Bills Digest no. 125 2009–10
National Radioactive Waste Management Bill 2010
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
National Radioactive Waste Management
Bill 2010
Date introduced: 24 February 2010
House: House of Representatives
Portfolio: Resources, Energy and Tourism
Commencement: On Royal Assent.
Links: The relevant links to the Bill, Explanatory Memorandum
and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can
be found at ComLaw, which is at http://www.comlaw.gov.au/.
The National
Radioactive Waste Management Bill 2010 (the Bill) is intended to repeal
and replace the existing Commonwealth
Radioactive Waste Management Act 2005 (the
Act).
The Bill will restore some review
rights and procedural fairness rights to the process of selecting a site for
the proposed Commonwealth radioactive waste
management facility, and enables the establishment of a regional
consultative committee. Unlike the current Act, the
Bill also allows for a site to be selected outside the Northern Territory.[1]
Extensive historical background on
the proposed Commonwealth Radioactive Waste Management Facility is set out on
the Bills
Digest to the Act.[2] That legislation, along with the Commonwealth Radioactive Waste Management (Related Amendment) Act 2005, and
the subsequent Commonwealth Radioactive Waste Management Legislation
Amendment Act 2006, were intended to facilitate
the process of selecting a site, and then developing, and eventually operating,
a Commonwealth radioactive waste management facility in the Northern Territory.
At the time of the time of the
passing of the Act, three potential sites for the facility had been identified
by the former Howard Government in the Northern Territory. These were all
Commonwealth Defence Department properties: Mount Everard and Harts Range (both
near Alice Springs) and Fishers Ridge (near Katherine). All three sites are
listed in Schedule 1 to the Act. The Act also allowed the Chief Minister of
the Northern Territory to nominate other potential sites, as long as they were
not on Aboriginal land within the meaning of the Aboriginal Land Rights
(Northern Territory) Act 1976). Northern Territory indigenous Land Councils
were also able to nominate sites on Aboriginal land. In May 2007, the Northern
Land Council nominated an Aboriginal land site on Muckaty station, about 120 km
from Tennant Creek. In September 2007, the nomination was approved under the
provisions of the Act by the then Minister for Education, Science and Training,
the Hon Julie Bishop MP, triggering the legal powers and protections conferred
by the Act to potential facility sites.
Over
2006-2008, consultants Parsons Brinckerhoff undertook extensive studies
in order to consider the suitability of the three
Defence sites and Muckaty station as a location for the facility, including
detailed studies of the sites' physical, biological and socioeconomic
environments. Following a peer review process, the final report was submitted
to the Department of Resources, Energy and Tourism in March 2009. The report has
not been released, and the Government has previously stated it does not intend
to do so.[3]
However, the Government has said
that the Mount Everard, Harts Range and Fishers Ridge sites are no longer being
considered as potential sites.[4] The Muckaty station nomination is still afoot.
In terms of the types of waste
that might be stored at the proposed facility, the Minister’s second reading
speech stated:[5]
In terms of radioactive waste, Australia produces low level
and intermediate-level waste through its use of radioactive materials.
Low-level waste includes lightly contaminated laboratory waste, such as paper,
plastic, glassware and protective clothing, contaminated soil, smoke detectors
and emergency exit signs.
Intermediate-level waste arises from the production of
nuclear medicines, from overseas reprocessing of spent research reactor fuel
and from disused medical and industrial sources such as radiotherapy sources
and soil moisture meters.
As can be seen the generation of low-level and
intermediate-level radioactive waste is an unavoidable result of many
worthwhile activities.
During the past 50 years, about 4,000 cubic metres of
low-level and short-lived intermediate-level radioactive waste has accumulated
in Australia. It is currently stored at interim facilities including a
multitude of small stores located in suburban and regional areas across
Australia.
By comparison, countries such as Britain and France annually
produce around 25,000 cubic metres of low and intermediate-level waste. But
unlike the current situation in Australia, Britain and France dispose of such
waste in purpose built repositories.
In addition to providing proper disposal of Australia’s
low-level and short-lived intermediate level radioactive waste, the facility to
be established under this bill will also be suitable for storing the
approximately 32 cubic metres of long lived intermediate-level nuclear waste
arising from reprocessing ANSTO’s spent research reactor fuel. This material
will return to Australia from France and the United Kingdom in 2015 and 2016.
