This Bills Digest replaces an interim Bills Digest published on 24 November 2023 to assist in early consideration of the Bills.

Glossary

Terms defined in the Bills or other legislation are italicised in this Digest.

Purpose of the Bills

The purpose of the Australian Naval Nuclear Power Safety Bill 2023 (ANNPS Bill) is to establish a new regulatory framework to promote and regulate the nuclear safety of activities relating to AUKUS submarines. This framework includes the establishment of a new independent regulator, the Australian Naval Nuclear Power Safety Regulator (Regulator). The Regulator will be responsible for:

• granting Australian naval nuclear power safety licences to authorise Commonwealth-related persons to undertake regulated activities related to facility activities, submarine activities and material activities
• monitoring and enforcing compliance with nuclear safety duties and other conditions of licences
• promoting nuclear safety of AUKUS submarine-related activities, including through consultation and cooperation with others including Commonwealth, state and territory work, health and safety (WHS) regulators, the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) and the Department of Defence Office of the Defence Seaworthiness Regulator.

The purpose of the related Australian Naval Nuclear Power Safety (Transitional Provisions) Bill 2023 (Transitional Provisions Bill) is to transition existing licences (or relevant parts thereof) granted under the Australian Radiation Protection and Nuclear Safety Act 1998 (ARPANS Act) to Australian naval nuclear power safety licences for activities that are now regulated activities under the Australian Naval Nuclear Power Safety Act 2023.

This Bills Digest focuses on the ANNPS Bill and does not discuss the Transitional Provisions Bill.

Structure of the Bills

The ANNPS Bill has six parts:

• Part 1 sets out the preliminary matters, including commencement date, a dictionary of terms, objects of the Act, and key concepts (such as regulated activities).
• Part 2 establishes that there are nuclear safety duties that apply to people when conducting regulated activities, with specific duties applying to licence holders and people who are authorised by a licence to conduct a regulated activity. It establishes civil and criminal penalty provisions for breaches of nuclear safety.
• Part 3 provides for the grant of Australian naval nuclear power safety licences by the Regulator. It sets out who may apply for a licence, application requirements, matters that must or may be considered by the Regulator in granting, varying, suspending or cancelling a licence, and the types of conditions that may be attached to a licence.
• Part 4 deals with compliance and enforcement. It provides for the appointment of inspectors and sets out their monitoring and investigation powers, including the power to give directions, issue improvement notices and issue prohibition notices. It also establishes associated civil and criminal penalty provisions.
• Part 5 establishes the Australian Naval Nuclear Power Safety Regulator and administrative matters relating to the Regulator, including the appointment of a Director-General and Deputy Director-General to lead the Regulator. It also provides for the Minister to give the Regulator directions in certain circumstances.
• Part 6 sets out miscellaneous provisions, including extraterritorial application; the interaction between the proposed Act and the ARPANS Act, the Nuclear Non-Proliferation (Safeguards) Act 1987 (Safeguards Act), workplace health and safety laws, and some international agreements; liability of the Commonwealth, delegation and regulation making power.

The Transitional Provisions Bill contains one schedule which sets out provisions to transition certain licences under the ARPANS Act to become licences under the ANNPS Act.

Background[5]

AUKUS partnership and Pillar I

On 16 September 2021, the then Prime Minister of Australia, Scott Morrison, jointly announced with his counterparts, United Kingdom Prime Minister Boris Johnson and United States of America President Joe Biden, that the 3 nations had agreed to ‘a new enhanced trilateral security partnership’ (‘AUKUS partnership’).[6] The first major initiative of the AUKUS partnership (referred to as ‘Pillar I’) is Australia’s acquisition of conventionally-armed, nuclear-powered submarines.[7]

Exchange of Naval Nuclear Propulsion Information Agreement

On 22 November 2021, AUKUS nations signed the Exchange of Naval Nuclear Propulsion Information Agreement (ENNPIA).[8] The ENNPIA allows the UK and US to communicate and exchange naval nuclear propulsion information with the Australian Government. The type of information includes that which may ‘be necessary to research, develop, design, manufacture, operate, regulate, and dispose of military reactors’.[9] The ENNPIA came into force on 8 February 2022 following the exchange of diplomatic notes between AUKUS nations.[10] The ENNPIA will cease at the latest on 31 December 2025 ‘unless superseded by a subsequent agreement’.[11] Any Party to the ENNPIA may terminate the agreement with at least 6 months written notice.[12]

Australia’s nuclear-powered submarine pathway

On 14 March 2023, Prime Minister Anthony Albanese jointly announced with his counterparts, the UK Prime Minister Rishi Sunak and US President Joe Biden, the identified pathway for Australia to acquire the submarines at the ‘earliest possible date’.[13] The pathway is described in Table 1 below.

Table 1 Timeline for Australia’s nuclear-powered submarine pathway

Source: Department of Defence, The AUKUS nuclear-powered submarine pathway: a partnership for the future, (Canberra: Department of Defence, 2023).

Framework for management of nuclear safety and nuclear security

On 6 May 2023, the Defence Minister announced an intention to establish the Australian Submarine Agency (ASA) and the Australian Nuclear-Powered Submarine Safety Regulator (ANPSSR).[14] The ASA is to sit within the Department of Defence and be responsible for ‘cradle-to-grave management’ of the submarines. The ANPSSR would ‘have the functions and powers necessary to regulate the unique circumstances associated with nuclear safety and radiological protection across the lifecycle of Australia’s nuclear-powered submarine enterprise’, including associated infrastructure and facilities.[15]

The Minister described the regulator as being ‘independent of Defence and the Australian Defence Force’.[16] However, the media release states that both the ASA and ANPSSR will be non-corporate Commonwealth entities within the Defence portfolio and will report directly to the Minister for Defence.[17] This Bill renames the Regulator as the Australian Naval Nuclear Power Safety Regulator.

According to a document released under Freedom of Information by the ASA, the key elements underpinning Australia’s non-proliferation approach to the acquisition of conventionally-armed nuclear-powered submarines include that:

Australia will not enrich uranium or reprocess spent fuel as part of this program.

Australia will not produce nuclear fuel for its SSNs.

the United Kingdom and United States intend to provide Australia with nuclear material in complete, welded nuclear power units that will not require refuelling during their lifetime.

• removing nuclear material from these units is highly complex—requiring specialist equipment, facilities and workforce—and doing so would render the power unit, and the submarines, inoperable.

the nuclear fuel Australia receives cannot be used in nuclear weapons without further chemical processing, requiring facilities that Australia does not have and will not seek.[18]

Australia is required to enter into a new arrangement with the International Atomic Energy Agency (IAEA) under Article 14 of its Comprehensive Safeguards Agreement because the nuclear submarine enterprise will involve the use of nuclear material in an activity that does not require the application of safeguards under the Agreement.[19] The arrangement will establish how Australia will ensure the security of nuclear material contained within the naval nuclear reactors, as well as verification mechanisms, and relate to matters such as ‘temporal and procedural provisions and reporting arrangements’.[20] Work on negotiating that arrangement commenced in May 2023, with further negotiations held in August 2023 and set to continue in 2024.[21] The Director General of the IAEA last reported on the issue on 31 May 2023.[22]

Future disposal of nuclear waste and naval nuclear reactors

There are 3 types of radioactive waste generated during the operations, maintenance and decommissioning (including dismantling) of nuclear-powered submarines:

• low-level waste, including items such as protective clothing, generated during day-to-day operations and maintenance
• intermediate-level waste, comprising of nuclear reactor components obtained during decommissioning, following the removal of spent nuclear fuel
• high-level waste, including spent nuclear fuel, generated during decommissioning.[23]

All 3 types of waste need appropriate temporary storage prior to permanent disposal.

