FIJI ISLANDS

CHEMICAL WEAPONS CONVENTION ACT 2005

ARRANGEMENT OF SECTIONS

1. Short title and commencement
2. Interpretation
3. Application
4. Designation of National Authority
5. Functions of the Authority
6. Supply of information
7. Power to require information
8. Confidential information
9. Offences and penalties
10. Verification of toxic chemicals, their precursors and related facilities
11. Power to give directions
12. Evidence of analyst
13. Warrant
14. Application of Customs Act
15. Consent of the Director of Public Prosecutions
16. Regulations
Schedule

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ACT NO. 19 OF 2005

I assent.
[L. S.]

J.I. ULUIVUDA
President

[9 November 2005]

AN ACT

TO GIVE EFFECT TO THE CONVENTION ON THE PROHIBITION OF THE DEVELOPMENT, PRODUCTION, STOCKPILING AND USE OF CHEMICAL WEAPONS AND ON THEIR DESTRUCTION AND FOR RELATED MATTERS

ENACTED by the Parliament of the Fiji Islands-

Short title and commencement

1. - (1) This Act may be cited as the Chemical Weapons Convention Act 2005.

(2) This Act commences on a date appointed by the Minister by notice in the Gazette.

Interpretation

2. - (1) In this Act, unless the context otherwise requires-

"Annex" means the Annex on Chemicals, the Annex on Implementation and Verification ("Verification Annex") or the Annex on the Protection of Confidential Information, to the Convention;

"Authority" means the National Authority for the Prohibition of Chemical Weapons designated by section 5;

"chemical weapons" means any of the following whether combined or separately-

(a) toxic chemicals and their precursors, except where intended for purposes not prohibited under the Convention, as long as the types and quantities are consistent with such purposes;

(b) munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in paragraph (a), which would be released as a result of the employment of such munitions and devices;

(c) any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in paragraph (b);

"Convention" means the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 13th January 1993 and its Annexes and set out in the Schedule;

"facility" includes any unit, plant or plant site;

"facility agreement" means an agreement between the Government and the OPCW;

"international inspector" means an individual designated by the OPCW according to the procedures as set out in Part II of the Verification Annex, to carry out an inspection in accordance with the Convention, and includes any inspection assistant as defined by the Convention;

"Ministry" means the Ministry administered by the Minister who is responsible for the administration of this Act;

"OPCW" means the Organisation for the Prohibition of Chemical Weapons established by Article VIII of the Convention;

"precursor" means any chemical reactant which takes part at any stage in the production by whatever method of a toxic chemical including any key component of a binary or multi-component chemical system;

"purposes not prohibited under the Convention" means-

(a) industrial, agricultural, research, medical, pharmaceutical, or other peaceful purposes;

(b) protective purposes directly related to protection against toxic chemicals and to protection against chemical weapons;

(c) military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic, properties of chemicals as a method of warfare;

(d) law enforcement purposes (including domestic riot control purposes);

"riot control agent" means any chemical not listed in Schedule 1, 2 or 3 in the Annex on Chemicals, which can produce rapidly in humans, sensory irritations or disabling physical effects which disappear within a short time following termination of exposure;

"State Party" means a country, which is a party to the Convention;

"toxic chemical" means any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals, including any toxic chemical, regardless of its origin or of the method of production, and regardless of whether the chemical is produced in facilities, munitions or elsewhere.

(2) For the purposes of this Act, any term defined in the Convention but used and not defined in this Act has the same meaning given to it in the Convention.

Application

3. - (1) This Act binds the Government.

(2) This Act also applies to any act committed outside the Fiji islands by -

(a) a Fiji citizen;

(b) a person domiciled in the Fiji islands; or

(c) a vessel or aircraft registered in the Fiji islands.

(3) Notwithstanding section 5 of the Penal Code, this Act extends to acts committed in the exclusive economic zone as defined under the Marine Spaces Act (Cap. 158A).

Designation of National Authority

4. (1) The Ministry is designated the National Authority for the Prohibition of Chemical Weapons for the purposes of the Convention.

(2) The functions and powers of the Authority under this Act are to be exercised by the Chief Executive Officer of the Ministry.

