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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
DEFENCE LEGISLATION AMENDMENT (NAVAL NUCLEAR PROPULSION) BILL
2023
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Defence, the Hon Richard Marles MP)
DEFENCE LEGISLATION AMENDMENT (NAVAL NUCLEAR PROPULSION)
BILL 2023
GENERAL OUTLINE
1. The purpose of the Defence Legislation Amendment (Naval Nuclear Propulsion) Bill
2023 (the Bill) is to clarify that the current moratorium on civil nuclear power does
not prevent the relevant regulators (the CEO of the Australian Radiation Protection
and Nuclear Safety Agency (ARPANSA) and the Minister for the Environment and
Water) from exercising their regulatory powers and performing functions in respect of
conventionally-armed, nuclear-powered submarines.
2. The Bill achieves this purpose by amending the Australian Radiation Protection and
Nuclear Safety Act 1998 (ARPANS Act) and the Environment Protection and
Biodiversity Conservation Act 1999 (EPBC Act) to enable the relevant regulators to
perform their respective regulatory functions, if and when required, in relation to
Australia's acquisition and operation of conventionally-armed, nuclear-powered
submarines.
3. While these amendments are necessary to enable decisions to be made in relation to
activities for the nuclear submarine enterprise, they will not disrupt Australia's
moratorium on civil nuclear power. 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.
4. Detailed notes on the clauses on the Bill are included at Attachment A.
FINANCIAL IMPACT STATEMENT
5. The amendments in the Bill will have no significant financial impact on
Commonwealth expenditure or revenue.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
6. A Statement of Compatibility with Human Rights has been completed in relation to
the Bill. It has been assessed that the amendments of the Bill are compatible with
Australia's human rights obligations. The Statement of Compatibility with Human
Rights is at Attachment B.
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Attachment A
DEFENCE LEGISLATION AMENDMENT (NAVAL NUCLEAR PROPULSION)
BILL 2023
NOTES ON CLAUSES
Clause 1 Short title
1. This provides that the Bill, once enacted, may be cited as the Defence Legislation
Amendment (Naval Nuclear Propulsion) Act 2023.
Clause 2 Commencement
2. This clause sets out the date on which provisions of the Bill, if enacted, would
commence.
3. Subclause 2(1) provides that each provision of the Act specified in column 1 of the
table commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its terms.
4. Table item 1 provides that the whole of the Act commences the day after the Act
receives the Royal Assent.
5. Subclause 2(2) provides that any information in column 3 of the table is not part of
the Act. Information may be inserted in this column, or information in it may be
edited, in any published version of this Act.
Clause 3 Schedules
6. This clause provides that legislation that is specified in a Schedule to the Act is
amended or repealed as set out in the applicable items in the Schedule concerned, and
any other item has effect according to its terms.
SCHEDULE 1 - AMENDMENTS
Australian Radiation Protection and Nuclear Safety Act 1998
Item 1 After subsection 10(1)
7. This item inserts new subsection 10(1A) after subsection 10(1).
8. New subsection 10(1A) provides that paragraph 10(1)(b) does not apply to a naval
nuclear propulsion plant related to use in a conventionally-armed, nuclear-powered
submarine.
Item 2 Subsection 10(2)
9. This item amends subsection 10(2) by omitting "mentioned in subsection (1)" and
substituting "to which subsection (1) applies".
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Items 1 and 2 (section 10)
10. Currently, subsection 10(1) provides that nothing in the ARPANS Act is taken to
authorise the construction or operation of any of the following nuclear installations: a
nuclear fuel fabrication plant, a nuclear power plant, an enrichment plant or a
reprocessing facility. Subsection 10(2) provides that the CEO must not issue a licence
under section 32 in respect of any of the facilities mentioned in subsection 10(1).
11. The effect of these amendments is to clarify that the CEO of ARPANSA is not
prevented from issuing a facility licence under section 32 that may be required to
authorise activities mentioned in subsection 30(1) that may involve a naval nuclear
propulsion plant related to use in a conventionally-armed, nuclear-powered
submarine.