According to the ASA, once operational, Australia’s nuclear-powered submarines will generate around a ‘small skip bin’ of low-level radioactive waste per submarine each year.[24] This type of waste will also be generated by visiting UK/US submarines as part of Submarine Rotational Force-West. In addition, each decommissioned and defueled Australian submarine will produce intermediate-level radioactive waste in the form of ‘reactor compartment and components, roughly the size of a four-wheel drive’ and a ‘small hatchback’ sized amount of spent nuclear fuel (high-level radioactive waste).[25]

In March 2023, Defence Minister Richard Marles confirmed Australia had committed to full stewardship of the Australian submarine naval nuclear reactors, and that Australia would build a facility on Defence land to store and dispose of the dismantled reactors, high-level radioactive waste and spent nuclear fuel.[26] While disposal of the first naval nuclear reactors is not expected until the 2050s, the Minister said that ‘within the year, we will announce a process by which this facility will be identified’.[27]

The Australian Radioactive Waste Agency[28] (ARWA) was allocated funding to support the development of radioactive waste management, storage and disposal arrangements with the Department of Defence and ASA.[29] In 2023, a review to determine the process for site selection of an intermediate and high-level radioactive waste management facility was conducted. While the terms of reference for the review were not made public, it appears the focus of the review is on developing processes for safely storing and disposing of radioactive waste and spent nuclear fuel and not on identifying potential locations.[30] It was led by former Deputy Secretary of Defence’s Estate and Infrastructure Group Steven Grzeskowiak. This review will ‘need to be followed by a much more detailed site selection process, which includes engagement with affected communities and Indigenous Groups’.[31] The ASA has indicated future consultation will be required to identify an ‘appropriate disposal solution’ for low-level radioactive waste.[32] However, it has been announced that a low-level radioactive waste management storage facility is being planned for HMAS Stirling to support Submarine Rotational Force-West.[33]

While the Minister has repeatedly stated that Australia would not accept spent nuclear fuel from the US and UK, he has not commented publicly on whether low-level radioactive waste from US and UK submarines may be permanently disposed of in Australia, following temporary storage at Defence locations.[34]

As part of the AUKUS partnership, it was announced that the UK and US ‘will assist Australia in developing’ its capacity to manage all radioactive waste generated by the nuclear-powered submarine program.[35] However, dismantling, decommissioning and disposing of high-level waste is proving both technically challenging and costly. As of June 2023, the UK was yet to dispose of any of its 22 retired nuclear-powered submarines.[36] The out-of-service submarines are stored at designated dockyards, at a cost of at least £30 million per year.[37] Further, at the time of writing, there are no operational high-level radioactive waste facilities anywhere in the world. A high-level radioactive waste disposal facility nearing completion in Finland has cost €1 billion and the estimated cost of the UK Geological Facility (GDF) for intermediate and high-level waste disposal is over £20 billion.[38]

An overview of the radioactive waste management arrangements for nuclear-powered submarines in the UK and US is provided in Table 2 (Appendix).

Other milestones to date

• SSN workforce. RAN personnel began attending US and UK-based nuclear power training programs in 2022. By December 2023, 6 RAN personnel had graduated from the US Navy’s Nuclear Power School and another 3 RAN personnel are expected to graduate from the UK nuclear power training at HMS Sultan in January 2024.[39] Another 2 RAN officers are completing other nuclear operator courses at HMS Sultan.

In January 2024, 3 RAN officers graduated the US Nuclear Power Training Unit which provides the practical groundwork to operate SSNs. They will now attend Submarine Officer Basic Course (SOBC) in Groton, Connecticut where they will undergo the same training given to US Navy officers. After completing the SOBC, they will be assigned to a US Navy Virginia-class submarine to continue their training and qualifications.[40] 

In February 2024 a group of 37 RAN officers and sailors departed for Guam to embed on the US submarine tender USS Emory S. Land and learn to conduct maintenance on SSNs. USS Emory S. Land will conduct its first SSN maintenance work in Australia at HMAS Stirling in the second half of this year.[41]

• Contract for design. In October 2023 the UK Ministry of Defence awarded BAE Systems, Rolls-Royce and Babcock £4 billion worth of contracts for the Detailed Design and Long Leads phase of the SSN-AUKUS program.[42]
• Environmental Assessment. On 24 November 2023, the Australian Submarine Agency (ASA) and Department of Climate Change, Energy, the Environment and Water (DCCEEW) entered into an agreement to undertake a strategic assessment under Part 10 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) for the proposed Submarine Construction Yard (SCY) at Osborne SA.[43] The strategic assessment will assess the impacts of the construction and operation of the SCY on matters of national environmental significance under the EPBC Act.

The agreement states that the operation of the SCY is defined to include (among other things) (i) the assembly, testing and commissioning of the nuclear propulsion system, and (ii) temporary storage of low-level radioactive waste.[44] The following (among other things) are considered out of scope of the strategic assessment: (i) the operation, sustainment and decommissioning of the submarines built at the SCY, (ii) disposal of low-level radioactive waste and the nuclear reactors.[45] The agreement states that these will be subject to a separate environmental impact assessment process.[46]

The effect of an approved strategic assessment is that an action or class of actions defined in a plan (strategic assessment plan) and approved by the Minister will not require further approval under the EPBC Act.[47]

• Preliminary construction work. On 7 December 2023, it was determined that preliminary enabling works at the Osborne Naval Shipyard were not a controlled action under the EPBC Act if taken in a particular manner.[48] These works can therefore proceed without any further assessment under the EPBC Act. In late December 2023, Australian Naval Infrastructure Pty Ltd (ANI) signed a contract with Shamrock Civil to commence construction of those works in 2024.[49]

Also in December 2023, the ASA entered into a $15 million contract with Australian steel manufacturer, Bisalloy Steels, to perform a comprehensive qualification process of Australian steel for potential use in the construction of Australia’s SSN-AUKUS. Australian company, BlueScope will provide the steel for the process.[50]

Other prerequisites to Australia’s nuclear-powered submarine pathway

The US President signed the National Defense Authorization Act for Fiscal Year 2024 (NDAA) into law on 22 December 2023.[51] The NDAA is significant to Australia as it deals with ‘matters relating to the AUKUS partnership’. In particular, Part 3 of Subtitle B, Title XIII, is the AUKUS Submarine Transfer Authorisation Act (US) which authorises the sale of Virginia class submarines to Australia, under certain conditions.[52] The NDAA also allows Australians to maintain US submarines in Australia as part of the Submarine Rotational Force‑West.[53] Additionally, the US can accept contributions from Australia in support of submarine security activities and the Act designates Australia and the UK as ‘domestic sources’ under the Defense Production Act of 1950, partially exempting both countries from certain export control standards.[54]

Within 90 days of the NDAA’s enactment the US Government is required to submit an AUKUS implementation plan to the relevant congressional committee.[55] The plan will contain:

• timelines and milestones
• identified issues that might impact US Defense Department requirements not related to the AUKUS partnership and within Australian and UK decision-making responsibilities
• an assessment of implications on the US industrial base
• identified resourcing and workforce issues
• plans for improving information sharing
• protection of privately held intellectual property
• recommended updates to relevant ‘authorities or regulatory, policy, or process frameworks’.[56]

It is not clear if this plan would be publicly available, however, the NDAA also requires the US Government to submit a report on the AUKUS partnership to relevant congressional committees by December 2024.[57] Subsequent reports will be biennial. Each report must include an assessment of key strategic elements (capability gaps, capacity shortfalls, costs and Australia’s industrial base) as well as progress on implementation (conclusion of an Article 14 comprehensive safeguard agreement with the IAEA, establishment of infrastructure requirements and support facilities and the ability for the US to meet its own submarine production requirements while meeting Australia’s objectives to acquire Virginia class submarines).[58]

In March 2023, the Minister for Defence said Australia would ‘be spending slightly over $3 billion dollars on industrial uplift in the United States and United Kingdom over the next four years’.[59] By October 2023, this had been clarified as US$3 billion to support the uplift of the US’s nuclear submarine industrial base, with a contribution to the UK still to be determined.[60] The Bills do not provide for the transfer of these funds.

