Nuclear Waste Transport, Storage and Disposal (Prohibition) Act 2004

The Act defines several key terms that determine its scope. “Nuclear waste” is defined in s2 by reference to two limbs. First, it means Category A, B, C, or S radioactive waste within the meaning of the Code of practice for the near-surface disposal of radioactive waste in Australia (1992) approved by the National Health and Medical Research Council and published as Radiation Health Series No. 35 (ISBN 0 644 28673 3). This Code classifies radioactive waste by its hazard level and required containment period. Categories A, B, C, and S correspond roughly to low-level short-lived, low-level long-lived, intermediate-level, and special forms. Second, the definition includes waste material that contains radioactive material derived from: the operation or decommissioning of a nuclear plant; the testing, use, or decommissioning of nuclear weapons; or the conditioning or reprocessing of spent nuclear fuel. This second limb catches waste from any nuclear plant (defined broadly as a nuclear reactor, radioisotope enrichment plant involved in enrichment of uranium or plutonium, nuclear reprocessing plant, or nuclear weapons facility) regardless of the Code’s classification. The definition is deliberately broad: it covers waste both from defence and civilian sources, and includes material that may have been produced decades ago or in another jurisdiction.

“Nuclear waste storage facility” is defined simply as “an installation for the storage or disposal of nuclear waste.” This is not limited to purpose-built facilities; it could include any structure or area used to hold nuclear waste, potentially even temporary storage. The Act does not require the facility to be licensed or to have a particular capacity. The breadth of the term means that a person cannot avoid liability by arguing that a site is merely a “holding area” or “temporary storage” rather than a permanent repository.

“Radioactive material” is defined as any material that spontaneously emits ionising radiation as a consequence of nuclear transformation. This is a physical definition, not a regulatory one. It catches material that may fall below regulatory thresholds in other laws but still emit radiation.

“Executive officer” of a body corporate is defined expansively: it means a person who is concerned with or takes part in the management of the body corporate, whether or not the person is a director or their position is given the name of executive officer, and includes a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth or a State or Territory. This sweeps in not only company directors but also senior managers, and extends to members of statutory corporations, which means that the personal liability provisions (s11) can apply to board members of government-owned corporations.

“Offshore area” and “Territorial Sea Baseline” are defined in s5(5) by reference to Commonwealth legislation: the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) and the Seas and Submerged Lands (Territorial Sea Baseline) Proclamation 2016 made under the Seas and Submerged Lands Act 1973 (Cth). These definitions are critical for the petroleum exemption in s5(4), which applies to projects in prescribed sedimentary basins within an offshore area or within 800 km seaward of the baseline.

“Public moneys” and “Territory authority” are not defined in the Act but are terms used in s13. “Public moneys” would be construed under the Financial Management Act or general public finance law. “Territory authority” likely covers any NT government agency, statutory body, or government-owned corporation. The prohibition is absolute: despite any other Act or law, such moneys cannot be spent on nuclear waste storage facility development, construction, or operation, or on encouraging or financing related activities.

The Act does not define “environmental offence level 1” - that classification is used in other NT environmental legislation such as the Environmental Offences and Penalties Act or the Environment Protection Act 2019. The penalty for a level 1 environmental offence is not set out in this Act; it is presumably a significant penalty (often including imprisonment for natural persons and large fines for bodies corporate), but the reader must cross-reference the relevant penalties Act. The Act does provide its own maximum penalty for regulations: 100 penalty units for a natural person and 500 penalty units for a body corporate (s15(2)). A penalty unit in the Northern Territory is currently $185 (as at 2023-24), so the regulation-making power can create offences with fines up to $18,500 for individuals and $92,500 for bodies corporate.

