21 December 2006
Key Points:
Queensland and Tasmania have introduced legislation designed to prohibit the building and operation of nuclear power facilities and downstream uranium processing facilities.
Bills have been introduced into the Queensland and Tasmanian Parliaments to ban the building of nuclear power facilities and downstream uranium processing in those States after signals from the Federal Government that it is considering nuclear energy options for Australia.
The impetus for the bills appears to be primarily political in nature, since there are currently no nuclear power facilities or immediate plans to build any in either Queensland or Tasmania. However, the long-term effect of the legislation on the energy and resources sector in those States would be to maintain the status quo of largely coal and gas-fired power stations in Queensland and hydro-electricity in Tasmania. The bills, if passed, will represent another restriction to the potential development of a nuclear power industry and a down stream uranium processing industry in Australia.
Draft Switkowski report
The bills are a response to the draft report of the Switkowski Taskforce commissioned by the Howard Government. The Taskforce has been undertaking a review of uranium mining, processing and nuclear energy in Australia (see Emma Covacevich's article on the draft report in this edition).
The draft Report, released in late November 2006, was broadly supportive of future nuclear energy generation in Australia. It stated that Australia's demand for energy would more than double by 2050 and concluded that 25 nuclear reactors could produce a third of Australia's electricity needs by that time. Six locations in regional Queensland, including Townsville, Rockhampton and Mackay, have been mentioned as possible sites.
Prime Minister Howard declared that he is "open-minded" about nuclear energy, and encouraged a national debate about it. He said that nuclear power generation would help fight climate change and greenhouse gas emissions.
Queensland and Tasmanian nuclear facilities bills
The Labor Governments of Queensland and Tasmania responded to these comments by quickly introducing legislation to ban the introduction of nuclear power in those States. Queensland Premier Peter Beattie said that "under the Howard Government, Queensland communities face the very real threat of becoming home to nuclear reactors and a dumping ground for nuclear waste." Queensland Minister for Mines and Energy, Geoff Wilson, said that the Queensland bill addressed "big safety issues".
The Nuclear Facilities Prohibition Bill 2006 (Qld) and the Uranium Mining and Nuclear Facilities (Prohibitions) Bill 2006 (Tas):
The Tasmanian bill prohibits uranium mining, while the Queensland legislation does not refer to it. However, the Explanatory Notes to the Queensland bill and the Minister for Mines and Energy's Second Reading Speech make it clear that the bill does not apply to uranium exploration or mining. This leaves it open for uranium mining to proceed in Queensland should the Queensland Labor policy prohibiting uranium mining be removed. For further discussion on the state and territory policies on uranium mining see our March 2006 edition.
Can the Commonwealth override the State legislation?
The head of the Commonwealth taskforce, Dr Ziggy Switkowski, told ABC Radio that, based on advice he had received, the States could be forced to house nuclear power plants.
This issue has been raised before as a result of conflict between the Federal and South Australian Governments about plans to create a nuclear waste dump in that State. This was ultimately resolved when the Federal Government bowed to political pressure and passed legislation in 2005 enabling it to use a site in the Northern Territory to store nuclear waste.
The broad interpretation the High Court has given to the corporations power in the recent Work Choices case could now pave the way for the Federal Government to override State anti-nuclear legislation. The effect of the Work Choices decision is that the Federal Government can permit or prohibit corporations from doing almost anything, which may include building nuclear power plants. Constitutional expert Professor Greg Craven has expressed the view that the Commonwealth probably could override the States on this issue.
In a move designed to make the passage of such legislation politically difficult for the Howard Government, the Queensland bill makes provision for the holding of a referendum if the Commonwealth Government takes steps to allow the construction of a nuclear facility in Queensland.
Response from other State Governments
The other Labor State Governments have also expressed their opposition to any Commonwealth moves to sanction the production of nuclear energy in Australia.
The Premier of Western Australia, Alan Carpenter, announced that the State would introduce legislation to ban nuclear power early next year, and to provide for an immediate referendum if the Federal Government attempted to override State laws. South Australian Premier Mike Rann and Victorian Premier Steve Bracks said they would consider introducing legislation similar to the Queensland Bill, while Morris Iemma announced that "While ever I'm Premier, there will not be nuclear power stations in New South Wales."
The Federal House of Representatives Standing Committee on Industry and Resources tabled a report on 6 December 2006 entitled "Australia's uranium: Greenhouse friendly fuel for an energy hungry world." The report urges the Federal Government to seek to remove State impediments to the nuclear industry through the Council of Australian Governments and to "develop uniform and minimum effective regulation for uranium exploration and mining across all states and territories." The Standing Committee comprises three Labor and seven Coalition MPs.
Conclusion
The nuclear debate looks set to turn into a political - and possibly a constitutional - battle between the Federal Government and the States and between Liberal and Labor agendas. The way this conflict will play out, and the timing of it, will depend on whether and when the Federal Government decides to push forward with legislation to establish nuclear power stations and/or other nuclear facilities. It will also be affected by the outcome of the next Labor national conference in April 2007 where it has been widely reported that the Labor Party federally will debate and formalise its position on uranium mining.
For further information, please contact Keira Brennan.
