Weapons of Mass Destruction (Prevention of Proliferation) Act 1995
In ForceCTH
Jurisdiction
Commonwealth
Act Number
38 of 1995
Collection
act
Plain English Summary
6/10 complexity
This law criminalises supplying, exporting or providing services that are believed or reasonably suspected to assist nuclear, biological or chemical weapons programs, and creates a permit-and-prohibition notice regime to authorise or block such transactions. It empowers seizure and forfeiture of offending goods and enables civil injunctions.
It principally affects suppliers, exporters, service providers and corporate officers (including extraterritorial acts by Australian persons), and centralises decision and enforcement power with the Minister, authorised officers, and prosecutors—raising compliance costs, discretionary risk and potential disruption to trade.
The Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 establishes a prohibitory and permission-based regime directed at three distinct forms of conduct: the supply of goods (s 9), the export of non-regulated goods (s 10), and the provision of services (s 11). Each prohibition is triggered only when the person concerned believes or suspects, on reasonable grounds, that the goods will or may be used in, or the services will or may assist, a “WMD program”. That term is defined in s 3 as any plan or program for the development, production, acquisition or stockpiling of nuclear, biological or chemical weapons or missiles capable of delivering such weapons.
The Act is not a blanket ban. It operates through a combination of self-assessed risk plus ministerial oversight. A person who holds the requisite belief or suspicion may request the Minister to confirm whether the Minister shares that view (s 12(1)). The Minister must respond in writing “as soon as possible” (s 12(2)). If the Minister issues a notice under s 14(2) prohibiting the conduct or imposing conditions, breach of that notice with knowledge of the prohibition becomes an offence carrying the same 8-year maximum penalty (s 14(6)).
Where the Minister has reason to believe a WMD risk exists but considers that a permit could not lawfully be granted, the notice route under s 14 is available. Conversely, where an applicant satisfies the Minister that the proposed supply, export or service would not be contrary to Australia’s international or treaty obligations or the national interest, a permit may be issued under s 13(1). Permits may be unconditional or subject to conditions (s 13(2)) and may be revoked on the basis of new information (s 13(3)).
The Act’s object clause (s 6(1)) makes clear that it is intended to operate to the limits of Commonwealth constitutional power. Section 6(3) expressly applies the prohibitions to acts and omissions inside Australia or an external Territory and, extraterritorially, to Australian citizens, ordinary residents, and bodies incorporated in Australia. Section 7 then adds a long list of independent constitutional hooks—giving effect to the Biological Weapons Convention, the Non-Proliferation Treaty and (once in force for Australia) the Chemical Weapons Convention, matters external to Australia, matters of international concern, the defence of Australia, and the corporations and trade-and-commerce powers. This drafting technique ensures that even if one head of power is found insufficient, others remain available.
Current sections
Direct links to the current provisions in Weapons of Mass Destruction (Prevention of Proliferation) Act 1995.
22
1
Short title
1 Short title
This Act may be cited as the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995.
2
Commencement
2 Commencement
(1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.
(2) If this Act does not commence under subsection (1) within 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period.
3
Interpretation
3 Interpretation
In this Act, unless the contrary intention appears:
authorised person means:
(a) a member of the Defence Force; or
(b) a member or special member of the Australian Federal Police or a member of the police force of a State or Territory; or
(c) an officer of Customs.
Biological Weapons Convention means the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, which was signed on behalf of Australia on 10 April 1972 and a copy of the English text of which is set out in the Schedule to the Crimes (Biological Weapons) Act 1976.
Chemical Weapons Convention means the Convention on the Prohibition of the Development, Production, Stockpiling and use of Chemical Weapons and on their Destruction (including the annexes to that Convention), a copy of the English text of which is set out in the Schedule to the Chemical Weapons (Prohibition) Act 1994, as amended by any amendment to that Convention that is accepted by Australia and a copy of the English text of which is set out in regulations in force under that Act.
director, in relation to a body that:
(a) is incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory; and
(b) is constituted by one or more members;
means the member, or any of the members, constituting the body.
engage in conduct includes fail or refuse to engage in conduct.
export means export from Australia, the Territory of Cocos (Keeling) Islands or the Territory of Christmas Island.
financial corporation means a financial corporation, within the meaning of paragraph 51(xx) of the Constitution, formed within the limits of the Commonwealth.
foreign corporation has the same meaning as in paragraph 51(xx) of the Constitution.
goods includes documents.
Non‑Proliferation Treaty means the Treaty on the Non‑Proliferation of Nuclear Weapons that was signed on behalf of Australia on 27 February 1970, a copy of the English text of which is set out in Schedule 2 to the Nuclear Non‑Proliferation (Safeguards) Act 1987, and, subject to subsection 4(3) of that Act, includes that Treaty as amended from time to time.
non‑regulated goods means goods that are not prohibited exports under the Customs Act 1901.
offence against this Act includes an offence against:
(a) section 6 of the Crimes Act 1914; or
(b) section 11.1, 11.4 or 11.5 of the Criminal Code;
that relates to an offence against this Act.
officer of Customs has the same meaning as in the Customs Act 1901.
permit means a permit in force under section 13.
provide services has a meaning affected by section 4.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
state of mind, in relation to a person, includes:
(a) the person’s knowledge, intention, opinion, belief or purpose; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
supply means supply whether or not for any consideration, and includes supply by way of sale, lease, hire or hire‑purchase.
trading corporation means a trading corporation, within the meaning of paragraph 51(xx) of the Constitution, formed within the limits of the Commonwealth.