The Act affects a broad range of persons, including natural persons, bodies corporate, government entities, and their officers. The primary prohibited conduct - constructing or operating a nuclear waste storage facility (s6) and transporting nuclear waste into the Territory for storage (s7) - applies to any “person,” which under the Interpretation Act includes a body politic or corporate as well as an individual. Because the Act binds the Crown in right of the Territory (s4), Territory government departments and agencies are subject to the prohibitions unless they fall within an express exemption. Commonwealth entities are bound only to the extent of the Legislative Assembly’s legislative power - which is uncertain for defence and external affairs matters - but they are not automatically immune.

The Act imposes personal criminal liability on executive officers of bodies corporate. Section 11 provides that if a body corporate commits an offence against the Act, each executive officer is taken to have committed the same offence, subject to three defences: the body corporate would have been able to establish a defence; the officer did not know and could not reasonably have been expected to know that the offence was to be or was being committed; or the officer exercised due diligence to prevent its commission. This is a reverse onus provision: the officer must prove one of those defences on the balance of probabilities. The provision applies whether or not proceedings are brought against the body corporate (s11(3)). This means that a director, manager, or board member of a company or statutory corporation could face prosecution even if the corporation is not charged or is acquitted. The officer cannot be imprisoned if they would not have been guilty but for this provision (s11(4)), but fines and other orders remain possible.

Section 10 extends liability further by attributing the conduct and state of mind of a representative (employee, agent, or executive officer) to the person (natural or body corporate) on whose behalf the representative acts within the scope of actual or apparent authority. This is a vicarious liability provision that removes the need to prove that the principal personally directed the conduct. For a natural person, the section cannot be used to impose imprisonment (s10(3)), but for a body corporate, imprisonment is not relevant anyway. This provision makes it risky to delegate any activity that could touch on the prohibitions.

The Act also affects persons who might facilitate a prohibited activity. The injunction provision (s8(1)(d)) allows the Minister to seek an injunction to prevent a person from doing anything that “would facilitate or provide help in relation to” constructing or operating a nuclear waste storage facility or transporting waste. This could catch consultants, financiers, transport companies, equipment suppliers, or even legal advisors if their assistance is knowing. The Minister does not need to prove that the act has previously occurred or is likely to occur - so a person could be restrained based on a potential future facilitation.

Certain industries and activities are expressly exempted, meaning that persons engaged in uranium mining (under the Environment Protection Act 2019 and Radioactive Ores and Concentrates (Packaging and Transport) Act 1980), onshore petroleum pipeline operations producing incidental nuclear waste, and offshore petroleum projects in prescribed basins delivering significant economic and social benefits (s5(4)) are not affected by the prohibitions, provided their conduct falls within the scope of the exemption. The petroleum exemptions are potentially wide, but they depend on prescription by regulation for the project and the sedimentary basin. The regulations may specify examples of significant economic and social benefits (s15(2A)), giving the Administrator a discretionary tool to exempt particular projects.

Finally, the Act affects the Legislative Assembly itself via s14: if a Commonwealth licence for a nuclear waste storage facility is granted, a nominated Committee must conduct a public inquiry. This imposes a reporting obligation on Parliament but does not bind the Commonwealth or prevent the facility from proceeding.

The central duty imposed by the Act is the duty not to construct or operate a nuclear waste storage facility (s6). This is an absolute prohibition: no person may do so, regardless of any licence or approval from any other authority. Similarly, there is a duty not to transport nuclear waste into the Territory for storage at such a facility (s7). These duties are enforceable by criminal prosecution and by civil injunction.

There is no duty to report or notify the authorities about suspected contraventions, although the Minister has standing to seek injunctions. The Act does not create a private right of action for individuals; only the Minister may apply for an injunction (s8(1)). However, if a person suffers injury or loss or damage to property because of the commission of an offence, the court may order the defendant to pay reasonable compensation (s12(1)(c)). This is a discretionary order available in addition to any penalty, not a standalone right. The injured person would need to rely on the prosecution being brought and the court deciding to make such an order.

