Bills Digest no. 59 2005–06
Commonwealth Radioactive Waste Management
Bill 2005
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Commonwealth Radioactive Waste Management
Bill 2005
Date Introduced: 13 October 2005
House: House of
Representatives
Portfolio: Education, Science and Training
Commencement: On the day after Royal Assent
To strengthen the Commonwealth s
legal ability to develop and operate the proposed Commonwealth
radioactive waste management facility in the Northern Territory.
The Bill achieves this by:
-
providing legislative authority to undertake the various
activities associated with the proposed facility
-
overriding or restricting the application of laws that might
hinder the facility s development and operation, and
-
providing for the acquisition or extinguishment of rights and
interests related to land on which the facility may be located.
Background
Radioactive waste is generally classified on the basis of how
much radiation it emits and what form of radiation it emits, as
well as the length of time for which it will continue to emit
radiation. In this respect, radioactive waste is normally divided
into four
categories:
-
Low-level,
-
Intermediate-level, short lived
-
Intermediate-level, long lived; and
-
High-level.
These categories are not included in any Commonwealth
legislation. They do, however, form the basis of various technical
guidelines that are employed by various Australian authorities
regarding the transport, storage and/or disposal of radioactive
waste for example the 1992
Code of Practice for the near-surface disposal of radioactive waste
in Australia.
Australia does not produce any high level waste, which typically
is produced by nuclear power plants. In respect of other categories
of waste,
according to the Department of Education, Science and
Training:
Australia has accumulated approximately 3,700
cubic metres of low level and short-lived intermediate level
radioactive waste from over forty years of research, medical and
industrial uses of radioactive materials. This total does not
include uranium mining wastes, which are disposed of at mine sites.
Over half of Australia s current low level and short-lived
intermediate level waste by volume comprises ten thousand drums of
lightly contaminated soil. This soil is a legacy of Commonwealth
Scientific and Industrial Research Organisation (CSIRO) research
into processing radioactive ores during the 1950s and 1960s.
Australia generates a very small amount of low
level and short-lived intermediate level radioactive waste. Each
year, Australia produces approximately 40 cubic metres of such
radioactive waste less than the volume of one shipping container.
By comparison, Britain and France each produce around 25,000 cubic
metres of low level waste annually.
low level and short-lived intermediate level waste
will be generated by the decommissioning of the [Lucas Heights]
High Flux Australian Reactor (HIFAR) and the replacement research
reactor. Depending on the decommissioning options chosen, between
500 and 2,500 cubic metres of waste will be generated by the
decommissioning of each reactor.
Australia holds approximately 500 cubic metres of
long-lived intermediate level radioactive waste. This includes
waste from the production of
radiopharmaceuticals, wastes from mineral sands processing, and
used sources from medical, research and industrial equipment.
The question of developing a near-surface repository (the
Repository) for disposal of Australia's low level and short-lived
intermediate level radioactive waste has been around since the
1980s. However, in 1992 the then ALP Commonwealth Government
initiated a formal process to identify a site for the Repository.
In 2000, the Coalition Commonwealth Government decided that it
would also start a similar process to find a site for a proposed
facility to store(1) (the Store) long-lived intermediate
level radioactive waste produced by Australian Government
agencies.
By 2003, the possible sites for the Repository had been reduced
to two, both in South Australia. Following Commonwealth
environmental assessment under the Environment Protection and
Biodiversity Conservation Act 1999, site 40a near Woomera was
chosen by the Commonwealth and an application submitted to the
Australian Radiation Protection and Nuclear Safety Agency (ARPANSA)
for a licence to construct and operate the Repository. Site 40a was
South Australian crown land and the Commonwealth commenced
compulsory acquisition procedures under the Lands Acquisition
Act 1989. Because the South Australian Government was
intending to pass legislation that would frustrate the acquisition
process, the Commonwealth used special urgency provisions in
the Lands Acquisition Act to effect the
acquisition. This was successfully challenged
by South Australia in the Federal
Court, with the decision
of the Full Bench being handed down in June 2004. At that time, the
Commonwealth had not selected a short-list of sites for the
proposed Store.
Further background on Australian radioactive waste
management issues can be found in Parliamentary Library
chronology Radioactive
Waste and Spent Nuclear Fuel Management in Australia.
