George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The opposition is occasionally and foolishly accused of being too negative. Many of the legislative proposals of the Gillard government are catastrophic and against the national interest. An opposition should always oppose legislation which is against the national interest, and we always will. But an urban myth has developed, fostered and propagated by the Labor Party spin machine, that we oppose everything. As a matter of fact, the opposition has supported the vast majority of the bills brought before the parliament by this government. You do not hear about that in the public debate because ex hypothesi such bills, being uncontroversial, do not generate news. The Nuclear Terrorism Legislation Amendment Bill 2011 is such a bill. It is uncontroversial, like the vast majority of the legislation which the government brings before the chamber, and the opposition, agreeing with its effect, supports it.

The purpose of the bill is to add a new offence to the Nuclear Non-Proliferation (Safeguards) Act 1987 by implementing provisions of the International Convention for the Suppression of Acts of Nuclear Terrorism—known as the 'nuclear terrorism convention'. The nuclear terrorism convention arose from a global initiative established by the United States and the Russian Federation in 2006. One of the fruits of the West's victory in the Cold War is that the United States and the Russian Federation are able to agree and jointly sponsor such beneficial measures. Commonwealth legislation already implements most of the convention obligations. This legislation seeks to ensure that all criminal offences provided for in article 2 of the convention are covered by Commonwealth law.

The amendments in this bill would create new criminal offences for possessing radioactive material or a 'convention device'—a term defined by the convention as including a nuclear explosive device or a device to emit material with radiological properties which may cause death, serious bodily injury or substantial damage to property or the environment; making a convention device; using or damaging a convention device or nuclear facility, or threatening to do so; threatening to use radioactive material; demanding that another person create radioactive material, a convention device or a nuclear facility; and demanding that a third person access or control radioactive material, a convention device or a nuclear facility.

Members of the Australian Defence Force will not be liable to prosecution in respect of acts done in connection with the defence or security of Australia. The convention does not govern the actions of armed forces during an armed conflict. That exemption does not apply to serving personnel whose actions are not connected with the defence or security of Australia or who are otherwise acting unlawfully. The bill does not criminalise the lawful possession and use of radioactive material—for example, material with a medical application. There must be an intention to use or make available the material for a prohibited purpose, such as death or property damage. Whether or not the intended outcomes occurs is not relevant to a prosecution. A maximum penalty of 20 years imprisonment applies to the offences created by the bill.

The bill is directed toward the conduct that all members of the Senate would devoutly hope will never come to pass. Should such threats ever be contemplated, we must ensure that we have the legislative armoury to enable our security and law reform agencies to nip them in the bud. Accordingly, the coalition support the bill—as we do all sensible bills brought to the chamber by this government.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I rise to add the comments of the Australian Greens to the debate on the Nuclear Terrorism Legislation Amendment Bill 2011 and to add my support to that of the coalition for this bill. This bill is Australia's instrument to ratify the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism. This is a threat that has been considered internationally for decades. Indeed, the fears of individuals or state networks illicitly acquiring nuclear materials and using them for deadly ends have been felt for as long as nuclear technology has existed. The very existence of nuclear materials invites these fears and makes them rational to have because this technology is truly terrifying in the scale of its consequences.

In 1979 the Convention on the Physical Protection of Nuclear Material was adopted in Vienna. This treaty aimed to avert the potential dangers posed by the unlawful taking and use of nuclear material and to protect nuclear material in use, storage and transfer. The events in New York on 11 September 2001, Bali in October 2002, Madrid in 2004 and London in July 2005 prompted that negotiation of the treaty we are discussing today. The International Convention for the Suppression of Acts of Nuclear Terrorism is the 13th antiterrorism convention of the United Nations and the first international accord aimed at fighting against acts of nuclear terrorism. The document, for the first time, defines nuclear terrorist crimes. It fills the gaps in the existing antiterrorism treaty system, it helps improve the international legal framework on antiterrorism and it provides the legal guarantee to prevent and punish acts of nuclear terrorism.

The sentiments that led to the negotiations are summed up very well in a 2005 speech given by the former United Nations Secretary-General Kofi Annan. He said:

I firmly believe that our generation can build a world of ever-expanding development, security and human rights—a world "in larger freedom". But I am equally aware that such a world could be put irrevocably beyond our reach by a nuclear catastrophe in one of our great cities.

