Chapter 2Key issues and Committee view
2.1This chapter canvasses the central issues raised by submitters and witnesses in relation to the Australian Naval Nuclear Power Safety Bill 2023 (the Bill). Submitters comments were directed predominantly on the more substantial bill, rather than the Australian Naval Nuclear Power Safety (Transitional Provisions) Bill 2023. As such, this chapter focuses primarily on analysing the provisions of the Bill.
2.2The main concerns raised by submitters and witnesses in relation to the Bill included:
whether the establishment of a new regulator to regulate the nuclear-powered submarine enterprise was necessary;
the independence of the Australian Naval Nuclear Power Safety Regulator (the Regulator);
the acceptance of foreign naval nuclear waste;
the limited reporting requirements;
the lack of public consultation requirements; and
other matters, including:
the Regulator’s interaction with the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA);
parliamentary scrutiny of subsequent regulations; and
claims of environmental damage caused by visiting nuclear-powered vessels.
2.3This chapter also outlines the Committee’s views and recommendations.
A separate regulator
2.4Some submitters questioned whether it was necessary to have a separate regulator and if the Regulator’s functions ought to instead be taken on by ARPANSA. As an established independent nuclear regulator with extensive experience, it was suggested that splitting the regulation of nuclear activity in Australia between two different statutory agencies was inefficient and could cause unnecessary overlap and stretching of resources.
2.5The Australian Shipbuilding Federation of Unions (ASFU) stated that Australia already faces challenges due to ‘Australia’s federated and fragmented radiation regulatory system’ and that ‘the creation of a new regulator will only exacerbate the existing regulatory issues’, therefore the regulatory powers should be given to ARPANSA.
2.6The International Campaign to Abolish Nuclear Weapons (Australia) (ICAN Australia) submitted that the regulation being undertaken by a new entity within the Department of Defence (Defence)—the organisation responsible for delivering the nuclear-powered submarine program—is ‘an entirely inappropriate and unacceptable sidelining and undermining of Australia's established independent nuclear regulatory and radiation protection organisation, ARPANSA’. Dr Tilman Ruff, board member of ICAN, stated:
We have an established independent regulator. It has developed significant capacity and experience over the years. It has functioned reasonably well in the issues that it has dealt with … It seems to me that the obvious and simple solution is probably the best one here: that ARPANSA will need to seriously expand its capacity to manage the projects proposed. But it's in the best position to do that. People with nuclear expertise don't grow on trees; they take a long time to develop. Australia doesn't have a lot of them. We're going to be scraping and scratching and trying to get people back from overseas to manage the nuclear submarine enterprise. All of that will be exacerbated by trying to establish a new agency and essentially duplicate functions that I think could be more efficiently, effectively and independently managed through strengthening the existing regulator.
2.7Similarly, Friends of the Earth Adelaide discussed the limited pool of relevant expertise available in Australia, stating:
… it will be difficult to establish a new organisation with the capacity to regulate the construction, operation, maintenance, decommissioning, storing and disposal of the proposed AUKUS submarines and their nuclear fuel. It seems inevitable that a significant proportion of the staff will be recruited from ARPANSA, potentially weakening that organisation. It can also be expected that a substantial number of staff will be recruited from overseas. That could further weaken Australian sovereignty and potentially even create security risks.
2.8On the other hand, ARPANSA explained that the introduction of nuclear-powered submarines fundamentally changes Australia’s nuclear landscape, therefore presenting new and expanded nuclear safety issues. As such, ARPANSA stated that a ‘dedicated naval nuclear power safety regulator that provides direct oversight of the submarine enterprise is a necessary step to address those issues’.
2.9Mr Alex Walsh, Chief Nuclear and Capability Officer at ASC Pty Ltd, agreed that there should be a separate regulator for Defence because the context within which naval nuclear submarines operate is different as they are mobile reactors which move from site to site rather than static reactors which require a different approach to regulation. Mr Walsh highlighted that the UK and US have similar regulatory frameworks:
… in the UK, there is a separate defence nuclear safety regulator, and in the US, Naval Reactors look after that as well, separate to the normal [Nuclear Regulatory Commission] in the US. So, there's precedent for this, and the situation works. Between them, the UK and the US have thousands of reactors and years of operation of naval nuclear plants without any nuclear incidents.
2.10According to its submission, BAE Systems has a long history working on UK Royal Navy nuclear submarines making it well placed to comment on the Bill reflecting on its experience working within the UK’s regulatory framework. BAE Systems submitted that there are strong similarities between the provisions of the Bill and the UK legislation. BAE Systems also noted that, in its experience, ongoing engagement between the Regulator and Defence is ‘critical to achieving coherency in the outcome’:
Without compromising the essential independence of the Regulator, such dialogue will ensure mutual clarity of intent and understanding both in the nature of submarine build activities that need to be undertaken and the framework of regulations necessary to ensure nuclear safety.
2.11BAE Systems Australia added:
It is … highly desirable that the life cycle of the SSN-AUKUS Program in Australia (through design, build, commission, operation, maintenance and disposal) be subject to regulatory norms, which are consistent with those that apply to the program in the United Kingdom and the United States.
2.12At a public hearing, Mr Craig Lockhart, Managing Director of Maritime at BAE Systems in the UK stated:
… the proposed framework is broadly consistent with that of the UK. I hear figures like 85 per cent alignment being quoted, with the remainder being areas for mutual improvement. So I would suggest from afar, from what we've been told so far, if it were aligned with the UK standard as we are used to, then we would see that being a very positive start to Australia's regulatory standards being adopted.
