The Bills Digest at a glance

Purpose of the Bill

• The National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 (the Bill) amends the National Radioactive Waste Management Act 2012 and therefore the existing regulatory framework relating to the National Radioactive Waste Management Facility. In particular, the amendments will:
  • specify the site selected for the facility and enable the acquisition of additional land if required
  • enable a $20 million Community Fund to be established (this fund will provide support for the community in which the facility is located) and
  • provide clear links between operation of the Act and the relevant constitutional heads of power.

Background

• The need for a national radioactive waste management facility in Australia has been recognised for decades. The current process follows a number of unsuccessful efforts to identify a suitable site that is supported by the community.
• The proposed facility will be the permanent disposal site for low level waste. It will also be used to ‘temporarily’ store intermediate level waste until a permanent disposal facility, such as a deep geological facility, can be established—this process is expected to take several decades. It is anticipated that the facility will dispose of about 9,818 cubic metres of low level waste and store 3,734 cubic metres of intermediate level waste, based on expected waste generation to 2070.
• The Minister has previously stated that a facility will only proceed with broad community support. This has been held to be demonstrated by a Kimba local government ballot showing 61.6 per cent of electors who voted supported the facility. However, the Barngarla Determination Aboriginal Corporation, representing traditional owners and holders of native title near the site, have remained opposed to the facility and have protested their exclusion from the ballot. Eligibility criteria for the local government electoral roll under the Local Government (Elections) Act 1999 (SA) meant that native title holders, and other non-rateable or non-resident property holders, were excluded from the ballot.

Stakeholder concerns

• A range of traditional owner, community and environmental groups have raised concerns with the Bill. Many concerns relate to the site selection process, consultation and the ballot used to gauge community support. Groups objected to the change in the selection approach taken by the Bill, which they saw as effectively removing their ability to have the administrative process subject to judicial review. Concern was also raised that intermediate-level waste would only be temporarily stored at the site and that the views of the broader community in the region and along transport routes were not considered.

Purpose of the Bill

The purpose of the Bill is to amend the National Radioactive Waste Management Act 2012 (NRWM Act) to:

• specify the site on which the National Radioactive Waste Management Facility (NRWMF) will be established
• repeal the existing provisions relating to site nomination and selection
• enable the establishment of a NRWMF Community Fund to replace the National Repository Capital Contribution Fund and
• clarify the links between the operation of the NRWM Act and the relevant constitutional heads of power.

These changes aim to give effect to the commitment of successive Australian Governments to establish a NRWMF for the permanent disposal of low-level radioactive waste and the temporary storage of intermediate-level radioactive waste.[1]

Structure of the Bill

The Bill has three Schedules containing amendments to the NRWM Act:

• Schedule 1—site specification—inserts provisions to specify the site on which the facility will be established and operated. This Schedule also repeals the existing provisions on site nomination and selection
• Schedule 2—establishment of the community fund—enables the establishment of a NRWMF Community Fund to support the long-term social and economic sustainability of the host community. This Schedule also repeals the existing provisions on the National Repository Capital Contribution Fund which was to support delivery of enhanced public services and infrastructure in the host state or territory
• Schedule 3—other amendments—provides a new definition of ‘controlled material’ to ensure that amended provisions can be read down so they are supported by relevant constitutional heads of power.

Background

Radioactive waste in Australia

Radioactive waste is generated from a variety of sources in Australia, particularly from the use of radioactive materials in medical applications, scientific research and in industry. This includes operation of the Open Pool Australian Lightwater (OPAL) research reactor by the Australian Nuclear Science and Technology Organisation (ANSTO) at Lucas Heights in Sydney.[2]

Radioactive waste is material that has no foreseeable use but still contains levels of radioactivity that require ongoing management to ensure its safety. The management and disposal of radioactive waste depends on its level of radioactivity—Australia’s classification scheme for such waste is based on the scheme issued by the International Atomic Energy Agency (IAEA).[3] This classification is based on the radioactivity level of the waste and how long it will take for the radioactivity to decay (its half-life). In brief, the types of waste and disposal methods are:

• exempt waste—contains very low levels of radioactivity and safety measures are not required (disposed as ordinary waste)
• very short lived waste—which requires short term storage to enable sufficient radioactive decay before ordinary waste disposal
• very low level waste—contains low levels of short lived radioactivity and can be disposed in landfill-type facilities with limited regulatory control
• low level waste (LLW)—contains higher levels of short lived, and low levels of long lived, radioactivity (disposed of in a near-surface facility)
• intermediate level waste (ILW)—contains higher levels of long lived radioactivity (disposed of at greater depths of up to a few hundred metres) and
• high level waste (HLW)—contains radioactivity levels high enough to generate significant heat during the radioactive decay process (disposal in deep geological formations at several hundred metres depth is the safest disposal pathway).[4]

The Department of Industry, Science, Energy and Resources anticipates the facility will dispose of about 9,818 cubic metres of LLW and store 3,734 cubic metres of ILW (based on expected waste to 2070).[5] These estimates include about 4,975 cubic metres of LLW and 1,771 cubic metres of ILW existing (legacy) waste.[6]

Radioactive waste is currently stored at more than 100 sites across Australia, including at ANSTO (which stores about 45% of all LLW), hospitals, industrial sites and mines.[7] Not all of this is LLW or ILW, so waste from all of these sites will not be sent to the NRWMF.[8] The Department 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.[9]

Many sites being used for waste storage are not purpose-built to store such waste and this is neither desirable nor sustainable.[10] The Australian Government has therefore been working to establish a national facility to permanently dispose of low-level radioactive waste and temporarily store intermediate-level waste.

As ILW requires disposal in a much deeper and different type of facility, any storage of such waste at the NRWMF will be ‘temporary’, rather than disposal.[11] Some ILW is currently stored by ANSTO at Lucas Heights in an interim store.[12] In 2017, the Australian Government stated that a separate process to identify a site and establish a facility for a permanent ILW disposal facility would be developed in ‘coming years’.[13] The NRWMF will have appropriate functionality for legacy and future LLW disposal for the next 100 years.[14] The Department indicates that the facility will be designed and licenced for the temporary storage of ILW for a ‘number of decades’, with a design life of about 50 years.[15] It expects the disposal facility for ILW, like a deep geological repository, will take several decades to site and develop.[16]

Australia’s regulatory and radioactive waste management frameworks

The 2018 Australian Radioactive Waste Management Framework (the Framework) sets out principles and long term goals for radioactive waste management and articulates the responsibilities and arrangements for managing radioactive waste in Australia.[17] Overall responsibility for radioactive waste management matters lies with the Department of Industry, Science, Energy and Resources, including maintaining the Framework and administering the NRWM Act.[18]

Legislation exists to cover various requirements for radioactive waste management, including health, environmental and economic issues at both the national and state and territory level. This legislation also implements various international treaties to which Australia is a party. The Framework provides an outline of how the NRWM Act fits within this broader management framework.[19]

Of most relevance to the Bill, Australia is a party to the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (the Joint Convention).[20] The Joint Convention requires Australia maintain a legislative and regulatory framework to govern and safety of spent fuel and radioactive waste management, as well as to protect people and the environment from radiological hazards associated with these materials.[21]

The obligations extend to the appropriate siting, design and construction of radioactive waste storage and disposal facilities, and the safety of such a facility during and after its operation. The Joint Convention also requires Contracting Parties report on their radioactive waste management policies and practices, and provide an inventory of radioactive waste.[22] The Contracting Parties must also meet to review these reports.[23]

Identifying a site

The need for a designated radioactive waste facility has been recognised for many years, however earlier attempts to establish a facility have been unsuccessful:

Past attempts to site a national waste repository, including near Woomera in South Australia and Muckaty in the Northern Territory, were unsuccessful, due to community concern, and resistance from state governments and affected local and Indigenous communities.[24]

For earlier history on this issue, please refer to the more detailed chronology of radioactive waste and spent nuclear fuel management in Australia that was previously published by the Library and updated to 2011.[25] An earlier report also explores the issue up to 1992.[26]

The current process for selecting and establishing a national radioactive waste facility is set out in the NRWM Act, under which any new site must be nominated voluntarily.[27] The National Radioactive Waste Management Facility Taskforce was responsible for progressing the waste facility and:

· ... facilitated the site selection process including site characterisation and heritage studies

· received submissions from the community on issues related to site selection

· liaised directly with communities surrounding the nominated sites.