The
Act provides the Commonwealth or a person working on behalf of the Commonwealth
(including contractors and subcontractors) with the legislative authority to do
anything in the Northern Territory ‘necessary for or incidental to the
purposes’ of selecting the final site from those listed in Schedule 1 or
otherwise nominated[6] and then developing, operating and eventually decommissioning the facility.
The
Act also provides that various state, territory and Commonwealth legislation does
not apply to various stages of the facility. For example, the Act explicitly
overrides the operation of both Territory and State laws that ‘regulate, hinder
or prevent’ the facility’s development and operation, although it retains the
flexibility to permit the operation of any Territory or State laws if the
Commonwealth considers this appropriate.[7] It also overrides the application of the Commonwealth’s Aboriginal and
Torres Strait Islander Heritage Protection Act 1984 and the Environment
Protection and Biodiversity Conservation Act 1999 (EPBCA) as far they might
apply to the site selection process only.[8] The construction and operation of the facility
would however still be subject to the usual Commonwealth approval and licensing
provisions, including the Australian Radiation Protection and Nuclear Safety
Act 1998 (ARPNS Act) and the EPBCA.[9]
Other
significant features of the Act include:
- the failure to observe the consultative and consent arrangements
in relation to nomination of a place as a potential site by the Chief Minister
or a Land Council, does not invalidate the nomination or any subsequent Commonwealth
Ministerial approval of the nomination
- the nomination of place is not reviewable under the Administrative
Decisions (Judicial Review) Act 1977 (ADJRA) and is not disallowable by
Parliament
- the Government’s decision on the preferred site is not
disallowable by Parliament, is not reviewable under the ADJRA, and the
Government owes no legal obligation of procedural fairness towards anybody
affected by the decision
When
in Opposition, the ALP stated that it was ‘committed to repealing the Commonwealth
Radioactive Waste Management Act and establishing a consensual process of
site selection’.[10]
The Northern Territory
government remains opposed to siting of the facility in the Northern Territory.[11]
Reports suggest that there are
mixed feelings amongst the traditional owners of the Muckaty station site
regarding the potential for the facility to be located there,[12] including elements of strong opposition.[13]
The Opposition have said they
continue to support the need for the facility, noting the Muckaty site was
identified under the Coalition Government’s process. They have stated that they
‘will closely examine the details’ of the Bill.[14]
The Greens have been critical of
the Bill, and have expressed concerns about the openness of the site selection
process to date and have pressed for further consultations.[15]
The Bill has been referred to the Senate Legal and
Constitutional Affairs Committee for inquiry and report by 30 April 2010.
Details of the inquiry are at http://www.aph.gov.au/senate/committee/legcon_ctte/radioactivewaste/info.htm.
The Explanatory Memorandum to the Bill states:[16]
Overall, the financial impact of the legislation is
considered to be negligible. Provision for any costs, including any liability
of the Commonwealth to compensate persons for any acquisition etc. of their
interests in land affected by the Bill, would be sought to supplement the
existing administrated appropriation for Outcome 1 of the Department of
Resources, Energy and Tourism.
The Bill incorporates a requirement on the part of the
Minister to accord procedural fairness in relation to:
- declaring that general nominations for potential
facilities sites may be made, as opposed to restricting nominations to
Northern Territory Land Councils, and
- declaring that a particular site has been selected for the
facility.[17]
Such a requirement is explicitly excluded under the current
Act. The new requirement is not however unduly onerous – it necessitates the
Minister inviting comment from specified persons or entities, and ‘tak[ing]
into account and relevant comments given’.
In the event that the Minister makes an error of law in the
processes applying to site nominations, approval of nominations, and selection
of the preferred site, the Bill restores the right of an ‘aggrieved person’ to
seek judicial review under the ADJR Act. However, the Bill also retains the
current provisions of the Act that a failure to comply with certain procedural elements
does not invalidate the nominations etc.