Weapons of Mass Destruction program or WMD program means a plan or program for the development, production, acquisition or stockpiling of nuclear, biological or chemical weapons or missiles capable of delivering such weapons.
4
Provision of services
4 Provision of services
(1) A reference in this Act to the provision of services includes, without limiting the generality of that expression, a reference to doing anything (other than supplying or exporting goods) that confers a benefit on, grants a right or privilege to, provides a facility for, or otherwise assists, someone, including anything done under:
(a) a contract for or in relation to the performance of work (including work of a professional nature) with or without the supply or export of goods; or
(b) a contract for or in relation to the lending of money or other provision of financial assistance.
(2) Examples of the provision of services are:
(a) working as an employee, consultant or adviser; and
(b) providing training; and
(c) providing technological information or know‑how; and
(d) procuring another to supply or export goods or provide services.
5
Extension to external Territories
5 Extension to external Territories
This Act extends to the external Territories.
6
Object and operation of the Act
6 Object and operation of the Act
(1) The object of this Act is to ensure, so far as the Constitution permits, that goods are not supplied or exported, and services are not provided, in circumstances where the goods will or may be used in, or the services will or may assist, the development, production, acquisition or stockpiling of weapons that are capable of causing mass destruction or missiles that are capable of delivering such weapons.
(2) This Act has effect, and is to be interpreted, accordingly.
(3) This Act applies to:
(a) acts and omissions done in Australia or an external Territory; and
(b) acts and omissions done outside Australia and the external Territories by:
(i) Australian citizens; or
(ii) people ordinarily resident in Australia or an external Territory; or
(iii) bodies incorporated in Australia or an external Territory.
(4) This Act is additional to, and does not prejudice, the operation of any other Act that deals with a matter dealt with by this Act.
7
Additional operation of the Act
7 Additional operation of the Act
(1) Without prejudice to the effect that this Act has apart from this subsection, it also has the effect that it would have if its application were limited to:
(a) giving effect to:
(i) the Biological Weapons Convention; or
(ii) the Non‑Proliferation Treaty; or
(iii) after the Chemical Weapons Convention comes into force for Australia‑that Convention; or
(iv) any international obligation of Australia arising otherwise than under a Convention or Treaty referred to in a preceding subparagraph; or
(b) matters external to Australia; or
(c) matters of international concern; or
(d) the defence of Australia; or
(e) goods that are owned by, or are in the possession or control of, a trading corporation or a foreign corporation or services that are provided by a trading corporation, a financial corporation or a foreign corporation; or
(f) goods that are, or services that are provided, in the course of trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2 Territories.
(2) Without prejudice to the effect that this Act has apart from this subsection, it also has the effect that it would have if its application were limited to goods that are owned by, or are in the possession or control of, a trading corporation in the course of its trading activities or services that are provided by a trading corporation in the course of its trading activities or by a financial corporation in the course of its financial activities.
8
Act to bind the Crown
8 Act to bind the Crown
(1) This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
(2) Nothing in this Act renders the Crown in any right liable to be prosecuted for an offence.
(3) To avoid doubt, a reference in this section to the Crown in a particular right includes a reference to an instrumentality or agency (whether a body corporate or not) of the Crown in that right.
8A
Application of the Criminal Code
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.
9
Prohibition on supplying goods for WMD program
9 Prohibition on supplying goods for WMD program
(1) If:
(a) a person supplies any goods to another person; and
(b) the first‑mentioned person believes or suspects, on reasonable grounds, that the goods will or may be used in a WMD program; and
(c) the supply of the goods is not authorised by a permit or is in contravention of a condition stated in a permit; and
(d) the Minister has not given a written notice to the first‑mentioned person under section 12 stating that the Minister has no reason to believe or suspect that the goods will or may be used in a WMD program;
the first‑mentioned person commits an offence punishable on conviction by imprisonment for not more than 8 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.
(2) It is not an offence against subsection (1) for a person to supply goods to another person if the goods are supplied in compliance with conditions stated in a notice given to the first‑mentioned person by the Minister under subsection 14(2).
10
Prohibition on exporting goods for WMD program
10 Prohibition on exporting goods for WMD program
(1) If:
(a) a person exports any non‑regulated goods; and
(b) the person believes or suspects, on reasonable grounds, that the goods will or may be used in a WMD program; and
(c) the export of the goods is not authorised by a permit or is in contravention of a condition stated in a permit; and
(d) the Minister has not given a written notice to the person under section 12 stating that the Minister has no reason to believe or suspect that the goods will or may be used in a WMD program;
the person commits an offence punishable on conviction by imprisonment for not more than 8 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.
(2) It is not an offence against subsection (1) for a person to export non‑regulated goods if the goods are exported in compliance with conditions stated in a notice given to the person by the Minister under subsection 14(2).