The taskforce sat within the department’s Northern Australia and Major Projects Division [of the Department of Industry, Science, Energy and Resources].[28]

The site selection process is complex and involves technical, environmental, social, and indigenous cultural and heritage considerations.[29] Following a call for nominations of potential sites in March 2015, a total of 28 applications were received and six sites were shortlisted: three from South Australia—Pinkawillinie and Cortlinye (both near Kimba), and Barndioota (Wallerberdina Station)[30] near Hawker—as well as Sally’s Flat (New South Wales), Hale (Northern Territory) and Oman Ama (Queensland).[31]

A revised process enabling landholders to nominate their land was approved by the Minister in November 2016.[32] In late 2016, the ‘Working for Kimba’s Future’ group approached the Government with potential new sites (Lyndhurst, Napandee and Tola Park)—with Lyndhurst and Napandee being formally nominated and then selected to proceed to an initial consultation stage.[33]

From these processes, three sites in South Australia—Wallerberdina Station, Napandee and Lyndhurst—were selected for in-depth consultation and technical assessment studies.[34] Site characterisation studies were undertaken, focussing on flora and fauna, proximity to conservation sites, background radiation and risks, climate change and long-term environmental scenarios, bushfire risk, impacts on nearby human activities and land use planning, hydrology and flood risks, subsurface geology, hydrogeology, geochemistry factors, landform stability, seismic activity, transport considerations, capacity to deal with facility waste and emissions, and utilities, energy and other infrastructure issues.[35]

Nominations were also received from Leonora in Western Australia and Rose Hill Station, Brewarrina (New South Wales) in August 2017 and September 2018, respectively.[36] Neither of these nominations progressed as the existing process was underway and not finalised.[37]

The Department undertook a variety of consultation activities during the site selection process. However, some stakeholders have raised concerns on how community support has been determined (see further discussion under the ‘Key issues and provisions’ section).

Napandee is identified

On 1 February 2020, the Minister announced that the Napandee site had been identified to host the Facility.[38] As discussed further in the ‘Key issues and provisions’ section, this Bill proposes that the Napandee site be specified in legislation, rather than declared under section 14 of the NRWM Act.

The Minister’s assessment of the preferred site on the basis of four selection criteria, including a relative assessment compared with the other two sites on the shortlist (Wallerberdina and Lyndhurst), included:

1. extent to which it is reasonably likely that radioactive waste can be safely and securely managed by a facility at the site—the Minister considered this could be achieved at all sites with appropriate mitigations. However, the Napandee site ‘requires less mitigation’ and ‘no additional land acquisition to manage natural hazards’ compared with Lyndhurst, and has lower complexity and costs relating to geology, seismology and hydrology compared with Wallerberdina
2. costs associated with site acquisition and realising the facility at the site—the Minister considered that Napandee has an overall cost advantage based on savings associated with the lower hydrological risk offsetting higher costs for road works (compared with Lyndhurst) and power (compared with Wallerberdina)
3. other relevant matters, noted as being water supply and native title status—water supply to Napandee and Lyndhurst will require engagement with the South Australian Government. Native title has been extinguished at all sites and
4. extent to which there is broad community support—the Minister noted there was higher support for the two Kimba sites, and higher support from direct neighbours of Napandee than Lyndhurst. The assessment notes the Barngarla Determination Aboriginal Corporation (BDAC) opposition to the facility and that ‘the project should only proceed in a way that recognises and respects the views of those who oppose the facility, including BDAC and those with agricultural interests’.[39]

The process to deliver the Facility will be led by a new agency, the Australian Radioactive Waste Agency, announced on 21 July 2020.[40]

Recent inquiries

Senate Economics References Committee inquiry into the site selection process

On 6 February 2018, the site selection process for a facility in South Australia was referred to the Senate Economics References Committee for inquiry.[41] The inquiry focussed on the appropriateness and thoroughness of the site selection process at Kimba and Hawker, with particular reference to:

1. the financial compensation offered to applicants for the acquisition of land under the Nominations of Land Guidelines;
2. how the need for ‘broad community support’ has played and will continue to play a part in the process, including:
   1. the definition of ‘broad community support’, and
   2. how ‘broad community support’ has been or will be determined for each process advancement stage;
3. how any need for Indigenous support has played and will continue to play a part in the process, including how Indigenous support has been or will be determined for each process advancement stage;
4. whether and/or how the Government’s ‘community benefit program’ payments affect broad community and Indigenous community sentiment;
5. whether wider (Eyre Peninsular or state-wide) community views should be taken into consideration and, if so, how this is occurring or should be occurring; and
6. any other related matters.[42]

The Committee reported on 14 August 2018 and the Government response was tabled in November 2018.[43]

The Committee’s recommendations were:

• Recommendation 1: If a National Radioactive Waste Management Facility were to be sited in an agricultural region, the committee recommends that the Department of Industry, Innovation and Science work with local stakeholders, so that part of the remaining 60 hectare buffer zone can be used to grow and test agricultural produce, in order to reassure the community and agricultural markets that the produce from the surrounding region does not contain excessive amounts of radiation and is safe for consumption.
• Recommendation 2: The committee recommends that the Minister intensify and expedite efforts to fully engage with the Indigenous stakeholders near Kimba and Hawker so that comprehensive heritage assessments for all nominated sites can be completed.
• Recommendation 3: The committee recommends that the government undertake an independent valuation of the land to be acquired to ensure that the financial compensation is consistent with the original proposal to compensate the landholder at four times the land value.
• Recommendation 4: The committee recommends that the Department of Industry, Innovation and Science make submissions received during the consultation process publicly available in the circumstances where the authors originally intended for their submission to be made public.
• Recommendation 5: The committee recommends that the Office of the Chief Economist within the Department of Industry, Innovation and Science undertake a policy evaluation of the first two phases of the site selection process for a National Radioactive Waste Management Facility.[44]

The Government agreed in principle with the first two recommendations and agreed with the subsequent three.[45]

Coalition Senators made additional comments, including on community sentiment levels, Indigenous support and financial incentives.[46] They stated that there is no benchmark for the level of community support that should be applied across all communities.[47]

The Australian Greens attached a dissenting report saying that the government had no mandate to site the facility in South Australia owing to its mismanagement of the process and failure to secure consent from traditional owners.[48]

Senator Rex Patrick made additional recommendations stating: the Minister must quantify what was meant by ‘broad community support’; that this should constitute, as a minimum, 65 per cent in favour and the agreement of neighbouring landowners and Aboriginal communities; and that the Australian Nuclear Science and Technology Organisation Act 1987 should be changed to allow intermediate-level waste to be stored in situ at Lucas Heights until an appropriate facility was built for it.[49]

