Senator Lidia Thorpe's additional comments

The AUKUS deal

1.1I wish to start with general comments on the AUKUS deal, which this Bill emanates from, and express my opposition to it.

1.2AUKUS submarines are one of the biggest expenditures this nation faces in the next decades, and thereby consequential not just to our defence capability but to the very way of life in this country. This expenditure decision has been made while communities are experiencing extreme cost-of-living pressures including, but not limited to, the areas of housing, food, education and health.

1.3While the government promotes this deal as essential to this country’s future security, it does not address the biggest threat humanity has ever faced to its security, namely global heating, with unforeseen and unimaginable consequences which people will experience, and are already starting to experience here and all over the world. The $368 billion estimated for the AUKUS submarines—plus all the additional costs necessarily arising from this in the future which have not even been estimated—could have an immeasurable and unprecedented impact if used to address climate, environmental and social issues, and could establish so-called Australia as a leader in this space world-wide.

1.4Instead, both major parties choose to spend this money on pursuing a dangerous defence technology, which will be outdated by the time we receive the first, second hand (!) submarines from the US in the 2030s. They also chose to pursue the considerably more expensive option of nuclear submarines over the original contract Australia had with France for $90 billion for them to build 12 conventional submarines, and the considerably more dangerous option.

Managing nuclear waste

1.5Australia does not have experience operating, building or maintaining nuclear submarines and has no experience in managing high-level radioactive waste. While the committee report dismisses these concerns, stating that intermediate and high-level waste management will not be a concern until the first naval nuclear reactor requires disposal in the mid-2050s, this simply pushes these concerns to future generations and does not address the fact that even internationally, there is no failsafe method of long-term management of high-level nuclear waste, and that many countries with nuclear industries struggle to site nuclear waste dumps and no one can actually guarantee long-term radiological safety. This is something no country should take lightly, and a dilemma Australia could easily avoid.

1.6In addition, Australia has a history of continued failed attempts of siting radioactive waste dumps for even low and intermediate level radioactive waste, trying to continually push it on First Peoples (sometimes called radioactive racism) who have successfully fought back to protect Country and people from this poison for decades. It is very questionable how the government would ever find a site for storage of high-level nuclear waste without forcefully pushing it onto a community.

1.7It is recommended that any siting process for nuclear waste management, and other nuclear related activities, need to adhere to the principles of the United Nations Declaration on the Rights of Indigenous Peoples, including the right to Free, Prior and Informed Consent.

1.8The Bill also currently includes a dangerous loophole, which witnesses have correctly pointed out, that could lead to Australia becoming a nuclear submarine dump. While Australia, as part of the AUKUS deal, had to agree to manage all radioactive waste generated by the submarines on Australian soil, the bill currently allows for the management of radioactive waste of ‘AUKUS’ submarines, which could include submarines other than the Australian submarines, from the UK and US. While the government publicly states that it does not intend to utilise this avenue, it is unclear if this provision was intentionally included in the bill, possibly as a way to stay relevant to the US and UK as key international defence partners.

1.9I fully support and emphasise the committee’s recommendation that this loophole be closed.

Safety considerations

1.10Despite the federal Minister for Defence, Richard Marles, stating that ‘this bill is specifically focused on ensuring Australia maintains the highest level of nuclear safety in respect of nuclear-powered submarines’,[1] and that this is supposed to be the very purpose of the bill, the bill’s content and objectives in several instances fail to reflect that.

1.11The bill’s objectives currently include the promotion of defence and the interests of Australia and support for the AUKUS partnership. Such provisions have no place in a bill considering nuclear power safety and are political considerations.

1.12It is recommended that the objects of the Act be amended to focus on nuclear safety, removing the existing clauses on promotion of defence and the interests of Australia and support for the AUKUS partnership and instead include additional provisions to ‘expressly address:

protecting workers, other persons and communities against harm to their health, safety and welfare through the elimination or minimisation of risks arising from regulated activities;

promoting the provision of advice, information, education and training in relation to nuclear safety;

ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act’.[2]

1.13Furthermore, the Bill does not include express provisions for emergency preparedness and response, which is a major oversight or failure for a nuclear safety bill. Nuclear emergencies place great risk to public health and effective response systems need to be in place.

1.14It is recommended that the Bill be amended to include express and clear emergency preparedness and response provisions.

1.15It is also imperative for the government not to abrogate its responsibility for ensuring nuclear safety at all times, given the extent of risk to public health and safety of the operations in question. It is therefore essential for nuclear safety to be fully enforceable, which is currently not the case with the bill referring to implementation and maintenance of nuclear safety management systems only as far as reasonably practicable. This is effectively limiting the safety duty to the available means, including available budget, instead of providing for the means needed to achieve nuclear safety to the best possible standard. This is a dangerous shortcut, and failure of the government’s duty of care.

