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BILLS DIGEST NO. 81, 2022-23 22 MAY 2023

Defence Legislation Amendment (Naval Nuclear Propulsion) Bill 2023 Dr Emily Gibson Science, Technology, Environment and Resources & Law and Bills Digest Section Dr Adam Broinowski Foreign Affairs, Defence and Security Section This is a preliminary Bills Digest produced to assist early consideration of the Bill. It provides background information on the Bill and links to relevant sources. It will be replaced with a more comprehensive Bills Digest in due course.

Key points

• The Defence Legislation Amendment (Naval Nuclear Propulsion) Bill 2023 proposes to make amendments to the Australian Radiation Protection and Nuclear Safety Act 1998 (ARPNS Act) and the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

• The Bill proposes to amend provisions in each Act that underlie the current moratorium on civil nuclear power to clarify that the moratorium does not apply to a ‘naval nuclear propulsion plant related to the use of a conventionally-armed, nuclear powered submarine’.

• The Minister for Defence described the Bill as only the first legislative step in the acquisition of conventionally-armed, nuclear powered submarines (SSNs), with the legal architecture supporting the acquisition to ‘involve multiple tranches of legislation’.

• Without details of future intended enactments, it is difficult to evaluate the necessity for, or relevance of, this Bill. In particular, neither the Bill nor the accompanying Explanatory Memorandum provide details of the intended framework for regulating SSNs across their lifecycle, including the sourcing or production of nuclear fuel rods, servicing and maintenance of nuclear submarines, long-term storage of high-level radioactive waste, and decommissioning of end-of-life submarines.

• For example, on 6 May 2023, the Government committed to establishing the Australian Nuclear-Powered Submarine Safety Regulator (ANPSSR), with legislation to be introduced later in 2023. In evidence to a Committee inquiry on 15 May 2023, the Chief Executive Officer of ARPSNA said ‘the proposed amendment was to seek to enable ARPNSA in the short term to have a regulatory role in the space until Defence is able to establish the defence nuclear submarine regulatory regulator’ (p. 51).

• On this basis, it appears very possible that existing exemption provisions in the ARPNS Act and the EPBC Act could be utilised at some future date. This would exempt SSNs and associated facilities from the approval requirements under these Acts. If so, the main regulator of SSNs and their supporting infrastructure and facilities would be the new Australian Nuclear-Powered Submarine Safety Regulator.

• The Bill has been referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report by 9 June 2023.

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Contents

Purpose and Structure of the Bill .............................. 3

AUKUS Timeline ....................................................... 3

Table 1: AUKUS timeline of key announcements and events ............................... 3

Positions of parties ............................................. 13

Government parliamentarians ......................... 13

Non-government parliamentarians ................. 13 Liberal-National Coalition ............................... 13

Australian Greens ........................................... 14

House Independents and Crossbench Senators ........................................................................ 14

Budget Papers .................................................... 15

Government websites and key reports .............. 15 ARPNSA ............................................................. 15

Australian Radioactive Waste Agency .............. 15 Department of Climate Change, Energy, the Environment and Water .......................................... 16

Department of Defence .......................................... 16

International organisations ....................................... 16

United Nations ........................................................ 16

International Atomic Energy Agency ...................... 17

Online resources - commentary and specialist analysis ...................................................................... 17

Committee consideration .............................................. 18

Senate Foreign Affairs, Defence and Trade Legislation Committee .............................................. 18

Senate Standing Committee for the Scrutiny of Bills ............................................................................ 18

Position of major interest groups................................... 18

Environment non-government organisations ......... 18 Peace non-government organisations and groups ...................................................................... 19

Think tanks .............................................................. 19

Unions ..................................................................... 19

Financial implications .................................................... 20

Statement of Compatibility with Human Rights.............. 20

Parliamentary Joint Committee on Human Rights ... 20 Appendix ...................................................................... 21

Table 2: AUKUS-related budget measures ......... 21

Date introduced: 10 May 2023

House: House of Representatives

Portfolio: Defence

Commencement: the day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at May 2023.

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Purpose and Structure of the Bill The Defence Legislation Amendment (Naval Nuclear Propulsion) Bill 2023 (the Bill) amends the Australian Radiation Protection and Nuclear Safety Act 1998 (ARPNS Act) and the Environment Protection and Biodiversity Conservation Act 1999 (E PBC Act) (which sit within the Health and Environment portfolios respectively) to clarify that that the current moratorium on civil nuclear power does not prevent the relevant regulators from exercising their regulatory powers and performing functions in respect of conventionally-armed, nuclear-powered submarines.

The Bill is comprised of one Schedule which sets out the proposed amendments to the ARPNS Act and the EPBC Act. The Explanatory Memorandum provides a description of the proposed amendments.

AUKUS Timeline A detailed timeline of key announcements and events is provided in Table 1.

Table 1: AUKUS timeline of key announcements and events

Date Description Source

February 2021 Defence capability enhancement review commences Lead by Vice-Admiral Mead, the terms of reference of the Review are classified, but Defence officials confirm the Review is:

...going to look at the impacts of the changing threat environment and development in technologies to determine the suitability of our planned capability investments in meeting our strategic objectives.

Discussion around whether Australia should, or could, consider a nuclear- powered submarine capability has been persistent in the context of the Future Submarine Program over the last decade. The 2009 and 2013 Defence White Papers under the Labor Government categorically rejected the consideration of nuclear-powered submarines. The Turnbull Government’s 2016 Defence White Paper di d not rule it out, although Mr Turnbull stated in May 2016 that ‘nuclear propulsion did not form any part of our consideration’. The Minister for Defence, Linda Reynolds, reaffirmed this point during a Senate Estimates hearing in November 2019 stating: ‘I can confirm that a nuclear-powered submarine is not being

Senate Foreign Affairs, Defence and Trade Legislation Committee, Estimates, Official Committee Hansard, 1 June 2021, 72. Nicole Brangwin, ‘Managing SEA 1000: Australia’s Attack-class submarines’, Research Paper Series 2019-20, (Canberra: Parliamentary Library, 2020), 42.