South Australian Royal Commission into the nuclear fuel cycle

As part of an inquiry into South Australia’s participation in the nuclear fuel cycle, the 2016 South Australian Nuclear Fuel Cycle Royal Commission examined the management, storage and disposal of nuclear and radioactive waste.[50] The Commission studied both domestic waste and potential opportunities from international waste, finding that each scenario would require different approaches, including to negotiating social and community consent.[51] In its response, the South Australian Government supported continued investigation and discussion on a proposed nuclear waste facility.[52]

House of Representatives inquiry into the prerequisites for nuclear energy

During 2019, the House of Representatives Standing Committee on the Environment and Energy inquired into the prerequisites for nuclear energy in Australia, including some consideration of radioactive waste.[53] The Committee reported in December 2019.[54] The Government response has not been tabled at this time.[55]

Committee consideration

Senate Standing Committee for Selection of Bills

The Selection of Bills Committee considered the Bill at its meeting of 26 February 2020 and recommended the provisions of the Bill be referred immediately to the Economics Legislation Committee.[56]

The reasons for the referral include consideration of:

• the process of site selection
• consultation with traditional owners and the wider community and
• the rationale and design of the amendments.[57]

The Senate referred the Bill to the Economics Legislative Committee for inquiry and report by 12 June 2020, as detailed on the inquiry webpage. In accordance with a motion agreed by the Senate on 23 March 2020 (in response to the COVID-19 pandemic), the reporting date was extended to 14 September 2020.[58]

The Committee received 104 unique submissions and more than 3,650 submissions from two form letter campaigns. Stakeholder views are discussed in the ‘Position of major interest groups’ section of this Digest.

Senate Standing Committee for the Scrutiny of Bills

The Scrutiny of Bills Committee considered the Bill and raised a number of issues.[59] The first issue related to the use of delegated legislation for the acquisition of additional land to expand the site (through Regulations) or to ensure road access (with a notifiable instrument). The Scrutiny Committee’s view was that the acquisition of land by the Commonwealth should be included in primary legislation unless a sound justification is provided.[60] The Committee also noted that a notifiable instrument, unlike a legislative instrument, is not subject to scrutiny, amendment or disallowance by Parliament, but no justification was provided for limiting parliamentary scrutiny in this way.[61]

The second issue relates to proposed section 19C of the NRWM Act. This provision specifies the consultation requirements if additional land is to be acquired. Proposed subsection 19C(4) states that these consultation requirements are an ‘exhaustive statement of the requirements of the natural justice hearing rule’. The Committee noted that there was no justification or explanation given in the Explanatory Memorandum for this limitation of the common law right to natural justice.[62]

Proposed sections 34GA and 34GB exempt certain activities (specified in proposed section 34G) related to the remediation of the proposed sites from relevant state or territory laws (as defined by subsection 34GA(1)), and from the requirements of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the ATSIHP Act) and the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act).[63] Proposed subsection 34GB(2) also gives the government the power to prescribe, by Regulation, additional Commonwealth laws which will have no effect in relation to transitional activities. While noting that the proposed sections are designed to be transitional, the Committee expressed concern at this power to prescribe unspecified laws through a delegated legislative instrument (Regulation) rather than including any proposed legal prescriptions specifically in the primary legislation.[64]

Schedule 2 of the Bill abolishes the existing National Repository Capital Contribution Fund (a special account) and replaces it with a National Radioactive Waste Management Repository Community Fund. The Committee noted that Schedule 2 to the Bill leaves the majority of the detail regarding both the establishment of the NRWMF Community Fund entity, including any governance arrangements, as well as any additional terms and conditions on which any payment is to be made, to delegated legislation. The Committee suggested that the Bill be amended to either provide more guidance on the establishment and management of the fund, or as a minimum, to prescribe that Regulations must, rather than may, be used to establish its terms and conditions.

Minister’s response

In response to the Committee, the Minister stated:

• any future land acquisition for expansion of the site could only take place within the confines of the area identified in proposed section 19C
• in relation to additional land for all-weather access, not allowing for potential access roads in future might prevent the entire facility from obtaining an operational licence, and that requiring a notifiable instrument was an improvement in oversight over arrangements in the current Act, which only requires a declaration published in the Gazette
• that a limited scope of procedural fairness under proposed section 19C was appropriate given the minor and ancillary nature of any future land acquisition, and the importance of the Commonwealth being able to provide certainty to affected stakeholders
• the transitional provisions providing for Regulations to exclude the operation of state and territory laws were necessary to ensure that the Commonwealth could remediate land disrupted during the site assessment process, at Napandee or elsewhere, without being stymied by regulatory requirements that did not apply when the land was initially disrupted. The Minister also noted that ‘appropriate consultation’ would take place, and that Regulations were still subject to disallowance by Parliament and
• as details of the Community Fund’s composition, structure and operation would be negotiated with the host community, local government, and other relevant stakeholders, it would be inappropriate to prescribe further conditions on its operation in legislation in advance of those negotiations.[65]

The Committee noted and responded to the Minister’s comments in Digest 6 of 2020.[66] The Committee left to the Senate as a whole, and to the Senate Standing Committee for the Scrutiny of Delegated Legislation, further consideration of the appropriateness of delegated legislation for site expansion, the legislative limitation of natural justice requirements, the prescription of other relevant laws and the establishment of the community fund.

Policy position of non-government parties/independents

ALP

In February 2020, it was reported that while the Industry Shadow Minister, Mr Brendan O’Connor, told Australian Labor Party (Labor) MPs that there is a need for Australia to establish a national radioactive waste management facility, Labor’s shadow cabinet, caucus and the First Nations caucus committee would consider Labor’s position after the Bill had been considered by the Senate Economics Committee.[67]

During his second reading speech in June 2020, Mr O’Connor stated that there were ‘many questions still to be answered’ and reiterated that Labor would not support the Bill until these had been answered by the Senate inquiry.[68] These questions, as noted by Mr O’Connor and in the Committee referral, are focussed on the concerns and involvement of interested parties, including traditional owners, costs, the associated funding arrangements and employment levels, potential impacts on affected communities, the adequacy of the Community Investment Fund and related compensation, and the rationale and legislative design.[69]

The Greens

The Australian Greens (Greens) also asked for the provisions of the Bill to be referred for committee inquiry in the Senate.[70] Leader of the Greens, Mr Adam Bandt, believes the site selection process has been ‘grossly mismanaged’ and that the Parliament should stand with the traditional owners who do not support the imposition of the facility on their land.[71] Mr Bandt also expressed other concerns, including on compliance with international best practice, double handling of ILW and a desire to ensure high storage standards at Lucas Heights and Woomera where most waste is currently sited. He expressed a desire for an inclusive and robust examination of the full range of long-term management options.[72]

The Australian Greens oppose nuclear reactors and related activities such as uranium mining, and want to phase out the generation of new radioactive waste. They believe future generations ‘must not be burdened with toxic nuclear waste for which there is no safe disposal’.[73] They want ‘safe, long-term containment’ of existing nuclear waste and for the OPAL reactor to close and be replaced with non-nuclear technologies to produce radioisotopes for medical and scientific purposes.[74]

Centre Alliance/Senator Patrick

Centre Alliance recognises that Australia needs a site to manage its radioactive waste.[75] Senator Rex Patrick has questioned the site selection process and has stated:

It is a shame that the Minister wasn't upfront with everyone about the criteria that needed to be met. It's not proper in any circumstance to have the vote and then declare the success threshold after the vote has been counted.[76]

In May 2019, Senator Patrick stated that the Government should reopen consideration of hosting the waste facility within the Woomera Prohibited Area.[77] Senator Patrick proposed amendments on behalf of Centre Alliance to establish the facility within the Woomera Prohibited Area in June 2020.[78] Given his announcement on 10 August 2020 that he was becoming an independent,[79] these proposed amendments were revised to be in Senator Patrick’s name on 13 August 2020.[80]

Zali Steggall

Independent Member for Warringah Ms Zali Steggall opposed passage of the Bill in her speech after the Bill’s second reading.[81] While noting the medical (as part of the life-cycle of nuclear medicine) and economic benefits of the facility, Ms Steggall drew attention to the Barngarla people’s opposition to the facility, and asked whether proceeding in the face of this opposition was consistent with article 29 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (supported by Australia in 2009[82]) which states:

States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.[83]

Position of major interest groups

Some of the main concerns raised by different stakeholder groups are briefly summarised below. Further information is provided where relevant in the ‘Key issues and provisions’ section.

