30 May 2024
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 materials
- 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 provides that a relevant entity (as set out below)
must not take a nuclear action unless a requisite approval has been obtained
under Part 9 of the Act or a relevant exception applies:
- a constitutional corporation, the Commonwealth or Commonwealth
agency is prohibited from undertaking a nuclear action that has, will have or
is likely to have a significant impact on the environment[12]
- a person is prohibited from undertaking a nuclear action that
has, will have or is likely to have a significant impact on the environment in
some circumstances where the Commonwealth may have jurisdiction.[13]
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’.[21]
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 codes for protection from radiological exposure actions
including in relation to:
- human health and environmental risks and outcomes; and
- radiological
impacts on biological diversity, 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
Author acknowledgement: this quick
guide updates work prepared historically by Sophie Power.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
This work has been prepared to support the work of the Australian Parliament using information available at the time of production. The views expressed do not reflect an official position of the Parliamentary Library, nor do they constitute professional legal opinion.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Entry Point for referral.
[1].
Other Commonwealth legislation relevant to nuclear activities include: Atomic Energy
Act 1953; Customs
(Prohibited Imports) Regulations 1956; Customs
(Prohibited Exports) Regulations 1958; Defence Trade
Controls Act 2012; National
Radioactive Waste Management Act 2012; Nuclear
Non-Proliferation (Safeguards) Act 1987; Nuclear
Safeguards (Producers of Uranium Ore Concentrates) Charge Act 1993;
South
Pacific Nuclear Free Zone Treaty Act 1986; Weapons of
Mass Destruction (Prevention of Proliferation) Act 1995.
Commonwealth
laws and bills relevant to naval nuclear propulsion include: Defence
Legislation Amendment (Naval Nuclear Propulsion) Act 2023; Australian
Naval Nuclear Power Safety Bill 2023; Australian
Naval Nuclear Power Safety (Transitional Provisions) Bill 2023.
[2].
Gillian Hirth (Chief Executive Officer, Australian Radiation Protection and
Nuclear Safety Authority), Evidence
to the Senate Environment and Communications Legislation Committee, Inquiry
into the Environment and Other Legislation Amendment (Removing Nuclear Energy
Prohibitions) Bill 2022, Canberra, 15 May 2023, 53–54.
[3].
See for example: Environment
Protection and Biodiversity Conservation Act 1999 (Cth), subsection
22(1); Uranium
Mining and Nuclear Facilities (Prohibitions) Act 1986 (NSW), section 4;
Nuclear
Activities Regulation Act 1978 (WA), section 4.
[4].
Controlled persons also include ‘a person in the capacity of an
employee of a Commonwealth contractor’ and ‘a person in a prescribed
Commonwealth place’: section 13. One location has been prescribed as a prescribed
Commonwealth Place: regulation 15, Australian
Radiation Protection and Nuclear Safety Regulations 2018.
[5].
Nuclear installation is defined in section 13 of the ARPANS Act. See
also Subdivision A of Division 3 of Part 3 of the Regulations.
[6].
ARPANS Act, subsection 32(1).
[7].
ARPANS Act, subsection 32(3). Additional matters to be taken into account are
set out in regulation 53 of the Australian
Radiation Protection and Nuclear Safety Regulations 2018.
[8].
ARPANS Act, subsection 10(1).
[9].
MNES are set out in Part 3 of the EPBC Act. Parts 7, 8 and 9 establish the
processes for determining whether or not approval is required (that is, whether
the action is a controlled action), assessment, and approval of controlled
actions respectively.
[10].
Nuclear actions are defined in subsection 22(1) of the EPBC Act, with
additional relevant information prescribed in Division 2.1 of Part 2
of the Environment
Protection and Biodiversity Conservation Regulations 2000.
[11].
EPBC Act, Subdivision E, Division 1, Part 3. Environment is defined broadly in
section 528.
[12].
EPBC Act, subsection 21(1), with exceptions provided at subsection 21(4).
[13].
EPBC Act, subsections 21(2) and 21(3), with exceptions provided at subsection
21(4).
[14].
EPBC Act, section 22A, with exceptions provided at subsection 22A(8).