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considered as an option for the Attack class submarine’.

30 April 2021 Office of National Intelligence initiates proposal for SSNs with the United States National Security Council Coordinator of the Indo-Pacific Andrew Shearer made the case in a meeting with Kurt Campbell, the White House coordinator for the Indo-Pacific, for sharing SSN technology. Mr Shearer was tapped by Prime Minister Scott Morrison to make the request. The visit was not reported at the time.

Michael Gordon, ‘How the U.S. agreed to provide Nuclear Sub technology to Australia’, W all Street Journal, 13 March 2023.

13 May 2021 AUKUS proposal presented to National Security Committee Prime Minister Scott Morrison presents the AUKUS proposal to full National Security Committee of Cabinet and is given permission to approach the UK, which then communicates the Australian proposal to the US to ascertain its interest and seek approval.

Dominic Giannini, ‘Timeline: How the AUKUS deal came together’, Fin ancial Review, 14 March 2023. Patrick Begley and Sarah Ferguson, ‘Former prime minister Scott Morrison defends secrecy of early AUKUS plans’, A BC News: 7:30, 14 March 2023. Geoff Chambers and Simon Benson, ‘Morrison’s Legacy: How AUKUS reset our defence structure’, Australian, 11 March 2023.

12 June 2021 In-principle deal for Australia to acquire SSNs reached with UK and US An in-principle agreement is reached when Prime Minister Morrison meets US President Joe Biden and then UK Prime Minister Boris Johnson on the sidelines of the G7 meeting in Carbis Bay, Cornwall, UK.

The White House, ‘Readout: Trilateral Meeting of Prime Minister Boris Johnson of the United Kingdom, President Joe Biden, and Prime Minister Scott Morrison of Australia’, 12 June 2021.

22 June 2021 Amendments to the National Radioactive Waste Management Act allow defence-generated controlled material to be stored at the proposed National Radioactive Waste Management Facility The National Radioactive Waste Management Amendment (Site Selection, Community Fund and Other Measures) Bill 2020 p asses both Houses of Parliament.

National Radioactive Waste Management Amendment (Site Selection, Community Fund and Other Measures) Bill 2020 homepage. National Radioactive Waste Management Amendment (Site Selection, Community Fund and Other Measures) Act 2021.

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The Act adds a new definition of ‘controlled material’ and specifically provides that ‘controlled material’ includes ‘controlled material that is generated as a result of activities that relate to the defence of Australia’ (paragraph 4A(3)(b)).

16 September 2021 AUKUS agreement announced The Prime Minister announces that Australia, the UK and the US have ‘agreed to the creation of an enhanced trilateral security partnership’, with initial efforts including ‘additional undersea capabilities’. The first initiative under AUKUS will be Australia’s acquisition of SSN technology, with the 3 nations to identify over the next 18 months ‘the optimal pathway to deliver at least 8 nuclear-powered submarines for Australia’. The media release states:

Australia has no plans to acquire nuclear weapons and this proposal will remain consistent with Australia’s longstanding commitment to nuclear non-proliferation.

Scott Morrison (Prime Minister), ‘Transcript Address: AUKUS, Canberra’, 16 September 2021. Scott Morrison, Peter Dutton (Minister for Defence) and Marise Payne (Minister for Foreign Affairs), ‘Australia to pursue nuclear-powered submarines through new trilateral enhanced security partnership’, media release, 16 September 2021. Jada Fraser and Jan K. Gleiman (Eds.), ‘AUKUS Briefing Book’, Se curity & Defence Plus, Inaugural Edition, 2022.

16 September 2021 Nuclear-Powered Submarine Taskforce established The Taskforce is a multi-agency, whole-of-government taskforce, including ANSTO and ARPANSA.

The aim of the taskforce is to identify the optimal pathway with our US and UK partners to deliver nuclear powered submarines for the Royal Australian Navy.

The Taskforce, headed by Vice Admiral Mead, builds on the work of the Defence capability enhancement review.

Scott Morrison, et al., ‘Australia to pursue nuclear-powered submarines through new trilateral enhanced security partnership’, media release, 16 September 2021. Senate Economics References Committee, Inquiry into Australia’s sovereign naval shipbuilding capability, Official Committee Hansard, 15 October 2021, 50.

16 September 2021 Opposition indicates general support for acquisition of submarines The Opposition Leader and Shadow Foreign Affairs and Defence Ministers signal general support for the acquisition of submarines and

Anthony Albanese (Opposition Leader), Penny Wong (Shadow Minister for Foreign Affairs) and Brendan O’Connor (Shadow Minister for Defence), ‘AUKUS partnership’, media

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seek a bipartisan mechanism for oversight of the process. release, 16 September 2021.

29 September 2021 Former Prime Minister Malcolm Turnbull addresses National Press Club The former Prime Minister offers commentary on the transition from the French submarine deal to the SSNs under the AUKUS Agreement.

Malcolm Turnbull, ‘Address to the National Press Club,’ 29 September 2021. Malcolm Turnbull, ‘We will have to go nuclear to run nuclear subs’, A ge, 29 September 2021.

29 September 2021 Statement on Behalf of Australia, UK and U.S. on the Transfer of Nuclear Materials in the context of AUKUS The Australian representative reiterates that Australia remains committed to the Nuclear Non-Proliferation Treaty (NPT) and that it will not seek to obtain nuclear weapons. The representative states that there is a firm legal basis for the IAEA to engage with Australia on the use of nuclear materials for naval nuclear propulsion. The representative urged the Board of Governors to not establish a ‘special committee’ which he claimed would politicise the issue.

