Australian Radioactive Waste Agency Bill 2022

Bills Digest No. 63, 2021–22

PDF version [403 KB]

Tim Brennan
Science, Technology, Environment and Resources Section

Philip Hamilton
Politics and Public Administration Section
4 April 2022

Contents

Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions

Date introduced: 16 February 2022
House: House of Representatives
Portfolio: Industry, Science, Energy and Resources
Commencement: On a day to be fixed by proclamation, or six months and one day following Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at April 2022.

Purpose of the Bill

The purpose of the Australian Radioactive Waste Agency Bill 2022 (the Bill) is to establish the Australian Radioactive Waste Agency (ARWA) as a statutory non-corporate Commonwealth entity that is a listed entity for the purposes of the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

The Bill provides that ARWA’s functions include:

establishing and operating the National Radioactive Waste Management Facility (NRWMF) in accordance with the National Radioactive Waste Management Act 2012 (NRWM Act)
functions relating to the management and transportation of radioactive waste and
developing an inventory of radioactive materials in Australia.

The Bill also outlines the structure of ARWA, including providing for the appointment of a Chief Executive Officer (CEO) to manage the affairs of ARWA and allowing the Minister to give written directions to ARWA about the performance of its functions.

Structure of the Bill

This Bill is comprised of four parts:

Part 1 provides a simplified outline of the Australian Radioactive Waste Agency Act 2022 and sets out the definitions of key terms
Part 2 establishes the ARWA, including setting out its functions, and makes provision for the Minister to give written directions to ARWA about the performance of ARWA’s functions
Part 3 sets out the terms and conditions of the appointment of the CEO of ARWA, including an outline of the CEO’s functions. It provides that staff must be employed under the Public Service Act 1999 and enables the CEO to engage consultants to assist ARWA
Part 4 deals with miscellaneous matters, such as delegations by the CEO and the making of rules by the Minister.

Background

Management of radioactive waste in Australia

Radioactive waste is defined as ‘material that no longer has any foreseeable use and contains radioactive materials with activities or activity concentrations at levels that require ongoing management to ensure its safety’.[1]

Radioactive waste in Australia is administered through the Australian Radioactive Waste Management Framework (ARWM Framework).[2] The Department of Industry, Science, Energy and Resources (DISER) has primary responsibility for radioactive waste management issues in Australia.[3] Australia is also a party to the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Nuclear Waste Management (the Joint Convention).[4] The Joint Convention aims to ensure that ‘during all stages of spent fuel and radioactive waste management there are effective defenses against potential hazards so that individuals, society and the environment are protected from harmful effects of ionizing radiation’.[5]

Types of radioactive waste

The Australian classification scheme for radioactive waste is based on the International Atomic Energy Agency’s categorisation of radioactive waste:

Exempt Waste contains very low levels of radioactivity and can be disposed of in ordinary waste facilities (for example, landfill)
Very Short-Lived Waste requires safe storage for short periods while the radioactivity decays and then can be disposed of in ordinary waste facilities
Very Low-Level Waste contains low levels of short-lived radioactivity and can be disposed of in commercial or industrial facilities with limited regulatory controls
Low-Level Waste contains higher levels of short-lived, and low levels of long-lived, radioactivity, and can be disposed of at an engineered above-surface or near-surface facility
Intermediate-Level Waste contains higher levels of long-lived radioactivity and can be safely disposed of at greater depths underground (up to a few hundred metres) below the surface
High-Level Waste contains levels of radioactivity able to produce significant amounts of heat during the decay process, and must be disposed of in deep, stable, geological formations underground (several hundred metres below the surface).[6]

Exempt, Very Short-Lived, and Very Low-Level waste do not present significant disposal challenges. Australia does not currently produce High-Level Waste, so the key challenges in Australia relate to the storage and disposal of Low-Level Waste (LLW) and Intermediate-Level Waste (ILW).

