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Summary of Australian federal and state/territory nuclear/uranium laws and prohibitions

Current prohibitions on nuclear activities in Australia: a quick guide

From Jim Green, 30 May 2024

https://www.aph.gov.au/About_Parliament/Parliamentary_departments/Parliamentary_Library/pubs/rp/rp2324/Quick_Guides/NuclearActivitiesProhibitions
PDF Version [564KB]
Dr Emily Gibson
Science, Technology, Environment and Resources; Law and Bills Digest Sections
This quick guide provides an overview of current prohibitions on nuclear activities under Commonwealth, state and territory laws. It considers the primary legislation most relevant to current policy debates about domestic nuclear energy only and consequently does not consider recent changes to Commonwealth law to facilitate Australia’s acquisition of conventionally-armed, nuclear-powered submarines under the AUKUS partnership.[1] It also does not include consideration of Australia’s international obligations in respect of nuclear activities, including the safeguarding of nuclear materials and the non-proliferation of nuclear weapons.

If a domestic nuclear energy industry were to progress, it is expected that a comprehensive framework for the safety, security and safeguarding of the related nuclear material would need to be legislated to accommodate such an industry.[2] Consideration of these issues is beyond the scope of this paper.

What are nuclear activities?

A nuclear activity is any process or step in the utilisation of material capable of undergoing nuclear fission; that is, any activities in the nuclear fuel cycle.[3] Nuclear activities therefore include:

• mining of nuclear or radioactive materials such as uranium and thorium milling, refining, treatment, processing, reprocessing, fabrication or enrichment of nuclear material  
• the production of nuclear energy 
• the construction, operation or decommissioning of a mine, plant, facility, structure, apparatus or equipment used in the above activities
• the use, storage, handling, transportation, possession, acquisition, abandonment or disposal of nuclear materials, apparatus or equipment.

Prohibitions on nuclear activities

Commonwealth

Nuclear activities are regulated under the Australian Radiation Protection and Nuclear Safety Act 1998 (ARPANS Act) and the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

Australian Radiation Protection and Nuclear Safety Act 1998

The ARPANS Act establishes a licensing framework for controlled persons (including a Commonwealth entity or a Commonwealth contractor) in relation to controlled facilities (a nuclear installation, a prescribed radiation facility, or a prescribed legacy site).[4] A nuclear installation includes a nuclear reactor for research or the production of radioactive materials for industrial or medical use, and a radioactive waste storage or disposal facility with an activity that is greater than the activity level prescribed by the Australian Radiation Protection and Nuclear Safety Regulations 2018.[5]

The ARPANS Act allows the CEO of the Australian Radiation Protection and Nuclear Safety Agency   (ARPANSA) to issue licences for controlled facilities.[6] In issuing a facility licence, the CEO ‘must take into account the matters (if any) specified in the regulations, and must also take into account international best practice in relation to radiation protection and nuclear safety’.[7]

However, subsection 10(2) of the Act expressly prohibits the CEO from granting a licence for 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.[8] This prohibition does not appear to apply to a radioactive waste storage or disposal facility.

Environment Protection and Biodiversity Conservation Act 1999

The EPBC Act establishes 9 matters of national environmental significance (MNES) and provides for the assessment and approval of these actions if the action has, will have, or is likely to have a significant impact on the MNES.[9] ‘Nuclear actions’ are one of the MNES.[10] Where a nuclear action is determined to be a controlled action (that is, one likely to have a significant impact and requiring assessment and approval under the Act), the assessment considers the impact of a nuclear action on the environment generally (including people and communities).[11]

The Act establishes offences for the taking of nuclear actions in those circumstances.[14]

Similarly, the Act provides that a relevant entity (as set out below) must not take an action (including a nuclear action) unless a requisite approval has been obtained under Part 9 of the Act or a relevant exception applies:

• a person must not take a relevant action on Commonwealth land that has, will have or is likely to have a significant impact on the environment[15]   
•  a person must not take a relevant action outside Commonwealth land if the action has, will have or is likely to have a significant impact on the environment on Commonwealth land[16]  
• the Commonwealth or a Commonwealth agency must not take inside or outside the Australian jurisdiction an action that has, will have or is likely to have a significant impact on the environment inside or outside the Australian jurisdiction.[17]

The Act establishes offences and civil penalty provisions for the taking of an action in those circumstances.[18]

Subsection 140A(1) prohibits the Minister for the Environment from granting an approval for a nuclear action relating to specified nuclear installations. These installations are a nuclear fuel fabrication plant, a nuclear power plant, an enrichment plant, and a reprocessing facility.

