The legal barriers to Australia importing nuclear wastes

Nuclear waste debate re-emerges in Australia. Moulis Legal 17.11.16

“…….A long history of talk but with little “legal” support

South Australia’s proposal to encourage the world to export its high-level nuclear waste to Australia is in stark contrast to the previous positions of both the Federal and South Australian Governments. Moreover, significant reform to State laws and to existing Federal practice would be required to facilitate the proposal, none of which has been formulated.

In 1998, the responsible Federal Minister condemned a recommendation by nuclear waste management consortium Pangea Resources for a repository for international high-level nuclear waste in the Western Australian outback. He reiterated Australia’s long-standing bipartisan opposition to such a development:

…no high level radioactive waste facility is planned for Australia and the government has absolutely no intention of accepting the radioactive waste of other countries. The policy is clear and absolute and will not be changed. We will not be accepting radioactive waste from other countries.1

After only cursory consideration of the repository idea in 1998, Western Australia actually went the other way, passing a law to make it illegal to establish a nuclear waste storage facility in the State, or to use any part of the State to store or dispose of nuclear waste, or to even transport nuclear waste in the State.2

Other Australian states – New South Wales;3 Queensland;4 Victoria;5 and South Australia6 – have enacted similar legislation either completely prohibiting a nuclear waste facility in their jurisdiction or making it necessary to seek certain approvals to build one. These legislative constraints would first need to be addressed before any facility were to be capable of being built in any of those States.

At a Federal level, a nuclear waste facility is not prohibited, however the statute responsible for creating the Australian Radiation Protection and Nuclear Safety Agency (“ARPANSA”) also places a blanket ban the construction of nuclear fuel fabrication plants, power plants, enrichment plants and reprocessing facilities.

ARPANSA can permit imports of radioactive waste

Despite the above State prohibitions on the building of nuclear waste facilities and on the transportation of nuclear waste, no absolute prohibition applies to the importation of radioactive waste into Australia. Regulation 4R of the Customs (Prohibited Imports) Regulations 1956 (“the Regulations”) stipulates that radioactive substances can be imported into Australia, but only if permission has been granted by the Customs Minister or an authorised officer, such as the CEO of ARPANSA.7

ARPANSA administers Australia’s rights and obligations under a number of specific international treaties, with the most relevant to radioactive waste disposal and storage being the International Atomic Energy Agency’s (“IAEA”) Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management(“the Joint Convention”) which was ratified by Australia in 2003.

The discretion under regulation 4R of the Regulations to approve radioactive imports has rarely been afforded with respect to radioactive waste and never on a premise of the commercial disposal of international nuclear waste. ARPANSA officials readily advise interested parties that “current Commonwealth Government policy prohibits importation of spent nuclear fuel or radioactive waste of foreign origin into Australia”.

The international framework

The Joint Convention enforces a commitment to achieving and maintaining a consistently high-level of safety in the management, transboundary movement and disposal of spent fuel and radioactive waste. The Joint Convention notes:

… radioactive waste should, as far as is compatible with the safety of the management of such material, be disposed of in the State in which it was generated, whilst recognizing that, in certain circumstances, safe and efficient management of spent fuel and radioactive waste might be fostered through agreements among [the] Parties to use facilities in one of them for the benefit of the other Parties, particularly where waste originates from joint projects8

These principles are also recognised in the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, to which Australia is also a party.9 The Joint Convention also recognises that any state has the right to ban import into its territory of foreign spent fuel and radioactive waste.10

Additionally, just as Australia exports unspent nuclear material, being uranium, to foreign countries under safeguards, countries like Canada do too. Those safeguards are essentially accounting and inspection procedures designed to ensure that neither the uranium nor any by-product of it (such as plutonium) could be used to contribute to the construction of a weapon. Bodies such as the IAEA and the Australian Safeguards and Non-Proliferation Office (an office within the Australian Department of Foreign Affairs and Trade) track exported nuclear material through its whole lifecycle, all the way through to the spent fuel and the reprocessing and/or the recycling of that fuel.

Any facility that were to accept international nuclear waste could also expect to be subject to scrutiny against the Treaty on the Non-Proliferation of Nuclear Weapons (“NPT”). The overall quality and security of any nuclear waste disposal facility, as well the country that hosts it, need to satisfy extremely high domestic and international standards to be commercially – and politically – viable.

By virtue of both the Joint Convention and the NPT, Australia would need to establish treaties with overseas governments interested in disposing their nuclear waste in the facility, to specify the arrangements that would be put in place for the management of nuclear waste. Australia may also be obliged to seek evidence of “upstream” agreements in circumstances where the original nuclear product and/or the waste has moved between third party countries before its exportation to Australia……..


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