A nuclear powered Australia?

In the lead-up to national elections in 2025, Australia's federal parliamentary opposition, the Liberal-National Coalition has announced its plan to ensure security of supply and support emissions reduction targets by introducing nuclear power into Australia’s energy mix – a technology that has been banned in Australia for over 25 years.

While the economics and practicality of the Opposition's proposal continue to be hotly debated, in this article we set aside the political rhetoric and ask: What is the legal and regulatory framework for nuclear power generation, and what legislative roadblocks need to be cleared?

What is being proposed?

The Opposition’s proposal is to replace aging or decommissioned coal-fired power stations with a Government-owned fleet of large-scale nuclear power plants at sites in New South Wales, Queensland and Victoria, and two small modular reactors at sites in South Australia and Western Australia:

Notably, each of these sites is either owned privately, or by a State Government-owned corporation.

What laws ban nuclear power in Australia?

Nuclear power is banned under two federal laws: the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) and the Australian Radiation Protection and Nuclear Safety Act 1998 (Cth) (the ARPANS Act). These laws (together) prohibit the construction and operation of nuclear power plants, as well as facilities for the conversion or enrichment of nuclear material, the fabrication of fuels for use in nuclear reactors, and the reprocessing of spent fuel. More specifically, they require proponents to obtain Federal approvals in order to develop a nuclear power plant, and prohibit any such approval being given.

What about individual States and Territories?

Separately, all Australian States and Territories (other than Tasmania and the Australian Capital Territory) have enacted their own bans on either the development or operation of nuclear power plants (New South Wales, Queensland and Victoria) or the storage and / or transportation of nuclear waste (Northern Territory, South Australia and Western Australia) (or, in some cases, both):

• in New South Wales, the Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (NSW) prohibits the construction of a nuclear reactor or nuclear waste storage facility in New South Wales, as well as the operation of a nuclear reactor to generate electricity;
  
  
• in the Northern Territory, the Nuclear Waste Transport, Storage and Disposal (Prohibition) Act 2004 (NT) prohibits the construction or operation of an installation for the storage or disposal of nuclear waste in the Northern Territory, and the import of nuclear waste for delivery to a nuclear waste facility located in the Northern Territory (but does not prohibit movements within the Northern Territory generally, or transport to a place outside the Northern Territory);
  
  
• in Queensland, the Nuclear Facilities Prohibition Act 2000 (Qld) prohibits the construction or operation of a nuclear reactor or nuclear waste storage facility in Queensland, and prevents nuclear facilities from obtaining State development approval under the Planning Act 2016 (Qld) or the Economic Development Act 2012 (Qld) or "generating authority" (required to connect a generation plant to the electricity grid) under the Electricity Act 1994 (Qld);
  
  
• in South Australia, the Nuclear Waste Storage Facility (Prohibition) Act 2000 (SA) prohibits the construction or operation of an installation for the storage or disposal of nuclear waste in South Australia, and the transport of nuclear waste for delivery to a nuclear waste facility located in South Australia (but does not prohibit movements within South Australia generally, or transport to a place outside South Australia);
  
  
• in Victoria, the Nuclear Activities (Prohibition) Act 1983 (Vic) prohibits the construction of a nuclear reactor or nuclear waste storage facility in Victoria, as well as the operation of a nuclear reactor to generate electricity; and
  
  
• in Western Australia, the Nuclear Waste Storage and Transportation (Prohibition) Act 1999 (WA) prohibits (among other things) storage or transportation of nuclear waste within Western Australia.

Can the Federal Government remove this ban?

The Commonwealth Government could lift the federal ban on the development of nuclear power plants by deleting the words, "a nuclear power plant" from sections 37J, 140A, 146M and 305(2)(d) of the EPBC Act. Doing so would reinstate the pathway for federal environmental approval of nuclear installations under that Act.

However, this would only address the federal ban on private development. As the Opposition's proposal is to develop Government-owned nuclear generation facilities, this also requires changes to the ARPANSA Act to lift the ban on Commonwealth entities or contractors being licenced under that Act to construct or operate nuclear power plants. This could be achieved by deleting the words, "a nuclear power plant" from section 10 of that Act. (The Commonwealth would likely establish a "delivery authority" for nuclear power plants similar to Snowy Hydro Ltd, being an Australian public company limited by shares with the Commonwealth of Australia as the sole shareholder. This would be a "Commonwealth entity" under the ARPANSA Act.)

The Commonwealth Government would still, then, need to convince each of the Australian States nominated to host a nuclear power plant (New South Wales, Queensland, South Australia, Victoria and Western Australia) to change their laws, to lift their bans on nuclear power (where, under Chapter V of the Australian Constitution, matters relating to onshore power generation remain within the exclusive purview of the States).

In Queensland in particular, the Commonwealth "[taking] any step supporting or allowing" construction of a nuclear power plant triggers a requirement for the State to conduct a public referendum on the issue (section 21 of the Nuclear Facilities Prohibition Act 2007 (Qld)). This said, Queensland has (unusually) only one House of Parliament, currently controlled by the Coalition-aligned Liberal National Party. There is nothing to prevent the law being changed to remove this requirement at the same time as lifting the ban on nuclear power in the State.