The Senate inquiry into the provisions of the Bill has received around 100 unique submissions. More than 3,650 submissions from individuals through two form letter campaigns were also received that argued against the Bill.[84]

Indigenous and community groups

The Barngarla Determination Aboriginal Corporation (BDAC) made a submission arguing that the site selection process had miscarried and been gerrymandered by the exclusion of native title holders, and also members of the local farming community, from the community ballot seeking to gauge community support and from a parallel ‘community sentiment survey’.[85] The BDAC also argues that Schedule 1 of the Bill, by which Parliament directly designates the site for the NRWMF, represents an attempt to circumvent any judicial review of the site selection. This is because the Bill changes what would have been an administrative process of the Minister issuing a declaration under the existing Act, which would be judicially reviewable, into a legislative process which (with the exception of constitutional challenges) is not subject to judicial review.[86] The BDAC quote correspondence from Minister Pitt saying that no declaration of the Napandee site has been made under section 14 of the existing Act, and therefore there is no administrative decision to which the Administrative Decisions (Judicial Review) Act 1977 would apply.[87]

In a subsequent Senate Committee hearing, the directors of the BDAC reiterated their preference for the Act’s original process, which would have allowed a judicial review and therefore independent scrutiny of the process. It was suggested that, if a declaration had been made under the Act in March, judicial review proceedings might already have been close to conclusion by now. The BDAC recognised that the government has searched for an appropriate site for a facility for many years, but also noted that they and other Aboriginal people have waited for many more years to have their native title and other rights recognised. They also disputed the Department’s account of attempts to contact and consult with them and stated that they did not consider the community benefits package would change their position. The BDAC also drew attention to the potential for unregistered cultural or archaeological heritage to be at the site (unregistered due to the expense of engaging with South Australia’s cultural heritage laws) and to the historical and cultural importance of the country around Kimba to their members.[88]

The BDAC’s objections were also noted and supported by other submissions from Indigenous-related and community groups including the Ngoppon Together Reconciliation Group, the Josephite SA Reconciliation Circle, the Uniting Church Synod of South Australia, Caring for SA, Friends of the Earth, and the Maritime Union of Australia (MUA).[89] Friends of the Earth and the MUA also objected to the long-distance transportation and ‘double-handling’ of intermediate-level waste, as the NRWMF is only intended to be a temporary storage location for intermediate-level waste and thus it will need to be re-transported at some future date.[90]

Other traditional owners groups made related submissions. A submission by Karina Lester on behalf of the Yankunytjatjara Native Title Aboriginal Corporation, the De Rose Hill – Ilpalka Aboriginal Corporation, the Tjayiwara Unmuru Aboriginal Corporation, and the First Nations of South Australia Aboriginal Corporation stated that the land has significance for Aboriginal groups across South Australia and objected to the absence of wider Aboriginal community consultation. The submission also expressed concern about proposed section 34GB’s suspension of the EPBC Act and ATSIHP Act at assessed sites, and called for negotiation and appropriate compensation for traditional owner groups.[91]

Maurice Blackburn Lawyers made a submission based upon their previous experience acting for Aboriginal traditional owners and stakeholders at the previously proposed sites at Muckaty Station in the Northern Territory, and the Adnyamathanha Traditional Lands Association as the traditional owners of the Wallerberdina/Barndioota site. Maurice Blackburn Lawyers made a number of observations, including:

• that Aboriginal traditional owners had felt excluded from consultation, including community ballots, at both these sites
• that in their view the sites had not had adequate heritage assessments
• the lack of consideration for Aboriginal heritage in the transitional provisions including proposed section 34G
• that proposed section 19C is inadequate for procedural fairness and
• that the Bill removes the right of judicial review over the selection of the site.[92]

Other groups

The Australian Academy of Science supports the Bill and ‘believes it reflects the underlying scientific evidence base for the disposal of nuclear waste’.[93]

Stakeholder groups in the nuclear and mining industry also support the Bill and establishment of the facility.[94]

Environmental groups, such as the Australian Conservation Foundation (ACF), have concerns which include issues with the selection process and breadth of consultation, the rationale for selection of the site, and in relation to ILW and international best practice.[95] The ACF urged the Committee to recommend the Bill be abandoned.[96] The Environmental Defenders Office (EDO) agrees that Parliament should scrutinise the facility location decision—including how the decision was made and whether all interests were clearly and effectively considered.[97]

The Public Health Association of Australia (PHAA) does not support the proposed site, noting concerns with the level of community support and opposition by traditional owners, and the apparent lack of consultation with communities through which radioactive waste will travel to reach the site.[98] The PHAA has previously called for an inquiry into all aspects of radioactive waste management.[99]

The Medical Association for Prevention of War (Australia) (MAPW) does not support the Bill and has concerns about the consultation process and level of community support.[100] In addition to calling for an independent inquiry into the production and management of Australia’s nuclear waste, MAPW argues that ILW should remain at Lucas Heights until a permanent disposal site can be found.[101]

The Flinders Local Action Group contends that during the consultation process, ‘many of the finer details have been obscured’ and that communities have been urged to agree to host the facility without a full understanding of what they were voting for.[102] Others have also lost trust in the consultation process, stating that the ‘path that the Federal Government took to making this finding has been a long road of propaganda, manipulation and promises, and is now completely lacking justification at its conclusion for the decision made’.[103]

South Australian government and opposition

When the Bill was introduced, South Australian Premier Steven Marshall reportedly acknowledged that it was a ‘vexed issue but it was time to move forward now a decision had been made’:

"It's been an issue that's dragged on for a long time now," Mr Marshall said.

"Finally, a decision has been made and we now get on with it.

"The process was very clear and has been clear for about six years now."[104]

At the time of writing, we have been unable to locate any public statements regarding the Bill from the Leader of the Opposition in South Australia.

On 13 October 2018, the South Australian ALP State Conference passed a motion supporting traditional owners and communities in Kimba and the Flinders Ranges which opposed construction of a facility in their regions.[105]

Financial implications

The Bill provides for the establishment of the NRWMF Community Fund. When the Facility obtains an operational licence, the Commonwealth must make a single payment of $20 million to the entity prescribed to administer the Community Fund.[106] See ’Key issues and provisions’ for discussion on the Community Fund and repeal of the National Repository Capital Contribution Fund provisions.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), 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. The Government considers that the Bill is compatible.[107]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights considered the Bill and raised a number of issues.[108] The Committee noted that the site may have cultural significance for First Nations people and that the Bill engages with and may limit the right to culture and self-determination. It noted that the Board of the Barngarla Determination Aboriginal Corporation, representing the traditional owners of the area, have stated their opposition to the facility and that the Board and other native title holders in the region may not have been eligible to vote in the community ballot to determine community support.[109]

The Committee noted that the statement of compatibility states that should a culturally significant find be made on the site in future, the EPBC Act would operate to provide protection (the statement does not mention the ATSIHP Act). The Committee stated that it was unclear how the EPBC Act’s protections could operate once the site was in operation to store radioactive waste.

