Australia could be forced to throw away any information on naval nuclear capability in an agreement underpinning the AUKUS deal, new documents suggest.
Clauses in the agreement between Australia, the United States and the United Kingdom, allowing trilateral information sharing on naval nuclear technology, have raised concerns defence could be left with no submarines or alternatives if one party chooses to rip up the agreement.
Within the Exchange of Naval Nuclear Propulsion Information (ENNPIA), clause 37 states; "in the event a party terminates or materially breaches the ENNPIA, or determines it to be invalid, the other parties have the right to require the return or destruction of any naval nuclear propulsion information exchanged under the ENNPIA".
On Monday, Labor senator Kimberley Kitching queried a litany of bureaucrats from involved in the deal, asking what Australia's obligations would be if the agreement was axed.
"The decision to acquire nuclear-propelled submarines under the AUKUS agreement with the United States and United Kingdom is central to Australia's regional security and posture, and I note, received bipartisan support," Senator Kitching told The Canberra Times.
"Therefore, it is imperative that we have clarity and transparency about what the information sharing components of this entail."
The ENNPIA is an 18-month consultation period which will determine the best plan for nuclear submarines.
Its implementation is expected to take effect from January following the AUKUS agreement that was signed on September 16.
During her questioning which was interrupted by a division in the senate, Senator Kitching claimed information obtained is hard to unknow once it had been divulged.
"I understand you can return material, you can destroy material, but what happens to the knowledge that you have now have sort of within you?" she said.
"It's very hard to unknow knowledge."
The ENNPIA agreement in clause 38 also states: "Obligations relating to use and non-disclosure of navel nuclear propulsion information, intellectual property, and security will continue to force notwithstanding any termination, expiration, or suspension of the ENNPIA, for the duration that naval nuclear propulsion information provided under the ENNPIA remains in the recipient Party's jurisdiction or control".
It is understood if one country were to walk away from the information agreement, the Australian government would be left with no information relating to nuclear submarine construction.
The acquisition of nuclear submarines through the AUKUS arrangement has been sparked by a deteriorating security situation in the Indo-Pacific due to a more hostile China. Australia's submarines will be based on UK and US nuclear reactor technology.
The Morrison government's endeavours to acquire nuclear submarines has already angered ally France, after its multi-billion dollar contract for diesel attack-class submarines was dumped in favour of the AUKUS agreement.
The French made submarines were being constructed by naval shipping company Naval in South Australia.
Scott Dewer, a senior official for the Department of Defence said the ENNPIA agreement was necessary for Australia to obtain the necessary information from the US and the UK.
"This enables us to receive information from the US and the UK that is otherwise not available to without this treaty being in place," he said.
"Australia must become a party to the exchange of naval nuclear propulsion agreement ... as soon as possible."
Labor MP Josh Wilson raised concern about the precedent Australia's ambitions would mean for non-proliferation treaties, claiming legal loopholes exploited would pave a way for countries like Iran and Brazil to construct weapons grade nuclear technology.
"What is being proposed here would be groundbreaking," Mr Wilson exclaimed.
"What is being [discussed] here as a I understand it is Australia would come into possession of weapons grade fissionable material that would be exempted from the safeguard regime. And that would be the first time [it has] ever happened."
Head of the AUKUS deal at the Department of Foreign Affairs and Trade, Katrina Cooper said Mr Wilson's points were assumptions and the 18 month consultation phase would find the best solution which works within Australia's non-proliferation agreements and the safeguards of the International Atomic Energy Agency.
The witnesses from Defence, DFAT and the Attorney General's office said the deal does not include the implementation of nuclear weapons by the ADF.
"We are the beginning of a process of an 18 month consultation," Ms Cooper said.
"We will be working through the various technical issues including with our NPT obligations in mind."
The panel noted it was too early to tell if further agreements would need to be struck.
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