Peter Dutton’s nuclear fiction ignores too many legal obstacles

To get his case across the line, the opposition leader would also be forced to argue that climate change is not only real but desperately so.

I felt conflicted about treating Peter Dutton’s nuclear “policy” as serious enough to warrant any response at all.?

But then I read an ABC headline uncritically repeating the Coalition’s claim it “could press on ‘in the national interest’ to establish nuclear reactors in seven communities even if locals oppose it”, and I thought, okay, can’t ignore it.

So let’s explore the legal obstacles to his plan that Dutton says either don’t exist or can be overcome with a bucket of money.

Much early attention is focusing on the fact that the premiers of the states in which the reactors will supposedly be built have already said they don’t want them and won’t be changing the law to allow them.

Indeed, each of these states has specific legislation that prohibits at least some of the activities essential to the plan, including constructing or operating a nuclear facility, transporting nuclear material or waste, and converting or enriching uranium.

Either these laws would need to be repealed by the respective state parliaments (all five currently have Labor governments), or overridden by valid Commonwealth legislation. Otherwise, it’s a non-starter.

More about the constitutional problem below, but first there’s also existing federal law — the Environment Protection and Biodiversity Conservation Act — which expressly prohibits the environment minister from approving the construction or operation of nuclear fuel fabrication plants, nuclear power plants, enrichment plants or reprocessing facilities. In addition, the Australian Radiation Protection and Nuclear Safety Act prohibits the nuclear regulator from authorising the same activities.

Both laws would have to be repealed, and when was the last time the Coalition had the numbers in the Senate? That’d be back in the days of the John Howard government, the one that — in a neat piece of irony — legislated the federal ban.

Suppose Dutton wins the election in such a landslide that he controls both houses and gets carte blanche to make all the federal laws he needs. He then must turn to the states and their pesky laws, while at the same time confronting a separate problem: most of the designated sites are privately owned. What if the companies that own them don’t want to sell? Can he, as he has claimed, simply compulsorily acquire the land?

This brings us to the most immovable obstacle: the Australian constitution. Our federal scheme gives the Commonwealth Parliament only those powers it dictates, with everything else vested in the states by default.

The Commonwealth is strictly limited in its fields of operation, principally by the shopping list of “heads of power” set out in section 51. If a subject matter for lawmaking is not on the list, and can’t be fit within the more nebulous implied powers the High Court has allowed over the years (mainly the so-called “nationhood power” and a narrow field of “incidental” power, both created for practical necessity), then it’s a no-go zone.

The constitution also says a couple of other relevant things. One is that if the Commonwealth and a state have conflicting laws on the same subject, Commonwealth law prevails. However, that is only relevant if the latter is a valid law, which depends on existing legislative power.

The other is that the Commonwealth can acquire property from anyone for just compensation compulsorily. Again, though, only in pursuit of a valid head of lawmaking power.

The fact is that there is nothing on the list that comes anywhere close to the power to make laws about energy, nuclear or otherwise. That is why electricity generation has always been an exclusively state government affair. The only exception is the Snowy Hydro scheme, which was created as a cooperative joint venture between the Commonwealth and the New South Wales and Victorian state governments.

It’s been suggested that Dutton could use the “foreign affairs” power to make the necessary laws, based on the climate change treaties to which Australia is a party. But none of them stipulates nuclear power and it’d be a massive stretch to claim these projects as necessary for fulfilling our treaty obligations. It’s not going to fly.

Alternatively, Dutton says he has “advice” that he can cut through the legal weeds on the basis of “national interest”. I’d love to see that advice.?

I’m guessing he means the nationhood power, described by one judge as “a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation”. It’s controversial and the High Court has never agreed exactly what it means or how far it stretches, but basically there are some things only a national government can do, even if the constitution doesn’t mention them, therefore the Commonwealth has the implied power to do them.

The argument would be that responding to the climate/energy crisis is sufficiently existential to have become a matter of national interest transcending state differences, giving the feds power to come riding in and fix the problem by building a fleet of nuclear reactors.

There are two surpassing ironies here. First, to get his case across the legal line, Dutton would be forced to argue that climate change is not only real, but desperately real.?

Second, if that fails, he’d have to advocate with the Australian public at a referendum to change the constitution. To which the answer is obvious: if you don’t know, vote no.