Shortly after the 2004 Federal Court decision, the Prime
Minister
announced that the Australian Government would construct
co-located facilities on Commonwealth land for the management of
low and intermediate level radioactive waste produced by Australian
Government agencies. As part of this announcement, the Prime
Minister stated that:
The Australian Government will be examining sites
on Commonwealth land, both onshore and off shore, for the
establishment of a suitable facility.(2)
In August 2004, the ALP Northern Territory Government introduced
the Nuclear Waste Transport, Storage and Disposal (Prohibition)
Bill 2004 into Parliament. The ostensible purpose of this bill was
to prevent waste from outside the Northern Territory being
transported into and stored in the Northern Territory. In
introducing the Bill, the Northern Territory Minister for
Environment and Heritage said:
Let me make it very clear that the Northern
Territory government has an absolute mandate to introduce this
legislation. The Northern Territory (Self-Government)
Act makes it clear that the disposal and storage of hazardous,
dangerous waste is the domain of the Northern Territory government.
The Prime Minister, when speaking on this issue on 19 July, ruled
out taking advantage of the fact that we are not a state when he
said the rights of the Territory will no less be respected than the
rights of other parts of the country. The rights of the Territory
would clearly not be respected were the Commonwealth to overrule
this legislation.
This bill legislates to prohibit a nuclear waste
dump to the full extent of the Territory parliament's capacities.
It would be wrong for me to propose that this bill, when enacted,
would offer some sort of cast-iron guarantee that there will not be
a nuclear waste dump in the Territory - it does not. The capacity
of the Territory to regulate Commonwealth instrumentalities has
limitations(3) and the Commonwealth can, if they wish,
remove our right to legislate on this matter. Both South Australia
and Western Australia have similar legislation, with similar
limitations.(4)
The Bill became law in the Northern Territory in November
2004.
In 30 September 2004, the Commonwealth Minister for Environment
and Heritage, Senator Ian Campbell
commented with respect to the Prime Minister s announcement
regarding the co-located facility:
The only options that we're pursuing are on
offshore islands. I think the reality of this is that there's no
one on the mainland who particularly wants a nuclear waste dump in
their backyard, and that is why we're pursuing the practical option
of going to an offshore island, so the Northern Territorians can
take that as an absolute categorical assurance.(5)
However, in July 2005, the Commonwealth Minister for Education,
Science and Training
announced three potential sites, all in the Northern Territory.
He stated:
A comprehensive analysis of Commonwealth offshore
and onshore land took into account issues such as compatibility
with current land use, safety of people and the environment,
security of radioactive waste and operational considerations such
as adequacy of transport infrastructure. As a consequence of this
analysis, no offshore sites were considered sufficiently
appropriate to warrant further on-site
investigation.(6)
These potential sites are Commonwealth Defence Department
properties at Mount Everard, Harts Range and Fishers Ridge. The
first two are near Alice Springs, with Fishers Ridge near
Katherine. The three potential sites are listed in Schedule
1 of the Bill. A map showing their location is included in
the July 2005 announcement by Minister for Education, Science and
Training mentioned above.
Since all three of the possible sites for the facility are
Commonwealth land, the Commonwealth has the ability under section
52(i) of the Constitution to legislate with respect to the sites
and authorise activities on them, and in relation to them,
including legislating to exclude the application of Northern
Territory law. Under the principles of section 122 of the
Constitution (the Territories power), any Northern Territory law
that is inconsistent with, or repugnant to, Commonwealth
legislation has no effect : Attorney-General
(Northern-Territory) v Hand 25 FCR 345 at 367.
There are a range of other constitutional powers that may serve
to support those parts of the Bill that authorise activities
outside of the sites and the Northern Territory. For example, the
external affairs power (section 51(xxix) could be relevant by
virtue of Australia being a party to the
1997 Convention on the Safety of Radioactive Waste
Management. By expediting the development of the proposed
facility, the Bill could be said to support the broad objectives of
the Convention. The implied nationhood power could also be relevant
to support legislation that essentially seeks to allow the
Commonwealth to safely store waste generated by its agencies.
If the Commonwealth has the constitutional ability to legislate
on a subject, it also has the power to explicitly exclude or limit
the operation of State or Territory law with respect to matters
dealt with by the legislation. For example, section 83 of the
Australian Radiation Protection and Nuclear Safety Act
1999 provides that:
If a law of a State or Territory, or one or more
provisions of such a law, is prescribed by the regulations, that
law or provision does not apply in relation to the following:
(a) an activity of a controlled person in relation
to a controlled apparatus or a controlled material;
(b) an activity of a controlled person in relation
to a controlled facility.
New section 3 contains a number of definitions,
including those of Commonwealth contractor and subcontractor . The
effect of these two definitions, combined with new sections
4 and 12, is that persons and companies
with very remote legal contractual connections to the Commonwealth
will potentially be exempted from State and Territory law when
undertaking work connected to the proposed facility.