2.13Defence emphasised that the proposed legislation was developed with the need to balance a number of factors such as the military context, operational requirements, specialised expertise, and independence. Defence stated that the ‘underlying rationale for the creation of a new regulator was that the extant framework was never designed in contemplation of the unique hazards and risks associated with nuclear-powered submarines’. Therefore, a ‘dedicated naval nuclear power safety regulator that provides direct oversight of the submarine enterprise is a necessary step to address those issues’.
2.14Further, Defence submitted that the Government has made the decision for the Regulator to be a part of the Defence portfolio because it is necessary to ensure that the Regulator, while independent, ‘remains appropriately informed of and proximate to the military context, and ultimately, the construction, operation and maintenance of Australia’s most strategically significant naval capability’.
Committee view
2.15The Committee acknowledges that some submitters advocated for ARPANSA to expand its role to include the regulation of the nuclear-powered submarine enterprise.
2.16The Committee recognises ARPANSA’s extensive experience as Australia’s primary authority on radiation protection and nuclear safety, but emphasises the unique military context in which the nuclear-powered submarine enterprise will operate and will need to be regulated. The Committee notes that ARPANSA itself stated that the introduction of nuclear-powered submarines fundamentally changes Australia’s nuclear landscape, presenting new and expanded nuclear safety issues that necessitates the establishment of a dedicated naval nuclear power safety regulator.
2.17Furthermore, the Committee received evidence that the UK and US have similar regulatory models which also have separate defence nuclear safety regulators. The Committee is assured that the Bill’s proposed model represents the international norm and that not having a separate and dedicated regulator would put Australia out-of-step with its AUKUS partners. As a new adopter of nuclear-powered submarine technology, it is important that Australia takes on board the experience of its partners—experience that has shown the value of this approach.
Independence of the Regulator
2.18A key issue that was discussed across a number of submissions was the independence of the Regulator. Submitters were concerned that the operational independence of the Regulator could potentially be compromised because both the Regulator and those they are regulating—the operators of the nuclear-powered submarines—sit within Defence and report to the Minister for Defence. Others also raised concerns about the eligibility of who can fill the lead roles of the Director-General and Deputy Director-General.
2.19Many submitters referred to the advice provided by the Radiation Health and Safety Advisory Council (RHSAC) on the principles and attributes of an effective independent regulator for nuclear-powered submarines and urged the Government to consider this advice and amend the Bill accordingly. The RHSAC is established by the ARPANS Act and is responsible for advising the CEO of ARPANSA on emerging issues and matters of major public concern relating to radiation protection and nuclear safety. The RHSAC highlighted that independence of the regulatory authority is necessary to ensure that the regulator ‘cannot be influenced in its decision-making process by political or economic issues, or other unwarranted interferences and can exercise its functions effectively and efficiently’. The regulatory body should be able to make decisions in line with its statutory obligations for the regulatory control of facilities and activities and be able to perform its functions without undue pressure or constraint.
2.20The RHSAC referred to the International Atomic Energy Agency’s (IAEA) recommendation for ensuring regulatory independence, stating:
The regulator should be independent of the operators and departments overseeing any aspect of purchase, manufacture, maintenance, and operation of the program.It is noted that some of the more significant global nuclear and radiation incidents have arisen from inadequate separation of responsibilities from regulatory capture.
2.21Additionally:
If a regulatory body cannot provide information on safety and incidents at licensed facilities without the approval of another organisation, issues of independence and transparency will arise. Reporting arrangements should therefore enable the regulatory body to be able to provide safety related information to the Government and the public with the maximum amount of transparency.
2.22The Medical Association for the Prevention of War (Australia) (MAPW Australia) raised the concern that the Bill abandons the principle of independent regulation, highlighting that the Minister ‘will oversee not only the acquisition, delivery, use, governance, waste disposal, weapons non-proliferation and other aspects of the submarines, but also the regulation of their safety’.
2.23The Australian Conservation Foundation (ACF) agreed, outlining:
the independence of the regulator is a critical part of its effectiveness;
the Regulator should be independent of the operators and departments overseeing any aspect of purchase, manufacture, maintenance, and operation of the program; and
the Regulator should be independent in its safety related decision making and hold functional separation from entities having responsibilities or interests that could unduly influence its decision making.
2.24Some submitters also raised concern regarding a provision in the Bill which would allow the Minister to give the Regulator directions in the interest of national security and to deal with an emergency. Some submitters believed this provision would limit the independence of the Regulator and were concerned that the wording could be subject to broad interpretation. ACF, for example, submitted:
ACF is concerned by the possibility of Ministerial intervention in the operations of the proposed regulator. Clause 105 of the Bill provides the ability for the Defence Minister to issue a binding directive to the regulator should they be satisfied that this is "in the interests of national security". Ministerial satisfaction and national security can be subject to various constructions and interpretations and this very general power could lead to scenarios where the role of the proposed regulator is overly constrained with a resultant diminution in human and environment protection.
2.25During the Committee’s hearing, witnesses were also questioned about the potential impact of this provision:
Senator SHOEBRIDGE:Particularly given the minister is proposed under this bill to have the power to direct the regulator. If the defence minister is getting advice from Defence that they may want to push a particular boundary, and it may have a Defence related purpose for pushing a particular boundary, and then they're getting advice in relation to the regulator that may cause safety issues, having those two feeds into the same minister just seems to create a totally unnecessary and indeed dysfunctional conflict?