The Committee examined the statement of compatibility’s approach to the right of self-determination, noting that it principally rested on the support of the ‘broader local community’ as demonstrated by the community ballot, which thus seemed to be defined by the Government as the relevant group for the purposes of the right to self-determination. The Committee noted that under international human rights standards, as clarified by the UNDRIP, indigenous peoples’ right to be consulted on decisions affecting them includes the right to influence decision making processes, not simply to be involved or ‘merely to have their voices heard’.[110] The Committee stated that it is not clear whether relevant Indigenous groups were consulted to the standard required by international human rights law, or what percentage of the voters in the community ballot were members of relevant Indigenous groups. The Committee noted that the board of the BDAC had stated its opposition and may have been unable to participate in the ballot. The Committee sought further advice from the Minister on these matters.[111]

The Committee also commented on the provisions in the Bill allowing for compulsory acquisition of additional land (proposed sections 19A–C). The Committee noted that it was not clear whether native title had been extinguished on the proposed land set aside for potential expansion, and that native title and other rights and interests in land on potential all-weather access routes could be extinguished by notifiable instrument, which is not subject to parliamentary oversight or disallowance.[112] The Committee also queried why the consultation requirements of proposed section 19C are taken to be an ‘exhaustive statement of the rules of natural justice, and what this means in practice’ and whether the requirement to consult with anyone with a ‘right or interest’ in the land includes Indigenous people who may have cultural interests even in the absence of a finding of native title.[113] The Committee noted that these provisions, particularly as they may extinguish native title without full, free and informed consent, may limit the rights to culture, self-determination and equality and non-discrimination, and sought the Minister’s advice on these points.[114]

The Minister’s response was included in the Committee’s report 4 of 2020.[115] In response to the Committee’s comments, the Minister:

• provided a detailed account of the community engagement process, including the community ballot and the separate ballot held by the Barngarla people, and the efforts made to engage with the BDAC, noting that the BDAC continued to object to the facility
• noted that the EPBC Act could not be overridden once the facility was operational, and stated that the Department would conduct a detailed cultural heritage assessment and create a management plan for any potential impacts on heritage
• stated that amendments would be considered to make clear that any compulsory acquisition of land for all-weather access would not extinguish native title rights (these amendments were subsequently put forward by the Government and passed by the House, see below)
• restated that the limitations placed on natural justice requirements with regard to ancillary land acquisition were made to ensure certainty for all stakeholders as to the future and viability of the facility
• noted that the provision to acquire access land by notifiable instrument provides more oversight than the current Act, which allows land to be acquired by Ministerial declaration, and stated that this was an appropriate provision as the government’s ability to deliver the entire facility might be impacted if access was not obtained and
• noted that there was no native title over the site or the proposed areas of expansion, and that Traditional Owners of land proposed for all-weather access would be engaged with under the Native Title Act 1993’s future acts regime.[116]

The Committee welcomed and noted the Minister’s advice on these issues, including on the potential for Aboriginal cultural heritage to exist over the proposed location for the facility, and relating to the acquisition of additional land for expansion of the site or to provide all-weather access to the site.[117] However, ‘[n]oting the stated opposition of the Barngarla peoples to the specification of Napandee as the site for the establishment of a radioactive waste facility, and the potential for the site to impact on Indigenous cultural heritage’ the Committee concluded that there is a significant risk that the specification and expansion of this site ‘will not fully protect the rights to culture and self-determination’.[118]

Key issues and provisions

Site nomination and specification

Current process

Part 2 of the NRWM Act contains provisions for the nomination of sites, either by a Land Council or by a general nomination process. After sites have been nominated, the Minister has absolute discretion to approve nominated land for further consideration.[119] As outlined in the Background section of this Digest, the proposed site was identified and considered under this process.[120] Provisions in Part 3 provide the authority to conduct activities to further investigate a nominated site—including an ability to override Commonwealth, state and territory laws that would otherwise regulate, hinder or prevent the investigative activities.[121] Such activities can include accessing land, constructing bores, extracting water, collecting biological samples, placing monitoring equipment, conducting geological, archaeological and heritage investigations, clearing vegetation, or anything necessary for the purposes of selecting a site.[122]

Section 14 of the Act provides the Minister absolute discretion to declare that a site is selected for the facility. Such a declaration is not a legislative instrument, and therefore not subject to disallowance.[123] However, as outlined earlier in this Digest, the Minister has not declared any site under section 14.

Proposed site specification

Schedule 1 of the Bill repeals provisions relating to the site nomination, selection and approval processes (including section 14) and replaces them with a description of the specified site on which to establish and operate the facility.[124] A table within proposed section 5 provides a description of the site boundaries.[125] The site is at ‘Napandee’, approximately 22 kilometres WNW of Kimba in South Australia. The size of the specified area is about 160 hectares—allowing for a facility footprint of about 40 hectares, plus associated works, other activities and security measures.[126]

Section 19 of the Act currently provides that, at the time the Minister declares a selected site under subsection 14(2), all rights and interests in the selected site are acquired by the Commonwealth or extinguished, and freed and discharged from all other rights and interests, including from all trusts, restrictions, mortgages, contracts, charges and rates. Given the proposed repeal of section 14, the Minister will no longer make a declaration. As such, item 13 of the Bill proposes to amend section 19 so that this acquisition or extinguishment takes effect at the ‘site acquisition time’. Proposed subsection 19(2) defines ‘site acquisition time’ as the time Schedule 1 commences (that is, the day after Royal Assent).[127]

Map 1: specified site and additional land specified in the Bill at ‘Napandee’ near Kimba, South Australia

Source: Parliamentary Library map derived from the site specification description in proposed section 5.[128]

On the basis of technical assessments and community sentiment indicators, the former Minister for Resources and Northern Australia, Senator Matthew Canavan, identified the site to host the facility.[129] As outlined above, rather than making a declaration of the selected site under the Act, the Bill proposes specifying the site in legislation. On introducing the Bill, Mr Keith Pitt (the Minister for Resources, Water and Northern Australia), stated that the change will ‘provide the parliament with the opportunity to have a say in the decision’ and that it provides certainty to the host community and the Australian public more broadly.[130] However the BDAC has suggested that this is being done to circumvent any judicial review of a site declaration.[131] The Mayor of the District Council of Kimba has indicated that removing the possibility of judicial review is one of the reasons to proceed with this Bill.[132]

Revoking the site

Section 17 of the Act currently provides the Minister absolute discretion to revoke a declaration made under subsection 14(2) or (4), relating to a Minister’s declaration of land being selected as the site for a facility, or in relation to land for all-weather road access, respectively. The Bill proposes to specify the site of the facility and the Minister will therefore lose the ability to revoke such a declaration.[133] Any subsequent change to the location of the facility, or expansion beyond the area designated by the Bill for potential expansion, will therefore require further legislative amendments.

If the Bill is passed, the specification of the site will not be the end of the process: the proposed facility will need to be assessed and approved through a variety of other processes including the EPBC Act.[134] Approvals will also be required from ARPANSA under the Australian Radiation Protection and Nuclear Safety Act 1998 (the ARPANS Act) to site, build and operate the facility.[135] Approval is also required from the Australian Safeguards and Non-proliferation Office before the facility can become operational.[136] The proposed Community Fund payment is also reliant on a facility licence being issued under the ARPANS Act (discussed further in the 'NRWMF Community Fund’ section of this Digest).

