Chapter 2Views on the bill
2.1This chapter summarises the views expressed by submitters on the Defence Legislation Amendment (Naval Nuclear Propulsion) Bill 2023 [Provisions] (the bill).
2.2This chapter considers the following matters raised in evidence:
the importance of the amendments as a first step in establishing the necessary legislative framework for the nuclear-powered submarine program;
calls for the bill to be expanded to enable the use of nuclear power for civilian use;
claims that the amendments to the Australian Radiation Protection and Nuclear Safety Act 1998 (ARPANS Act) and the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) represent an adjustment to the moratorium on civil nuclear power;
concerns that the amendments may ultimately detract from Australia’s capacity to exercise an independent defence capability; and
opportunities for scrutiny and public consultation on Australia’s decision to acquire conventionally armed nuclear-powered submarines.
2.3This chapter concludes with the committee view and recommendation.
Support for the bill
2.4The committee received a range of submissions in support of the bill.
2.5Vice Admiral (VADM) Paul Maddison (Ret'd), Director of the University of New South Wales Defence Research Institute, explained his support of the bill in the context of the importance of Australia’s decision to acquire nuclear-powered submarines. This decision, he observed, came about following the:
… recurring assessment over past several decades that the optimal submarine capability for Australia was a nuclear-powered capability and although Australia frequently raised this requirement with its US partners, the response previously has been Australia was not sufficiently prepared. This has now changed, building on the success and constant Commonwealth support to the Collins class submarines, our US partners have assessed Australia to be ready. This change comes at a time when there is significant geostrategic uncertainty in [the] Indo-Pacific region.
…
Becoming a nuclear-powered submarine capable nation brings Australia into very select group globally, to one of only seven nations. This capability lifts both our strategic weight and our global influence as one of the major free democratic societies.
2.6VADM Maddison (Ret'd) supported passage of the bill because it:
… addresses the need for legislative amendments, without which the nuclear-powered submarine program cannot progress. The proposed Bill allows for variation of the existing legislation whilst maintaining the existing protections of both the ARPANS Act and the EPBC Act. The changes proposed will only apply to nuclear-powered submarines and does not weaken any of the human or environmental protections provided by the Acts. The variations proposed are minimal and enable timely progression on the nuclear-powered submarine program. These changes will commence the associated legislative framework needed for the nuclear-powered submarine program and build upon the strong Australian regulatory framework already established. This Bill is the first step on the path to establishment of a complete regulatory framework and the provision of a separate fit-for-purpose regulator for nuclear-powered submarine program.
2.7SMR Nuclear Technology Pty Ltd, an Australian-owned nuclear power technology consulting company, supported the passage of the bill for the following reasons:
It is important to enable the CEO of ARPANSA [Australian Radiation Protection and Nuclear Safety Agency] and the Minister for Environment and Water to perform their regulatory functions in relation to the acquisition and operation of conventionally armed nuclear-powered submarines now, in so far as security requirements permit.
It is particularly important at this stage to allow ARPANSA to have regulatory oversight of the proposals for infrastructure and facilities to allow work to proceed before the ANPSSR [Australian Nuclear-Powered Submarine Safety Regulator] and its supporting legislation is fully in place.
The role, responsibilities, and interfaces between ARPANSA and ANPSSR should be formalised, particularly in the areas of radioactive waste management, safety standards and emergency preparedness. This will also require formalised interfaces with some State authorities.
2.8Similarly, Women in Nuclear Australia, a global not-for-profit association of women and individuals of other genders who work professionally in various fields of nuclear technology and radiological applications, argued the bill would help ensure Australian nuclear safety and effective regulation:
The introduction of nuclear technologies in a Defence capacity will require thorough governance, oversight, and regulation from inception through to operational use, particularly regarding nuclear safety. Until the Australian Nuclear Powered Submarine Safety Regulator (ANPSSR) can be established and legislated as the standing regulator, it is essential that the current regulator for nuclear safety, CEO of the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) and the Minister for Environment and Water, be able to perform the required regulatory functions.