In the chaos and confusion of the immediate aftermath, there might be many questions. Was this an act of terrorism? Was it an act of aggression by a state? Was it an accident? These may not be equally probable, but all are possible. Imagine, just for a minute, what the consequences would be. Tens, if not hundreds, of thousands of people would perish in an instant, and many more would die from exposure to radiation.

The global impact would also be grave. The attention of world leaders would be riveted on this existential threat. Carefully nurtured collective security mechanisms could be discredited. Hard-won freedoms and human rights could be compromised. The sharing of nuclear technology for peaceful uses could halt. Resources for development would likely dwindle. And world financial markets, trade and transportation could be hard hit, with major economic consequences. This could drive millions of people in poor countries into deeper deprivation and suffering. As shock gave way to anger and despair, the leaders of every nation represented here at this conference—as well as those who are not here—we would have to ask: How did it come to this? Is my conscience clear? Could I have done more to reduce the risk by strengthening the regime designed to do so?

The Greens support the intention of this legislation and treaty, but we remind the Senate this is really only a bandaid measure—it is a valuable one, but that is all it is when it comes to identifying the root cause of nuclear terrorism, which is of course the existence of nuclear materials, fissile materials and nuclear weapons.

As senators would know, the four forms of nuclear terrorism canvassed by this bill include theft or purchase by terrorists of a nuclear weapon from the arsenals of the states that possess nuclear weapons and those states include the United States, Russia, France, the UK, China, India, Israel, Pakistan and the DPRK. The second category is acquisition by terrorists of highly enriched uranium, HEU, or plutonium for use in an improvised nuclear device. The third category is terrorist attacks on or sabotage of vehicles transporting nuclear materials or weapons or on nuclear reactors themselves, which you often hear described as pre-deployed radiological weapons waiting to be detonated by an enemy. Around the world there are also numerous research reactors at universities which have virtually no security at all. Finally, the building and use of radiological dispersal devices, or 'dirty bombs'. This does not involve fissile material but simply dispersing material, whether it be from radioactive sources or material from uranium mines or indeed the dispersal of depleted uranium emissions.

The Weapons of Mass Destruction Commission rightly called their report Weapons of terror because the weapons they had spent some years analysing were designed to terrify as well as destroy. The title was somewhat controversial at the time. They used this terminology because these weapons are in the stockpiles and hands of states. Critics of the treaty in the bill that we are discussing today have noted that it excludes activities of armed forces during an armed conflict and that it does not address the issue of the legality of the use or threat of use of nuclear weapons by states. So, of course, what it effectively does is entrenches the legitimisation of nuclear weapons and fissile materials in the hands of a very small number of states while further criminalising—as is entirely appropriate—the possession or theft of these weapons or materials by nonstate actors or terrorist networks.

The WMD Commission dealt with the threat of nuclear terrorism in lengthy detail in their report but they were also unequivocal on a crucial point. The commission:

… rejects the suggestion that nuclear weapons in the hands of some pose no threat, while in the hands of others they place the world in mortal jeopardy. Governments possessing nuclear weapons can act responsibly or recklessly. Governments may also change over time. Twenty-seven—

or now 22—

thousand nuclear weapons are not an abstract theory. They exist in today's world.

Explanations by the nuclear haves that the weapons are indispensable to defend their sovereignty are not the best way to convince other sovereign states to renounce the option. This is a debate that is occurring in the Australian defence community at the moment with the reconsideration of the defence white paper. Where do US nuclear weapons fit within Australia's security doctrine? We exist, as we did right through the years of the Cold War until now, under what is called the United States nuclear weapons umbrella—that is, we are not pursuing actively the development of Australian nuclear weapons because we understand that the United States government would use them on our behalf if they had to. Let us think about that for a moment. That entirely legitimises the use of these weapons of genocide in the cause of the defence of Australia. That is completely unnecessary. We need to get out from under the US nuclear umbrella as a way of encouraging our nuclear ally to disarm. Although it is often forgotten and not much remarked upon these days, President Obama came to office with such an extraordinary promise in his speech in Prague shortly after his election about renunciation of these weapons—that is, not simply a non-proliferation agenda: a disarmament agenda. In this respect, the commission was echoing the Canberra commission final document, which says:

… immediate and determined efforts need to be made to rid the world of nuclear weapons and the threat they pose to it. The destructiveness of nuclear weapons is immense. Any use would be catastrophic.

