Key points
- The Defence Legislation Amendment (Naval Nuclear Propulsion) Bill 2023 proposes to make amendments to the Australian Radiation Protection and Nuclear Safety Act 1998 (ARPANS Act) and the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
- The Bill proposes to amend provisions in each Act that underlie the current moratorium on civil nuclear power to clarify that the moratorium does not apply to a ‘naval nuclear propulsion plant related to the use of a conventionally-armed, nuclear powered submarine’.
- The Minister for Defence has described the Bill as only the first legislative step in the acquisition of conventionally-armed, nuclear powered submarines (SSNs), with the legal architecture supporting the acquisition to ‘involve multiple tranches of legislation’.
- Without details of future intended enactments, it is difficult to fully evaluate the implications of this Bill. In particular, neither the Bill nor the accompanying Explanatory Memorandum provide details of the intended framework for regulating ‘naval nuclear propulsion plants’ across their lifecycle, including the sourcing or production of nuclear fuel rods, servicing and maintenance of ‘naval nuclear propulsion plants’, long-term storage of high-level radioactive waste and spent nuclear fuel, and decommissioning of end-of-life SSNs.
- Moreover, with the Government committing to establishing the Australian Nuclear-Powered Submarine Safety Regulator (ANPSSR), with legislation to be introduced later in 2023, it is unclear to what extent existing agencies and departments with a role in regulating Australia’s existing nuclear industry will be directly or indirectly involved in regulation of the SSNs across their lifecycle, including environmental, health, and safety considerations.
- It is also unclear to what extent existing exemption provisions in the ARPANS Act and the EPBC Act exempting declared activities from approval requirements could be utilised at the discretion of the relevant decision-makers at some future point in time on the grounds of defence or national security. This would exempt SSNs and associated infrastructure and facilities from the approval requirements under these Acts, leaving the yet to be established ANPSSR as the principal regulator of SSNs and their supporting infrastructure and facilities.
Introductory Info
Date introduced: 10 May 2023
House: House of Representatives
Portfolio: Defence
Commencement: The day after Royal Assent.
Terms defined in Acts are italicised
throughout this Digest.
Purpose and
Structure of the Bill
The Defence
Legislation Amendment (Naval Nuclear Propulsion) Bill 2023 (Defence
Legislation Amendment Bill; the Bill) amends the Australian
Radiation Protection and Nuclear Safety Act 1998 (ARPANS Act)
and the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC Act)
(which sit within the Health and Environment portfolios respectively) to
clarify that the current moratorium on civil nuclear power does not prevent the
relevant regulators from exercising their regulatory powers and performing
functions in respect of conventionally-armed, nuclear-powered submarines.
The Bill is comprised of one Schedule which sets out
proposed amendments to the ARPANS Act and the EPBC Act.
The Bill passed the House of Representatives on 25 May
2023.
Background
Summary of
AUKUS announcements
This section outlines the context of the present Bill,
originating from the announcement of the AUKUS agreement on 16 September 2021.[1]
Former Prime Minister Scott Morrison jointly announced with his counterparts, United Kingdom Prime Minister Boris
Johnson and United States of America President Joe Biden, that the three
nations had agreed on the creation of ‘a new enhanced trilateral security
partnership’.[2]
The first initiative under the partnership (referred to as Pillar 1)[3]
was to be Australia’s acquisition of conventionally-armed, nuclear-powered
submarines (SSNs), with the nations to work together to determine by March 2023
‘the optimal pathway to deliver at least 8 nuclear powered submarines for
Australia’.[4]
The multi-agency Nuclear-Powered Submarine Taskforce was established within the
Department of Defence to identify ‘the optimal pathway’ for acquisition of the
submarines.[5]
The then Prime Minister and Defence Minister made clear
that the government had no intention of acquiring nuclear weapons, and that
Pillar 1 of the AUKUS agreement would be consistent with Australia’s commitment
to nuclear non-proliferation.[6]
On the same day, the then Opposition Leader Anthony
Albanese, together with the Shadow Foreign Affairs and Defence Ministers,
announced the Australian Labor Party’s general support for the acquisition of
the SSNs and sought a bipartisan mechanism for oversight of the process going
forward.[7]
On 22 November 2021, AUKUS nations signed the Exchange
of Naval Nuclear Propulsion Information Agreement (ENNPIA).[8]
The Agreement allows the UK and US to communicate and exchange naval nuclear
propulsion information with the Australian Government for the purpose of
determining the most appropriate acquisition pathway. The type of information
includes that which may ‘be necessary to research, develop, design,
manufacture, operate, regulate, and dispose of military reactors’.[9]
The activities and cooperation of the Parties under the ENNPIA
are required to be implemented in accordance with International Atomic Energy
Agency (IAEA) safeguards ‘with respect to all nuclear material in all peaceful
nuclear activities within the territory of Australia, under its jurisdiction,
or carried out under its control anywhere’.[10]
Reflecting the non-proliferation obligations of the Parties, the Agreement also
prohibits the disclosure and use of information for any other purpose, or the
communication or exchange of information to any unauthorised persons.[11]
On 15 December 2021, the Joint Standing Committee on
Treaties recommended binding treaty action be taken, following an expedited
inquiry.[12]
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 SSNs at
the ‘earliest possible date’.[13]
The pathway includes:
- beginning
in 2023, Australian military and civilian personnel will be embedded in US and
UK nuclear-powered submarine programs with an increase in visits of these
vessels to Australian ports
- as
early as 2027, accelerated rotations of UK and US nuclear-powered submarine
port visits to Australia will occur to establish sovereign capability
- in
the early 2030s, Australia to purchase 3 (and up to 5) Virginia class
nuclear-powered submarines from the US
- in
the late 2030s, UK to deliver to Australia the first nuclear-powered submarine
model to be known as SSN-AUKUS
- in
the early 2040s, Australia will deliver the first Australian-built SSN-AUKUS to
the Royal Australian Navy (RAN).
On the same day, the Defence Minister Richard Marles
confirmed that Australia had committed to full stewardship of the naval nuclear
reactors and would build a facility on Defence land to store the dismantled
reactors, high-level radioactive waste and spent nuclear fuel.[14]
The Minister said that a process by which the site for the facility will be
identified, on current or future Defence land, would be announced within a
year.
At the same time, the Defence Minister said that the ‘best
estimate of the cost [of acquiring the SSNs] is 0.15% of GDP through the life
of the program’.[15]
On that day, Senator David Shoebridge, the Australian Green’s Defence
spokesperson, claimed the cost of acquiring the SSNs would be more than $368
billion.[16]
This was based on a costing by the Parliamentary Budget Office, using
information provided by the Department of Defence.[17]
A new
submarine agency and regulator
On 6 May 2023, the Defence Minister announced the intention
to establish the Australian Submarine Agency (ASA) and the Australian
Nuclear-Powered Submarine Safety Regulator (ANPSSR).[18]
The ASA is to sit within the Department of Defence and will be responsible for
‘cradle-to-grave management’ of the SSNs. 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.[19]
The Minister described the regulator as being ‘independent
of Defence and the Australian Defence Force’.[20]
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.