Community support

What constitutes ‘broad community support’ has been contentious. The NRWM Act does not define or require a specific level of community support for the Minister to make decisions in relation to site nomination or selection. The issue of what constitutes broad support was explored during the 2018 Senate inquiry into the site selection process.[137] In its submission to that inquiry, the Department stated:

The Minister has committed that the Facility will not be placed in an unwilling host community or, in other words, a community in which it does not enjoy broad support (noting that no individual or group has a right of veto). Community support is an important but by no means the only factor that the Minister will consider in taking forward a nomination and selecting a site.

In terms of assessing the degree of community support, the Minister has expressly indicated that it is important that all voices in the community are heard and taken into account in decision-making.[138]

In 2017, Senator Canavan stated:

We have not put a definitive figure on broader community support, for the reason that it is not just about the overall figure; we would need a figure in the range of the support we received in Hawker [65 per cent].[139]

Social and community consent was also addressed during the 2016 South Australian Royal Commission.[140] This report notes that a public vote is ‘not a reliable indicator of ongoing social consent’ as opinions can change with changed circumstances or availability of information.[141] While stating that social consent is fundamental to the feasibility of a new nuclear development in South Australia, the report also suggested:

... all stakeholders would need to be confident that social consent was not only gained, but also could reasonably be expected to be sustained through both the development and life of the project.[142]

The Minister’s reasons for selecting the Napandee site acknowledge that it was not supported by the Barngarla people. The Department will continue to ‘seek to work with the Barngarla people on a heritage assessment and on a funded agreement’,[143] but noted:

The Government has consistently stated that one group or individual would not have a right to veto the facility and that everyone’s views would be taken into account. Support will continue to be provided to help provide a level of comfort for the communities, and ensure that future planning and development for the facility proceeds in a respectful way.[144]

Some of the concerns raised by other community groups are also discussed in the ‘Position of major interest groups’ section of this Digest.

The community ballot

The Government assessed the level of community support for the facility through a number of community consultation mechanisms including inviting submissions from community members and two ballots conducted by the District Council of Kimba, the relevant local government body, of voters on the local government electoral roll within the local government area (LGA). The first of these ballots took place in May­–June 2017, at a time when two separate sites within the Kimba LGA (Napandee and Lyndhurst) were under consideration as potential sites. Six hundred and ninety persons voted in the 2017 Poll, with 396 (57.4%) in favour of the establishment of a Waste Facility and 294 (42.6%) opposed.[145] This vote took place before the BDAC’s claim to native title over parts of the Kimba LGA was settled; this confirmation of native title occurred on 6 April 2018.[146]

The second ballot was initially scheduled to take place in August–September 2018, but was halted by an injunction from the Supreme Court of South Australia on application by the BDAC.[147] The BDAC contended that the District Council of Kimba had breached the Racial Discrimination Act 1975 (Cth) by determining eligibility to vote in the ballot along lines that excluded them, as the owners of native title property within the LGA (about 10% of the local government area,[148] including areas within the Pinkawillinie Conservation Park which neighbours Napandee), from participating. In response, the Council contended that a ballot had been held using the local government electoral roll for reasons including transparency, accountability and the familiarity of the Council and local residents with the procedure. The Council noted that several other non-rate paying landholders who were not Aboriginal had been excluded from the ballot as they were not on the electoral roll. The Council also noted that if an alternate set of criteria were to be used, it was unclear what they should be, and whether businesses or groups currently entered on the LGA roll would still be eligible to vote at all, as individual persons, or as a single group vote. On 12 July 2019, White J found in favour of the Council, noting in his judgment that, as native title is a form of group title similar to a corporate title, to extend individual votes to all members of the BDAC would involve the Council granting greater rights to members of the BDAC than to other holders of joint title in the LGA.[149]

Following this decision, the Kimba ballot proceeded on its original basis and was conducted by the Australian Electoral Commission between 3 October and 7 November 2019. There were 824 eligible voters, and of the 734 formal votes returned, 452 (61.58%) voted Yes and 282 (38.42%) voted No.[150] The BDAC engaged the Australian Election Company to conduct a postal ballot of its 209 members. This ballot returned no Yes votes and 83 No votes.[151]

Meanwhile, the BDAC appealed White J’s decision to the Full Court of the Federal Court. On 13 March 2020, the Full Court upheld the original judgment, stating that native title holders had not been treated differently from the holders of other non-rateable property in the LGA and that the Council’s acts in restricting the franchise of the ballot to those on the council electoral role had not been based on race.[152]

Other stakeholder concerns

The change in approach, from the Minister declaring the facility site to the proposed legislative specification, has raised some questions for stakeholders.[153] The BDAC believes this approach ‘is a blatant and indisputable attempt to prevent any judicial review proceedings’ in relation to the Minister making a declaration under section 14 of the Act.[154] The Department states that the parliamentary process provides the opportunity for all members of Parliament to scrutinise the proposal and put forward amendments.[155]

Others reject the proposed site on the basis that it is on agricultural land.[156] Many quote the ARPANSA Code for Disposal Facilities for Solid Radioactive Waste (the Code). This Code states that land in the immediate vicinity of the facility should have little or no potential for agriculture.[157] However, this is one of several criteria to be considered, and under the Code, a potential site is not required to comply with all of these criteria if well-founded supporting arguments can be provided.[158] The Department argues that radioactive waste facilities co-exist with agriculture, tourism and other community activities in other countries and that the facility should not damage the reputation or impact accreditation of agricultural products from the region.[159] The Department has indicated that space in the larger zone around the facility has been added to accommodate a research and development agricultural zone to provide additional assurance.[160] The 2018 Senate Committee also acknowledged these concerns but considered them to be unfounded.[161]

There is also some concern that the proposed site is not the best possible location for a radioactive waste management facility and that more suitable sites exist elsewhere that have not been adequately investigated. For example, proponents of a site at Leonora continue to advocate for that option and Senator Patrick has proposed amendments to site the facility at Woomera.[162]

Intersection with South Australian legislation

The Nuclear Waste Storage Facility (Prohibition) Act 2000 (SA) prohibits establishing a nuclear waste facility in South Australia. Under section 109 of the Australian Constitution, state legislation is invalid to the extent of any inconsistency with Commonwealth legislation.[163] As such, a state law can be overridden by the Commonwealth when exercising the constitutional power to do so; this may be one reason why the Bill seeks to clearly link waste storage and disposal with a constitutional head of power (as discussed later in this Digest).

The NRWM Act already provides that on the declaration of a chosen site, the acquisition of the rights or interests in that land by the Commonwealth or the extinguishment of such rights or interests, occurs despite any other law of the Commonwealth, a state or territory.[164] With the proposed change to the site declaration process, the Bill makes a minor amendment so this will cover the acquisition or extinguishment of rights or interests in the specified site and any additional land for expansion or an all-weather road.[165]

Additional land

The NRWM Act provides the Minister absolute discretion to declare that land is needed for all-weather road access to the selected site, subject to certain procedural fairness requirements.[166] These provisions are repealed by item 11 of Schedule 1 of the Bill and will be replaced by proposed sections 19A, 19B and 19C, inserted by item 15.

