Lest any of you still be labouring under misunderstanding of the depth of the challenge to see nuclear power developed in Australia, I quote the Australia’s Environment and Biodiveristy Conservation Act (1999) Section 140:

140A  No approval for certain nuclear installations
The Minister must not approve an action consisting of or involving the construction or operation of any of the following nuclear installations:
(a)  a nuclear fuel fabrication plant;
(b)  a nuclear power plant;
(c)  an enrichment plant;
(d)  a reprocessing facility.

This section in entirely exceptional and unique to nuclear power. There is NO OTHER form of industrial activity that is subject to such conditions; that provides no room for consideration whatsoever, that expressly excludes the approval by the Minister, irrespective of the case for or against it. Refinery, fossil fuel power plant, chemical manufacturing facility, factory farming facility, world’s largest mine… nothing. Such sites may well be deemed a controlled action and subject to the Act, but all have the potential for approval.

We have a lot of work to do.

28 comments

  1. I’m no lawyer but I understand the ARPANS Act is the prinicipal code for nuclear prohibition in Australia
    http://www.arpansa.gov.au/regulation/legislation/index.cfm
    Several clauses would have to be repealed then a nuclear permit delegated to a Federal Minister. I presume Lucas Heights snuck through on separate enabling legislation. When AGW and energy issues look especially grim in the period 2015-2020 Parliament could amend ARPANS and the biodiversity legislation. An application to build an NPP would then probably be approved by Cabinet and the papers signed by whoever is doing Ferguson’s job.

    SA has its own legislation example the Arkaroola mining ban for which I believe Marathon Resources got $5m compo but stood to make many times that if a mine had eventuated. There is legislation to approve the Olympic Dam expansion just the tiny practical issue of power and water supply remains to be solved. It could be worse; in the ACT they can put you in jail for mining uranium. Good thing they got none.

    1. Lucas Heights creates medical isotopes, it is not actually any of the above facility types I think. I was speaking to someone recently who bemoaned that they literally dump megawatts of heat, and tap nice black coal fired electricity from the NSW grid to run the place, so that it is not a “nuclear power plant”!!! Madness.

    2. We miss out on uranium because of the Arkaroola protection but it is probably worth it. It’s an amazing place i hear, there is more uranium elsewhere, and it would be a high disturbance mine, not like Beverley at all

      1. The Mount Painter region of Arkaroola is amazing – but any uranium mine allowed there would not be high disturbance of that region. Access would be by tunnel from the adjacent plains for underground mining, which means no high disturbance around Mount Painter.

      2. Point taken but in fact the exact opposite has already taken place in Australia; existing national park has been excised for a uranium mine in the case of Ranger inside Kakadu
        http://www.aph.gov.au/SEnate/committee/uranium_ctte/report/c11.htm

        There may be other hurdles with deposits closer to Olympic Dam. Carapateena is inside the restricted Woomera rocket range I believe. That reason was given to disallow the Chinese takeover of Prominent Hill gold mine. I understand there are native title issues looming with deposits under salt lakes.

        Like Beverley ISL the flat country is also where the biggest hard rock deposits are located. My guess is that the objectors will lose interest. That’s why I suggest bringing NP as well as desalination to the nearby coast. Remoteness and locked gates will help.

  2. Yeah.. Noted that section about 10 years ago. Requires a mod to the act, not just ministerial approval. So.. You either need a federal change or a state prepared to give the federal government the middle finger.

    1. No, the State government could not act unlawfully. Disappointed in the Act as you may be, I don’t think that’s just cause to throw out the Australian Constitution.

      Nuclear power in Australia will require bipartisan support.

  3. We need a Section exactly like this for coal. No minister should be able to approve a new coal power station. They should not be able to approve export of coal for other countries to burn. They should not allow extraction of gas from coal.

    1. I’ll disagree on that. While it’s humorous to think about the difficulties that would cause, consider that just like nuclear is now facing problems due to a change in thinking over time, there is nothing to say that in 30-40 years time that there won’t have been a change in thinking on coal as well.
      Each decision should be made on the best available evidence at the time, and complications to that for later generations shouldn’t be put in law. Just because some people believe that coal has issues now doesn’t mean that science will not indicate otherwise a generation from now.