2.9Babcock Australasia is a defence and security company which provides submarine in-service support to the Royal Navy, including Defence nuclear support. It argued for the bill to be passed without amendment, outlining that Australia’s acquisition of conventionally armed nuclear-powered submarines:
… is a critical national endeavour that will assist in addressing the nation’s challenging strategic circumstances within the region and ensure Australia can play its part in protecting the international rules-based order. We stand ready to assist Australia in delivering its largest defence procurement and technological development since World War II.
… we understand that the Bill clarifies the current moratorium on civil nuclear power in respect to conventionally armed, nuclear-powered submarines and enables necessary decisions relating to the nuclear submarine enterprise to be made, whilst maintaining existing regulatory powers.
We note that the Bill also continues Australia’s ongoing commitment to its obligations under the Treaty on the Non-Proliferation of Nuclear Weapons, Non-Proliferations and Disarmament Initiative, Comprehensive Test Ban Treaty, Fissile Material Cut-Off Treaty and the Treaty of Rarotonga, and also maintains Australia’s moratorium on civil nuclear power.
Enabling nuclear technology for civilian use
2.10The Minerals Council of Australia (MCA) and the Australian Nuclear Association (ANA), an independent incorporated scientific institution, supported the amendments proposed in the bill but argued that the bill’s provisions should be expanded to enable the establishment of an Australian civilian nuclear industry. Save Our Surroundings (SOS), a network of like-minded concerned citizens, also supported lifting the ban on nuclear energy in Australia.
2.11MCA called on the Government to take a consistent approach with respect to the availability of nuclear energy in defence and civilian contexts, arguing:
There is clearly an opportunity for Australian uranium resources to underpin an expanded civilian nuclear industry that utilises a highly-skilled workforce to deliver low-emissions energy.
… Amendments should be made to this Bill to ensure the ARPANS Act and the EPBC Act facilitate the use of nuclear energy to the benefit of all Australians.
2.12Similarly, ANA submitted that the explanatory memorandum (EM) ‘incorrectly argues that nuclear reactors used in submarines are somehow safer than reactors used on land for energy generation’:
The AUKUS submarines will be powered by pressurised water reactors (PWRs). It is clearly illogical to claim in the Explorative Memorandum “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” by allowing PWRs in submarines but somehow considering PWRs in engineered facilities on land more of a risk to the health and safety of people and the environment.
The risk to health, safety and environment of a nuclear power reactor is clearly similar whether the reactor is in a submarine on the high seas or in port, or a nuclear power plant in a purpose-built facility on land.
2.13Whilst supportive of Australia’s planned acquisition of nuclear submarines, SOS argued that the bill would not be necessary if the parliament instead removed the ban on nuclear power electricity generation in Australia more broadly. This would allow for not only a strong defence capability ‘to protect our sovereignty and independence in an uncertain world of increasing national hostilities and threats’, but also enable ‘a robust, reliable, plentiful and always available source of electricity across our nation is essential for our energy independence and our sovereign security’.
2.14The Government’s position on lifting the ban on the use of civil nuclear power remains clear, and the EM emphasised that the bill’s amendments will not disrupt Australia’s moratorium on civil nuclear power.
Criticism of the bill
2.15A number of submitters raised concerns that the amendments to the ARPANS Act and EPBC Act may weaken Australia’s moratorium on civil nuclear power which prevents the use of nuclear energy in Australia for the protection of Australians and the environment. Others questioned the impact of the bill on Australia’s capacity to exercise an independent defence capability.
Concerns regarding the moratorium on civil nuclear power
2.16The Australian Manufacturing Workers’ Union (AMWU) strongly opposed any changes to the ARPANS and EPBC Acts ‘that would lead to the development of a nuclear industry in this country or lead to a breach of [Australia’s] moratorium [on civil nuclear power]’.
2.17International Volunteers for Peace, a small volunteer run organisation that facilitates international volunteering, agreed stating:
The 1998 moratorium in place against nuclear infrastructure recognised the environmental and national risks in investment in nuclear technology. Making an exception for the proposed acquisition of craft propelled by nuclear energy steps Parliament back from this principled stand and is not worthy of Australia as a leader in nuclear nonprofileration.