Radioactive waste in Australia

Production

In Australia, radioactive waste is generated from a variety of sources, particularly from the use of radioactive materials in medical applications, scientific research, and industry, and the Open Pool Australian Lightwater (OPAL) research reactor operated by the Australian Nuclear Science and Technology Organisation (ANSTO) at Lucas Heights in Sydney.[7]

Quantity

As of January 2018, there were 4,975 cubic metres of existing LLW and 1,771 cubic metres of existing ILW in Australia (legacy waste).[8] It is expected that by 2070 an additional 4,843 cubic metres of LLW and 1,963 cubic metres of ILW will be produced.[9]

ANSTO has been the largest producer of existing waste (accounting for 56% of LLW and 68% of ILW), with the Commonwealth Scientific and Industrial Research Organisation (CSIRO) also a significant source, accounting for 40% of LLW and 24% of ILW.[10] Most future waste is expected to be produced by ANSTO, which is projected to account for 97% of future LLW and 94% of ILW.[11] ANSTO has reported that ‘ninety-two per cent of the radioactive waste produced by ANSTO is LLW, made up of paper, plastic, gloves, cloths and filters which contain small amounts of radioactivity’.[12]

Current arrangements for waste disposal

Australia currently does not have a dedicated facility for the disposal of radioactive waste. For many decades, radioactive waste in Australia was stored in ad-hoc and sub-optimal locations, increasing the risk of an accident that could damage human health or the environment.[13]

Radioactive waste is currently managed at approximately 100 locations around Australia, including ANSTO, hospitals, industrial sites, and mines,[14] although some of this waste is in categories of less concern than LLW or ILW and therefore would not need to be sent to a dedicated facility.[15] ANSTO manages about 45% of the LLW in Australia.[16]

Proposed National Radioactive Waste Management Facility

Many sites currently being used for waste storage are not purpose-built to store such waste and ‘this is neither desirable nor sustainable’.[17] Consequently, the Australian Government has been working over many years to establish a National Radioactive Waste Management Facility (NRWMF) to permanently dispose of LLW and temporarily store ILW. The proposed NRWMF will not eliminate the use of all current waste repositories, however DISER anticipates:

… about a dozen university stores, as well as CSIRO’s Woomera waste storage facility, other CSIRO sites in New South Wales and Victoria, several defence facilities, and a number of other sites would no longer be needed for the storage of radioactive waste.[18]

In February 2020, the Government introduced the National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 (the NRWM Amendment Bill).[19] The main purpose of the Bill was to amend the NRWM Act to specify the site for the NRWMF. However, following Government amendments, the purpose of the Bill changed from site specification to retaining the current Ministerial declaration process for site selection, and the Bill passed both Houses of Parliament on 22 June 2021. As explained in the Replacement Supplementary Explanatory Memorandum to the NRWM Amendment Bill:

This amendment removes the specification of the site for the Facility from the Bill and means that the Minister makes the decision to declare a site for the Facility. This amendment ensures that those with leave to appeal the Minister’s decision can seek review pursuant to the Administrative Decisions (Judicial Review) Act 1979.[20]

Following a site selection process conducted over multiple years, in November 2021 the Australian Government declared that the NRWMF would be established at Napandee, a 211 hectare property near the town of Kimba, South Australia.[21] The declaration has the effect that the land required for the facility is acquired by the Commonwealth.[22]

Shortly after the Minister’s declaration, the Barngarla Determination Aboriginal Corporation (BDAC) announced that it would challenge the decision.[23] BDAC’s application for judicial review was lodged in the Federal Court of Australia on 20 December 2021, and the first case management hearing is scheduled for 15 June 2022.[24]

This Bill does not relate to the selection of the site of the proposed NRWMF, but rather it establishes the ARWA as the agency responsible for operating the NRWMF and performing related functions.

Appropriateness of the entity model chosen for ARWA

In July 2020 the ARWA was established as a separately-branded function of DISER.[25] This administrative measure did not require legislation.[26]

However, the ARWM Framework foreshadowed that, consistent with international practice, as Australia’s nominated Radioactive Waste Management Organisation (RWMO) the ARWA would have a degree of separation from the portfolio department:

The [International Atomic Energy Agency] notes that to meet their obligations under the Joint Convention … many Member States have decided to create a Radioactive Waste Management Organisation (RWMO) or assign this function to an existing organisation … Australia’s RWMO, with input from other agencies including waste holders and producers, as well as the department and regulators, will develop a comprehensive radioactive waste management strategy …[27] [emphasis added]

Accordingly, the Government flagged the intention that ARWA would at a later stage become a non-corporate Commonwealth entity.[28]

When deciding on the appropriate means by which to deliver a service or execute a function, a significant source of information and guidance is the PGPA Act, the key legislation with regard to governance and administration of the public sector.[29]

Within the context of PGPA Act requirements, the Department of Finance (Finance) classifies Commonwealth entities into 13 categories.[30] Table 1, compiled by the Parliamentary Library from several Finance sources, outlines the 13 categories with selected examples, including the current and proposed categorisations of ARWA.[31]

Table 1: Department of Finance classification of Commonwealth entities into thirteen categories