Dr Williams:Yes, and I think you're right. I think it depends on the legislation, the licence conditions and the authorisation conditions.
2.26In its submission, ARPANSA discussed the need for the ‘nuclear safety regulator to be independent of the operator of nuclear-powered submarines and their associated infrastructure and activities’, but accepted the need to consider the military context of the Bill. ARPANSA stated the Bill ‘strikes a balance between the operational needs of a strategic military capability and the requirement for full independence of the regulator’ and that it ‘appreciates the desirability of striking this balance’. ARPANSA acknowledged:
… that the regulator will be a statutory authority with a Director-General and Deputy-Director General functionally separate from the Australian Defence Force (ADF) chain of command and neither of these statutory office holders can be a member of the ADF. ARPANSA also acknowledges that the Bill makes it clear that authorised parties retain the prime responsibility for safety throughout the lifetime of facilities and the duration of activities.
2.27Regarding the IAEA’s recommendation for independence and the rationale for the Regulator sitting within the Defence portfolio, Defence explained:
I note specifically that [the IAEA] state that independence is never an absolute; it is a matter of degree and nature. In this journey, what I can say about the regulator that is being established is that independence also comes from things such as financial independence. It also comes from the ability to have suitably qualified and experienced people who can make judgements which are independent of other technical views, and it comes from having a level of separation—functional separation—whereby there are strong communication protocols between a potential licence applicant and a regulator. Those are the things that we're building into this system.
2.28ASC Pty Ltd explained that this type of reporting arrangement was not unusual, highlighting that the UK’s Defence Nuclear Safety Regulator also reports through the Minister of Defence, which is similar to the US model as well.
2.29Defence maintained that the Bill includes measures for the Regulator to be ‘functionally and effectively independent from the regulated community, including persons that engage in the conduct of regulated activities’. These include that:
The Regulator will not be subject to directions or commands from the Australian Submarine Agency, Defence or the Australian Defence Force (ADF), or any other person in the performance of its duties.
2.30However, to ensure nuclear safety is informed by the military context, Defence stated that the Bill includes a mechanism that provides the Minister with a limited power to give the Regulator a direction about the performance of its functions and the exercise of relevant powers which is:
… only exercisable in exceptional circumstances and where the Minister for Defence is satisfied that it is necessary to give the direction to the Regulator in the interest of national security and to deal with an emergency.
2.31It is noted that ministerial direction powers also exist in the ARPANS Act where the test is that it only need be ‘in the public interest’.
2.32In addition, according to Defence, the Bill also contains other provisions to ensure independence (perceived and actual), including:
… a requirement that the Director-General and Deputy Director-General of the Regulator must not be members of the ADF. Both these statutory positions are prohibited from undertaking other paid or unpaid work, or engaging in other activity, which could or does conflict with the proper performance of their duties, and are required to disclose conflicts of interest. The ANNPS Bill provides for mandatory termination of appointment if the Director-General or Deputy Director-General fail to comply with these requirements.
2.33RINA commented that retired senior officers of the ADF, who may still be members of the Defence Reserves, often fill positions like those of the Director-General and Deputy Director-General and cautioned that this could ‘potentially prejudice the independence of the Regulator’. Noting this concern, RINA suggested the following amendment to further strengthen these provisions:
… no more than one of these two positions should be filled by a retired ADF (or foreign equivalent) senior officer who should not be a member of the Defence Reserve, with the other position being held by an appropriately qualified person from the civil nuclear industry or academia.
2.34Defence advised the committee that the Director-General and Deputy Director-General cannot be a member of the Defence Reserves.
Committee view
2.35Given the unique context that the nuclear-powered submarine enterprise will be operating within, the Committee appreciates the value of having the Regulator sit within the Defence portfolio, enabling the proximity necessary for the operational needs of the strategic military capability. The Committee also notes that this arrangement is not novel and reflects similar arrangements present in the regulatory frameworks of AUKUS partners.
2.36The Committee acknowledges the concern raised by submitters regarding the independence of the Regulator and agrees that it is important for the Regulator to be functionally and effectively independent.
2.37The Committee was assured by Defence that the Government was cognisant of the issue of independence when drafting the Bill and included important provisions that ensure the Regulator is functionally and effectively independent from the regulated community.
2.38Furthermore, the Committee notes that the Bill requires that the Director-General and Deputy Director-General cannot be serving Australian Defence Force persons, but agrees with the Royal Institute of Naval Architects and others, that there is an opportunity to go further. However, given the niche role of the Regulator, the Committee appreciates there needs to be a balance between ensuring that office holders are sufficiently at arm’s length from the Australian Defence Force and the Department of Defence, whilst also having the necessary experience and expertise to understand the naval context in which they operate.
2.39The Committee recommends that the Government amend the Bill to provide that the eligibility criteria for appointment to the positions of Director-General or Deputy Director-General require a suitable minimum period of separation between appointment and any previous service in the Australian Defence Force or employment in the Department of Defence.
2.40The Committee rejects the suggestion that the Regulator can be directed by the Minister to ‘push a particular boundary’ as dangerous disinformation. The Committee is assured by the provision in the Bill which specifies that the Minister can only provide a direction to the Regulator where the Minister is satisfied that it is necessary to do so in the interest of national security and to deal with an emergency. Additionally, where a direction is made, the Minister is required to table a statement in each chamber of Parliament that such a direction has been given. Notwithstanding these proposed safeguards, the Committee believes that the provision can be amended to further strengthen the accountability mechanism by requiring the Minister to also report to the Parliamentary Joint Statutory Committee on Defence, once established, when the Minister gives a direction to the Regulator.
