Chemical Weapons Act, 1997

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Number 28 of 1997

CHEMICAL WEAPONS ACT, 1997

ARRANGEMENT OF SECTIONS

PART I

Preliminary

PART II

Chemical Weapons and Chemicals for Permitted Purposes

PART III

Inspection and Enforcement

PART IV

Miscellaneous

FIRST SCHEDULE

Scheduled Toxic Chemicals and Precursors

SECOND SCHEDULE

THIRD SCHEDULE

Number 28 of 1997

CHEMICAL WEAPONS ACT, 1997

AN ACT TO IMPLEMENT THE CONVENTION ON THE PROHIBITION OF THE DEVELOPMENT, PRODUCTION, STOCKPILING AND USE OF CHEMICAL WEAPONS AND ON THEIR DESTRUCTION, AND TO PROVIDE FOR RELATED MATTERS. [19th May, 1997]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART I

Preliminary

Short title and commencement.

1.—(1) This Act may be cited as the Chemical Weapons Act, 1997.

(2) This Act shall come into operation on such day as the Minister shall by order appoint.

Interpretation.

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

“authorised officer” means—

(a) an officer of the National Authority appointed under section 6 (1) to be an authorised officer,

(b) an international inspector, or

(c) in circumstances referred to in section 8 , a member of the Garda Síochána;

“chemical weapons” means—

(a) toxic chemicals and their precursors, except where intended for—

(i) peaceful purposes,

(ii) purposes relating to protection against toxic chemicals, or

(iii) law enforcement purposes within the State,

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 defined in paragraph (a) of this definition which would be released as a result of the employment of such munitions and devices; or

(c) any equipment specifically designed for use directly in connection with the employment of those munitions or devices;

“the Convention” means the United Nations Convention on the Prohibition, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, signed by the State at Paris, France on the 13th day of January, 1993, as amended from time to time pursuant to Article XV of the Convention;

“international inspector” means a person who holds a certificate issued under section 5 by the National Authority;

“the Minister” means the Minister for Enterprise and Employment;

“the National Authority” means the National Authority for Occupational Safety and Health, or any other authority designated to be the National Authority in place of that authority in regulations made under this Act;

“the Organisation” means the Organisation for the Prohibition of Chemical Weapons established pursuant to Article VIII of the Convention;

“place” includes any means of transport and any building or structure on land;

“precursor” means a 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 multicomponent chemical system;

“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 all such chemicals regardless of their origin or of their method of production, and regardless of whether they were produced in facilities, in munitions or elsewhere.

(2) Unless the context otherwise requires, all words and expressions used in this Act have the same meaning as in the Convention.

(3) In this Act—

(a) a reference to a section is a reference to a section of this Act, unless it is indicated that reference to some other enactment is intended,

(b) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended, and

(c) a reference to a Schedule by number is a reference to the Schedule so numbered in the Schedules of Chemicals set out in the Annex on Chemicals in the Convention (a copy of which Schedules are set out in the Schedules to this Act).

PART II

Chemical Weapons and Chemicals for Permitted Purposes

Chemical weapons.

3.—(1) No person shall—

(a) produce, develop, retain, use or transfer, directly or indirectly to anyone, a chemical weapon or assist another person to produce, develop, retain, use or transfer a chemical weapon,

(b) construct, convert, maintain or use any premises or equipment for a purpose referred to in paragraph (a) or assist another person to do any of those things for such a purpose, or

(c) engage in preparations of a military nature to use a chemical weapon.

(2) In determining whether a toxic chemical or precursor is a chemical weapon, the type and quantities of chemicals or precursors shall be taken into account.

(3) Any action referred to in subsection (1) undertaken outside the State by a citizen of the State shall be deemed to have been undertaken at any place within the State.

(4) A person who contravenes subsection (1) shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding £1,500, or to imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment, to imprisonment for life or for a lesser term.

First Schedule toxic chemicals and precursors.

4.—Except as authorised by or pursuant to any regulations made under section 12 , no person shall produce, use, acquire or possess a toxic chemical or precursor listed in the First Schedule .

PART III

Inspection and Enforcement

International inspectors.

5.—(1) The National Authority may issue to any person who is a member of an inspection team of the Organisation that has been authorised under the Convention to conduct on behalf of the Organisation inspections in the State, a certificate—

(a) identifying the person by name and indicating the person's status and authority to conduct inspections in the State,

(b) specifying any privileges and immunities applicable to the person, and

(c) setting out such other information and any conditions (including restrictions) applicable to the person's inspection activities in the State as the National Authority considers appropriate.

