Unless India agrees to open its military facilities to nuclear inspectors, sale of uranium by Australia to that country will be a breach of the federal government's obligations under the South Pacific Nuclear Free Zone Treaty, a noted legal expert said on Tuesday.
"Australia would be in breach of the so-called Rarotonga Treaty, if India does not change its stand," Donald Rothwell of Australian National University said in a written legal opinion.
The Rarotonga Treaty bans uranium sales to most countries unless they agree to "full-scope safeguards" defined by the Treaty on the Non-Proliferation of Nuclear Weapons.
The uranium sale policy is said to be the hot topic of discussion at this week's national conference of Australian Labor Party in Sydney. The Labor Party will debate on lifting its long standing ban on uranium sale to India.
"If India does not agree to Article 3.1 Non-Proliferation Treaty safeguards and Australia were to export uranium to India, Australia would be in violation of its Treaty of Rarotonga obligations," Rothwell was quoted as saying by Herald Sun.
This could lead to a challenge from other countries that are part of the treaty, he added.
The real question is the extent and scope of the safeguards. India would need to sign up to full-scope safeguards that would require it to open military facilities, Rothwell said.
He said India ratifying IAEA standards was "one step".
All countries -- apart from the five nuclear powers recognised in 1967 as weapons states (China, France, Russia, Britain and the US) -- are required to "not only have open inspections of civil facilities but any military facilities that use nuclear material".
"The five nuclear weapons states aren't required and that is the crux of why India thinks the NPT is discriminatory," Rothwell said.
Australia's nuclear agreements with Russia and China do not require the same level of safeguards as these countries were recognised as "nuclear weapon states" by the NPT.
Rothwell said answers by the then foreign minister Alexander Downer on the question of export of uranium to Taiwan in 1996 indicated that the federal government had received legal advice on its Rarotonga Treaty obligations when exporting to countries classified as "non-nuclear weapons states" by the NPT.
Downer, at the time, had told Parliament, "The South Pacific Nuclear Free Zone Treaty imposes a legal obligation not to provide nuclear material unless subject to the safeguards required by Article 3.1 of the NPT; that is full-scope safeguards."
On Sunday, Australian Prime Minister Julia Gillard's office said it didn't comment on the legal advice it received.
"The prime minister, as leader of the Labor Party, is seeking to change the party platform to allow the sale of uuranium from Australia to India. Any decision by the Australian government on the transfer of uranium to India will comply with our international treaty obligations," said a spokesman for Gillard.
Prime Minister Julia Gillard has earlier announced her plans to push her party to agree to change its stand to allow sale of uranium to India, which would create jobs in Australia and have safeguards attached.
A vote will be put to members at the party's national conference this weekend.
Tim Wright, the Australian director of ICAN, said the prime minister had failed to consult her lawyers.
"Not only is the sale of uranium to India illegal, it is also highly dangerous, given that India is rapidly bolstering its nuclear forces," Wright said.