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Appendix B - National Radioactive Waste Management Bill 2010 and Explanatory Memorandum

National Radioactive Waste Management Bill 2010 No. , 2010

(Resources, Energy and Tourism)

A Bill for an Act to make provision in relation tothe selection of a site for, and the establishment and operation of, a radioactive waste management facility, and for related purposes

Contents

Part 1—Preliminary

Short title
Commencement
Object of Act
Definitions

Part 2—Nomination of sites

Division 1—Nomination by a Land Council
Nomination by a Land Council

Division 2—General nominations
Minister may declare that nominations can be made under
section 7
Nominations of potential sites
Rules about nominations

Division 3—Approval of nominated land
Approval of nominated land

Division 4—Procedural fairness in relation to Minister's
declarations and approvals
10 Procedural fairness in relation to Minister's declarations and
approvals

Part 3—Selecting the site for a facility

Authority to conduct activities
Application of State and Territory laws
Application of Commonwealth laws

Part 4—Acquisition or extinguishment of rights and interests

Division 1—Minister may declare a site as the site for a facility
Minister's declaration of land as selected site or required for
road access
Formalities relating to Minister's declarations
When Minister's declarations take effect etc
Revocation of Minister's declaration

Division 2—Procedural fairness
Procedural fairness in relation to Minister's declarations

Division 3—Acquisition or extinguishment
Acquisition or extinguishment
Application of Commonwealth and State or Territory laws
Notice to Registrar-General or other appropriate officer

Division 4—Regional consultative committee
Regional consultative committee

Part 5—Conducting activities in relation to selected site


Authority to conduct activities
Application of State and Territory laws 26
Application of Commonwealth laws 27

Part 6—Granting of rights and interests in land to original
owners


Application of Part
Declaration of intention to grant rights and interests in land
to original owners
Declaration granting rights and interests in land to original
owners
Grant of rights and interests in land to original owners
No earlier rights and interests granted
Application of Commonwealth, State and Territory laws
Notice to Registrar-General
Indemnity by Commonwealth
Regulations

Part 7—Miscellaneous

Compensation
Compensation for acquisition of property
Indemnity by Commonwealth and management of Northern
Territory controlled material for section 5 nominations
Severability—additional effect of Act
Regulations
Schedule(s)

Schedule 1—Repeal and consequential amendments

Part 1—Repeal of the Commonwealth Radioactive Waste
Management Act 2005

Part 2—Consequential amendment
Administrative Decisions (Judicial Review) Act 1977

Schedule 2—Transitional provisions

A Bill for an Act to make provision in relation to
the selection of a site for, and the establishment and
operation of, a radioactive waste management
facility, and for related purposes
The Parliament of Australia enacts:

Part 1—Preliminary

1 Short title

This Act may be cited as the National Radioactive Waste
Management Act 2010
.

2 Commencement

This Act commences on the day this Act receives the Royal
Assent,

3 Object of Act

The object of this Act is to provide for:

(a) the selection of a site for a radioactive waste management
facility on voluntarily nominated land in Australia; and

(b) the establishment and operation of such a facility on the
selected site;

to ensure that radioactive waste generated, possessed or controlled
by the Commonwealth or a Commonwealth entity is safely and
securely managed.

4 Definitions

In this Act:

Aboriginal land means Aboriginal land within the meaning of the
Aboriginal Land Rights (Northern Territory) Act 1976.

Commonwealth contractor means:

(a) a person who is a party to a contract with the Commonwealth
or a Commonwealth entity; or

(b) a person who is a subcontractor for a contract with the
Commonwealth or a Commonwealth entity.
Commonwealth entity means:
(a) a body corporate established for a public purpose by or under
an Act; or

(b) a company in which a controlling interest is held by any one
of the following persons, or any 2 or more of the following
persons together:

(i) the Commonwealth;

(ii) a body covered by paragraph (a).
controlled material means controlled material within the meaning
of the Australian Radiation Protection and Nuclear Safety Act
1998
, but does not include high level radioactive material or spent
nuclear fuel.

facility means a facility for the management of controlled material
generated, possessed or controlled by the Commonwealth or a
Commonwealth entity.

general nomination start time means the time at which a
declaration under section 6 takes effect.

high level radioactive material means material which has a
thermal energy output of at least 2 kilowatts per cubic metre.

Land Council means a Land Council within the meaning of the
Aboriginal Land Rights (Northern Territory) Act 1976.

