Clarify permit arrangements for Schedule 1 consumption facilities, formalise notification arrangements for Schedule 2 facilities that do not qualify for permits and other minor amendments

Description of the issues

Under the Chemical Weapons (Prohibition) Act 1994 (the Act), the operator of a facility requires a permit if during a particular year, Schedule 1 chemicals are likely to be produced, acquired, retained or used at, or transferred from, the facility during the year. Permits are required for all production of Schedule 1 chemicals with no exemptions. However, the permit thresholds for a consumption facility which acquires, retains, uses or transfers Schedule 1 chemicals differs according to the purpose of the activities with the Schedule 1 chemical. For example, a permit exemption threshold quantity of up to 100 grams applies to consumption permits if the activities are for research, medical or pharmaceutical purposes. The 100 gram threshold has been reviewed and is considered too high given the potential threat of diversion for prohibited purposes by non-State actors. The proposed amendments will allow this threshold quantity to be lowered by regulations under the Act.

If the consumption facility is applying its Schedule 1 chemical activities for protective purposes (eg counter-terrorism purposes is included in this broad definition) then no threshold quantity exists for permits. The Act was drafted and finalised in 1994 prior to the change in Australia's security environment following the events of September 11, 2001 in the USA and the Bali Bombings in 2002. Since 1994, potentially a large number of emergency responders exist, as well as Commonwealth, State and Territory Laboratories, with the capability to analyse samples in the event of a chemical or biological incidents by non-State actors. However these facilities do not know in advance if they will be analysing samples containing Schedule 1 chemicals for the purposes of identifying any potential threat and they use only very small quantities of chemicals which are destroyed through destructive analysis. The proposed amendment will introduce a permit threshold quantity to allow such low-risk facilities to be exempt from requiring a permit which relaxes the permit requirements and reduces the regulatory burden on both ASNO and the facility operators.

Under the Act, producers, processors or consumers of Schedule 2 chemicals above 1 tonne per annum require a permit from ASNO. When activities fall below 1 tonne per annum there is no formal requirement to report to ASNO on these quantities. However, for the purposes of submitting declarations of aggregate national data under the Chemical Weapons Convention, ASNO is required to report the aggregate quantities produced, processed or consuming in Australia when they exceed a total quantity of 1 tonne per annum per chemical. Currently this reporting is made possible by special request from the Director General, ASNO, in accordance with Section 31 of the Act. The proposed amendments to the Act will formalise the notification requirement for facilities whose activities with Schedule 2 chemicals occur in quantities below 1 tonne per annum.

Consultation opportunities

The proposed changes are unlikely to have any general impact on businesses or Government agencies in Australia. In addition, the Office of Regulation Review, in examining the proposed amendments to the Act, considered that a Regulation Impact Statement (RIS) was not required because of the limited impact of these amendments.

The changes to Schedule 1 permit requirements will have a de-regulatory effect by removing the need for certain facilities to require a permit when they need to analyse chemical samples from the field following a terrorist incident or other chemical release. Currently if the samples happen to contain a Schedule 1 chemical, a permit is required to conduct destructive analysis, regardless of the quantities involved.

Furthermore, the current 100gram Schedule 1 permit exemption threshold that applies to users of Schedule 1 chemicals for research, medical or pharmaceutical purposes is considered two high, given that only gram quantities are required for such purposes. Therefore, the proposed amendments also seek to ensure that lower permit threshold quantities may be set by the Minister for Foreign Affairs under the regulations. The permit threshold may vary depending on the purpose, and to ensure regulation of Schedule 1 chemicals is effective at levels which do not pose any risk of diversion for non-peaceful purposes.

The changes to the Schedule 2 notification requirements should have a negligible impact on producers, processors or consumers of Schedule 2 chemicals below the 1 tonne permit threshold given that information for aggregate national data is already been collected from them under Section 31 of the Act. The amendments formalise and clarify this reporting requirement for those impacted by it. Furthermore, Schedule 1 permit holders and users of Schedule 2 chemicals below 1 tonne per annum have been consulted, and no concerns were raised by the stakeholders about the proposed amendments.

Expected timetable

Amendments to the Act are expected in 2011-12.

Date last modified

4 August 2010.

Contact details

Dr Josy Meyer

Australian Safeguards and Non-Proliferation Office

Department of Foreign Affairs and Trade

Phone: (02) 6261 1920 | Fax: (02) 6261 1908

Email: asno@dfat.gov.au