New section 4 provides the Commonwealth or a
person working on behalf of the Commonwealth (including contractors
and subcontractors) with the legislative authority to do anything
in the Northern Territory necessary for or incidental to the
purposes of selecting one of the three sites listed in
Schedule 1 on which to construct and operate a
facility. New subsection 4(3) provides a
non-exhaustive list of the sort of activities which would fall into
this category. New subsection 4(4) places various
obligations on persons engaged in such activities outside of the
sites essentially to cause as little damage or inconvenience as
possible to the relevant land and occupiers.
New section 5 effectively excludes State and
Territory laws from operating where they would regulate, hinder or
prevent the doing of a thing authorised by section 4 . New
section 5(1) does state that only certain types of State
and Territory laws (eg laws relating to the uses or proposed use of
land or premises ) are excluded, but the range of laws mentioned is
so wide they are likely to give almost complete coverage. Indeed,
even if a State or Territory law fell outside the type listed in
new subsection 5(1), the law could excluded by
prescribing it under regulation: new
subsections 5(2)-(3). This prescribing power also
allows parts of laws, rather than the whole, to be excluded.
Conversely, new subsection 5(4) provides that the
regulations may prescribe a State or Territory law, or part of it,
such that it has effect despite anything in new
section 5. This allows the Commonwealth to limit the
exclusions discussed above if thought appropriate.
New subsection 6(1) provides that two
Commonwealth laws, the Aboriginal and Torres Strait Islander
Heritage Protection Act 1984 and the Environment Protection and
Biodiversity Conservation Act 1999, have no effect where they would
regulate, hinder or prevent the doing of a thing authorised by
section 4 . Again a prescription power under regulation exists
(subsection 6(2)) to allow for the exclusion of
other Commonwealth laws, or parts of laws.
Part 3 allows the relevant Minister to acquire
and/or extinguish various rights and interests both in the site
finally selected for the facility or other land in the Northern
Territory where this is required for providing all-weather road
access to that site.
In making decisions under new section 7 as to
which of the sites in Schedule 1 will be the
location of the facility, and whether land will be required for
road access, the Minister need not accord any person procedural
fairness: new section 8. The decisions, in the
form of declarations, must be published in the Gazette
within 7 days, although a failure to do so does not invalidate the
legal effect of any declaration: new subsections
7(3)-(4). Declarations are not legislative instruments
(new subsection 7(7)) and thus are not
disallowable by Parliament. Also, due to the Commonwealth
Radioactive Waste Management (Related Amendment) Bill 2005, any
declaration under new section 7 is not subject to
judicial review under the Administrative Decisions (Judicial
Review) Act 1977.
All existing rights and interests of the selected site are
automatically acquired or extinguished by the Commonwealth in the
relevant declaration, whereas only those specified in any
declaration regarding land for road access are so. In both cases,
such rights may include mineral rights and native title rights and
interests. The acquisition and/or extinguishment of rights and
interests under new section 9 has effect despite
any other law of the Commonwealth or the Northern Territory,
including the Lands Acquisition Act 1989 and the
Native Title Act 1993: new section 10. As
the Explanatory Memorandum notes, this means that
it is not necessary for the Commonwealth to comply
with any and all provisions of those Acts relating to preliminary
processes for the acquisition or extinguishment of rights and
interests in relation to land.
Part 4 is broadly similar to Part
2 except that it deals with activities once the final site
has been selected, and with limited exceptions applies to
activities Australia-wide, rather than just those in the Northern
Territory.
New section 12 provides the Commonwealth or a
person working on behalf of the Commonwealth with the legislative
authority to do anything necessary for or incidental to the various
things listed new subsection 12(2). These range
from gathering information necessary for the Commonwealth licensing
of the facility, building access roads, constructing, operating
including transport radioactive waste to and from the site - and
decommissioning the facility.(7) As noted above, with
the exception of road construction and grading, new section
12 authorises these activities taking place anywhere in
Australia.
New section 13 effectively excludes State and
Territory laws from operating where they would regulate, hinder or
prevent the doing of a thing authorised by section 12 . New
sections 13(1)-(2) do state that only certain types of
State and Territory laws (eg laws relating to the uses or proposed
use of land or premises ) are excluded, but again the range is so
wide they are likely to give almost complete coverage. Even if a
State or Territory law fell outside the types listed in
new subsections 13(1)-(2), the
law could excluded by prescribing it under regulation: new
subsections 13(3)-(4). This prescribing power also allows
parts of laws, rather than the whole, to be excluded. New
subsection 13(5) provides that the regulations may
prescribe a State or Territory law, or part of it, such that it
has effect despite anything in new section
13. This allows the Commonwealth to limit the exclusions
discussed above if thought appropriate.
