Late on the last night of the last sitting of Federal Parliament for 2017, Australia's two major parties passed a new law that is civil by name, but it is desperately uncivil in nature.
The Indian Civil Nuclear Transfers Act1 exists to provide certainty to Australian uranium producers who want to sell to India. In 2015, a detailed investigation by the Federal Parliament's treaties committee found there were serious and unresolved nuclear safety, security and governance issues with the proposed sales plan.2
The treaties committee also found a high level of legal uncertainty. Australian National University professor of international law, Don Rothwell, said the plan was in conflict with international treaty provisions, most notably the South Pacific Nuclear Weapons Free Zone Treaty.3 Former Australian Safeguards and Non-proliferation Office Director-General, John Carlson, said the plan was in conflict with Australian domestic safeguards legislation requiring the tracking of Australian uranium (and its by-products) overseas.
Given the severity of the inconsistencies and the significance of the issues involved, the government-controlled treaties committee took the unusual step of voting against the clear direction of the prime minister and foreign affairs minister and recommended that the Indian sales deal not be advanced unless several outstanding issues were addressed.5
This decision was welcomed by many. But not by Minister for Foreign Affairs Julie Bishop. A terse response to a measured and bipartisan report said the government was "satisfied" that steps had been taken to address each condition, and did not agree that exports to India should be deferred.6
The commercial interests of an underperforming industrial sector were given priority above parliamentary process and evidence-based, prudent public policy. But this favoritism was not enough to paper the deep cracks in this dangerous plan and now the government has rushed through the new laws to close the door on legal challenge and scrutiny.
The new law protects uranium mining companies in Australia from domestic legal action that challenges the consistency of the safeguards applied by the International Atomic Energy Agency in India and Australia's international non-proliferation obligations. It also protects any future bilateral trade in other nuclear-related material or items for civil use.
A recent truncated review of the new law said the bill "provides the certainty required to give effect to the Australia-India Agreement".7 So Australian uranium miners, who supplied the product that directly fuelled Fukushima8, are now legally covered from any challenge over a highly contested plan to sell to India.
This move highlights the extent and the risks of the Australian government's preoccupation with ending civil society access to legal recourse. Further, fast-tracking legal favors to provide certainty to the uranium industry simply highlights how profoundly uncertain this industry is. Following Fukushima, the global uranium market has crashed, as has the value of uranium stocks. Prices, profits and employment numbers have gone south. IBIS World's March 2015 market report said only 987 people are employed in Australia's uranium industry.9 Few jobs and dollars, considerable damage at home and escalating risk abroad.
The fragile economics of the uranium sector make it understandable that the industry is pushing for every potential market but fail to explain why our federal government is so intent on trying to pick winners with a sector that is clearly losing. Sadly, and unreasonably, the India uranium deal has become seen as a litmus test for bilateral relations.
Talk of a massive surge in exports is fanciful, and promoting Australian uranium as the answer to Indian energy poverty is more convenient than credible. Political proponents of the trade are driven less by substance than style ‒ the symbolism of Australia and India on the same page and open for business.
In a telling reference, a recent review of the new law highlighted the importance of the "foreign policy backdrop to Australia's nuclear trade with India".10 Sending political signals through trade is not unusual but to do so by ignoring substantive warning signals is unwise. When those warnings and that trade relate to nuclear materials, it is deeply irresponsible.
Buttressing flawed trade deals with bolt-on legislative exemptions is poor policy and practice and while all trades have trade-offs, this one risks far too much.