The Minister has a broad right to seek an injunction without the usual procedural hurdles. Section 8(2) eliminates the need to prove that the act has previously occurred or is likely to occur or continue. This is unusual: ordinarily injunctions require proof of a real risk of imminent harm or a threatened breach. Here, the Minister can apply pre-emptively on a lower evidentiary threshold. Section 8(4) further strengthens the Minister’s hand by prohibiting the court from requiring an undertaking as to damages as a condition of granting an interim injunction. In typical civil litigation, the applicant must give an undertaking to compensate the respondent if the injunction is later found to have been wrongly granted. This provision means the Territory bears no financial risk in obtaining an interim injunction, reducing the cost of potential error.

The Minister may also authorise an employee, agent, or contractor of the Territory to remove a nuclear waste storage facility constructed or operated in contravention of the Act, to make good any environmental harm, and to prevent or mitigate future environmental harm (s9). This authorisation does not require a court order; it is an executive power. However, the person causing the contravention may later be ordered by a court to pay the Territory’s reasonable costs and expenses (s12(1)(b)). The authorised person does not need a warrant, and the Act does not specify any limits on the power (such as requirements of notice, proportionality, or reasonableness). This is a significant self-help power that could involve entering private land and removing structures.

Bodies corporate and their officers have a right to raise defences under s11. Executive officers can defend themselves by showing that the corporation would have had a defence, that they did not know and could not reasonably have known of the offence, or that they exercised due diligence to prevent it. These are the only statutory defences to the executive officer liability. Natural persons who would not have been guilty but for the attribution provisions (ss10 and 11) cannot be imprisoned, but can still be fined or subject to other orders.

The Administrator has the power to make regulations prescribing matters required or permitted, and may specify examples of significant economic and social benefits for the petroleum exemption (s15(2A)). Regulations can create offences with penalties up to 100 penalty units for natural persons and 500 penalty units for bodies corporate. This allows the Executive to expand the scope of prohibited conduct or to define exemptions more precisely without amending the primary Act.

The Act creates two specific offences: constructing or operating a nuclear waste storage facility (s6) and transporting nuclear waste into the Territory for storage (s7). Both are classified as environmental offence level 1, but the Act does not itself prescribe the penalty. In the Northern Territory, environmental offence level 1 is defined under the Environmental Offences and Penalties Act (or equivalent). Typically, level 1 carries maximum penalties that may include imprisonment for natural persons (e.g., up to 7 years) and substantial fines for bodies corporate (e.g., up to $5 million or more). The precise penalty must be cross-referenced; the Act provides no penalty unit amount for these primary offences. This means a prosecution must rely on the sentencing provisions of another Act, which could be amended independently.

Enforcement is not limited to criminal prosecution. The injunction power (s8) is a preventive remedy that can be used quickly. The Minister may apply to the Supreme Court for an injunction to restrain any activity that would involve the construction or operation of a nuclear waste storage facility, use of any place for storage or disposal, transport of nuclear waste into the Territory, or facilitation of any of those acts. The court may grant an interim injunction without requiring the Minister to prove that the act has occurred or is likely to occur. The court must not require an undertaking as to damages or costs as a condition for an interim injunction, removing the usual financial safeguard for the restrained party. This means a person could be restrained from conducting lawful business (if the Minister’s application is ultimately unsuccessful) without any right to compensation for losses suffered during the period of the interim injunction. The injunction can be granted before final determination, and the criminal process is unaffected by the grant or refusal of an injunction (s8(5)).

Section 9 gives the Minister the power to authorise action to remove a facility, remedy environmental harm, or prevent future harm. This is an executive enforcement power that does not require a court order. The authorised person can enter land and take physical action. While the Act does not explicitly create a right of entry or a warrant procedure, it is implicit that the authorisation carries the authority to do what is reasonably necessary to achieve the stated ends. The person causing the contravention may later be ordered by a court to reimburse the Territory for reasonable costs (s12(1)(b)).