Richard Sadleir, Resident Representative of Australia to the IAEA, ‘IAEA Board of Governors Meeting, Agenda Item 5: Transfer of Nuclear Materials in the context of AUKUS and its safeguards in all aspects under the NPT’, 29 September 2021.

22 November 2021 SSN information sharing agreement concluded The Exchange of Naval Nuclear Propulsion Information Agreement (ENNPIA) allows the UK and US to exchange sensitive and classified naval nuclear propulsion information concerning military reactors with Australia. The Agreement allows for training and education of Australian personnel. The Minister for Defence reiterates that the ‘Agreement is consistent with Australia’s international obligations, including under the Treaty on the Non-Proliferation of Nuclear Weapons’, as it requires compliance with each nation’s NPT and IAEA safeguards obligations. The ENNPIA prohibits the disclosure and use of the information for other purposes, such as development of a civil nuclear industry or the communication or exchange of information to any unauthorised

Peter Dutton, ‘Australia signs exchange of naval nuclear propulsion information sharing agreement’, media release, 22 November 2021. Agreement between the Government of Australia, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Government of the United States of America for the Exchange of Naval Nuclear Propulsion Information, [2022] ATS 4 (entered into force for Australia 8 February 2022). National Interest Analysis, [2021] ATNIA 7.

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persons beyond the jurisdictions of each Party. The Joint Standing Committee on Treaties announces an inquiry, with 4 days allowed for submissions.

26 November 2021 Non-Paper on Nuclear Propulsion Cooperation under AUKUS Declared on behalf of the AUKUS Parties, the key points in the Non-Paper include: • the NPT does not prohibit naval

nuclear propulsion

• no decisions have been made about the construction of new nuclear facilities, and so it is too soon to speak to the specifics of the possible cooperation and related verification measures, or the specific role the IAEA Board may play; these specifics will be addressed at an appropriate time during the consultation process

• the Parties’ conduct will be in full compliance with their respective non-proliferation obligations and commitments and rigorous verification standards, in close consultation with the IAEA

• Australia will implement fully any relevant safeguards obligations, including under Modified Code 3.1; comments about regional security implications of various military capabilities will not be taken up.

U.S. Mission UNVie, ‘Non-Paper on nuclear Propulsion Cooperation under AUKUS,’ US Mission to International Organizations in Vienna, 26 November 2021.

15 December 2021 Joint Standing Committee on Treaties recommends binding treaty action be taken The Committee acknowledged that while ‘significant matters remain to be determined..., the proposed Agreement itself does not raise any significant concerns’ (p. xv). The Committee also acknowledged that ‘non-proliferation issues arise in relation to the proposed acquisition of nuclear-powered submarines’ but noted that Australia would ‘not be acquiring nuclear weapons, and sharing

Joint Standing Committee on Treaties, Agreement for the Exchange of Naval Nuclear Propulsion Information, Report 199, December 2021.

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knowledge for this purpose is specifically ruled-out by the proposed Agreement’ (p. xvi). The Australian Greens issued a dissenting report (pp. 27-31). The inquiry received 106 submissions and held 2 public hearings.

7 March 2022 Intention to establish east coast submarine base announced The Prime Minister and Defence Minister jointly announce a new submarine base will be built on the east coast ‘to support the nation’s new nuclear-powered submarines’. Based on strategic and recruitment considerations, a review of 19 sites identified 3 potential sites: Brisbane, Newcastle and Port Kembla. The estimated cost of the new facility and upgrades to the Fleet Base West is more than $10 billion.

Scott Morrison and Peter Dutton, ‘Australia to build additional submarine base’, media release, 7 March 2022.

7 March 2022 IAEA reports AUKUS partners are committed to non-proliferation and safeguards standards IAEA Director-General Rafael Mariano Grossi reports to the IAEA Board of Governors that Australia, the United Kingdom, and the United States ‘are committed to ensuring the highest non-proliferation and safeguards standards are met.’

IAEA, ‘IAEA Director General's Introductory Statement to the Board of Governors’, 7 M arch 2023.

5 April 2022 Declaration by the leaders of the AUKUS nations of commencement of implementation The leaders jointly announce the AUKUS objectives under 2 headings: • the provision of a conventionally

armed, nuclear-powered submarine capability to Australia • the development and provision of joint advanced military

capabilities to promote security and stability in the Indo-Pacific region. The leaders further detail the progress on submarine and advanced capabilities through multiple high-level meetings of the

White House, ‘Implementation of the Australia - United Kingdom - United States Partnership (AUKUS)’, F act Sheet, 5 April 2022.

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Senior Officials Group, Joint Steering Groups, and Working Groups: • information exchange enabled under ENNPIA and for other

technologies • nuclear stewardship, infrastructure, workforce, and industrial capabilities and

requirements • developing a fit-for-purpose workforce, including through higher-education and training in

nuclear science and engineering • securing additional land on which to build the Nuclear-Powered Submarine Construction Yard • engagement with the

International Atomic Energy Agency on the non-proliferation aspects of the AUKUS partnership • trials of new disruptive technologies, including: AUKUS Undersea Robotics Autonomous Systems (AURAS); AUKUS Quantum Arrangement (AQuA); Artificial intelligence and autonomy; Advanced Cyber; Counter/Hypersonic capabilities; Electronic warfare; and commercial cooperation.

22 May 2022 Federal election results in change of government

3 August 2022 Review of defence force announced The Review, to be led by former Minister for Defence Stephen Smith and former Chief of the Defence Force Sir Angus Houston (retd), will examine ‘force structure, force posture and preparedness, and investment prioritisation’.

Anthony Albanese (Prime Minister) and Richard Marles (Defence Minister), ‘Defence Strategic Review’, media release, 3 August 2022.

