- by Graham Holton
- The Guardian
- Issue #2125
Image: Nicolas Raymond – freestock.ca / flickr.com (CC BY 2.0)
Opposition Leader Peter Dutton proposes to build either nuclear power plants, or small modular reactors, on retiring coal sites in Queensland, NSW, Victoria, South Australia, and Western Australia. Minister Chris Bowen said the Coalition had provided no costings nor details. “Even on their own timetable, which is hugely ambitious, they couldn’t get a nuclear Australia until 2035 or 2037.”
Last month backbenchers, led by Hunter Valley MP Dan Repacholi, initiated the Albanese government’s parliamentary inquiry into the Opposition’s nuclear policy. The Inquiry is due to report back by 30 April 2025, clearing the way for a federal election next year.
The problem is that nuclear power generation is banned in Australia by federal legislation: the Environment Protection and Biodiversity Conservation Act 1999; and the Australian Radiation Protection and Nuclear Safety Act 1998, which only allows the research reactor at Lucas Heights, NSW. For the LNP to build Dutton’s 7 nuclear power stations it will need to lift this ban.
The federal Coalition said it will use Commonwealth powers to deliver on its nuclear promises. But this is not easy. The federal parliament first needs to pass laws to authorise and regulate the operation of nuclear power plants and this requires them to convince the federal parliament to lift the prohibition on nuclear power.
Before a plant can be built, the LNP government would need to find a dumping site for the nuclear waste and convince local communities and train workers to allow the handling of uranium. The federal parliament also needs laws to regulate nuclear plants, and this relies on constitutional powers covering trade and commerce; corporations: external affairs; and the territories.
The LNP says that under Section 52 of the Constitution it can compulsorily acquire land in any state for public purposes over which it can exercise full and exclusive legislative power. Again, this is not straight forward. In the past administrative laws at the federal level have been used to stymie the construction of a nuclear waste facility. Although the government could have put through new legislation, it lacked the numbers in the Senate. In this case politics was a stronger weapon than the law.
Dutton proposes to build nuclear plants in Queensland at Tarong in north-west of Brisbane and at Callide, west of Gladstone, which Qld Premier, David Crisafulli strongly opposes. After the Qld LNP election victory, federal Nationals leader, David Littleproud, said if the Coalition wins the next federal election, he expected Queensland to fall into line on nuclear power stations. For this the LNP must overcome a constitutional hurdle.
The Queensland parliament, under the Peter Beattie Labor government, enacted the Nuclear Facilities Prohibition Act 2007 to stop any Commonwealth government from overriding the ban. It includes section 21, which triggers a compulsory plebiscite when the Commonwealth government wants to construct a prohibited nuclear facility in Queensland.
Federal constitutional law suggests that Queensland has no legal power to counter a federal government determined to build nuclear reactors in Queensland. Under Section 109 of the Australian Constitution: “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.”
Professor Graeme Orr, an electoral law expert from University of Queensland, disagrees. He believes a federal government cannot simply override Queensland legislature. Orr told the ABC News: “if the state doesn’t want to give up Crown land, the Commonwealth have to forcibly acquire that Crown land, pay for it and transfer it.”
Australian National University legal expert Dr Ron Levy said Queensland’s nuclear prohibition bill of 2007 would “be a political minefield for any future Dutton government.” The Queensland law could not be overridden by the Commonwealth. “It would have to be undone by the Queensland government, who now have a majority,” he said. “If the federal government builds nuclear plants in the state, the people will vote on it.”
Anne Frances Twomey AO, an academic and lawyer specialising in Australian constitutional law, is the Professor of Constitutional Law and Director of the Constitutional Reform Unit at Sydney Law School at the University of Sydney. In her recent podcast, Constitutional Clarion, Twomey says that while a plebiscite only gauges voter opinions on the nuclear issue, and is non-binding, it does allow the state government to put pressure on the federal government to deter it from taking a particular action.
Defying the will of the people as expressed in a plebiscite would be politically dangerous, as Beattie states in Hansard. Under the Australian Constitution, therefore, the LNP could not force through legislation to build nuclear power plants in Queensland.