(2) Subject to such conditions, if any, as are applicable to the person's inspection activities in the State set out in the certificate, an international inspector has all the powers of an authorised officer.

(3) An international inspector shall, on the request of a person in charge of a place to be inspected by the international inspector, show the certificate to that person.

Authorised officers.

6.—(1) The National Authority may appoint such and so many officers of the Authority as it thinks fit to be authorised officers for the purposes of this Act.

(2) Subject to subsection (3), the National Authority shall issue to every such authorised officer a warrant of the officer's appointment and, when exercising a power conferred on an authorised officer under this Act the authorised officer shall, on being so requested by a person affected, show the warrant to that person.

(3) A certificate of authority furnished to a person authorised to be an inspector for any purpose under section 33 of the Safety, Health and Welfare at Work Act, 1989 , and who is also appointed to be an authorised officer under subsection (1) of this section, shall be deemed to be a warrant of his or her appointment issued under subsection (2) of this section.

Inspections.

7.—(1) An authorised officer may, for the purposes of ensuring that this Act is being complied with—

(a) at any reasonable time and consistent with the provisions of the Convention, enter any place (with reasonable force if necessary, provided it is authorised by a warrant under subsection (7))—

(i) in respect of which under section 9 information has been or is required to be provided,

(ii) that is subject to an on-site challenge inspection referred to in paragraph 8 of Article IX of the Convention,

(iii) in respect of which an investigation under paragraph 9 of Article X of the Convention has been initiated, or

(iv) in, at or on which there are reasonable grounds to believe an offence against this Act has been or is being committed,

(b) inspect the place,

(c) request any person in, at or on the place to give to the authorised officer access to any area, container or thing in, at or on the place,

(d) secure under a warrant under subsection (7), for later inspection, any such place or area, or any container or thing in, at or on the place,

(e) examine any container or thing in, at or on the place,

(f) request any person in charge or employed in, at or on the place to produce to the authorised officer such information contained in the records, files, papers or electronic information systems kept in, at or on, or used in relation to, the place and, in the case of such information in a non-legible form, to reproduce it in a legible form,

(g) inspect and take copies of or extracts from any such records, files, papers or electronic information system in, at or on the place, including in the case of information in a non-legible form, copies of or extracts from such information in a permanent legible form,

(h) remove and retain, under a warrant under subsection (7), those records, files or papers, or equipment used in such information systems, for such period as may be reasonable for further examination or until the conclusion of any legal proceedings,

(i) have photographs taken of any thing in, at or on the place and remove the photographs from the place,

(j) where appropriate, install, use and maintain in, at or on the place monitoring instruments, systems and seals in a manner consistent with the Convention,

(k) require any person in, at or on the place to give to the authorised officer any information that the officer may reasonably require in the inspection or investigation,

(l) take samples for analysis of any thing in, at or on the place, without payment, and analyse those samples or remove them from the place for analysis outside the place,

(m) as regards any product or any article or substance used in the manufacture of a product the authorised officer finds in, at or on the place, require any person in, at or on the place, or who appears to the officer to be in possession of the product or the article or substance, to supply without payment for test, examination or analysis, sufficient samples thereof,

(n) cause any product or any substance or thing used in the manufacture of a product found in, at or on the place the possession or use of which appears to the authorised officer to constitute an offence under this Act, to be dismantled or subjected to any process or test (but not so as to damage or destroy it unless it is in the circumstances necessary for the purposes of this Act, and where an authorised officer proposes to exercise this power in the case of a product, substance or thing used in the manufacture of a product found in, at or on the place, the officer shall, if required by a person who at the time is present in, at or on and has responsibility in relation to the place, cause anything which is to be done by virtue of that power to be done in the presence of that person),

(o) take possession of any such product, substance or thing in, at or on the place and retain it for so long as is necessary for all or any of the following purposes:

(i) to examine or arrange for its examination and do to it anything that he or she has power to do under paragraph (h),

(ii) to ensure that it is not tampered with before the examination is completed, and

(iii) to ensure that it is available for use as evidence in any proceedings,

(p) require any person in, at or on the place to afford the authorised officer such facilities and assistance within the person's control or responsibilities as are reasonably necessary to enable the officer to exercise any of the powers conferred on an authorised officer by or under this Act, and

(q) exercise such other powers as may be necessary to ensure that this Act is complied with.