Proposed section 19A provides for the acquisition or extinguishment of rights and interests in additional land that is required for the expansion and operation of a facility at the specified site. This additional land may be prescribed by Regulations but must consist of all or part of the area described in the table under proposed subsection 19A(2), shown on Map 1 above as land immediately adjacent and to the north of the specified site. This additional land, consisting of about 50 hectares, was part of the original voluntary nomination.[167] This will enable the Commonwealth to acquire additional land to allow for further enabling works relating to the establishment of the facility—these may include cultural heritage protection, community research and development activities or other community-related activities in relation to the facility.[168]

Proposed section 19B allows the Minister to specify additional land, by notifiable instrument, for all-weather access to the specified site (or to the additional land prescribed under proposed section 19A). Unlike the additional land under proposed section 19A, the location of additional land for all-weather access is not otherwise defined and could potentially go beyond the area prescribed in proposed section 19A. The Explanatory Memorandum states that, while primary road access is not expected to require any additional land, secondary or emergency road access may be required by the regulator (ARPANSA) in the facility licencing conditions—and this may require the acquisition of additional land.[169] The community has been advised that the Department doesn’t envisage needing to acquire more land and that these provisions are included as a fail-safe.[170]

The Governor-General would be empowered to make Regulations for the additional land for expansion of the site.[171] The Minister would be empowered to make a notifiable instrument specifying land for the purpose of providing all-weather road access to the specified or expanded site.[172] As outlined earlier in this Digest, both the Scrutiny of Bills Committee and the Human Rights Committee raised concerns that this latter compulsory acquisition could be done by a notifiable instrument, which is not subject to parliamentary review or disallowance.[173]

Consultation and procedural fairness

Consultation must be undertaken before any additional land can be acquired.[174] Currently, procedural fairness provisions of the NRWM Act require the Minister to give written notice to each nominator of the land and publish a notice in the Gazette, a daily newspaper that circulates in each state, the ACT and NT, and a local newspaper (if any) in the relevant area.[175] Such a notice must state the Minister’s proposal and provide each nominator and any persons with a right or interest in the land at least 60 days to provide comments—which the Minister must take into account in deciding whether to make a declaration under section 14.[176]

Proposed section 19C replaces these requirements with procedural fairness provisions requiring an invitation to persons with a right or interest in the land be published in a daily newspaper that circulates in each state, the ACT and NT, and a local newspaper (if any) in the relevant area.[177] This consultation period must be not less than 30 days.[178] With the removal of a requirement to publish in the Gazette, and no requirement for online publication, the proposed changes may not provide sufficient exposure and audience for such notices.

Proposed subsection 19C(4) states that these consultation requirements are an ‘exhaustive statement of the requirements of the natural justice hearing rule’ in relation to a decision to make regulations acquiring additional land for expansion of the site, and in relation to a decision by the Minister to make a notifiable instrument acquiring additional land for all-weather access to the site. As noted earlier, the Human Rights Committee and Scrutiny of Bills Committee, and some submissions to the current Senate inquiry, expressed concern that the government was attempting to exhaust and limit natural justice and procedural fairness requirements in the legislation.[179]

Authority to conduct activities

Section 23 of the NRWM Act provides authority to the Commonwealth, a Commonwealth entity or contractor, or an employee or agent of these bodies, to conduct a range of activities to enable the construction, management and decommissioning of the facility. Under subsection 23(3), the person may also undertake activities that were provided for during the site selection process (as currently listed in subsection 11(3)).[180] As a consequential amendment, these same activities would be specifically listed in subsection 23(3), instead of a reference to subsection 11(3), which will be repealed.[181] Consequential amendments to section 23 also propose to refer to ‘relevant land’—defined as the specified site and any additional land acquired, as detailed above—rather than to the ‘selected site’.[182]

Note that existing section 24 effectively excludes state and territory laws from operating where they would ‘regulate, hinder or prevent activities’ authorised by section 23. Under section 25, 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 23’. However subsection 25(2) provides that three Commonwealth Acts cannot be prescribed: the ARPANS Act, the EPBC Act and the Nuclear Non-Proliferation (Safeguards) Act 1987. These provisions remain unchanged by the Bill.

Transitional arrangements

Item 35 of Schedule 1 inserts a new Part 6C on transitional arrangements. These new provisions relate to activities conducted on land under section 11 of the Act as part of the site selection process. Section 11 currently provides the Commonwealth, or a person working on behalf of the Commonwealth (including contractors and their employees or agents), with legislative authority to do anything ‘necessary for or incidental to the purposes’ of selecting a site. Subsection 11(3) provides a non-exhaustive list of the sort of activities which would fall into this category (such as collecting samples, moving soil, clearing vegetation and constructing bores). Section 12 provides that certain types of state and territory laws have no effect where they would regulate, hinder or prevent activities authorised by section 11. Section 13 similarly provides that the EPBC Act and the ATSIHP Act have no effect where they would regulate, hinder or prevent activities authorised by section 11.

As sections 11–13 are repealed by the Bill,[183] item 35 inserts proposed sections 34G, 34GA and 34GB. Proposed section 34G applies if a person has done an activity under repealed section 11 of the Act before the site acquisition time. ‘Site acquisition time’ is defined as the time Schedule 1 commences, which is the day after Royal Assent.[184] Proposed subsection 34G(2) enables a person (to whom section 11 applied immediately before site acquisition time) to do anything necessary for the purposes of leaving the land, as nearly as practicable, in the condition in which it was immediately before the activities under section 11 were done.[185] These provisions will enable remediation-type activities to be undertaken on or in relation to land that was investigated as a potential site. As the Explanatory Memorandum states:

Activities required to return the site to its original condition may include: sealing bore holes, removing monitoring equipment and their protective structures; replacing sand, gravel, soil, or rocks that were moved in the course of extracting samples; and replanting vegetation that was cleared...[186]

The Department has explained that these provisions preserve ‘the Commonwealth’s ability to remediate land that was in any way disrupted during the site selection phases of the program’.[187]

As noted earlier, the government has stated in the declaration of compatibility with human rights that any culturally significant finding made on the specified site would be protected by the EPBC Act.[188] Proposed sections 34GA and 34GB mirror sections 12 and 13 by excluding the EPBC Act and the ATSIHP Act (and, for example, any South Australian heritage legislation) from having effect to the extent that they would regulate, hinder or prevent remedial activities in relation to proposed sites. This exclusion applies only to remedial activities (proposed subsections 34G(2)) and the person must take all reasonable steps to ensure the activities do as little damage as practicable to the land or anything on the land (proposed subsection 34G(4)). However, it still includes a range of authorised activities which might inadvertently affect any cultural heritage on proposed sites. As noted above, the Act currently applies these same exemptions (under existing sections 12 and 13) to activities related to site selection carried out under section 11 of the Act.

NRWMF Community Fund

Current arrangements

Part 6A of the NRWM Act provides for the establishment of a National Repository Capital Contribution (NRCC) Fund. The Fund may be used to provide enhanced public services and/or infrastructure in the host state or territory.[189] Under subsection 34C(2), the Fund is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013 (the PGPA Act). It is established immediately after a facility licence has been issued to enable operation of the facility under the ARPANS Act.[190] Before the facility can accept any radioactive waste, the Fund must be credited with at least $10 million.[191]

Part 6A requires users of the facility, other than the Commonwealth and the hosting state or territory, to pay a fee (the Capital Contribution Fee) towards the cost of the facility.[192] This fee would be prescribed by Regulations.[193] Any amounts received by the Commonwealth as NRCC Fees in excess of $10 million are also credited to the Fund.[194] Administration of the Fund is under an agreement with the Commonwealth and the host state or territory, whereby the Fund is administered by the Minister, on the advice of the Premier or Chief Minister of the host state or territory and three residents of the host state with expertise in education, infrastructure and health.[195]

The Kimba community was strongly opposed to these fund management arrangements and preferred them to be managed by the community.[196] As a result, the Bill proposes the NRCC Fund be replaced by a Community Fund.[197]

