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 | Leave a comment

Damning scientific report condemns the Australian Opposition’s push for nuclear power

Coalition’s brave nuke world a much harder sell after new CSIRO report

Graham Readfearn, https://www.theguardian.com/australia-news/article/2024/may/26/coalitions-brave-nuke-world-a-much-harder-sell-after-new-csiro-report?CMP=soc_568

The agency’s GenCost analysis says a first nuclear plant for Australia would deliver power ‘no sooner than 2040’ and could cost more than $17bn

The Coalition’s pitch on nuclear energy for Australia has had two recurring themes: the electricity will be cheap and it could be deployed within a decade.

CSIRO’s latest GenCost report – a document that analyses the costs of a range of electricity generation technologies – contradicts both of these points. It makes the Coalition’s job of selling nuclear power plants to Australians ever more challenging.

For the first time, the national science agency has calculated the potential costs of large-scale nuclear electricity in a country that banned the generation technology more than a quarter of a century ago.

Even using a set of generous assumptions, the CSIRO says a first nuclear plant would deliver power “no sooner than 2040” and could cost more than $17bn.

It is likely to spark an attack on the credibility of the report from nuclear advocates and those opposed to the rollout of renewable energy. Opposition leader, Peter Dutton, has already attacked the report.

In the meantime, Australia waits for the Coalition to say what kind of reactors it would deploy, where it would put them and how much it thinks they would cost.

Now that CSIRO has released its report, here’s what we know about the viability of a nuclear industry in Australia.

What’s new on nuclear costs?

CSIRO’s GenCost report says a 1,000 megawatt nuclear plant would cost about $8.6bn to build, but that comes with some large caveats. The main one is that this was the theoretical cost of a reactor in an Australia that already had an established and continuous program of building reactors.

The $8.6bn is based on costs in South Korea, which does have a continuous reactor building program and is one country the least beset by cost blowouts.

To make the cost more relevant, CSIRO compared the Australian and South Korean costs of building modern coal plants. Costs were more than double in Australia.

But CSIRO warns the first nuclear plants in Australia would be subject to a “first of a kind” premium that could easily double the $8.6bn build cost.

In the UK, a country that has been building reactors intermittently, costs for its under-construction Hinkley C reactor (more than three times the size of a theoretical 1,000MW reactor in Australia) started at $34bn and could now be as high as $89bn.

In the United States, the country’s largest nuclear plant has just turned on its final unit seven years behind schedule and at double the initial cost. There are no more nuclear plants under construction in the country.

What about the cost of the electricity?

CSIRO also offers cost estimates for the electricity produced by large-scale reactors, but those too assume a continuous nuclear building program in Australia.

Electricity from large-scale reactors would cost between $141 per megawatt hour and $233/MWh if they were running in 2030, according to GenCost.

Combining solar and wind would provide power at between $73 and $128/MWh – figures that include the costs of integrating renewables, such as building transmission lines and energy storage.

What about those small modular reactors?

The Coalition has also advocated for so-called “small modular reactors” which are not commercially available and, CSIRO says, are unlikely to be available to build in Australia until 2040.

One United States SMR project lauded by the Coalition collapsed in late 2023 because the cost of the power was too high.

That project, CSIRO says, was significant because its design had nuclear commission approval and was “the only recent estimate from a real project that was preparing to raise finance for the construction stage. As such, its costs are considered more reliable than theoretical projects.”

GenCost reports that power from a theoretical SMR in 2030 would cost between $230 and $382/MWh – much higher than solar and wind or large-scale nuclear.

How quickly could Australia build a nuclear plant?

Nuclear advocates tend to point to low nuclear power costs in countries that have long-established nuclear industries.

Australia has no expertise in building nuclear power, no infrastructure, no regulatory agency, no nuclear workforce and a public that is yet to have a serious proposition put in front of it.

Australia’s electricity grid is fast evolving from one dominated by large coal-fired power plants to one engineered for and dominated by solar, wind, batteries and pumped hydro with gas-fired power working as a rarely used backup.

This creates a major problem for the Coalition, because CSIRO estimates “if a decision to pursue nuclear in Australia were made in 2025, with political support for the required legislative changes, then the first full operation would be no sooner than 2040.”

Tony Wood, head of the Grattan Institute’s energy program, says: “By 2040, the coal-fired power stations will be in their graves. What do you do in the meantime?”

“You could keep the coal running, but that would become very expensive,” he says, pointing to the ageing coal fleet that is increasingly beset by outages.

Wood says the GenCost report is only a part of the story when it comes to understanding nuclear.

The Coalition, he says, would need to explain how much it would cost to build an electricity system to accommodate nuclear.

Could you just drop nuclear into the grid?

The biggest piece of generation kit on Australia’s electricity grid is a single 750 megawatt coal-fired unit at Kogan Creek in Queensland. Other power stations are larger but they are made up of a series of smaller units.

But the smallest of the “large-scale” nuclear reactors are about 1,000MW and most are 1,400MW.

Electricity system engineers have to build-in contingency plans if large units either trip or have to be pulled offline for maintenance. That contingency costs money.

In Australia’s current electricity system, the GenCost report says larger nuclear plants would probably “require the deployment of more generation units in reserve than the existing system consisting of units of 750MW or less.”

But by the time a theoretical nuclear plant could be deployed, most if not all the larger coal-fired units will be gone.

Who might build Australian nukes?

Some energy experts have questioned whether any company would be willing to take up a contract to build a reactor in Australia when there are existing nuclear nations looking to expand their fleets.

Right now, nuclear reactors are banned federally and in several states.

The GenCost report also points to another potential cost-raiser for nuclear – a lack of political bipartisanship.

The report says: “Without bipartisan support, given the historical context of nuclear power in Australia, investors may have to consider the risk that development expenses become stranded by future governments.”

May 30, 2024 Posted by Christina Macpherson | AUSTRALIA, politics | Leave a comment