warrant is being sought, but may, if it is necessary to do so, make the application before the information has been sworn. (3) Where a Magistrate to whom an application under subsection (1) is made is satisfied: (a) after having considered the terms of the information prepared in accordance with subsection (2); and (b) after having received such further information (if any) as the Magistrate requires concerning the grounds on which the issue of the warrant is being sought; that there are reasonable grounds for issuing the warrant, the Magistrate shall complete and sign such a search warrant as the Magistrate would issue under section 61 if the application has been made in accordance with that section. (4) Where a Magistrate signs a warrant under subsection (3): (a) the Magistrate shall inform the inspector of the terms of the warrant and the date on which and the time at which it was signed, and record on the warrant the reasons for the granting of the warrant; and (b) the inspector shall complete a form of warrant in the terms furnished to the inspector by the Magistrate and write on it the name of the Magistrate and the date on which and the time at which the warrant was signed. (5) Where an inspector completes a form of warrant in accordance with subsection (4), the inspector shall, not later than the day next following the date of expiry of the warrant, forward to the Magistrate who signed the warrant the form of warrant completed by the inspector and the information duly sworn in connection with the warrant. (6) Upon receipt of the documents referred to in subsection (5), the Magistrate shall attach to them the warrant signed by the Magistrate and deal with the documents in the manner in which the Magistrate would have dealt with the information if the application for the warrant had been made in accordance with section 61. (7) A form of warrant duly completed by an inspector in accordance with subsection (4) is, if it is in accordance with the terms of the warrant signed by the Magistrate, authority for any entry, search, seizure or other exercise of a power that the warrant so signed authorises. (8) Where it is material, in any proceedings, for a court to be satisfied that an entry, search, seizure or other exercise of power was authorised in accordance with this section, and the warrant signed by a Magistrate in accordance with this section authorising the entry, search, seizure or other exercise of power is not produced in evidence, the court shall assume, unless the contrary is proved, that the entry, search, seizure or other exercise of power was not authorised by such a warrant. #### 63 Emergency searches and seizures (1) Subject to subsection (3), where an inspector believes on reasonable grounds that: (a) there is situated upon any land, or upon or in any premises, vessel, aircraft or vehicle any article or thing that the inspector believes on reasonable grounds will afford evidence of the commission of an offence against this Act; and (b) the exercise of powers under this section is necessary to prevent the concealment, loss or destruction of the article or thing; the inspector may, with such assistance as the inspector thinks fit, and if necessary by force: (c) enter upon the land or upon or into the premises, vessel, aircraft or vehicle; (d) search for the article or thing; and (e) seize the article or thing. (2) Where an inspector may enter a vessel, aircraft or vehicle under subsection (1), the inspector may, for that purpose and for the purpose of exercising a power referred to in paragraph (1)(d) or (e), stop and detain the vessel, aircraft or vehicle. (3) An inspector shall not exercise powers under subsection (1) unless the power is exercised in circumstances of such seriousness and urgency as to require and justify the immediate exercise of those powers without the authority of a warrant issued under section 61. (4) The reference in subsection (3) to a warrant issued under section 61 includes a reference to such a warrant issued in accordance with section 62. (5) Where an inspector seizes any article or thing pursuant to subsection (1), the inspector may retain the article or thing until the expiration of a period of 60 days after the seizure or, if proceedings for an offence against this Act in respect of which the article or thing may afford evidence are instituted within that period, until the proceedings (including any appeal to a court in relation to those proceedings) are terminated. (6) The Director may authorise any article or thing, seized under subsection (1) to be released to the owner, or to the person from whom the article or thing was seized, either unconditionally or on such conditions as the Director thinks fit, including conditions as to the giving of security for payment of the value of the article or thing if it is forfeited under section 39. #### 64 Inspectors and Agency inspectors to produce evidence of identity (1) Where an inspector exercises a power under section 59, 61 or 63 (otherwise than pursuant to a warrant) in relation to: (a) land or premises; (b) a vessel, aircraft or vehicle; or (c) an article or thing; the inspector shall forthwith produce the inspector’s identity card for inspection by the person (if any) who is in charge of the land, premises, vessel, aircraft or vehicle or in possession of the article or thing and, if the inspector fails to do so, the inspector ceases to be authorised to exercise that power. (2) Where an Agency inspector exercises a power under section 60 in relation to land or premises, the Agency inspector shall forthwith produce for inspection by the person (if any) who is in charge of the land or premises, a copy of the declaration made, pursuant to subsection 57(2), in respect of the Agency inspector and, if the Agency inspector fails to do so, the Agency inspector ceases to be authorised to exercise that power. #### 65 Persons to assist inspectors (1) Subject to subsection (2), where an inspector has entered upon any land or upon or into any premises, vessel, aircraft or vehicle under section 59, 61 or 63, the occupier of the land or premises or the person in control of the vessel, aircraft or vehicle, as the case requires, shall, if requested by the inspector to do so, provide reasonable assistance to the inspector for the purposes of the exercise of the inspector’s powers under that section in respect of the land, premises, vessel, aircraft or vehicle, as the case requires. Penalty: Imprisonment for 6 months. (2) Where an inspector makes a request of a person under subsection (1), the inspector shall produce the inspector’s identity card for inspection by the person and, if the inspector fails to do so, the person is not obliged to comply with the request. #### 66 Inspector may require information etc. (1) An inspector may request a person whom the inspector finds committing, or whom the inspector suspects on reasonable grounds of having committed, an offence against this Act to state that person’s full name and usual place of residence. (2) An inspector may request a person whom the inspector finds doing, or suspects on reasonable grounds of having done, an act of a kind in respect of which a person is required to hold a permit or authority under this Act to produce such a permit or authority or evidence of the existence and contents of such a permit or authority. (3) Where an inspector makes a request of a person under subsection (1) or (2), the inspector shall produce the inspector’s identity card for inspection by the person and, if the inspector fails to do so, the person is not obliged to comply with the request. (4) Subject to subsection (3), a person who, without reasonable excuse, fails to comply with a request made of the person by an inspector under subsection (1) or (2) commits an offence against this section punishable, on conviction, by a fine not exceeding 10 penalty units. (5) An offence under subsection (4) is an offence of strict liability. > Note: For strict liability, see section 6.1 of the Criminal Code. #### 67 Seizure of nuclear material etc. where required by prescribed international agreement (1) Where: (a) a person (in this section referred to as the relevant person) has possession of nuclear material or an associated item; and (b) Australia is, pursuant to a prescribed international agreement with another country (in this section referred to as the relevant country), under an obligation to return or transfer the material or item to the relevant country; the Director may: (c) seize the material or item on behalf of the Commonwealth and arrange for the material or item to be dealt with in accordance with the prescribed agreement; or (d) authorise an inspector, in writing, to seize the material or item on behalf of the Commonwealth and to arrange for the material or item to be dealt with in accordance with the prescribed agreement. (2) Where the Director gives an authority to an inspector under subsection (1), the inspector may, subject to subsection (3), exercise the powers conferred by the authority. (3) Where an inspector exercises a power pursuant to an authority under subsection (1), the inspector shall forthwith produce the inspector’s identity card for inspection by the relevant person and, if the inspector fails to do so, the inspector ceases to be authorised to exercise that power. (4) Where the Director or an inspector seizes nuclear material or an associated item under subsection (1) or (2), the Director shall, within 7 days after the seizure of the material or item, give notice in writing to the relevant person that the Director proposes to return or transfer the material or item to the relevant country. (5) A notice under subsection (4) shall include: (a) a statement of the grounds on which the material or item has been seized (including, without limiting the generality of the foregoing, a reference to the prescribed international agreement in reliance on which the material or item has been seized); (b) a statement that the