6 December 2022 Joint Statement on Australia-US Ministerial Consultations (AUSMIN) 2022 Secretary of State Antony Blinken and Secretary of Defense Lloyd J. Austin III host Minister for Foreign Affairs Penny Wong and Deputy Prime Minister and Minister for Defence Richard Marles in Washington, D.C. to release the statement on the 32nd annual

Richard Marles and Penny Wong (Minister for Foreign Affairs), ‘Joint Statement on Australia-U.S. Ministerial Consultations (AUSMIN) 2022,’ De partment of Foreign Affairs and Trade, 7 December 2022.

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Australia-United States Ministerial Consultations (AUSMIN). In the statement they include the decision ‘to deepen their defence cooperation’ and a ‘shared resolve to enhance our relationship to meet the growing strategic challenges of our time’.

3 February 2023 AUKMIN Meeting Ministers Marles and Wong meet with the UK Defence Secretary Ben Wallace and UK Foreign Secretary James Cleverly to discuss the Australia-UK bilateral relationship. The Ministers agreed to cooperate to realise their respective nations’ sovereign aspirations, based on shared values, interests, and purpose. Areas of collaboration they identified were the: • international legal principle of

Freedom Of Navigation (FON)

• the AUKUS architecture and related programs

• cooperation in the Pacific and protecting the safety of the Indo-Pacific region.

Richard Marles and Penny Wong, ‘Transcript of joint press conference: Portsmouth, United Kingdom: 3 February 2023: AUKMIN meeting; AUKUS; support for Ukraine; The Indo-Pacific; UK Defence budget’, p ress conference, 3 February 2023.

14 February 2023 Defence Strategic Review finalised The Prime Minister says the review ‘will help prepare Australia to effectively respond to the changing regional and global strategic environment and ensure Defence’s capability and structure is fit for purpose and delivers the greatest return on investment’.

Anthony Albanese and Richard Marles, ‘Defence Strategic Review handed to government’, media release, 14 February 2023.

11 March 2023 Prime Minister travels to US to meet with AUKUS partners The meeting will ‘focus on AUKUS, the importance of ensuring an open, prosperous and secure Indo-Pacific, and of upholding an international order based on respect for international norms and rules...’.

Anthony Albanese, ‘Visit to the United States’, media release, 11 March 2023.

14 March 2023 Optimal SSNs acquisition pathway announced The Leaders jointly announce a phased approach to allow Australian SSN acquisition at the ‘earliest

Anthony Albanese, Joe Biden (President of the United States of America) and Rishi Sunak (Prime Minister of the United Kingdom), ‘Joint Leaders

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possible date’. The pathway includes: • Australian military and civilian personnel embedded in US and

UK SSN programs and increased SSN port visits from 2023 • rotations of SSNs to accelerate establishment of sovereign SSN

capability from 2027 • Australia to purchase 3 (and up to 5) Virginia-class submarines from the US with delivery in the early

2030s • UK to deliver first SSN-AUKUS in late 2030s • in early 2040s, Australia to deliver

first Australian-built SSN-AUKUS to the Royal Australian Navy (RAN).

Statement on AUKUS’, media release, 14 March 2023.

Department of Defence, ‘Fact Sheet: the AUKUS nuclear- powered submarine pathway: a partnership for the future’, 14 March 2023.

‘The AUKUS nuclear-powered submarine pathway: a pathway for the future,’ De partment of Defence, Canberra: 2023.

14 March 2023 Australia’s stewardship of SSNs high-level nuclear waste confirmed Minister Marles confirms: • Australia’s commitment to its

non-proliferation treaty obligations, by working with sealed military reactors so as to account for the military-grade fuel through its life cycle • Australia’s commitment to

dispose of the SSN reactors in a facility that is fit-for-purpose (and is distinct from ‘low-level waste’) and on Defence land (existing or prospective) • the ‘process by which the facility

will be identified’ will be announced in the next year • first-disposal of the naval reactors will not happen until the 2050s • Australia will be in full compliance

with its obligations under the Treaty of Rarotonga. Minister Marles also says the ‘best estimate of the cost... is 0.15% of GDP through the life of the program’.

Richard Marles (Acting Prime Minister and Defence Minister), ‘Transcript: Subjects: AUKUS’, Canberra, 14 March 2023.

14 March 2023 $8 billion expansion of HMAS Stirling announced An $8 billion expansion of HMAS Stirling over the next decade is announced, enabling HMAS Stirling

Richard Marles, Pat Conroy (Minister for Defence Industry), Mark McGowen (WA Premier) and Paul Papalia (WA Minister for

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to house Australia’s first sovereign SSN capability by the early 2030s. Defence Industry), ‘Western Australia home for

Australia’s first nuclear-powered submarines’, media release, 14 March 2023.

15 March 2023 Commonwealth and South Australian Governments sign Cooperation Agreement The Agreement will facilitate a range of actions including the exchange of land to facilitate the development of the new Submarine Construction Yard and Skills and Training Academy campus in Osborne, SA.

Richard Marles, Peter Malinauskas (SA Premier), et al, ‘Commonwealth and South Australia sign submarine Cooperation Agreement’, media release, 15 March 2023.

24 April 2023 Defence Strategic Review, Government response and National Defence Statement 2023 released The acquisition of nuclear-powered submarines through the AUKUS Agreement is one of six priority areas for immediate action. The Review supports the establishment of: • the Australian Submarine Agency

as a non-corporate Commonwealth entity • the Australian Defence Nuclear Regulator as an element within

the Defence portfolio • an east coast nuclear-powered submarine facility (p. 67). The Government agreed or agreed in-principle to the Review’s recommendations in relation to nuclear-powered submarines.

Anthony Albanese and Richard Marles, ‘Release of the Defence Strategic Review’, media release, 24 April 2023. Stephen Smith, National Defence - Defence Strategic Review, ( public version), (Canberra: Department of Defence, April 2023).