[15].
EPBC Act, subsection 26(1), with exceptions provided at subsection 26(3).
[16].
EPBC Act, subsection 26(2), with exceptions provided at subsection 26(3).
[17].
EPBC Act, subsection 28(1), with exceptions provided at subsection 28(2).
[18].
EPBC Act, subsections 26(1) and (2), subsections 27A(1), (2), (3) and (4), and
subsection 28(1).
[19].
Graeme Samuel, Independent
Review of the EPBC Act — Final Report, (Canberra: Department of
Agriculture, Water and the Environment, October 2020), 48.
[20].
Samuel, Independent Review of the EPBC Act — Final Report, 48.
[21].
Department of Climate Change, Energy, the Environment, and Water (DCCEEW), Nature
Positive Plan: Better for the Environment, Better for Business,
(Canberra: DCCEEW, December 2022), 15.
[22].
DCCEEW, Consultation
on National Environmental Laws 21–23 February 2024, 87 (of pdf).
[23].
Radiation
Protection Act 2006 (ACT); Protection
from Harmful Radiation Act 1990 (NSW); Radiation
Protection Act 2004 (NT); Radiation
Safety Act 1999 (Qld); Radiation
Protection and Control Act 2021 (SA); Radiation
Protection Act 2005 (Tas); Radiation
Act 2005 (Vic); Radiation
Safety Act 1975 (WA).
[24].
Mining Act 1992
(NSW), section 10A.
[25].
Uranium
Mining and Nuclear Facilities (Prohibitions) Act 1986 (NSW), section 7.
There is an exemption for the incidental mining of a small quantity of uranium
during mining for other minerals: subsection 7(3).
[26].
Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (NSW),
section 8.
[27].
Atomic
Energy Act 1953, section 35.
[28].
See also: Environment
Protection (Alligator Rivers Region) Act 1978 (Cth); Radioactive
Ores and Concentrates (Packaging and Transport) Act 1980 (NT).
[29].
Further information is available on the Department of Industry, Science and
Resources webpage ‘Regulating
the Ranger Uranium Mine’.
[30].
Nuclear
Waste Transport, Storage and Disposal (Prohibition) Act 2004 (NT),
sections 6 and 7.
[31].
Nuclear Waste Transport, Storage and Disposal (Prohibition) Act 2004
(NT), section 2.
[32].
Nuclear Waste Transport, Storage and Disposal (Prohibition) Act 2004
(NT), sections 13 and 14.
[33].
Qld Department of Resources, Mineral
and Coal Exploration Guideline, (March 2021), 2; Mark Ludlow, ‘Qld
Labor Sworn in and Swears off Uranium’, Australian Financial Review,
14 February 2015; Steven Wardill, ‘Ban
on Uranium Mining in Queensland to be Introduced by Palaszczuk Government’,
Courier Mail, 14 March 2015.
[34].
Qld Department of Resources, Mineral
and Coal Exploration Guideline, 3.
[35].
Nuclear
Facilities Prohibition Act 2007 (Qld), section 7.
[36].
Nuclear Facilities Prohibition Act 2007 (Qld), section 21.
[37].
See also: Roxby
Downs (Indenture Ratification) Act 1982.
[38].
Radiation
Protection and Control Act 2021 (SA), section 28.
[39].
Nuclear
Waste Storage Facility (Prohibition) Act 2000 (SA), sections 8 and 9.
[40].
Nuclear Waste Storage Facility (Prohibition) Act 2000 (SA), section 13.
[41].
Nuclear Waste Storage Facility (Prohibition) Act 2000 (SA), section 14.
[42].
Nuclear
Activities (Prohibitions) Act 1983 (Vic), sections 5, 6 and 8.
[43].
Tim Clarke, ‘Barnett
Lifts WA Uranium Ban’, WA Today, 17 November 2008.
[44].
Department of Mines, Industry Regulatory and Safety (WA), Uranium
Mining Policy, DMPMAY19_5858, n.d.
[45].
Nuclear
Waste Storage and Transportation (Prohibition) Act 1999 (WA), sections
7 and 7A. Nuclear waste is defined in section 3.