relevant person may, within 14 days after receiving the notice, apply to the Minister, in writing, for the return to the relevant person of the material or item; and (c) a summary of the procedures applicable under subsections (7) and (8). (6) Where nuclear material or an associated item is seized under subsection (1) or (2) and notice is not given to the relevant person in accordance with subsections (4) and (5), the Director shall, if so requested by the relevant person, return the material or item to the relevant person. (7) Where: (a) the period of 14 days referred to in paragraph (5)(b) expires without the relevant person having applied to the Minister, in writing, for return of the material or item; or (b) the relevant person applies to the Minister, in writing, within that period of 14 days for return of the material or item and the Minister rejects the application; the Minister may, in writing, authorise the return or transfer of the material or item to the relevant country in accordance with the prescribed agreement and, where the Minister does so, property in the material or item thereupon vests in the Commonwealth. (8) Where, but for this subsection, the operation of this section would result in the acquisition of property from a person otherwise than on just terms, there is payable to the person by the Commonwealth such reasonable amount of compensation as is agreed upon between the person and the Commonwealth or, failing agreement, as is determined by the Federal Court of Australia. (9) In subsection (8), acquisition of property and just terms have the same respective meanings as in paragraph 51(xxxi) of the Constitution. ### Division 5—Miscellaneous #### 68 Compliance with conditions etc. (1) Where a person (in this section referred to as the relevant person) does not comply with: (a) a restriction or condition to which a permit or authority granted to the relevant person is subject; (b) an order made under section 73; or (c) a direction given to the relevant person under section 73; the Director may: (d) do all or any of the things required to be done for compliance with the restriction, condition, order or direction, as the case may be; or (e) authorise an inspector, in writing, to do all or any of the things required for compliance with the restriction, condition, order or direction, as the case may be. (2) Where the Director gives an authority to an inspector under subsection (1), the inspector may, subject to subsection (3), exercise a power conferred by the authority. (3) Where it is necessary for an inspector, in order to exercise a power conferred by an authority under subsection (1), to: (a) enter upon land, or upon or into premises; or (b) enter a vessel, aircraft or vehicle; and to exercise relevant powers (within the meaning of section 59), the entry and the exercise of those powers shall be effected in accordance with section 59. (4) Costs and expenses incurred by the Director or an inspector under subsection (1) are a debt due by the relevant person to the Commonwealth and are recoverable in a court of competent jurisdiction. #### 69 Register of Permit and Authority Holders to be kept (1) The Director shall cause to be kept for the purposes of this Act a register to be known as the Register of Permit and Authority Holders and shall cause to be entered in the Register: (b) the names of persons to whom permits are granted; and (c) the names of persons to whom authorities under section 18 are granted. (2) Where a person is granted a permit or authority, the Director shall forthwith cause particulars of the grant (including particulars of the day on which the grant takes effect) to be entered in the Register. (3) Where a permit granted to a person or an authority granted to a person under section 18 is revoked, expires or otherwise ceases to have effect, the Director shall forthwith cause particulars of the revocation, expiration or cessation (including particulars of the day on which the revocation, expiration or cessation takes effect) to be entered in the Register. (4) The Register shall be kept in such form as the Minister directs. (5) The Director may correct clerical errors in the Register. ## Part IVA—Charges #### 69A Charge—producers of uranium ore concentrates (1) The charge imposed by section 3 of the Nuclear Safeguards (Producers of Uranium Ore Concentrates) Charge Act 1993 on a person who on 1 November in a financial year holds a permit granted under paragraph 13(1)(a) is payable by the person on 1 December in the financial year. (2) The amount of charge payable is: (a) $500,000; or (b) if the regulations provide for the payment of a lesser amount prescribed by, or ascertained under, the regulations—that lesser amount. #### 69B Extension of time to pay (1) If a charge is payable by a person under section 69A, the Director may, if he or she thinks it reasonable in the circumstances, determine in writing that the charge may be paid on a day later than 1 December. (2) If the Director makes a