The 2023–24 budget provided substantial funding to
support the establishment and on-going operation of the ASA, along with an
Independent Monitor and Advisor.[21]
The budget also provides funding across a range of government departments to
support initial regulatory activities, including the development of regulatory
standards and frameworks, and non-proliferation safeguards arrangements.
In evidence to a Senate inquiry in relation to the Private
Senators’ Environment
and Other Legislation Amendment (Removing Nuclear Energy Prohibitions) Bill
2022, the Chief Executive Officer of the Australian Radiation Protection and Nuclear
Safety Agency (ARPANSA) indicated that the amendments proposed by the
Defence Legislation Amendment Bill ‘seek to enable ARPANSA in the short term to
have a regulatory role in the space until Defence is able to establish the
defence nuclear submarine regulatory agency’.[22]
Moreover in a submission to the Senate inquiry in relation to the Defence
Legislation Amendment Bill, the Chief Executive Officer said:
ARPANSA will be part of a system of regulation for the
nuclear-powered submarine program. Although ARPANSA will not be the regulator
for the submarines, it will work with the Australian Nuclear-Powered Submarine
Safety Regulator, once established, to ensure nuclear safety and radiation
protection for the Australian public and the environment.[23]
What
facilities and infrastructure will be involved
Based on the various announcements in 2022 and 2023 – in
addition to the acquisition of the submarines themselves – the following
facilities and infrastructure will be significantly refurbished, or established
from first principles, to facilitate various parts of the SSNs program:
- an
extensive $8 billion 10-year refurbishment of HMAS Stirling,
a Royal Australian Navy (RAN) base located on Garden Island in Perth WA, to
support ‘Submarine Rotational Force – West’; UK and US nuclear-powered
submarines will rotate through the base from 2027, allowing Australian
submariners to ‘develop at-sea experience with naval-nuclear propulsion while
Australian maintenance personnel will support these submarines at shore’[24]
- the
establishment of an east coast submarine base, with ‘preferred sites’
identified as Brisbane, Newcastle and Port Kembla[25]
- an
extensive refurbishment of the existing Osborne Naval Shipyard SA, including
acquisition of adjacent land, to support domestic SSN construction[26]
- the
establishment of one or more purpose-built facilities on current or future
Defence land for the interim storage and permanent disposal of
intermediate-level waste and high-level waste, including spent nuclear fuel.[27]
The Minister for Defence has indicated that the naval
nuclear propulsion plants will be received as sealed units for installation
within the submarine infrastructure.[28]
With respect to radioactive waste, a Department of Defence
Fact Sheet indicates that radioactive waste from the SSNs will comprise
‘radioactive waste with lower levels of radioactivity generated by day-to-day
submarine operations and maintenance. And radioactive waste with higher levels
of radioactivity, including spent fuel, which is produced when submarines are
decommissioned at the end of their service life’.[29]
The Fact Sheet states that ‘operational radioactive waste will be stored
on Defence sites in Australia’.[30]
Australia’s
nuclear non-proliferation and safeguards obligations
This section provides a brief summary of the most relevant
international treaties and complementary agreements, and an outline of some of
the main issues and concerns in respect to non-proliferation as it pertains to
Australia’s nuclear submarine program.
Pillar 1 of
AUKUS and Australia’s international obligations
Under Pillar 1 of the AUKUS agreement, Australia will be
the first Non-Nuclear Weapons State (NNWS) party to the 1970 Treaty
on the Non-Proliferation of Nuclear Weapons[31]
(NPT) to acquire weapon-grade fissionable material[32]
and naval nuclear propulsion reactors outside of safeguards for the military
purpose – albeit non-explosive – of operating nuclear-powered submarines. It is
also the first time since the 1958
UK-US Mutual Defence Agreement that the US has agreed to
transfer its naval nuclear reactor technology to another country.[33]
Only the 5 countries authorised by the NPT to possess
nuclear weapons (‘P5 states’) and India, a Nuclear Weapons State (NWS) that is
a non-signatory to the NPT, have deployed submarines powered by naval
nuclear propulsion.
According
to the IAEA, nuclear-powered submarines, their reactors, fuel, technology
and inherent infrastructure and activities, are for military or non-peaceful
activities – ‘non-peaceful use’.[34]
The Australian
Government has emphasised that it will continue to comply with the
provisions of the NPT and the IAEA framework and that it has no intention of
possessing nuclear weapons. The Government has also assured that it will not
equip nuclear submarines with nuclear weapons.[35]
All three Party States to the AUKUS agreement have committed to ensuring that
the highest non-proliferation standards are met, and that they would negotiate
from their respective positions on IAEA safeguards.[36]
Outline of relevant international
framework
Under the auspices of the United Nations and the IAEA,
several international agreements and stringent standards have been developed to
manage longstanding concerns about proliferation of nuclear weapons.
Treaty on
the Non-Proliferation of Nuclear Weapons (NPT)
The NPT is based on the
three pillars, with Pillar I as the primary aim and Pillars II and III
intended to serve Pillar I. The pillars are: nuclear non-proliferation (Pillar
I), nuclear disarmament (Pillar II), and right to peacefully use nuclear energy
(Pillar III).
Articles I to IV of the NPT are of most relevance
to naval nuclear propulsion.
Articles I and II
seek to prevent the proliferation of nuclear weapons beyond the existing
signatory Nuclear Weapons States (NWS) by prohibiting a NWS from aiding the
acquisition or supply of nuclear weapons to any other entity and prohibiting a
Non-Nuclear Weapons State (NNWS) from acquiring nuclear weapons or their
supporting technologies.
Article III
sets out the requirements for a comprehensive safeguards and verification
regime ‘with a view to preventing diversion of nuclear energy from peaceful
uses to nuclear weapons or other nuclear explosive devices’.
It applies to ‘all source or special fissionable
material’ and ‘in all peaceful nuclear activities within the territory
of such State, under its jurisdiction, or carried out under its control
anywhere’ [emphasis added].[37]
Under Article III of the NPT, the IAEA is entrusted
with key responsibilities as the international safeguards inspectorate. As
stipulated in IAEA Statute, Article II (Objectives), the IAEA is
prohibited from being involved to ‘further any military purpose’.[38]
The IAEA has a specific verification role in accordance with legally binding
agreements between the IAEA and State Parties. For the Agency to draw
conclusions that all nuclear material remained in peaceful nuclear
activities,[39]
it must verify the non-diversion of declared nuclear material and also
provide assurances as to the absence of undeclared nuclear material and
activities in a State. Verification includes monitoring using a register of
nuclear material and facilities, containment and surveillance mechanisms, and
on-site inspections and visits.[40]
Australia’s safeguards agreements are:
Importantly for this Bill, Article III does not
require the imposition of safeguards in the transfer or withdrawal of nuclear
material for what is known as a ‘non-proscribed, non-peaceful
nuclear activity’ as stipulated in the safeguards agreement intended as
complementary to Article III, in Paragraph 14 of INFCIRC/153 (Corr.) and
in the equivalent Article 14 of INFCIRC/271 for Australia’s safeguards
agreement (CSA).
