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Civil Nuclear Transfers to India Bill 2016

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2016

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

CIVIL NUCLEAR TRANSFERS TO INDIA BILL 2016

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of the Minister for Foreign Affairs, the Honourable Julie Bishop MP)

 



 

CIVIL NUCLEAR TRANSFERS TO INDIA BILL 2016

GENERAL OUTLINE

The purpose of the Bill is to clarify that decisions approving civil nuclear transfers to India are taken not to be inconsistent with, or have been made with due regard to, Australia’s obligations relating to nuclear safeguards under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the South Pacific Nuclear Free Zone Treaty, if particular conditions are met. Those conditions relate to the application of India’s nuclear safeguards agreement with the International Atomic Energy Agency (India-IAEA agreement), including its Additional Protocol, as well as the Agreement between the Government of Australia and the Government of India on Cooperation in the Peaceful Uses of Nuclear Energy (the Australia-India agreement).

Australia has developed its arrangements for nuclear cooperation with India in conformity with a framework agreed by the Nuclear Suppliers Group (NSG) in 2008, a group that includes all of the major nuclear supplier countries and others that are active in non-proliferation efforts.  That framework recognises that because India is not a party to the NPT, an India-specific model for IAEA safeguards will apply to nuclear material or related items transferred to India. That model is specified in the India-IAEA agreement and provides that safeguards apply at facilities designated by India for civil purposes, as well as to any imported nuclear material or nuclear-related items, including uranium supplied by Australia.

The Bill seeks to codify, for the special case of India, the content of Australia’s relevant international obligations for the purposes of the relevant laws.

The Bill will give legal and commercial certainty to uranium mining companies in Australia so that they may fulfil contracts to supply Australian uranium to India for civil use with confidence that exports would not be hindered by domestic legal action challenging the consistency of the safeguards applied by the IAEA in India with certain of Australia’s international non-proliferation obligations. Any future bilateral trade in other nuclear-related material or items for civil use will also be protected.

As a member of the NSG, Australia supported the decision in 2008 on a framework to enable nuclear trade with India and, as a member of the Board of Governors of the IAEA, gave its approval to a nuclear safeguards agreement and Additional Protocol negotiated by the IAEA with India in 2009.  The Australia-India agreement was negotiated in 2013 and 2014 and entered into force in November 2015.

India is the second most populous country in the world, the third largest economy (in purchasing power terms) and the world’s most populous democracy.  Australia and India have a Strategic Partnership.  Nuclear cooperation will make a significant contribution to a further strengthening of bilateral ties between Australia and India.

FINANCIAL IMPACT STATEMENT

The Bill will not have a financial impact for the Commonwealth or impose any cost on persons affected by decisions referred to in the Bill.



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

CIVIL NUCLEAR TRANSFERS TO INDIA BILL 2016

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The Civil Nuclear Transfers to India Bill 2016 (the ‘Bill’) clarifies that decisions approving civil nuclear transfers to India are taken not to be taken as inconsistent with, or have been made with due regard to, Australia’s obligations relating to nuclear safeguards under specified international agreements if particular conditions are met.

The proposed Bill will ensure that uranium mining companies in Australia may fulfil contracts to supply Australian uranium to India for civil use with confidence that exports would not be hindered by domestic legal action challenging the consistency of the safeguards applied by the International Atomic Energy Agency in India with certain of Australia’s international non-proliferation obligations. Any future bilateral trade in other nuclear-related material or items for civil use will also be protected.

Human rights implications

This Bill does not engage any of the applicable rights or freedoms outlined in the Human Rights (Parliamentary Scrutiny) Act 2011 .

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.

 

CIVIL NUCLEAR TRANSFERS TO INDIA BILL 2016

NOTES ON CLAUSES

Clause 1: Short title

This clause specifies that the Act may be cited as the Civil Nuclear Transfers to India Act 2016.

Clause 2: Commencement

This clause provides for the whole of the Act to commence on the day after the Act receives Royal Assent.

Clause 3: Object of this Act

This clause makes clear that the object of the Act is to codify, for the special case of India, and for the purposes of the relevant laws, the content of Australia’s relevant international obligations in relation to nuclear safeguards to be applied by the IAEA in India.

Clause 4: Simplified outline of this Act

This clause outlines the effect of the Act, in particular how Section 8 of the Act operates.

Clause 5: Definitions

This clause defines certain terms used in the proposed Act.

Australia-India agreement refers to the agreement on civil nuclear cooperation entered into by Australia and India in 2014.

export from Australia is defined to include supply from a place in Australia to a place outside Australia.  The term ‘supply’, as used in the Defence Trade Controls Act 2012 , includes transfers of intangible technology.

