Allens

Energy

Client Update: Energy – Queensland bans nuclear facilities

1 March 2007

In brief: The Queensland Government has legislated to ban the construction or operation of nuclear facilities in the state. As Partner Ken MacDonald (view CV) and Lawyer John Hedge report, this was prompted by the Federal Government's moves to consider the use of nuclear energy to help meet Australia's future energy needs.

How does it affect you?

  • The legislation prohibits construction or operation of nuclear reactors, nuclear waste storage sites and other nuclear facilities in Queensland.
  • The legislation does not prohibit uranium mining or exploration, but also does not alter the Queensland Government's current policy of not allowing uranium mining.

Background to the ban

The Nuclear Facilities Prohibition Act 2007 (Qld) (the Act) is a reaction to the recent report by the Uranium Mining, Processing and Nuclear Energy Review Task Force (Uranium Mining, Processing and Nuclear Energy – Opportunities for Australia?), commissioned by the Commonwealth Government, which made key findings including:

  • increased uranium mining and involvement in downstream steps of uranium conversion, enrichment and fuel fabrication could add significant value to the Australian economy;
  • in one scenario, 25 nuclear reactors could be producing about a third of Australia's electricity by 2050; and
  • Australia has areas that are suitable for nuclear waste repositories.

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Extent of the ban

The Act prohibits the construction or operation of nuclear facilities, which include nuclear reactors, nuclear fuel enrichment facilities and reprocessing plants, and nuclear waste storage or disposal facilities. The Act prevents development approvals and mining tenements from authorising the construction or operation of nuclear facilities and prevents electricity generating authorities from authorising the connection to the electricity grid of nuclear reactors.

There are exceptions for storage or disposal of radioactive waste material resulting from the use of nuclear material for research or medical purposes, other purposes authorised under the Radiation Safety Act 1999 (Qld), or the operation of a nuclear-powered vessel.

The Act provides various enforcement mechanisms for preventing or remedying activities conducted in breach of the ban, including restoration and rehabilitation orders.

Exploration and mining for uranium are not prohibited by the Act. However, the Act does not alter the Queensland Government's current policy of not allowing uranium mining, although that stance may change, depending on the outcome of the Australian Labor Party's national conference in April 2007.

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Referendums and the potential for the ban to be overruled

There has been conjecture that, if it desired, the Federal Government could overturn Queensland's prohibition laws and similar legislation in New South Wales and Victoria (both of which also extend to prohibiting uranium exploration and mining) by enacting inconsistent Commonwealth legislation supported by other constitutional heads of power (such as the power to make laws in relation to trading and financial corporations).

However, the Act also provides that if the relevant Minister is satisfied that the Federal Government has taken, or is likely to take, any step supporting or allowing the construction of a prohibited nuclear facility in Queensland, a plebiscite or referendum regarding the construction of a prohibited nuclear facility may be held. While even an overwhelming vote against a proposed facility would not prevent the law being overturned, it may make doing so a very difficult political decision for the Federal Government.

For further information, please contact:

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