A December 2023 research report from the US Congressional Research Service discusses challenges and objections to the submarine deal, including financial arrangements and logistics.[61]

AUKUS-related legislation to date

The Defence Minister has indicated that there will be ‘multiple tranches of legislation’ required to support the AUKUS partnership.[62] To date, the following Bills have been introduced into the Australian Parliament:

• the Defence Legislation Amendment (Naval Nuclear Propulsion) Bill 2023 (Defence Legislation Amendment Bill) was introduced on 10 May 2023 and passed both Houses of Parliament without amendment on 22 June 2023. The Act received Assent on 3 July 2023, and commenced the next day. See the Bills Digest for more information.
• the Defence Amendment (Safeguarding Australia’s Military Secrets) Bill 2023 was introduced to the House of Representatives on 14 September 2023. The Bill is yet to be debated. See the Bills Digest for more information.
• the Defence Trade Controls Amendment Bill 2023 was introduced to the House of Representatives on 30 November 2023. The Bill is yet to be debated. See the Bills Digest for more information.

Committee consideration

Senate Foreign Affairs, Defence and Trade Legislation Committee

The Australian Naval Nuclear Power Safety Bills have been referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report by 26 April 2024. Details of the inquiry are at the inquiry homepage. Submissions can be made until 1 February 2024.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills considered the ANNPS Bill and identified several issues of concern.[63] These include:

• Significant penalties [and] reversal of the evidential burden of proof.[64] The Committee observed that while the imposition of significant penalties may be appropriate in the context of nuclear safety, ‘the rationale should be fully outlined in the explanatory memorandum, and should be justified by reference to similar offences in Commonwealth legislation and if not, why not’.[65] The Committee indicated its concern was heightened by the imposition of significant penalties in combination with the application of strict liability to elements of some offences and reversal of the evidential burden of proof.
• Reversal of the evidential burden of proof.[66] The Committee noted that it is ordinarily the duty of the prosecution to prove all elements of an offence and reversal of that burden interferes with this common law right.[67] The Committee pointed out that the relevant matters were more than likely readily ascertainable by the prosecution and considered that, in the circumstances, ‘whether the facts are within the defendant’s knowledge is not the appropriate test as to whether the evidential burden of proof should be reversed’.[68] The Committee considered that ‘it is likely more appropriate to include these exceptions as elements of the offence, or to disallow the application of subsection 13.3(3) of the Criminal Code Act 1995 (Criminal Code), so that the defendant does not bear the evidential burden’.[69]
• Coercive powers – entry and search powers.[70] The Committee noted that Division 2 of Part 4 provides for powers relating to monitoring areas and observed that the ‘default position is that entry into a premises without consent should generally be authorised by a warrant issued by a judicial officer, such as a magistrate’.[71] The Committee noted that the existing framework for allowing Commonwealth officials to enter premises, as provided in the Regulatory Powers (Standard Provisions) Act 1994 (Regulatory Powers Act), was not applied. The Committee queried whether it would be appropriate to apply the monitoring warrant regime, as is provided in the Regulatory Powers Act, in such circumstances ‘where there is a need to monitor compliance with legislation in circumstances where no offence is suspected’.[72]
• Coercive powers – seizure [and] use and derivate use of seized material.[73] The Committee noted that clauses 43 and 52 appeared to allow the use of seized evidential material to prosecute offences outside of the Bill. The Committee noted that the relevant provisions did not place any limitations on the use and derivative use of seized material, and that where this may be appropriate, it should be suitably justified.[74] The Committee also queried whether it would be appropriate to include remote warrant provisions in clause 43.

In each case, the Committee sought further detailed advice from the Minister, with specific reference to how the proposed provisions address the requirements set out in the Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

The Committee also considered the Transitional Provisions Bill and had no comment.[75]

Policy position of non-government parties/independents

There is expected to be bipartisan support for these Bills, with the Opposition Leader Peter Dutton previously describing the Albanese Government’s continuation of the AUKUS partnership as ‘an endorsement of the Coalition’s decision to pursue the acquisition of nuclear-powered submarines’.[76]

The Australian Greens Senator Jordan Steele-John has previously expressed concerns about the creation of the new Regulator within the Defence portfolio, and the associated lack of meaningful civilian oversight that may occur as a result. In the Australian Greens’ Dissenting Report to the Senate Foreign Affairs, Defence and Trade Legislation Committee’s report on the Defence Legislation Amendment (Naval Nuclear Propulsion) Bills 2023 [Provisions], Senator Steele-John wrote:

This bill [the Defence Legislation Amendment (Naval Nuclear Propulsion) Bill 2023] is the first step in the largest nuclear program in Australian history and the Government has already signalled that it will violate international nuclear safety principles by exempting the nuclear power plants onboard SSN AUKUS submarines from independent regulation. It would be the first step in creating an apparatus that would allow the Department of Defence to operate the nuclear submarine program without any meaningful civilian oversight through the creation of a new Australian Nuclear-Powered Submarine Safety Regulator. Therefore, Australia’s nuclear submarine program will lack any civilian safeguard or oversight, from acquisition to disposal. The danger of this is a heightened risk of nuclear accidents and their disclosure, poor safeguarding and safety measures, which ultimately will put Australians at risk.

The Defence Strategic Review proposes that the nuclear regulation of the Defence Force’s nuclear submarine program be undertaken by an internal body within the Defence portfolio. This rejects the official advice from the International Atomic Energy Agency (IAEA) and the Federal Government’s own nuclear safety advisory council which warned that significant global nuclear and radiation incidents resulted from a lack of regulatory independence.[77]

The Australian Greens defence spokesperson Senator David Shoebridge has also expressed concerns about both the siting of the Regulator in the Defence portfolio, and the use of consultants in the design of the Regulator.[78] Following the introduction of the Bills, Senator Shoebridge stated that the ANNPS Bill as written would allow spent nuclear fuel (high-level radioactive waste) from US and UK submarines to be stored and disposed of in Australia, in conflict with the Australia Labor Party’s position on high-level radioactive waste. The Minister has disputed the accuracy of this assessment. ^[79]

Position of major interest groups

At the time of writing, there has been limited comment on the Bills by major interest groups.

Following the release of the Bills, the Australian Manufacturing Workers Union (AMWU) welcomed the establishment of a naval nuclear power safety regulator and its role in Australia’s adherence to its nuclear non-proliferation international obligations, stating:

Establishing a naval nuclear power safety regulator early in the submarine build program is prudent and recognises the extreme risk of nuclear power to workers, our communities and the environment.