      1. Mmmm… fresh from delivering a lecture on public policy at CMU this morning, I have to curb my enthusiasm and sway back your way. Bad policy is bad policy. The obvious example being that is someone cracked the clean coal nut properly. It would still be a poor cousin to nuclear in my opinion but you would not want it written into law that it could not go ahead. thanks Christopher.

      2. I really find it inconceivable that coal will be acceptable in 30-40 years from now. By then climate change will have kicked in and the effect on acidification of the oceans will not be theory any longer. The pollution from emissions, the problem of disposing of waste ash and the health effects of using coal will be known. The risks associated with mining and chemical extraction will not meet the standards of the future in a more populated world. We should start living now on the standards that will be acceptable in the future.

  4. Forge raises an interesting point. Does a nuclear power station actually need federal government approval, or could it get through entirely under State legislation? Not that I’d necessarily want to stake a multi-billion dollar investment on any such loophole; the Feds would probably use Australia’s membership of the Nuclear Non-Proliferation Treaty (notwithstanding that a nuclear power plant need not have anything to do with weapons production) to invoke the foreign affairs power, or some such constitutional trickery. Much better that the clause be revoked entirely.

      1. My understanding of the default constitutional position is that State law applies, unless this conflicts with Federal law. In this case, the loophole is that the Federal legislation doesn’t outright say ‘Nuclear power is illegal’, only that the minister may not approve it, which isn’t quite the same thing. The question is ‘does the need for federal ministerial approval necessarily arise, or can it be avoided?’.

    1. Corporations law is the hook:

      ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 – SECT 21
      Requirement for approval of nuclear actions

      (1) A constitutional corporation, the Commonwealth or Commonwealth agency must not take a nuclear action that has, will have or is likely to have a significant impact on the environment.

      Civil penalty:

      (a) for an individual–5,000 penalty units;

      (b) for a body corporate–50,000 penalty units.

      So only a $5M fine.

  5. This is also a loophole you could drive a reactor through.

    Act not to prejudice Australia’s defence

    (1) Nothing in this Act requires or permits a person to take any action, or to refrain from taking any action, if taking the action or refraining from taking the action would be, or could reasonably be expected to be, prejudicial to Australia’s defence.

    (2) Without limiting subsection (1), the Chief of the Defence Force may, after consulting with the Minister, declare by notice in writing that:

    (a) specified provisions of this Act or the regulations do not apply in relation to specified members of the Defence Force; or

    (b) specified provisions of this Act or the regulations apply subject to such modifications as are set out in the declaration in relation to specified members of the Defence Force.

  6. A fair whack of bush lawyer speculation going on here!

    OK so I’m not a practising lawyer, but admin and environmental law is something I do know a fair bit about. I can assure you that the AGS would advise in the strongest possible terms that the EPBC Act be amended before there is any authorisation of any nuclear power plant anywhere in Australia. Otherwise this would be in the High Court quicksmart.

  7. Robert – that may be the case. And if that is the case, no one in 40 years is going to build a coal plant. That sort of trap goes in legislation to cause problems down the road, not to set a path now.
    If, for whatever reason, climate change doesn’t occur in the manner projected, then there would be no rational argument against coal fired plants based upon CO2 production. While CO2 considerations are a problem for coal, they are hardly the only one and possibly not even the most significant.
    I’d much rather leave tomorrows decisions for tomorrow.

  8. Christopher, I don’t understand your statement about tomorrow’s decisions. Moving away from coal is a decision that should have been made in the past for a whole host of reasons. It is a decision with consequences for the future whether we act or not. Isn’t it better to act with foresight than to regret with hindsight?

  9. Binding the hands of the future is not ‘acting with foresight’. It is acting in arrogance.
    I suspect whoever wrote the nuclear act this post is about, believed they were acting with foresight. Doesn’t help us to be able to act quickly today.
    I’m not sure that coal should have been moved away from in the past. In Australia, the arguments for coal on a cost basis are pretty emphatic. Sure, I think we should have also had a nuclear power industry for 40 years by now simply as a matter of energy diversity, but that doesn’t mean coal should have been dismissed or even should be phased out in an accelerated fashion; nor does it mean it shouldn’t be left as an option for future generations to choose if they have reason to.
    What it shouldn’t be is part of the considerations for replacing or adding capacity now.