2.18The Medical Association for Prevention of War, a national organisation of health professionals, was concerned that because the Acts do not distinguish between civil and non-civil nuclear actions—effectively meaning that all actions are prohibited—the material effect of the amendments:
… will be to permit the operation of naval nuclear reactors, and the development of associated infrastructure and facilities, including facilities for radioactive waste, which is in practice a disruption of the moratorium. The moratorium has broad public support and is enshrined in some state and territory legislation.
2.19Associate Professor David Neville from Charles Sturt University argued the bill would erode the protections that are provided by the ARPANS and EPBC Acts to facilitate Australia’s acquisition of nuclear-powered submarines.
2.20Dr Kathryn James submitted that the existing legislation exists to protect the safety of Australia, its residents and the environment, animals and plants within it. Dr James stated that ‘[n]othing about the need for this protection has changed since the legislations were written’.
2.21Nuclear Free WA and Stop AUKUS WA, an environmental non-government organisation and community campaign group, argued that there remain unresolved issues about nuclear power that make it incompatible with Australia’s environmental laws. They asserted that the safety, public health and environmental risks, and the long-term management of radioactive waste issues remain, regardless of whether nuclear power is used for commercial production or naval nuclear propulsion.
2.22The Electrical Trades Union of Australia (ETU) stated that it does not support ‘the watering down of long-standing nuclear prohibitions to allow for the acquisition of nuclear-powered submarines’, outlining:
… we maintain our belief that the nuclear industry presents more issues to Australian workers and communities than it could possibly solve. From the extraction of uranium through to usage and waste disposal, there is no future for nuclear in Australia.
… 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.
2.23The AMWU similarly asserted that it does not support any changes to legislation that would ‘facilitate a breach of our international commitments to international, nuclear non-proliferation’. This was a concern also raised by other submitters.
2.24The Australian Conservation Foundation (ACF), a national environmental organisation, requested further detail on how the proposed Bill and the actions it would enable align with Australia’s obligations under the Nuclear Non-Proliferation Treaty (NPT). It observed:
Should AUKUS be advanced, Australia would be the only non-Nuclear Weapons State to have nuclear powered submarines. This unhelpful exercise in Australian exceptionalism and the proposed use of weapons grade highly enriched uranium (HEU) has clear proliferation sensitivities and is the focus of deep concern from nations in the region.
…
The current approach to advancing AUKUS fails to recognise or reflect the complexity and significance of the AUKUS related non-proliferation concerns.
[ACF] recommends Australia signs the UN Treaty on the Prohibition of Nuclear Weapons (TPNW) … Signing the TPNW is important as a regional assurance mechanism and to give effect to clear statements from the Prime, Defence and Foreign Ministers that AUKUS is not related to any future Australian ambition to acquire or facilitate nuclear weapons.
2.25Other submitters raised concerns about the safety of nuclear-powered submarines both for those in the vicinity of ports and of the naval staff operating the submarines.
2.26The processing of nuclear waste in Australia was also raised in a number of submissions. For example, Dr Hilary Green noted the lack of plans for the disposal and long-term storage of depleted fuel and reactors.
2.27Mr David Noonan submitted that it was necessary to consider the capacity and preparedness of ARPANS and Department of Climate Change, Energy, the Environment, and Water (DCCEEW):
… in taking up the powers, functions and roles provided for through these amendments, “if and when required”, and envisaged regarding nuclear powered submarine and supporting infrastructure and facilities.
2.28The ACF argued that more clarity was needed around the short- and longer-term regulatory mechanisms for nuclear submarines, in particular the delineation of roles and responsibilities between Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) and the proposed Australian Nuclear Powered Submarine Safety Regulator.
Government response to the concerns about a weakening of protections
2.29ARPANSA is the Australian Government's primary authority on radiation protection and nuclear safety. ARPANSA’s CEO is responsible for protecting the Australian people and the environment from the harmful effects of radiation under the ARPANS Act.
