Introductory Info
Date introduced: 13 February 2020
House: House of Representatives
Portfolio: Industry, Science, Energy and Resources
Commencement: The day after Royal Assent.
The Bills Digest at a glance
Purpose of the Bill
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:
- 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
- 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)
- 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
- 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:
- the
financial compensation offered to applicants for the acquisition of land under
the Nominations of Land Guidelines;
- how
the need for ‘broad community support’ has played and will continue to play a
part in the process, including:
- the definition of ‘broad
community support’, and
- how
‘broad community support’ has been or will be determined for each process
advancement stage;
- 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;
- whether and/or how the Government’s ‘community benefit program’ payments affect
broad community and Indigenous community sentiment;
- 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
- 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]