Article IV permits all
Parties to the NPT to have the right to develop research, production and use of
nuclear energy for peaceful purposes, and have the right to exchange equipment,
materials and scientific and technological information for the peaceful uses of
nuclear energy.
NPT parties have the responsibility to
implement Article IV in a way that ‘not only preserves NPT compliant
parties’ right to develop peaceful uses of nuclear energy, but also ensures
against abuse of this right by States Party pursuing nuclear weapons
capabilities’. The NPT establishes no
right to receive any particular nuclear technology from other States Party –
and most especially, ‘no
right to receive technologies that pose a significant proliferation risk’.[43]
South
Pacific Nuclear Free Zone Treaty
The South
Pacific Nuclear Free Zone Treaty[44]
(SPNFZ Treaty; also Treaty of Rarotonga) obliges Australia to maintain at the regional level, the continued
importance of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT)
(Preamble to the SPNFZ Treaty). This includes NNWS’ commitments not to
manufacture, possess, acquire or have control of nuclear weapons (Article 3), to conduct peaceful nuclear activities (Article 4), and ‘to support
the continued effectiveness of the international non-proliferation
system based on the NPT and the IAEA safeguards system’ (Article 4(b)). The Treaty contributes to nuclear non-proliferation and
disarmament by preventing the stationing of nuclear explosive devices
(weapons) within the South Pacific by member states (Article 5), whilst
allowing for Parties to decide whether to allow visits by foreign ships and
aircraft to its ports and airfields.[45] The
Treaty also includes an undertaking by States Parties to prevent nuclear
testing in their territories (Article 6) and to keep the Treaty zone in the South Pacific and the Australian continent free of dumping of radioactive wastes and other radioactive
matter at sea (Article 7).[46]
Currently, the United States has
not ratified the protocols of the Treaty of Rarotonga, unlike China,
France, Russia and UK.[47]
Under the protocols, the UK:
- is
bound by the prohibition on manufacture, stationing,
and testing of any nuclear explosive device and the application of IAEA
safeguards within the territories located in the Treaty zone for which it is
internationally responsible (Protocol 1)
- has
undertaken not to use or threaten to use any nuclear explosive device against
any Party to the Treaty or against any territory within the Treaty zone for
which it is internationally responsible (Protocol 2) and
- is
obligated not to test any nuclear device anywhere within the
zone (Protocol 3).[48]
Issues of
concern
Pillar 1 of the AUKUS agreement has reinvigorated debate
on nuclear proliferation concerns among the international community. In particular there has been discussion of how
to safeguard the transfer of military-grade
nuclear reactors, highly sensitive nuclear propulsion technology,[49] and the Highly Enriched Uranium (HEU)
(which is defined as special fissionable material within the terms of the NPT),[50] as well as their dismantling and disposal process.[51] For example, it has been suggested that, by
expanding the use of HEU, the AUKUS agreement may undermine efforts toward HEU
minimisation and contribute to stalling a future Fissile
Material Cut-Off Treaty (FCMT).[52]
In particular, various countries and non-proliferation
experts have raised concerns that Australia’s acquisition of SSNs will set a
negative precedent in the non-proliferation regime in three ways. Each of these
is discussed below.
Maintaining non-proliferation standards,
procedures and credibility
For the reasons outlined below, some states[53]
and arms control experts, among them the former IAEA Head of Verification and
Security Policy Coordination, Tariq Rauf, perceive that the three AUKUS states
(and the IAEA Secretariat) have been less than transparent in their preparation
of the necessary arrangements and in the presentation of the nuclear submarine
agreement to the Board of Governors (and IAEA member states for approval).[54] This has led to
the conclusion that the agreement was presented as a fait accompli, in
contravention of the established IAEA procedures with respect to any
substantive change in IAEA safeguards agreements.[55]
Rauf, among others,
warn that without sufficient consultation and negotiation, the AUKUS agreement
may undermine Australia’s credibility in the
international community as a leading State maintaining the highest
non-proliferation standards.[56]
Use of the
NPT Article III ‘loophole’ – the paragraph 14 safeguards exemption
It has been argued by some
non-proliferation experts that in the receipt of large quantities of
HEU-based naval nuclear fuel and military reactors, Australia may seek to rely
upon paragraph 14 of INF/CIRC153
to exempt it from safeguards.[57] As is generally accepted among nuclear
arms control specialists, Article III of the NPT has a ‘loophole’ which allows
for a state’s discretion to use nuclear material for non‑proscribed
non-peaceful activities which can be exempt from safeguards under the
agreement. Tariq Rauf, for example, reiterates a concern held by
arms control experts that there is currently ‘not any definition or interpretation of the paragraph 14
exemptions, nor of what is meant by “non-peaceful” and “non-proscribed”
military activities’, and also ‘no understanding of, or procedures to,
implement paragraph 14 provisions’.[58]
The potential for proliferation using the
paragraph 14 safeguards exemption can already be seen in the interest expressed
by some other countries in nuclear-powered submarine acquisition, including
from Brazil, Canada, Iran, Japan, and South Korea.[59]
In 1991, Argentina and Brazil submitted the Quadripartite Agreement between Argentina,
Brazil, the Brazilian-Argentine Agency for Accounting and Control of Nuclear
Materials and the International Atomic Energy Agency for the Implementation of
Safeguards involving the application of special procedures for the use of
nuclear propulsion.[60]
Some States perceive the expanded use of HEU under the AUKUS agreement as
already a form of proliferation, increasing the probability risk of such
nuclear material being diverted to nuclear weapons acquisition and potential use.[61]
Transfer of
sensitive information and material in accordance with NPT Article IV
The State Parties to the Exchange of Naval Nuclear Propulsion Agreement (EPPNIA) have reaffirmed (in Article IV) their respective
obligations under the NPT that they will conduct themselves in accordance with
the IAEA’s duties under the NPT to ensure control and continuity of
knowledge to provide full safeguards and the respective laws
of each Party state.[62]
Due to the highly classified
access requirements of the reactor suppliers and the protection of classified
military operating systems by the RAN, it is unlikely that Australia will be
able to declare the total quantity and composition of the unsafeguarded HEU
naval fuel or provide full access to IAEA inspectors.[63]
Further, as some nuclear researchers
maintain, due to the close link between civil and military nuclear industries to develop
the industrial base and engineering skills to support nuclear submarine
propulsion systems across the three AUKUS countries,
Australia may need to establish a ‘firewall’ between military and civil aspects of its nuclear program.[64]
Current
Commonwealth regulatory framework for nuclear activities
The current Commonwealth regulatory framework for nuclear actions
is complex, with different aspects managed or regulated by different
departments and agencies, and specific activities approved by different
Ministers or designated persons. Each state and territory has a separate
regulatory framework, some of which prohibit certain nuclear activities,
including the construction and operation of nuclear power plants, and disposal
of high-level nuclear waste.[65]
Importantly, this framework has been developed to support
the peaceful use of nuclear materials; that is, for civil purposes rather than
for defence or military purposes.