The proposition that nuclear weapons can be retained in perpetuity—

lacks credibility. It continues:

The only complete defence is the elimination of nuclear weapons and assurance that they will never be produced again.

That was an extraordinarily valuable effort on behalf of the Australian government and, I think, quite a creative example of middle power diplomacy in order to get our allies to shift their thinking and to shift doctrine.

Nuclear weapons and nuclear reactors are themselves the root cause of the problem of nuclear terrorism that is being addressed by this bill and by this treaty that it enshrines. The fact today that the theft of fissile material somewhere can jeopardise security everywhere is not controversial, as Dr Mohamed ElBaradei, the former head of the IAEA, explained when discussing the AQ Khan network, which illicitly sold weapons technology to Libya, North Korea and Iran. He said:

The relative ease with which a multinational illicit network could be set up and operated demonstrates the inadequacy of the present export control system. The fact that so many companies and individuals could be involved (more than two dozen, by last count)—and that, in most cases, this could occur apparently without the knowledge of their own governments—points to the shortcomings of national systems for oversight of sensitive equipment and technology. It also points to the limitations of existing international cooperation on export controls, which relies on informal arrangements, does not include many countries with growing industrial capacity, and does not include sufficient sharing of export information with the IAEA.

… In a modern society characterized by electronic information exchange, interlinked financial systems, and global trade, the control of access to nuclear weapons technology has grown increasingly difficult. The technical barriers to mastering the essential steps of uranium enrichment—and to designing weapons—have eroded over time. Much of the hardware in question is "dual use", and the sheer diversity of technology has made it much more difficult to control or even track procurement and sales.

This reflects some of the comments that I made subsequent to question time here in the Senate this afternoon in the instance of Iran. The technology that you use to enrich nuclear materials for fuel is the same plant, the same factory and the same technologists and engineers that you employ to enrich that same uranium all the way up to weapons grade.

Dr ElBaradei's words are those of a man who deeply believes in nuclear energy, unlike myself, and who headed up an agency with a mandate of promoting nuclear energy. Nonetheless, we are still making a long-term radioactive mess that will be dangerous and usable by terrorists—however you define that term; the international community has still not arrived at a mutually shared definition—for centuries. Solutions to the threat posed by nuclear terrorism obviously involve international cooperation such as the means advanced through the treaty that we ratify through this bill. Obviously eliminating nuclear materials would seriously impede terrorist networks' ability to acquire such materials. Immediately securing all nuclear weapons and weapons-usable material is also obvious. Locking down and eliminating existing fissile material and nuclear weapons and facilities is really the only way to address the danger of nuclear terrorism.

Of course, terrorist networks are very unlikely to blow up a wind farm or make a dirty bomb from a solar panel, but these weapons will continue to exist as long as we give our collective consent to that existence. So, inasmuch as we support the aims of this bill and the work that has gone into it—the international collaboration and the international work that has gone into bringing this bill into this parliament and other parliaments and assemblies around the world—we know that it is only part of the question. This does not deal with the source of the materials. It does not deal with the source of the expertise or any of the rationales why various networks or other states around the world might seek to acquire these weapons. This debate must go further. We pass this bill today but we must proceed further to the debate about how to eliminate these weapons from the arsenals of all nations, including our ally the United States.

Lisa Singh (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I also rise to speak to the Nuclear Terrorism Legislation Amendment Bill 2011, and I acknowledge the contribution by Senator Ludlam. This bill implements the International Convention for the Suppression of Acts of Nuclear Terrorism, a treaty that was signed by Australia in September 2005 and which entered into force generally in 2007. Certainly the passage of this bill is well overdue. Despite many of its provisions already being covered under Australian law, it is important to strengthen our existing legislation and to better complement international regimes to prevent terrorism wherever possible.

