Chapter 1Introduction
Referral of the bill
1.1On 10 May 2023, the Defence Legislation Amendment (Naval Nuclear Propulsion) Bill 2023 (the bill) was introduced into the House of Representatives by the Deputy Prime Minister and Minister for Defence, the Hon Richard Marles MP (the Minister).
1.2As explained below, the bill would amend the Australian Radiation Protection and Nuclear Safety Act 1998 (ARPANS Act) and Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) to enable the Chief Executive Officer (CEO) of the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) and the Minister for the Environment and Water to perform their respective regulatory functions in relation to Australia’s acquisition and operation of conventionally armed nuclear-powered submarines and their supporting infrastructure and facilities.
1.3On 11 May 2023, the Senate referred the provisions of the bill to the Senate Foreign Affairs, Defence and Trade Legislation Committee (the committee) for inquiry and report by 9 June 2023.
Conduct of the inquiry
1.4Details of the inquiry were made available on the committee’s website. The committee also contacted a number of organisations and individuals inviting written submissions by 26 May 2023. The submission due date was later extended to 31 May 2023. The committee published 117 submissions, listed at Appendix 1. The committee also received a range of correspondence providing commentary that supported or objected to the AUKUS partnership, more broadly.
1.5The committee thanks the individuals and organisations that took the time to contribute to the inquiry.
Structure of the report
1.6This report contains two chapters. This chapter sets out:
background information on the establishment of the AUKUS trilateral security partnership and its initiative to support Australia in acquiring conventionally armed nuclear-powered submarines; and
the purpose of the bill and the key provisions of the bill.
1.7Chapter two cavasses the key issues raised by submitters and sets out the committee’s views and recommendation.
Background
1.8This section provides background information on the establishment of the AUKUS trilateral security partnership and its initiative to support Australia in acquiring conventionally armed nuclear-powered submarines.
1.9On 15 September 2021, the leaders of Australia, the United Kingdom and the United States announced the creation of a new trilateral security partnership to promote a free and open Indo-Pacific that is secure and stable. This partnership is known as AUKUS. The joint statement announcing the new partnership indicated:
Through AUKUS, our governments will strengthen the ability of each to support our security and defense interests, building on our longstanding and ongoing bilateral ties. We will promote deeper information and technology sharing. We will foster deeper integration of security and defense-related science, technology, industrial bases, and supply chains. And in particular, we will significantly deepen cooperation on a range of security and defense capabilities.
1.10The first major initiative of AUKUS was the trilateral decision to support Australia acquiring conventionally armed nuclear-powered submarines to enhance interoperability, commonality, and mutual benefit between the three nations.
1.11On 13 March 2023, 18 months after the announcement, the three leaders of AUKUS outlined the pathway for Australia to acquire these submarines:
Australia’s future SSN—which we are calling “SSN-AUKUS”—will be a state-of-the-art platform designed to leverage the best of submarine technology from all three nations. SSN-AUKUS will be based upon the United Kingdom’s next-generation SSN design while incorporating cutting edge U.S. submarine technologies, and will be built and deployed by both Australia and the United Kingdom.
1.12In a joint statement, Prime Minister Anthony Albanese MP and the Minister noted that Australia’s acquisition of nuclear-powered submarines is the single biggest defence investment in Australia’s history and ‘represents a transformational moment for our nation, our Defence Force and our economy’.
1.13The initiative will contribute to AUKUS’s objective to promote a secure and stable Indo-Pacific by:
increasing the number of partner-nation SSNs in the Indo-Pacific, increasing AUKUS nations’ combined capacity in the undersea domain;
creating additional production capacity, enabling AUKUS partners to grow the size of their combined submarine forces;
strengthening and making more resilient trilateral supply chains, enhancing the industrial bases in all three nations; and
enhancing the ability of the three nations to deter aggression and contribute to stability in the Indo-Pacific, and globally.
1.14A phased approach will be taken to deliver the submarines at the earliest possible date and to support Australia’s development of the infrastructure, technical capabilities, industry and human capital necessary to produce, maintain, operate, and steward a sovereign fleet of conventionally armed nuclear-powered submarines:
Beginning in 2023, Australian military and civilian personnel will embed with the U.S. Navy, the Royal Navy, and in the United States and United Kingdom submarine industrial bases to accelerate the training of Australian personnel. The United States plans to increase SSN port visits to Australia beginning in 2023, with Australian sailors joining U.S. crews for training and development; the United Kingdom will increase visits to Australia beginning in 2026.