This section provides a brief summary of the most relevant
Commonwealth agencies and Acts, while a more detailed description of approvals
under the ARPANS Act and EPBC Act is provided in the ‘Key issues
and provisions’ section.
Australian
Radiation Protection and Nuclear Safety Agency
The Australian
Radiation Protection and Nuclear Safety Agency (ARPANSA) is established by
the ARPANS Act. The Act aims to ‘protect the health and safety of
people, and to protect the environment, from the harmful effects of radiation’.[66]
The Act applies to controlled persons, defined as Commonwealth
entities (defined expansively as including the Commonwealth, public
corporations and companies where the Commonwealth has a controlling interest), Commonwealth
contractors and their employees, and persons in a prescribed
Commonwealth place.[67]
It also applies to permitted persons, who may be specifically authorised
by the controlled person to do certain things.[68]
It therefore does not apply to private entities or persons (other than permitted
persons).
The Act establishes a licensing system for controlled
facilities, controlled apparatus and controlled material.[69]
Licenses are granted by the Chief Executive Officer (CEO) of ARPANSA. However,
the Act specifically prohibits the CEO from issuing a licence that would
authorise the construction or operation of certain nuclear installations,
including a nuclear power plant.[70]
The ARPANS Act states that the intention of
Parliament is that the Act not exclude the operation of the Nuclear
Non-Proliferation (Safeguards) Act 1987 to the extent that the Act is
capable of operating concurrently with the ARPANS Act and thus permits
may be required under both Acts.[71]
It also provides that a power, discretion, duty or function of a person may
only be exercised to the extent that it is not inconsistent with Australia’s
obligations under the relevant international agreements.[72]
Minister
for the Environment
The EPBC Act is the principal Commonwealth
environmental protection law. The Act establishes a regime for the
environmental impact assessment and approval of actions (referred to as controlled
actions) that has, will have or are likely to have a
significant impact on matters
of national environmental significance (MNES). Nuclear actions
are one of the nine MNES.[73]
In brief, the Act requires a person proposing to take an
action that has, will have or is likely to have a significant impact on a MNES
to refer the proposed action to the Minister for the Environment for
consideration as to whether the action is a controlled action.[74]
If the Minister decides that the action is a controlled action, being
one that has, will have, or is likely to have a significant impact on a MNES,
the Minister will also determine the method by which the environmental impacts
of the proposed action will be assessed.[75]
The Minister may then make a decision to approve (or not) the action, with or
without conditions.[76]
The Act provides for a range of circumstances in which an
approval may not be required, including exemptions for defence and national
security. These are discussed in the ‘Key issues and provisions section’.
The Act is administered by the Department of Climate
Change, Energy, the Environment and Water (DCCEEW). Decisions under the Act are
made by the Minister or, in some circumstances, the Minister’s delegate.[77]
Australian
Radioactive Waste Agency
The Australian
Radioactive Waste Agency (ARWA) was established in July 2020 to manage all
functions of the proposed National Radioactive Waste Management (NRWM)
facility.[78]
The NRWM facility is intended to be for the permanent disposal of low-level
radioactive waste and temporary storage of intermediate-level
waste. The ARWA will be responsible for establishing a separate facility to
permanently dispose of intermediate-level waste.[79]
The establishment of the low- and intermediate-level
radioactive waste facilities is to occur in accordance with the National
Radioactive Waste Management Act 2012 (NRWM Act). That Act gives
effect to Australia’s obligations under the Joint
Convention on the Safety of Spent Fuel Management and on the Safety of
Radioactive Waste Management which is concerned with civilian nuclear
activities.[80]
The NRWM Act adopts the definition of controlled
material provided in the ARPANS Act; however, amendments to the Act
in 2021 extend the application of the Act to controlled material that is
generated as a result of activities that relate to the defence of Australia.[81]
The Act essentially overrides existing laws in state and
territories to allow the Commonwealth, a Commonwealth entity, a Commonwealth
contractor, or an employee or agent thereof, to ‘do anything necessary for or
incidental to the purpose of selecting a site on which to construct and operate
a facility’.[82]
The relevant Minister has an absolute discretion to declare a site for the
facility.[83]
Australian
Safeguards and Non-Proliferation Office
The Australian
Safeguards and Non-Proliferation Office (ASNO), situated within the
Department of Foreign Affairs and Trade, administers the Nuclear
Non-Proliferation (Safeguards) Act 1987 (Safeguards Act). The Safeguards
Act gives effect to Australia’s obligations under:
- the
Treaty on the Non-Proliferation of Nuclear Weapons
- Australia’s
Comprehensive Safeguards Agreement and Additional Protocol with the IAEA
- bilateral
agreements between Australia and various countries concerning the transfer of
nuclear items (such as uranium ores[84])
and cooperation in peaceful uses of nuclear energy
- the
Amended Convention on the Physical Protection of Nuclear Material[85]
- the
International Convention for the Suppression of Acts of Nuclear Terrorism.[86]
The Act establishes a system for the grant of permits for
the possession and transport of nuclear material and associated items,
and the grant of authorities relating to the communication of information about
sensitive nuclear technology.[87]
Permits and authorities are granted by the Minister for Foreign Affairs. 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.[88]
Australian
Nuclear Science and Technology Organisation
The Australian Nuclear
Science and Technology Organisation (ANSTO) was formally established as the
Australian Atomic Energy Commission in April 1953, before being established as
ANSTO in 1987.[89]
ANSTO is responsible for providing expert and technical advice to government
relating to nuclear science, technology and engineering. It also conducts
research and development in relation to nuclear science and technology, and
operates Australia’s only nuclear reactor, the Open Pool
Australian Light water (OPAL) reactor. The reactor produces commercial
quantities of radioisotopes for use in medical, agricultural and industrial
applications.
Committee consideration
Senate
Foreign Affairs, Defence and Trade Legislation Committee
The Bill has been referred to the Senate Foreign Affairs,
Defence and Trade Legislation Committee for inquiry and report by 9 June 2023
(referred to in this Digest as the ‘Senate inquiry’). Details of the inquiry
are on the Inquiry
homepage.
At the time of writing this Digest, 117
submissions had been published on the inquiry homepage. Many submissions
discuss a range of concerns with Pillar 1 of the AUKUS agreement, rather than
engaging with the provisions of the Bill itself.
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing, the Senate Standing Committee for
the Scrutiny of Bills is yet to consider the Bills.
