In November 2019, two ballot counts happened in the same small farming district on South Australia's Eyre Peninsula, and only one of them made the news. The District Council of Kimba tallied 734 formal votes on whether the town should host Australia's first purpose-built national radioactive waste facility: 452 people, or 61.6 per cent, voted yes — short of the 65 per cent the federal government had said it wanted to see before calling the result a clear community mandate. A few kilometres away, the Barngarla people, the native title holders whose country takes in most of the district, ran a ballot of their own, because the official one did not count them: renters, adult children of ratepayers, and Barngarla people who did not personally own land nearby were all excluded from the roll used for the council vote. Every Barngarla vote cast in their own ballot was against the dump. Both results were true at once, about the same paddocks of wheat and sheep country, on the question of who would host radioactive material for millennia. Only the version with the bigger raw number went on to become Commonwealth policy — until a Federal Court judge decided, nearly four years later, that the process itself could not stand.
That split verdict is the latest instalment in an argument South Australia has been having with itself, and with Canberra, for three decades. Malinauskas Labor now governs a state juggling three separate nuclear-waste questions at once: a shelved 2016 plan to import the world's high-level waste for profit, a just-collapsed federal push to build a national low- and intermediate-level waste store on Eyre Peninsula soil, and a live, unresolved question about where the high-level waste from Australia's own AUKUS submarines will eventually go. Every one of them has run into the same obstacle — a South Australian community, asked directly, that has not freely agreed to host the material.
What happened
The state government opened this chapter itself. In February 2015, Premier Jay Weatherill's Labor Government established a Royal Commission into South Australia's role in the nuclear fuel cycle, chaired by former state Governor and retired Rear Admiral Kevin Scarce. Its brief covered uranium mining, enrichment, power generation and waste, but the commercial case that dominated the debate afterwards concerned waste. The Commission's final report, delivered on 6 May 2016, judged nuclear power uneconomic for the state at the time, but concluded South Australia could safely and profitably store and dispose of high-level waste from other countries' reactors in a deep geological repository — modelling projected roughly $257 billion in revenue against $145 billion in costs over the project's roughly 120-year life (approx.), a net figure the Commission itself described as deliberately conservative.
Weatherill did not try to legislate the plan straight away. His government ran an extensive public consultation and then convened a randomly selected, 350-member Citizens' Jury, which met across two rounds through 2016. When it reported on 6 November 2016, two-thirds of jurors rejected the proposal "under any circumstances," citing insufficient information, a lack of Aboriginal consent, and low confidence in the economic modelling; the remaining third supported proceeding only under conditions the government had not met. Weatherill accepted the result and did not press ahead. His government lost office to Steven Marshall's Liberals in March 2018, and the high-level waste import plan has not been revived by any South Australian government since.
A separate, federally run process kept moving. The National Radioactive Waste Management Act 2012 (Cth), passed by the Gillard Labor Government, set out how the Commonwealth would site a facility for Australia's own low-level waste — mostly medical and research by-products of the Lucas Heights reactor — and the intermediate-level waste that comes with it, both currently scattered across more than 100 ad hoc stores around the country. Eyre Peninsula produced two finalists: Kimba, and Wallerberdina Station near Hawker, on Adnyamathanha country, which was ruled out in December 2019 after strong opposition from its traditional owners. In November 2021, then-Resources Minister Keith Pitt formally declared Napandee, a property near Kimba, as the site under the Act — a law that explicitly allows a declared site to override state prohibitions.
Malinauskas became Premier in March 2022, inheriting a declared federal site and a Barngarla legal challenge already under way. SA Labor's state convention voted in October 2022 to back "a veto right for the Barngarla community," and Malinauskas has said publicly that his government does not support the facility proceeding without Barngarla consent. On 18 July 2023, Justice Natalie Charlesworth of the Federal Court set aside Pitt's declaration in Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources, finding apprehended bias: Pitt had made public comments suggesting the outcome was decided before the statutory process had run its course. On 10 August 2023, the new federal minister, Madeleine King, confirmed the Commonwealth would not appeal and would not pursue Napandee, or the earlier-shortlisted Lyndhurst and Wallerberdina sites either. Six years of federal process ended inside six months of litigation.
The AUKUS question arrived at the same time (the defence budget and strategy gap sets out the wider cost). Under the "optimal pathway" the Albanese Government announced in March 2023, nuclear-powered submarines will be built and sustained at Osborne, in Adelaide, from the 2040s, and Australia will manage the resulting high-level naval reactor waste onshore rather than send it overseas. Defence Minister Richard Marles told the House of Representatives on 22 March 2023 that the first submarine would not need its reactor waste dealt with until the 2050s, giving the country roughly three decades to find a site. Malinauskas has ruled out Osborne itself hosting spent fuel (see AUKUS submarines at Osborne) and is lobbying the Commonwealth to instead consider the Woomera Prohibited Area, a Defence-controlled range in the state's north that overlaps Kokatha native title country. He has publicly rejected the argument, made by other Labor premiers, that South Australia should take the waste because it is getting the shipbuilding jobs, saying the site should be chosen in "the nation's interest."