11
Prohibition on providing services for WMD program
11 Prohibition on providing services for WMD program
(1) If:
(a) a person provides any services to another person; and
(b) the first‑mentioned person believes or suspects, on reasonable grounds, that the services will or may assist a WMD program; and
(c) the provision of the services is not authorised by a permit or is in contravention of a condition stated in a permit; and
(d) the Minister has not given a written notice to the first‑mentioned person under section 12 stating that the Minister has no reason to believe or suspect that the provision of the services will or may assist a WMD program;
the first‑mentioned person commits an offence punishable on conviction by imprisonment for not more than 8 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.
(2) It is not an offence against subsection (1) for a person to provide services to another person if the services are provided in compliance with conditions stated in a notice given to the first‑mentioned person by the Minister under subsection 14(2).
12
Request to the Minister for information
12 Request to the Minister for information
(1) If a person who wishes to supply goods, to export non‑regulated goods or to provide services believes or suspects that the goods will or may be used in, or the provision of the services will or may assist, a WMD program, the person may request the Minister in writing for information as to whether the Minister has reason to believe or suspect that the goods will or may be used in, or the provision of the services will or may assist, a WMD program.
(2) If such a request is made, the Minister must, as soon as possible, give the person who made the request a written notice containing the information sought in the request.
13
Permits
13 Permits
(1) If:
(a) a person wishes to supply goods to a particular person, to export non‑regulated goods to a particular place or to provide services to a particular person; and
(b) the Minister has reason to believe or suspect that the goods will or may be used in, or the provision of the services will or may assist, a WMD program; and
(c) the first‑mentioned person applies in accordance with the regulations for a permit under this section to supply or export the goods or provide the services; and
(d) the Minister is satisfied that the supply or export of the goods or the provision of the services in accordance with the application would not be contrary to Australia’s international or treaty obligations or the national interest;
the Minister may give the first‑mentioned person a written permit to supply or export the goods or provide the services, as the case may be, as mentioned in the permit.
(2) A permit may be unconditional or subject to conditions stated in the permit.
(3) If a permit to supply or export goods or provide services was given to a person, the Minister may, by written notice given to the person, revoke the permit if the Minister is satisfied, having regard to any events that have occurred, or any information of which he or she has become aware, since the permit was given, that the supply or export of the goods or the provision of the services, as the case may be, would be contrary to Australia’s international or treaty obligations or the national interest.
14
Notice prohibiting supply or export of goods or provision of services
14 Notice prohibiting supply or export of goods or provision of services
(1) If the Minister:
(a) has reason to believe or suspect that:
(i) if a person were to supply particular goods to another person or to export particular non‑regulated goods to a particular place, the goods would or might be used in a WMD program; or
(ii) if a person were to provide particular services to another person, the provision of the services would or might assist a WMD program; and
(b) the Minister considers that a permit could not be given under section 13 in respect of such a supply or export of goods or the provision of such services, as the case may be;
the Minister may give the person in accordance with the regulations a notice under subsection (2).
(2) The notice may:
(a) prohibit the person from supplying the goods to the other person or exporting the goods to the place concerned, or from providing the services to the other person, as the case requires; or
(b) prohibit the person from so supplying or exporting the goods, or so providing the services, unless conditions stated in the notice are complied with.
(3) The Minister may revoke, in accordance with the regulations, a notice given under subsection (1).
(4) A notice given to a person under subsection (1) remains in force for a period of 12 months beginning on the day when the notice is given to the person, unless the notice is revoked before the end of that period.
(5) The Minister may, in relation to the supply or export of goods, or the provision of services, give a notice to a person under subsection (1) that is to take effect at the time when a previous notice given to the person under that subsection in relation to the supply or export of those goods, or the provision of those services, as the case may be, ceases to be in force.
(6) A person commits an offence if:
(a) the person supplies or exports goods or provides services; and
(b) that conduct is in contravention of a notice, or of a condition stated in a notice, in force under this section; and
(c) the person knows of the contravention.
Penalty: Imprisonment for 8 years.
15
Conduct by directors, employees and agents
15 Conduct by directors, employees and agents
(1) If, in proceedings for an offence against this Act, it is necessary to prove the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b) that the director, employee or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of a prosecution for an offence against this Act, to have been engaged in also by the body corporate unless it proves that it took reasonable precautions and exercised due diligence to avoid the conduct.
(3) If, in proceedings for an offence against this Act, it is necessary to prove the state of mind of an individual in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by an employee or agent of the individual within the scope of his or her actual or apparent authority; and
(b) that the employee or agent had the state of mind.
(4) Any conduct engaged in on behalf of an individual by an employee or agent of the individual within the scope of his or her actual or apparent authority is taken, for the purposes of a prosecution for an offence against this Act, to have been engaged in also by the individual unless he or she proves that he or she took reasonable precautions and exercised due diligence to avoid the conduct.
(5) If:
(a) an individual is convicted of an offence; and
(b) he or she would not have been convicted of the offence if subsections (3) and (4) had not been enacted;
he or she is not liable to be punished by imprisonment for that offence.
16
Injunctions
16 Injunctions
Enforceable provisions
(1) A provision is enforceable under Part 7 of the Regulatory Powers Act if it is an offence against this Act.
Note 1: The expression offence against this Act has an extended meaning (see section 3).
Note 2: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.