The independent safety regulator will ensure that Australia is a responsible nuclear steward and adheres to the highest levels of safety concerning the delivery of the submarine program.[80]

Emeritus Professor Ian Lowe of Griffith University, in a March 2023 article, drew attention to details of the nuclear waste involved, even if Australia only has three American-made Virginia class submarines, writing: ‘in about 30 years time – we will have 600kg of so-called “spent fuel” and potentially tonnes of irradiated material from the reactor and its protective walls. Because the fuel is weapons-grade material, it will need military-scale security’.[81]

Former Senator and submariner Rex Patrick raised concerns that the proposed legislation could allow a future government to make a ‘simple policy shift’ to accept high-level radioactive waste from decommissioned UK and US submarines.[82]

Peter Dean of the United States Studies Centre expressed the view that the proposed legislation was not drafted to facilitate Australia receiving nuclear waste from the US or UK, rather it is ‘designed to cover the complex interplay in the building and transferring of intellectual property’ on the submarines among AUKUS partners:

This is about ensuring that we have the greatest level of flexibility in the system to account for all potential options, pathways, and variations of the building, construction and transfer and sale of submarines between the three countries.[83]

Financial implications

The Explanatory Memorandum to the ANNPS Bill states that ‘costs associated with the establishment of the Regulator will be subject to future appropriation’.[84]

It has been estimated that the conventionally-armed, nuclear-powered submarine component of the broader AUKUS arrangement will cost between $268billion and $368billion over a period of decades, including a $123 billion contingency.[85] While the estimate is described as relating to ‘the life of the program’, there is speculation as to whether it includes the costs of long-term storage and disposal of radioactive waste from the naval nuclear power plants (which are expected to be substantial).[86] It is also unclear whether the estimate includes submarine defueling and decommissioning.

The 2023­–24 Budget provided ‘$4.5billion over 10years from 2023–24 (and $482.7 million per year ongoing) to support initial steps in Australia’s acquisition of a conventionally-armed, nuclear-powered submarine capability’.[87] This included ‘$87.2million over two years from 2023–24 to support initial regulatory activities and the development of regulatory standards and frameworks, and non-proliferation and safeguards arrangements’.[88] These costs are expected to be ‘offset through a broader reprioritisation within the Defence Integrated Investment Program'.[89]

Budget Paper No.2 states the Australian Submarine Agency would be provided with ‘$7.9million in 2023–24 to support the establishment of the [as then known] Australian Nuclear-Powered Submarine Safety Regulator and develop associated nuclear regulatory standards and frameworks’.[90] The Mid-Year Economic and Fiscal Outlook 2023–24 included $558.0 million over 10 years towards the establishment and support of the (now) Naval Nuclear Power Safety Regulator.[91]

On 21 August 2023 it was reported that the Defence Department had entered into a contract worth $8.4 million with consultancy firm Ernst & Young to ‘help design a new agency to monitor safety issues associated with Australia’s acquisition of nuclear-powered submarines under the AUKUS pact’.[92]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bills’ compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.

The Statement of Compatibility with Human Rights identifies interactions with the right to work under the International Covenant on Economic, Social and Cultural Rights,[93] and the right to an effective remedy, the right to privacy and reputation, and the presumption of innocence under the International Covenant on Civil and Political Rights.[94] The Statement indicates that the Government considers that the Bills are compatible.[95] It states:

The limitations [on human rights] are reasonable and necessary to ensuring that people are kept safe from the potentially significant harm that can arise from the undertaking of the regulated activities. In addition, these limitations are necessary to achieve the legitimate objective of protecting the security and defence of Australia.[96]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights considered the Bills and made no comment.[97]

Key issues and provisions

The purpose of the ANNPS Bill is to establish the Australian Naval Nuclear Safety Regulator (Regulator). The Regulator would assess and grant Australian naval nuclear power safety licences (licences) to Commonwealth-related persons to undertake certain regulated activities relating to AUKUS submarines. The primary focus of the Regulator is the licensed person’s compliance with nuclear safety duties.

The Bills seek to transfer the portion of the existing licensing function of ARPANSA – which would otherwise have covered regulated activities – to the Regulator. The regulatory framework proposed by the ANNPS Bill loosely reflects existing provisions in the ARPANS Act, with substantial changes to the compliance and enforcement provisions, and with provision for exemptions from other Commonwealth laws. It also has reduced mechanisms for transparency.

A high-level comparison of the regulatory framework proposed by the ANNPS Bill with the existing regulatory frameworks for naval nuclear-powered submarines in the UK and US is provided in the Appendix (Table 2).

Key elements of the Bill

Who may be licensed?

An Australian naval nuclear power safety licence (licence) may only be granted to Commonwealth-related persons; that is, the Commonwealth, a corporate Commonwealth entity, a Commonwealth company, or a Commonwealth contractor.[98] A Commonwealth contractor is a person who holds a contract with any of the first three of these, which relates to a regulated activity.[99]

Regulated activities conducted by foreign military

Importantly, clause 137 of the Bill contains a general exclusion relating to a person conducting a regulated activity where the person is a member of the military of a foreign country, and there is an agreement or arrangement with that foreign country regarding the regulated activity, and that agreement is in force. In addition, the Bill enables the Regulator to exempt specified persons from specified provisions of the Act, such as the requirement to be authorised by a licence or to comply with specified licence conditions (clause 144).

A licence authorises the licence holder, or a person or class of persons, (collectively authorised persons) to conduct the regulated activities specified in the licence, subject to the conditions of that licence.[100]

Licence conditions

When granting a licence, the Regulator (see ‘A new Regulator’) must be satisfied that the licence holder will be able to comply with the conditions of the licence and of any matter prescribed by the regulations, and must take into account international best practice in relation to nuclear safety that is relevant to naval nuclear propulsion and any matter that is prescribed by the regulations.[101]

Clause 32 sets out the primary conditions of the licence and provides that additional conditions may be prescribed by the regulations or imposed by the Regulator.[102] Subclause 32(4) provides a list of matters that conditions may address, including plans and arrangements about nuclear safety, emergency preparedness and response, compliance with applicable standards and codes, and management of radiative waste. However, any such conditions may only be prescribed or specified ‘if the condition is necessary to ensure nuclear safety’.[103] By way of comparison, licences issued by ARPANSA are subject to compliance with specified Codes published as part of ARPANSA’s Radiation Protection Series.[104] ‘International best practice’ is not defined in the Bill, but could involve reference to the IAEA’s Safety Standard Series, as well as any World Health Organization or International Labor Organization standards and recommendations as may exist from time to time.

The ANNPS Bill does not contain provisions specifying that the Regulator must consider whether the applicant is a fit and proper person (as would be most relevant to Commonwealth contractors), or that the Regulator must consider the applicant’s past history of compliance with the ANNPS Act or other relevant environmental, nuclear safety, or work health and safety legislation in Australia or elsewhere.[105]

A licence may be granted for an indefinite period or for the period specified in the licence.[106] The granting of a licence for an indefinite period may be problematic because it removes one of a regulator’s tools for promoting compliance with licence conditions (that is, the threat of non-renewal). However, licences may be varied, suspended or cancelled by the Regulator.[107] The Bill does not explicitly include a requirement for the Regulator to undertake regular reviews of compliance with key licence conditions; for example, a 5-yearly review of key elements of the nuclear safety management systems, or emergency preparedness and response plans.[108]

What is an AUKUS submarine?