Policy
position of non-government parties/independents
Liberal-National
Coalition
The Opposition Leader Peter Dutton, Defence Minister at
the time of the initial announcement of the AUKUS agreement in September 2021,
described the program announced by the Albanese Government as ‘an endorsement
of the Coalition’s decision to pursue the acquisition of nuclear-powered
submarines’.[90]
Mr Dutton has said ‘we have to make sure that there is transparency and honesty
with the Australian people about the cost involved in AUKUS’.[91]
Shadow Defence Minister Andrew Hastie MP has welcomed the
AUKUS agreement ‘but said questions about the timing, sequencing, budgetary
costs, as well as the future of Australia’s six existing Collins class
submarines, remained’.[92]
In his second reading speech to the Bill, in May 2023, Mr
Hastie said the Coalition supports the Bill unamended as they ‘see this Bill as
vital to the national interests and [Australia’s] long-term defence
capability’.[93]
Mr Hastie indicated that the passage of the Bill was necessary to enable
‘urgent works’ at HMAS Stirling in WA and the Osborne Naval Shipyard in
SA.
Australian
Greens
The Australian Greens have a long-standing
policy against nuclear power, weapons and uranium mining. The policy
includes the ‘closure of Australia’s ports and territorial waters to nuclear‑powered
or nuclear-armed vessels’.[97]
Greens MPs and Senators have opposed the AUKUS proposal, arguing it brings
Australia closer to war and ‘will force deep cuts in critical spending on
health, education, housing and First Nations justices for decades to come’.[98]
On 27 September 2022, Senator Jordan Steele-John tabled a
petition opposing the AUKUS agreement signed by 26,700 community members on
behalf of the Independent and Peaceful Australia
Network (IPAN).[99]
Concerned
Government MPs
Fremantle MP Josh Wilson is reported to have questioned
‘how nuclear waste would be safely stored and warned the deal could undermine
the nuclear non-proliferation treaty’.[100]
Mr Wilson is ‘a long-time advocate for nuclear disarmament and
non-proliferation’.[101]
In a March 2023 address to Parliament, Mr Wilson indicated he ‘was not completely
convinced that nuclear propelled submarines are the only or best answer to our
strategic needs’ and observed that no other country had yet solved the issue of
managing high-level radioactive waste.[102]
House
Independents and Cross-bench Senators
Independent members including Zoe Daniel, Dr Monique Ryan,
Dr Sophie Scamps, Allegra Spender, Kylea Tink, and Senator David Pocock are
reported to have sought assurances that the cost of the AUKUS program ‘will not
eat into spending on frontline services or hinder the nation’s clean energy
transition’.[103]
These parliamentarians have also raised concerns about transparency and absence
of ‘detailed public discussion of its rationale and alternative options’ for
Australia’s defence.[104]
Jacqui Lambie Network Senators, Jacqui Lambie and Tammy
Tyrell, along with Senator David Pocock, have questioned the cost of the SSNs
program, particularly in the context of planned stage 3 tax cuts.[105]
Senator Lambie has said she is ‘absolutely supportive of the nuclear
submarines’ and was of the view that the announcement ‘unlocks the door’ to a
nuclear industry in Australia.[106]
Senator Pauline Hanson is reported to strongly support the
purchase of nuclear submarines.[107]
Position of
major interest groups
Numerous major interest groups have raised a broad range
of policy and technical concerns about Pillar 1 of the AUKUS agreement. Some
major interest groups have also made submissions to the Senate inquiry on the
Bill.
Arms
control non-proliferation experts and strategists
Among the initial responses to the AUKUS announcement on
16 September 2021, political commentators Michelle Grattan and Patricia O’Brien
observed how the lack
of transparency and secret negotiations effectively led to the presentation
of a ‘fait accompli’ to the Australian public. This was also the
perception expressed among some
regional countries of Australia.[108]
In a comprehensive summary of the proliferation risk posed
by the AUKUS nuclear submarine program, the former IAEA Head of Verification
and Security Policy Coordination Tariq Rauf expressed similar concerns:
AUKUS states apparently have initiated non-transparent and
secret discussions with the IAEA on how best to take advantage of a “grey area”
or “loophole” in IAEA comprehensive safeguards to exclude weapon-grade
highly-enriched uranium from Agency safeguards.[109]
Rauf called for ways to close the Paragraph 14 loophole to
‘strengthen the effectiveness and improve the efficiency of the IAEA safeguards
system, not to weaken it ...’.[110]
Other proliferation experts, including James M. Acton,
co-director of nuclear policy at the Carnegie Endowment for International
Peace, and nuclear proliferation expert and Emeritus Professor at Princeton
University Frank N. von Hippel, maintain that the AUKUS submarine program will set
a damaging precedent that some would-be proliferator countries may use to
acquire fissionable materials (such as HEU-fuelled naval reactors and cores)
outside IAEA safeguards for military purposes.[111]
Australian Strategic Policy Institute (ASPI)-based
strategic analysts contend that Australia’s record on non-proliferation can
strengthen, rather than undermine, the nuclear non-proliferation regime.[112]
They support the definition of the AUKUS agreement as a ‘trilateral technology
accelerator... to increase the military power of each of our militaries’ rather
than a military alliance and cite Paragraph 10 of the Australia-UK-US
joint working paper to the NPT 2020 Review Conference, which proscribes
Australia from pursuing enrichment, reprocessing or fuel fabrication, and that
there will be no undeclared nuclear material or activity in Australia.
The Director of International and Security Affairs at the Australia
Institute, Allan Behm, RADM Peter Briggs and Cdre Paul Greenfield, however,
opine that ‘it is hard to imagine that some countries would not press for
intrusive inspection regimes to ensure that there is no tampering or diversion,
even if the propulsion plant were under the operational control of a third NWS
party’.[113]
In respect to the storage of nuclear submarine waste,
Emeritus Professor of Griffith University Dr Ian Lowe stated that neither
of Australia's two AUKUS partners have yet found a viable solution for the
long-term storage of intermediate-level and high-level nuclear waste.[114]
Environment
non-government organisations
Environment non-government organisations, such as the
Australian Conservation Foundation (ACF), Friends of the Earth and Greenpeace,
have each raised concerns in relation to a perceived lack of rigour and
transparency in relation to Pillar 1 of the AUKUS agreement and, relevant to
this Bill, express concern about the management of high-level radioactive
waste.[115]
For example, the ACF argues there has been a lack of ‘clarity about how the
Government intends to manage the resulting high level nuclear waste for the
thousands of years it remains radioactive’.[116]
Of particular relevance, ACF points to the lack of clarity
‘around both the short- and longer-term regulatory mechanisms for nuclear
submarines, in particular the delineation of roles and responsibilities between
ARPANSA and the proposed Australian Nuclear Powered Submarine Safety Regulator
(ANPSSR)’.[117]
In its submission to the Senate inquiry, Friends of the
Earth Adelaide stated that it ‘opposes the Bill in its entirety’ and argued
that the acquisition of SSNs would undermine the nuclear non‑proliferation
regime, create a risk of series nuclear accidents, and create ‘a nuclear waste
problem that will last for millennia’.[118]
Peace
non-government organisations
In submissions to the Joint Standing Committee on Treaties
inquiry into the Australia-US-UK Exchange of Naval Nuclear Propulsion
Information Agreement (ENNPIA), the International Campaign to
Abolish Nuclear Weapons (ICAN) and the Medical Association for the Prevention
of War (MAPW Australia) were highly critical of Pillar 1 of the AUKUS agreement
and that inquiry process.[119]
The MAPW expressed particular concern that the ‘AUKUS agreement has been negotiated in
secret, without public or parliamentary debate’ in which ‘certain foreign
governments are granted greater decision-making power in Australia than that of Australian citizens’.[120] The group pointed to
the lack of ‘complete assessment… of
how AUKUS interacts with domestic law or international obligations’ (such
as the SPNFZ, Missile Technology Control Regime, NPT).[121]
Both MAPW and ICAN identified Australia’s naval nuclear propulsion
as a ‘non-peaceful, non‑proscribed military activity’, and believe that
it would trigger Paragraph 14 of IAEA Information Circular 153, as it should be
considered ‘non-explosive military use’ and ‘military to military transfer’
(citing Rauf 2022). Specifically, MAPW took issue with the classification in ENNPIA
Article IV and the NIA of naval nuclear propulsion as a ‘peaceful application
of nuclear energy’, for which they offered a
definition preferred by some non-proliferation experts.[122]
The two groups argued that insufficient consideration of
the consequences of sharing naval reactor technology and weapons-grade fuel
undermined IAEA goals of restricting sensitive nuclear material and technology,
and the broader integrity of the wider non-proliferation regime.
