Commonwealth: Comprehensive Nuclear-Test-Ban Treaty Act 1998 (Cth)

Comprehensive Nuclear‑Test‑Ban Treaty Act 1998 No. 78, 1998 Compilation No. 8 Compilation date: 29 December 2018 Includes amendments up to: Act No. 67 of 2018 Registered: 8 January 2019 About this compilation This compilation This is a compilation of the Comprehensive Nuclear-Test-Ban Treaty Act 1998 that shows the text of the law as amended and in force on 29 December 2018 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 External Territories 4 Australian ships and aircraft 5 Act binds the Crown 6 Application of Criminal Code 7 Definitions Part 2—Ban on nuclear explosions 8 Offence of causing a nuclear explosion 9 Extraterritorial operation of offence Part 3—Inspections Division 1—Outline of Part 10 Outline of Part Division 2—On‑site inspections etc. 11 Requests for on‑site inspections 12 On‑site inspection powers 13 On‑site inspection purposes 14 Organization inspectors 15 Observers Division 3—Clarification procedures 16 Scope of Division 17 Director may give information or documents 17A Declaration of clarification inspection area 18 Inspections by national inspectors 19 Joint inspections 20 Limit on modifications Division 4—Inspection warrants and conduct of inspections 21 On‑site inspection warrants 22 Clarification inspection warrants 23 Content of warrants 24 Duration of inspection 25 Inspections not to be intrusive 26 On‑site inspection warrant may authorise presence of an observer 27 Initial inspection plan 28 Managed access 29 Other modifications of inspection plan Division 5—Offence‑related searches and seizures 30 Offence‑related searches and seizures 31 Offence‑related warrants 32 The things that are authorised by a search warrant 33 Specific powers available to warrant teams executing search warrants 34 Use of equipment to examine or process things 35 Use of electronic equipment at premises 36 Occupier may observe search 37 Warrants by telephone or other electronic means 38 Receipts for things seized or moved 39 Return of seized things 40 Court of summary jurisdiction may permit a thing to be retained Division 6—General rules about warrants 41 Announcement before entry 42 Availability of assistance and use of force in executing warrant 43 Details of warrant to be given to occupier etc. 44 Copies of seized things to be provided 45 Compensation for damage to equipment 46 Making false statements in applications for warrant 47 Offences relating to telephone warrants Part 4—Monitoring facilities Division 1—Establishing and operating monitoring facilities 48 Declaration of Treaty monitoring facilities 49 Minister may establish and operate monitoring facilities 50 Minister may enter into arrangements Division 2—Powers to do certain activities 51 Authorisation to gain access to facilities 52 Inspecting land 53 Establishing facilities 54 Maintaining facilities Division 3—Rules about exercising Division 2 powers 55 Damage etc. to be minimised 56 Person must restore land 57 Management of activities 58 Roads etc. to remain open for passage 59 Notice to owner of land 60 Giving notices 61 Compensation Part 5—Australian Comprehensive Test Ban Office Division 1—Establishment of the Office 62 Designation of the Office 63 Director of Office 64 Functions of the Office 65 Delegation by Director Division 2—National inspectors and consultants 66 National inspectors 67 Identity cards 68 Engagement of consultants etc. Part 6—Miscellaneous 69 Delegation by Minister 70 Powers to be exercised in accordance with Treaty 71 Annual report by Director 72 Additional reports 73 Privileges and immunities 74 Secrecy 75 Expressions in section 74 76 Australia not liable for acts or omissions of Organization 77 Organization has legal personality and capacity 78 Regulations Schedule 1—Comprehensive Nuclear‑Test‑Ban Treaty Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to give effect to certain of Australia's obligations as a party to the Comprehensive Nuclear Test‑Ban Treaty, and for related purposes Part 1—Preliminary 1 Short title This Act may be cited as the Comprehensive Nuclear‑Test‑Ban Treaty Act 1998. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table At the same time as Schedule 2 to the Non‑Proliferation Legislation Amendment Act 2003 commences 12 December 2003 2. Sections 3 to 7 A day or days to be fixed by Proclamation, subject to subsection (3) 11 June 2004 (s 2(1); Gazette 2004, S201) 3. Part 2 A day or days to be fixed by Proclamation, subject to subsection (3) 11 June 2004 (s 2(1); Gazette 2004, S201) 4. Part 3 The day on which the Treaty enters into force for Australia 5. Part 4, Division 1 A day or days to be fixed by Proclamation, subject to subsection (3) 11 June 2004 (s 2(1); Gazette 2004, S201) 6. Part 4, Divisions 2 and 3 The day on which the Treaty enters into force for Australia 7. Parts 5 and 6 A day or days to be fixed by Proclamation, subject to subsection (3) Part 5 (Div. 1 [ss 62–65]), ss 68–72, 74, 75, 78 and Sch 1: 11 June 2004 (s 2(1); Gazette 2004, S201) 8. Schedule 1 A day to be fixed by Proclamation, subject to subsection (3) 11 June 2004 (s 2(1); Gazette 2004, S201) Note: This table relates only to the provisions of this Act as amended by the Foreign Affairs and Trade Legislation Amendment (Application of Criminal Code) Act 2001 and the Non‑Proliferation Legislation Amendment Act 2003. It will not be expanded to deal with other provisions inserted in this Act. (2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act. (3) If a provision covered by item 2, 3, 5, 7 or 8 of the table does not commence before the day on which the Treaty enters into force for Australia, it commences on that day. (4) The Minister must announce by notice in the Gazette the day on which the Treaty enters into force for Australia. 3 External Territories This Act extends to the external Territories. 4 Australian ships and aircraft This Act extends to acts and omissions on board ships and aircraft registered in Australia or that the Commonwealth, a State or a Territory owns or possesses. 5 Act binds the Crown (1) This Act binds the Crown in each of its capacities. (2) However, nothing in this Act makes the Crown liable to be prosecuted for an offence. 