The ANNPS Bill provides that an AUKUS submarine is:

• an Australian submarine: a conventionally-armed, nuclear-powered submarine operated, or under construction in Australia, for naval or military purposes in Australia; or
• a UK/US submarine: a conventionally-armed, nuclear-powered submarine operated, or under construction in Australia, for naval or military purposes by the United Kingdom or the United States of America (clause 7).

The NATO definition of conventional weapon is a weapon that is neither chemical, biological, radiological nor nuclear.[109] Note that:

A submarine’s use of nuclear or non-nuclear power as its energy source is not an indication of whether it is armed with nuclear weapons—a nuclear-powered submarine can lack nuclear weapons, and a non-nuclear-powered submarine can be armed with nuclear weapons.[110] 

The UK Vanguard class nuclear-powered ballistic missile submarine (SSBN) and the US Ohio class SSBN are specifically designed to carry, and routinely carry, nuclear-armed ballistic missiles as part of the strategic nuclear deterrent of those countries.[111] So they clearly do not fall within the definition a UK/US submarine. No maintenance of their nuclear propulsion plant could be done by an NPP facility licensed by the Regulator. However, it is not necessarily a design feature of an SSN that it be conventionally-armed.

Certain types of missile and torpedo carried by an SSN may have either a conventional warhead or a nuclear warhead; so a conventionally-armed submarine could become a nuclear-armed submarine by switching out the missile and/or torpedo variant. For example, early Virginia class SSNs carried Tomahawk cruise missiles with a nuclear payload. The Viriginia class still carry Tomahawk cruise missiles, however the nuclear variant was fully retired in 2013.[112] Likewise, the Mk 45 ASTOR nuclear torpedo, launched from a standard torpedo tube, was in the US submarine fleet from 1965 to 1988.[113]

Tactical nuclear weapons like the Tomahawk nuclear variant and the Mk 45 ASTOR nuclear torpedo have gone out of favour in Western navies[114] and, as far as we can ascertain, there are now no sea-launched nuclear-armed cruise missiles (SLCM-N) in the US inventory. The US Navy considered developing a new SLCM-N, but that program is apparently not going ahead.[115] It is therefore quite unlikely that any UK or US SSN will be carrying such nuclear weapons, at least before the 2030s. However, it is not beyond the realm of possibility that tactical nuclear variants might be reintroduced at some point after that. Note also that the Australian Government has had a longstanding policy of not requiring the governments of Nuclear Weapons States to reveal whether their warships (including submarines) making routine visits to Australia are carrying nuclear weapons. [116]

Regulation of UK/US submarines

UK/US submarines will not be regulated directly and will not require any form of licence. In his second reading speech, Defence Minister Marles explained that ‘the focus of this Bill is on regulating activities across the lifecycle of Australia’s own conventionally-armed, nuclear-powered submarines – and the facilities in Australia that will support Australian submarines and UK and US submarines’.[117] The Minister also said ‘the Bill does not apply to conduct on board UK and US submarines’ [emphasis added].[118]

The Bill appears to achieve that aim. The Regulator can only issue a licence to Commonwealth-related persons undertaking regulated activities. Clause 9 provides:

There are 3 types of regulated activity:

 (a) a facility activity; and

 (b) a submarine activity; and

 (c) a material activity.

Clause 10 provides that regulated activities can only occur in a designated zone or in relation to an Australian submarine. Two designated zones are named in the Bill but not described: Stirling designated zone and Osborne designated zone. It is unclear why the boundaries of the Stirling and Osborne designated zones were not prescribed in a schedule to the ANNPS Bill, as opposed to the as yet-to-be-made regulations, given that these are presumably known.[119] Additional designated zones, for example, for an east coast submarine base or a radioactive waste management facility, may be prescribed in future by regulation.[120]

Clause 13 provides:

Each of the following is a submarine activity:

 (a) constructing an AUKUS submarine in a designated zone;

 (b) having possession or control of an Australian submarine;

 (c) operating an Australian submarine;

 (d) maintaining an Australian submarine;

 (e)  decommissioning an Australian submarine;

 (f) disposing of an Australian submarine.

Operating, controlling, maintaining, decommissioning or disposing of a UK/US submarine is not a defined submarine activity and therefore, not a regulated activity. The activities are not prohibited and the Regulator could not issue a licence for such activity. However, the construction of a submarine or its components for use by the UK or US can be licensed.

In relation to maintenance of UK/US submarines, while maintenance of those submarines is not itself a regulated activity, operating a facility to do maintenance on their nuclear propulsion plant is regulated. Clause 11 defines facility activities to include operating an NNP facility in a designated zone. An NNP facility includes ‘a facility for maintaining naval nuclear propulsion plant from, or for use on, an AUKUS submarine’ (paragraph 12(b)).

The first maintenance of a US SSN in Australia will commence at HMAS Stirling in the second half of 2024.[121] That maintenance will be conducted from the US submarine tender USS Emory S. Land.  Even if that ship could be considered a facility, it would likely be excluded from the regulatory scheme by clause 137.[122]

The planning for Submarine Rotational Force – West suggests that some form of facility on HMAS Stirling will be used for maintenance of the naval nuclear propulsion plant on UK/US submarines in the future.

What are the regulated activities?

The ANNPS Bill sets out 3 types of regulated activities: facility activities, submarine activities, and material activities.[123] It is these activities that are subject to the nuclear safety duty discussed below. Facility activities will occur in a designated zone. Submarine activities and material activities could occur in either a designated zone or in relation to an Australian submarine.[124]

Importantly, as outlined below, some of the components of regulated activities are expressed as applying only to Australian submarines, whereas others apply to activities related to AUKUS submarines (that is, both Australian submarines and UK/US submarines). Reflecting the existing prohibition relating to controlled facilities in subsection 30(1) of the ARPANS Act, the drafting of regulated activities is broken down to reflect the full lifecycle of the nuclear submarine enterprise (from preparation of a site to construction, operation, maintenance, and decommissioning and disposal). As noted in the relevant provisions of the ANNPS Bill, in practice there will be situations in which a particular activity might meet the definition of facility activities, submarine activities, and/or material activities; the definitions are not mutually exclusive.[125]

Facility activities are: preparing a site for, constructing, having possession or control of, operating, decommissioning, and/or disposing of an NNP facility (a naval nuclear propulsion facility) in a designated zone.[126] An NNP facility is further defined as:

• a facility for constructing an AUKUS submarine
• a facility for maintaining a naval nuclear propulsion plant from or for use on an AUKUS submarine
• a facility for storing naval nuclear propulsion plant from or for use on an AUKUS submarine, or
• a radioactive waste management facility that is for managing, storing or disposing of radioactive waste from an AUKUS submarine and has an (radio)activity level that is greater than the (radio)activity level prescribed in the regulations.[127]

Submarine activities are: constructing an AUKUS submarine in a designated zone, and having possession or control, operating, maintaining, decommissioning or disposing of an Australian submarine (but not a UK/US submarine).[128]

Material activities are having possession or control of NNP material or NNP equipment or plant, using NNP material, using or operating NNP equipment or plant, and maintaining, storing or disposing of NNP material or NNP equipment or plant in a designated zone or an Australian submarine.[129] NNP material and NNP equipment or plant are further defined in clause 15, and include radioactive material from an AUKUS submarine.[130]

However, subclause 14(2) would allow the regulations to override the definition of material activity as provided in subclause 14(1). In relation to other legislation, the Scrutiny Committee has explained generally that:

A provision that enables delegated legislation to amend the operation of primary legislation is known as a Henry VIII clause. There are significant scrutiny concerns with enabling delegated legislation to override the operation of legislation which has been passed by Parliament, as such clauses impact on levels of parliamentary scrutiny and may subvert the appropriate relationship between the Parliament and the Executive. As such, the committee expects a sound justification for the use of any Henry VIII clauses to be provided in the explanatory memorandum.[131]

What is a nuclear safety duty?