2.41The Committee recommends that the Government amend the Bill to provide that, where a direction is given by the Minister to the Regulator under clause 105(1), the Minister is required to inform the Parliamentary Joint Statutory Committee on Defence, once established, of the nature and purpose of the direction. This is in addition to the tabling of a statement in each chamber informing the Parliament that a direction has been given which is already contained within the Bill.
2.42The Committee also recommends that the Bill be amended to provide that a private briefing be offered to the Parliamentary Joint Statutory Committee on Defence by the Regulator regarding the context of the direction. Where such a briefing occurs, the Joint Statutory Committee on Defence may consider the need for additional private briefings from stakeholders and receive them as determined necessary.
Acceptance of foreign naval nuclear waste
2.43An issue raised by a number of submitters was that the Bill potentially opens the door to Australia managing the nuclear waste of international vessels by defining an AUKUS submarine as an Australian submarine or a UK or US submarine. This is potentially a problem because a radioactive waste management facility, under the definition of a naval nuclear propulsion facility, is responsible for managing, storing or disposing of radioactive waste from an AUKUS submarine.
2.44Wollongong Against War and Nukes (WAWAN) submitted that ‘the bill opens the door to the storage and disposal of international high-level waste from US and/or UK submarines’. WAWAN commented on Australia’s lack of experience in managing high-level nuclear waste, noting that it is a major challenge worldwide and would impose a burden on future generations.
2.45Similarly, MAPW Australia argued:
Australia will be responsible for the high level nuclear waste (HLW) from three to five second-hand US nuclear-powered Virginia-class submarines and then the SSN-AUKUS vessels. We will need to know what to do with this waste by … somewhere in the late 2040s. It is utterly irresponsible to undertake any nuclear program—in this case naval reactors—trusting that the next generation will work something out in relation to the waste.
2.46ACF recommended that the Bill be amended to ensure that it only provides for the licensing of radioactive waste storage facilities for waste from Australian submarines:
The scope of clause 12(d) could be limited by simply removing the reference 'AUKUS submarine' and replacing it with 'Australian submarine'. This amendment would mean that a NNP facility could be a radioactive waste management facility for the management of radioactive waste from an Australian submarine only. Alternatively, clause 12(d)(i)) could be altered to include "while operating in Australian waters" after "AUKUS submarine".
2.47The Australian Submarine Agency emphasised that ‘Australia, including Defence, has decades of experience in safely and securely managing radioactive waste domestically’ and the proposed regulatory framework would build on Australia’s ‘70-year unblemished track record’.
2.48Defence confirmed that the Bill enables the management of radioactive waste in relation to AUKUS submarines which would include UK and US submarines as defined in the Bill. However, in an answer to a question on notice, Defence stated:
The Government has confirmed that Australia will not be responsible for the management, storage or disposal of spent nuclear fuel from UK or US submarines.
2.49In response to a question on notice about the potential for unintended consequences of amending the wording in the Bill from an ‘AUKUS submarine’ to an ‘Australian submarine’ or confining references to the disposal of a submarine to an Australian submarine, Defence submitted:
[T]he Government would need to carefully consider any amendment which excluded the possibility of regulatory control of the management of low-level radioactive waste from UK or US submarines as part of Submarine Rotational Force–West (SRF-West).
…
Amendments to the Bill, including to clause 7, that confine a reference to ‘disposal’ to an ‘Australian submarine’ as defined by subclause 7(2), would be consistent with plans for the optimal pathway.
Committee view
2.50The Committee recognises Australia’s 70 years of safely and securely managing radioactive waste at facilities like Australia’s multi-purpose nuclear reactors at Lucas Heights in New South Wales. The Committee acknowledges the Australian Government’s commitment to manage all radioactive waste from its nuclear-powered submarines domestically on Defence sites as a responsible nuclear steward, ensuring that it continues to meet the highest standards of safety, security and non-proliferation safeguards, in accordance with Australia’s domestic and international obligations. The Committee commends the Government’s acceptance of the responsibility for the long-term storage of decommissioned Royal Australian Navy reactors and commitment to work with its AUKUS partners to address the world-wide challenge of decommissioning and storing high-level nuclear waste.
2.51The Committee acknowledges the concerns raised by some submitters that Australia might become a ‘dumping ground’ for naval nuclear waste from Australia’s AUKUS partners. However, the Committee suggests that terms like ‘dumping ground’ are not helpful in discussing the very serious question of national responsibility for nuclear waste, of any kind.
2.52As outlined in Chapter 1 of the Committee’s report, the Committee notes that there is an important distinction between the categories of nuclear waste which spans from waste with lower levels of radioactivity generated by day-to-day submarine operations and maintenance, such as personal protective equipment, to waste with higher levels of radioactivity such as spent fuel produced when submarines are decommissioned at the end of their service life. Furthermore, the Committee notes that, according to the Australia Submarine Agency, nuclear-powered submarines only generate around a ‘small skip bin’ of low-level naval nuclear waste per submarine per year and that intermediate- and high-level waste will not become a concern until the first naval nuclear reactor requires disposal in the mid-2050s.
2.53The Committee understands that whilst low-level waste from AUKUS partner submarines may be managed at sites such asHMAS Stirling to support Submarine Rotational Force-West, the Government has stated that Australia will not be accepting high-level nuclear waste from AUKUS partners. Nevertheless, the Committee agrees that the Bill could be drafted more clearly to reflect this commitment.