New subsection 14(1) provides that the
Commonwealth may prescribe by regulation a Commonwealth law, or
part of it, so that it has no effect to the extent it would
otherwise regulate, hinder or prevent the doing of a thing
authorised by section 12 . However subsection
14(2) provides that the following laws cannot be
prescribed:
-
the Australian Radiation Protection and
Nuclear Safety Act 1998;
-
the Environment Protection and Biodiversity Conservation Act
1999;
-
the Nuclear Non-Proliferation (Safeguards) Act
1987.
New sections 15 and 16 contain
some standard provisions on compensation. New section
15 provides for reasonable compensation to be payable to a
person whose right or interest has been acquired, extinguished or
otherwise affected under new section 9.
New section 16 provides that, if the effect of the
Bill (once in operation) would result in Constitutional acquisition
of property from a person otherwise than on just terms , again
reasonable compensation must be paid. In both cases, if the
Commonwealth and the person claiming compensation do not agree on
the amount, the person to whom the compensation is payable may
institute proceedings in the Federal Court to determine, and
recover, the amount payable.
New section 17 is a standard regulation-making
power.
This lists the three possible sites for the Facility: Mt
Everard, Harts Range and Fishers Ridge.
Concluding Comments
The Bill is designed strengthen the
Commonwealth s legal ability to develop and operate the proposed
Commonwealth radioactive waste management facility in the Northern
Territory.
It explicitly overrides the operation of both Territory and
State laws that regulate, hinder or prevent the facility s
development and operation, although the Bill retains the
flexibility to permit the operation of any Territory or State laws
if the Commonwealth considers this appropriate. The Bill also
overrides the application of various Commonwealth laws that might
present some procedural delays in progressing the facility. The
construction and operation of the facility would however still be
subject to the usual approval and licensing provisions of the
Australian Radiation Protection and Nuclear Safety Act
1998 and the Environment Protection and Biodiversity
Conservation Act 1999.
The Bill makes it clear that the Governments decision on the
preferred site is not disallowable by Parliament, is not reviewable
under the Administrative Decisions (Judicial Review) Act
1977, and the Government owes no legal obligation of
procedural fairness towards anybody affected by the decision.
It would be helpful if the Government could clarify whether
property owners or occupiers whose property or business might
suffer a reduction in value from having the facility located
alongside or nearby would be eligible for compensation under the
injurious affection principle or something comparable. Injurious
affectation' occurs where there is a reduction in value of a person
s remaining property where part of the land is acquired and the
reduction is caused due to the purpose of the acquisition
rather than the mere act of acquisition. Certainly if any rights or
interests are extinguished or acquired by the Commonwealth in
selecting the final site and any land required for providing
all-weather road access, then compensation is payable in the usual
manner for the land acquired. However, in the case of Fishers
Ridge, the possible site apparently lies within a cattle property,
and the occupiers are reportedly concerned that their stock might
become less attractive to the export trade if the facility is
located there.(8) Unlike some State compulsory
acquisition legislation, the Commonwealth Land Acquisition Act
1989 says nothing about injurious affection and thus its
application is uncertain: see Douglas Brown, Land
Acquisition, LexisNexis Butterworths, 2004 pp. 168-172.
Endnotes
-
As opposed to dispose.
-
The Hon John Howard, Radioactive Waste Management,
Media release, 14 July 2004.
-
Section 5 of the Bill provided that a provision of this Act
relating to the transport, storage or disposal of nuclear waste
does not have any effect to the extent it is inconsistent with a
law of the Commonwealth but the provision must not be taken to be
inconsistent with that law if it can be complied with without
contravention of that law .
-
Ms Scrymgour, Northern Territory Legislative Assembly Hansard
Debates, 18 August 2004.
-
Election 2004: ALP candidate for Solomon sceptical about
Minister s promise not to build nuclear waste dump in Northern
Territory , PM, 30 September 2004.
-
The Hon Brendan Nelson, Responsible management of
radioactive waste in Australia, Media
Release, 15 July 2005.
-
New subsection 12(3) also enables any activity
mentioned in new subsection 4(3), but done once
the site has been selected, to come within the legislative
authority granted by new section 12.
-
Graziers in the dumps about nuclear waste site ,
Australian, 1 October 2005, p. 10.
Angus Martyn
28 October 2005
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 2005
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Published by the Parliamentary Library, 2005.
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