Nuclear energy in Australia: a regulatory roadmap to inform decision-making

As pathways to achieve net zero are increasingly being discussed internationally and domestically, the role that nuclear energy might play in Australia’s energy transition is drawing mixed views.

While various prohibitions exist under Commonwealth and State legislation relating to nuclear energy, this does not preclude the potential for nuclear energy to be investigated as part of a broader political, technical and social licence debate. To progress that conversation, formulating a regulatory roadmap for how a nuclear energy program might function in Australia would help to further inform decision-making about Australia’s future energy mix.

At the Conference of Parties to the United Nations Framework Convention on Climate Change held in December 2023 (COP28), the 198 signatories (including Australia) recognised the need for deep, rapid and sustained reductions in greenhouse gas (GHG) emissions in a nationally determined manner, taking into account the Paris Agreement and different national circumstances pathways and approaches. In doing so, COP28 expressly called for States Parties to accelerate zero and low-emission technologies, including, for the first time, nuclear energy.

In other developments, the Declaration to Triple Nuclear Energy was endorsed by 22 countries at COP28 (and two countries after the event). This Declaration set out a goal of tripling global nuclear energy capacity by 2050 and inviting shareholders of international financial institutions to encourage the inclusion of nuclear energy in energy lending policies. While Australia did not sign the Declaration, it reflects the different views held internationally about the role that nuclear energy can play in the energy transition, and that it is reasonable, in Australia, to responsibly discuss and consider the role that nuclear energy could play in Australia’s future energy mix.

International Atomic Energy Agency guidance

The International Atomic Energy Agency (IAEA) is an autonomous international organisation for scientific and technical cooperation in the nuclear field established under the United Nations framework that ‘works for the safe, secure and peaceful uses of nuclear science and technology, contributing to international peace and security’. Australia is a founding member of the IAEA and party to a range of international treaties and conventions that form the substance of international nuclear law.

The IAEA has published extensive guidance to assist member states in their investigations into, and development of, a nuclear energy program. That guidance has been developed and revised with input from the direct experience of member states and provides a helpful base for any country in developing a regulatory roadmap for nuclear energy.

In June 2024, the IAEA updated its Milestones in the Development of a National Infrastructure for Nuclear Power, which identifies three phases and associated milestones for developing a nuclear energy program.

When a nuclear energy facility reaches the end of its working life, decommissioning follows, for which the IAEA has published separate guidance.

The phased approach is significant. It means work can be done in Phase 1 to inform a considered decision – removed from ideological debate and focused on intergenerational equity and a balanced and reliable energy mix – on whether to undertake the work to prepare for a nuclear energy program in Phase 2 and implement that program thereafter.

Legal framework

A legal framework is one of a number of specific infrastructure issues that would need to be developed in Phase 1 and could help inform go/no-go parameters on nuclear energy. Any legal infrastructure would then be enacted in Phase 2, ready for application in Phase 3 should a decision to progress with nuclear power be made. The legal framework would need to:

• implement relevant international conventions and other instruments, including the Vienna Convention on Civil Liability for Nuclear Damage, the Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage and the Revised Supplementary Agreements Concerning the Provision of Technical Assistance by the IAEA (the domestic application of international conventions and other instruments which Australia has already ratified, such as the Treaty on Non-Proliferation of Nuclear Weapons and the Convention on Nuclear Safety, would need to be considered to assess whether any amendments are required to reflect a nuclear energy program);
  
  
• establish an independent regulatory body with statutory powers, functions, technical capabilities and resources to regulate nuclear facilities and activities, including authorisation, inspection and enforcement; and
  
  
• repeal the existing prohibitions on nuclear energy and enact comprehensive legislation for all areas of nuclear law as would be required for civilian nuclear energy to the extent that it differs from the operation of a research reactor producing medical isotopes and specialised industrial materials (including, for example, new legislation concerning radiation protection, transport of radioactive and nuclear materials and export and import controls and amendment to existing legislation concerning environmental protection and foreign investment).

While this would be significant and complex work, there is existing legislation on which Australia could draw directly (including, for example, the mining of uranium under the Radiation Protection and Control Act 2021 (SA), radiation safety under the Australian Radiation Protection and Nuclear Safety Act 1998 (Cth) and the management and transport of radioactive waste under the National Radioactive Waste Management Act 2012 (Cth)).

Regulatory framework

Important work to establish a regulatory body must be undertaken in Phase 1 so that it would be ready to operate from early in Phase 2 if the decision is to proceed. Expanding and substantially reshaping the role of an existing regulatory body, such as the Australian Radiation and Protection and Nuclear Safety Agency (ARPANSA), is one option to consider. This would present the opportunity to draw on existing institutional experience and personnel capabilities. ARPANSA, established under the Australian Radiation Protection and Nuclear Safety Act 1998 (Cth), is responsible for licensing nuclear reactors for research or production of radioactive material for industrial or medical use.

Alternatively, an entirely new body (or bodies) could also be established. In either scenario, as the IAEA notes, recruiting and retaining appropriately trained personnel and maintaining the independence of the regulatory body (including an independent board) are key.

Bilateral and multilateral cooperation

Cooperation agreements with one or more existing nuclear energy nation states would play an important role in informing the investigations and law reform work required in Phases 1 and 2 and other capacity building required for nuclear energy infrastructure. Australia has some familiarity with such agreements – it has bilateral nuclear cooperation (safeguards) agreements with 43 countries to ensure Australia’s exported uranium is used exclusively for peaceful purposes.

Looking ahead

In parallel with steps being taken to assess the social licence position, Australia could investigate possibilities for a nuclear energy program in a responsible and sustainable way consistent with current law.

While significant legal and regulatory reforms would be required to establish the infrastructure to support an actual nuclear energy program, IAEA guidance demonstrates that there is extensive international experience upon which Australia can draw, with opportunities for cooperation. Such a collaborative, evidence-based and incremental approach could also have synergies for other technologies to be investigated as part of achieving deep, rapid and sustained reductions in GHG emissions.

Developing a regulatory roadmap as described above, even in draft, would help chart some of the steps necessary to enable an informed discussion about whether there is a role for nuclear energy in Australia’s future energy mix. A regulatory roadmap would complement other preparatory work considering the technical, economic, environmental and social feasibility of nuclear energy in Australia, without prejudicing public policy decisions to be made by governments, nor legislative reforms to be debated by parliaments.