Bills Digest no. 51 1976
Crimes (Biological Weapons) Bill 1976
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
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the subsequent official status of the Bill.
CONTENTS
Passage History
Background
Purpose
Summary
Contact Officer & Copyright Details
Passage History
Crimes
(Biological Weapons) Bill 1976
Date introduced: 18 November 1976
House: House of Representatives
Purpose
The Bill approves the ratification by Australia
of the Convention on the Prohibition of the Development, Production
and Stockpiling of Bacteriological (Biological) and Toxin Weapons and
on their Destruction and enacts the necessary provisions required by
the Convention for that ratification to occur.
Background
The Convention relates to microbial or other
biological agents, or toxins in types or in quantities that have no
justification for prophylactic, protective or other peaceful purposes
and to weapons and equipment designed to use such agents or toxins for
hostile purposes or in armed conflict (Article I).
States Parties to the Convention agree not
to develop, produce or stockpile such agents (Article I); to destroy
or divert to peaceful purposes within nine months all such agents or
toxins in their possession or under their jurisdiction or control (Article II);
and not to transfer any such agents or toxins or assist any State or
organization to manufacture them (Article III).
The major requirement is in Article IV which
provides that each State Party shall take any necessary measures to
prohibit and prevent the development, production or stockpiling of any
such agents or toxins within its territory, under its jurisdiction or
under its control anywhere.
Alleged breaches of the Convention are to
be referred to the United Nations Security Council which may investigate
them.
The Convention is now in force. Under Article
XIV (4) it will enter into force for Australia
upon ratification.
Summary
Approval is given by clause 7 to ratification
by Australia
of the Convention, a copy of which is set out in the Schedule. Clause
7 is to come into operation at Royal Assent (clause 2 (1)).
Clause 8 creates an offence for corporations
or natural persons who do acts declared by sub-clause 8 (1) to be unlawful.
The unlawful acts consist of developing, producing, stockpiling or otherwise
acquiring or retaining the agents or toxins described in the Convention
and weapons or equipment designed to use them. Sub-clause 8 (1) repeats
exactly the words of Article IV of the Convention in describing the
agents and toxins and sub-clause 8 (3) provides that expressions used
in the Convention and in the clause have the same meaning as they do
in the Convention. There are, however, no special interpretation provisions
in the Convention, and it will presumably be for an Australian court
to decide whether a substance is, or is not, within the meaning of the
clause.
The penalties for the offence are set out
in sub-clause 8 (2). For a corporation the penalty is a fine not exceeding
$200,000; for a natural person the penalty is a fine not exceeding $10,000,
or imprisonment for life or for a specified period.
Although clause 6 of the Bill binds the
Crown in right of the Commonwealth and of the States the offences created
by clause 8 (2) only apply to natural persons and corporations and thus,
in relation to the Commonwealth and State Governments, the Bill has
moral force only.
The Bill extends to the external Territories
(clause 4) and covers acts and omissions by Australian citizens outside
Australia
and the external Territories (clause 5). This is in accordance with
the requirements of Article IV requiring prohibition of the unlawful
acts within the territory of Australia,
under its jurisdiction or under its control anywhere.
Offences against clause 8 (2) and offences
of aiding and abetting (Crimes Act, section 5), inciting (Crimes Act,
section 7A) or attempts to commit offences (Crimes Act, section 7) may
only be prosecuted with the consent of the Attorney-General or a person
authorized by him (sub-clause 10 (3)) although charges may be made and
persons arrested without such a consent (sub-clause 10 (4)). All such
offences are indictable offences and may not be tried summarily (clause
10 (1)) except in accordance with a State or Territory law whereby a
person who pleads guilty at committal proceedings may be dealt with
by a higher court otherwise than on indictment (clause 10 (2)).
Offences committed within a State are to
be dealt with by the State courts; otherwise a court of competent jurisdiction
may deal with offences (clause 11).
There are special evidentiary provisions
in clause 12 to permit an analyst appointed by the Minister to give
a certificate of his analysis of any substance as prima facie
evidence if copies have been given to the accused; if so, the analyst
may be cross-examined on the contents of the certificate. Regulations
may also be made to give the accused the right to have an analysis made
of samples of the agent or toxin concerned in the offence. (clause
13 (b)).
Clause 9 deals with forfeiture of substances
which are, in the opinion of a Commonwealth, State or Territory policeman,
covered by the Bill.
Clause 8 and the other related clauses are
to operate on a date to be fixed by Proclamation being a date not earlier
than the day the Convention is ratified (clause 2 (2)). The source of
legislative power for the Bill is the external affairs power (Constitution,
section 51 (xxix)) and this ensures that the obligations of Australia
under the Convention are in existence before the provisions of the Bill
which depend on these obligations come into operation.
Law and Government Group
18 November 1976
Bills Digest Service
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ISSN 1328-8091
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