(3) Any act required to be done by the Authority for the purposes of complying with Fiji's obligations under the Convention is to be done by the Chief Executive Officer of the Ministry.

(4) The Chief Executive Officer of the Ministry may delegate in writing to any person all or any of his powers, functions and duties under this Act other than this power of delegation.

Functions of the Authority

5. The functions of the Authority are -

(a) to act as the national focal point for the effective liaison with the OPCW and with other States Parties;

(b) to co-ordinate activities of Departments, agencies and industrial facilities for the purpose of implementing the Convention;

(c) to gather and compile the data that is needed for Fiji's notifications and declarations to the OPCW under the Convention;

(d) to submit notifications and declarations to the OPCW as required by the Convention, within the time frames specified by it;

(e) to carry out national inspections to obtain information or data needed by the Authority in order to meet Fiji's obligations under the Convention;

(f) to approve production or use of Schedule 1 toxic chemicals or precursors and approve import or export of toxic chemicals or their precursors listed in Schedules 1, 2, and 3 of the Annex on Chemicals to the Convention;

(g) to develop the procedures for the handling of confidential information received from the OPCW, other States Parties, or any other person in the implementation of the Convention or this Act;

(h) to perform any other functions necessary to fulfil or implement the Convention.

Supply of information

6. - (1) Any person who develops, produces, acquires, retains, transfers or uses toxic chemicals or their precursors to which any provision of Parts VI to IX of the Verification Annex of the Convention applies must -

(a) notify prescribed particulars of the toxic chemicals and precursors and the facility to the Authority in a form approved by the Authority;

(b) keep records in relation to the toxic chemicals and precursors and the facility, and the purpose to which the chemicals are put;

(c) prepare from the records, prescribed periodic reports relating to the toxic chemicals and precursors and the facility and demonstrating compliance with the Convention, the Act and any regulations made under the Act; and

(d) forward the periodic reports to the Authority.

(2) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding $100,000 or to a term of imprisonment not exceeding 10 years or both.

Power to require information

7. - (1) Notwithstanding the provisions of any other written law, the Authority may for the purposes of implementing the Convention require any person to submit any document or any other information regarding chemicals, industrial activities or the importation or exportation of chemicals.

(2) A person who -

(a) fails to comply with subsection (1); or

(b) submits any document or information knowing that the document or information is false or misleading in a material particular,

commits an offence and is liable on conviction to a fine not exceeding $100,000 or to a term of imprisonment not exceeding l0 years or both.

Confidential information

8. - (1) Any information obtained by virtue of this Act, regulations made under this Act or the Convention is privileged and must not be disclosed except with the written approval of the Minister after consultation with the Authority.

(2) A person who is in possession or control of privileged information must not disclose such information or allow such information to be disclosed or allow another person to have access to such information, except-

(a) with the consent of the person from whom it was obtained, if authorised if authorised to do so; or

(b) in accordance with the obligation of the Fiji Islands under the Convention;

(c) for the enforcement of this Act;

(d) in an emergency involving public safety.

(3) A person who contravenes subsection (2) commits an offence and is liable on conviction to a fine not exceeding $100,000 or to a term of imprisonment not exceeding 10 years or both.

Offences and penalties

9. - (1) A person who intentionally or recklessly -

(a) develops, produces, acquires, stockpiles, owns, possesses, or retains chemical weapons or transfers, directly or indirectly, chemical weapons to any other person;

(b) uses chemical weapons;

(c) engages in any military preparations to use chemical weapons;

(d) aids, assists, counsels or procures, in any way, any other person to engage in any activity prohibited too State Party under the Convention;

(e) transfers to or receives from any other person in a State which is not a party to the Convention, any of the toxic chemicals or precursors listed in Schedule 1 or Schedule 2 to the Annex on Chemicals;

(f) transfers any toxic chemical or precursor listed in Schedule 3 to the Annex on Chemicals to a person in a State which is not party to the Convention except any transfer by virtue, of section C of Part VIII of the Verification Annex and with the approval of the Authority;

(g) uses riot control agents as a method of warfare;

(h) without the approval of the Authority, produces, uses or transfers any toxic chemical or precursor listed n Schedule 1 to the Annex on Chemicals;

(i) without the approval of the Authority, exports or imports any toxic chemical or precursor listed in Schedules 1, 2, and 3 to the Annex on Chemicals;

(j) engages in any other activity prohibited to a State Party under the Convention,

commits an offence and is liable on conviction to a fine not exceeding $1,000,000 or to a maximum term of imprisonment for life or both.