India-IAEA agreement refers to the Agreement between the Government of India and the International Atomic Energy Agency for the Application of Safeguards to Civilian Nuclear Facilities done at Vienna on 2 February 2009 together with the Protocol Additional to that Agreement done at Vienna on 15 May 2009. Safeguards are applied by the IAEA under the India-IAEA agreement to provide assurance that no nuclear material or other item subject to the agreement is used for the manufacture of any nuclear weapon or to further any other military purpose and that such nuclear material and items are used exclusively for peaceful purposes and not for the manufacture of any nuclear explosive device.

nuclear material has the same meaning as in the Australia-India agreement. That definition is aligned with definitions applied by the IAEA in the application of safeguards and includes uranium and thorium, whether or not enriched in certain isotopes, as well as plutonium-239.

nuclear related item means any of the following, within the meaning of the Australia-India agreement: a component; equipment; non-nuclear material and technology. Such items include equipment or material especially designed or prepared for peaceful uses of nuclear energy.

specified international agreements means the Treaty on the Non Proliferation of Nuclear Weapons and the South Pacific Nuclear Free Zone Treaty.

Clause 6: Act extends to external Territories

This clause provides that the Act extends to Australia's external territories.

Clause 7: Act binds the Crown

This clause provides that the Act binds the Crown in all its capacities.

Clause 8: Requirements applying to export of nuclear material and nuclear related items

Clause 8(1) provides that the exercise of powers or the performance of functions under the Nuclear Non-Proliferation (Safeguards) Act 1987 (and any prescribed legislative instruments), in connection with the export from Australia of nuclear material or nuclear-related items, is taken not to be inconsistent with Australia’s obligations, under specified international agreements, in relation to the safeguards to be applied in India, if the conditions set out in clause 8(3) are met.  The clause is drafted with reference to Section 70 of the Nuclear Non-Proliferation (Safeguards) Act 1987.  

Clause 8(2) relates to the exercise of powers or the performance of functions by a person under the Defence Trade Controls Act 2012 or the Customs (Prohibited Exports) Regulations 1958 (and any prescribed legislative instruments), in connection with the export from Australia of nuclear material or nuclear-related items.  If the conditions set out in clause 8(3) are met, the person is taken to have had due regard to Australia’s obligations, responsibilities and commitments under the specified international agreements, in relation to the safeguards to be applied in India.

Clause 8(3) specifies the conditions referred to in Clauses 8(1) and 8(2).  These include that the Australia-India agreement is in force and the India-IAEA agreement is in force.  The condition in Clause 8(3)(c) requires a person exercising a power or performing a function in connection with the export from Australia of nuclear material or nuclear-related items to be satisfied that IAEA safeguards will apply to the material or item(s) in India.  This provision refers to how administrative procedures related to export from Australia of nuclear material or nuclear-related items shall be exercised.

The conclusion of negotiations on the India-IAEA agreement in 2009 fulfilled a specific requirement of the decision of the NSG on 6 September 2008 that India would negotiate with the IAEA an agreement in accordance with the IAEA’s standard principles and practices, as well as an Additional Protocol with respect to India’s civil nuclear facilities.

The preamble of the Australia-India agreement recalls commitments made by India to separate its civilian and military nuclear facilities and programmes and to place its civilian nuclear facilities under IAEA safeguards. Paragraph 2 in Article VII of the Australia-India agreement provides further that IAEA safeguards shall apply to India’s civilian nuclear facilities in accordance with the India-IAEA agreement.  These provisions in the Australia-India agreement reinforce that civil nuclear transfers from Australia to India will be subject to safeguards based on the framework approved by the NSG on 6 September 2008 as set out in the IAEA document INFCIRC/734 (corrected).

Clause 8(4) provides that the section applies to the exercise of a power or performance of a function before, on or after commencement of the Act. The Act will not negatively affect any person as a result of the retrospectivity of this provision.

Clause 9: Amendment of the India-IAEA agreement

This clause provides that if the India-IAEA agreement is amended, the Minister must, by notifiable instrument, give notice of the amendment.  The purpose of this clause is to assure transparency for the Parliament should any amendment be agreed by India and the IAEA.  The IAEA’s Board of Governors, of which Australia is a member, would need to approve any amendment to India-IAEA agreement that materially affected its operation.

Clause 10: Rules

This clause provides that the Minister may make rules prescribing certain matters.  Clauses 8(1)(ii) and 8(2)(ii) specify matters that may be prescribed by rules.