Potential reform of the nuclear action trigger

The second independent review of the EPBC Act, completed in October 2020 by Professor Graeme Samuel (Samuel Review), recommended that the nuclear actions MNES be retained.[19] The review recommended that ‘the EPBC Act and the regulatory arrangements of [ARPANSA] should be aligned, to support the implementation of best-practice international approaches based on risk of harm to the environment, including the community’.[20]

In 2022, the Government’s Nature Positive Plan adopted this approach and stated, ‘[a] uniform national approach to regulation of radiation will be delivered through the new National Environmental Standards’.

In February 2024, a policy draft of the National Environmental Standard for Matters of National Environmental Significance indicates that ‘nuclear actions’ will be renamed ‘radiological exposure actions’ and states:

Relevant decisions must:

   Not be inconsistent with the ARPANSA national codesfor protection from radiological exposure actions including in relation to:   

1.  human health and environmental risks and outcomes; and. radiological impacts on biological diversity, 
2. the conservation of species and the natural health of ecosystems.[22]

States and territories

States and territories generally regulate nuclear and radiation activities through either the health or the environmental protection portfolios. The relevant legislation provides for the protection of health and safety of people, and the protection of property and the environment, from the harmful effects of radiation by establishing licensing regimes to regulate the possession, use, and transportation of radiation sources and substances.[23] Mining of radioactive materials is regulated through the resources portfolio.

In addition, as outlined below, the states and territories have legislation prohibiting certain nuclear activities or the construction and operation of certain nuclear facilities. Importantly, where permitted, nuclear activities (including mining) would also be subject to assessment and approvals under a range of other legislation, including planning and environmental impact assessment, native title and cultural heritage, and radiation licensing laws at the state or territory and Commonwealth level.

New South Wales

Exploration for uranium has been permitted under the Mining Act 1992 since 2012.[24] However, the mining of uranium is prohibited by the Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (NSW Prohibitions Act).[25]

The NSW Prohibitions Act also prohibits the construction and operation of certain nuclear facilities, including uranium enrichment facilities, fabrication and reprocessing plants, nuclear power plants, and storage and waste disposal facilities (other than for the storage and disposal of waste from research or medical purposes, or the relevant radiological licensing Act).[26]

Northern Territory

The Atomic Energy Act 1953 (Cth) provides that the Commonwealth owns all uranium found in the territories.[27] Uranium exploration and mining in the Northern Territory (NT) is regulated under both NT mining laws (the Mineral Titles Act 2010 and the Mining Management Act 2001) and the Atomic Energy Act.^[28] The Ranger Uranium Mine operated until 2021 and is now undergoing rehabilitation.[29]

The Nuclear Waste Transport, Storage and Disposal (Prohibition) Act 2004 (NT) prohibits the construction and operation of nuclear waste storage facilities, as well as the transportation of nuclear waste for storage at a nuclear waste storage facility in the NT.[30] Nuclear waste is defined as including waste material from nuclear plants or the conditioning or reprocessing of spent nuclear fuel.[31]

This Act also:

•  prohibits public funds from being expended, granted or advanced to any person for, or for encouraging or financing any activity associated with the development, construction or operation of a nuclear waste storage facility  
•  would require the NT Parliament to hold an inquiry into the likely impact of a nuclear waste storage facility proposed by the Commonwealth on the cultural, environmental and socio‑economic wellbeing of the territory.[32]

Queensland

Exploration for and mining of uranium are permitted under the Mineral Resources Act 1989. However, it has been government policy to not grant mining leases for uranium since 2015.[33] The government policy ban extends to the treatment or processing of uranium within the state.[34]