(2) Before exercising the power conferred by subsection (1)(h) in the case of any substance or thing, an authorised officer shall, so far as it is reasonably practicable to do, consult such persons as appear to him or her to be appropriate for the purposes of ascertaining what danger, if any, there may be in doing anything that he or she proposes to do under that power.

(3) Where under the power conferred by subsection (1)(o) an authorised officer takes possession of any substance or thing found in, at or on a place, the officer shall, if it is practicable for him or her to do so, take samples of the substance or thing and give to the person apparently in charge of the place a portion of the sample marked in a manner sufficient to identify it.

(4) An authorised officer shall not, except with the consent of the occupier, enter a private dwelling unless he or she has obtained a warrant from a District Court under subsection (7) authorising such entry.

(5) Where an authorised officer in the exercise of his or her powers under this section is prevented from entering any place, an application may be made to the District Court for a warrant under subsection (7) authorising such entry.

(6) An authorised officer, where he or she considers it necessary, may be accompanied by a member of the Garda Síochána when exercising any powers conferred on an authorised officer by or under this Act.

(7) Without prejudice to the powers conferred on an authorised officer by or under any other provision of this section, if a judge of the District Court is satisfied on the sworn information of an authorised officer that there are reasonable grounds for suspecting that there is information required by an authorised officer under this section held in, at or on any place, or there is a product, substance or thing that an authorised officer requires to inspect for the purposes of this Act, or that such an inspection is likely to disclose evidence of a contravention of this Act, the judge may issue a warrant authorising an authorised officer, accompanied by other authorised officers or members of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, to enter the place, if need be by reasonable force, and exercise all or any of the powers conferred on an authorised officer by or under this Act.

(8) An application for a warrant under subsection (7) shall be made to the judge of the District Court in the district court district in which the place is situated.

(9) Where by or under this section a warrant under subsection (7) would otherwise be required to exercise a power, it shall not be so required if the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain the warrant.

(10) A person who—

(a) obstructs or interferes with an authorised officer in the exercise of the officer's powers under this Act,

(b) refuses or fails to comply with a request by an authorised officer under this Act, or

(c) makes a statement to an authorised officer which the person knows to be false or misleading or which he or she does not believe to be true,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months, or both.

Members of Garda Síochána to have powers of authorised officers in certain circumstances.

8.—Where a member of the Garda Síochána suspects, on reasonable grounds, that an offence under section 4 has been or is being committed in, at or on any place or by any person, the member has and may exercise in relation to that place or person, in addition to any powers that he or she may have by virtue of being a member of the Garda Síochána, any of the powers of an authorised officer under this Act.

PART IV

Miscellaneous

Information and documents.

9.—Any person who—

(a) does anything under an authorisation under regulations made under this Act,

(b) produces, possesses, consumes or transfers a toxic chemical or precursor listed in the Second Schedule ,

(c) produces, possesses, consumes or transfers a toxic chemical or precursor listed in the Third Schedule , or

(d) produces a discrete organic chemical or holds a riot control agent for riot control purposes,

shall—

(i) provide the prescribed information, at the prescribed time and in the prescribed form, to the National Authority, and

(ii) keep and maintain the prescribed documents in the State, at the person's place of business or at such other place as may be designated by the National Authority, in the prescribed manner and for the prescribed period and, on request by the National Authority, provide the documents to the National Authority.

Disclosure of information.

10.—(1) The National Authority may send a notice to any person who it believes on reasonable grounds has information or documents relevant to the enforcement of this Act, requesting the person to provide the information or document to it.

(2) A person who receives a notice referred to in subsection (1) shall provide the requested information and documents to the National Authority in the form and within the time specified in the notice.

Privileged information and evidence.

11.—(1) Subject to this section, information and documents obtained pursuant to this Act or the Convention are privileged.

(2) Information and documents are not privileged to the extent that they are required to be disclosed or communicated for the purposes of an emergency involving public safety.

(3) No person in possession of privileged information or documents shall knowingly, without the written consent of the person from whom they were obtained, communicate them or allow them to be communicated to any person, or allow any person to have access to them, except—

(a) for the purposes of the enforcement of this Act or of giving effect to the Convention, or

(b) pursuant to an obligation of the State under the Convention.

(4) Notwithstanding any other Act or law, no person shall be required, in connection with any legal proceedings, to produce any statement or other record containing privileged information or documents, or to give evidence relating to them, unless the proceedings relate to the enforcement of this Act.

Regulations.