6 Application of Criminal Code The Criminal Code applies to all offences against this Act. 7 Definitions In this Act, unless the contrary intention appears: Australia, when used in a geographical sense, includes the external Territories. Australian Comprehensive Test Ban Office means the Australian Comprehensive Test Ban Office designated under section 62. clarification inspection means an inspection carried out under Division 3 of Part 3. clarification inspection area means an area the Minister specifies in a declaration under section 17A. clarification warrant means a warrant issued under section 22. Director means the person designated under section 63 as the Director of the Australian Comprehensive Test Ban Office. environment includes all aspects of the surroundings of human beings, whether affecting human beings as individuals or in social groupings. establish, in relation to a facility, includes: (a) construct the facility on, over or under any land; and (b) attach the facility to any building or other structure; and (c) do any activity that is ancillary or incidental to establishing the facility (for this purpose, establish includes an activity covered by paragraph (a) or (b)). evidential material means a thing that may afford evidence as to the commission of an offence against this Act, including such a thing in electronic form. foreign country inspector means a person the Minister declares to be a foreign country inspector under section 19. identity card means a card issued under section 67. inspection area means an area the Minister declares to be an inspection area under section 11. land includes waters and submerged land. national inspector means the Director or a person appointed as a national inspector under section 66. observer means a person the Minister declares to be an observer under section 15. occupier of premises includes a person on the premises who apparently represents the occupier of the premises. Office means the Australian Comprehensive Test Ban Office. on‑site inspection means an inspection the Minister declares to be an on‑site inspection under section 11. on‑site inspection power has the meaning given by section 12. on‑site inspection purpose has the meaning given by section 13. on‑site inspection warrant means a warrant issued under section 21. Organization means the Comprehensive Nuclear Test‑Ban Treaty Organization established by the Treaty. Organization inspector means a person the Minister declares to be an Organization inspector under section 14. premises includes a place and a conveyance. State Party means a State that is a signatory to the Treaty and that has ratified it. Treaty means the Comprehensive Nuclear Test‑Ban Treaty (including the Annexes to the Treaty, the Protocol to the Treaty and the Annexes to the Protocol) a copy of the English text of which is set out in Schedule 1, as amended by any amendment of the Treaty that Australia accepts, a copy of the English text of which is set out in the regulations. vessel means a thing capable of carrying persons or goods through water. warrant premises means premises in relation to which a warrant is in force. warrant team, in relation to a warrant issued under Part 3, means: (a) the national inspector responsible for executing the warrant; and (b) if the warrant is issued under section 21—the Organization inspector who, in accordance with the Treaty, is to exercise on‑site inspection powers under the warrant; and (c) if the warrant is issued under section 22—any foreign country inspector accompanying the national inspector mentioned in paragraph (a); and (d) in any case—any person whose assistance the national inspector obtains under section 42 in relation to executing the warrant. Part 2—Ban on nuclear explosions 8 Offence of causing a nuclear explosion A person who causes a nuclear weapon test explosion or any other nuclear explosion commits an offence. Penalty: Imprisonment for life. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. 9 Extraterritorial operation of offence Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against section 8. Part 3—Inspections Division 1—Outline of Part 10 Outline of Part The following is a basic outline of this Part: (a) Division 2 provides for Organization inspectors to inspect sites in Australia; (b) Division 3 provides for Australia to respond (including by inspecting sites in Australia) to another State Party's request for clarification about compliance with the Treaty; (c) Division 4 deals with inspection warrants, and the conduct of inspections, for the purposes of Divisions 2 and 3; (d) Division 5 provides for searches for and seizures of evidence relating to offences; (e) Division 6 has some general rules about warrants. Division 2—On‑site inspections etc. 11 Requests for on‑site inspections (1) If a request for an on‑site inspection (within the meaning of the Treaty) in Australia is made under Article IV of the Treaty: (a) the Director may give the Organization any information or documents about occurrences that will help to clarify and resolve the concern raised in the request; and (b) the Minister may make a written declaration: (i) that the inspection is an on‑site inspection for the purposes of this Act; and (ii) that the area specified in the declaration is an inspection area for the purposes of this Act. (2) An Organization inspector may, anywhere in an inspection area, enter premises and exercise on the premises any on‑site inspection powers for an on‑site inspection purpose, either: (a) with the consent of the occupier of the premises; or (b) under a warrant issued to a national inspector under section 21 in relation to the premises; subject to sections 27 and 28. (3) A national inspector: (a) may accompany an Organization inspector while the Organization inspector exercises powers in the circumstances mentioned in paragraph (2)(a); and (b) must accompany an Organization inspector while the Organization inspector exercises powers in the circumstances mentioned in paragraph (2)(b). (4) An Organization inspector must not exercise any powers in the circumstances mentioned in paragraph (2)(a) in relation to premises in an inspection area if: (a) the occupier of the premises has required the Organization inspector to show written proof of his or her identity; and (b) the Organization inspector fails to comply with the requirement. (5) A national inspector must not accompany an Organization inspector in the circumstances mentioned in paragraph (2)(a) in relation to premises in an inspection area if: (a) the occupier of the premises has required the national inspector to show his or her identity card; and (b) the national inspector fails to comply with the requirement. 12 On‑site inspection powers (1) An on‑site inspection power is a power to: (a) search premises in an inspection area; or (b) take photographs (including video recordings), or make sketches, of the premises or of equipment or any other matter or thing on the premises; or (c) monitor the exit of all vessels, aircraft or vehicles (other than personnel or personal vehicles) leaving the premises; or (d) fly over the premises; or (e) inspect or examine a matter or thing; or (f) take samples of a matter or thing; or (g) measure a matter or thing; or (h) carry out drilling on the premises; or (i) examine a document; or (j) take extracts from, or make copies of, a document; or (k) verify the proper functioning or calibration of any equipment (including any thing, or part of a thing, that the Organization classifies as on‑site monitoring equipment); or (l) install and operate any thing, or part of a thing, that the Organization classifies as on‑site monitoring equipment; or (m) question personnel working on the premises; or (n) operate equipment, including electronic equipment, located on the premises, if the Organization inspector believes, on reasonable grounds, that the equipment can be operated without damaging it; or (o) take onto the premises any equipment or material that is approved by the Organization and that is reasonably required for the purpose of exercising a power under any of the above paragraphs; or (p) do any other act or thing necessary or convenient to be done in order to carry out an on‑site inspection in accordance with Article IV of the Treaty. (2) A power mentioned in subsection (1) may only be exercised in a way that reasonably appears to be in accordance with safety procedures applicable on the premises where the power is to be exercised. 