1. PRIMARY (or Principal) bodies are part of the Commonwealth, or have a separate legal status	2. SECONDARY bodies are established within a Primary body	3. OTHER bodies are established by Commonwealth involvement through membership or investment
Secondary statutory structures are established by legislation
1.1 Non-corporate Commonwealth Entities (NCEs) NCEs are legally and financially part of the Commonwealth, and include: departments of state parliamentary departments Australian Bureau of Statistics listed entities prescribed by rules made under the PGPA Act, or another Act Examples of listed entities currently prescribed by Schedule 1 of the PGPA Rule include: Geoscience Australia (DISER portfolio) IP Australia (DISER portfolio) The Bill would establish ARWA as a listed entity.	2.1 Statutory advisory structures Majority of members are likely to be external to the Australian Government. Aged Care Quality and Safety Advisory Council	3.1 Ministerial Councils and related bodies Ministerial Councils provide a forum for Commonwealth, State and Territory Ministers to discuss national policy issues.
2.2 Statutory office holders, offices and committees Do not usually incur expenditure on their own account nor prepare separate accounts. Instead, where expenditure is incurred, it is accounted for through the accounts of a parent body. Gene Technology Regulator	3.2 National law bodies These bodies are established under consistent laws enacted in every State and Territory, usually the result of some form of intergovernmental agreement. They may be incorporated. Australian Health Practitioner Regulation Agency National Heavy Vehicle Regulator
Secondary non-statutory structures are established without legislation
1.2 Corporate Commonwealth Entities (CCEs) A CCE is a body corporate that has a separate legal personality from the Commonwealth, and can act in its own right exercising certain legal rights such as entering into contracts and owning property. Most CCEs are financially separate from the Commonwealth. CSIRO National Gallery of Australia Reserve Bank of Australia	2.3 Non-statutory advisory structures Majority of members are likely to be external to the Australian Government. Foreign Investment Review Board	3.3 Interjurisdictional and international bodies Bodies established by the Australian Government as a result of treaty obligations or negotiated agreements with individual or a number of governments (State, Territory or international). Australia-New Zealand Counter-Terrorism Committee Northern Territory Fisheries Joint Authority
1.3 Commonwealth companies A company established under the Corporations Act 2001 that the Commonwealth controls. A Commonwealth company is legally and financially separate from the Commonwealth. Some are Government Business Enterprises (GBEs). Aboriginal Hostels Ltd Bundanon Trust NBN Co Ltd (a GBE) RAAF Welfare Recreational Company	2.4 Non-statutory functions with separate branding Often responsible for the delivery of services to the public and/or to government. Centrelink Comcare Comcover Medicare ARWA (as established in July 2020)	3.4 Structures linked to the Australian Government through statutory contracts, agreements and delegations These bodies are owned and operated by the private sector, but have been recognised in legislation or a legislative instrument, or are party to a statutory contract/funding agreement to deliver services on the Government’s behalf. Australian Housing & Urban Research Institute (AHURI)
		3.5 Joint ventures, partnerships and interests in other companies Law Courts Ltd (jointly with NSW Govt)
		3.6 Subsidiaries of CCEs and Commonwealth companies Star Track Pty Ltd (subsidiary of AusPost)

1. PRIMARY (or Principal) bodies
are part of the Commonwealth,
or have a separate legal status

2. SECONDARY bodies
are established within a Primary body

3. OTHER bodies
are established by
Commonwealth involvement
through membership or investment

Secondary statutory structures
are established by legislation

1.1 Non-corporate Commonwealth Entities (NCEs)

NCEs are legally and financially part of the Commonwealth, and include:

departments of state
parliamentary departments
Australian Bureau of Statistics
listed entities prescribed by rules made under the PGPA Act, or another Act

Examples of listed entities currently prescribed by Schedule 1 of the PGPA Rule include:

Geoscience Australia (DISER portfolio)
IP Australia (DISER portfolio)

The Bill would establish ARWA as a listed entity.

2.1 Statutory advisory structures

Majority of members are likely to be external to the Australian Government.

Aged Care Quality and Safety Advisory Council

3.1 Ministerial Councils and related bodies

Ministerial Councils provide a forum for Commonwealth, State and Territory Ministers to discuss national policy issues.

2.2 Statutory office holders, offices and committees

Do not usually incur expenditure on their own account nor prepare separate accounts. Instead, where expenditure is incurred, it is accounted for through the accounts of a parent body.

Gene Technology Regulator

3.2 National law bodies

These bodies are established under consistent laws enacted in every State and Territory, usually the result of some form of intergovernmental agreement. They may be incorporated.