6 May 2023 New SSN managing and regulatory agencies announced The Defence Minister announces 2 new agencies: • Australian Submarine Agency (to

be established by Executive Order) will be responsible for ‘cradle-to-grave management’ of the SSNs. The Nuclear-Powered Submarine Taskforce will transition to the ASA on 1 July 2023. • Australian Nuclear-Powered

Submarine Safety Regulator will

Richard Marles, ‘New agency and new regulator to deliver Australia’s nuclear-powered submarine program’, me dia release, 6 May 2023.

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‘have the functions and powers necessary to regulate the unique circumstances associated with nuclear safety and radiological protection across the lifecycle of Australia’s nuclear-powered submarine enterprise’, including associated infrastructure and facilities. The Minister describes the regulator as being ‘independent of Defence and the Australian Defence Force’. However, the media release states both agencies will be non-corporate Commonwealth entities within the Defence portfolio and report directly to the Minister for Defence.

10 May 2023 Defence Legislation Amendment (Naval Nuclear Propulsion) Bill 2023 introduced The Defence Minister, Richard Marles, introduces the Bill in the House of Representatives. The Bill is referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report by 9 June 2023.

Defence Legislation Amendment (Naval Nuclear Propulsion) Bill 2023 homepage. Richard Marles, Second reading speech: Defence Legislation Amendment (Naval Nuclear Propulsion) Bill 2023, House of Representatives, Debates, 10 May 2023, 15-16.

Positions of parties

Government parliamentarians • Josh Wilson MP, Michelle Ananda-Rajah MP and Libby Coker MP are referred to in: Geoff Chambers and Joe Kelly, ‘Teals query cost as Labor doubts surface on subs’, The Australian, 22 March 2023

• Josh Wilson MP is referred to in: David Crowe, ‘Carr joins critics of submarine deal’, Sydney Morning Herald, 22 March 2023

• Minister Stephen Jones voiced his opposition to Port Kembla becoming a submarine base, in: ‘Labor minister voices opposition to nuclear’, ABC News, June 2022.

Non-government parliamentarians

Liberal-National Coalition • Then Defence Industry Minister Melissa Price stated that she wanted jobs to be at the centre of the nuclear submarine plan, while then Defence Minister Peter Dutton stated that leasing nuclear submarines ahead of delivery of its own fleet would give workers and submariners

skills, in: ‘Editorial: Acquiring subs early makes sense’, Australian, 4 October 2021

• Andrew Hastie calls for building the first one or two nuclear submarines in the US, in: Daniel Hurst, ‘Australia’s first nuclear submarines should be built in the US, Andrew Hastie says’, Guardian, 6 December 2021

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• Simon Birmingham (Shadow Minister for Foreign Affairs) described SA Premier Peter Malinauskas’ response to the nuclear submarine program as ‘mature’, and recommended accelerated procurement of nuclear submarines through the AUKUS discussions, in: ‘Transcript of doorstop interview: Victoria Square/Tarntanyangga Adelaide, SA: 6 December 2022: South Australia is ready to have a mature discussion about nuclear power; time to talk nuclear; Australians suffering under the energy crisis; National Cabinet; gas; nuclear-powered submarines; Liberal Party diversity’, 6 D ecember 2022

• Andrew Hastie claims that Liberal-National Coalition ‘initiated’ the nuclear submarine deal and comments on nuclear stewardship of future nuclear waste, in: ‘Opposition claims to have ‘initiated’ the ‘historic’ nuclear subs deal 18 months ago’, S ky News Australia, 14 March 2023

• Peter Dutton and Scott Morrison claim credit for conception of the AUKUS deal, in: Anton Nilsson, ‘Dutton and Morrison take credit for AUKUS deal’, Crikey, 15 March 2023

• Peter Dutton questions AUKUS funding, in: Miriam Webber, ‘Don’t “cannibalise” defence: politicians react to subs deal’, C anberra Times, 15 March 2023

• MPs Michelle Landry and Colin Boyce recommend Shoalwater Bay military training area and Gladstone respectively as an alternative submarine base, while Senator Matt Canavan claims a full navy fleet base would support 5,000 jobs and generate $1 billion in economic activity, in: Phillip Coorey and Andrew Tillett, ‘Woomera ‘best for nuclear waste’, Financial Review, 24 March 2023

• Peter Dutton supports nuclear energy in his budget reply, in Peter Dutton, ‘Second Reading Speech: Appropriation Bill (No. 1) 2023-24’, H ouse of Representatives, Hansard, 11 May 2023, 62.

Australian Greens • Adam Bandt (Leader) and Jordan Steele-John (Foreign Affairs, Peace and Nuclear Disarmament spokesperson), ‘Greens to fight Morrison’s dangerous nuclear subs play’, media release, 16 September 2021

• Sarah Hanson-Young (Environment spokesperson), ‘Nuclear subs announcement puts target on SA’s back’, media release, 16 S eptember 2021

• Jordan Steele-John, ‘Greens announce plan for peace, demilitarisation and rejections of AUKUS submarine deal’, media release, 19 O ctober 2021

• Jordan Steele-John, ‘Greens to table stop-AUKUS petition in the Senate’, media release, 27 September 2022

• David Shoebridge (Defence spokesperson), ‘$368+ billion nuclear-powered raid of public finances will slash health, education and housing support for decades’, media release, 14 March 2023

• Adam Bandt and David Shoebridge, ‘$368 billion nuclear submarine deal will be a “millstone” for Albanese: Bandt’, me dia release, 17 March 2023

• David Shoebridge, ‘Labor refuses to say how much weapons-grade uranium will be on its nuclear submarines’, media release, 24 M arch 2023

• David Shoebridge, ‘Figures reveal $123 billion in contingencies for nuclear subs’, media release, 30 April 2023.