The Bill also contemplates, in the event that the Minister declares that
general nominations for facility sites may be made, that the facility could be
built outside the Northern Territory.[18] However, depending on the circumstances, it is perhaps arguable that the
Commonwealth does not have clear constitutional power to enact legislation to
construct and operate a facility outside the territories, although the external
affairs and implied nationhood power may provide sufficient power. This is
covered in more depth in the discussion of new section 37 in the mains
provisions section of this Digest.
The Bill retains the existing provisions of the Act that effectively
exclude State and Territory laws from operating where they would ‘regulate,
hinder or prevent’ the Commonwealth from doing work to investigate the
suitability of potential sites and then the construction and operation of the
proposed facility, including the transporting of radioactive materials.
New section 3 contains a number of definitions, including those of ‘Commonwealth
contractor’ and ‘subcontractor’. The effect of these two definitions, combined
with new sections 4 and 12, is that persons and companies with very remote legal contractual
connections to the Commonwealth will potentially be exempted from State and
Territory law when undertaking work connected to the proposed facility.
New section 4 allows for nomination of potential
sites on Northern Territory Aboriginal land by the relevant Land Council.
However, such a nomination may only be done before the ‘general nomination
start time’. General nominations are done under new sections 5-7 (see
below). This ‘general nomination start time’ will be fixed by the Commonwealth Minister
by a written declaration made under new section 5, at some unspecified
future date. The declaration is not a legislation instrument, and hence not disallowable
by Parliament.
New section 4 nominations contain similar procedural
elements as existing section 3B of the Act (particularly in relation to
providing evidence of consultation and consent with the relevant traditional
Aboriginal owners). As with the current Act, however, a failure to comply with
these elements does not invalidate a nomination, nor is the nomination
disallowable by Parliament.[19]
In respect of general
nominations, these may be made under new section 6 by the owner of the
relevant land, or by the certain leaseholders,[20] but only following a Ministerial declaration under new section 5. Before
making such a declaration, the Minister have regard to whether it is unlikely
that a facility will be able to be constructed and operated on Aboriginal land
that has been nominated as a potential site under new section 4. This avenue
for general nominations opens up a fall-back option if it appears that any Land
Council nominated sites are not feasible for a facility for whatever reason. It
is notable that a general nomination can be for a site outside the Northern
Territory – the Act currently only allows for sites within the Northern
Territory. New section 7 contains procedural elements (particularly in
relation to providing evidence of consultation and consent with ‘specified
groups of persons’[21])
but again, a failure to comply with these elements does not invalidate a
nomination, nor is the nomination disallowable by Parliament.
New section 8 enables the Minister to, ‘at his or her absolute discretion’ give
written approval of land, or part of land, nominated under new sections 4 or
6.[22] A failure to observe procedural elements (which have been largely
discussed above) does not invalidate any section 8 approval, nor is the
approval disallowable by Parliament as it is not a legislative instrument. New
section 8 essentially replicates the equivalent section (section 3C) currently in
the Act.
New section 9, dealing with procedural fairness for
section 5 declarations and section 8 approvals, is major change as compared the
current Act. Existing section 3D of the Act specifies that ‘no person is
entitled to procedural fairness’ in relation to a section 3A nomination of a
site or section 3C Ministerial approval of a nomination. New section 9 contains a process that ‘taken to be an exhaustive statement of the
requirements for natural justice’ for new section 5 declarations and new
section 8 approvals. It makes no mention of natural justice in relation to
nominations.[23]
In relation to natural justice for a new section 5 declaration, the Minister must invite comments from all Land Councils and the
general public (with a minimum 60 day period for comments to be received) on
the proposed declaration, and then take these into account in deciding whether
to make the declaration.
In relation to new section 8 approvals, the Minister
must invite comments from each nominator, and via public notices in the Gazette
and newspapers, from persons with a right or interest in the relevant land –
again with a minimum 60 day period for comments to be received. Comments from
these persons must be taking into account by the Minister in deciding whether
approve the nomination.[24]
New section 10 provides the Commonwealth or a person working on behalf of the
Commonwealth (including contractors and subcontractors) with the legislative
authority to do anything in a state or territory ‘necessary for or incidental
to the purposes’ of selecting a site on which to construct and operate a
facility. New subsection 10(3) provides a non-exhaustive list of the sort of activities which
would fall into this category. New subsection 10(4) places various obligations on persons engaged in such activities
outside of the sites – essentially to cause as little damage or inconvenience
as possible to the relevant land and occupiers. New section 10 differs
from the equivalent section 4 in the Act in that extends to all states and
territories – not just the Northern Territory, but otherwise is the same.