determination under subsection (1), the charge is payable on that later day. #### 69C Payment by instalments (1) If a charge is payable by a person under section 69A, the Director may, if he or she thinks it reasonable in the circumstances, determine in writing that the charge may be paid by instalments. (2) Instalments are payable on the days, and in the amounts, specified in, or ascertained under, the determination. (3) If an instalment has not been paid on the day on which it is payable, the amount of charge outstanding becomes payable immediately. ## Part V—Miscellaneous #### 70 Powers to be exercised in accordance with international agreements (1) Where this Act confers a power, discretion, duty or function on a person, the exercise of the power or discretion or the performance of the duty or function is authorised by this Act only to the extent that the exercise or performance is not inconsistent with Australia’s obligations under the relevant international agreements. (2) Where this Act confers a power or discretion on a person, the person shall have regard to Australia’s obligations under the relevant international agreements in exercising that power or discretion. (3) A reference in this section to a relevant international agreement is a reference to an agreement that is, by virtue of subsection (4) or (5), a relevant international agreement for the purposes of this section. (4) The Non‑Proliferation Treaty, the Agency Agreement, the Supplementary Agency Agreements and the prescribed international agreements are relevant international agreements for the purposes of this section. (5) The Physical Protection Convention is a relevant international agreement for the purposes of this section. #### 71 Reports etc. to be confidential (1) This section applies to a person who is or has been: (a) the Director; (b) an inspector; (c) a member of staff referred to in section 55; (d) a person engaged under section 56; or (e) an employee of a person engaged under section 56. (2) A person to whom this section applies shall not, either directly or indirectly, except for the purposes of this Act or for the purposes of an international agreement: (a) produce to any person a document: (i) given to the Director or to an inspector pursuant to a condition of a permit or authority or pursuant to an order or direction under section 73; (ii) given to the Australian Government, the Director or an inspector pursuant to an international agreement under which the document is to be treated as confidential; or (iii) given to the Australian Government, the Director or an inspector by or on behalf of the government of a foreign country with the stipulation that the document is to be treated as confidential; (b) make a record of, or divulge or communicate to any person, the contents of a document referred to in paragraph (a); or (c) make a record of, or divulge or communicate to any person, any information: (i) given to the Director or an inspector pursuant to a condition of a permit or authority or pursuant to an order or direction under section 73; or (ii) given to the Australian Government, the Director or an inspector pursuant to an international agreement under which the information is to be treated as confidential. Penalty: Imprisonment for 2 years. #### 72 Delegation by Minister (1) The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Minister, delegate to the Director or an officer of the Department all or any of the Minister’s powers under this Act or the regulations, other than: (a) this power of delegation; and (b) the Minister’s power under subsection 22(5). (2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act and the regulations, be deemed to have been exercised by the Minister. (3) A delegation under this section does not prevent the exercise of a power by the Minister. (4) Without limiting the generality of subsection (1), the Minister may delegate to the Director the Minister’s power to grant permits or to grant authorities under section 18. (5) If the Minister delegates to the Director the Minister’s power to grant permits, the following provisions have effect: (a) section 12 applies in relation to any application for a permit that is dealt with by the Director pursuant to the delegation as if paragraph 12(2)(b) and subsection 12(3) were omitted; (b) sections 14 and 15 do not apply in relation to any application for a permit that is dealt with by the Director pursuant to the delegation but the Director: (i) shall not grant a permit under section 13 to the owner or operator of a nuclear facility unless the Director is satisfied that: (A) the person applying for the grant of the permit has provided the Director with all information that the Director has required the person to provide in relation to the application pursuant to paragraph 12(2)(a); (B) appropriate procedures can be applied at the facility for the implementation of the Australian safeguards system in relation to nuclear material and associated items to be located at the