Referral of the inquiry
1.1
The Atomic Energy Amendment (Mine Rehabilitation and Closure) Bill 2022 (the bill) was introduced into the House of Representatives and read a first time on 8 September 2022.
1.2
On 8 September 2022, the Senate referred the provisions of the bill to the Senate Economics Legislation Committee (the committee) for inquiry and report by 23 November 2022.
Purpose of the bill
1.3
The bill seeks to amend the Atomic Energy Act 1953 (the Act) to maintain the Australian Government’s long-term regulation of the Ranger Uranium Mine (Ranger Mine) in the Northern Territory (NT).
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The bill would allow the preservation of the regulatory framework that applies to Ranger Mine as mining operations have ceased, and the mine is now in full time rehabilitation.
1.5
Ranger Mine operates under a unique regulatory framework which was conferred under section 41 of the Act in 1999. The Mine Operator and holder of the authority (currently Energy Resources of Australia Ltd (ERA), a subsidiary of Rio Tinto) was authorised to mine uranium at the mine until 8 January 2021. In accordance with the existing authority, the Mine Operator is to undertake and complete the rehabilitation of the Ranger Project Area (RPA) complying with the Environment Requirements of the Commonwealth of Australia for the Operation of Ranger Mine (ERs).
1.6
The current Section 41 Authority remains in force until 8 January 2026, at which time it will expire, irrespective of the Mine Operator’s public and approved rehabilitation plans — indicating that additional time is needed to execute all proposed rehabilitation and monitoring activities and demonstrate ERA has satisfied the ERs. At present, the provisions of the Act do not allow the Minister to vary (except in limited circumstances), renew or extend the period in which a Section 41 Authority is in force.
1.7
Similarly, the agreement between the Commonwealth and the Northern Land Council (NLC) made under section 44 of the Aboriginal Land Rights (Northern Territory) Act 1976, and which provides Traditional Owners’ approval for the Mine Operator to access the RPA, will also expire on 8 January 2026.
1.8
The Explanatory Memorandum (EM) notes that amendments in the bill ‘are intended to preserve the longstanding regulatory framework at Ranger Mine until the Mine Operator has rehabilitated the RPA to the standard described in the ERs’. The amendments are not intended to, and do not support, the making of significant changes to the ERs which have long applied to Ranger Mine and are supported by the mine’s stakeholders, including the organisations representing the land’s Traditional Owners.
1.9
Therefore, the key objective of the bill is to extend the Mine Operator’s Authority to continue working on the rehabilitation of Ranger Mine until the rehabilitation process is complete.
1.10
The Minister for Resources and Minister for Northern Australia, the Hon. Madelaine King MP, on 8 September 2022 stated the reason for a new Section 41 Authority is that more time is needed to complete the rehabilitation process:
When Ranger was established 40 years ago, it was envisaged rehabilitation would take five years and be completed by January 2026 when current regulatory arrangements lapse. However, based on the best environmental science of today, it is apparent Ranger’s rehabilitation will take longer. Accordingly, the Government is acting to extend Ranger’s regulatory framework until the job is complete… [T]he bill allows the mine’s operator, Energy Resources of Australia (ERA) to transition to a new Authority that permits its rehabilitation to be continued at Ranger beyond January 2026.
1.11
In summary, the bill would allow the Minister to:
confer a new Rehabilitation Authority on the Mining Operator (on an application) authorising rehabilitation and incidental activities, with the duration of that authority to be determined following consultation with key stakeholders;
vary the historic Section 41 Authority conferred on the Mine Operator to authorise the carrying out of rehabilitation, remediation and monitoring operations and extend the period in which the authority is in force; and
declare that an authority conferred under the Act will cease to apply to a part of the RPA in which the Mine Operator is deemed to have met its rehabilitation requirements.
Background
1.12
The Ranger Uranium Mine was established in an area known as the RPA in 1979, an area of 78 square kilometres located approximately 260 kilometres east of Darwin in the Northern Territory (NT) on the lands of the Mirarr clan. The mine was opposed by the Traditional Owners and proceeded against their wishes. It lies within the Kakadu National Park and World Heritage Area.
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The mine has been owned and operated by ERA from 1980 until January 2021, when operations ceased after a production of approximately 1,800 tons of uranium oxide each year. ERA has been progressively rehabilitating Ranger Mine for many years, with rehabilitation works in some areas in advanced stages.
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After 40 years of uranium production at Ranger Mine, the complex rehabilitation of the land has commenced, with a commitment that the land will be restored to a standard such that it could be incorporated into Kakadu National Park.
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As outlined in the EM and described above, the bill would add to the longstanding legislative requirement that the Ranger Mine must be redeemed to a condition similar to the surrounding Kakadu National Park. The bill’s focus is primarily on rehabilitation and closure and does not permit a resumption of mining activity and does not change the existing Environmental Requirements or required standards of rehabilitation.
Provisions of the bill
1.16
The bill contains one schedule—Authorities under the Atomic Energy Act 1953—and two parts:
Part 2—Application provisions.