Australian Health Practitioner Regulation Agency
National Heavy Vehicle Regulator

Secondary non-statutory structures
are established without legislation

1.2 Corporate Commonwealth Entities (CCEs)

A CCE is a body corporate that has a separate legal personality from the Commonwealth, and can act in its own right exercising certain legal rights such as entering into contracts and owning property. Most CCEs are financially separate from the Commonwealth.

CSIRO
National Gallery of Australia
Reserve Bank of Australia

2.3 Non-statutory advisory structures

Majority of members are likely to be external to the Australian Government.

Foreign Investment Review Board

3.3 Interjurisdictional and international bodies

Bodies established by the Australian Government as a result of treaty obligations or negotiated agreements with individual or a number of governments (State, Territory or international).

Australia-New Zealand Counter-Terrorism Committee
Northern Territory Fisheries Joint Authority

1.3 Commonwealth companies

A company established under the Corporations Act 2001 that the Commonwealth controls. A Commonwealth company is legally and financially separate from the Commonwealth. Some are Government Business Enterprises (GBEs).

Aboriginal Hostels Ltd
Bundanon Trust
NBN Co Ltd (a GBE)
RAAF Welfare Recreational Company

2.4 Non-statutory functions with separate branding

Often responsible for the delivery of services to the public and/or to government.

Centrelink
Comcare
Comcover
Medicare
ARWA (as established in July 2020)

3.4 Structures linked to the Australian Government through statutory contracts, agreements and delegations

These bodies are owned and operated by the private sector, but have been recognised in legislation or a legislative instrument, or are party to a statutory contract/funding agreement to deliver services on the Government’s behalf.

Australian Housing & Urban Research Institute (AHURI)

3.5 Joint ventures, partnerships and interests in other companies

Law Courts Ltd (jointly with NSW Govt)

3.6 Subsidiaries of CCEs and Commonwealth companies

Star Track Pty Ltd (subsidiary of AusPost)

This table has been compiled by the Parliamentary Library using information from the following sources: Public Governance, Performance and Accountability Rule 2014; Finance, Australian Government Organisations Register - Types of Bodies, Finance website, July 2018; Finance, ‘Types of Australian Government Bodies’, Finance website, 2021; Finance, ‘PGPA glossary’, Finance website.

The establishment of ARWA as a statutory, Budget-funded, non-corporate Commonwealth entity and its designation as a listed entity for the purposes of the PGPA Act is consistent with the following principles outlined by Finance guidance in relation to the appropriateness and applicability of entity structures:

Non-commercial and/or core policy functions of the Australian Government are normally undertaken by a non-corporate Commonwealth entity or a secondary governance structure within a non-corporate Commonwealth entity.[32]

If the body is to perform primarily non-commercial and/or core policy functions of the Australian Government, this would normally mean a non-corporate Commonwealth entity or a secondary statutory or non-statutory structure within an existing non-corporate Commonwealth entity. This type of structure may also be appropriate for a body that will be fully or primarily budget funded.[33] [emphasis added]

Governance structures created through enabling legislation (eg a primary or a secondary statutory body) have clearly defined purposes authorised by Parliament.[34]

Entities are ‘listed’ to clearly define them as separate non-corporate Commonwealth entities and not part of another Commonwealth entity.[35]

Committee consideration

At the time of writing the Bill has not been referred to Committee.

Senate Standing Committee for the Scrutiny of Bills

In its Scrutiny Digest 2 of 2022, the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) raised concerns about Ministerial directions given under clauses 11 and 15 of the Bill not being subject to parliamentary disallowance.[36]

The Scrutiny of Bills Committee noted its expectation that such exemptions be fully justified in the Bill’s Explanatory Memorandum and did not consider that ‘the fact that an instrument will fall within one of the classes of exemption in the Legislation (Exemptions and Other Matters) Regulation 2015 to be, of itself, a sufficient justification for excluding parliamentary disallowance’.[37]

The Scrutiny of Bills Committee sought the Minister’s advice as to:

why it is considered necessary and appropriate to provide that directions given under clauses 11 and 15 are not subject to disallowance; and

whether the bill could be amended to provide that these directions are subject to disallowance to ensure that they are subject to appropriate parliamentary oversight.[38]

At the time of writing, the Minister had not formally responded to the Scrutiny of Bills Committee.

Policy position of non-government parties/independents

At the time of writing there does not appear to have been any comments on the Bill raised by non-government parties or independents.

Position of major interest groups

Stakeholders do not appear to have commented on the provisions of the Bill.