Authorised person
(2) For the purposes of Part 7 of the Regulatory Powers Act, the Minister is an authorised person in relation to the provisions mentioned in subsection (1).
(3) The Minister may, in writing, delegate the Minister’s powers and functions as an authorised person to an officer of the Department in relation to the provisions mentioned in subsection (1).
Relevant court
(4) For the purposes of Part 7 of the Regulatory Powers Act, the Federal Court of Australia is a relevant court in relation to the provisions mentioned in subsection (1).
Extension to external Territories
(5) Part 7 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.
17
Forfeiture of goods
17 Forfeiture of goods
(1) If a person exports or supplies, or attempts to export or supply, goods in contravention of this Act, the goods, and any packages in which they are contained, are forfeited to the Commonwealth.
(2) An authorised person may, without warrant, seize any goods that are forfeited, or that the authorised person has reasonable grounds to believe are forfeited, to the Commonwealth under subsection (1) and take them before a court of summary jurisdiction.
(3) If goods are taken before a court of summary jurisdiction under subsection (2), the court must inquire into the matter and:
(a) if the court is satisfied that the goods are forfeited—must order that the goods be condemned; or
(b) if the court is not so satisfied—must order that the goods be delivered to whoever the court is satisfied is entitled to the goods.
(4) Before inquiring into a matter in accordance with subsection (3), a court of summary jurisdiction may require notice of the inquiry to be given to anyone that the court thinks appropriate.
(5) If a prosecution is pending, an order for the condemnation, or for the delivery to a person, of goods relating to the prosecution must not be made until the prosecution is determined.
(6) Goods seized under subsection (2) must be stored in accordance with prescribed procedures until an order is made under subsection (3).
(7) Condemned goods must be destroyed or otherwise dealt with in accordance with prescribed procedures as soon as practicable after it is determined that the goods are condemned.
(8) Until they are so destroyed or otherwise dealt with, condemned goods must be stored in accordance with prescribed procedures.
18
Evidential certificates by Minister
18 Evidential certificates by Minister
In any proceeding, a certificate given by the Minister stating that notice of a kind mentioned in subsection 14(1) was given to a particular person on a particular date is admissible as prima facie evidence of the matters stated in the certificate.
19
Delegation by Minister
19 Delegation by Minister
The Minister may delegate to an officer of the Department all or any of the powers conferred on the Minister by this Act other than the power to give or revoke a notice under section 14.
20
Attorney‑General’s consent required for prosecutions
20 Attorney‑General’s consent required for prosecutions
(1) A prosecution for an offence against this Act requires the consent of the Attorney‑General.
(2) Despite subsection (1):
(a) anyone may be arrested for an offence against this Act, and a warrant for such an arrest may be issued and executed; and
(b) anyone may be charged with such an offence; and
(c) anyone so charged may be remanded in custody or on bail;
but no further step in the proceedings referred to in subsection (1) is to be taken until the Attorney‑General’s consent has been given.
(3) Subsection (2) does not prevent the discharge of the accused if proceedings are not continued within a reasonable time.
21
Regulations
21 Regulations
The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Source text: opening excerpt
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
1 Short title
1 Short title
This Act may be cited as the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995.
2 Commencement
2 Commencement
(1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.
(2) If this Act does not commence under subsection (1) within 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period.
3 Interpretation
3 Interpretation
In this Act, unless the contrary intention appears:
authorised person means:
(a) a member of the Defence Force; or
(b) a member or special member of the Australian Federal Police or a member of the police force of a State or Territory; or
(c) an officer of Customs.
Biological Weapons Convention means the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, which was signed on behalf of Australia on 10 April 1972 and a copy of the English text of which is set out in the Schedule to the Crimes (Biological Weapons) Act 1976.
Chemical Weapons Convention means the Convention on the Prohibition of the Development, Production, Stockpiling and use of Chemical Weapons and on their Destruction (including the annexes to that Convention), a copy of the English text of which is set out in the Schedule to the Chemical Weapons (Prohibition) Act 1994, as amended by any amendment to that Convention that is accepted by Australia and a copy of the English text of which is set out in regulations in force under that Act.
director, in relation to a body that:
(a) is incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory; and
(b) is constituted by one or more members;
means the member, or any of the members, constituting the body.
engage in conduct includes fail or refuse to engage in conduct.
export means export from Australia, the Territory of Cocos (Keeling) Islands or the Territory of Christmas Island.
financial corporation means a financial corporation, within the meaning of paragraph 51(xx) of the Constitution, formed within the limits of the Commonwealth.
Enforcement mechanisms are both criminal and civil. Offences against the Act are enforceable by injunction under Part 7 of the Regulatory Powers (Standard Provisions) Act 2014, with the Minister (or a delegated departmental officer) as the authorised applicant and the Federal Court as the relevant court (s 16). Goods supplied or exported, or attempted to be supplied or exported, in contravention are forfeited to the Commonwealth (s 17(1)). Authorised persons—defined to include Defence Force members, federal and state police, and Customs officers—may seize them without warrant and bring them before a court of summary jurisdiction for condemnation or release (s 17(2)–(8)).