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The provisions in Part 1 of the bill would make alterations to existing divisions (Division 1 and 6) and insert new divisions (Divisions 2 to 5) under Part III of the Act. A summary of the provisions under each division in the bill is given below.
Part 1: Division 1—Authority to carry on mining etc.
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Division 1 would enable a Section 41 Authority to explicitly authorise the Mine Operator’s rehabilitation activities at Ranger by varying or expanding the scope of the authorised operations.
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The EM states that the amendments proposed in Division 1:
…are necessary because, in the event the Mine Operator does not apply for a Rehabilitation Authority and the Minister varies the historic Section 41 Authority in accordance with Division 4 [pertaining to the variation and revocation of Part III authorities], mining will no longer be an authorised operation and the Section 41 Authority could not then be said to be an authority to mine prescribed substances.
Part 1: Division 2—Authority to carry on rehabilitation etc.
1.20
Division 2 would provide for an alternative pathway to authorise rehabilitation activities of the Mine Operator beyond 8 January 2026. The Division would achieve this by establishing (under proposed section 41CA) arrangements for the application, conferral and contents of a new class of authority under the Act — a Rehabilitation Authority.
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Provisions in Division 2 thereby recognise that mining operations at Ranger Mine have ceased and would allow the Minister to authorise the Mine Operator to conduct only rehabilitation and associated activities.
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Applications for a Rehabilitation Authority could only be made by the holder of a historic Section 41 Authority (i.e. ERA) and must be applied for within 18 months of the bill’s commencement, or at a later time determined by the Minister. Rehabilitation requirements conferred through a Rehabilitation Authority must be substantially similar to the existing ERs.
Part 1: Division 3—Close out of Part III authorities
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Provisions in Division 3 enable a two-stage process for the progressive close-out of the RPA. This process is established by:
…firstly, providing that a Part III Authority may specify conditions which describe how and when a rehabilitation requirement imposed by that authority will be taken to have been satisfied and, secondly, providing that the Minister may declare that an Authority is no longer in force in respect of an area of land where applicable rehabilitation requirements are taken to be satisfied.
1.24
The specified conditions under which a rehabilitation requirement would be taken to be satisfied may include closure criteria and metrics that the holder of an authority must meet over a period of time, as well as documents and reports against those metrics that the authority holder must provide. The EM suggests that stakeholders would be provided ‘with greater certainty about the pathway to Ranger’s eventual closeout’ with such conditions.
Part 1: Division 4—Variation and revocation of Part III authorities
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Provisions in Division 4 set out the limited circumstances in which the Minister would be able to vary a Part III Authority and revoke a Section 41 Authority.
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The EM emphasises that the Minister’s ability to vary the conditions and restrictions pertaining to a Part III Authority is necessarily narrow. The EM further notes that, while the provisions provide sufficient scope for the Minister to ‘respond flexibly to a project of Ranger’s complexity and duration’, it is not the government’s intention that any variations made would alter the standard of rehabilitation that the Mine Operator must achieve, as prescribed in the ERs.
Part 1: Division 5—Other matters relating to Part III authorities
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Division 5 outlines the other matters that would apply to a Part III Authority. The EM states that ‘the intent of many of these provisions is to support or give effect to other provisions in the Bill, or to satisfy more contemporary drafting requirements’.
Part 1: Division 6—Offences and compensation
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Division 6 seeks to delineate the provisions in the Act that deal with offences and compensation.
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Division 6 would amend the Act to explicitly include a refusal to comply with a ‘requirement’ imposed by an authority in the scope of an offence committed under the Act. This is in addition to a refusal to comply with a ‘condition or restriction’ imposed by an authority.
Part 2: Application provisions
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Part 2 of Schedule 1 of the bill would provide application provisions of the amendments to the Act. These provisions are necessary to ensure that the amendments in the bill have the intended effect of maintaining the longstanding regulatory framework at Ranger by applying them to the historic Section 41 Authority.
Consultation
1.31
The Department of Industry, Science and Resources (DISR) sought feedback from key stakeholders on the proposed bill through a consultation process to three exposure drafts of the bill, and the key stakeholders were also consulted throughout the policy development process, including on the purpose and scope of amendments. According to the EM, the consultation process reaffirmed that the limitations within the Act were accepted and there is a need for amendment.
Commencement
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The bill would commence the day after Royal Assent.
Financial impact
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The EM states that the bill would have no financial impact and applies to a single project and a single operator.
Legislative scrutiny
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In Scrutiny Digest 5 of 2022, the Senate Standing Committee on the Scrutiny of Bills (Scrutiny Committee) raised concerns with the bill regarding matters relating to the availability of merits review and the incorporation of external materials by reference, these matters are outlined in more detail below.
Availability of merits review
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Item 18 of Schedule 1 to the bill would insert Division 4 into Part III of the Act to establish a new class of authority, known as a Rehabilitation Authority.