New section 11 effectively
excludes State and Territory laws from operating where they would ‘regulate,
hinder or prevent the doing of a thing authorised by section 10’. New section
11(1) does state that only certain types of State and Territory laws (eg
laws relating to ‘the uses or proposed use of land or premises’) are excluded,
but the range of laws mentioned is so wide they are likely to give almost
complete coverage. Indeed, even if a State or Territory law fell outside the
type listed in new subsection 11(1), the law could be excluded by prescribing it under regulation: new
subsections 11(2)-(3). This prescribing power also allows parts of laws, rather than the
whole, to be excluded. Conversely, new subsection 11(4) provides that the regulations may prescribe a State or Territory
law, or part of it, such that it has effect despite anything in new section 11. This allows the Commonwealth to limit the exclusions discussed
above if thought appropriate. New section 11 is the same as section 5 in
the current Act.
New subsection 12(1) provides that
two Commonwealth laws, the Aboriginal and Torres Strait Islander Heritage
Protection Act 1984 and the Environment Protection and Biodiversity
Conservation Act 1999, have no effect where they would ‘regulate, hinder or
prevent the doing of a thing authorised by section 10’. Again a prescription
power under regulation exists (subsection 10(2)) to allow for the exclusion of other Commonwealth laws, or parts
of laws. New section 12 is the same as section 6 in the current Act.
Part 4 allows the
Minister to acquire and/or extinguish various rights and interests[25] both in the site finally selected
for the facility or other land where this is required for providing all-weather
road access to that site.
New
subsection 13(2) enables the Minister to declare that a nominated site, or part of
that site, has been selected as the site for the facility.[26] Under new subsection 13(4), a
declaration may also be made that that all or specified rights or
interests in land in a State or Territory are required for providing
all-weather road access to the selected site. Subsection 13(2) declarations may
be revoked, but there is no provision for revocations in relation to subsection
13(4) declarations.
New section 14 specifies that a failure to comply
with these various procedural elements in the nomination, Ministerial approval
or declaration process does not invalidate a declaration, nor is the
declaration disallowable by Parliament. However, the declaration must comply
with new section 17 procedural fairness requirements, which contains a
process that ‘taken to be an exhaustive statement of the requirements for
natural justice’. By comparison, the Act currently specifically provides that the Minister need not accord
any person procedural fairness in making a declaration selecting a site or land
for road access.
Under new section 17, the Minister must invite
comments from each nominator[27],
and via public notices in the Gazette and newspapers, from persons with a right
or interest in the relevant land, with a minimum 60 day period for comments to
be received. Comments from these persons must be taking into account by the
Minister in deciding whether to make the new section 13 declaration.
New subsection 18(1) provides that at the time any new subsections
13(2) or 13(4) declaration has effect, any rights or interest in the
selected site or road-access land that are specified in the declaration are
acquired by the Commonwealth or extinguished and freed and discharged from all
other rights and interests and from all trusts, restrictions, dedications,
reservations, obligations, mortgages, encumbrances, contracts, licences,
charges and rates. This is little different from the equivalent section of the
current Act.
The acquisition and/or extinguishment of rights and interests
under new section 18 has effect despite any other law of the Commonwealth, State or Territory,
including the Commonwealth’s Lands Acquisition Act 1989 and the Native Title Act 1993: new section 19. This is
identical to existing section 10 in the Act. Although the Explanatory
Memorandum to the Bill makes no real comment on the provision, the Explanatory
Memorandum to the current Act (then Bill) noted that the provision has the
effect that:
it is not necessary for
the Commonwealth to comply with any and all provisions of those Acts relating
to preliminary processes for the acquisition or extinguishment of rights and
interests in relation to land.
New section 21, allowing for the establishment of a
regional consultative committee, is entirely new as compared to the current
Act. Once a site selection declaration (new subsection 13(2)) has
taken effect, the Minister may establish such a committee. The functions of the
committee are to facilitate:
- communication between the Commonwealth, the operator of the
facility (if any) at the selected site and persons living in or near the region
where the selected site is situated, and
- such other functions as are prescribed via regulation.