Corporate liability is addressed in s 15. The section applies both the “directing mind” principle and a vicarious liability rule. Conduct and state of mind of directors, employees and agents within actual or apparent authority are attributed to the body corporate (s 15(1)–(2)) or to an individual principal (s 15(3)–(4)). A due-diligence defence is available to the corporation or individual, but an individual who would not have been convicted but for the attribution rule cannot be imprisoned (s 15(5)).
Prosecutions require the Attorney-General’s consent (s 20(1)), although arrest, charging and remand may occur beforehand (s 20(2)). The Minister may issue evidentiary certificates as to the giving of a s 14 notice (s 18). Delegation of most ministerial powers is permitted, but not the power to issue or revoke a s 14 notice (s 19). The Act binds the Crown but does not expose it to prosecution (s 8).
Who it affects
The Act casts a wide net. Section 6(3)(a) covers every natural person and every body corporate that performs a prohibited act or omission inside Australia or an external Territory. Section 6(3)(b) extends the prohibitions extraterritorially to Australian citizens, persons ordinarily resident in Australia or an external Territory, and bodies incorporated in Australia or an external Territory. Because “export” is defined to include export from the Cocos (Keeling) Islands and Christmas Island (s 3), activities in those territories are expressly captured.
The prohibitions bind trading corporations, financial corporations and foreign corporations when the constitutional limbs in s 7(1)(e), (f) or s 7(2) are engaged. Directors of Commonwealth, State or Territory statutory bodies are brought within the definition of “director” for the purposes of the attribution rules in s 15.
Authorised persons (Defence Force members, AFP and state police, and officers of Customs) are given seizure and enforcement powers. The Minister and delegated departmental officers exercise permit, notice, revocation and certification functions. The Attorney-General controls prosecutions. Courts of summary jurisdiction determine forfeiture contests, while the Federal Court hears injunction applications under the Regulatory Powers Act.
Because the Act applies to attempts (s 17(1)) and to ancillary offences under the Criminal Code (s 3 definition of “offence against this Act”), a broad range of advisers, freight forwarders, financiers and consultants who facilitate prohibited conduct are also exposed.
Key duties and rights
The primary duties are negative: a person must not supply goods (s 9(1)), export non-regulated goods (s 10(1)), or provide services (s 11(1)) where the belief-or-suspicion threshold is met, no permit authorises the conduct, and no ministerial notice under s 12 has cleared the transaction. “Provide services” is deliberately expansive (s 4). It includes any act that confers a benefit, grants a right, provides a facility or otherwise assists, and expressly captures contracts for work (including professional work), lending, training, transfer of technological know-how, and even procuring another person to supply goods or services.
A positive duty arises once a person harbours the relevant belief or suspicion: the option (but not obligation) to seek ministerial confirmation under s 12. If a s 14 notice is received, the recipient is under a duty to comply with its terms for the full 12 months unless it is earlier revoked (s 14(4)).
Rights created by the Act are largely procedural. An applicant for a permit has the right to a decision on the criteria in s 13(1)(d). A person issued a s 14 notice has the right to have that notice revoked if circumstances change (s 14(3)). A person whose goods are seized is entitled to a summary-jurisdiction inquiry at which they may contest forfeiture (s 17(3)). Bodies corporate and individuals subject to attribution rules may prove reasonable precautions and due diligence (s 15(2) and (4)).
The Crown in all its capacities is bound but enjoys immunity from prosecution (s 8). Nothing in the Act displaces other regulatory regimes; it is expressly additional to them (s 6(4)).
Penalties and enforcement
Each of the three core offences carries a maximum penalty of 8 years’ imprisonment (ss 9(1), 10(1), 11(1)). The same maximum applies to knowing breach of a s 14 notice (s 14(6)). Notes to ss 9–11 and 14(6) remind sentencing courts of the operation of s 4B(2) and (3) of the Crimes Act 1914, allowing fines in lieu of or in addition to imprisonment and, for bodies corporate, fines up to five times the maximum that could be imposed on an individual.
Forfeiture under s 17 is automatic upon contravention or attempted contravention. Seizure is warrantless. Storage, inquiry, condemnation and destruction must follow prescribed procedures (s 17(6)–(8)). Injunctions are available on the application of the Minister or delegate under the Regulatory Powers Act (s 16). Evidentiary certificates under s 18 relieve the need to call the Minister to prove the fact and date of a s 14 notice.
Prosecutions lie only with Attorney-General consent (s 20), a safeguard that prevents private prosecutions and allows whole-of-government consideration of foreign-policy and treaty implications.
How it interacts with other laws
The Act is expressly “additional to, and does not prejudice” any other Act (s 6(4)). Its definitions of “export”, “officer of Customs” and “non-regulated goods” tie it directly to the Customs Act 1901. Offences under the Act are taken to include ancillary offences under ss 11.1, 11.4 and 11.5 of the Criminal Code and s 6 of the Crimes Act 1914 (s 3).
Chapter 2 of the Criminal Code (general principles of criminal responsibility) applies to all offences against the Act, with the exception of Part 2.5 (corporate criminal responsibility) (s 8A). This means the fault elements of intention, knowledge, recklessness and negligence, the rules on mistake of fact, and the defence of lawful authority operate as codified.