Section 11 imposes personal liability on executive officers of bodies corporate. If a body corporate commits an offence, each executive officer is taken to have committed the same offence. The officer bears the legal burden of proving a defence (the corporation would have had a defence; the officer did not know and could not reasonably have known; or the officer exercised due diligence). This is a strict liability provision in effect, since the prosecution need only prove the body corporate committed the offence. The defences are narrow: due diligence requires proactive measures, not mere ignorance. The officer can be prosecuted even if the body corporate is not charged (s11(3)). However, an officer cannot be imprisoned if they would not have been guilty but for this provision (s11(4)); fines and other orders remain possible.

Section 10 attributes conduct and state of mind of a representative to the principal. This means that in a prosecution, the prosecution need only show that a representative (employee, agent, executive officer) engaged in the prohibited conduct with the relevant state of mind within the scope of actual or apparent authority. The principal is then deemed to have engaged in that conduct and to have had that state of mind. Again, a natural person cannot be imprisoned under this attribution (s10(3)), but can be fined. Bodies corporate have no such limitation.

Upon a finding of guilt (including a conviction or an order under diversionary programs), the court may make additional orders under s12: an order that the defendant take stated action to remove the facility or make good harm (similar to a remediation order), an order to pay the Territory’s reasonable costs and expenses incurred in taking action under s9, and an order to pay reasonable compensation to a person who suffered injury or loss or damage to property because of the offence. The court may also make any other order necessary or convenient for enforcement of these orders (s12(2)). These orders are in addition to any penalty, so a defendant could face both a criminal fine (or imprisonment) and a civil-style compensation or clean-up order.

Regulations made under s15 may create offences with penalties up to 100 penalty units for a natural person and 500 penalty units for a body corporate. A regulation could, for example, prescribe requirements for record-keeping, notification, or compliance with the exemptions, and impose fines for breach.

The Act operates within a complex federal framework. Section 5(1) provides that a provision of the Act relating to transport, storage, or disposal of nuclear waste does not have effect to the extent it is inconsistent with a law of the Commonwealth, but only if it cannot be complied with without contravention of that Commonwealth law. This is a textual inconsistency test: if a person can comply with both laws, there is no inconsistency. This preserves the Act against implied inconsistency or covering-the-field arguments unless there is direct and unavoidable conflict. For example, if a Commonwealth law authorised the transport of nuclear waste through the Northern Territory for storage at a Commonwealth facility, and the Act prohibited that transport, a person could not comply with both - the Act would yield. But if the Commonwealth law merely regulated the transport without requiring it, or if the facility were not a Commonwealth facility, the Act might still apply. The ultimate question is one of constitutional law: the Commonwealth can override Territory laws under s122 of the Constitution (territories power) as well as under other heads of power. Section 5(1) attempts to minimise the field of conflict but cannot prevent Commonwealth legislation from expressly overriding the Act.

The Act expressly defers to several other NT laws. Section 5(3)(b) excludes nuclear waste produced in the Territory that is stored or disposed of in accordance with the Radiation Protection Act 2004. That Act regulates all radioactive substances in the NT and includes licensing requirements, safety standards, and disposal pathways. Waste lawfully managed under that Act - including waste from medical, industrial, or research activities - is not caught by this Act’s prohibitions, provided it was produced in the Territory. This prevents a conflict between a general radiation safety law and this specific prohibition on larger-scale waste disposal.

Uranium mining activities are excluded by reference to the Environment Protection Act 2019 and the Radioactive Ores and Concentrates (Packaging and Transport) Act 1980. These activities involve possession, packaging, and transport of uranium ores and oxide. The exclusion recognises that such materials are not waste but are valuable commodities being prepared for export. The exclusion does not extend to waste from uranium processing - only the primary ore and concentrate activities are excluded.

Petroleum pipeline and hydrocarbon exploration/production operations are excluded for nuclear waste produced incidentally from those activities (s5(3)(e),(f)). This covers, for example, naturally occurring radioactive material (NORM) that accumulates in pipes and equipment. The offshore petroleum exemption (s5(4)) extends this to prescribed projects in sedimentary basins, requiring the project to deliver significant economic and social benefits and to be located within an offshore area or within 800 km seaward of the baseline. This exemption is conditional on the project being prescribed by regulation and the basins being prescribed. The regulations may further specify what counts as significant economic and social benefits (s15(2A)), giving the Administrator discretion to define which projects are exempt.