2.54The Committee recommends that the Government consider amending the Bill so that a distinction is made between Australia’s acceptance of low-level nuclear waste from AUKUS partners, but non-acceptance of high-level nuclear waste.
Reporting requirements
2.55A number of submitters raised concerns that the reporting requirements in the Bill were less prescriptive than those for ARPANSA and that this presents transparency concerns, particularly given the limited amount of information that would be available to the public about matters such as incidents or accidents.
2.56Friends of the Earth Adelaide stated that reporting requirements in the Bill regarding the protection of public health and safety and the environment ‘are seriously lacking’ and there are ‘unexplained inconsistencies between the ANNPS Bill and the ARPANS Act in this regard’. Friends of the Earth explained:
Section 41 of the ARPANS Act requires that if directions are given in order to protect the health and safety of people, or to avoid damage to the environment, or because “there is a risk of death, serious illness, serious injury or serious damage to the environment, arising from radiation”, the Minister must table those directions in Parliament within 15 sitting days. Section 61(2) states, “If a serious accident or malfunction occurs at a nuclear installation, the CEO must cause a report about the incident to be tabled in each House of the Parliament no later than 3 sitting days after the incident occurs.” There are no equivalent requirements in the ANNPS Bill. The nearest comparable requirement is found in Section 105. Under that section, directions given by the Minister to the Regulator “in the interests of national security and to deal with an emergency” must be tabled in Parliament within 28 calendar days or “the next sitting day of that House after the end of that period” … [T]here is no explicit requirement under the ANNPS Bill to report publicly about risks to health and safety, or risks to the environment. Section 21, which relates to reporting of nuclear safety incidents, only requires license holders to report to the Regulator. The Bill includes no equivalent obligation for the Regulator or the Minister to report publicly.
2.57Another point raised by the RHSAC in its letter to the CEO of ARPANSA on key factors for establishing an effective regulatory framework for the nuclear-powered submarine enterprise was the importance of transparency for the Regulator to achieve credibility, trust and respect from stakeholders. The RHSAC stated that this requires that the regulatory framework has a mechanism requiring operators and licensees to make available relevant information that could have an impact on ‘public health, safety and the environment, including nuclear and radiation safety management, discharges and emissions, incidents, near misses, and abnormal occurrences’.
2.58Similarly, Marrickville Peace Group outlined the importance of transparency for establishing social license:
… community trust and a social license are of critical importance regarding something as controversial and new, in policy terms, to the Australian people as having their own nuclear submarine fleet. Integrity, transparency, and accountability are key to any confidence people will feel in a government process.
2.59The ACF recommended that the objects of the Bill be amended to ‘ensure’ rather than simply ‘promote’ public confidence and trust in relation to the nuclear safety of Australia’s nuclear-powered submarine enterprise and to include additional points that articulate how this would be achieved. ACF recommended the addition of the following words to the objects of the Bill:
ensuring that the relevant and meaningful information relating to AUKUS submarines is available to the public, except where it is necessary to limit the provision of such information for reasons of national security, defence operational capability or the protection of confidential technology and learnings; and
providing opportunities for public involvement and participation in decisions relating to activities that may impact communities.
2.60The ACF acknowledged that there will be certain things that need to be kept secret, however the Bill ought to make provision for making information publicly available where it does not impinge on legitimate national security reasons.
2.61Also recognising the national security context within which the Regulator would be operating, the RHSAC added that the criteria by which information is withheld for such purposes should be clear, and alternative approaches to public assurance provided.
2.62This point was discussed with ARPANSA at the Committee’s hearing, with the suggestion that an alternative model for reporting could be for the Regulator to report to the Parliamentary Joint Statutory Committee on Defence which is planned to be established later this year:
Senator FAWCETT:Do you think that it would be a suitable framework, rather than having a disclosure to the parliament which was available publicly, for Defence to have a requirement to disclose within the same time frame but to the committee that the government has agreed to establish this year, a statutory committee on defence? … if this committee was to recommend that Defence would have to report to the statutory defence committee … within 28 days, do you think that would have the same outcome in terms of accountability and transparency but within an appropriately classified environment?
Dr Hirth:Yes, I think a mechanism like that could enhance independence and transparency.
2.63Defence noted that there would not be any inconsistency between the reporting requirements proposed by Senator Fawcett and what is currently in the Bill, if the Committee were to recommend that addition.
Committee view
2.64The Committee acknowledges that some submitters held concerns that, unlike in the case of the Australian Radiation Protection and Nuclear Safety Act 1998 which requires ARPANSA to produce and table a report in each chamber of Parliament within three days of a serious accident, the Bill in its current form imposes no equivalent requirement on the Regulator.
2.65The Committee notes that whilst there is a difference in the reporting obligations between ARPANSA and the Regulator, the Regulator would not be absent transparency as, like other Commonwealth entities, it would be required to produce an annual report to Parliament concerning its activities as per the Public Governance, Performance and Accountability Act 2013 and be required to attend the important parliamentary scrutiny process of Estimates.
2.66As recognised by a number of submitters, the Committee accepts that the national security context within which the naval nuclear capability will operate means that it would not be reasonable to expect the Regulator to adhere to the same public reporting requirements as ARPANSA. Nonetheless, the Committee sees value in improving the transparency provisions in the Bill whilst recognising that it would not be appropriate to report publicly on certain matters of national security.