Injunctions are obtained through the standard framework in Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 (s 16). The Biological Weapons Convention, Chemical Weapons Convention and Non-Proliferation Treaty are given domestic effect in part through this Act (s 7(1)(a)), but the Act also cross-references the Crimes (Biological Weapons) Act 1976, the Chemical Weapons (Prohibition) Act 1994 and the Nuclear Non-Proliferation (Safeguards) Act 1987.
Section 15’s attribution rules sit alongside, and in some respects differ from, the corporate responsibility provisions in Part 2.5 of the Criminal Code, which has been expressly disapplied. The due-diligence defence in s 15(2) and (4) therefore remains the governing test for this statute.
Recent changes and why
Although the Act was passed in 1995, the version reproduced incorporates two significant post-enactment amendments. The insertion of s 8A applies Chapter 2 of the Criminal Code (other than Part 2.5). This change aligned the Act with the general Commonwealth criminal-law policy adopted after the Criminal Code came into full operation.
The more substantial modernisation appears in s 16, which applies the Regulatory Powers (Standard Provisions) Act 2014 to all offences against the Act. This replaced earlier bespoke injunction provisions with a standardised federal framework, reducing legislative duplication and ensuring consistent court procedures across Commonwealth regulatory statutes. The definition of “Regulatory Powers Act” was inserted to facilitate that reference.
Section 14(6) was also strengthened to create a distinct knowledge-based offence for breach of a ministerial notice, clarifying that mens rea is required for that particular prohibition.
These changes reflect a broader legislative trend toward codification of general principles, standardisation of enforcement tools, and clearer separation between strict liability elements and fault-based offences.
Court challenges and controversies
The printed text contains no reported decisions, yet several provisions are likely to generate litigation. The “believes or suspects, on reasonable grounds” threshold in ss 9–11 mixes subjective and objective elements. Courts will be required to determine whether the belief or suspicion must actually be held by the accused or whether it is sufficient that a reasonable person in the accused’s position would have held it. The phrase “will or may be used in” introduces a low probability threshold that could capture conduct many steps removed from actual weapon development.
The extraterritorial reach in s 6(3)(b) read with the constitutional bases in s 7 raises questions of international comity. An Australian citizen providing technical advice in a foreign country pursuant to a contract governed by foreign law may argue that the Act cannot apply consistently with the foreign state’s sovereignty. No statutory exception for acts lawful in the place of performance appears.
The attribution rules in s 15(2) and (4) reverse the onus of proof on the due-diligence defence. Constitutional arguments under Chapter III or the implied freedom of political communication have not been tested but could arise where a corporation seeks to argue that the reverse onus impermissibly interferes with fair trial rights.
Ministerial decisions to grant, refuse or revoke permits under s 13, or to issue notices under s 14, are expressed in broad discretionary language (“national interest”, “international or treaty obligations”). Judicial review under the Administrative Decisions (Judicial Review) Act 1977 or s 39B of the Judiciary Act 1903 is available, but the Minister’s certificate power in s 18 may limit the evidentiary material before the court.
The interaction between this Act and the autonomous sanctions regimes administered under the Autonomous Sanctions Act 2011 and the Charter of the United Nations (Sanctions—Regulations) has produced practical overlap. Exporters sometimes receive simultaneous notices under both regimes, raising questions of which regime prevails in the event of inconsistency.
Gotchas
Most practitioners assume that the Act only bites when the goods or services are listed on a control list. That is incorrect. The trigger is the person’s own reasonable belief or suspicion; there is no requirement that the goods be “regulated” except in the narrow sense that s 10 applies only to non-regulated goods (i.e. those not already prohibited exports under the Customs (Prohibited Exports) Regulations). Consequently, seemingly innocuous dual-use items or pure technical data can engage the prohibitions once the mental element is satisfied.
The definition of “provide services” in s 4 is wider than many realise. It expressly includes “providing technological information or know-how” and “procuring another to supply or export goods or provide services”. A compliance officer who merely introduces a supplier to a foreign buyer whom the officer suspects may be linked to a WMD program may therefore commit the s 11 offence.
Section 14 notices last 12 months and can be stacked (s 14(5)). A company that receives a notice in January and another in December may inadvertently breach the second notice because staff assumed the first had lapsed. There is no statutory obligation on the Minister to remind the recipient that a fresh notice has issued.
The due-diligence defence in s 15(2) requires the corporation to prove that it “took reasonable precautions and exercised due diligence to avoid the conduct”. Because the conduct includes the formation of the belief or suspicion, a compliance program that merely checks control lists may be insufficient; the program must also demonstrate that staff were trained to recognise and report red-flag indicators of WMD end-use.
Finally, the Attorney-General’s consent requirement in s 20 is not a mere formality. In practice it introduces a foreign-policy filter. Transactions that might be technically unlawful can be allowed to proceed by the simple expedient of never seeking consent to prosecute. Conversely, a company that self-reports and receives a s 12 clearance may still face collateral reputational or export-finance consequences if the Minister’s notice is later used in other proceedings.
How to comply
A robust compliance program must begin with a risk assessment that identifies every business unit that supplies, exports or provides services with any potential dual-use application. Staff in those units require training on the precise wording of the s 3 WMD program definition and the “believes or suspects on reasonable grounds” test. The training should use real-world red-flag indicators drawn from export-control agency guidance (although the statute itself contains none).
