This Bills Digest replaces a preliminary Bills Digest published on 22 May 2023 to assist in early consideration of the Bill.

Glossary

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:

• Agreement between Australia and the International Atomic Energy Agency for the Application of Safeguards in connection with the Treaty on the Non-Proliferation of Nuclear Weapons (1974)[41] (Comprehensive Safeguards Agreement (CSA), based on INF/CIRC153 1972)
• Protocol Additional to the Agreement between Australia and the International Atomic Energy Agency for the Application of Safeguards in connection with the Treaty on the Non-Proliferation of Nuclear Weapons (1997)[42] (Additional Protocol (AP), based on INFCIRC/540 1997).

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:

•    Defence funding
•    Nuclear
•    Public sector: new entities, and investments in companies.

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.