Environment Protection and Biodiversity Conservation Act 1999
Item 3 Section 37J
12. This item amends section 37J by inserting "(1)" before the reference to "The
Minister" (in reference to the Minister for the Environment and Water). This
amendment is consequential to the amendment in item 4.
Item 4 At the end of section 37J
13. This item inserts new subsection 37J(2) at the end of subsection 37J.
14. New subsection 37J(2) provides that paragraph 37J(1)(b) (as renumbered by the Bill)
does not apply to a naval nuclear propulsion plant related to use in a conventionally-
armed, nuclear-powered submarine.
Items 3 and 4 (Section 37J)
15. Currently, section 37J provides that the Minister must not make a declaration relating
to an action consisting of, or involving the construction or operation of any of the
following nuclear installations: a nuclear fuel fabrication plant, a nuclear power plant,
an enrichment plant or a reprocessing facility.
16. Relevantly, the current effect of this provision is to prohibit the Minister from making
a declaration relating to an action consisting of, or involving the construction or
operation of a nuclear power plant.
17. The effect of this amendment is to clarify that the Minister is not prevented from
issuing a declaration for an action, consisting of, or involving the construction or
operation of a naval nuclear propulsion plant related to use in a conventionally-armed,
nuclear-powered submarine.
Item 5 Section 140A
18. This item amends section 140A by inserting "(1)" before the reference to "The
Minister". This amendment is consequential to the amendment in item 6.
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Item 6 At the end of section 140A
19. This item inserts new subsection 140A(2) at the end of section 140A.
20. New subsection 140A(2) provides that paragraph 140A(1)(b) (as renumbered by the
Bill) does not apply to a naval nuclear propulsion plant related to use in a
conventionally-armed, nuclear-powered submarine.
Items 5 and 6 (Section 140A)
21. Currently, section 140A provides that the Minister must not approve an action
consisting of, or involving the construction or operation of any of the following
nuclear installations: a nuclear fuel fabrication plant, a nuclear power plant, an
enrichment plant or a reprocessing facility.
22. Relevantly, the current effect of this provision is to prohibit the Minister from
approving an action consisting of, or involving the construction or operation of a
nuclear power plant.
23. The effect of this amendment is to clarify that the Minister is not prevented from
approving an action, consisting of, or involving the construction or operation of naval
nuclear propulsion plant related to use in a conventionally-armed, nuclear-powered
submarine.
Item 7 Section 146M
24. This item amends section 146M by inserting "(1)" before the reference to "The
Minister". This amendment is consequential to the amendment in item 8.
Item 8 At the end of section 146M
25. This item inserts new subsection 146M(2) at the end of section 146M.
26. New subsection 146M(2) provides that paragraph 146M(1)(b) (as renumbered by the
Bill) does not apply to a naval nuclear propulsion plant related to use in a
conventionally-armed, nuclear-powered submarine.
Items 7 and 8 (Section 146M)
27. Currently, section 146M provides that the Minister must not approve the taking of an
action or a class of actions in accordance with an endorsed policy, plan or program of
the action, if the action, or an action in the class of actions, consists of, or involves the
construction or operation of, any of the following nuclear installations: a nuclear fuel
fabrication plant, a nuclear power plant, an enrichment plant or a reprocessing facility.
28. Relevantly, the current effect of this provision is to prohibit the Minister from
approving the taking of an action or class of action that consists of, or involves the
construction or operation of a nuclear power plant.
29. The effect of this amendment is to clarify that the Minister is not prevented from
approving an action, or a class of actions, in accordance with an endorsed policy, plan
or program, if the action, or an action in the class of actions, consists of, or involves
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the construction or operation of, a naval nuclear propulsion plant related to use in a
conventionally armed, nuclear-powered submarine.
