Blocked by the law and the states, how can Peter Dutton’s nuclear proposal go ahead?

Tyler Mitchell By Tyler Mitchell Jun21,2024
Opposition leader Peter Dutton faces several challenges to his plan for Australia to produce nuclear power, with his initial proposal sparking a nationwide debate.
On Wednesday, Dutton announced that if elected, on the sites of retired coal-fired power stations.
The proposed sites are Tarong and Callide in Queensland, Liddell and Mount Piper in NSW, Port Augusta in South Australia, Loy Yang in Victoria, and Muja in Western Australia.

However, Dutton faces a wall of red opposition on the issue, with Labor governments in place across every mainland state and territory, with Tasmania the only Liberal outlier.

The state premiers strongly support the federal government’s renewable transition and have refused to entertain the prospect of nuclear energy.
Premier Steven Miles said nuclear “isn’t the answer for Queensland”, refusing to repeal the state’s ban.
“We have a detailed plan that delivers us net zero emissions … We know that nuclear would cost hundreds of billions of dollars and leave our kids to manage dangerous radioactive waste forever,” he told the Today Show on Thursday morning.

NSW Premier Chris Minns also refused to lift his state’s ban on nuclear power production, questioned the cost and whether Dutton could constitutionally force states to build reactors.

A map of Australia showing where the Opposition is proposing to build seven nuclear powered plants.

Source: SBS News

While in Victoria, Premier Jacinta Allan said her government would not support a “more expensive, more risky, more toxic energy [solution]”.

A report from the CSIRO has found it could cost as much as $17 billion and take more than 15 years to build a single nuclear power plant in Australia — and electricity from nuclear power could be at least 50 per cent more expensive than solar and wind.

With the states against the idea and a Commonwealth nuclear ban in place, how would Dutton proceed with a nuclear energy transition if elected prime minister?

How could Peter Dutton reverse Australia’s nuclear ban?

Nuclear power is prohibited under federal law in Australia, with some states, including Queensland and NSW — which contain four proposed sites — having their own bans too.
Anne Twomey, professor emerita at the University of Sydney and a constitutional expert, said the first step would be overturning the Commonwealth ban.
“If the Coalition were elected, it could not proceed with establishing nuclear power stations without first legislating to remove the current ban in the Commonwealth law and to override the ban in State laws,” she told SBS News.

“This would mean that it would have to get its legislation through the Senate, which may well be a difficult task.”

William Partlett, associate professor at Melbourne Law School, said legislating an overarching national framework for nuclear energy could be challenged in the High Court.
He said passing such legislation without state support would also make it more difficult.

“If we look at the history of Australian national energy projects like the Snowy Hydro project, you’ve had the cooperation between the Commonwealth and the states,” Partlett said.

Could state opposition parties stop nuclear power?

Twomey said the Commonwealth could override State law under the constitution.
“Any valid Commonwealth law will override any inconsistent state law, according to section 109 of the Constitution,” she said.

“So while states may object, the Commonwealth would have the ability to proceed, as long as it enacts valid laws that are inconsistent with the state’s ban.”

A coal-powered plant with smoke coming out.

The federal Opposition has announced the Loy Yang power station as one of its target sites for a nuclear power plant. Its currently set to close in 2035. Source: AAP / Julian Smith

The Commonwealth could then use its existing powers to establish its own trading corporation, such as NBN Co and Snowy Hydro, to build and operate nuclear power stations.

“Its laws could also regulate the operation of the corporation and control its interstate trade in electricity,” Twomey said.

She also suggested that the parliament could acquire sites, turning them into “Commonwealth places” which would “fall under exclusive Commonwealth legislative power under section 52 of the constitution”.

Partlett said the last time a nuclear plant was proposed, in Jarvis Bay in the 1960s, it was on Commonwealth land.

He said a possible Dutton government could look at putting a plant on commonwealth land in the Northern Territory if they were struggling to overcome legal barriers.

Can a prime minister intervene and enforce legislation?

That’s not an option, as a prime minister has no executive powers to overturn legislation.

Only parliament can repeal legislation or a High Court can strike it down if it is constitutionally invalid, Twomey said.

Tyler Mitchell

By Tyler Mitchell

Tyler is a renowned journalist with years of experience covering a wide range of topics including politics, entertainment, and technology. His insightful analysis and compelling storytelling have made him a trusted source for breaking news and expert commentary.

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