2.30ARPANSA confirmed that the amendments to the ARPANS Act proposed in the bill will enable ‘the CEO of ARPANSA to perform their legislated regulatory functions, if and when required, in relation to Australia’s acquisition and operation of conventionally-armed, nuclear-powered submarines and supporting infrastructure and facilities’. This means:
… that the CEO of ARPANSA is not prevented from undertaking their regulatory functions under the ARPANS Act in respect of their normal duties or in the support of the nuclear-powered submarine program. The amendment achieves this by clarifying that the prohibitions that apply in s10 of the ARPANSA Act do not apply to naval nuclear propulsion.
2.31The Department of Defence (Defence), DCCEEW and ARPANSA confirmed that the bill’s amendments do not disturb the civil nuclear power moratorium and will not affect the existing prohibition on the approval of civil nuclear power projects.
2.32ARPANSA added that it does not consider it necessary to modify the moratorium on civil nuclear power with respect to nuclear-powered submarines, ‘other than to clarify that it does not prevent the performance of regulatory functions that might be necessary in respect of the nuclear-powered submarine program and its supporting infrastructure and facilities’.
2.33In its submission, ARPANSA noted that it was consulted on the proposed amendments to its Act by Defence. ARPANSA supports the amendments as ‘an important step to providing regulatory clarity for nuclear-powered submarines in Australia’ and argued:
… it is vital that Australia’s nuclear-powered submarine program is operated under a regulatory framework that upholds international best practice in nuclear and radiation safety. Nuclear safety regulation must apply to this enterprise as it does to any civilian nuclear facility and other Defence activities.
2.34As noted in chapter 1, the Minister for Defence, the Hon Richard Marles MP (the Minister), announced that a new regulator would be established called the Australian Nuclear-Powered Submarine Safety Regulator. Defence indicated that the legislation to support the establishment of this new regulator is currently being developed. Defence confirmed the new regulator will:
… have the functions and powers necessary to regulate the unique circumstances associated with nuclear safety and radiological protection across the life cycle of Australia's nuclear-powered submarine enterprise. This includes associated infrastructure and facilities. The new regulator will be a fundamental part of a system of regulation. It will work with existing Australian regulators, including ARAPNSA and the Department of Climate Change, Energy, the Environment and Water, to support the safety of our submariners, Australian and international communities, and the environment.
2.35ARPANSA acknowledged it will be a part of a system of regulation for the submarine program and work with the new regulator. Its role will continue to be to ensure nuclear radiation protection for the Australian public and the environment.
2.36In relation to the amendments to the EPBC Act, DCCEEW submitted that nuclear actions, such as those proposed within the conventionally armed nuclear submarine program, should be subject to an independent, rigorous environmental assessment. DCCEEW confirmed that the proposed amendments:
… will have the effect of specifically enabling the Minister responsible (currently the Minister for the Environment and Water) to consider the approval of these actions under the EPBC Act.
This means the amendments enable the independent, rigorous environmental assessment and approval of conventionally armed, nuclear-powered submarines, associated nuclear infrastructure, facilities and sites under Australia's national environmental laws. This assessment will cover potential impacts to matters of national environmental significance against the criteria for these matters, and potential impacts to the environment as a whole.
The scope of the environmental assessment that will be enabled is expected to include Defence sites, facilities to be installed, as well as the operation of the conventionally armed nuclear powered submarines themselves. This program is expected to trigger assessment under the EPBC Act as a Commonwealth action and, for some components of the program, as a nuclear action, which it is anticipated will also cover the handling, storage and disposal of nuclear material.
2.37Defence stated that the bill ‘demonstrates the action Australia is taking to safely and securely steward conventionally-armed nuclear-powered submarines throughout their entire life cycles’. The bill, it maintained, 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’.
Concerns regarding Australia’s independent defence capability
2.38Some submitters suggested that the bill would facilitate a situation where Australia would be overly reliant on the United States (US) and United Kingdom (UK) in relation to the submarines.