Regulations may also prescribe the
membership of the committee.
Part 5 is broadly
similar to Part 3 except that it deals with activities once the final site has been
selected. It is also virtually identical to existing Part 4 in the Act.
New section 22 provides the
Commonwealth or a person working on behalf of the Commonwealth with the
legislative authority to do anything ‘necessary for or incidental to’ the
various things listed new subsection 22(2). These range from gathering information necessary for the
Commonwealth licensing of the facility, building access roads, constructing,
operating – including transport radioactive waste to and from the site - and
decommissioning the facility. [28]
New section 23 effectively
excludes State and Territory laws from operating where they would ‘regulate,
hinder or prevent the doing of a thing authorised by section 12’. New sections
23(1)-(2) do state that only certain types of State and Territory laws (eg
laws relating to ‘the uses or proposed use of land or premises’) are excluded,
but again the range is so wide they are likely to give almost complete
coverage. Even if a State or Territory law fell outside the types listed in new
subsections 23(1)-(2), the law could excluded by prescribing it under regulation: new
subsections 23(3)-(4). This prescribing power also allows parts of laws, rather than the
whole, to be excluded. New subsection 23(5) provides that the regulations may prescribe a State or Territory
law, or part of it, such that it has effect despite anything in new section
23. This allows the Commonwealth to limit the exclusions discussed
above if thought appropriate. New section 23 is the same as section 13
in the current Act.
New subsection 24(1) provides that
the Commonwealth may prescribe by regulation a Commonwealth law, or part of it,
so that it has no effect to the extent it would otherwise ‘regulate, hinder or
prevent the doing of a thing authorised by section 22’. However subsection
24(2) provides that the following laws cannot be prescribed:
• the Australian Radiation Protection and Nuclear Safety Act
1998;
• the Environment Protection and Biodiversity Conservation Act
1999;
• the Nuclear Non-Proliferation (Safeguards) Act 1987.
This means these laws will continue to apply.
Part 6 is virtually identical to existing Part 4A in the Act. That Part was
added to the Act by the Commonwealth Radioactive Waste Management
Legislation Amendment Act 2006.
It provides a legislative
structure for the future return of Aboriginal Land to its original owners. The
return is to be made in the Minister’s ‘absolute discretion’. New section
25 sets out the features of the land to be returned. These define the land
to have been Aboriginal land in the beginning, the nature of the original
acquisition and the fact that the facility has been abandoned in accordance
with the Australian Radiation Protection and Nuclear Safety Act 1998, that
is, it is no longer needed as a radioactive waste storage facility and it has
been declared to be safe.
New sections 26 and 27 establish a mechanism whereby the Minister (in his or her
absolute discretion) can declare the land is no longer needed. The declaration
must specify the land and the Land Trust to which he or she intends to return it.
To come within these provisions, the Land Trust must be the same Land Trust (or
its successor) which held the land before it was acquired by the Commonwealth.
The declaration must be published in the Gazette and the Land Trust must
be notified in writing. Provided these conditions are met, and the Land Trust
has consented to the return of the land within the prescribed time frame (12
months, in the first instance), the Minister must make a declaration returning
the land as a grant of estate in fee simple (with mineral rights reserved) or
releasing the Commonwealth’s interests in the land.
New
section 32 provides for an indemnity by
the Commonwealth to the Land Trusts specified in the return of land. The
indemnity covers the Land Trust against any action, claim or demand brought
against the Land Trust in respect of any liability arising from, or damage
caused by, ionising radiation from the transport or management of ‘controlled
material’ at the facility. This indemnity is reduced to the extent that any
fault on the part of the Land Trust is involved (proposed subsection 32(2)).
Furthermore the indemnity will not operate if the Land Trust does not notify
the Commonwealth, in writing, of the issue ‘as soon as practicable’ (proposed
subsection 32(3)) and it must then follow the directions of the Commonwealth
in relation to the claim.