(2) When considering approval under paragraph (f), (h) or (i) of subsection (1), the Authority must be guided -

(a) for paragraph (f), by Part VIII(C) of the Verification Annex to the Convention;

(b) for paragraph (h), by Part VI of the Verification Annex to the Convention; and

(c) for paragraph (i), by Parts VI to VIII of the Verification Annex to the Convention.

Verification of toxic chemicals, their precursors and related facilities

10. - (1) Any toxic chemical and its precursor listed in Schedule 1, 2, or 3 to the Annex on Chemicals, any facility related to the toxic chemical or precursor or any other facility and place specified in the Verification Annex, is subject to verification measures under the Convention.

(2) Subject to section 13, an international inspector has the right-

(a) to enter any place or facility in respect of which any provision of Parts VI to IX of the Verification Annex to the Convention applies;

(b) to enter any place or facility subject to an on-site challenge inspection referred to in paragraph 8 of Article IX of the Convention;

(c) to enter any place or facility for the purpose of an investigation referred to in paragraph 9 of Article X of the Convention which has been initiated;

(d) to inspect any place or facility pursuant to the Convention or applicable facility agreement;

(e) to exercise, for the purpose of inspection, any function or power provided for in the Convention or applicable facility agreement.

(3) For the purposes of any inspection under this section, an international inspector must be accompanied by-

(a) an observer for the purpose of paragraph 12 of the Article IX of the Convention;

(b) a person authorised in writing by the Authority; and

(c) a police officer.

(4) A person who wilfully obstructs or fails to assist a person authorised to carry out functions, exercise powers or do any act required under the Act, commits an offence and is liable on conviction to a fine not exceeding $100,000 or to a term of imprisonment not exceeding 10 years or both.

Power to give directions

11. - (1) The Chief Executive Officer of the Ministry may direct in writing any person for the purposes of facilitating any inspection under the Convention.

(2) A person who fails to comply with any directions given under this section commits an offence and is liable on conviction to a fine not exceeding $50,000 or to a term of imprisonment not exceeding 5 years or both.

Evidence of analyst

12. - (1) The Authority may appoint a suitably qualified person as an analyst for the purposes of the Act.

(2) A certificate of an analyst appointed under subsection (1) stating that he has analysed or examined a substance and stating the result of his analysis or examination is admissible in a proceeding for an offence under the Act and is prima facie evidence of the facts stated in the certificate and of the correctness of the results of the analysis or examination.

Warrant

13. - (1) If the consent of the owner of the place or facility cannot be obtained, a police officer or other person empowered under this Act to enter and inspect a place or facility or to accompany an international inspector for the purposes of an inspection may apply to a magistrate for a search warrant.

(2) Where an application is made under subsection (1), the magistrate may, subject to conditions, issue a search warrant under Part IV of the Criminal Procedure Code and the warrant may be executed in the same manner as if it had been issued under Part IV of the Criminal Procedure Code.

Application of Customs Act

14. The provisions of the Customs Act (including its regulations) relating to prohibited imports and prohibited exports, except the penalties for offences under that Act and its regulations, apply to chemicals and precursor for which importation and exportation is prohibited under this Act or the Convention as if the importation and exportation were prohibited under the Customs Act (including its regulations).

Consent of the Director of Public Prosecutions

15. No proceedings in the Fiji Islands for an offence under this Act for an act committed outside the Fiji Islands may be instituted without the consent of the Director of Public Prosecutions.

Regulations

16. The Minister may make regulations to give effect to the provisions of this Act, and in particular to implement or to give effect to the provisions of the Convention.

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SCHEDULE

[PacLII note: To view The Chemical Weapons Convention 1993, download the PDF file.]

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