2.39Jamie Shaw pointed to the potential dependency of Australia on nuclear fuel production in other countries:
If the Bill is passed and the proposed submarines are to be nuclear-powered, presumably any nuclear fuel fabrication or enrichment plant or reprocessing facility could not be built in Australia. Australia’s sole task would be to assemble the submarines’ components.
The technology upon which these submarines depend would, therefore, be subject to the agreement and control of foreign powers, namely the US and UK. This represents an extraordinary loss of Australian control over its sovereignty and its ability to oppose or distance Australia from any significant conflict in which either the US or UK were involved.
2.40Ms Shilling also submitted that the acquisition of nuclear-powered submarines ensures Australia must depend on US technology for the building, maintenance and operation of the submarines:
As such the Australian Government has aligned itself with US foreign policy and will need to maintain this close alignment to gain and maintain access to this technology for decades.
2.41AMWU outlined its position as follows:
The AMWU advocates for government investment in the domestic manufacture of all defence equipment, and their supply chains to build and sustain our sovereign capabilities in defence manufacture. In particular, our vessels, submarines, weaponry, ordinance and military vehicles, and aircraft, which are at the heart of a modern self-sufficient ADF in Australia, must be built and maintained here, using Australian design and engineering capability and the skills of Australian workers.
2.42Some submitters pointed to broader concerns regarding the impact of the AUKUS agreement and the nuclear-powered submarine pathway on Australia’s sovereignty. For example, Major-General Michael G. Smith AO (Ret’d) and Professor John Langmore AM were of the view that pursuing AUKUS ‘relegates Australia’s sovereignty’. A similar view was expressed by Mr Graeme Medhurst.
2.43On the other hand, SOS welcomed Australia’s acquisition of ‘state-of-the art nuclear submarines’, noting that a ‘strong defence capability for our nation is essential to protect our sovereignty and independence in an uncertain world of increasing national hostilities and threats’.
2.44In a statement to the House of Representatives, the Minister commented on the maintenance of Australia’s sovereignty in relation to Australia’s acquisition of the conventionally armed nuclear-powered submarines:
The acquisition of this formidable capability is the single biggest leap in Australia’s defence capability.
…
These submarines will be based on a UK design, incorporating the very best of Australian, US and UK technology.
Australia’s next-generation submarines will be Australian sovereign assets, commanded by Australian officers, and under the sovereign control of Australia. And they will be built by Australian workers in South Australia.
Opportunities for scrutiny and transparency in decision-making
2.45A number of submitters questioned whether there had been sufficient opportunity for public scrutiny of Australia’s decision to acquire nuclear-powered submarines. Some submitters also called for a parliamentary inquiry into the broader AUKUS nuclear-powered submarine initiative.
2.46The ETU questioned the level of public support for the decision to acquire nuclear-powered submarines and noted there is no ‘consensus within the defence establishment or parliament’. The ETU stated that the decision to acquire nuclear-powered submarines increases Australia’s risk profile and therefore should ‘be carefully, methodically, and transparently assessed by the Australian people, rather than moving to open up long held legislative protections to Australia’s sovereignty, safety, and environment’.
2.47Associate Professor David Neville agreed, arguing that the bill should only be considered subsequent to a larger parliamentary inquiry into the AUKUS agreement.
2.48The Medical Association for Prevention of War also supported the establishment of such an inquiry, stating:
The committee should reject this bill, and recommend a full inquiry into the implications of the proposed acquisition of naval nuclear power for human health, the environment, security and sovereignty, regional relationships and non-proliferation obligations.
2.49ACF also called for a broader inquiry into AUKUS, submitting:
Given that this Bill is the first of a series of legislative moves related to advancing AUKUS there is a need for a dedicated and transparent Inquiry that explores but is not limited to issues around cost, rationale, nuclear proliferation, emergency and waste management concerns.