A core element of the regulatory scheme is the imposition of a general nuclear safety duty on all persons conducting a regulated activity.^[132] A person must not conduct a regulated activity without a licence (clause 19); however, the nuclear safety duty applies whether or not the activity is authorised by a licence. Licence holders and persons authorised by a licence are different classes of person and have different specific additional duties.[133] The Bill does not clarify the class of persons that may be authorised by a licence (that is, employees, contractors or sub-contractors, whether civilian or military).

The general nuclear safety duty supplements the primary duty of care provided in the Work Health and Safety Act 2011 (WHS Act) and corresponding state and territory legislation. Note that while the Chief of the Defence Force has the capacity under the WHS Act to exclude the ADF from the operation of some work health and safety regulation, there is no equivalent power provided by the Bill. [134] Clause 134 expressly states that the Bill does not exclude the operation of a workplace health and safety law;[135] however, Regulations made under the Bill could exclude the application of state and territory law to regulated activities (clause 135).[136]

Nuclear safety is defined as including:

in all cases—protecting the health and safety of people, and the environment, from the harmful effects of ionising radiation and non-ionising radiation; and

in relation to an activity that is a regulated activity—the following matters to the extent they relate to the matters in paragraph (a):

the implementation of proper operating conditions for the activity;

the prevention of accidents relating to the activity;

the mitigation of the consequences of such accidents (if they occur).[137] [emphasis added]

The general nuclear safety duty, along with the obligations of the licence holder to ensure persons authorised by a licence are competent and appropriately supervised and to implement and maintain a nuclear safety management system, together with the obligation of an authorised person to implement and comply with that system, is qualified by what is reasonably practicable.[138] A similar – but not identical – qualification exists in the WHS Act.[139] A consideration of what is reasonably practicable in both Acts includes whether the cost of eliminating or minimising the hazard or risk concerned is grossly disproportionate to the hazard or risk concerned.

Conventionally-armed – an awkward jurisdictional fact

Regulated activities all relate in some way to Australian, UK/US or AUKUS submarines and those submarines are defined as conventionally-armed and nuclear-powered. The nested structure of the definitions effectively make it a jurisdictional fact[140] that a particular submarine is conventionally-armed and nuclear-powered. The definition of regulated activities also underpins some of the enforcement provisions; for those provisions the Regulator will need to establish that a regulated activity has occurred before a penalty can be imposed.[141]

While it should be relatively easy to establish that a submarine, even a submarine under construction, is nuclear-powered by looking at its design parameters, it is not clear that establishing that a submarine is ‘conventionally-armed’ will be so simple.

In order to establish jurisdiction, the Regulator will need to seek some form of authoritative assurance that each submarine, or an entire class of submarines, is conventionally-armed, that is not armed with any nuclear, biological, chemical or radiological weapon.[142] A submarine under construction is obviously not armed at all; so while it could be easily proved it is not nuclear-armed, it is hard to say what positive evidence that the submarine is conventionally-armed could be produced by a person seeking a licence.[143]

If the issue of a licence or refusal to issue a licence to a person conducting regulated activities is challenged, or a person is given a penalty for conducting regulated activities without a licence, it is possible that the fact that a particular submarine or class of submarine is or is not armed with a chemical, biological, radiological or nuclear weapon may need to be established in court. That is likely an unintended outcome of defining an AUKUS submarine in part by the type of armament it has.

There are alternative ways of describing the relevant submarines, including by class or hull number or by their assignment to Submarine Rotational Force-West.

A new Regulator

Part 5 of the ANNPS Bill provides for the establishment of the Australian Naval Nuclear Power Safety Regulator (Regulator).[144] The Regulator is headed by a Director-General, who is the accountable authority for the entity for the purposes of the Public Governance, Performance and Accountability Act 2013.[145] The Regulator also consists of the Deputy Director-General, staff, persons assisting the Regulator and inspectors.[146]

The Director-General and Deputy Director-General are appointed by the Governor-General on the nomination of the Minister for Defence.[147] The Minister must be satisfied that the nominated person ‘has the competence, independence, technical expertise and relevant experience to properly discharge the functions of the office’.[148] The Bill does not further describe the type of technical expertise required. The person may not be a member of the ADF, however, the ANNPS Bill does not specify a period of time between prior service in the ADF and appointment.[149]

The Regulator may be assisted by other persons, including members of the ADF, members or special members of the Australian Federal Police, officers or employees of another Commonwealth entity or a Commonwealth company.[150] In addition, the Regulator may enter into an arrangement with the appropriate authority or officer of a government body or authority of a state or territory, foreign country, or international organisation under which that authority or officer makes its officers or employees available to the Regulator to perform services in connection with the Regulator’s functions.[151]

The functions and powers of the Regulator and Director-General are specified in clauses 102 and 107 respectively.

Is the Regulator independent?

The proposed Regulator is broadly described by clause 104 as independent in relation to the performance of its functions.[152] However, the Minister may give the Regulator ‘directions of a specific nature … about the performance of the Regulator’s functions’ where the Minister is ‘satisfied that it is necessary to do so in the interest of national security and to deal with an emergency’.[153] The Director-General is obliged to ensure that the Regulator follows any such directions.[154]

If such a direction is given, the Minister is required to table in each House of Parliament a statement to the effect that such a direction has been given, as opposed to the details of the actual direction given and the reasons for the giving of the direction. There may well be legitimate national security reasons for such secrecy, though there are likely to be differences of opinion about the balance to be struck between for example, the public interest in secrecy of national security and the public interest in transparency for the protection of the health and safety of people and the environment.

This contrasts with the requirements of the ARPANS Act where the Minister may give, by written notice, a direction to the CEO of ARPANSA in respect of the CEO’s functions or exercise of powers if it is in the public interest and must table a copy of the written notice in each House of Parliament.[155]

Writing on the principles and attributes of an effective independent regulator for nuclear-powered submarines, the Chair of the Radiation Health and Safety Advisory Council[156] observed that ‘it is important that the framework does not allow “national security” to mask inadequate radiation safety protection of the Australian public, weaken regulatory authority, or inhibit transparency on matters of Australian public safety’.[157] The Chair wrote:

Council highlights the importance of the independence of the regulatory authority to ensure that the regulator cannot be influenced in its decision-making process by political or economic issues, or other unwarranted interferences and can exercise its functions effectively and efficiently. …

A fundamental element of an international best practice national radiation regulation framework is the operation and maintenance of a regulatory body with the legal powers and technical competence necessary. The regulatory body should be able to make decisions in line with its statutory obligations for the regulatory control of facilities and activities and be able to perform its functions without undue pressure or constraint. The regulatory body should be independent in its safety related decision making and hold functional separation from entities having responsibilities or interests that could unduly influence its decision making.[158]