The Nuclear Facilities Prohibition Act 2007, in similar terms to the NSW Prohibitions Act, prohibits the construction and operation of nuclear reactors and other nuclear facilities in the nuclear fuel cycle.[35]

Unlike other state and territory prohibition legislation, the Nuclear Facilities Prohibition Act would require the responsible Queensland Minister to hold a plebiscite to gain the views of the Queensland population if the Minister was satisfied that the Commonwealth Government has taken, or is likely to take, steps to amend a Commonwealth law or exercise a power under a Commonwealth law to facilitate the construction of a prohibited nuclear facility, or if the Commonwealth Government adopts a policy position of supporting or allowing the construction of a prohibited nuclear facility in Queensland.[36]

South Australia

The exploration and mining of radioactive material (including uranium) is permitted in South Australia (SA), subject to approvals under the Mining Act 1971 and the Radiation Protection and Control Act 2021 (RP&C Act).[37] For example, uranium is mined at Olympic Dam, Four Mile and Honeymoon. However, conversion and enrichment activities are prohibited by the RP&C Act.[38]

The Nuclear Waste Storage Facility (Prohibition) Act 2000 prohibits the construction or operation of a nuclear waste storage facility, and the import to SA or transport within SA of nuclear waste for delivery to a nuclear waste storage facility.[39]

The Nuclear Waste Storage Facility (Prohibition) Act prohibits the SA Government from expending public funds to encourage or finance the construction or operation of nuclear waste storage facilities.^[40] The Act would also require the SA Parliament to hold an inquiry into the proposed construction or operation of a nuclear waste storage facility in SA authorised under a Commonwealth law.[41]

Tasmania

The exploration and mining of atomic substances (which includes uranium and thorium) is permitted under the Mineral Resources Development Act 1995 (Tas), subject to approval.

Victoria

The Nuclear Activities (Prohibitions) Act 1983 prohibits a range of activities associated with the nuclear fuel cycle, including the exploration and mining of uranium and thorium, and the construction or operation of facilities for the conversion or enrichment of any nuclear material, nuclear reactors and facilities for the storage and disposal of nuclear waste from those prohibited activities.[42]

Western Australia

Exploration for and mining of uranium is permitted under the Mining Act 1978. A state policy ban on mining approvals was overturned in November 2008;[43] however, this was reinstated in June 2017, with a ‘no uranium’ condition on future mining leases.[44] The ban does not apply to 4 projects that had already been approved by the previous government.

The Nuclear Activities Regulation Act 1978 aims to protect the health and safety of people and the environment from possible harmful effects of nuclear activities, including by regulating the mining and processing of uranium and the equipment used in those processes. The Nuclear Waste Storage and Transportation (Prohibition) Act 1999 also prohibits the storage, disposal or transportation in Western Australia of certain nuclear waste (including waste from a nuclear plant or nuclear weapons).[45]

Can the Commonwealth override a state ban on nuclear activities?

The Commonwealth Parliament only has the power to make laws in relation to matters specified in the Constitution of Australia, including in sections 51, 52 and 122. Assuming the Commonwealth has a sufficient head of power to legislate, section 109 of the Constitution specifically provides for circumstances in which there might be an inconsistency between Commonwealth and state laws:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Therefore, even though some states have enacted prohibitions on certain nuclear activities within their jurisdictions, the Commonwealth Parliament could enact specific legislation in relation to nuclear activities so that such activities can take place within those jurisdictions. One such example is the National Radioactive Waste Management Act 2012 (Cth), which provides for the establishment of a national radioactive waste management facility at a site to be declared by the responsible Commonwealth Minister. Section 12 of that Act provides that state and territory laws have no effect in regulating, hindering, or preventing such a facility

Further information

• ‘Who we regulate’, ARPANSA 
•  ‘State & territory regulators’, ARPANSA    
• ‘Uranium and thorium’, in Geoscience Australia, Australia’s Energy Commodity Resources, 2023 Edition, (Canberra: Geoscience Australia, 2023).

June 3, 2024 - Posted by Christina Macpherson | AUSTRALIA, politics