Section 13 provides that despite any other Act or law to the contrary, public moneys cannot be used for prohibited activities. This overrides any appropriation or spending authority in other NT legislation. If another Act purports to authorise expenditure on a nuclear waste facility, s13 would prevail. However, it does not bind the Commonwealth, so Commonwealth grants to the Territory could not be redirected to such facilities, but Commonwealth money spent directly on a facility in the Territory would not be affected.

The mandatory public inquiry in s14 is triggered only if a Commonwealth licence, exemption, or other authority to construct or operate a nuclear waste storage facility is granted. The inquiry is to be conducted by a Committee of the Legislative Assembly. The provision does not purport to give the Territory a veto or to require Commonwealth concurrence; it is purely a reporting mechanism. It interacts with Commonwealth processes by ensuring that the Territory’s views are publicly documented, but the Commonwealth is not required to consider the report.

The Act was originally enacted as the Nuclear Waste Transport, Storage and Disposal (Prohibition) Act 2004 (Act No. 58 of 2004). It received assent on 4 November 2004 and commenced on the same date. The original Act contained the core prohibitions, definitions, enforcement provisions, and the public moneys prohibition. The objects section and the exemptions were narrower than they are today; notably, the original Act did not contain the offshore petroleum exemption in s5(4) or the reference to the Environment Protection Act 2019 (which replaced an earlier environmental Act).

The first substantive amendment was the Nuclear Waste Transport, Storage and Disposal (Prohibition) Amendment Act 2019 (Act No. 2 of 2019), assented to on 27 February 2019 and commencing on 28 February 2019. This amendment changed section 2 (definitions), section 5 (application), and section 15 (regulations). According to the list of amendments in the endnotes, s2 was amended by No. 2, 2019, s4; s5 was amended by No. 2, 2019, s5 (and later by No. 34, 2023); s15 was amended by No. 2, 2019, s6. The 2019 amendment likely added the offshore petroleum exemption in s5(4) and the reference to “significant economic and social benefits,” as well as the regulation-making power under s15(2A) to specify examples of such benefits. It also likely updated definitions to cross-reference the Radioactive Ores and Concentrates (Packaging and Transport) Act 1980 and the Environment Protection Act 2019 (which was then or later renamed). The 2019 amendment thus broadened the exemptions to accommodate the petroleum industry’s concerns about NORM waste and offshore projects.

The second set of amendments came through the Environment Protection Legislation Amendment Act 2023 (Act No. 34 of 2023), assented to on 6 December 2023. This Act amended s5 by No. 34, 2023, s221. The commencement dates varied: part 1, part 3 division 1, sections 207 and 219, and part 5 commenced on 7 December 2023; part 3 division 2 commenced on 1 March 2024; part 4 commenced on 1 July 2024; and the remaining provisions commenced on 1 March 2024. It appears that the 2023 amendment updated the reference in s5 from the now-repealed Environment Protection Act (old Act) to the Environment Protection Act 2019 (current Act). The 2023 Act also likely made consequential changes to align the exemption for uranium mining activities with the new environment protection regime. Additionally, s5(5) was added to define “offshore area” by reference to the Commonwealth Offshore Petroleum and Greenhouse Gas Storage Act 2006 and “Territorial Sea Baseline” by reference to the Commonwealth Seas and Submerged Lands Act 1973 and the 2016 Proclamation. These definitions were necessary to give precision to the offshore petroleum exemption.

The endnotes also record general amendments of a formal nature made by the Interpretation Legislation Amendment Act 2018 (Act No. 22 of 2018) to sections 1 and 5. These would be standard updating amendments such as renumbering, updating references, and correcting formatting.

Thus, the Act as at 1 July 2024 reflects the original 2004 prohibitions, significantly expanded exemptions for uranium mining and petroleum operations added in 2019, and updated cross-references from the 2023 environment protection amendments.