The IAEA also identifies the need for regulatory independence.[159] It describes a list of requirements needed when developing a nuclear safety framework, including the establishment of an independent regulatory body (Requirements 3 and 4) that is ‘effectively independent’ when a regulator is performing regulatory functions (Requirement 17).[160]

Compliance and enforcement provisions

Compliance and enforcement provisions dominate the ANNPS Bill, extending over more than 60 pages, with a total of 36 penalty provisions, many of them strict liability.[161] The Explanatory Memorandum does not give any information about whether the design of the Regulator incorporates best practice nuclear safety regulation or how the scheme will promote a safety culture.[162]

The ANNPS Bill allows the Director-General to appoint Australian Naval Nuclear Power Safety Inspectors (inspectors).[163] Inspectors are members of the Regulator and have the powers specified in an instrument of appointment.[164] These powers include issuing directions, giving improvement notices, and giving prohibition notices.[165]

Interaction with other workplace health and safety agencies

The compliance and enforcement powers given to inspectors raise questions about the interaction of these powers with those of the military police, Comcare investigators, and state and federal workplace health and safety authorities. While there are existing mechanisms to deconflict exercise of power in some circumstances, the Explanatory Memorandum does not address whether the existing arrangements are adequate.[166]

Strict liability offences, safety, security and interaction with military discipline

Clause 81 makes it a strict liability offence to fail to comply with the requirement of an inspector to facilitate entry to an Australian submarine that is stationary or underway. Given the obvious practical and safety implications of facilitating entry to a submarine, particularly one that is underway, it is surprising that there is a strict liability offence for failing to comply. The maximum penalty is 60 penalty units ($18,780).[167]

Clause 82 empowers an inspector to require a person in a monitoring area or an investigation area to facilitate and assist an inspector and demonstrate the operation of equipment. It is a strict liability offence under clause83 to fail to comply and the maximum penalty is 60 penalty units ($18,780).

Military discipline requirements may put ADF personnel not working for the Regulator in a difficult position with respect to granting access to inspectors to secure areas. There is potential for those personnel to be given conflicting orders with respect to granting immediate access to secure areas on the basis of either safety or national security.[168] There is no discussion of this point in the Explanatory Memorandum. By way of comparison, the UK Office for Nuclear Regulation (ONR) has issued guidance to inspectors about accessing Defence sites in Non-Statutory Enforcement of the Ministry of Defence as a Crown Body.[169]

It is not clear what regulatory problem clauses 139 and 140 are designed to overcome or how the clauses will operate. The Explanatory Memorandum does not offer any clarification. Given that the provisions apparently affect criminal and civil liability, their operation should be clear.

Reporting and transparency, including disclosure of nuclear safety incidents

As a Commonwealth entity for the purposes of the PGPA Act, the Regulator would be required to prepare and give an annual report to the Minister for Defence, for presentation to the Parliament, on the Regulator’s activities during the relevant period.[170] Clause 122 of the ANNPS Bill would require the annual report to include ‘any matters prescribed by the regulations’. In addition, subclause 123(1) would require the Regulator to ‘give the Minister a report in relation to any matter prescribed by the regulations for a period prescribed by the regulations’.[171]

This contrasts with the significantly more detailed reporting obligations imposed on the CEO of the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA), as set out in the ARPANS Act.[172] Those include:

• an annual report which must include details of directions given by the Minister to the CEO, details of any breach of licence conditions by a licensee, directions given by the CEO to a controlled person who the CEO believes is not complying with the Act or regulations and it is necessary to give the direction to protect the health and safety of people or to avoid damage to the environment, and details of improvement notices given by inspectors[173]
• the preparation and provision of a quarterly report covering the same matters as required by the annual report, together with a list of all facilities licensed during the quarter, and which must also be tabled in each House of Parliament by the Minister[174]
• the preparation of a report on a serious accident or malfunction that occurs at a nuclear installation which must be tabled in each House of Parliament within 3 sitting days of the incident and also given to the Minister.[175]

In another comparable example, the Minister for Foreign Affairs is required to publish a notice in the Gazette of each grant, variation or revocation of permits or authorities granted, varied or revoked under the Nuclear Non-Proliferation (Safeguards) Act 1987 (Safeguards Act).[176]

The absence in the Bill of transparent reporting, including in relation to the substance of Ministerial directions, the grant of licences, the issuance of directions, improvement notices and prohibition notices by inspectors, and of serious incidents which may pose a risk to health and safety and the environment is likely to be of interest to a range of stakeholder groups.

Writing on the principles and attributes of an effective independent regulator for nuclear-powered submarines, the Chair of the Radiation Health and Safety Advisory Council identified transparency as ‘fundamental for the regulator to achieve credibility, trust and respect’ and argued that ‘national security’ should not be used to mask inadequate radiation safety protection.[177] The Chair said:

The framework needs a mechanism that requires operators/licensees to make available relevant information that could have an impact on public health, safety and the environment, including nuclear and radiation safety management, discharges and emissions, incidents, near misses, and abnormal occurrences. Recognising national security issues are relevant, the criteria by which information is withheld for such purposes should be clear, and alternative approaches to public assurance provided. Transparency and openness of regulatory activities and decisions can assist with enhanced public confidence that decision-making is based on consistent best practice criteria and processes.[178]

By way of contrast, in the US, the National Nuclear Security Administration publishes annual reports on environmental monitoring and disposal of radioactive wastes from US nuclear-powered ships (including submarines) and their support facilities, occupational radiation exposure, and occupational safety and health.

Interaction with other Australian nuclear safety and regulatory agencies

In his second reading speech, the Minister said the designation of zones would clearly define the boundaries between the Commonwealth’s existing civil nuclear safety framework (as established by the ARPANS Act) and the new arrangements under the ANNPS Bill.[179]

Existing Commonwealth nuclear safety and regulatory bodies include ARPANSA, the Australian Safeguards and Non-Proliferation Office (ASNO), the Minister for the Environment, and the ARWA. The impact of the Bills on the function and role of these bodies is discussed below. The Australian Nuclear Science and Technology Organisation (ANSTO) also undertakes research and development in nuclear science and nuclear technology and the management and storage of radioactive materials and radioactive waste.[180]

The Explanatory Memorandum does not indicate whether there has been any consultation with these agencies. Rather, it states that ‘it will be essential for the Regulator to consult with others, including Commonwealth, state and territory work, health and safety regulators’, as well as the Department of Defence [emphasis added].[181]

ARPANSA

The national radiation protection and nuclear safety authority, ARPANSA, aims ‘to protect the health and safety of people, and to protect the environment, from the harmful effects of radiation’.[182] The application of the nuclear safety regime administered by ARPANSA to regulated activities is explicitly excluded by clause 132 of the Bill. The ARPANS Act is already drafted so as to curtail its operation affecting matters of defence and national security.[183]

Australian Safeguards and Non-Proliferation Office

The ASNO, situated within the Department of Foreign Affairs and Trade (DFAT), administers the Safeguards Act. The Safeguards Act gives effect to Australia’s international legal obligations under:

• the Treaty on the Non-Proliferation of Nuclear Weapons[184]
• the Convention on the Physical Protection of Nuclear Material[185] and the Amendment to the Convention on the Physical Protection of Nuclear Material[186]
• the International Convention for the Suppression of Acts of Nuclear Terrorism[187]
• Australia’s Comprehensive Safeguards Agreement and Additional Protocol with the International Atomic Energy Agency[188]
• bilateral agreements between Australia and various countries concerning the transfer of nuclear items (such as uranium ores)[189] and cooperation in the peaceful use of nuclear energy.[190]