New sections 34 and 35 contain some recent
standard Commonwealth legislative provisions on compensation. New section
34 provides for ‘reasonable’ compensation to be payable to a person
whose right or interest has been acquired, extinguished or otherwise affected
under new section 18. New section 35 provides that, if the effect of the Bill (once in operation) would
result in constitutional acquisition of property from a person ‘otherwise than
on just terms’, again reasonable compensation must be paid. In both cases, if
the Commonwealth and the person claiming compensation do not agree on the
amount, the person to whom the compensation is payable may institute
proceedings in the Federal Court to determine, and recover, the amount payable.
New section 36 is revised form of section 16A Act. Section 16A requires
the Commonwealth to indemnify the Northern Territory[29],
and keep the Northern Territory indemnified against any ‘action, claim or
demand brought or made against the Northern Territory in respect of any
liability arising from, or damaged caused by, ionising radiation from any act
done or omitted to be done by or on behalf of the Commonwealth in relation to
the transport of controlled material to or from, or the management of
controlled material, at a facility on the selected site’. The amount of the
indemnity is reduced by the extent to which any fault on the part of the State
or Territory, or its employees, agents or contractors, contributed to the
liability or damage. The indemnity only applies if the Northern Territory both
gives the Commonwealth written notification of the action, claim or demand as
soon as practicable, and follows any directions of the Commonwealth in relation
to the action, claim or demand.
New section 36 is broadly similar, however it applies only if the
nomination of the selected site was through section 4 (nomination of Aboriginal
land by the relevant Land Council). Unfortunately neither the Explanatory
Memorandum nor the second reading speech provide any background to the
perceived need for this entirely new provision, including why it effectively
only applies should the proposed facility be built on Aboriginal Land in the
Northern Territory, as opposed to other locations.
New section 37 provides a constitutional ‘safety net’ in the event
that the purported operation of the Bill to a prospective facility outside a
territory is beyond the constitutional power of the Commonwealth.[30]
Certainly the Commonwealth has the power under section 122 of the
Constitution to legislate to with a prospective facility in a Territory. If the
Commonwealth has the constitutional ability to legislate on a subject, it also
has the power to explicitly exclude or limit the operation of State or
Territory law with respect to matters dealt with by the legislation. For
example, section 83 of the Australian Radiation Protection and Nuclear Safety Act 1999 provides that:
If a law of a State or
Territory, or one or more provisions of such a law, is prescribed by the
regulations, that law or provision does not apply in relation to the following:
(a) an activity of a
controlled person in relation to a controlled apparatus or a controlled
material;
(b) an activity of a
controlled person in relation to a controlled facility.
There are a range of other constitutional powers that may arguably
serve to support those parts of the Bill that authorise activities outside of
the territories. For example, the external affairs power (section 51(xxix))
could be relevant by virtue of Australia being a party to the 1997
Convention on the Safety of
Spent Fuel Management and the Safety of Radioactive Waste Management.[31] By expediting
the development of the proposed facility, the Bill could be said to support the
broad objectives of the Convention. The ‘implied nationhood’ power could also
be relevant to support legislation that essentially seeks to allow the
Commonwealth to safely store waste generated by its agencies, although the scope
of that power is uncertain.
However, depending on the circumstances, there may still be doubts that the
Constitution would support those parts of the Bill
that potentially authorise, or are related to, activities for a facility that
may be outside of the territories. In this case, new section 37 allows the Bill
to effectively operate so it only applies in relation a facility, and other
relevant land, within a territory.
Item 1 repeals the current Act.
Item 2 repeals the current exemption
from the ADJR Act in respect of site nominations, approval of nominations, and
selection of the preferred site.
Schedule 2 is designed to effectively preserve the legal status of the
2007 Muckaty station nomination. However, should it be eventually selected as
the facility site by the Commonwealth under a new section 13 Ministerial
declaration, the new procedural fairness requirements in new section 17 will apply to that declaration process.
Concluding
comments
The issue of the proposed Commonwealth
Radioactive Waste Management Facility is a contentious one, particularly as
both this Bill and the current Act allow for the overriding of Territory and
State law in particular. The Bill does restore and address some procedural
fairness requirements and judicial review rights to the process, which were excluded
by the Howard Government through the passing of the Act in 2005, and later
amendments in 2006.
Members, Senators and
Parliamentary staff can obtain further information from the Parliamentary
Library on (02) 6277 2764.
Angus Martyn
9 March 2010
Bills Digest Service
Parliamentary Library
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