  10. On the up-side, if the buck is big enough or the belief is strong enough, laws will be repealed. Here is the law on uranium mining and exploration in NSW which had been in place since 1986 but was rescinded as of yesterday:

    http://www.legislation.nsw.gov.au/viewtop/inforce/act+194+1986+FIRST+0+N

    7   Prospecting or mining for uranium prohibited
    (1)  A person shall not prospect or mine for uranium.
    Maximum penalty: 1,000 penalty units.
    (2)  An authority, licence or claim under the Mining Act 1973 (whether granted or registered before or after the commencement of this Act) does not authorise the holder of the authority, licence or claim to prospect or mine for uranium in contravention of this section.
    (3)  A person who mines uranium in the course of mining for some other mineral is not guilty of an offence under this section if:
    (a)  the person establishes that there are reasonable grounds for believing that the amount of uranium in the total amount of material that has at that stage been removed from the land being mined does not exceed .02 per cent by weight, and
    (b)  the person complies with such conditions (if any) as may be prescribed by the regulations with respect to the mining and the treatment, handling and disposal of the material containing uranium.
    (4)  Nothing in this section prevents a person from using radiometric or other means for searching for a mineral other than uranium.

  11. @ Forge
    To put things in context, my suggestion of a section on coal in the Act is somewhat hypothetical and it is highly unlikely that any government would even consider it. Arrogance may be a bit strong for this piece of hyperbole. Can one act with foresight without appearing arrogant? Doesn’t arrogance imply a superior attitude over another person or group of people? I am interested in the issues rather than those discussing them.

    I do disagree about the cost of coal, however. There is a short term economic benefit but it is far outweighed by the cost of the consequences. Measuring these is difficult, but recent floods are an indication of the cost in the future. I have no doubt, and many others would agree, that an accelerated phasing out of coal should be seriously considered a matter of utmost urgency and importance. It does not appear that climate change or the other detrimental consequences concern you? If something is unsustainable there should be an exit strategy.

  12. Technology changes. Science develops. What seems like a good – even urgent – path today can end up having been a false trail tomorrow.
    At the heart of what I believe is that you shouldn’t cut off your nose to spite your face. There is no point in crippling an economy, a nation, to deal with a problem when by doing so you reduce the capacity of the nation to do so.
    This is what the whole ‘renewables’ push threatens to do. Neither the engineering, nor the economics, are sound at this point in time, nor are they looking to be in the near future.
    Nuclear offers a way around this in that it is proven and possible to operate in a cost effective, safe, reliable manner. But even nuclear power – possibly especially nuclear power – takes time to come online. Precipitously cutting coal power when there is no viable alternative available incurs only costs, not benefit. Do not underestimate the benefits that cheap power brings.
    If over the next 50 years Australia transitions to a mix comprising more than 25% nuclear power, we will have done very, very well.

  13. Just came across this, from the 2009 Hawke review of the EPBC Act:

    “3.19 It may also be noted that the existence of a broad prohibition on the approval of nuclear installations under s.140A of the EPBC Act is widely assumed to exist. The Switkowsi (sic) report expressed this view in 2006. In fact, there is some question about this prohibition because of the partial disconnect between the matters covered in s.140A and the definition of nuclear action in s.22. The crucial provision may be s.22(g), which allows for nuclear actions to be prescribed by regulation. Under regulation 2.01 of the EPBC Regulations, a ‘nuclear action’ includes establishing a facility where radioactive materials above an activity level defined in regulation 2.20 are used. The effect of the current regulations warrants clarification. But its also seems inappropriate for an issue as important as the prohibition on nuclear power stations to be achieved partly as a result of an obscure regulation. This matter warrants clarification and possible statutory amendment.”

    http://www.environment.gov.au/resource/independent-review-environment-protection-and-biodiversity-conservation-act-1999-interim

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