All transactions that cross the mental threshold must be routed through a centralised approval process. The company should document the decision to seek a s 12 ministerial confirmation or a s 13 permit. Records must be kept for at least seven years given the serious criminal nature of the offences.
Where a s 14 notice is received, it should be scanned into an enterprise sanctions screening system so that every future proposal involving the same goods, destination or counterparty is automatically blocked or escalated. Because notices can be renewed, the system must track the 12-month sunset and any fresh notices.
Contracts with overseas customers and agents should contain warranties that the goods or services will not be used in a WMD program, coupled with termination rights and indemnities. Insurance policies should be checked to confirm that cover is not excluded for breaches of proliferation controls.
Board-level reporting should occur whenever a s 12 request is made or a permit application is lodged. The company’s due-diligence defence under s 15 will be judged by the reasonableness of the precautions actually taken; therefore policies, training records, audit trails and escalation logs must be maintained in auditable form.
Finally, because the Act applies to Australian citizens and residents overseas, secondments and expatriate postings require separate briefing. The company cannot assume that local law in the host country will be determinative; Australian prohibitions continue to apply.
foreign corporation has the same meaning as in paragraph 51(xx) of the Constitution.
goods includes documents.
Non‑Proliferation Treaty means the Treaty on the Non‑Proliferation of Nuclear Weapons that was signed on behalf of Australia on 27 February 1970, a copy of the English text of which is set out in Schedule 2 to the Nuclear Non‑Proliferation (Safeguards) Act 1987, and, subject to subsection 4(3) of that Act, includes that Treaty as amended from time to time.
non‑regulated goods means goods that are not prohibited exports under the Customs Act 1901.
offence against this Act includes an offence against:
(a) section 6 of the Crimes Act 1914; or
(b) section 11.1, 11.4 or 11.5 of the Criminal Code;
that relates to an offence against this Act.
officer of Customs has the same meaning as in the Customs Act 1901.
permit means a permit in force under section 13.
provide services has a meaning affected by section 4.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
state of mind, in relation to a person, includes:
(a) the person’s knowledge, intention, opinion, belief or purpose; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
supply means supply whether or not for any consideration, and includes supply by way of sale, lease, hire or hire‑purchase.
trading corporation means a trading corporation, within the meaning of paragraph 51(xx) of the Constitution, formed within the limits of the Commonwealth.
Weapons of Mass Destruction program or WMD program means a plan or program for the development, production, acquisition or stockpiling of nuclear, biological or chemical weapons or missiles capable of delivering such weapons.
4 Provision of services
4 Provision of services
(1) A reference in this Act to the provision of services includes, without limiting the generality of that expression, a reference to doing anything (other than supplying or exporting goods) that confers a benefit on, grants a right or privilege to, provides a facility for, or otherwise assists, someone, including anything done under:
(a) a contract for or in relation to the performance of work (including work of a professional nature) with or without the supply or export of goods; or
(b) a contract for or in relation to the lending of money or other provision of financial assistance.
(2) Examples of the provision of services are:
(a) working as an employee, consultant or adviser; and
(b) providing training; and
(c) providing technological information or know‑how; and
(d) procuring another to supply or export goods or provide services.
5 Extension to external Territories
5 Extension to external Territories
This Act extends to the external Territories.
6 Object and operation of the Act
6 Object and operation of the Act
(1) The object of this Act is to ensure, so far as the Constitution permits, that goods are not supplied or exported, and services are not provided, in circumstances where the goods will or may be used in, or the services will or may assist, the development, production, acquisition or stockpiling of weapons that are capable of causing mass destruction or missiles that are capable of delivering such weapons.
(2) This Act has effect, and is to be interpreted, accordingly.
(3) This Act applies to:
(a) acts and omissions done in Australia or an external Territory; and
(b) acts and omissions done outside Australia and the external Territories by:
(i) Australian citizens; or
(ii) people ordinarily resident in Australia or an external Territory; or
(iii) bodies incorporated in Australia or an external Territory.
(4) This Act is additional to, and does not prejudice, the operation of any other Act that deals with a matter dealt with by this Act.
7 Additional operation of the Act
7 Additional operation of the Act
(1) Without prejudice to the effect that this Act has apart from this subsection, it also has the effect that it would have if its application were limited to:
(a) giving effect to:
(i) the Biological Weapons Convention; or
(ii) the Non‑Proliferation Treaty; or
(iii) after the Chemical Weapons Convention comes into force for Australia‑that Convention; or
(iv) any international obligation of Australia arising otherwise than under a Convention or Treaty referred to in a preceding subparagraph; or
(b) matters external to Australia; or
(c) matters of international concern; or
(d) the defence of Australia; or
(e) goods that are owned by, or are in the possession or control of, a trading corporation or a foreign corporation or services that are provided by a trading corporation, a financial corporation or a foreign corporation; or
(f) goods that are, or services that are provided, in the course of trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2 Territories.
(2) Without prejudice to the effect that this Act has apart from this subsection, it also has the effect that it would have if its application were limited to goods that are owned by, or are in the possession or control of, a trading corporation in the course of its trading activities or services that are provided by a trading corporation in the course of its trading activities or by a financial corporation in the course of its financial activities.