The MAPW recommended that the ENNPIA (and NIA) ‘should have correctly classified
naval nuclear propulsion as a non-peaceful, non-proscribed military activity,
and more fully considered the issue of IAEA safeguards’ alongside a
regime to permit monitoring such nuclear material, while ICAN recommended
reinvesting the resources involved towards assisting Australia meeting ‘real
security’ demands in the region, ‘such as climate change and pandemics’. The
ICAN contended that a panoply of costs might be incurred from the nuclear
submarines program, including a potential war with China.
ICAN and MAPW, along with several submissions from
Australian citizens in ‘A
People’s Inquiry’ organised and published by the Independent and Peaceful
Australia Network (IPAN), expressed concerns about the compromise of
Australia’s sovereignty by the AUKUS submarine program.[123]
Unions
Numerous unions oppose the acquisition of SSNs. The
Australian Council of Trade Unions (ACTU) has ‘a longstanding policy of
opposition to nuclear power, nuclear waste and proliferation’ and supports ‘a
nuclear-free defence policy’.[124]
President of the ACTU Michele O’Neil has indicated the ACTU’s affiliates will
discuss the acquisition of SSNs over the coming months.
The Australian Manufacturing Workers Union, Construction,
Forestry, Maritime, Mining and Energy Union (CFMMEU), Electrical Trades Union
(ETU), Maritime Union of Australia (MUA), and Unions New South Wales have all
expressed their opposition to the AUKUS alliance and the acquisition of SSNs.[125]
In its submission to the Senate inquiry, the ETU submitted:
The ETU does not support the watering down of long-standing
nuclear prohibitions to allow for the acquisition of nuclear-powered
submarines. We hold serious concerns that the erosion of these prohibitions for
military technology undermines the peaceful intent of the Treaty on the
Non-Proliferation of Nuclear Weapons, presents a safety risk to workers and
sailors, and risks stranding Australia with dangerous high-level nuclear waste
requiring costly management for tens of thousands of years.[126]
Financial
implications
The Explanatory Memorandum to the Bill states ‘the
amendments in the Bill will have no significant financial impact on
Commonwealth expenditure or revenue’.[127]
However, it is estimated that the SSNs component of the
broader AUKUS program will cost between $268 billion and $368 billion
over the next 30 years.[128]
Information provided by the Department of Defence suggests that the upper
estimate includes a contingency of $123 billion.[129]
According to the Minister for Defence, ‘Defence spending as a proportion of GDP
will lift above its current trajectory to be 0.2 per cent higher by 2032–33’.[130]
The 2023–24 Budget provides ‘$4.5 billion over
10 years from 2023–24 (and $428.7 million per year ongoing) to
support the initial steps in Australia’s acquisition of a conventionally-armed,
nuclear powered submarine capability’.[131]
This is split across a range of measures, including ‘$87.2 million over
2 years from 2023–24 to support initial regulatory activities and the
development of regulatory standards and frameworks, and non-proliferation and
safeguards arrangements’ [emphasis added].[132]
That funding is allocated across a range of existing nuclear agencies and
departments and includes $7.9 million to establish the Australian
Nuclear-Powered Submarine Safety Regulator (ANPSSR).
For more information see the following Parliamentary
Library Budget Review articles:
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
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[133]
Parliamentary
Joint Committee on Human Rights
At the time of writing, the Parliamentary Joint Committee
on Human Rights had not considered the Bill.
Key issues
and provisions
The purpose of the Bill is to amend the ARPANS Act
and the EPBC Act to clarify that the current prohibition on the issue of
a facility licence for, or the approval of an action involving the construction
and operation of, certain nuclear installations would not apply in the
case of a ‘naval nuclear propulsion plant related to the use of a
conventionally-armed, nuclear-powered submarine’.
This would ensure that the CEO of ARPANSA and the Minister
for the Environment could exercise their regulatory powers and perform
functions in respect of conventionally-armed, nuclear powered submarines.
According to the Explanatory Memorandum:
these amendments are necessary to enable decisions to be made
in relation to activities for the nuclear submarine enterprise ... 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.[134]
Amendments
to the ARPANS Act
The ARPANS Act establishes a licensing scheme for:
- the
possession of nuclear material or an associated item
- the
construction, operation and decommissioning of controlled facilities and
- the
remediation of prescribed legacy sites.[135]
The Act prohibits a controlled person from
undertaking a range of activities relating to a controlled facility
unless the controlled person is authorised to do so by a facility
licence issued by the CEO of ARPANSA or is exempted from requiring a licence by
the regulations.[136]
However, the Act also prohibits the CEO of ARPANSA from issuing a licence in
relation to certain nuclear installations.
Proposed
amendment
Subsection 10(1) currently provides that nothing in
the Act is taken to authorise the construction or operation of certain nuclear
installations, including a ‘nuclear power plant’ (existing paragraph 10(1)(b)).
Subsection 10(2) then provides that the CEO of ARPANSA must not issue a
licence under section 32 in relation to the specified nuclear
installations. Section 32 provides for the issue of licences for controlled
facilities, including site preparation, construction, possession and
control, operation, and decommissioning, disposal or abandoning of a controlled
facility.[137]
Items 1 and 2 would amend section 10
by inserting new subsection 10(1A) and making a corresponding consequential
amendment to existing subsection 10(2).
Proposed subsection 10(1A) would clarify that the
prohibition in existing paragraph 10(1)(b) on authorisation of a
‘nuclear power plant’, ‘does not apply to a naval nuclear propulsion
plant related to use in a conventionally-armed, nuclear-powered submarine’.