13 On‑site inspection purposes An on‑site inspection purpose is a purpose of facilitating an on‑site inspection by an Organization inspector in accordance with Article IV of the Treaty. 14 Organization inspectors (1) If the Minister is satisfied that a person has, in accordance with the Treaty, been designated as an Organization inspector, the Minister must, in writing, declare the person to be an Organization inspector for the purposes of this Act. (2) If the Minister ceases to be so satisfied, the Minister must, in writing, revoke the declaration. (3) The Minister must give the person a copy of the declaration or revocation. 15 Observers (1) If: (a) the Minister is satisfied that a person has, in accordance with the Treaty, been proposed by a State Party as an observer in relation to an on‑site inspection; and (b) the Minister decides to accept the person as such an observer; the Minister must, in writing, declare the person to be an observer for the purposes of this Act. (2) The Minister must give the person a copy of the declaration. (3) An observer may accompany an Organization inspector while the Organization inspector is exercising any on‑site inspection powers in relation to premises in an inspection area. (4) However, an observer is not entitled to enter premises in an inspection area, or any particular part of the premises, if the occupier of the premises has informed the Director, in writing, that the observer is to be excluded from the premises or from that part of the premises. If the occupier so informs the Director, the Director must inform the observer to that effect in writing. (5) An observer is not entitled to enter premises in an inspection area or to observe an Organization inspector exercising on‑site inspection powers if: (a) the occupier of the premises has required the observer to show written proof of his or her identity; and (b) the observer fails to comply with the requirement. (6) If the conditions in subsection (1) cease to be satisfied, the Minister must, in writing, revoke the declaration. (7) The Minister must give the person a copy of the revocation. Division 3—Clarification procedures 16 Scope of Division This Division applies if another State Party, without having made a request for an on‑site inspection (within the meaning of the Treaty) in Australia under Article IV of the Treaty, seeks clarification from Australia, either directly or through the Organization, concerning the question of whether there has been a breach of the Treaty. 17 Director may give information or documents The Director may give: (a) the person holding an equivalent position to the Director in the State Party seeking clarification; or (b) the Organization; any information or documents about occurrences that will help to clarify the matter. 17A Declaration of clarification inspection area The Minister may make a written declaration specifying an area (the clarification inspection area) for the purposes of the clarification. 18 Inspections by national inspectors (1) A national inspector may: (a) with the consent of the occupier of premises in the clarification inspection area; or (b) under a warrant issued under section 22 in respect of premises in the clarification inspection area; enter the premises and conduct an inspection (called a clarification inspection) of the premises in the same way and exercising the same powers as if: (c) the clarification inspection had been declared to be an on‑site inspection; and (d) the clarification inspection area had been declared to be an inspection area; but with the national inspector, instead of an Organization inspector, exercising on‑site inspection powers. (2) For the purposes of a particular clarification inspection, the rules in this Part that apply to an inspection by consent apply subject to any modifications set out in the regulations that the Director determines in writing are to apply to the clarification inspection. (3) After conducting a clarification inspection, the national inspector may report the results of the inspection to the State Party seeking clarification, either directly or through the Organization. 19 Joint inspections (1) The Director may, on behalf of Australia, enter into an arrangement with the person holding an equivalent office in the State Party seeking clarification, if the occupier of premises in the clarification inspection area consents, for a national inspector to carry out a joint inspection of the premises, accompanied by any inspectors the other State Party nominates. (2) The Director may make such an arrangement: (a) whether or not information or documents have been sought to be given under section 17; and (b) whether or not an inspection has been carried out under section 18. (3) If the Minister is satisfied that a State Party has designated a person as a foreign country inspector to Australia, the Minister may, in writing, declare the person to be a foreign country inspector for the purposes of this section. (4) The Minister must give the person a copy of the declaration. (5) A national inspector and any foreign country inspectors may, in accordance with an arrangement under subsection (1), enter the premises and conduct a clarification inspection. (Section 18 has the rules about clarification inspections). 20 Limit on modifications Modifications under subsection 18(2) must not reduce the rights this Act gives the occupier of the premises concerned. Division 4—Inspection warrants and conduct of inspections 21 On‑site inspection warrants (1) If the occupier of premises in an inspection area does not consent to an Organization inspector entering the premises and exercising on‑site inspection powers as mentioned in subsection 11(2), a national inspector must, as soon as possible, apply to a magistrate for an on‑site inspection warrant in relation to the premises. (2) A magistrate may issue an on‑site inspection warrant in relation to the premises if the magistrate is satisfied, by information on oath or affirmation, that it is reasonably necessary to exercise on‑site inspection powers for an on‑site inspection purpose. (3) If the magistrate does so, the national inspector must execute the warrant in a way that accords with all lawful directions given by the Organization inspector. 22 Clarification inspection warrants (1) A national inspector may apply to a magistrate for a clarification inspection warrant in relation to premises in a clarification inspection area. (2) A magistrate may issue a clarification inspection warrant in relation to the premises if the magistrate is satisfied, by information on oath or affirmation, that it is reasonably necessary to carry out a clarification inspection on the premises for the purpose of helping to clarify the matter mentioned in section 16. 23 Content of warrants A warrant issued under this Division must: (a) describe the premises to which the warrant relates; and (b) state the name of the national inspector responsible for executing the warrant; and (c) state the period within which, in accordance with section 24, the warrant team is to complete the inspection; and (d) state the purpose for which the warrant is issued. 