8 Act to bind the Crown
8 Act to bind the Crown
(1) This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
(2) Nothing in this Act renders the Crown in any right liable to be prosecuted for an offence.
(3) To avoid doubt, a reference in this section to the Crown in a particular right includes a reference to an instrumentality or agency (whether a body corporate or not) of the Crown in that right.
8A Application of the Criminal Code
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.
9 Prohibition on supplying goods for WMD program
9 Prohibition on supplying goods for WMD program
(1) If:
(a) a person supplies any goods to another person; and
(b) the first‑mentioned person believes or suspects, on reasonable grounds, that the goods will or may be used in a WMD program; and
(c) the supply of the goods is not authorised by a permit or is in contravention of a condition stated in a permit; and
(d) the Minister has not given a written notice to the first‑mentioned person under section 12 stating that the Minister has no reason to believe or suspect that the goods will or may be used in a WMD program;
the first‑mentioned person commits an offence punishable on conviction by imprisonment for not more than 8 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.
(2) It is not an offence against subsection (1) for a person to supply goods to another person if the goods are supplied in compliance with conditions stated in a notice given to the first‑mentioned person by the Minister under subsection 14(2).
10 Prohibition on exporting goods for WMD program
10 Prohibition on exporting goods for WMD program
(1) If:
(a) a person exports any non‑regulated goods; and
(b) the person believes or suspects, on reasonable grounds, that the goods will or may be used in a WMD program; and
(c) the export of the goods is not authorised by a permit or is in contravention of a condition stated in a permit; and
(d) the Minister has not given a written notice to the person under section 12 stating that the Minister has no reason to believe or suspect that the goods will or may be used in a WMD program;
the person commits an offence punishable on conviction by imprisonment for not more than 8 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.
(2) It is not an offence against subsection (1) for a person to export non‑regulated goods if the goods are exported in compliance with conditions stated in a notice given to the person by the Minister under subsection 14(2).
11 Prohibition on providing services for WMD program
11 Prohibition on providing services for WMD program
(1) If:
(a) a person provides any services to another person; and
(b) the first‑mentioned person believes or suspects, on reasonable grounds, that the services will or may assist a WMD program; and
(c) the provision of the services is not authorised by a permit or is in contravention of a condition stated in a permit; and
(d) the Minister has not given a written notice to the first‑mentioned person under section 12 stating that the Minister has no reason to believe or suspect that the provision of the services will or may assist a WMD program;
the first‑mentioned person commits an offence punishable on conviction by imprisonment for not more than 8 years.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. If a body corporate is convicted of the offence, subsection 4B(3) of that Act allows a court to impose a fine of an amount that is not greater than 5 times the maximum fine that could be imposed by the court on an individual convicted of the same offence.
(2) It is not an offence against subsection (1) for a person to provide services to another person if the services are provided in compliance with conditions stated in a notice given to the first‑mentioned person by the Minister under subsection 14(2).
12 Request to the Minister for information
12 Request to the Minister for information
(1) If a person who wishes to supply goods, to export non‑regulated goods or to provide services believes or suspects that the goods will or may be used in, or the provision of the services will or may assist, a WMD program, the person may request the Minister in writing for information as to whether the Minister has reason to believe or suspect that the goods will or may be used in, or the provision of the services will or may assist, a WMD program.
(2) If such a request is made, the Minister must, as soon as possible, give the person who made the request a written notice containing the information sought in the request.
13 Permits
13 Permits
(1) If:
(a) a person wishes to supply goods to a particular person, to export non‑regulated goods to a particular place or to provide services to a particular person; and
(b) the Minister has reason to believe or suspect that the goods will or may be used in, or the provision of the services will or may assist, a WMD program; and
(c) the first‑mentioned person applies in accordance with the regulations for a permit under this section to supply or export the goods or provide the services; and
(d) the Minister is satisfied that the supply or export of the goods or the provision of the services in accordance with the application would not be contrary to Australia’s international or treaty obligations or the national interest;
the Minister may give the first‑mentioned person a written permit to supply or export the goods or provide the services, as the case may be, as mentioned in the permit.
(2) A permit may be unconditional or subject to conditions stated in the permit.
(3) If a permit to supply or export goods or provide services was given to a person, the Minister may, by written notice given to the person, revoke the permit if the Minister is satisfied, having regard to any events that have occurred, or any information of which he or she has become aware, since the permit was given, that the supply or export of the goods or the provision of the services, as the case may be, would be contrary to Australia’s international or treaty obligations or the national interest.
14 Notice prohibiting supply or export of goods or provision of services
14 Notice prohibiting supply or export of goods or provision of services
(1) If the Minister:
(a) has reason to believe or suspect that:
(i) if a person were to supply particular goods to another person or to export particular non‑regulated goods to a particular place, the goods would or might be used in a WMD program; or
(ii) if a person were to provide particular services to another person, the provision of the services would or might assist a WMD program; and
(b) the Minister considers that a permit could not be given under section 13 in respect of such a supply or export of goods or the provision of such services, as the case may be;
the Minister may give the person in accordance with the regulations a notice under subsection (2).
(2) The notice may:
This is an opening excerpt, not the complete document.