2.67The Committee recommends that the Bill be amended to establish an additional reporting relationship between the Regulator and the soon-to-be-legislated Parliamentary Joint Statutory Committee on Defence so as to ensure transparency with the Parliament concerning the Regulator’s activities and any accidents or incidents that might occur concerning naval nuclear power within its jurisdiction.
Local consultation arrangements
2.68Another issue raised by some submitters was that the Bill does not include provisions for public consultation, particularly in relation to the power for additional designated zones to be established by regulation. ARPANSA and a number of other submitters and witnesses also discussed the merits of including a provision in the Bill that would establish an advisory body.
2.69Local groups, such as the Perth South West Metropolitan Alliance—a grouping of the local governments of Fremantle, East Fremantle, Melville, Cockburn, Kwinana and Rockingham—were concerned about a general lack of awareness about the nuclear-powered submarine program and the impact the proposed legislation might have in the region surrounding around HMAS Stirling.Mr Warwick Carter, Director of the Perth South West Metropolitan Alliance, explained:
Whether it's the regulator or defence in general, I would say that there is generally a low awareness of AUKUS in the region, what that means for the region in terms of the implication of having nuclear-powered conventionally armed submarines in the region, and the impact that may have on jobs, social issues and environmental issues. The more that the federal government can come and talk to our community about what is happening, and the time frames that these will be coming with, the better-informed people can be, and they can raise their own issues directly with parliament on this. Whether that's the role of the regulator or the regulator in concert with defence, things like public meetings held regularly and public engagements can only help build understanding, and that will lead to better questions and, hopefully, better operations.
2.70Furthermore, Mr Warwick outlined some ways that the Bill could be amended to provide a greater level of community assurance, stating:
With regard to the legislation before you today, I would state that the alliance's concerns are focused on the transparency to the community in the case of an emergency event …
Understandably, in a world where nuclear incidents are rare but potentially catastrophic, the public in our region will naturally have questions and potentially concerns regarding the safety surrounding nuclear powered vessels … there are barriers to raising that level of awareness and confidence in Defence's approach with an entire region. Mandated full public disclosure of any incidents can only help build this essential public trust.
I can see no reason as to why Australia would not continue the US and UK's legacy of incident-free operation of nuclear powered submarines. I can equally see no logical objection from Defence or the parliament that mandatory public disclosure of any incidents should not be legislated. Without such disclosures we risk harbouring public speculation surrounding potential incidents that have occurred and undermine the efforts of our Defence Force in building this essential public trust in their operations.
2.71IPAN submitted it is concerned that the Bill ‘is silent about community consent and consultation’ on where Defence may decide to store nuclear waste and nuclear-powered submarines, including the absence of any reference to the free, prior and informed consent of First Nations Peoples, stating that it ‘is a serious oversight in the bill’.
2.72On this issue, the ACF recommended that the Bill include mechanisms for public consultation to ensure that the public be ‘given the opportunity to comment on significant decisions such as prior to the declaration of any additional designated zones’.
2.73Defence submitted that it had consulted broadly across government in developing the Bill, as well as with the US and UK, in recognition that the Regulator will be a part of a larger system of regulation, working with existing regulators in Australia, the UK and US. Furthermore:
Defence has commenced a program of targeted information sessions, which seek to build the understanding of the ANNPS legislation with relevant stakeholders including the Governments of South Australia (SA) and Western Australia (WA), local governments, industry (potential future regulated entities), unions, and First Nations communities. Consultation is ongoing, both nationally and with communities more closely engaged in the nuclear-powered submarine enterprise (SA and WA). Stakeholders have been advised of the parliamentary scrutiny process, including the work of this Committee, and have been encouraged to engage in and support the inquiry.
The Government is committed to transparent and continuous community engagement on the nuclear-powered submarine legislative and regulatory framework, as it develops. Opportunities for further consultation and engagement will be available throughout the regulation development process expected to occur in 2024.
Advisory body
2.74Under the ARPANS Act there are three bodies which advise the CEO, including the RHSAC, the Radiation Health Committee (RHC) and the Nuclear Safety Committee (NSC). The Act requires that one member of each advisory body is a person that represents the interests of the general public. In addition, the NSC requires one member be a person that represents the local government or administration of an area affected by a matter related to the safety of a controlled facility.
2.75In its submission, ARPANSA outlined that:
… the Bill does not provide for the establishment of a formal advisory body to the Director-General of [the Regulator]. Although ARPANSA notes that the absence of such a clause in the Bill does not necessarily preclude the discretionary establishment of such an advisory body, ARPANSA believes that enshrining such a body in legislation would strengthen the independence of the regulatory social license, as well as assist with transparency and ensuring diversity of views presented to the Director-General.
2.76Friends of the Earth Adelaide submitted that the public consultation mechanisms through ARPANSA’s advisory committees creates ‘a level of transparency and public consultation not provided in the ANNPS Bill’.
2.77Similarly, the Perth South West Metropolitan Alliance stated that ARPANSA’s Nuclear Safety Committee, which has local representatives on it, was a good model that could be replicated for the Regulator.
2.78Defence stated that whilst the Bill does not include a provision to establish an advisory body, it does not prevent the establishment of one either. Defence noted that section 23 of the Public Governance, Performance and Accountability Act 2013 ‘makes it clear advisory boards can be established as part of the normal course of government business’.
2.79Additionally, ARPANSA suggested amending the ARPANS Act to allow for an appropriate representative of the Director-General of the Regulator to be a standing member of the RHC and be considered for member or observer of the NSC to be invited when there are relevant topics of interest to be discussed.