The strongest case
Two separate arguments deserve to be taken seriously, and they are not the same argument
The Royal Commission's economic case was not fanciful. Australia is also among the only G20 economies to legally ban nuclear power (the nuclear ban). Large volumes of used fuel already sit at reactor sites worldwide with nowhere permanent to go, and someone will eventually be paid well to solve that problem for a growing list of countries. South Australia has genuinely favourable geology for deep storage — stable, dry, low-seismicity country in the state's far north — plus decades of relevant expertise from uranium mining at Olympic Dam and Beverley. Kevin Scarce's Commission argued a well-regulated, stable democracy like Australia could capture that value more safely than the weaker-governance alternatives the waste would otherwise go to, and that the resulting royalties could have funded decades of health, education and debt reduction without raising a single South Australian tax.
The second argument is different, and in some ways harder to dismiss: somebody already has to manage this material, regardless of what South Australia decides. Lucas Heights produces isotopes for hundreds of thousands of nuclear medicine scans and treatments a year (approx.), and the low-level waste this generates currently sits in scattered, ad hoc stores that safety regulators, and even many opponents of Kimba, generally agree is a worse long-term arrangement than one purpose-built, monitored facility. AUKUS adds an unavoidable version of the same problem: Australia has chosen to operate nuclear-powered submarines, which means it will generate high-level reactor waste whether or not any state agrees to store it, and the government's argument that a country capable of building submarines should also be capable of safely managing their waste, rather than deferring the question indefinitely, is a reasonable one on its own terms.
The evidence
The clearest thread through three decades of proposals is a persistent gap between the strength of the case on paper and the consent obtained in the room. The 2016 Citizens' Jury was not a hostile audience — it was 350 randomly selected South Australians given weeks of briefings by the Royal Commission's own experts — and two-thirds still said no. The 2019 Kimba ballot only just missed the government's own 65 per cent bar, and produced a majority at all only because the roll excluded the Barngarla people whose country the facility would sit on. Their own, separately run ballot shows what the official count left out.
Set against the roughly $257 billion the Royal Commission modelled as achievable revenue from importing the world's high-level waste, the sums actually at stake domestically look far smaller and the timeline far longer. Australia's own AUKUS waste will not need a permanent home until the 2050s, and more than three years after the Kimba site collapsed in court, the Commonwealth has published no shortlist, no selection criteria, and no public costing for where that home will be — a gap the Australian Submarine Agency itself has been unable to resolve when asked directly for current cost estimates.
The critique
The design flaw that ultimately sank Kimba was not a one-off. Every siting process in this history has let government define who counts as "the community" in a way that excludes the people with the deepest and longest connection to the land in question. The 2019 Kimba ballot roll ran on ratepayer status, not residency or native title; the earlier Wallerberdina proposal ran into the same objection from Adnyamathanha traditional owners before it was even put to a vote. Justice Charlesworth's finding of apprehended bias in the Barngarla case showed how far that design flaw ran: a minister who had all but announced the outcome before the statutory process had finished. That is a legal failure, not simply a public-relations one, and it took a Federal Court challenge, brought and funded by a native title corporation with limited resources, to catch it.
Malinauskas Labor's own record on the tools available to it is less impressive than its public rhetoric. The Nuclear Waste Storage Facility (Prohibition) Act 2000 — legislated by a Liberal government in 2000 and broadened by a Labor government in 2002 — requires State Parliament's Environment, Resources and Development Committee to inquire into any facility a Commonwealth law authorises for South Australia. When Kimba was declared, the Committee, chaired by a Labor MP, held that the threshold for opening that inquiry had not yet been met, and never opened one before the Federal Court intervened instead. A state government that says loudly it opposes a facility, while its own Parliament declines to use the safeguard that same government's predecessors wrote into law, is not obviously testing that opposition.
The AUKUS question then exposes a deeper problem: the 2000 Act itself may no longer bind the Commonwealth at all. The Australian Naval Nuclear Power Safety Act 2024 (Cth) gives Defence-related nuclear activity the power, under section 135, to override state and territory law, and the Australian Naval Nuclear Power Safety Regulations 2025 name laws — reportedly including South Australia's own prohibition Act — that do not apply to regulated AUKUS activity. In its own submission to that 2025 consultation, the South Australian Government did not contest the override; it asked for administrative clarity, and supported removing the fixed legal boundary around the Osborne shipyard so the site could expand without needing a fresh Act of federal Parliament. A state that once wrote a law declaring itself off-limits to nuclear waste is now, on the public record, helping the Commonwealth draw a bigger box around the one site its own Premier says will not take spent fuel.
Every South Australian government since 2000 has said, in one form or another, that this state will not be told where to put nuclear waste — and every process since has been decided somewhere else.
The risk to the future
A federal override with no published site, no costing, and thirty years to get it right or wrong
The 2023 Kimba judgment showed what happens when a nuclear-waste siting process treats consent as an afterthought: years of work and hundreds of millions of dollars, and a community left divided, undone in a single Federal Court hearing. The AUKUS waste question now carries the same risk on a larger scale. The Commonwealth has roughly three decades before the first submarine needs its reactor waste dealt with, has published no shortlist of sites, no selection process and no public costing, and has already legislated the power to override the one South Australian law built specifically to stop exactly this outcome without consent. Woomera may yet prove a genuinely sound technical choice — remote, already Defence-controlled, on land the state does not need for agriculture or housing — but "genuinely sound" was also said of Napandee, by a minister a judge later found had already made up his mind. If the next process repeats the pattern of narrow consultation and after-the-fact consent, South Australia risks hosting the country's most consequential radioactive waste facility without ever having been asked in a way its own Citizens' Jury, its own Barngarla and Kokatha communities, or its own Parliament could recognise as a genuine choice.