House Independents and Crossbench Senators • Senator Jacqui Lambie, Senator Tammy Tyrrell, Senator David Pocock, Senator Pauline Hanson are referred to in: James Massola, ‘Ditch tax cuts to fund subs: key senators’, Age, 16 March 2023

• Senator David Pocock, Zoe Daniel MP, Allegra Spender MP, Sophie Scamps MP, Kylea Tink MP and Monique Ryan MP are referred to in: Geoff Chambers and Joe Kelly, ‘Teals query cost as Labor doubts surface on subs’, Au stralian, 22 March 2023.

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Budget Papers The 2023-24 Australian Government Budget contained a range of measures related to the AUKUS program. These include:

• ‘Nuclear-Powered Submarine Program - initial implementation’, Australian Government, Budget measures: budget paper no. 2, 2023-24, pp. 94-96

• ‘Ensuring Ongoing Radiation Protection and Nuclear Safety for All Australians’, Budget paper no. 2, p. 130

• ‘Safely Managing Australia’s Radioactive Waste’, Budget paper no. 2, p. 166

• ‘Securing a Responsive Nuclear Medicine and Science Capability for Australia’, Budget paper no. 2, p. 1 67.

A summary of these measures - by agency - is provided in the Appendix (Table 2).

Additional funding is allocated (and will be required) beyond the forward estimates.

• Richard Marles et al, ‘Investing in Australia’s national defence’, media release, 9 May 2023

• Parliamentary Budget Office, ‘The cost of nuclear submarines’, Budget analysis, 14 April 2023.

• Parliamentary Library Budget Review 2023-24 articles ‘Defence’ and ‘Nuclear’.

Government websites and key reports

ARPNSA • Australian Radiation Protection and Nuclear Safety Agency (ARPNSA) website

ARPNSA ‘regulates Commonwealth entities that use or produce radiation with the objective of protecting people and the environment from the harmful effects of radiation’. Regulatory activities include licensing, compliance, inspection and enforcement.

Commonwealth entities include Commonwealth departments (e.g. Department of Defence), bodies corporate established for a public purpose by or under an Act (e.g. CSIRO, ANSTO), a company in which a controlling interest is held by the Commonwealth, and employees of these

entities.

The ARPNS Act establishes 3 bodies who provide advice to the Chief Executive Officer of ARPNSA:

• Radiation Health and Safety Advisory Council • Radiation Health Committee • Nuclear Safety Committee

Australian Radioactive Waste Agency • Australian Radioactive Waste Agency (ARWA) website

The ARWA is responsible for facilitating the construction of a single, purpose-built facility - the National Radioactive Waste Management Facility - to permanently responsibly manage and safely dispose low-level radioactive waste and temporarily store intermediate level radioactive waste.

The facility is being established under the National Radioactive Waste Management Act 2012.

In March 2023 it was reported that the Department of Defence is working with ARWA to conduct a review to identify potential high-level nuclear waste disposal sites on current or future Defence land.1

1. Nabil Al Nashar, ‘The AUKUS submarine deal requires Australia to dispose of the nuclear waste. Where will it be dumped and will it break any treaties?’, A BC News, 15 March 2023.

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• Tim Brennan and Hunter Laidlaw, Radioactive waste management in Australia 2012-22: a chronology, Research Paper S eries 2022-23, (Canberra: Parliamentary Library, 17 April 2023).

Department of Climate Change, Energy, the Environment and Water • ‘Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)’

• ‘Referrals and environmental assessments under the EPBC Act’

• ‘Strategic assessments of an endorsed policy, plan or program’

• Sophie Power, Environment Protection and Biodiversity Conservation Act 1999: a quick guide, Research Paper Series 2018-19, (Canberra: Parliamentary Library, 8 May 2019).

Department of Defence • ‘AUKUS Nuclear-Powered Submarine Pathway’

• Department of Defence, The AUKUS Nuclear-Powered Submarine Pathway: A Partnership for the Future, (Australian Gov ernment, 2023)

• Department of Defence, Nuclear Stewardship and Waste, Fact Sheet, March 2023

• Department of Defence, Pathway to Australia’s Nuclear-Powered Submarine Capability, Fact Sheet, March 2023

• ‘The Optimal Pathway’

• ‘National Defence: Defence Strategic Review 2023’

• Stephen Smith, National Defence - Defence Strategic Review, (public version), (Canberra: Department of Defence, April 2023).

International organisations

United Nations Since the establishment of the United Nations, the UN has given highest priority to reducing and eventually eliminating nuclear weapons, destroying chemical weapons, and strengthening the prohibition of biological weapons - all of which pose the direst threats to humankind.

Disarmament and International Security - First Committee

The UN General Assembly (UNGA) considers all disarmament and international security matters within the scope of the UN Charter or relating to the powers and functions of any other organ of the United Nations. The very first resolution (Res.1(c)) adopted by the General Assembly in 1946 called for ‘the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction’.

The Committee was to make proposals for, inter alia, the control of atomic energy to the extent necessary to ensure its use only for peaceful purposes.

Article 11 of the UN Charter authorises the General Assembly to consider ‘the principles governing disarmament and the regulation of armaments’, and empowers it to make recommendations based on these principles to member states and the Security Council.

The Committee works in close cooperation with the United Nations Disarmament Commission and the Geneva-based Conference on Disarmament.

While UNGA resolutions are not legally binding, they can be normative—that is, they can indicate the establishment of customs, standards, and guidelines for appropriate behaviour. Every year, the General Assembly adopts numerous resolutions on disarmament and non-proliferation by a majority vote or by consensus.

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Several multilateral treaties have been established with the aim of preventing nuclear proliferation and testing, while promoting progress in nuclear disarmament. These include:

• Treaty on the Non-Proliferation of Nuclear Weapons (NPT)

• Treaty Banning Nuclear Weapon Tests In The Atmosphere, In Outer Space And Under Water, also known as the Comprehensive Nuclear-Test-Ban Treaty (CTBT), signed in 1996 but has yet to enter into force

• Treaty on the Prohibition of Nuclear Weapons (TPNW) (to which Australia is not a party).