The effect of the proposed amendment is to clarify that
the CEO of ARPANSA could issue a facility licence under section 32 of
the Act relating to construction or operation of a ‘naval nuclear propulsion
plant’.
Defence and
national security exemptions
The ARPANS Act enables the ad hoc
declaration of exemptions from the requirements to obtain licences from the CEO
of ARPANSA relating to defence and national security. It provides that the
application of the Act cannot prejudice Australia’s defence or national
security, and allows the Chief of the Defence Force and the Director-General of
Security (the head of ASIO) – after consultation with the Minister for Health
and Aged Care – to declare, by legislative instrument, that:
- specified
provisions of the Act or the regulations do not apply, or apply subject to
modifications, in relation to specified members of the Defence Force[138]
- specified
provisions of the Act or the regulations do not apply, or apply subject to
modifications, in relation to a premises or workplace under the control of the
Director-General, a person employed under section 84 of the Australian Security
Intelligence Organisation Act 1979, or the performance of work by a
person carrying out functions under section 17 of that Act.[139]
The Bill does not affect the operation of these exemption
provisions.
Amendments
to the EPBC Act
The EPBC Act is the principal Commonwealth environmental
protection law. It requires approval and environmental impact assessment of ‘actions’
that are likely to have a
significant impact on matters
of national environmental significance (MNES). Nuclear actions
are one of the nine MNES.
Nuclear actions are defined as any of:
(a) establishing or significantly
modifying a nuclear installation;
(b) transporting spent nuclear fuel or
radioactive waste products arising from reprocessing;
(c) establishing or significantly
modifying a facility for storing radioactive waste products arising from
reprocessing;
(d) mining or milling uranium ore;
(e) establishing or significantly
modifying a large‑scale disposal facility for radioactive waste;
(f) de‑commissioning or
rehabilitating any facility or area in which an activity described in
paragraph (a), (b), (c), (d) or (e) has been undertaken;
(g) any other
action prescribed by the regulations.[140]
A nuclear installation is then defined as:
(a) a nuclear reactor for research or
production of nuclear materials for industrial or medical use (including
critical and sub‑critical assemblies);
(b) a plant for preparing or
storing fuel for use in a nuclear reactor as described in paragraph (a);
(c) a nuclear waste storage or
disposal facility with an activity that is greater than the activity level
prescribed by regulations made for the purposes of this section;
(d) a
facility for production of radioisotopes with an activity that is greater than
the activity level prescribed by regulations made for the purposes of this
section.[141]
Other terms defined in the EPBC Act include radioactive
waste, reprocessing, spent nuclear fuel, and large-scale
disposal facility.[142]
Nuclear actions are also addressed by Division 2.1
of Part 2 of the Environment
Protection and Biodiversity Conservation Regulations 2000 (the EPBC
Regulations). Regulation 2.01 provides, for the purposes of paragraph (g)
of the definition of nuclear action, that the term also includes
‘establishing, significantly modifying, decommissioning or rehabilitating a
facility where radioactive materials at or above the activity level [specified
in regulation 2.02 of the EPBC Regulations] are, were, or are proposed to be
used or stored’.
At present, the EPBC Act prohibits a constitutional
corporation, the Commonwealth, a Commonwealth agency, a person in trade or
commerce, or a person in a Territory (‘entities’) from undertaking a nuclear
action that has, will have or is likely to have a significant impact on the
environment.[143]
Notably, consideration of a significant impact is on the environment generally
and not limited to impacts on other MNES such as threatened
species and ecological communities, or Commonwealth
marine areas.
However, the EPBC Act provides a range of
circumstances in which a nuclear action would not require an approval or
could otherwise be authorised. These include:
- where
the Minister makes a written declaration that an action or class of actions
taken by the Commonwealth or a Commonwealth agency (inside or outside the
Australian jurisdiction) that has, will have or is likely to have a significant
impact on the environment inside or outside the Australian jurisdiction are
either (i) not subject to the requirement for approval because the Minister is
satisfied that it is necessary in the interests of Australia’s defence or
security, or (ii) not subject to the requirement for approval[144]
- where
an approval has been granted under Part 9 of the EPBC Act for
a nuclear action that is not the construction or operation of a
specified nuclear installation; that is, the normal assessment and
approval process[145]
- where
Part 4 of the EPBC Act allows the entity to take the action
without an approval under Part 9; that is, where the nuclear
action is an action covered by an accredited management arrangement or
accredited authorisation process (section 32), or an action covered
by a bioregional plan (section 37); see proposed amendment to
section 37J below))[146]
- where
the Minister has determined that section 21 and 22A are not ‘controlling
provisions’ and is satisfied that the action will be undertaken in a particular
manner[147]
- the
action is specified as an action subject to a special environmental assessment
process[148]
- where
the Minister for the Environment has agreed with a responsible person (such as
the proposed Australian Nuclear-Powered Submarine Safety Regulator) for
the adoption or implementation of a policy, plan or program that an assessment
be made of the impacts of actions under the endorsed policy, plan or program (Part
10 Strategic Assessments; see proposed amendment to
section 146M below)
- where,
on the request of a person proposing to take a controlled action, the Minister
for the Environment decides in the national interest to grant an exemption from
the environmental impact assessment and approval requirements in Part 3
or Chapter 4, where the national interest includes, but is not
limited to, Australia’s defence or security (section 158).
In its submission to the Senate inquiry, the DCCEEW
observed that Pillar 1 of the AUKUS agreement is expected to trigger assessment
under the EPBC Act as a Commonwealth action and, for some components, as
a nuclear action.[149]
The Department submitted:
DCCEEW also considered whether the exemptions under the
current framework were appropriate on national interest grounds under section
158 of the EPBC Act. It is our view that nuclear actions such as those proposed
within the conventionally armed nuclear submarine program should be subject to
an independent, rigour environmental assessment.
Ultimately, the regulatory approach taken to the nuclear
submarine program and associated nuclear infrastructure under the EPBC Act
will be a decision of the Minister for the Environment at the relevant point in
time.
Proposed
amendments
Replicating the proposed amendment to the ARPANS Act,
the Bill proposes to amend 4 sections of the EPBC Act by introducing a
series of identical clarifying subsections relating to the definition of nuclear
installation as it relates to a ‘nuclear power plant’.
Allowing
for approval of SSNs in accordance with bioregional plans
Items 3 and 4 would amend section 37J
by renumbering the section and adding new subsection 37J(2).
Section 37A provides that the Minister may declare
that an action or class of actions does not require an approval under Part 9
of the Act wholly or partly by reference to the fact that the taking of the
action or class of actions is in accordance with a bioregional plan. The
Minister may make a bioregional plan for a bioregion that is within a
Commonwealth area and the process of making the plan would involve public
consultation.[150]
A bioregional plan is not a legislative instrument and would therefore not need
to be tabled in Parliament.[151]
The declaration under section 37A may be made
subject to Subdivisions C and D of Division 3 of Part 4, which relevantly
include section 37J.