The Explanatory Memorandum states that ‘this Bill is supported by a consultation process, which included engagement with [six] State and Territory Regulators’, a range of Commonwealth departments and agencies, and the SA Government Department of Mining and Energy, Sutherland Shire Council, Kimba Consultative Committee, and Kimba Council.[39]

Financial implications

The Explanatory Memorandum states that:

The Bill has minimal financial impact. The government has allocated $106m over four years, from 2020–21, to establish the Agency and progress the program of work to build the facility.

In 2021 the government agreed to adjust the funding allocation to build the corporate capabilities needed to operate an NCE and consistent with the revised program schedule, resulting in a net zero impact on underlying cash.[40]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[41]

The Government states that the Bill engages the following rights:

the right to benefit from scientific progress and its applications – Article 15 of the International Covenant of Economic, Social and Cultural Rights (ICESCR) and
the right to health – Article 12 of ICESCR.[42]

The Government considers that the Bill is compatible with human rights because it promotes the protection of human rights (specifically the right to benefit from scientific progress and its applications and the right to health).[43]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights (PJCHR) had no comments on the Bill.[44]

The PJCHR has previously considered the issue of the location of the NRWMF at Napandee in its report on the NRWM Amendment Bill. In that report the PJCHR noted that the construction of the NRWMF at Napandee created a significant risk that the rights to culture and self-determination would not be fully protected.[45] These issues are discussed in further detail in the Bills Digest to the NRWM Amendment Bill.[46]

Key issues and provisions

Definitions

Provisions of the Bill have a close relationship with the NRWM Act.

Clause 4 outlines definitions, specifying that some terms (for example, ‘controlled material’, ‘facility’, ‘Joint Convention’, and ‘selected site’) have ‘the same meaning as in the NRWM Act’.

‘Radioactive waste’ has the same meaning as in the Joint Convention. However, clause 5 is framed so that ARWA will have responsibilities in relation to ‘radioactive material’, rather than the more narrowly-defined ‘radioactive waste’.

The Explanatory Memorandum notes that:

Radioactive material is defined broadly to include any such material to which the Agency’s functions may relate, including high level waste or spent fuel. It is not limited to radioactive waste as defined in the Joint Convention and used in some parts of the Act. The use of ‘radioactive material’ in the Agency’s functions allows the Agency to effectively fulfil its role as a specialist radioactive waste agency as it allows for the functions to apply to material that is not yet waste. For example, aside from existing radioactive waste, the Agency may provide technical advice on the management of radioactive material that may have waste implications for Australia at some point in time. The Agency may also conduct research into alternatives to disposal of radioactive material.[47] [emphasis added]

Consequently, clause 6 refers to activities related to the waste management of:

radioactive material for which no further use is foreseen (that is, it is already waste) and
radioactive material which, in the future, will have no further use and so will become waste.

Establishment of ARWA

Clause 8 establishes ARWA and specifies that ARWA is a listed entity for the purposes of the PGPA Act. In that context, the CEO is designated as the accountable authority, and the CEO, consultants, ARWA staff, and staff of other agencies performing services for ARWA are designated as officials for the purposes of the PGPA Act.

Functions of ARWA

The Explanatory Memorandum states that the ‘broader remit’ of the ARWA is to be ‘an agency dedicated to the safe management of all radioactive material that may have waste implications for Australia’.[48]

Subsection 23(2) of the NRWM Act provides authority for persons connected to designated Commonwealth entities to undertake activities that may be necessary for or incidental to the construction or operation of the NRWMF. Paragraph 10(1)(a) will have the effect of designating ARWA as a Commonwealth entity for the purposes of subsection 23(1) of the NRWM Act. ARWA will thereby be authorised to undertake the activities specified in subsection 23(2) to construct and operate the proposed NRWMF.[49]

Paragraphs 10(1)(b) to 10(1)(l) list functions of ARWA that are additional to the construction and operation of the proposed NRWMF, including:

safe and secure management of controlled material at the NRWMF (paragraph 10(1)(b))
providing advice to the portfolio department (paragraph 10(1)(c)), the Minister (paragraph 10(1)(d)), and Commonwealth and other entities that generate, possess and control radioactive material (paragraph 10(1)(e)). The Explanatory Memorandum notes that ‘this does not include regulatory advice or advice relating to licence conditions which is the responsibility of the relevant regulators’[50]
in relation to the waste management of radioactive material, or the transportation of waste material, engaging and consulting with members of the public (paragraph 10(1)(f)) and foreign entities (paragraph 10(1)(g))
undertaking or coordinating research and development activities in relation to the waste management of radioactive material, or the transportation of waste material, in Australia (paragraph 10(1)(h))[51]
developing and maintaining an inventory of radioactive material in Australia for the purposes of the waste management of that material (paragraph 10(1)(i)).