Committee view
2.50The committee recognises and agrees with the importance of the acquisition of conventionally armed nuclear-powered submarines in strengthening Australia’s defence capability, securing its national interest, and enhancing its contribution to the security and stability of the region. The committee notes that this bill represents the first legislative step in building the legal architecture required to support Australia's acquisition of conventionally armed nuclear-powered submarines and understands further tranches of legislation are forthcoming.
2.51The committee thanks all individuals and organisations who took the time to provide feedback on the bill. The committee acknowledges the concerns of some individuals who raised broader concerns about the AUKUS trilateral partnership and the initiative for Australia to acquire conventionally armed nuclear-powered submarines. However, the committee emphasises that the bill before it relates to a narrower technical change that seeks to make clear 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.
2.52The committee notes that some submitters raised concerns that the bill may detract from Australia’s capacity to exercise an independent defence capability. The committee is of the view that maintaining Australia’s sovereignty is of the utmost importance and is central to the pursuit of Australia’s national interest. The committee agrees that Australia’s involvement in the AUKUS partnership in fact enhances Australia’s sovereign capability and security by cooperating with and capitalising on the strengths of trusted and reliable partners. The committee acknowledges that the conventionally armed nuclear-powered submarines will be Australian sovereign assets under the sovereign control of the Australian Government, commanded by the Royal Australian Navy and built and sustained by Australian workers in Australian shipyards.
2.53Some submitters raised concerns about the safety implications of the nuclear-powered submarines. The committee takes very seriously the safety of Australia’s submariners, the Australian public, international communities, and the environment. The committee has been reassured by Defence, DCCEEW and ARPANSA that the proposed amendments do not change the existing protections regarding the health and safety of people and the environment that are currently contained in the ARPANS and EPBC Acts. The committee was further reassured that the legislation to establish the new regulator—the Australian Nuclear-Powered Submarine Safety Regulator—is currently being drafted and will ensure that it has the necessary functions and powers to regulate the unique circumstances associated with nuclear safety and radiological protection across the life cycle of Australia's nuclear-powered submarine initiative. The committee understands that the new regulator will work alongside ARPANSA and DCCEEW to support the safety of all Australians, the international community, and the environment.
2.54As the Australian Government's primary authority on radiation protection and nuclear safety, the committee was encouraged to receive information from ARPANSA that it had been consulted by Defence on the proposed amendments to its Act. ARPANSA supported the amendments as an important step in providing regulatory clarity for nuclear-powered submarines in Australia, where its role would be to continue to ensure nuclear radiation protection for the Australian public and the environment. Furthermore, ARPANSA confirmed that the proposed amendments would not prevent its CEO from undertaking their regulatory functions under the ARPANS Act in respect of their normal duties or in the support of the nuclear-powered submarine program.
2.55On the protection of the environment, the committee was also reassured by DCCEEW that the bill’s proposed amendments will ensure that independent, rigorous environmental assessments and approvals will still be conducted under the EPBC Act in relation to the acquisition and operation of conventionally armed nuclear-powered submarines, and associated nuclear infrastructure, facilities and sites. The committee notes that the Government announced that a process for determining its plans for the storage and disposal of nuclear waste associated with the submarines will be set out within the next 12 months, and that these facilities will be located on current or future Defence estates.
2.56The committee notes the various perspectives raised by submitters in relation to the implications of the bill’s proposed amendments on the civil nuclear power moratorium. Importantly, the committee notes statements made by the Minister for Defence, Defence, DCCEEW and ARPANSA confirming that the bill’s amendments do not disturb the civil nuclear power moratorium and do not disturb the existing prohibition on the approval of civil nuclear power projects.
2.57The committee has been assured that appropriate steps have been taken to safeguard the ability of the ARPANS and EPBC Acts to continue to regulate and assess actions taken in relation to Australia’s acquisition and operation of conventionally armed nuclear-powered submarines. The committee sees this bill as the first legislative step towards strengthening Australia’s defence capability through the acquisition of the nuclear-powered submarines, which will also enhance Australia’s contribution to the security and stability of the region.
2.58The committee recommends the bill be passed without delay.
Senator Raff Ciccone