The source text does not provide any information about litigation history. The Act has been in force since 2004, and as a prohibition statute with relatively narrow scope, it has not been frequently litigated. There are no cases cited in the Act or in the endnotes. However, potential litigation could arise in several areas: the scope of the Commonwealth inconsistency provision (s5(1)), the meaning of “nuclear waste storage facility” in relation to temporary storage or decommissioning sites, the constitutionality of the extensive executive officer and vicarious liability provisions (though these are standard in environmental law), and the validity of the offshore petroleum exemption if the Commonwealth were to challenge it as an impermissible burden on inter-state trade or commerce.

Given the lack of source material, this section must note that no litigation is recorded in the Act. The practical significance is that the Act’s provisions have not been judicially tested. Thus, any ambiguity in the definitions - such as whether a particular radioactive material constitutes “nuclear waste” under the Code of Practice or the second limb of the definition, or whether a proposed facility is an “installation for the storage or disposal of nuclear waste” - has not been resolved by a court. This creates legal uncertainty for any person contemplating activities that might fall close to the line. The Minister’s power to seek an injunction without proving likelihood of the act (s8(2)) has not been challenged as a breach of natural justice or as an invalid delegation of judicial power. The prohibition on requiring an undertaking as to damages (s8(4)) might be challenged as contrary to the inherent jurisdiction of the Supreme Court, but no such challenge is reported.

Similarly, the executive officer liability provisions have not been interpreted by NT courts. The defence of due diligence in s11(2)(c) is common in environmental law but its application to nuclear waste matters is untested. For example, what steps constitute due diligence in preventing a corporation from constructing a facility in another jurisdiction? An executive officer of a parent company based overseas might need to show active monitoring and prevention. The reverse onus places a high burden on officers.

The public inquiry provision (s14) has never been triggered because no Commonwealth licence for a nuclear waste storage facility in the Territory has been granted. If such a licence were issued, the constitutional validity of the inquiry requirement could be questioned: is it a lawful direction to a committee of a Territory parliament, or does it interfere with Commonwealth executive power? Again, no litigation to date.

Practitioners dealing with this Act should be aware of the absence of case law. This means that legal advice must rely on the plain meaning of the text and analogy with other environmental enforcement provisions in the Territory. Any ambiguity should be resolved cautiously, preferring interpretations that avoid criminal liability. The Minister’s enforcement powers are broad and untested, which may encourage early settlement or compliance rather than litigation.

Several aspects of the Act could catch unwary persons.

First, the definition of “nuclear waste storage facility” is deceptively broad. It is “an installation for the storage or disposal of nuclear waste.” The term “installation” is not defined and could include a shipping container, a shed, a dedicated room, or even a marked area within a larger facility. “Storage” is not qualified by time - even temporary storage pending further transport might be caught if it is intended to be stored at a facility in the Territory. However, note that the import prohibition (s7) only applies to transport “for storage at a nuclear waste storage facility in the Territory.” So import for immediate re-export or for direct disposal at a non-facility site (if that is possible) might not be caught. But the construction/operation prohibition in s6 is absolute: any construction or operation of an installation for storage or disposal is prohibited, regardless of where the waste comes from. A person who sets aside a room in a warehouse to hold imported nuclear waste for a day could be constructing or operating a facility.

Second, the executive officer liability (s11) is not limited to company directors. It includes anyone concerned with or taking part in management. This could catch general managers, project directors, compliance officers, and even senior engineers if they have management responsibilities. The reverse onus means that a person charged must prove they did not know and could not reasonably have known, or that they exercised due diligence. It is not enough to say “I relied on my staff” - the officer must show active steps to prevent the offence. The defence that the body corporate would have had a defence is narrow; if the corporation is guilty, the officer cannot use that limb. An officer could be convicted even if the corporation is acquitted (s11(3)).