12.—(1) The Minister may make such regulations as he or she considers necessary or expedient for carrying out and giving effect to the provisions of this Act or the Convention and, without limiting the generality of the foregoing, may make regulations—

(a) designating an authority to be the National Authority for the purposes of this Act in place of the National Authority for Occupational Safety and Health,

(b) prescribing conditions under which activities referred to in section 4 may be carried on, providing for the issue, suspension and cancellation of licences governing the carrying on of any such activity, and prescribing the fees or the manner of calculating the fees to be paid in respect of any such licences,

(c) prescribing the procedures to be followed by authorised officers performing their functions or exercising their powers under this Act, and

(d) prescribing anything that by this Act is required or permitted to be prescribed.

(2) Regulations made under this section shall be laid before each House of the Oireachtas as soon as practicable after they are made and, if a resolution annulling a regulation is passed by either House within the next 21 days on which that House has sat after the regulations are laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done under the regulation.

Offences and penalties.

13.—(1) A person who contravenes or fails to comply with a provision of this Act shall be guilty of an offence and, where no other penalty is provided by this Act for the offence, shall be liable—

(a) on summary conviction, to a fine not exceeding £1,500, or to imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment, to a fine not exceeding £100,000, or to imprisonment for a term not exceeding two years, or both.

(2) If an offence referred to in subsection (1) of which a person was convicted is continued after the conviction, the person shall be guilty of a further offence on every day on which the act or omission constituting the offence continues, and for each such further offence the person shall be liable on summary conviction to a fine not exceeding £200 or, on conviction on indictment, to a fine not exceeding £1,000.

(3) Where an offence under this Act is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been attributable to any neglect on the part of, any person who, when the offence was committed, was a director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, that person (as well as the body corporate) shall be guilty of an offence and be liable to be proceeded against and punished as if guilty of the offence committed by the body corporate.

Forfeiture.

14.—(1) Where a person has been convicted of an offence under this Act, any chemical weapon or other thing seized by means of or in respect of which the offence was committed is forfeited to the State and shall be disposed of as the Minister may direct.

(2) Where any chemical weapon or other thing has been seized under this Act and the owner of the chemical weapon or other thing, or the person in whose possession it was at the time of seizure, consents in writing to its forfeiture, it is forfeited to the State and shall be disposed of as the Minister may direct.

(3) An authorised officer may apply for an order (“forfeiture order”) for the forfeiture of any chemical weapon or other thing to the State, whether or not a person has been convicted of or charged with an offence under this Act in relation to it and whether or not the owner or person who has the right to its possession is within the jurisdiction of the State or, after reasonable inquiry, can be found, on the grounds that the possession of the chemical weapon or other thing in the circumstances in which it was found is prohibited under this Act or the Convention.

(4) An application under subsection (3) shall be made to a judge of the District Court in whose district court district the chemical weapon or other thing is located.

(5) Any person aggrieved by a forfeiture order or by a decision of the District Court not to make such an order, may appeal to the Circuit Court in whose circuit district a forfeiture order has been made or refused, against that order or decision by the District Court.

(6) Where the District Court makes a forfeiture order, the order so made may contain such provisions as appear to the court to be appropriate for delaying the coming into force of the order (including provisions relating to the custody and safe storage of the chemical weapon or other thing) pending the making and determination of any appeal.

(7) Where a chemical weapon or other thing is forfeited under a forfeiture order under subsection (3), it shall be destroyed, denatured, adapted for lawful use or otherwise dealt with in accordance with such directions, not in conflict with the Convention, as the Minister may give.

(8) A thing may be seized and forfeited under this section notwithstanding that it may be affixed to land, and an authorised officer may, with such reasonable force and assistance as is necessary to achieve that purpose, sever the thing from the land.

Prosecution of summary offences.

15.—Proceedings in relation to a summary offence under this Act may be brought and prosecuted by the National Authority.

Expenses of Minister.

16.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

FIRST SCHEDULE

Scheduled Toxic Chemicals and Precursors

Sections 2 (3)(c) and 4 .

SECOND SCHEDULE

Sections 2 (3)(c) and 9(b).

THIRD SCHEDULE

Sections 2 (3)(c) and 9(c).

B. PRECURSORS:

Notes

1. These Schedules set out the Schedules of Chemicals in the annex on chemicals to the Convention as corrected.

2. In these Schedules the reference to the CAS is to the chemical abstract service registry.

3. These Schedules must be read subject to the following proposition, which is based on a note in the Convention: where reference is made to groups of dial-kylated chemicals, followed by a list of alkyl groups in parentheses, all chemicals possible by all possible combinations of alkyl groups listed in the parentheses must be taken to be listed in the Schedules.