24 Duration of inspection (1) An on‑site inspection of premises in an inspection area must be completed before the end of 60 days after the request for the inspection was made in accordance with Article IV of the Treaty as mentioned in section 11. (2) A clarification inspection of premises in a clarification inspection area should, if practicable, be completed before the end of 48 hours after clarification was sought from Australia as mentioned in section 16. (3) On written application by the Director, the Minister may, in writing, extend the time limit in subsection (1) by a further period, or periods, of no more than 70 days in total. (4) If the Minister does so, the Minister must give the occupier of the premises concerned a copy of the document extending the period and, if the inspection is carried out in whole or in part under a warrant, must also give a copy to the magistrate who issued the warrant. 25 Inspections not to be intrusive An on‑site inspection or clarification inspection must be carried out in the way that is least intrusive consistent with achieving the purposes of the inspection. 26 On‑site inspection warrant may authorise presence of an observer An on‑site inspection warrant in relation to premises in an inspection area may, subject to any restrictions under section 15, authorise an observer to accompany an Organization inspector in his or her exercise of on‑site inspection powers for an on‑site inspection purpose. 27 Initial inspection plan After an initial briefing and to facilitate the more detailed inspection of premises under an on‑site inspection, the persons who are to do the inspection must prepare and give to the Director an initial inspection plan specifying the activities they propose to carry out and the places to which they want access. 28 Managed access The persons who are to do the inspection must, in consultation with the Director, modify their inspection plan to whatever extent is justified, in accordance with the provisions relating to managed access in Part II of the Protocol to the Treaty, so as to ensure the protection of sensitive equipment, information and places that are not relevant to verifying compliance with the Treaty. 29 Other modifications of inspection plan The persons who are to do the inspection may, at any time, otherwise modify the inspection plan to whatever extent is justified so as to ensure the effective execution of the inspection. Division 5—Offence‑related searches and seizures 30 Offence‑related searches and seizures (1) If a national inspector has reasonable grounds for suspecting that there may be on any premises particular evidential material, the inspector may: (a) with the consent of the occupier of the premises; or (b) under a warrant issued under section 31 or 37; enter the premises and: (c) search the premises for the evidential material; and (d) if the inspector finds any evidential material on the premises—seize the evidential material found on the premises. (2) A national inspector is not entitled to exercise any powers in the circumstances mentioned in paragraph (1)(a) in relation to premises if: (a) the occupier of the premises has required the inspector to show his or her identity card; and (b) the inspector fails to comply with the requirement. 31 Offence‑related warrants (1) A national inspector may apply to a magistrate for a warrant under this section in relation to particular premises. (2) A magistrate may issue a warrant to search premises if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, any evidential material at the premises. (3) However, a magistrate must not issue the warrant unless a national inspector has given the magistrate, either orally (on oath or affirmation) or by affidavit, any further information the magistrate requires about the grounds on which the warrant is being sought. (4) A warrant issued under this Division must: (a) state the offence to which the warrant relates; and (b) describe the premises to which the warrant relates; and (c) describe the kinds of evidential material that are to be searched for under the warrant; and (d) state the name of the national inspector responsible for executing the warrant; and (e) state when the period for which the warrant is in force is to begin and how long it is to last (which must not be for more than 7 days); and (f) state whether the warrant may be executed at any time or only during particular hours. (5) The warrant should also state that it authorises the seizure of a thing (other than evidential material of the kind mentioned in paragraph (4)(c)) found at the premises that a member of the warrant team believes on reasonable grounds to be: (a) evidential material in relation to an offence to which the warrant relates; or (b) a thing relevant to another offence against this Act; if the member believes, on reasonable grounds, that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against this Act. (6) Paragraph (4)(e) does not prevent the issue of successive warrants in relation to the same premises. (7) If an application for the warrant is made under section 37, this section applies as if: (a) subsection (2) referred to 48 hours rather than 72 hours; and (b) paragraph (4)(e) referred to 48 hours rather than 7 days. 32 The things that are authorised by a search warrant (1) A warrant in force in relation to premises authorises the warrant team: (a) to enter the warrant premises and, if the premises are a conveyance, to enter the conveyance, whatever it is; and (b) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of those kinds found at the premises; and (c) to seize other things found at the premises in the course of the search that a member of the warrant team believes on reasonable grounds to be: (i) evidential material in relation to an offence to which the warrant relates; or (ii) evidential material in relation to another offence against this Act; if the member of the warrant team believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence. (2) If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours. (3) If things are seized under a warrant, the warrant authorises the national inspector executing the warrant to make the things available to officers of other agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence against this Act to which the things relate. (4) A power mentioned in this section or in section 30, 33, 34 or 35 may only be exercised in a way that the national inspector believes, on reasonable grounds, to be in accordance with safety procedures applicable at the premises. 33 Specific powers available to warrant teams executing search warrants (1) The warrant team may: (a) for a purpose incidental to the execution of the warrant; or (b) if the occupier of the premises consents in writing; take photographs (including video recordings) of the premises or of things at the premises. (2) The warrant team may, if the warrant is still in force, complete the execution of the warrant after all of the team temporarily stop its execution and leave the premises: (a) for not more than one hour; or (b) for a longer period if the occupier of the premises consents in writing. (3) If: (a) the execution of a warrant is stopped by an order of a court; and (b) the order is later revoked or reversed on appeal; and (c) the warrant is still in force; the execution of the warrant may be completed. 