It is a fundamental principle that the regulation of industries must be independent of the industries themselves. This is particularly important where products that have the potential to cause significant harm are concerned, such as alcohol, tobacco, firearms - or nuclear reactors.
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The Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) is tasked with protecting the public from the harmful effects of nuclear radiation.
ARPANSA's independence is critical in its capacity to fulfil that role.
It is alarming then that in the matter of Australia's proposed naval nuclear reactors, the principle of independent regulation is being abandoned.
Defence Minister Richard Marles announced on May 6 that from July 1 there will be "a new independent statutory regulator, the Australian Nuclear-Powered Submarine Safety Regulator".
The new regulator will be independent of the Defence Department and the ADF, but will be within the Defence portfolio and will report directly to the minister himself.
Thus the minister will oversee not only the acquisition, delivery, governance, waste disposal, weapons non-proliferation and other aspects of the submarines, but also the regulation of their safety.
The possibility of "regulatory capture" has alarmed ARPANSA's own Radiation Health and Safety Advisory Council, a committee made up of expert ARPANSA staff who advise the CEO.
In October 2022, the council wrote to the CEO, stating: "Independence of the regulator is a critical part of its effectiveness. The regulator should be independent of the operators and departments overseeing any aspect of purchase, manufacture, maintenance, and operation of the program. It is noted that some of the more significant global nuclear and radiation incidents have arisen from inadequate separation of responsibilities from regulatory capture."
The ARPANSA letter explicitly referred to a public safety risk in setting up a new regulator: "Separate and unaligned nuclear and radiation regulatory frameworks, for example a Commonwealth nuclear powered submarine regulator apart from existing jurisdictional radiation regulators, could present a risk to public safety."
Naval nuclear reactors - like all nuclear reactors - do present risks to public safety, despite what Mr Marles would have us believe. An issue for us - the public - is that there is strong precedent for information about the risks of naval reactors, and about actual safety breaches, to be withheld.
In the UK, the Ministry of Defence has been accused of a cover-up, because since 2017 annual reports from the ministry's internal watchdog on these matters, the Defence Nuclear Safety Regulator, have not been released. An appeal to a UK tribunal to force release of the reports was rejected in 2021, and the ministry has even rejected a freedom-of-information request seeking the reasons for its secrecy.
This matters very much because questions in the UK parliament revealed that there were 460 nuclear safety incidents between 2019-2021 alone at the two Trident nuclear submarine bases in Scotland. No details have been provided to the public on the precise nature of the incidents, despite there being incidents with "actual or high potential" for a release of radioactivity which could affect humans. The rate of incidents per year has risen since the BBC reported in 2018 on the previous 12 years.
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Mr Marles has assured us that Australia's proposed naval nuclear program will meet International Atomic Energy Agency (IAEA) standards. However the IAEA sets out in its governmental, legal and regulatory framework for safety a requirement that regulatory bodies be "effectively independent in ... safety related decision making and [have] functional separation from entities having responsibilities or interests that could unduly influence its decision making."
A system in which the regulator is answerable to the minister overseeing the activities being regulated is not "functional separation".
Additional problems with setting up a new nuclear regulatory body include the marginalising of the expertise and experience accumulated over many years within ARPANSA. Remember, too, that there is no existing Australian workforce with the skills and experience required to operate and regulate naval nuclear power. The sidelining of some of the very few people who do have nuclear regulatory skills makes no sense if robust regulation is the goal.
Which all leads to the question, why should the nuclear submarine regulator not be answerable to the minister (or assistant minister) for Health, as ARPANSA is, rather than the minister for defence? After all, its mandate will be to protect the health of Australians from any irradiation from the naval reactors, won't it?
Naval nuclear power is a bad idea for Australia, and the government's proposed regulatory arrangements are just another reason to ditch this dangerous plan.
- Dr Sue Wareham OAM is president of the Medical Association for Prevention of War (Australia).