Third, the injunction provisions are heavily one-sided. The Minister can apply for an interim injunction without proving likelihood of the act (s8(2)). The court cannot require an undertaking as to damages (s8(4)). This means that the Minister can effectively shut down a person’s business or project based on a low evidentiary threshold, and the restrained party has no claim for damages if the injunction is later lifted. The only check is the court’s discretion, but the legislation removes the usual procedural protections. This could be used strategically to halt a competitor’s operations if they are perceived to be near the line.

Fourth, the self-help power under s9 is broad. An authorised person can enter land to remove a facility and make good environmental harm without a warrant and without prior notice to the owner. There is no requirement for compensation for the removal itself (only the court may order the defendant to pay costs, but if no defendant can be found or is insolvent, the property owner may bear the loss). The authorised person is likely an employee of the Territory, and s9 gives them immunity from trespass or conversion claims, provided they act within the scope of the authorisation.

Fifth, the Commonwealth inconsistency clause (s5(1)) is not a total carve-out. It only yields if the provision cannot be complied with without contravention of a Commonwealth law. This means that a person who has a Commonwealth licence or approval may still be liable under this Act if they can comply with both. For example, if the Commonwealth issues a licence to construct a nuclear waste storage facility but the licence does not mandate construction at a particular site or by a particular date, the person could simply choose not to construct - thus complying with both. The Act would survive. Only if the Commonwealth law forces the person to construct (impossible) or to transport (impossible without violating the Act) would the inconsistency arise. This is a narrow escape route.

Sixth, the exemptions for uranium mining and petroleum activities are limited by their terms. The uranium mining exemption (s5(3)(c)) applies only to “mining activity” under the Environment Protection Act 2019 and to possession/packaging/storage/transportation under the Radioactive Ores and Concentrates (Packaging and Transport) Act 1980. It does not cover waste from uranium processing (milling, leaching, tailings) unless that waste falls within another exemption. Similarly, the petroleum exemption covers waste produced incidentally from pipeline operation or hydrocarbon exploration/recovery. It does not cover waste brought from outside for storage, nor waste from refining or processing beyond the wellhead. The offshore petroleum exemption (s5(4)) requires the project to be “prescribed” and to deliver “significant economic and social benefits.” These terms are not defined in the Act; they are to be specified by regulation (s15(2A)). Until the regulations prescribe a project, the exemption does not apply. A person relying on this exemption must confirm that the project is prescribed and that the sedimentary basin is prescribed.

Seventh, the public money prohibition (s13) applies to all public moneys of the Territory and moneys of a Territory authority, “despite any other Act or law to the contrary.” This means that even if a future NT Act appropriates money for a nuclear waste facility, s13 would override it. However, the prohibition only applies to expenditure for, encouraging, or financing activities associated with the development, construction, or operation of a nuclear waste storage facility. It does not prohibit expenditure on public inquiry costs, legal advice about the Act, or enforcement actions. Also, it does not bind Commonwealth money.

Compliance with this Act is straightforward for the vast majority of persons: do not construct or operate any installation that stores or disposes of nuclear waste, and do not transport nuclear waste into the Northern Territory for storage at such an installation. These are absolute prohibitions; there is no licensing or permitting pathway to authorise the prohibited conduct. The only way to lawfully engage in activities that might otherwise be caught is to fall within one of the express exemptions.

For any business or government entity that handles radioactive material, the first step is to determine whether the material constitutes “nuclear waste” under the Act. If the material is Category A, B, C, or S radioactive waste under the 1992 Code of Practice, or is waste material containing radioactive material from a nuclear plant, nuclear weapons, or spent fuel conditioning/reprocessing, then it is nuclear waste. If it is not, the Act does not apply. Many naturally occurring radioactive materials (NORM) from mining or oil and gas production do not fall within the Code categories unless they are concentrated or processed; but they could still be caught by the second limb if derived from a nuclear plant or weapons. For most Australian mining and petroleum operations, the material is not from a nuclear plant, so the second limb is unlikely to apply. However, it is advisable to classify waste in writing by reference to the Code of Practice.