34 Use of equipment to examine or process things (1) The warrant team may bring to the warrant premises any equipment reasonably necessary for examining or processing things found at the premises to see whether they may be seized under the warrant. (2) If: (a) it is not practicable to examine or process the things at the warrant premises; or (b) the occupier of the premises consents in writing; the things may be moved to another place so that the examination or processing can be carried out. (3) If things containing electronically stored information are moved to another place under subsection (2), the national inspector executing the warrant must, if practicable: (a) tell the occupier the place and the time at which the examination or processing will be carried out; and (b) allow the occupier or his or her representative to be present during the examination or processing. (4) The warrant team may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises to see whether it may be seized under the warrant if a member of the warrant team believes, on reasonable grounds, that: (a) the equipment is suitable for the examination or processing; and (b) the examination or processing can be carried out without damage to the equipment or the thing. 35 Use of electronic equipment at premises (1) A member of the warrant team may operate electronic equipment located at the premises to see whether evidential material is accessible by doing so if he or she believes, on reasonable grounds, that the operation of the equipment can be carried out without damage to the equipment. (2) If a member of the warrant team finds, after operating the equipment, that evidential material is accessible by doing so, he or she may: (a) seize the equipment and any disk, tape or other associated device; or (b) if the material can, by using facilities at the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents so produced; or (c) if the material can be transferred to a disk, tape or other storage device that: (i) is brought to the premises; or (ii) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises; operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises. (3) A person may seize equipment under paragraph (2)(a) only if: (a) it is not practicable to put the material in documentary form as mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph (2)(c); or (b) possession of the equipment by the occupier could constitute an offence against this Act. (4) If a member of the warrant team believes, on reasonable grounds, that: (a) evidential material may be accessible by operating electronic equipment at the premises; and (b) expert assistance is required to operate the equipment; and (c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with; he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise. (5) The member of the warrant team must give notice to the occupier of the premises of his or her intention to secure the equipment and that the equipment may be secured for up to 24 hours. (6) The equipment may be secured: (a) for a period of no more than 24 hours; or (b) until the equipment has been operated by the expert; whichever happens first. (7) If a member of the warrant team believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to the magistrate who issued the warrant for an extension of that period. (8) The member must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier may be heard in relation to the application. (9) The provisions of this Division relating to the issue of warrants apply, with any necessary modifications, to the issuing of an extension. 36 Occupier may observe search (1) If a warrant in relation to premises is being executed and the occupier of the premises is present, the occupier may observe the search being conducted. (2) The right to observe ceases if the occupier impedes the search. (3) This section does not prevent 2 or more areas of the premises being searched at the same time. 37 Warrants by telephone or other electronic means (1) A national inspector may apply to a magistrate for a warrant by telephone, fax or other electronic means: (a) in an urgent case; or (b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant. (2) The magistrate may require voice communication to the extent that is practicable in the circumstances. (3) An application under this section must include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn or affirmed. (4) If an application is made to a magistrate under this section and the magistrate, after considering the information and having received and considered any further information that the magistrate requires, is satisfied that: (a) a warrant in the terms of the application should be issued urgently; or (b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant; the magistrate may complete and sign the same form of warrant that would be issued under section 31. (5) If the magistrate decides to issue the warrant, the magistrate must tell the applicant, by telephone, fax or other electronic means, of the terms of the warrant and the day and time when it was signed. (6) The national inspector must then complete a form of warrant in terms substantially the same as those given by the magistrate, stating on the form the name of the magistrate and the day and time when the warrant was signed. (7) The national inspector must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is earlier, give or transmit to the magistrate the form of warrant completed by the inspector and, if the information mentioned in subsection (3) was not sworn or affirmed, that information duly sworn or affirmed. (8) The magistrate must attach to the documents provided under subsection (7) the form of warrant completed by the magistrate. (9) If: (a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised; and (b) the form of warrant signed by the magistrate is not produced in evidence; the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised. 38 Receipts for things seized or moved (1) The warrant team must provide a receipt for any thing seized under a warrant or moved under subsection 34(2). (2) A single receipt may cover 2 or more things that are seized or moved. 39 Return of seized things (1) If: (a) a person seizes a thing under this Division (other than under a warrant issued under section 31 or 37); and (b) the reason for its seizure no longer exists or it is decided that it is not to be used in evidence; the person must return it, unless: (c) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership; or (d) a court orders that it need not be returned. (2) If a warrant team seizes a thing from a person under a warrant issued under section 31 or 37, 60 days after the seizure the warrant team must return the thing to the person (or to the owner, if the person is not entitled to possess it) unless: (a) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership; or (b) proceedings in respect of which the thing may afford evidence were begun before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or (c) the warrant team may retain the thing because of an order under section 40; or (d) a member of the warrant team or another person is authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy or dispose of the thing. 