Regional consultative committee

Paragraph 10(1)(j) states that ARWA will provide ‘operational and secretariat support’ to the Regional Consultative Committee (RCC) established under section 22 of the NRWM Act.

A number of consultative committees and groups have contributed to the process of selecting a site for the NRWMF, but it appears none of these are the RCC established under section 22 of the NRWM Act.[52] In March 2020, DISER released a factsheet envisaging how the RCC will operate.[53]

The Committee Guidelines for the Kimba Consultative Committee state:

On 27 June 2017, the former Minister announced that Kimba, South Australia, has been shortlisted for Phase Two of the project. This entails further community consultation and technical assessment work. ... Therefore, the Department is establishing the Kimba Consultative Committee (‘the Committee’) to assist in this for Phase Two of the project. … If Kimba progresses to Phase Three (site selection, facility design and licensing), then a Regional Consultative Committee (RCC) would be established in accordance with the National Radioactive Waste Management Act, 2012 [sic]. In this instance, all Committee positions would be reviewed and a process to transition to the RCC would commence.[54]

At their meeting on 17 February 2022, the Kimba Consultative Committee and Kimba Economic Working Group commented on an update about ARWA’s development of ‘regulations that will detail the functions, governance, and membership of the RCC’.[55]

Establishment of a CEO of ARWA

The proposed provisions in relation to the CEO are similar to and consistent with provisions applicable to comparable statutory CEO positions.

Subclause 14(1) establishes that the functions of the CEO are to manage the affairs of ARWA, and to ensure ARWA performs its functions.

Subclause 16(1) provides that the CEO is to be appointed by the Minister by written instrument on a full-time basis. Subclause 16(2) provides that the CEO holds office for a period not exceeding 5 years, though may be re-appointed. In October 2021 the Government announced that Mr Sam Usher had been appointed as the first CEO of ARWA.[56] According to the Australian Government Directory, Mr Usher commenced in the role on 10 January 2022 for a period of four years.

Under clause 17 the Minister may, by written instrument, appoint an acting CEO. This is applicable in circumstances where the position is vacant, or the CEO is absent or is otherwise unable to perform the duties of the office.

Subclause 23(1) provides that the Minister may terminate the CEO’s appointment for misbehaviour, or physical or mental incapacity. Under subclause 23(2) the Minister may terminate the CEO’s appointment if specific circumstances arise relating to bankruptcy, absence from duty without approved leave, and potential conflicts of interest.

Under clause 28 the CEO may delegate the CEO’s functions or powers to an SES or acting SES employee who is an ARWA staff member. The delegate must comply with any written directions from the CEO.

Minister’s powers to give directions and make rules

Minister may give directions to ARWA and the CEO

Under subclause 11(1), the Minister may, by legislative instrument, give written directions to ARWA about the performance of its functions. Under subclause 15(1), the Minister may, by legislative instrument, give written directions to the CEO about the performance of the CEO’s functions. Under subclause 11(3) and subclause 15(2) respectively, ARWA and the CEO must comply with such directions.[57]

Such legislative instruments will not be subject to disallowance by the Parliament, as directions by a Minister to a person or body are exempt from this process.[58] The Scrutiny of Bills Committee has raised concerns regarding this exemption, as discussed above under ‘Committee consideration’.

Minister may make rules

As explained by the Explanatory Memorandum, clause 29 provides that:

the Minister [may] make rules prescribing matters required or permitted by this Act or necessary or convenient to be prescribed for carrying out or giving effect to matters in the Act. The rules are a legislative instrument, subject to disallowance and sunsetting.

Subclause 29(2) provides what the rules may not do, which includes: create an offence or civil penalty; provide powers of arrest or detention or entry, search or seizure; impose a tax; set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act; and directly amend the text of the Act.[59]

Staff of ARWA

The proposed provisions in relation to staff are similar to and consistent with provisions applicable to comparable entities.