1.16It is recommended that the Bill be amended to establish a clear-cut obligation to ensure nuclear safety and then provide a defence if the defendant can demonstrate that they exercised due diligence and took all reasonably practicable precautions.[3]

1.17This concern is furthered by the Bill’s enabling of licences to be held by Commonwealth contractors without any oversight by or accountability of the Commonwealth or relevant entities, effectively ‘contracting out’ responsibility for regulated activities. In its submission, the Australian Conservation Foundation points out that this concern can ‘be addressed by requiring that the Commonwealth must exercise a proper and competent supervisory role over the Commonwealth contractor’.[4]

1.18It is recommended that the Bill be amended to ensure the Commonwealth cannot contract out the liability in relation to compliance with the duties on licence holders created by the Bill, and will at all times bear responsibility for the nuclear safety of the actions of a contractor holding a licence.

1.19It is recommended that the Bill be amended to ensure the definition of Commonwealth contractor does not include sub-contractors to a Commonwealth sub-contractor.[5]

1.20It is recommended that the Bill be amended to include defining the responsibility of each person in the supply chain or logistics chain.

1.21It is recommended that the Bill be amended to include a requirement that licences only be issued to entities that are a fit and proper person.

1.22ARPANSA provides the leading guidelines for nuclear safety in this country, which are currently excluded from this bill. There is, in fact, a clear discrepancy between provisions of this Bill and the regulatory guidance of ARPANSA, which build in international best practice and decades of regulating nuclear activities in this country. It is important that all nuclear safety guidelines follow best practice and are streamlined across all operations and both regulators.

1.23It is recommended that the Bill be amended to remove Section 132 which states that the ARPANS Act does not apply in relation to regulated activities.

1.24The interaction with ARPANSA as the existing nuclear safety regulator has been a major focus of the inquiry and the committee recommended consideration of ways of greater collaboration between ARPANSA and the to be established Australian Naval Nuclear Power Safety Regulator (ANNPSR). I therefore propose that the government follows ARPANSA’s suggestion of one of the avenues on how to better pursue this through enabling information sharing related to nuclear safety and radiation protection, as well as providing an avenue for input into the development of codes and standards, and transparency of actions from all regulators.[6]

1.25It is recommended that the ARPANS Act be amended through consequential amendments to provide for an appropriate representative of the Director-General of ANNPSR as a standing member of the Radiation Health Committee and as a member or observer of the Nuclear Safety Committee, to be invited when there are relevant topics of interest to be discussed.

1.26ARPANSA also pointed out that their Nuclear Safety Committee includes a representative from a local government area affected by a matter related to the safety of a controlled facility, which is currently a representative from the Sutherland Shire which includes the Lucas Heights reactor. Given there will be further communities affected by matters related to the safety of controlled facilities through the submarines program, I agree with ARPANSA’s advice and propose:

1.27The ARPANS Act to be amended through consequential amendments to provide for the Nuclear Safety Committee to allow for a representative from each local government area affected by a matter related to the safety of a controlled facility.

Accountability, public consultation and transparency

1.28The Bill has been significantly criticised for heavy reliance on regulations, which provide for less public scrutiny than legislative provisions and for the lack of transparency on regulated activities, posing a risk of low accountability under the framework.

1.29While the committee recommendations trying to partially address this, it is my view that this needs to be drastically increased, making information publicly and easily accessible as best possible.

1.30It is recommended that the Bill be amended to require the publication of notifiable events including, but not limited to, applications lodged for and decisions made on licences, licence conditions, suspensions or cancellations, prohibition notices, nuclear safety and other breaches under the Act, and any proposed regulations through a register for this purpose on the ANNPSR website, as well as a notification in the Government Gazette.

1.31It is recommended that the Bill be amended to include the requirement for public consultation on any proposed designated zones.

1.32It is recommended that the Bill be amended to include the requirement for accepting public comment on any licence application.

Conclusion

1.33The bill presented by the government is a clear sign of their focus on national security, putting radiation safety on the back foot. This is a major failure of the federal government in its duty of care towards the people of this country, and constitutes a major health and safety risk. It is shameful how a bill so careless can be presented on a public health and safety matter of a scale this country has no experience handling.

1.34In conjunction with the exclusion of transparency and accountability mechanisms in this bill, this bill does not just amount to carelessness but indeed recklessness on a matter which, like no other, impacts the future of this country and its people—not just through what it does but also what it prevents us from doing instead.

1.35I believe the Bill before us is extremely inadequate and requires a major overhaul.

1.36It is recommended that, unless the matters above are completely and thoroughly dealt with, the Bill not be passed.

Senator Lidia Thorpe

Participating Member

Independent Senator for Victoria

Footnotes

[1]The Hon Richard Marles MP, Minister for Defence, House of Representatives Hansard, 16 November 2023, pp. 8333–8336.

[2]Australian Conservation Foundation (ACF), Submission 23, p. 7.

[3]ACF, Submission 23, p. 13.

[4]ACF, Submission 23, p. 14.

[5]ACF, Submission 23, p. 15.

[6]ARPANSA, Submission 16, p. 3