40 Court of summary jurisdiction may permit a thing to be retained (1) If a thing is seized under a warrant issued under section 31 or 37, and: (a) before the end of 60 days after the seizure; or (b) before the end of a period previously specified in an order of a court under this section; proceedings in respect of which the thing may afford evidence have not begun, a member of the warrant team may apply to a court of summary jurisdiction for an order that he or she may retain the thing for a further period. (2) If the court is satisfied that it is necessary for the team to continue to retain the thing: (a) for the purposes of an investigation as to whether an offence against this Act has been committed; or (b) to enable evidence of such an offence to be secured for the purposes of a prosecution; the court may order that the team may retain the thing for the period specified in the order. (3) Before the court hears the application, it may require notice of the application to be given to such persons as the court thinks fit. Division 6—General rules about warrants 41 Announcement before entry (1) Before a warrant team enters premises in an inspection area or clarification inspection area, the national inspector executing the warrant must: (a) announce that the warrant team is authorised by the warrant to enter the premises; and (b) give any person at the premises an opportunity to allow entry into or onto the premises. (2) The national inspector need not comply with subsection (1) if the national inspector believes, on reasonable grounds, that immediate entry to the premises is required to ensure that the effective execution of the warrant is not frustrated. 42 Availability of assistance and use of force in executing warrant In the execution of a warrant: (a) the national inspector executing the warrant may obtain such assistance; and (b) the warrant team may use such force against persons and things; as is necessary and reasonable in the circumstances. 43 Details of warrant to be given to occupier etc. If a warrant in relation to particular premises is being executed and the occupier of the premises is present at the premises, the national inspector executing the warrant must make a copy of the warrant available to the occupier. 44 Copies of seized things to be provided (1) Subject to subsection (2), if a warrant team seizes under a warrant: (a) a document, film, computer file or other thing that can be readily copied; or (b) a storage device, the information in which can be readily copied; the warrant team must, if the occupier of the premises requests, give a copy of the thing or the information to the occupier as soon as practicable after the seizure. (2) Subsection (1) does not apply if the thing was seized under paragraph 35(2)(a) or (b). 45 Compensation for damage to equipment (1) If: (a) damage is caused to an instrument or other equipment as a result of being operated as mentioned in paragraph 12(1)(n) or subsection 34(4) or 35(1); and (b) the damage was caused as a result of: (i) insufficient care being exercised in selecting the person who was to operate the equipment; or (ii) insufficient care being exercised by the person operating the equipment; the Commonwealth must pay the person such reasonable amount of compensation: (c) as they agree on; or (d) failing agreement—as the Federal Court of Australia determines. (2) In determining the amount of compensation payable under paragraph (1)(d), regard is to be had to whether the occupier of the premises, if he or she were available at the time, had given any warning or guidance as to the operation of the instrument or other equipment that was appropriate in the circumstances. 46 Making false statements in applications for warrant A national inspector commits an offence if the inspector makes, in an application for a warrant, a statement that the inspector knows to be false or misleading in a material particular. Penalty: Imprisonment for 2 years. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. 47 Offences relating to telephone warrants A national inspector commits an offence if the inspector: (a) states in a document that purports to be a form of warrant issued under section 37 the name of a person as the magistrate issuing the warrant who is not the magistrate who issued the warrant; or (b) states in a form of warrant under that section a matter that, to the inspector's knowledge, departs in a material particular from the form authorised by the magistrate issuing the warrant; or (c) purports to execute, or present to a person, a document that purports to be a form of warrant under section 37 that the inspector knows: (i) has not been approved by the magistrate issuing the warrant; or (ii) to depart in a material particular from the terms authorised by the magistrate issuing the warrant; or (d) gives the magistrate a form of warrant under section 37 that is not the form of warrant that the inspector purported to execute. Penalty: Imprisonment for 2 years. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Part 4—Monitoring facilities Division 1—Establishing and operating monitoring facilities 48 Declaration of Treaty monitoring facilities (1) The Minister may declare in writing that a specified facility is a Treaty monitoring facility for the purposes of this Act. (2) Before making the declaration, the Minister must be satisfied that it is necessary or desirable for the facility to be established or operated in order to give effect to Australia's obligations under the Treaty. (3) A copy of the declaration must be published in the Gazette. 49 Minister may establish and operate monitoring facilities The Minister may, on behalf of the Commonwealth: (a) establish a monitoring facility with a view to declaring it to be a Treaty monitoring facility; or (b) operate a Treaty monitoring facility; if the Minister considers it necessary or desirable in order to give effect to Australia's obligations under the Treaty. 50 Minister may enter into arrangements The Minister may, on behalf of the Commonwealth, enter into an arrangement with any person relating to the establishment or operation of monitoring facilities, if the Minister considers it necessary or desirable in order to give effect to Australia's obligations under the Treaty. Division 2—Powers to do certain activities 51 Authorisation to gain access to facilities The Minister may, in writing, authorise any person: (a) to gain access to a Treaty monitoring facility; or (b) to do any thing on, in or in relation to a Treaty monitoring facility; on such conditions as the Minister determines, if the Minister considers the authorisation necessary or desirable in order to give effect to Australia's obligations under the Treaty. 