As early as 2027, the United States and United Kingdom plan to begin forward rotations of SSNs to Australia to accelerate the development of the Australian naval personnel, workforce, infrastructure and regulatory system necessary to establish a sovereign SSN capability.
Starting in the early 2030s, pending Congressional approval, the United States intends to sell Australia three Virginia class submarines, with the potential to sell up to two more if needed. This step will systematically grow Australia’s sovereign SSN capability and support capacity.
In the late 2030s, the United Kingdom will deliver its first SSN-AUKUS to the Royal Navy. Australia will deliver the first SSN-AUKUS built in Australia to the Royal Australian Navy in the early 2040s.
1.15The cost of the acquisition is estimated to be 0.15% of GDP through the life of the program. The program will create approximately 20 000 direct jobs over the next 30 years across industry, the Australian Defence Force and the Australian Public Service. Australia’s infrastructure and industrial capacity will also be upgraded, including:
the expansion of HMAS Stirling in Western Australia to support the scale of infrastructure required for nuclear-powered submarines—both for visiting and rotational submarines and for Australia’s own nuclear-powered submarines;
the SSN-AUKUS submarines being built at Australia’s future Submarine Construction Yard in Adelaide, South Australia—employing thousands of workers onsite at peak; and
the establishment of additional training, skilling and educational programs to achieve this growth for Australia’s local submarine and shipbuilding industry.
1.16Australia has committed to managing all of the radioactive waste generated through its nuclear-powered submarine program. The UK and US will assist Australia in developing this capability, and Australia will manage these materials in accordance with its nuclear non-proliferation and other international obligations. To strengthen Australia’s commitment to nuclear non-proliferation in light of the initiative, Australia:
will not seek to acquire nuclear weapons;
will not enrich uranium or reprocess spent fuel as part of this program;
will not produce its own nuclear fuel for its SSNs;
will be provided with nuclear material in complete, welded power units that will not require refuelling during their lifetime;
will be provided with nuclear fuel that cannot be used in nuclear weapons without further chemical processing, which would require facilities that Australia does not have and will not seek; and
will work within the framework of its Comprehensive Safeguards Agreement (CSA) and Additional Protocol (AP) with the International Atomic Energy Agency (IAEA).
1.17The Minister has stated that Department of Defence (Defence) is working to establish a process for how a site will be identified within the next twelve months. The Minister stated that the ‘facility will be on Defence land, current or future’.
1.18On 6 May 2023, the Minister announced the Government will establish a new agency—the Australian Submarine Agency (ASA)—and a new regulator—the Australian Nuclear-Powered Submarine Safety Regulator (the Regulator)—as part of its commitment to delivering Australia’s conventionally armed nuclear-powered submarines.
1.19The ASA will be established by executive order and be responsible and accountable for the management and oversight of Australia’s nuclear-powered submarine program, including from acquisition to delivery, construction, technical governance, sustainment, and disposal. The ASA will also enable the necessary policy, legal, non-proliferation, workforce, security and safety arrangements. The Nuclear-Powered Submarine Taskforce, originally established in 2021 to develop the pathway to deliver AUKUS’s submarine initiative, will transition from Defence to the ASA on 1 July 2023.
1.20The Regulator will be independent of the Australian Defence Force’s chain of command and directions from Defence. It will work with existing Australian regulators to support the safety of our submariners, Australian and international communities, and the environment. The Regulator will 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.
Purpose of the bill
1.21The Minister stated this bill ‘is the first legislative step in support of Australia's acquisition of conventionally armed nuclear-powered submarines’ and ‘[b]uilding the legal architecture to support this endeavour will involve multiple tranches of legislation’.
1.22This bill seeks to amend the ARPANS Act and the EPBC Act to make clear that the current moratorium on civil nuclear power does not prevent the relevant regulators (the CEO of the ARPANSA and the Minister for the Environment and Water) from exercising their regulatory powers and performing functions in respect of conventionally armed nuclear-powered submarines.
1.23In evidence to a Senate committee inquiry on 15 May 2023, the CEO of ARPSNA stated ‘the proposed amendment was to seek to enable ARPNSA in the short term to have a regulatory role in the space until Defence is able to establish the defence nuclear submarine safety regulator’. The Bills Digest suggested this legislation would be introduced later in 2023.