After the entry into force of the NPT in 1970, every five years, States parties meet to review its implementation. In August 2022, the latest Review Conference was held.

International Atomic Energy Agency • International Atomic Energy Agency (website)

The Statute of the IAEA was approved on 23 October 1956 by the Conference on the Statute of the International Atomic Energy Agency, which was held at the Headquarters of the United Nations. It came into force on 29 July 1957. The IAEA was set up to promote the safe, secure and peaceful use of nuclear technologies in 1957 and is regulated by a special agreement with the United Nations.

The IAEA Board of Governors (BoG) is one of the two policy-making bodies of the IAEA, along with the annual General Conference of IAEA Member States. The Board examines and makes recommendations to the General Conference on the IAEA's financial statements, programme and budget. It considers applications for membership, approves safeguards agreements and the publication of the IAEA's safety standards. It also appoints the Director General of the IAEA, with the approval of the General Conference.

The IAEA's mission is guided by the interests and needs of Member States, strategic plans and the vision embodied in the IAEA Statute. The IAEA reports annually to the UN General Assembly and, when appropriate, to the UN Security Council regarding States' non-compliance with safeguards obligations, as well as on matters relating to international peace and security.

Three main areas of work underpin the IAEA's mission: Safety and Security, Science and Technology, and Safeguards and Verification.

The main IAEA instruments of relevance to Australia’s nuclear submarine program include:

• Comprehensive Safeguards Agreements (CSA)

• Additional Protocol (AP)

• Convention on the Physical Protection of Nuclear Material (CPPNM) and its 2005 Amendment

• Small Quantities Protocol (SQP)

• Committee 25

Online resources - commentary and specialist analysis • Michelle Grattan, ‘Australia to build nuclear submarines in new partnership with the US and UK’, T he Conversation, 16 September 2021

• Patricia O’Brien, ‘The AUKUS pact, born in secrecy, will have huge implications for Australia and the region’, T he Conversation, 16 September 2021

• James M. Acton, ‘Why the AUKUS submarine deal is bad for nonproliferation - and what to do about it,’ C arnegie Endowment for International Peace, September 2021

• Trevor Findlay, ‘The Australia-UK-U.S. Submarine Deal: Not Necessarily a Sure or a Good Thing,’ Arms Control Today, November 2021

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• Ian J. Stewart, ‘The Australian submarine agreement: Turning nuclear cooperation upside down,’ Bul letin of the Atomic Scientists, 17 September 2021

• Louisa Brooke-Holland, John Curtis and Claire Mills, The AUKUS agreement, Research Briefing, House of Commons Library, 11 October 2021

• Frank von Hippel, ‘The Australia-UK-U.S. Submarine Deal: Mitigating Proliferation Concerns,’ Arms Control Today, November 2021

• Karla Mae Pabelina, ‘The Gamble of AUKUS: Eroding the rules of Non-Proliferation?’, APLN, Policy Brief No. 84, 2022

• Tariq Rauf, ‘Crashing nuclear submarines through IAEA safeguards’, Toda Peace Institute, Policy Brief No. 122, January 2022

• Marcus Hellyer and Ben Stevens, ‘ASPI AUKUS update 1: May 2022’, Strategic Insights, Australian Strategic Policy Institute, August 2022

• Michael Shoebridge, ‘Marles’s Defence Strategic Review - an exploding suitcase of challenges to resolve by March 2023’, S trategic Insights, Australian Strategic Policy Institute, August 2022

• Malcolm David, Ben Stevens, Alex Bristow and Marcus Hellyer, ‘ASPI AUKUS update 2: September 2022 - the one-year anniversary’, S trategic Insights, Australian Strategic Policy Institute, August 2022

• Trevor Findlay et al., ‘Nuclear-powered submarines as part of AUKUS arrangement bring risk to already fragile proliferation treaty,’ C anberra Times, 16 September 2022

• Allan Behm, Rear Admiral Peter Briggs (retd) and Commodore Paul Greenfield (retd), Australia’s future submarines: An explainer, Au stralia Institute, October 2022

• Allan Behm, ‘Talk us through AUKUS… and Australia’s dream submarine,’ Australia Institute, 1 February 2023

• John Blaxland, ‘AUKUS submarine plan will be the biggest defence scheme in Australian history. So how will it work?’, C onversation, 14 March 2023

• Lauren Sanders, ‘If AUKUS is all about nuclear submarines how can it comply with nuclear non-proliferation treaties? A law scholar explains’, C onversation, 15 March 2023

• Ian Lowe, ‘Australia hasn’t figured out low-level nuclear waste storage yet - let alone high-level waste from submarines’, C onversation, 15 March 2023.

Committee consideration

Senate Foreign Affairs, Defence and Trade Legislation Committee The Bill has been referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee for inquiry and report by 9 June 2023. Details of the inquiry are on the Inquiry homepage.

Senate Standing Committee for the Scrutiny of Bills At the time of writing, the Senate Standing Committee for the Scrutiny of Bills is yet to consider the Bills.