Land Trust means a Land Trust within the meaning of the
Aboriginal Land Rights (Northern Territory) Act 1976.

nominator of land means the following:

(a) a Land Council that nominated the land as a potential site
under subsection 5(1);

(b) a person who nominated the land as a potential site under
subsection 7(2) or (3).
selected site means the site, or the specified part of a site, in
relation to which a declaration by the Minister under subsection
14(2) is in effect.

site means a site approved by the Minister under section 9.

spent nuclear fuel
means material that:

(a) is or was capable of producing energy by a self-sustaining
chain process of nuclear fission; and

(b) has been irradiated in, and permanently removed from, a
nuclear reactor (which is a structure containing material to
which paragraph (a) applies in such an arrangement that a
self-sustaining chain process of nuclear fission can occur in
the structure without an additional source of neutrons).
statutory authority, in relation to the Crown in right of the
Commonwealth, a State or a Territory, means any authority or
body (including a corporation sole) established by a law of the
Commonwealth, the State or Territory other than a general law
allowing incorporation as a company or body corporate.

subcontractor, for a contract, means a person who is a party to:

(a) a contract with a Commonwealth contractor (within the
meaning of paragraph (a) of the definition of Commonwealth
contractor
); or

(b) a contract with another subcontractor (under a previous
application of this definition).
traditional Aboriginal owners means traditional Aboriginal
owners within the meaning of the Aboriginal Land Rights
(Northern Territory) Act 1976
.

Part 2—Nomination of sites

Division 1-—Nomination by a Land Council

5 Nomination by a Land Council


(1) A Land Council may, before the general nomination start time,
nominate Aboriginal land in the area of the Land Council as a
potential site.

Note: After the general nomination start time, certain persons may nominate
land in a State or Territory as a potential site—see Division 2 of this
Part.

(2) A nomination must:

(a) be in writing; and

(b) be made to the Minister; and

(c) specify the land nominated by reference to portion number (if
any), survey points (if available) and geographical
coordinates; and

(d) contain evidence of all interests in the land; and

(e) if there is a sacred site within the meaning of the Aboriginal
Land Rights
(Northern Territory) Act 1976 on or near the
land—contain evidence that the persons for whom the site is
sacred or is otherwise of significance are satisfied that there
is no substantial risk of damage to or interference with the
sacred site as a result of the nomination or subsequent action
under this Act; and

(f) contain evidence that:
(i) the Land Council has consulted with the traditional
Aboriginal owners of the land; and

(ii) the traditional Aboriginal owners understand the nature
and effect of the proposed nomination and the things
that might be done on or in relation to the land under
this Act if the Minister approves the nomination; and

(iii) the traditional Aboriginal owners as a group have
consented to the proposed nomination being made (that
consent as a group being determined in accordance with
section 77A of the Aboriginal Land Rights (Northern
Territory) Act 1976)
; and

(iv) any Aboriginal community or group that may be
affected by the proposed nomination has been consulted
and has had adequate opportunity to express its view to
the Land Council.
(3) The Minister may request further information from the Land
Council.

(4) Failure to comply with subsection (2) does not invalidate a
nomination.

(5) A nomination is not a legislative instrument.

Division 2—Genera! nominations

6 Minister may declare that nominations can be made under
section 7


(1) The Minister may make a declaration in writing that nominations
of potential sites may be made under section 7.

Note: After a declaration is made:
a) a nomination cannot be made under section 5 (see subsection
5(1)); and

(b) the Minister must not approve land nominated under section 5, or
declare land so nominated to be the selected site for a facility
(see subsections 9(2) and 14(3)).
(2) In deciding whether to make a declaration, the Minister must have
regard to whether it is unlikely that a facility will be able to be
constructed and operated on Aboriginal land that has been
nominated as a potential site under section 5 (whether or not that
land has been approved as a site under section 9).

(3) A declaration takes effect at the time specified in the declaration,
which must not be earlier than the time the declaration is made.

Gazettewithin 7
days of the declaration being made.

(5) Failure to comply with subsection (4) does not invalidate a
declaration.

(6) A declaration is not a legislative instrument.

7 Nominations of potential sites

Nominations may be made

(1) If a declaration under section 6 is in effect, a person or persons
may, in accordance with this section, nominate land in a State, the
Australian Capital Territory or the Northern Territory as a potential
site.

Nominations by holders of certain interests in land


(2) A person may nominate land under this subsection as a potential
site if:
(a) the person holds an interest in the land; and

(b) the interest is:
(i) an estate in fee simple; or

(ii) a lease of land granted by or on behalf of the Crown, a
Minister of the Crown, a statutory authority or any other
prescribed person, under a law of the Commonwealth, a
State or a Territory; and
(c) the person does not hold the interest as a joint tenant or a
tenant in common.
(3) The persons who, as joint tenants or tenants in common, hold one
of the following interests in land may jointly nominate the land
under this subsection as a potential site:
(a) an estate in fee simple;

(b) a lease of the land granted by or on behalf of the Crown, a
Minister of the Crown, a statutory authority or any other
prescribed person, under a law of the Commonwealth, a State
or a Territory.
Nominations where native title exists

(4) A person may nominate land under this subsection as a potential
site if:
(a) an approved determination of native title covers an area
containing the land; and