1.24The explanatory memorandum (EM) stated that the bill’s amendments will not disrupt Australia’s moratorium on civil nuclear power. The bill does not change the existing protections regarding the health and safety of people and the environment that are currently contained in the ARPANS Act and the EPBC Act.
1.25Further details on the provisions of the bill are provided below.
Key provisions of the bill
1.26The bill contains only one schedule which sets out the proposed amendments to the ARPANS Act and the EPBC Act.
1.27The EM notes that the word ‘plant’, referenced below, is aligned with the ARPANS Act and the EPBC Act and encompasses the entire nuclear propulsion system of which the reactor is a part.
Australian Radiation Protection and Nuclear Safety Act 1998
1.28The object of the ARPANS Act is to protect the health and safety of people, and to protect the environment, from the harmful effects of radiation. It establishes the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) and the Office of the CEO of ARPANSA.
1.29ARPANSA is the Australian Government's primary authority on radiation protection and nuclear safety. ARPANSA regulates Commonwealth entities that use or produce radiation with the objective of protecting people and the environment from the harmful effects of radiation.
1.30The bill proposes to amend subsections 10(1) and 10(2) of the ARPANS Act:
Subsection 10(1) provides that nothing in the ARPANS Act is taken to authorise the construction or operation of any of the following nuclear installations: a nuclear fuel fabrication plant, a nuclear power plant, an enrichment plant or a reprocessing facility.
Subsection 10(2) provides that the CEO must not issue a licence in respect of any of the facilities mentioned in subsection 10(1).
1.31The proposed amendment clarifies that these subsections do not apply to a naval nuclear propulsion plant related to use in a conventionally armed nuclear-powered submarine.
Environment Protection and Biodiversity Conservation Act 1999
1.32The EPBC Act is Australia’s primary environmental legislation and is focused on the protection of nine matters of national environmental significance (MNES), including nuclear actions. Actions that are likely to have a significant impact on MNES require environmental assessment and an approval from the federal Environment Minister. However, some actions, including nuclear-related actions, are expressly prohibited under the EPBC Act.
1.33According to the Department of Climate Change, Energy, the Environment and Water (DCCEEW), the EPBC Act covers a range of nuclear actions, such as:
establishing or significantly modifying a nuclear installation;
transporting spent nuclear fuel or radioactive waste products;
establishing or significantly modifying a facility for storing radioactive waste products;
mining or milling uranium ore;
establishing or significantly modifying a large-scale disposal facility for radioactive waste;
decommissioning or rehabilitating any facility or area in which one of the activities above has occurred; and
any other type of action set out in the EPBC Regulations.
1.34The bill proposes to amend the subsections of the EPBC Act which currently restrict the Minister’s decision making—including in relation to making declarations, providing approvals, or entering into conservation agreements—in relation to actions consisting of, or involving the construction or operation of any of the following nuclear installations: a nuclear fuel fabrication plant, a nuclear power plant, an enrichment plant or a reprocessing facility.
1.35The proposed amendments clarify that the Minister is not prevented from making declarations, providing approvals, or entering into conservation agreements for an action consisting of, or involving the construction or operation of a naval nuclear propulsion plant related to use in a conventionally armed nuclear-powered submarine.
Compatibility with human rights and legislative scrutiny
1.36The statement of compatibility with human rights in the bill’s EM states that the bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
1.37It noted that whilst the bill engages the right to health in Article 12 of the International Covenant on Economic, Social and Cultural Rights—the right of everyone to the enjoyment of the highest attainable standard of physical and mental health—it does not limit it, because:
… the amendments introduced by the Bill are intended only to clarify, not disrupt, the moratorium on civil nuclear power, as it is expressed in the relevant sections of the ARPANS Act and the EPBC Act. In particular, the Bill does not change the existing protections regarding the health and safety of people and the environment contained in those Acts.
…
For these reasons, the Bill does not affect Australia’s ability to implement its obligations under Article 12 of the ICESCR.
1.38The Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills had not considered the bill prior to this report tabling.
Financial impact statement
1.39The EM’s financial impact statement indicated that the bill will have no significant financial impact on Commonwealth expenditure or revenue.