Item 9 After 305(2)
30. This item inserts new subsection 305(2A) after subsection 305(2).
31. New subsection 305(2A) provides that subparagraph 305(2)(d)(ii) does not apply to a
naval nuclear propulsion plant related to use in a conventionally-armed,
nuclear-powered submarine.
32. Currently, section 305 provides that Minister must not enter into a conservation
agreement unless satisfied that that the agreement does not relate to the construction
or operation of any of the following nuclear installations: a nuclear fuel fabrication
plant, a nuclear power plant, an enrichment plant, a reprocessing facility.
33. Relevantly, the current effect of this provision is to prohibit the Minister from
entering into a conservation agreement unless satisfied that the agreement does not
relate to the construction or operation of a nuclear power plant.
34. The effect of this amendment is to clarify that the Minister is not prohibited from
entering into a conservation agreement that relates to the construction or operation of
a naval nuclear propulsion reactor related to use in a conventionally-armed, nuclear-
powered submarine.
Technical guidance
35. The word "plant" is aligned with the ARPANS Act and the EPBC Act and
encompasses the entire nuclear propulsion system of which the reactor is a part.
36. The term "naval nuclear propulsion plant" includes, but is not limited to, the
following aspects:
a. nuclear reactors;
b. reactor cooling systems;
c. reactor instrumentation and control technologies;
d. steam raising systems used for submarine propulsion and electricity
generation; and
e. radiation control and radiation safety systems.
37. The term "related to use in a conventionally-armed ... " encompass uses of the naval
nuclear propulsion plant in the past and future.
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Attachment B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Defence Legislation Amendment (Naval Nuclear Propulsion) Bill 2023
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 Bill clarifies that the current moratorium on civil nuclear power does not prevent the
relevant regulators (the CEO of the Australian Radiation Protection and Nuclear Safety
Agency (ARPANSA) and the Minister for the Environment and Water) from exercising their
regulatory powers and performing functions in respect of conventionally-armed, nuclear-
powered submarines.
Human rights implications
This Bill engages the right to health in Article 12 of the International Covenant on Economic,
Social and Cultural Rights (ICESCR). Article 12(1) of ICESCR recognises 'the right of
everyone to the enjoyment of the highest attainable standard of physical and mental health'.
Article 12(2)(b) provides that the steps to be taken by States Parties to achieve the full
realisation of this right shall include those necessary for 'the improvement of all aspects of
environmental and industrial hygiene'. In its General Comment No. 14 (paragraph 4), the
United Nations Committee on Economic, Social and Cultural Rights has interpreted Article
12 to extend to the underlying determinants of health, including a healthy environment.
The Bill engages, but does not limit, Article 12 of ICESCR, because the amendments
introduced by the Bill are intended only to clarify, not disrupt, the moratorium on civil
nuclear power, as it is expressed in the relevant sections of the ARPANS Act and the EPBC
Act. In particular, the Bill does not change the existing protections regarding the health and
safety of people and the environment contained in those Acts.
Section 3 of the ARPANS Act states that the objects of the Act are to 'protect the health and
safety of people, and to protect the environment, from the harmful effects of radiation'. The
Bill does not intend to detract from that object. In issuing a licence, approval, exemption or
declaration, the CEO of ARPANSA will still be required to consider the health and safety of
people or the protection of the environment. Relevantly, an application for a 'facility licence'
under section 30 of the ARPANS Act requires details of the applicant's plans and
arrangements for managing the facility, to ensure the health and safety of people and the
protection of the environment.
Similarly, in granting approval under the EPBC Act, the Minister for the Environment and
Water is required to comply with the approval process set out in Part 9 of that Act, which
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includes, as a mandatory consideration, economic and social matters. In considering those
economic and social matters, the Minister must have regard to the principles of ecologically
sustainable development, and any public environment reports or environmental impact
statements.
For these reasons, the Bill does not affect Australia's ability to implement its obligations
under Article 12 of the ICESCR.
Conclusion
This Bill is compatible with human rights as it engages, but does not limit, human rights.
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