Subclause 24(1) provides that staff of ARWA must be persons appointed or employed under the Public Service Act. As explained by the Explanatory Memorandum, clause 26 provides that:

officers and employees of other Public Service Agencies, officers or employees of a State or Territory or officers or employees of authorities of the Commonwealth or of a State or Territory may assist the Agency in the performance of any of its functions. Persons assisting the Agency are subject to the directions of the CEO when providing those services.[60]

Clause 25 provides that, under the terms and conditions specified by the CEO in writing, the CEO may engage consultants to provide services in connection with the functions of ARWA. Subparagraph 8(2)(c)(iii) provides that consultants engaged under clause 25 are officials of ARWA for the purposes of the PGPA Act. The Explanatory Memorandum states this is ‘to ensure that, given the sensitivity and safety considerations required to carry out the Agency’s functions, consultants will be subject to the same duties imposed on Commonwealth officials’.[61]

[1]. Department of Industry, Innovation and Science (DIIS), Australian Radioactive Waste Management Framework, (Canberra: DIIS, April 2018), p. 3.

[2]. DIIS, Australian Radioactive Waste Management Framework.

[3]. Administrative Arrangement Orders, 18 March 2021.

[4]. Joint Convention on the Safety of Spent Fuel Management and on the Safety of Nuclear Waste Management, done at Vienna 5 September 1997, ATS [2003] 21 (entered into force generally on 18 June 2001 and for Australia on 3 November 2003).

[5]. Joint Convention on the Safety of Spent Fuel Management and on the Safety of Nuclear Waste Management, Article 1.

[6]. DIIS, Australian Radioactive Waste Management Framework, p. 9–11.

[7]. Australian Nuclear Science and Technology Organisation (ANSTO), ‘OPAL multi-purpose reactor’, ANSTO website, n.d.

[8]. DIIS, Australian Radioactive Waste Management Framework, p. 4.

[9]. DIIS, Australian Radioactive Waste Management Framework, p. 4.

[10]. DIIS, Australian Radioactive Waste Management Framework, p. 4. Percentages are Parliamentary Library calculations based on the source data.

[11]. DIIS, Australian Radioactive Waste Management Framework, p. 4. Percentages are Parliamentary Library calculations based on the source data.

[12]. ANSTO, ‘Managing waste’, ANSTO website, n.d.

[13]. R Panter, Radioactive waste disposal in Australia, Issues paper, 6, (Canberra: Department of the Parliamentary Library, 28 April 1992), pp. 2–7. For additional background information, see: M James, A Rann and I Holland, Radioactive Waste and Spent Nuclear Fuel Management in Australia, Background note, (Canberra: Parliamentary Library, 21 July 2011).

[14]. ANSTO, ‘Managing waste’.

[15]. For example, Very Short Lived Waste and Very Low-Level Waste will not be transferred to the NRWMF; see Department of Industry, Innovation and Science (DIIS), Australian Radioactive Waste Management Framework, DIIS, Canberra, April 2018, p. 10.

[16]. ANSTO, ‘Managing waste’.

[17]. K Pitt, ‘Second reading speech: National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020’, House of Representatives, Debates, 13 February 2020, p. 1146.

[18]. DISER, Supplementary submission to the Senate Economics Legislation Committee, Inquiry into National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 [Provisions], [Submission no. 96.1], n.d., p. 7.

[19]. Australian Parliament, National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 homepage.

[20]. Replacement Supplementary Explanatory Memorandum, National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020, p. 4.

[21]. K Pitt (Minister for Resources and Water), Statement of Reasons to declare that the land described in Attachment A is selected as the site for the National Radioactive Waste Management Facility under Section 14(2) of the National Radioactive Waste Management Act 2012 (Cth), 26 November 2021, p. 5.

[22]. Declaration of a Site for a Facility for the Management of Controlled Material; K Pitt (Minister for Resources and Water) and R Ramsey, ‘National Radioactive Waste Management Facility to be delivered near Kimba in South Australia’, joint media release, 29 November 2021.

[23]. D Gooch, Barngarla traditional owners prepare to challenge plan for Napandee nuclear waste facility, ABC News, 7 December 2021.

[24]. Federal Court of Australia, ‘Court file: Barngarla Determination Aboriginal Corporation RNTBC & ORS v Minister for Resources and Water’, opened 20 December 2021.

[25]. K Pitt (Minister for Resources, Water and Northern Australia), R Ramsey and D van Holst Pellekaan, ‘New agency to safely and securely manage Australia's radioactive waste’, joint media release, 21 July 2021. The press release on the Minister’s website has a release date of 21 July 2020.

[26]. As a separately-branded function, ARWA’s current status is similar to that of the Australian Space Agency (ASA), a function established within DISER in July 2018. Long-standing examples of a separately-branded function within a department include the Therapeutic Goods Administration (within the Department of Health) and the Australian Antarctic Division (within the Department of Agriculture, Water and the Environment).