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Proposed section 41CK would allow the Minister, by writing, to vary a Part III authority in response to a failure to comply with an authority, to extend the time period in which an authority is in force, to ensure continued effective operation of an authority, or to specify close-out conditions. In addition, proposed subsection 41CR(1) would provide that the Minister may, by writing, revoke an authority conferred under section 41 if satisfied of certain matters. The bill would not provide for a decision made by the Minister under proposed subsections 41CK(1) to (5) and proposed subsection 41CR(1) to be independently merits reviewed.
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The Scrutiny Committee considered that generally, administrative decisions that will, or are likely to, affect the interests of a person should be subject to independent merits review unless a sound justification is provided by reference to the Administrative Review Council’s guidance document. The committee noted that interests of relevant people, such as the Mine Operator or Land Council, may be affected by a decision of the Minister to vary, or revoke, a Part III authority and that the EM does not appear to address why merits review is not available for decisions made by the Minister under proposed subsections 41CK(1) to (5) or proposed subsection 41CR(1).
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The Scrutiny Committee noted that provisions in the bill which impose constraints on when the Minister can vary the authority and set out consultation and notification requirements the Minister must follow before and after varying a Part III authority. However, there are significant scrutiny concerns that such consultation processes and elements of procedural fairness are insufficient to justify the exclusion of independent merits review where the consequences of that decision will or are likely to affect the interests of a person. Therefore, it remained unclear to the Scrutiny of Bills Committee why individuals whose interests are affected by a decision of the Minister should not have access to independent merits review. As such:
The committee therefore requests the Minister’s advice as to why merits review will not be available in relation to a decision to vary, or revoke, an authority under proposed subsections 41CK(1) and (5) or proposed subsection 41CR(1) of the bill. The committee’s consideration of this matter would be assisted if the minister’s response identified established grounds for excluding merits review, as set out in the Administrative Review Council’s guidance document, What decisions should be subject to merits review?.
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As of 31 October 2022, the Minister response had not been published on the Scrutiny Committee’s website.
Incorporation of external materials as existing from time to time
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Proposed section 41CU would provide that a Part III authority may make provision in relation to a matter by applying, adopting, or incorporating, with or without modification, any matter contained in any other instrument or writing as in force or existing from time to time.
1.41
According to the Scrutiny Committee, there are significant scrutiny concerns where provisions in a bill allow the incorporation of legislative provisions by reference to other documents as such an approach can create uncertainty in the law and further, mean that those obliged to obey the law may have inadequate access to its terms. Consequently, the Scrutiny Committee expected that the EM for the bill which proposes to allow the incorporation of external materials as in force from time to time should contain a sound justification as to why this incorporation power is necessary and appropriate.
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Consequently, the Scrutiny Committee noted that the incorporation of external materials in this way could operate to change the circumstances in which an authority holder is deemed to have satisfied its rehabilitation requirements. The Scrutiny Committee’s view was that while information in the EM sets out that consultation will be undertaken prior to any incorporation, this requirement is not set out on the face of the bill. In addition, the committee’s concerns were heighted in relation to the EM as it does not appear to identify or explain where the incorporated materials may be accessed or whether they will be freely available.
Considering the above, the committee requests the Minister’s advice as to whether documents incorporated by reference will be freely and readily available to all persons interested in the law.
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As of 31 October 2022, the Minister response had not been published on the Scrutiny Committee’s website.
Human rights implications
1.44
As discussed in the EM, the Statement of Compatibility with Human Rights states that the bill is compatible with the human rights and freedoms recognised in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
1.45
The EM articulates that the bill engages with the right to enjoy and benefit from culture and the right to self-determination. The passage of this bill, and the subsequent conferral or variation of an authority that would have the effect of authorising the Mine Operator’s ongoing rehabilitation activities, may adversely impact Traditional Owner’s access to traditional lands and right to enjoy and benefit from culture. However, while there may be some temporary adverse impact on Traditional Owners’ rights to enjoy and benefit from culture on the RPA, the EM considered this to be appropriate in these circumstances as there is an associated long-term benefit:
The bill will allow the Minister to preserve the Mine Operator’s legal requirement to rehabilitate the RPA to achieve a condition similar to the surrounding environment. Successful rehabilitation will ultimately support Traditional Owners’ rights to self-determination and to enjoy and benefit from culture.
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To support the associated rights and Traditional Owners’ post-mining land use objectives, Traditional Owner representative bodies would provide input to aspects of the Mine Operator’s rehabilitation plans that contribute to the Traditional Owners’ enjoyment and reconnection to Country once rehabilitation is completed.
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The Joint Committee on Human Rights reported that the bill did not raise any human rights concerns.
Regulatory impact
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There is no Regulatory Impact Statement for the bill.
Conduct of the inquiry
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The committee advertised the inquiry on its website and wrote to relevant stakeholders and interested parties inviting written submissions by 28 September 2022.
1.50
The committee received 11 submissions as well as additional information and answers to questions on notice, which are listed at Appendix 1.
1.51
The committee held one public hearing for the inquiry in Canberra on 18 October 2022. The names of the witnesses who appeared at the hearing can be found at Appendix 2.
Acknowledgements
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The committee thanks all individuals and organisations who assisted with the inquiry, especially those who made written submissions and participated in the public hearing.