In brief, Australia’s safeguard obligations include not seeking to acquire nuclear weapons or their supporting technologies and ensuring that nuclear materials are protected in accordance with the IAEA’s comprehensive safeguards and verification regime. The principal aim is to prevent the ‘diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices’.[191]

Most relevant to the ANNPS Bill, the Safeguards Act establishes a system for the Minister for Foreign Affairs to grant permits for the possession and transport of nuclear material and associated items and granting of authorities relating to the communication of information about sensitive nuclear technology.[192] The Act also provides for that Minister to grant a permit for the establishment and decommissioning of certain nuclear facilities, a facility for the carrying out of nuclear activities, or a facility for the use of associated equipment.[193] The Minister may attach conditions to permits relating to the inspection of and reporting on nuclear material and associated items, including in accordance with Australia’s Comprehensive Safeguards Agreement.[194]

Subclause 133(1) of the ANNPS Bill provides that the ANNPS Act would not exclude the operation of the Safeguards Act to the extent that it is capable of operating concurrently with the ANNPS Act. However, subclause 133(2) would allow for regulations made under the ANNPS Act to modify the application of the ANNPS Act with respect to nuclear material and associated items. Given that the regulations are not yet available in draft form, it is not possible to assess the impact of any such modifications and their potential impact on Australia’s compliance with its safeguarding obligations.

Minister for the Environment

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) establishes a regime for the environmental impact assessment and approval of actions that are likely to have a significant impact on the environment generally, or on any of nine matters of national environmental significance. The following require referral to the Minister for assessment:

• nuclear actions[195] by a constitutional corporation, the Commonwealth or a Commonwealth agency that have, will have or are likely to have a significant impact on the environment[196]
• actions taken on or outside Commonwealth land that has, will have or are likely to have a significant impact on the environment, or the environment on Commonwealth land[197]
• actions taken by the Commonwealth or a Commonwealth agency inside or outside the Australian jurisdiction that has, will have or are likely to have a significant impact on the environment inside or outside the Australian jurisdiction.[198]

The Defence Legislation Amendment Act specifically amended the EPBC Act to provide that prohibitions on approvals of nuclear installations (namely a nuclear power plant) did not apply to ‘a naval nuclear propulsion plant related to use in a conventionally-armed, nuclear powered submarine’.[199]

The ANNPS Bill is silent on interaction with the EPBC Act. As noted in the Background section of this Digest, in November 2023, the ASA and DCCEEW commenced the process of undertaking a strategic assessment of the construction and operation of the SCY at Osborne, SA, under Part 10 of the EPBC Act. It seems likely that a similar process will be undertaken for HMAS Stirling. It remains unclear whether the Minister for Defence will seek an exemption from the requirements for assessment and approval of other aspects of Australia’s nuclear submarine enterprise, such as the operation of the naval nuclear propulsion plants and establishment of radioactive waste management facilities, under section 158 of the EPBC Act on the basis of Australia’s defence or security interests.

Interaction with international agreements

Numerous international agreements have been agreed relating to nuclear safety, nuclear security and nuclear safeguards.[200] Another suite of agreements concern nuclear liability, however, Australia is not a party to these agreements.[201] The scope of the agreements varies, but is often expressed as applying to nuclear activities or nuclear materials relating to peaceful purposes (that is, civilian rather than military purposes). Some agreements specify that state parties are required to ensure that equivalent measures are applied to nuclear actions or nuclear materials relating to non-civilian activities. The ambiguity of naval nuclear propulsion technology has been raised by some experts.[202]

Clause 136 provides that a person conferred functions by the Act ‘must have regard to Australia’s obligations under any international agreement prescribed by the regulations in performing that function’. Given that the international agreements are well established, it is unclear why relevant agreements are not listed in the Act, with provision for subsequent addition by regulation. The Explanatory Memorandum simply states: ‘this [provision] gives effect to the Australian Government’s commitment to ensure that the nuclear-powered submarine enterprise operates consistently with Australia’s international obligations’.[203]

Concluding comments

The purpose of the ANNPS Bill is to establish a regulatory framework to promote and regulate the nuclear safety of activities relating to AUKUS submarines. The Bill establishes a new Regulator to regulate certain defined activities relating to Australian submarines and UK/US submarines under the AUKUS agreement (as described above). The Bill explicitly does not regulate nuclear-armed, nuclear-powered submarines. The drafting of the Bill clearly contemplates the construction and operation of a radioactive waste management facility for managing, storing or disposing of radioactive waste from AUKUS submarines – that is, from both Australian submarines and UK/US submarines.[204]

The Transitional Provisions Bill provides for the transfer of any existing licences (or any relevant parts thereof) granted under the ARPANS Act for activities that would become regulated activities under the new Act to new licences granted by the Regulator.

The Minister describes the regulatory scheme as ‘robust and comprehensive’.[205] However, the ANNPS Bill more resembles framework legislation under which substantial detail will be provided in regulations.[206] These regulations are not yet publicly available.

The Explanatory Memoranda do little more than restate the provisions of the Bills and we found them of little assistance in interpreting the provisions.[207]

The ANNPS Bill appears to adopt – and modify to varying degrees – sets of provisions from a range of existing Acts. However, as noted throughout this Digest, there is a lack of clarity about the application of the proposed regulatory framework to particular circumstances and in respect of interactions between different regulatory bodies. This is particularly the case where relevant companion legislation explicitly allows for exemptions or derogations for the Department of Defence or in the ‘national interest’.

Despite the significance of its subject matter, the ANNPS Bill provides less transparency than comparable regulatory regimes (such as that administered by the civil nuclear regulator ARPANSA). While there is expected to be bipartisan support for the Bills, a range of stakeholders will likely raise this and other concerns.

Appendix

Table 2 A comparison of key regulatory elements relating to nuclear-powered submarines in Australia, United Kingdom and United States

Source: In addition to footnotes referred to within the table, see also OECD and Nuclear Energy Agency (NEA), Nuclear Legislation in OECD and NEA Countries: United States, (OECD, 2016).

Notes:

1. this table contains a high-level summary of the key regulatory elements regarding the safety of activities relating to nuclear-powered submarine. The regulatory frameworks in the United Kingdom and United States are complex. As such, the information provided here is not fully comprehensive. As stated by Dr Roger Allison, Chair of the ARPANSA Radiation Health and Safety Advisory Council (p. 1), ‘Regulatory frameworks utilised in other countries such as the United States and United Kingdom are useful for comparison and guidance. However, other countries' frameworks grew from an era of different drivers, priorities and expectations’.
2. United Kingdom abbreviations: DNE = Defence Nuclear Enterprise; DNP = Defence Nuclear Programme; DNSR = Defence Nuclear Safety Regulator; IRR = Ionising Radiations Regulations 2017; MOD = Ministry of Defence; ONR = The Office of Nuclear Regulation; REPPIR = Radiation (Emergency Preparedness and Public Information) Regulations 2019.
3. United States abbreviations: DOE = Department of Energy; DON = Department of the Navy; EPA= Environmental Protection Agency; NNPP = Naval Nuclear Propulsion Program; NNSA = Naval Nuclear Security Administration; NRC = Nuclear Regulatory Commission.