[27]. DIIS, Australian Radioactive Waste Management Framework, p. 8.

[28]. K Pitt (Minister for Resources, Water and Northern Australia), ‘New agency to safely and securely manage Australia's radioactive waste’, media release, 21 July 2021.

[29]. Department of Finance (Finance) webpages accessible from Structure of the Australian Government Public Sector provide information about the types of entities, and guidance in relation to proposals to create new entities.

[30]. The Australian Government Organisations Register (AGOR), a database of entities operated by Finance, acknowledges some challenges with the categories: ‘Australian Government bodies are diverse, which means classification is not always straightforward. The following table provides guidance on the main types of Australian Government bodies. Bodies may possess some but not all of the features listed. Where a government body could be classified under more than one body type, the most relevant classification has been chosen.’ Notwithstanding this caveat, the classification system is a useful guide to the options available when establishing a new agency. Note that AGOR uses twelve categories, whereas recent Finance webpages use thirteen categories.

[31]. Information about specific entities is available from the AGOR, and the PGPA Act Flipchart and List (Primary/Principal bodies only).

[32]. Finance, ‘Commonwealth Governance Structures Policy (Governance policy)’, Finance website, updated 5 November 2019.

[33]. Finance, Governance assessment template – creating a new body, p. 5.

[34]. Finance, ‘Governance policy’.

[35]. Finance, ‘Types of Australian Government Bodies’.

[36]. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 2, 2022, 18 March 2022, pp. 25–27.

[37]. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, pp. 25–26.

[38]. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, pp. 26–27.

[39]. Explanatory Memorandum, Australian Radioactive Waste Agency Bill 2022, pp. 1–2.

[40]. Explanatory Memorandum, Australian Radioactive Waste Agency Bill 2022, p. 1.

[41]. The Statement of Compatibility with Human Rights can be found at pages 3–4 of the Explanatory Memorandum to the Bill.

[42]. International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, ATS [1976] 5 (entered into force for Australia on 10 March 1976).

[43]. Explanatory Memorandum, Australian Radioactive Waste Agency Bill 2022, p. 4.

[44]. Parliamentary Joint Committee on Human Rights, Human Rights Scrutiny Report, 2, 2022, 25 March 2022: 65.

[45]. Parliamentary Joint Committee on Human Rights, Human Rights Scrutiny Report, 4, 2020, 9 April 2020, p. 111.

[46]. J Haughton and H Laidlaw, ‘National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020’, Bills Digest, 10, 2020–21, (Canberra: Parliamentary Library, 2020).

[47]. Explanatory Memorandum, Australian Radioactive Waste Agency Bill 2022, p. 6.

[48]. Explanatory Memorandum, Australian Radioactive Waste Agency Bill 2022, p. 3.

[49]. Explanatory Memorandum, Australian Radioactive Waste Agency Bill 2022, p. 7.

[50]. Explanatory Memorandum, Australian Radioactive Waste Agency Bill 2022, p. 8.

[51]. The Explanatory Memorandum elaborates on this function stating that this will ‘include policy development, providing technical advice to government and other entities, public education and research.’ Explanatory Memorandum, Australian Radioactive Waste Agency Bill 2022, p. 8.

[52]. DISER, ‘National Radioactive Waste Management Facility Consultative Committees’, DISER website, January 2022.

[53]. DISER, Regional Consultative Committee, factsheet, DISER website, March 2020.

[54]. DIIS, National Radioactive Waste Management Facility Project: Kimba Consultative Committee Guidelines, Canberra, DIIS, September 2017, p. 1.

[55]. ARWA, Minutes: Kimba Consultative Committee and Kimba Economic Working Group Meeting 17 February 2022, DISER, pp. 6-8.

[56]. K Pitt (Minister for Resources, Water and Northern Australia), ‘CEO appointed to lead the Australian radioactive waste agency’, media release, 26 October 2021.

[57]. However, subclause 15(2) does not apply to the extent that the direction relates to the CEO’s performance of functions or exercise of powers under the Public Service Act and the PGPA Act in relation to ARWA.

[58]. Legislation Act 2003, paragraph 44(2)(b) and Legislation (Exemptions and Other Matters) Regulation 2015, section 9, table item 2.

[59]. Explanatory Memorandum, Australian Radioactive Waste Agency Bill 2022, p. 13.

[60]. Explanatory Memorandum, Australian Radioactive Waste Agency Bill 2022, p. 12.

[61]. Explanatory Memorandum, Australian Radioactive Waste Agency Bill 2022, p. 6.

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