2.80ARPANSA stated that this ‘would enable the sharing of information related to nuclear safety and radiation protection, input into the development of codes and standards, and transparency of actions from all regulators’. Furthermore, acknowledging that the membership of the NSC includes local government representatives affected by a matter related to the safety of a controlled facility, ARPANSA considered it prudent to have up to three additional representatives from affected local government associations (LGAs) in Australia as there will be more LGAs affected by activities from nuclear installations as a result of the Bill.
2.81Defence advised that the CEO of ARPANSA had already extended an invitation for a Defence representative to attend the council meetings as an observer in the context of Defence developing the regulatory design system. Defence noted that a more permanent arrangement for a representative of the Director-General of the Regulator would first require the Bill to be passed and for the Government to decide whether amendments to the ARPANS Act were appropriate.
Committee view
2.82The Committee acknowledges that, as one of the most significant national undertakings the Commonwealth has ever engaged in, AUKUS presents both military as well as significant economic and social benefits to the Australian community, particularly in the areas around HMAS Stirling, WA and the Osborne Naval Shipyard, SA. This is something that has been overlooked by many.
2.83The Committee notes that the Government has announced numerous economic benefits associated with AUKUS Pillar 1 and wishes to highlight some of that investment, in particular jobs in local communities. According to the Government, building and sustaining nuclear-powered submarines in Australia will create up to 8 500 jobs in the industrial workforce, including roles in science, education and training, the design and build of the new submarine construction yard in Osbourne and upgrades to sustainment infrastructure at HMAS Stirling, as well as the designing and building the AUKUS submarines themselves.
2.84The Committee notes that some participants, such as the Perth South West Metropolitan Alliance, were concerned about a general lack of awareness about AUKUS in the region around HMAS Stirling.
2.85The Committee emphasises the importance of engaging with local stakeholders and notes that where there are concerns or areas where things can be done better, having a mechanism through which these can be articulated is valuable. The Committee notes that a number of submitters and witnesses drew upon the example of ARPANSA’s expert bodies that include representatives of the general public and local governments, which appear to function well. Additionally, the Committee notes that the UK regulatory framework includes the Defence Nuclear Safety Expert Committee which has members from the public and private sectors, providing independent advice to the UK Ministry of Defence.
2.86The Committee recommends that the Government consider directing the Regulator, through regulatory instrument, to establish consultation committees comprised of relevant local stakeholders, such as state and local governments, to inform its work.
Other matters
2.87The Committee also heard evidence from submitters and witnesses regarding a range of other matters, including the Bill’s interaction with ARPANSA, parliamentary scrutiny of regulations, and suspected environmental damage by visiting nuclear-powered submarines.
Interaction with ARPANSA
2.88A number of submitters discussed the lack of detail about how the Bill interacts with other legislation, particularly the operational relationship between the proposed Regulator and ARPANSA.
2.89ARPANSA noted in its submission that Australia has nine radiation safety regulators, one for each of the states and territories and the Commonwealth (represented by ARPANSA), and that each regulator operates under its own legislation—the establishment of the Regulator introduces a tenth regulator. ARPANSA emphasised the importance of consistent development, and uniform application, of regulations, codes and standards in nuclear safety and radiation protection.
2.90ANSTO agreed that the nuclear-powered submarine regulatory framework needs to be coherent and compatible with the existing civil nuclear safety regime overseen by ARPANSA to facilitate effective and efficient support by the wider Australian nuclear industry.
2.91ARPANSA stated that the Bill ‘does not provide a clear framework for how the Regulator and ARPANSA will work together within the system of regulation nor what the boundaries and interfaces would be between the two agencies’.ARPANSA submitted that regulators ‘working in harmony with clear responsibilities can produce positive safety outcomes while also reducing regulatory burden, overlap or duplication’. Interfaces between the Regulator and ARPANSA include matters such as environmental monitoring and protection and the regulation of radioactive waste management. ARPANSA added that the Regulator would be regulating some civilian entities involved in regulated activities connected with the submarine enterprise, and that ‘this should be done consistently with any other civilian entity regulated under another regulatory regime’.
2.92The ACF submitted that more information was needed on the operational relationship between the Regulator, ARPANSA and state and territory regulators and recommended the Bill be amended to provide for a formal means of contact between ARPANSA and the new Regulator. The ACF added that this could include a formal position with the Regulator or the requirement to consider ARPANSA’s guidance material.
2.93ARPANSA noted that some elements of the interaction between ARPANSA and the Regulator may be explained in the regulations which are currently being developed by government. Additionally, ARPANSA recognised that whilst there are no consequential amendments required of the ARPANS Act as a result of the passage of the Bill, consideration could be given for subsequent amendments to the ARPANS Act to facilitate cooperation between ARPANSA and the Regulator.
2.94To promote nuclear safety, Defence stated that it will be essential for the Regulator to consult with relevant agencies and bodies, including Commonwealth, state and territory workplace health and safety regulators, ARPANSA, and Defence, including the Office of the Defence Seaworthiness Regulator. Additionally, Defence noted that the Bill recognises that the Regulator ‘will operate in a system of regulation, not displacing the operation of existing regulatory schemes where they can operate concurrently’. With regard to the Bill and ARPANSA, Defence clarified:
The ARPANS Act will continue to apply to matters that are not ‘regulated activities’, thereby ensuring continued regulation by ARPANSA of nuclear safety and radiological protection in Australia. The ANNPS Bill enables regulations to be made that allow ARPANSA regulation to apply within a designated zone for cases where it is considered desirable.