At present section 37J provides that a declaration
may not be made in relation to certain nuclear installations, including paragraph
(b) ‘a nuclear power plant’. Proposed subsection 37J(2) would
clarify that a ‘nuclear power plant’ does not include a ‘naval nuclear
propulsion plant related to use in a conventionally-armed, nuclear-powered
submarine’.
The effect of the amendment would be that the Minister for
the Environment could make a declaration that an action or class of actions
concerning a ‘naval nuclear propulsion plant related to use in a
conventionally-armed, nuclear-powered submarine’ does not require an approval
under Part 9 if the action or class of actions is in accordance with a
bioregional plan.
Clarifying
the scope of the prohibition on the approval of nuclear installations
Items 5 and 6 would amend section 140A
by renumbering the section and adding new subsection 140A(2).
Subsection 133(1) provides that the Minister may
approve a controlled action (such as a nuclear action). The approval may be
with or without conditions.[152]
At present section 140A provides that the Minister
must not approve an action consisting of or involving the construction or
operation of certain nuclear installations, including paragraph (b)
‘a nuclear power plant’. Proposed subsection 140A(2) would clarify that
a ‘nuclear power plant’ does not include a ‘naval nuclear propulsion plant
related to use in a conventionally-armed, nuclear-powered submarine’.
The effect of the amendment would be that the Minister for
the Environment could approve 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’.
Allowing
for approval of SSNs in accordance with strategic assessments
The EPBC Act provides for the making of strategic
assessments as a high-level industry or activity wide alternative to conducting
project-by-project environmental assessments. However, the Act currently limits
their availability in relation to certain nuclear installations.
Items 7 and 8 would amend section 146M
by renumbering the section and adding new subsection 146M(2).
Section 146 provides that the Minister may agree in
writing with a person responsible for the adoption or implementation of a
policy, plan or program that an assessment be made of the impacts of actions
under the policy, plan or program on matters protected by a provision of Part
3, being the environment generally in the case of nuclear actions.
Subsection 146B(1) provides that the Minister may,
subject to Subdivision C of Division 1 of Part 10, then approve the taking of
an action or class or actions in accordance with the endorsed policy, plan or
program. The proposed action would then be assessed and approved by the
responsible person, rather than the Minister for the Environment. The action is
then taken to have been approved under Part 9 of the EPBC Act.[153]
Subdivision C includes section 146M. At present
section 146M provides that the Minister must not approve a strategic assessment
in relation to certain nuclear installations, including paragraph (b)
‘a nuclear power plant’. Proposed subsection 146M(2) would clarify that
a ‘nuclear power plant’ does not include a ‘naval nuclear propulsion plant
related to use in a conventionally-armed, nuclear-powered submarine’.
The effect of the amendment would be that the Minister
could authorise a responsible person (such as the new Australian
Nuclear-Powered Submarine Safety Regulator) to undertake an assessment of
the impacts of an action or a class of actions in accordance with an endorsed
policy, plan or program if the action, or an action in the class of actions,
consists of, or involves the construction or operation of a ‘naval nuclear
propulsion plant related to use in a conventionally-armed, nuclear-powered
submarine’.
By way of comparative example, a strategic assessment
under Part 10 allows the assessment and approval of offshore
petroleum projects in Commonwealth waters by the National Offshore Petroleum Safety and
Environmental Management Authority (NOPSEMA) rather than requiring the
referral and approval of these projects under the EPBC Act.
Allowing
for entry into conservation agreements relating to SSNs
Item 9 would amend section 305 by adding new
subsection 305(2).
Subsection 305(1) provides that the Minister may,
on behalf of the Commonwealth, enter into an agreement with a person for the
protection and conservation of certain matters, including the environment, in
respect of the impact of a nuclear action in the Australian jurisdiction (paragraph
305(1)(f)).
Subsection 305(2) provides that the Minister must
not enter into a conservation agreement unless satisfied that the agreement
does not relate to the construction or operation of certain nuclear
installations, including subparagraph 305(2)(d)(ii) ‘a nuclear power
plant’. Proposed subsection 305(2A) would clarify that a ‘nuclear power
plant’ does not include a ‘naval nuclear propulsion plant related to use in a
conventionally-armed, nuclear-powered submarine’.
The effect of the amendment would be that the Minister for
the Environment could enter into a conservation agreement wholly or partly for
the protection and conservation of the environment that involves the
construction or operation of a ‘naval nuclear propulsion plant related to use
in a conventionally-armed, nuclear-powered submarine’.
Concluding comments
The Defence Legislation Amendment Bill does not amend
legislation administered by the Department of Defence. The Bill proposes to
amend provisions in the ARPANS Act and the EPBC Act to enable the
relevant regulators under those Acts to exercise their regulatory powers and
perform functions in respect of conventionally-armed, nuclear powered
submarines. It does this by clarifying the meaning of ‘nuclear power plant’ in
respect of nuclear installations, so that a ‘naval nuclear propulsion
plant related to use in a conventionally-armed, nuclear-powered submarine’ no
longer falls within existing prohibitions on the grant of licences or approval
of actions involving the construction or operation of a ‘nuclear power plant’
in those Acts.
The Minister for Defence has indicated that this Bill will
be the first of multiple tranches of legislation required to support the
implementation of Pillar 1 of the AUKUS agreement, Australia’s acquisition of conventionally-armed,
nuclear-powered submarines. The Government has indicated its intention to
establish a specialist regulator – the Australian Nuclear-Powered Submarine
Safety Regulator (ANPSSR) – to ‘regulate the unique circumstances associated
with nuclear safety and radiological protection across the life cycle of
Australia’s nuclear-powered submarine enterprise’, including associated
infrastructure and facilities.[154]
However, the difficulty for the Parliament in evaluating
this legislation is that the Government is yet to provide a clear roadmap of other
proposed changes to the existing legal framework for regulation of nuclear actions.
This would include explaining the scope of ANPSSR’s role, including in relation
to the independent and transparent assessment of the environmental and health
and safety aspects of regulation of nuclear naval propulsion, including the
management of high-level radioactive waste and spent nuclear fuel.
It seems logical to observe that if the longer term
intention is to create a specialist regulator, then there seems little point in
amending legislation to signal that existing nuclear regulators could assess
and make relevant decisions. This is because in the medium term, when that
regulator is established, it will then become necessary to remove relevant approval
tasks from the civilian regulators, unless available exemptions are applied in
order to remove those questions from them.
The proposed acquisition of conventionally-armed,
nuclear-powered submarines has raised a wide range of concerns among nuclear
non-proliferation experts, peace and environmental non-governmental
organisations, unions, and others. These concerns include a lack of
transparency in regard to Pillar 1 of the AUKUS agreement and its implementation
(including the significant budgetary implications), the potential undermining
of long-standing efforts to protect against the proliferation of nuclear
weapons and nuclear materials, health and safety of workers and submariners, risks
of nuclear accidents, and the management of high-level radioactive waste and
spent nuclear fuel.