52 Inspecting land For the purpose of determining: (a) whether any facility should be declared to be a Treaty monitoring facility; or (b) whether any premises would be a suitable site for a Treaty monitoring facility; the Minister may: (c) enter on, and inspect, any land; and (d) inspect any facility on the land; and (e) do anything on the land, or to the facility, that is necessary or desirable for that purpose. 53 Establishing facilities The Minister may, for purposes to do with establishing a monitoring facility under section 49: (a) enter on, and occupy, any land; and (b) do anything necessary or desirable for those purposes on, over or under the land. 54 Maintaining facilities (1) The Minister may, at any time, carry out maintenance of a Treaty monitoring facility. (2) The Minister may do anything necessary or desirable for the purpose of doing so, including entering on, and occupying, land. (3) This section does not, by implication, limit section 51. Division 3—Rules about exercising Division 2 powers 55 Damage etc. to be minimised In doing an activity under Division 2, a person must take all reasonable steps to ensure that the person causes as little detriment and inconvenience, and does as little damage, as practicable. 56 Person must restore land If a person does an activity under Division 2, the person must take all reasonable steps to ensure that the land concerned is restored to a condition similar to its condition before the activity began. 57 Management of activities A person must, in connection with doing an activity under Division 2, take all reasonable steps: (a) to act in accordance with good engineering practice; and (b) to protect the safety of persons and property; and (c) to ensure that the activity interferes as little as practicable with: (i) the operations of a public utility or other person or body responsible for infrastructure or for providing similar products or services; and (ii) public roads and paths; and (iii) the movement of traffic; and (iv) the use of land; and (d) to protect the environment. 58 Roads etc. to remain open for passage If the Minister does an activity covered by section 53 (which deals with establishing facilities), the Minister must ensure that a facility established over a road, bridge, path or navigable water is established in a way that will allow reasonable passage by persons, vehicles and vessels. 59 Notice to owner of land (1) Before doing an activity under section 52, 53 or 54 in relation to any land, the Minister must give written notice of his or her intention to do so to: (a) the owner of the land; and (b) if the land is occupied by a person other than the owner—the occupier. (2) The notice must specify the purpose for which the Minister intends to do the activity. (3) The notice must contain a statement to the effect that, if a person suffers financial loss or damage in relation to property because of anything the Minister does in doing the activity, compensation may be payable under section 61. (4) The notice must be given at least 10 days before the Minister begins to do the activity. (5) A person may waive the person's right to be given a notice. (6) Subsection (1) does not apply if: (a) the Minister intends to do activities under section 54 (which deals with maintenance); and (b) the Minister considers that those activities need to be done without delay in order: (i) to protect the health or safety of persons; or (ii) to protect property or the environment; or (iii) to ensure that Australia is not in breach of its obligations under the Treaty. (7) Subsection (1) does not apply if: (a) the Minister intends to do activities under section 52 (which deals with inspection); and (b) doing those activities does not involve any material disturbance to the land concerned; and (c) members of the public have ready access to the land; and (d) no part of the land is or is part of an area: (i) that, under a law of the Commonwealth, a State or a Territory, is protected from significant environmental disturbance; or (ii) that is of particular significance to Aboriginal persons, or Torres Strait Islanders, in accordance with their traditions. (8) In subsection (7): Aboriginal person means a person of the Aboriginal race of Australia. Torres Strait Islander means a descendant of an indigenous inhabitant of the Torres Strait Islands. 60 Giving notices (1) If: (a) the Minister is unable, after reasonable inquiry, to find out who owns particular land; or (b) the Minister is unable to give a notice under section 59 on the owner of land either personally or by post; the Minister may give a notice under that section to the owner of the land by publishing a copy of the notice in a newspaper circulating in a district in which the land is situated and: (c) if the land is occupied—giving a copy of the notice to the occupier; or (d) if the land is not occupied—attaching, if practicable, a copy of the notice to a conspicuous part of the land. (2) This section does not affect the operation of any other law of the Commonwealth, or of any law of a State or Territory, that authorises the service of a document otherwise than as provided in this section. 61 Compensation (1) If, because of anything done under Division 2 in relation to any property that a person owns or has an interest in: (a) the person suffers financial loss or damage; or (b) an acquisition of the property otherwise than on just terms occurs (within the meaning of paragraph 51(xxxi) of the Constitution); the Commonwealth must pay the person such reasonable amount of compensation: (c) as they agree on; or (d) failing agreement—as the Federal Court of Australia determines. (2) Compensation payable under subsection (1) includes compensation for: (a) temporary as well as permanent damage; and (b) taking sand, soil, stone, gravel, timber, water and other things. Part 5—Australian Comprehensive Test Ban Office Division 1—Establishment of the Office 62 Designation of the Office (1) The Minister may, in writing, designate: (a) a particular agency for which the Minister is responsible; or (b) a particular unit within such an agency or within the Department; as the Australian Comprehensive Test Ban Office. (2) A copy of the designation must be published in the Gazette. (3) The Office may be referred to by another name specified by the Minister by notice in the Gazette. The notice may be included in the copy of the designation published in the Gazette or published separately in the Gazette. 63 Director of Office (1) The designation must also designate the holder of a particular position within the agency or unit as the Director of the Office. (2) The Director may be referred to by another title specified by the Minister by notice in the Gazette. The notice may be included in the copy of the designation published in the Gazette or published separately in the Gazette. 64 Functions of the Office The functions of the Office are as follows: (a) to ensure the effective operation of this Act; (b) to carry out, on behalf of Australia, Australia's obligations under the Treaty; (c) in particular, to act, on behalf of Australia, as the main point of contact for liaison with the Organization and with other States Parties to the Treaty; (d) to facilitate inspections of places in Australia if Australia's compliance with the Treaty is challenged; (e) to carry out the duties and exercise the powers conferred on the Office under this Act or the regulations or under any other law of the Commonwealth; (f) to do anything incidental or conducive to performing any of the above functions. 