If the material is nuclear waste, the next question is whether it falls within an exemption. The key exemptions are:

• Waste lawfully stored in the Territory before 4 November 2004 (pre-existing storage). This exemption is now only of historical relevance; it does not permit new storage of waste generated after that date.
• Waste produced in the Territory and stored or disposed of under the Radiation Protection Act 2004 (s5(3)(b)). This is the most important exemption for local radioactive waste from medicine, industry, and research. To rely on it, the waste must be produced in the Territory, and the storage or disposal must be authorised under the Radiation Protection Act. This means obtaining a licence under that Act from the NT Radiation Protection Section. The Radiation Protection Act imposes its own conditions on storage and disposal, including limits on volume, duration, and safety measures. Compliance with that Act is necessary but not sufficient; the waste must also be produced in the Territory - imported waste cannot be stored under this exemption.
• Uranium mining activities under the Environment Protection Act 2019 and related transport under the Radioactive Ores and Concentrates (Packaging and Transport) Act 1980 (s5(3)(c),(d)). These exemptions cover the ore and concentrate handling chain. If the uranium miner also produces waste (tailings, contaminated equipment), the exemption may not extend to that waste unless it is stored/disposed under the Radiation Protection Act or is incidental to the mining activity as defined by the Environment Protection Act. Separate legal advice is needed.
• Nuclear waste produced incidentally from petroleum pipeline operation or hydrocarbon exploration/recovery in the Territory (s5(3)(e),(f)). This covers NORM scale and sludge. The activity must be incidental - if the primary purpose is to produce nuclear waste, the exemption does not apply. The exemption only covers waste produced within the Territory; waste brought from offshore for disposal is not covered.
• Nuclear waste produced incidentally from a prescribed offshore petroleum project in a prescribed sedimentary basin that delivers significant economic and social benefits (s5(4)). This is the most conditional exemption. To rely on it, the project must be prescribed by regulation, and the basin must be prescribed. The operator must keep records demonstrating that the project delivers significant economic and social benefits, as defined (or exemplified) in the regulations. Until the regulations are made, this exemption is not available for any particular project. An operator should monitor the NT legislation register for such regulations.

If none of these exemptions apply, the activity is prohibited. Any person considering engaging in conduct that might be caught should seek legal advice before proceeding. This is particularly important for executive officers of bodies corporate, as personal criminal liability can attach without a prosecution of the corporation. Officers should implement compliance programs that include:

• A clear written policy prohibiting the construction, operation, or use of any facility for nuclear waste storage, and prohibiting the import of nuclear waste for storage.
• Training for all relevant employees and contractors on the definition of nuclear waste and the scope of the prohibitions.
• Procedures for reporting any proposal or activity that might involve nuclear waste storage, with a mandate to cease any activity until legal advice is obtained.
• Due diligence measures such as regular audits of facilities and transport activities, and a requirement for any proposed transaction involving radioactive material to be reviewed by legal counsel.
• A register of all radioactive materials handled or produced, with classification under the Code of Practice and an assessment of whether they fall within any exemption.

For persons who may be approached to provide help or facilitation (such as transporters, storage companies, equipment suppliers, financiers, or consultants), the injunction power (s8(1)(d)) is a real risk. Even if the primary actor is not charged, a person who provides assistance could be restrained by an interim injunction. Therefore, any person who is asked to provide services that might relate to nuclear waste storage in the Territory should conduct a risk assessment and obtain an indemnity from the counterparty if possible. Due diligence should include inquiring whether the counterparty has a legal opinion that the activity is exempt.

Finally, any expenditure of Territory public money must be reviewed to ensure it does not contravene s13. This applies to grants, subsidies, contracts, or any financial arrangement that could be seen as financing or encouraging a nuclear waste storage facility. Even if the money is for a different purpose, if part of it indirectly supports such a facility, the prohibition may be triggered. Treasury and finance officers should ensure that any funding agreement includes a clause expressly prohibiting the use of funds for nuclear waste storage facility activities.