Committee view
2.95The Committee accepts the concerns raised by submitters about the lack of clarity regarding the relationship between the Regulator and ARPANSA in the Bill and notes that the regulations which may detail this relationship are yet to be made public.
2.96The Committee recognises the value in the Regulator leveraging the knowledge of ARPANSA wherever possible. The Committee notes that Defence also recognised the importance of the Regulator consulting with all relevant agencies and bodies, including ARPANSA.
2.97The Committee recommends that the Government consider what outcomes could be enhanced through a greater degree of collaboration between the Regulator and the Australian Radiation Protection and Nuclear Safety Agency.
Regulations
2.98Some submitters and witnesses raised concerns about the Bill leaving some of the detail to regulations, suggesting that the subsequent regulations would not be subject to parliamentary scrutiny.
2.99Defence explained why some aspects of the Bill have been left to regulations:
Defence has taken a methodical, phased approach in its design of a fit-for-purpose new regulatory system. The ANNPS Bill establishes the parameters of a regulatory framework to support delivery of Australia’s nuclear-powered submarine capability as it matures. The initial focus is regulating the nuclear safety aspects of facilities and infrastructure in Australia that are required to support the Optimal Pathway. The focus will broaden over time to include the construction and operation of Australian nuclear-powered submarines, and will be supported by future tranches of legislation and subordinate instruments. The regulatory framework established in the ANNPS Bill must provide flexibility for the Government to make further regulation and policy determinations, and for the Regulator to be able to continually adapt its regulatory posture to remain effective, efficient and directed towards the promotion of nuclear safety.
…
Development of regulations is underway and an exposure draft is expected to be made publicly available in 2024.
The regulations will set out detailed requirements, providing clarity to the public and relevant stakeholders on the nuclear safety-related requirements for working within the nuclear-powered submarine enterprise.
2.100Defence also highlighted that regulations (otherwise known as delegated legislation or legislative instruments) have to be tabled in Parliament and are disallowable instruments.
2.101Unless exempt from disallowance, delegated legislation will be assessed by the Senate Standing Committee for the Scrutiny of Delegated Legislation against a set of scrutiny principles that focus on compliance with statutory requirements, the protection of individual rights and liberties, and principles of parliamentary oversight. The explanatory memorandum of the Bill confirmed that ‘any regulations made are subject to the parliamentary disallowance process’.
Committee view
2.102The Committee rejects the claim that the regulations prescribed in the Bill are not going to be subject to appropriate parliamentary scrutiny. The Committee notes the important role of the Senate Standing Committee for the Scrutiny of Delegated Legislation which will assess any regulations that are made following the passage of the Bill through the parliamentary disallowance process, as confirmed in the explanatory memorandum of the Bill. Nonetheless, the Committee sees value in Defence engaging with relevant stakeholders in the design of the regulations.
2.103The Committee recommends that the Government consider ways in which it can direct the Department of Defence to engage in greater consultation concerning the design of the regulations that will be created under the Bill.
Environmental damage by visiting vessels
2.104The Committee heard of concerns regarding possible environmental damage caused by visiting nuclear-powered submarines. At the Committee’s hearing on 4 April 2024, Stop AUKUS WA stated:
We have heard from First Nations persons in the Rockingham area [in Perth, WA] that there have been concerns raised that after a visit of a nuclear powered submarine … there have been incidents of finding dead fish, which some of the First Nations folk suspect has been a result of the sonar waves. We do not have the evidence to prove that, but, yes, there certainly are concerns there.
Committee view
2.105The Committee rejects the assertion that there has been environmental damage caused by visiting nuclear-powered submarines as not being founded in fact. The Committee notes there is extensive monitoring activity that is carried out during and after visits by international vessels under the Government’s Nuclear Powered Warship Visits Policy.
Concluding comments
2.106As outlined in the Defence Strategic Review 2023, Australia’s region, the Indo-Pacific, faces a changing strategic environment with increasing competition, reduced warning time for conflicts, and contests of values and narratives. In this context, Australia must utilise all elements of its national power and statecraft to uphold its values of maintaining an open, stable and prosperous region where the rule of law and sovereignty is respected. This changing strategic environment also requires that Australia modernise its strong defence capabilities and work closely with key strategic partners towards common goals in the region.
2.107Acknowledging that diesel-electric submarines will become increasingly detectable and the need for Australia to maintain a leading-edge capability, the Government has taken the decision to acquire conventionally armed nuclear-powered submarines—working with our closest allies to achieve this endeavour. The Committee notes the important role that conventionally armed nuclear-powered submarines will have in maintaining the potency of Australia’s naval capability in the Indo-Pacific region.
2.108The Committee recognises the value that the Collins Class has offered the Royal Australian Navy in the past, and continues to offer, as Australia transitions from conventional to nuclear-powered submarines. The Collins Class remains one of the most capable conventionally powered submarines in the world and has had an exceptional record of service here in Australia.
2.109The Bill represents the next important legislative step in supporting Australia’s acquisition of conventionally armed nuclear-powered submarines by establishing a new fit-for-purpose regulatory framework to ensure Australia maintains the highest standards of nuclear safety.
2.110Submitters and witnesses have raised important matters throughout the Committee’s inquiry which have been duly considered and reflect the considered approach the Committee has taken in setting out a number of recommendations to further strengthen the Bill.
2.111The Committee recommends, after due consideration by Government of the Committee’s recommendations above, that the Bill be passed.
Senator Raff Ciccone
Chair
Labor Senator for Victoria