65 Delegation by Director The Director may, by signed writing, delegate all or any of his or her powers under this Act. Division 2—National inspectors and consultants 66 National inspectors (1) The Director is a national inspector. (2) The Director may, from time to time, in writing appoint other persons to be national inspectors. (3) A national inspector may be, but does not have to be, an employee of the Office. 67 Identity cards (1) The Director must have, and must give every other national inspector, a card identifying the holder as a national inspector. (2) An identity card must: (a) be in a form approved by the Director; and (b) have on it a recent photograph of the person. (3) As soon as practicable after a person ceases to be a national inspector the person must return the card to the Director. Penalty for contravening this subsection: 1 penalty unit. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (4) An offence under subsection (3) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. 68 Engagement of consultants etc. (1) The Director may, on behalf of the Commonwealth and with the approval of the Minister, engage, under written agreements, persons having suitable qualifications and experience as consultants to the Office. (2) The terms and conditions of a person so engaged are those determined by the Director. Part 6—Miscellaneous 69 Delegation by Minister (1) The Minister may, by signed writing, delegate all or any of his or her powers under this Act to: (a) the Secretary of the Department; or (b) the Director; or (c) a person holding or performing the duties of a Senior Executive Service office in the Department. (2) After the commencement of the Public Service Act 1998, the reference in subsection (1) to a person holding or performing the duties of a Senior Executive Service office in the Department is to be treated as a reference to an SES employee or acting SES employee in the Department. 70 Powers to be exercised in accordance with Treaty (1) A person may exercise a power or perform a duty under this Act only to the extent that the exercise or performance is not inconsistent with Australia's obligations under the Treaty. (2) A person must, in exercising a power under this Act, have regard to Australia's obligations under the Treaty. 71 Annual report by Director (1) The Director must, as soon as practicable after 30 June in each year, prepare and give the Minister a report on the operation of this Act during that year. (2) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister is given the report. 72 Additional reports The Director: (a) must give the Minister any additional reports or information relating to the Office's operations under this Act that the Minister requires; and (b) may give the Minister any other reports or information relating to the Office's operations under this Act that the Director thinks appropriate. 73 Privileges and immunities (1) The regulations may confer privileges and immunities on any or all of the following: (a) the Organization; (b) officers of the Organization; (c) Organization inspectors or foreign country inspectors; (d) observers; (e) any other persons. (2) Before the Governor‑General makes such a regulation, the Minister must be satisfied that it is necessary or desirable that it be made in order to give effect to Australia's obligations under the Treaty. 74 Secrecy (1) This section applies to a person who is or has been: (a) the Secretary of, or an employee of, the Department; or (b) the Director or an employee of the Office; or (c) engaged as a consultant to the Office; or (d) a national inspector; or (e) any other Commonwealth officer (within the meaning of section 121.1 of the Criminal Code). (2) A person mentioned in subsection (1) must not, either directly or indirectly, record or communicate any confidential information about another person's affairs that the person got in performing duties under this Act, except for the purposes of: (a) this Act; or (b) a prosecution for an offence against this Act or any other law of the Commonwealth, a State or a Territory; or (c) complying with Australia's obligations under the Treaty. (3) The person must not be required to communicate to a court any such information unless it is necessary for the purposes of this Act or a prosecution for an offence against this Act. (4) If: (a) a person mentioned in subsection (1) (the communicator) communicates information to another person (the recipient) for the purposes of this Act or complying with Australia's obligations under the Treaty; and (b) at the time, the communicator stated that the information was confidential information covered by this subsection; the recipient must not, either directly or indirectly: (c) record the information; or (d) communicate the information to another person; except for the purposes of this Act or complying with Australia's obligations under the Treaty. (5) The recipient must not be required to communicate the information to a court unless it is necessary for the purposes of this Act or a prosecution for an offence against this Act. (6) A person who contravenes subsection (2) or (4) commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years. 75 Expressions in section 74 (1) Information about another person's affairs that a person gets in the course of an inspection under Part 3 is confidential information for the purposes of section 74. (2) Subsection (1) does not apply if, at the time: (a) the information was already publicly available; or (b) the other person stated that he or she would not object to it becoming publicly available. (3) If the person objects, but later withdraws the objection, the information is not confidential information after the withdrawal. (4) This section does not, by implication, limit the meaning of confidential information. (5) In section 74: court includes any tribunal, authority or person that may require documents to be produced or questions answered. 76 Australia not liable for acts or omissions of Organization Nothing in this Act makes Australia or the Director liable for any act or omission of the Organization, or of an Organization inspector, in implementing the Treaty in Australia. 77 Organization has legal personality and capacity (1) The Organization is a body corporate with perpetual succession. (2) The Organization is capable, in its corporate name of: (a) entering into contracts; and (b) acquiring, holding and disposing of property; and (c) suing. 78 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. Schedule 1—Comprehensive Nuclear‑Test‑Ban Treaty Note: This is the copy of the Treaty referred to in the definition of Treaty in section 7 of this Act. PREAMBLE The States Parties to this Treaty (hereinafter referred to as "the States Parties"), Welcoming the international agreements and other positive measures of recent years in the field of nuclear disarmament, including reductions in arsenals of nuclear weapons, as well as in the field of the prevention of nuclear proliferation in all its aspects, Underlining the importance of the full and prompt implementation of such agreements