Proposed Community Fund

The proposed Community Fund must be used for purposes associated with the economic and social sustainability of the host community, so as to support both the establishment and operation of the facility.[198] The Explanatory Memorandum states that the Community Fund will contribute to ‘sustainable health services, agricultural research and development, enhancements to local critical infrastructure and further development of the local Aboriginal community economy’.[199] It is intended that this approach will assist the host community to realise the benefits of the facility and help ensure the ongoing sustainability of the host community and its ability to provide the support services required for the ongoing operation of the facility.[200]

Similar to the NRCC Fund, the Community Fund is only established once a licence to operate the facility has been issued.[201] The Community Fund will receive $20 million as a single lump sum payment, expected to be appropriated by an annual appropriation act.[202] In light of how long it may take to reach the licencing stage and future possible delays, the District Council of Kimba has requested that indexation be applied to the value of the Community Fund until it is paid.[203]

Item 5 of Schedule 2 causes the NRCC Fee to be renamed as the Capital Contribution Fee. These fees would be payable by users other than Commonwealth and South Australia users. Such fees would be payable to the Commonwealth into the consolidated revenue fund.[204] The amendments remove the mechanism for fees in excess of the initial Commonwealth contribution to be credited to the fund.[205] However, the proposed Commonwealth contribution is doubled and is to be applied specifically to the host community, rather than the host state or territory. The NRCC Fee was designed to recoup an initial $10 million towards the cost of construction, however the amendments ‘uncouple’ the fee from the Community Fund and enable all fees payable to go to the Commonwealth.[206]

Proposed section 34AA, inserted by item 3 of Schedule 2, provides that the Community Fund entity will be prescribed by Regulation. The South Australian Government, local council and a Regional Consultative Committee (established under existing section 22 of the Act) must be consulted on the type of entity and governance arrangements before it is established (proposed subsection 34AA(2)). The Explanatory Memorandum explains that this consultation is a mechanism for ‘ensuring that the host community can determine spending that will positively affect its future’.[207] The intention is for the entity to be managed and controlled by the host community.[208] However, Schedule 2 doesn’t specifically provide this requirement, beyond the consultation noted above. The Explanatory Memorandum has been amended to make clear that the Community Fund is intended to be managed and controlled by the host community but the Bill has not been amended.[209]

The proposed entity will enter into an agreement with the Commonwealth relating to how the fund can be used, circumstances under which the entity must repay any amounts, as well as any other terms and conditions prescribed by Regulation.[210] This agreement must include the core condition that the entity will use the payment for purposes associated with the economic and social sustainability of the host community to support the establishment and operation of the facility.[211]

As it is intended that the Commonwealth will only play a limited role in the Community Fund, the agreement will stipulate the terms of the payment.[212] The Explanatory Memorandum states this may include periodic reporting requirements, how members of the entity will be appointed or removed, and governance arrangements to manage competing community priorities.[213] It also explains that the requirement in proposed subsection 34AC(6) for the agreement to specify circumstances under which the entity may need to repay funds to the Commonwealth ensures  alignment with the PGPA Act and may include instances where the entity fails to meet terms of the agreement.[214]

Controlled material

The Bill proposes removing most references to ‘radioactive waste’ and replacing them with ‘controlled material’. Controlled material is currently defined in section 4 of the NRWM Act and aligned with its meaning in the ARPANS Act, where it means any natural or artificial material, whether in solid or liquid form, or in the form of a gas or vapour, which emits ionizing radiation spontaneously.[215] The NRWM Act definition also provides that controlled material must be of domestic origin and not include high level radioactive material or spent nuclear fuel.

Item 2 of Schedule 3 repeals the current definition of ‘controlled material’ in the NRWM Act and item 4 inserts a new definition in proposed section 4A. Proposed subsection 4A(1) continues to refer to the definition in the ARPANS Act, but the requirements of proposed subsections 4A(2) and 4A(3) also need to be satisfied.

Proposed subsection 4A(2) provides that ‘controlled material’ must have been used or generated by activities in Australia, or have been sent to Australia and relate to conditioning or reprocessing of spent nuclear fuel from ANSTO (which reflects the current definition under the NRWM Act). It must not be high level radioactive material or spent nuclear fuel. This operates to exclude radioactive waste generated overseas, high level waste, and spent nuclear fuel (except for material sent to Australia under contractual arrangements relating to the conditioning or reprocessing of ANSTO spent nuclear fuel).[216]

High level radioactive material is already defined in the NRWM Act as material with a thermal energy output of at least 2 kilowatts per cubic metre (that is, it generates heat from radioactive decay).[217] ANSTO does not generate any high level waste.[218] As the Bill proposes that the facility is for the management of controlled material, and as high level waste is excluded from the definition of controlled material, the facility could not receive high level waste (which is also excluded under the current Act).

Proposed subsection 4A(3) introduces a series of other requirements regarding the nature of controlled material that can be handled at the facility. These amendments have been included to invoke certain constitutional heads of power and to ensure provisions in the NRWM Act can be read down to the extent permitted by the Constitution.[219] The controlled material must therefore be radioactive waste within the meaning of the Joint Convention, result from activities related to the defence of Australia, required to be securely managed to prevent its use in terrorism (within the meaning of section 100.1 of the Criminal Code), and/or be generated by a Commonwealth, state or territory (or Commonwealth entity or state and territory authority) or generated within a territory, or possessed or controlled by the Commonwealth or a Commonwealth entity.

Other provisions

The Bill proposes a number of consequential amendments to reflect the proposed change in purpose of the NRWM Act from site selection to site specification. Item 1 of Schedule 1 omits the word ‘selection’ from the long title of the Act and replaces it with ‘specification’. Item 2 of Schedule 1 replaces the Object of the Act in section 3 to make clear that the site for the Facility will be specified in the Act and that the management of the radioactive waste (defined as controlled material, as discussed earlier) gives effect to Australia’s obligations under the Joint Convention.

Several proposed amendments remove provisions relating to the Northern Territory or nomination by Land Councils, which are not relevant to the site being specified by the Bill.[220] These removals have no effect on the proposed facility or the native title or other rights of traditional owners in the vicinity of the facility. However, a potential issue is that, by amending the Act to specify a particular site and removing clauses allowing for potential sites in the Northern Territory or elsewhere, the government is effectively ruling out any other potential site for management of radioactive waste. This would mean that, if for some reason the Kimba site could not proceed, or an additional waste management facility was required (for example, for the ILW that is intended to only be temporarily stored at Napandee), Parliament may have to pass new legislation amending the Act to re-enable a process of site nomination and assessment.

House of Representatives amendments

After the introduction of the Bill into the House of Representatives, the Government proposed three amendments to the Bill as introduced.[221] These amendments specify that native title rights and interests are not compulsorily acquired by the Commonwealth or extinguished if additional land is acquired by notifiable instrument for the purposes of all-weather access to the facility.

As noted earlier, amendments were also made to the Explanatory Memorandum to clarify that the Community Fund is intended to be managed and controlled by the host community, including the Aboriginal community, as discussed in the ‘Site nomination and specification’ section, and to operate with ‘a focus on the development of the local Aboriginal community economy’.[222] The Government’s amendments were agreed to by the House of Representatives after debate on 11 June 2020.[223]

Proposed Senate amendments

Senator Patrick has put forward amendments that would designate an area within the Woomera Prohibited Area (WPA) as the site for the repository, instead of the Napandee site.[224]

The Department has provided additional information to the Senate Committee on its consideration of alternative sites for the facility, including at Woomera.[225] While two sites within the WPA passed an initial desktop multi-criteria assessment in 2017, they were subsequently assessed as unsuitable by the Department of Defence.[226] The Department of Defence has concluded that siting the NRWMF within the WPA is ‘incompatible with Defence's operational and capability needs for the testing of war material’.[227]