facility; and (C) adequate physical security can be applied to nuclear material and associated items at the facility; (ii) shall not grant a permit under section 13 in relation to nuclear material or an associated item that is to be held otherwise than at a nuclear facility unless the Director is satisfied that the person applying for the grant of the permit has provided the Director with all information that the Director has required the person to provide in relation to the application pursuant to paragraph 12(2)(a); (c) subsection 16A(1) applies in relation to the grant of a permit by the Director acting under the delegation as if that subsection permitted the grant only if the Director is satisfied of the matters described in paragraphs 16A(1)(a), (b) and (c); (d) subsection 16B(1) applies in relation to the grant of a permit by the Director acting under the delegation as if that subsection permitted the grant only if the Director is satisfied of the matters described in paragraphs 16B(1)(a), (b) and (c). (6) If the Minister delegates to the Director the Minister’s power to grant authorities under section 18, the following provisions have effect: (a) section 17 applies in relation to any application for an authority that is dealt with by the Director pursuant to the delegation as if paragraph 17(2)(b) and subsection 17(3) were omitted; (b) subsection 18(2) does not apply in relation to an application for an authority that is dealt with by the Director pursuant to the delegation but the Director shall not grant an authority unless the Director is satisfied that the person applying for the grant of the authority has provided the Director with all information that the Director has required the person to provide in relation to the application pursuant to paragraph 17(2)(a). #### 73 Orders and directions (1) The Minister: (a) may, by legislative instrument, make orders, not inconsistent with this Act or the regulations, to be complied with by the holders of permits or authorities; and (b) may, in writing, give directions, not inconsistent with this Act or the regulations, to be complied with by the holder of a permit or authority. (2) Without limiting the generality of subsection (1), orders made under this section, and directions given under this section, may make provision with respect to: (a) in the case of a permit granted under section 13—any matter referred to in paragraph 13(3)(a) or (c) to (o) (inclusive); and (b) in the case of a permit granted under section 16—any matter referred to in paragraph 16(3)(b) to (e) (inclusive); and (ba) in the case of a permit granted under section 16A—any matter referred to in paragraph 16A(3)(a), (b) or (c); and (bb) in the case of a permit granted under section 16B—any matter referred to in paragraph 16B(3)(a) or (b); and (c) in the case of an authority granted under section 18—any matter referred to in paragraph 18(4)(a), (b) or (d). (3) Where a direction given under this section is inconsistent with an order made under this section, the direction shall prevail and the order shall, to the extent of the inconsistency, be of no effect. (7) A direction given under subsection (1) to the holder of a permit or authority shall have endorsed on it or attached to it a statement to the effect that, subject to the Administrative Review Tribunal Act 2024 and to subsection 22(8) of this Act, application may be made to the Administrative Review Tribunal, by or on behalf of a person whose interests are affected by a decision of the Minister, pursuant to subsection (1) of this section, giving a direction to be complied with by the holder of the permit or authority, for review of the decision. (8) A failure to comply with the requirements of subsection (7) in relation to a decision shall not be taken to affect the validity of the decision. (9) Where a notice setting out the terms of directions given under this section to the holder of a permit or authority is served, personally or by post, telegram or telex, on the holder of the permit or authority, the directions shall, for the purposes of subsection (1), be deemed to have been given to the holder of the permit or authority. #### 74 Regulations The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act; and, in particular, making provision for, or with respect to: (c) the imposition of penalties, not exceeding a fine of 10 penalty units, for offences against the regulations; (d) the making of reports by persons to whom permits are granted; (e) the form of reports to be made or information to be given under this Act or pursuant to conditions subject to which permits or authorities are granted; (f) standards for the physical security to be applied with respect to nuclear material and associated items to which Part II applies; (g) the keeping of accounting and operating records in relation to nuclear material and associated items by persons to whom permits are granted and the period for which such records are to be retained; or (h) systems of measurement.