Consideration of this bill by the Senate today is in fact timely, as Australia's ratification of the convention will be an important contribution to the second nuclear security summit, to be held in the Republic of Korea next month. The international convention was conceived and created as part of the redoubling of global efforts against terrorism and the changes in the way in which terrorism is and potentially could manifest. Taken together with the International Convention for the Suppression of Terrorist Bombings, the International Convention for the Suppression of Financing Terrorism and the Convention on the Physical Protection of Nuclear Material, this treaty and the legislative change introduced by this bill contribute to a framework for international cooperation on terrorist offences, including investigation and extradition.

It goes without saying that over the last decade, especially since the tragic events of September 11, 2001 and the attacks on Kuta, Bali, in October 2002, the nature and challenges of asymmetric warfare have become clear. Global terrorist cells have become more widespread, just as they have become more sophisticated. Changes in warfare have necessitated a new legislative response. While the conduct of state actors in conflict has long been dealt with through international humanitarian law—that is, of course, the laws of war—the way in which non-state actors wield the same instruments of destruction requires a specific criminal response. In an age in which nuclear proliferation has been far too widespread and where too often the security around state-held nuclear devices has been vulnerable to degradation and exploitation by organised crime, there exists this terrible prospect that radical organisations willing to resort to political violence rather than peaceful expression may be able to acquire nuclear material.

This legislation, of course, responds to that awful possibility, reinforces Australia's criminal law against political violence in these especially extreme circumstances and sends a message to the international community that Australia stands committed to addressing the threats of global and domestic terrorism. The bill creates new criminal offences of making or possessing radioactive material or a convention device, damaging a nuclear device or a nuclear facility, threatening to use or damage radioactive material, and demanding that another person create radioactive material, a nuclear device or a nuclear facility. Whilst these offences are new under this bill, some other crimes captured under the international convention already exist under Australian law. Each of these offences carries a maximum penalty of 20 years imprisonment, reflecting the gravity of the offence conduct.

The bill inserts a number of new definitions for expressions relevant to the new offences. To ensure consistency with the convention which the bill will implement and in accordance with current drafting practices, the bill adopts the definitions set out in the convention. In recognition of the need to work in concert with our allies and partners overseas, these offences are not limited to conduct by Australians and in Australia but will apply in a broad range of situations where the convention requires state parties to assert jurisdiction.

Importantly, the bill makes a consequential amendment to the Extradition Act 1988 to prevent a person avoiding extradition from Australia for a convention offence by arguing that they had committed a political offence. Understanding the time, I will make the rest of my contribution short, but I would like to add that I strongly believe that the types of offences considered under this legislation are far, far from being considered statements of political expression. We must emphasise, however and wherever we are able, that recourse to violence, especially the types with devastating, enduring effects covered by this bill, can never be excused by any legitimate cause.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I would like to thank senators for their contribution to the debate on the bill. Australia takes the proliferation and use of nuclear weapons and related materials seriously and actively participates in a range of international activities and forums designed to reduce proliferation and improve nuclear safety arrangements. Australia is a longtime supporter of the international legal framework for the nonproliferation of nuclear weapons, including as a state party to the Treaty on the Non-Proliferation of Nuclear Weapons and the South Pacific Nuclear-Free Zone Treaty. Australia also participates in the Proliferation Security Initiative. The purpose of the initiative is to prevent illicit trafficking in weapons of mass destruction, their delivery systems and related materials.

The Nuclear Terrorism Legislation Amendment Bill 2011 will make a contribution to Australia's fight against terrorism and misuse of weapons of mass destruction. Importantly, it will also demonstrate to the international community that Australia is serious about cooperating with other nations to defeat threats to international peace and security. Nuclear terrorism is a horrifying thought. A nuclear terrorist attack could kill millions, lay waste to cities and the environment for decades, and cause grave social and economic dislocation. We hope that the world never sees this day. While our hope is that the probability of this happening is low, we should never discount that possibility. The bill will put in place offences that will allow Australia to more easily prosecute nuclear terrorists. It would also facilitate cooperation with other nations in the fight against nuclear terrorism. The bill forms part of a broad effort by the international community to fight nuclear terrorism. It will allow Australia to ratify the International Convention for the Suppression of Acts of Nuclear Terrorism. It is a significant piece of legislation which sends a strong message to the international community and would-be nuclear terrorists. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.