Position of major interest groups

Environment non-government organisations • Australian Conservation Foundation, ‘Sub-standard: AUKUS plan means more risks for Australia’, media release, 14 M arch 2023

• Australian Conservation Foundation, ‘AUKUS’ terrible legacy: subs waste rings alarm bells’, media release, 14 March 2023

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• Australian Conservation Foundation, Submission to the Joint Standing Committee on Treaties inquiry into Exchange of Naval Nuclear Propulsion Information Agreement (ENNPIA), [Submission no. 87], November 2021

• Friends of the Earth, Submission to the Joint Standing Committee on Treaties inquiry into Exchange of Naval Nuclear Propulsion Information Agreement (ENNPIA), [Submission no. 73], 26 November 2021

• Greenpeace, ‘Greenpeace statement on AUKUS nuclear subs’, media release, 16 March 2023

Peace non-government organisations and groups • International Campaign to Abolish Nuclear Weapons (ICAN), Submission to the Joint Standing Committee on Treaties inquiry into Exchange of Naval Nuclear Propulsion Information Agreement (ENNPIA), [Submission no. 67], 24 November 2021

• Medical Association for the Prevention of War (Australia), Submission to the Joint Standing Committee on Treaties inquiry into Exchange of Naval Nuclear Propulsion Information Agreement (ENNPIA), [Submission no. 71], 26 November 2021

• Independent and Peaceful Australia Network (IPAN), ‘Charting our own course: Questioning Australia’s Involvement in US-led Wars and the Australia-United States alliance, A People’s Inquiry: Exploring the case for an independent and peaceful Australia’, I PAN, November 2022

• International Campaign to Abolish Nuclear Weapons (ICAN), ‘Troubled Waters: Nuclear submarines, AUKUS and the NPT’, ICA N, January 2022.

Think tanks • Arms Control Association (ACA): ‘The Australia-UK-U.S. Submarine Deal’, Arms Control Association, No. 51, November 2021

• Asia-Pacific Leadership Network (APLN): ‘AUKUS’, Asia-Pacific Leadership Network, ongoing

• Bulletin of Atomic Scientists (BAS) ‘AUKUS’, Bulletin of Atomic Scientists, ongoing

• Center for Strategic & International Studies (CSIS): ‘AUKUS’, Center for Strategic and International Studies, ongoing

• Carnegie Endowment for International Peace: Ashley Townshend, ‘The AUKUS submarine deal highlights a tectonic shift in the U.S.-Australia alliance’, C arnegie Endowment for International Peace, 27 March 2023

• Nuclear Information Service (NIS): David Cullen, ‘AUKUS plan details: a triumph of hope over experience’, Nuclear Information Service, 17 March 2023

• Sasakawa Peace Foundation: Yuki Kobayashi, ‘AUKUS and Australia’s nuclear submarines - challenges for nuclear safeguards’, 28 March 2023.

Unions • Australian Council of Trade Unions (ACTU): Paul Karp, ‘ACTU digs in on nuclear-free policy in headache for Labor over AUKUS subs’, G uardian, 28 March 2023

• Australian Workers Union (AWU): ‘AWU joins call for submarine project to shore up national security’, 25 February 2022

• Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU): Kerry Smith, ‘CFMMEU opposes ‘reckless AUKUS military alliance’, G reenLeft, 8 December 2022

• Electrical Trades Union (ETU): ‘Nuclear subs: A dangerous delusion’, MediaNet, 16 September 2021

• National Tertiary Education Union (NTEU): ‘NTEU Statement on Australia’s Nuclear Submarine Announcement’, IPAN, 22 Sept ember 2021

• Maritime Union of Australia (MUA): ‘No to nuclear submarines - jobs and health, not nukes’, MUA, 20 September 2021

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• National Union of Students (NUS): ‘National Students Union calls for uni boycott of $368 billion AUKUS subs program’, n ewmatilda.com, 7 May 2023.

Financial implications The Explanatory Memorandum to the Bill states ‘the amendments in the Bill will have no significant financial impact on Commonwealth expenditure or revenue’.2

The AUKUS program is however estimated to cost up to $368 billion over the next 30 years, including a contingency of $123 billion.3 According to the Minister for Defence, ‘Defence spending as a proportion of GDP will lift above its current trajectory to be 0.2 per cent higher by 2032-33’.4

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.5

Parliamentary Joint Committee on Human Rights At the time of writing, the Parliamentary Joint Committee on Human Rights had not considered the Bill.

2. Explanatory Memorandum, Defence Legislation Amendment (Naval Nuclear Propulsion) Bill 2023, 1. 3. Parliamentary Budget Office, ‘The cost of nuclear submarines’, Budget analysis, 14 April 2023. 4. Richard Marles et al, ‘Investing in Australia’s national defence’, media release, 9 May 2023. 5. The Statement of Compatibility with Human Rights can be found at page 6 of the Explanatory Memorandum to the Bill.

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Appendix

Table 2: AUKUS-related budget measures

$m 2022-23 2023-24 2024-25 2025-26 2026-27

Nuclear Powered Submarine Program - initial implementation

Attorney-General’s - 1.2 1.2 - -

DCCEEW - 4.5 3.1 - -

Defence - nfp nfp nfp nfp

Education - 11.0 26.9 39.9 50.7

Employment and Workplace Relations

- 1.9 2.0 -

Finance - nfp nfp nfp nfp

Foreign Affairs and Trade - 34.7 39.9 - -

Health and Aged Care (ARPNSA) - 19.1 6.2 - -

Health and Aged Care (Dept) - 1.5 1.6 - -

Industry, Science and Resources (ANSTO) - 10.2 6.1 - -

Industry, Science and Resources - 1.7 3.5 - -

Ensuring Ongoing Radiation Protection and Nuclear Safety for All Australians

Health and Aged Care (ARPNSA) - 3.7 3.3 1.0 1.0

Securing a Responsive Nuclear Medicine and Science Capability for Australia

Industry, Science and Resources (ANSTO) - nfp nfp nfp nfp

Safely Managing Australia’s Radioactive Waste

Industry, Science and Resources - 67.2 85.8 90.8 76.6

Notes: nfp - not for publication.

Source: Parliamentary Library compilation from Australian Government, Budget measures: budget paper no. 2, 2023-24.

Acknowledgement: Emily Gibson acknowledges the research assistance of Chris Welch and thanks Dr James Prest for useful discussions.

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