(b) the approved determination of native title determines that:
(i) native title exists in relation to the land; and

(ii) the native title rights and interests confer possession,
occupation, use and enjoyment of the land on the native
title holders to the exclusion of all others; and
(c) one of the following applies:
(i) in the case of an approved determination of native title
by the Federal Court—the person is a prescribed body
corporate that holds the native title rights and interests
concerned on trust, or is an agent prescribed body
corporate in relation to the native title rights and
interests concerned;

(ii) in the case of an approved determination of native title
by a recognised State/Territory body—the person is a
body corporate that holds the native title rights and
interests concerned on trust, or that is determined in
relation to the native title under a provision of a law of
the State or Territory concerned that corresponds to
section 57 of the Native Title Act 1993.
(5) In this section:

agent prescribed body corporate has the same meaning as in the
Native Title Act 1993.

approved determination of native title has the same meaning as in
the Native Title Act 1993.

prescribed body corporate
has the same meaning as in the Native
Title Act 1993
.

recognised State/Territory body has the same meaning as in the
Native Title Act 1993.

8 Rules about nominations

(1) A nomination made under section 7 must:
(a) be in writing; and

(b) be made to the Minister; and

(c) specify the land nominated in accordance with
subsection (2); and

(d) in t he case of a nomination under subsection 7(2) or ( 3 )—
contain evidence that the interest in the land held by the
nominator or nominators of the land is an interest referred to
in subparagraph 7(2)(b)(i) or (ii) or subsection 7(3); and

(e) in the case of a nomination under subsection 7(4)—contain
evidence of the matters specified in that subsection; and

(f) contain such other evidence (if any) as is prescribed by the
regulations, including, but not limited to, the following:
(i) evidence that one or more specified groups of persons
have been consulted in relation to the nomination;

(ii) evidence that one or more specified groups of persons
are satisfied of specified matters in relation to the
nomination;

(iii) evidence that one or more specified groups of persons
have consented to the making of the nomination.
(2) For the purposes of paragraph ( l ) ( c ) , land must be specified by
reference to:
(a) survey points (if available); and

(b) geographical coordinates; and

(c) whichever of the following is appropriate:
(i) portion number;

(ii) district, division, section and block;

(iii) certificate of title;

(iv) plan and lot number;

(v) volume and folio number;

(vi) lot on plan;

(vii) title identifier;

(viii) parcel identifier;

(ix) deposited plan;

(x) title diagram;

(xi) registered plan;

(xii) a descriptor of a kind similar to a descriptor referred to
in this paragraph.
(3) The Minister may request further information from a nominator of
the land.

(4) Failure to comply with subsection (1) does not invalidate a
nomination made under section 7.

(5) A nomination made under section 7 is not a legislative instrument.

Division 3—Approval of nominated land

9 Approval of nominated land

(1) Subject to subsection 10(6), the Minister may, in his or her
absolute discretion, approve in writing land, or a specified part of
land, nominated as a site under section 5 or 7.

(2) Despite subsection (1), the Minister must not, after the general
nomination start time, approve land nominated as a site under
section 5.

(3) The Minister does not have a duty to consider a nomination.

(4) An approval takes effect at the time specified in the approval,
which must not be earlier than the time the approval is made.

(5) A copy of an approval must be published in the Gazette within 7
days of the approval being made.

(6) Failure to comply with subsection (5) of this section, or subsection
5(2), 6(4) or 8(1), does not invalidate an approval.

(7) An approval is not a legislative instrument.


Division 4—Procedural fairness in relation to Minister's
declarations and approvals

10 Procedural fairness in relation to Minister's declarations and
approvals

Declaration under section 6

(1) Before the Minister decides to make a declaration under section 6,
the Minister must:

(a) give a notice in writing to each Land Council; and

(b) publish a notice:
(i) in the Gazette; and

(ii) in a daily newspaper that circulates generally in each
State, the Australian Capital Territory and the Northern
Territory.
(2) A notice under paragraph (l)(a) or (b) must:
(a) state that the Minister proposes to make a declaration under
section 6; and

(b) invite comments on the proposed declaration; and

(c) specify the address to which comments may be sent; and

(d) specify the date by which comments must be received, which
must be at least 60 days after the notice is given or published.
(3) In deciding whether to make a declaration under section 6, the
Minister must take into account any relevant comments in response
to an invitation referred to in paragraph (2)(b).

Approval under section 9

(4) Before the Minister decides to approve land, or a specified part of
land, under section 9, the Minister must:
(a) give a notice in writing to each nominator of the land; and

(b) publish a notice:
(i) in the Gazette; and

(ii) in a daily newspaper that circulates generally in each
State, the Australian Capital Territory and the Northern
Territory; and

(iii) in a local newspaper (if any) circulating in the area in
which the land is situated.
(5) A notice under paragraph (4)(a) or (b) must:
(a) state that the Minister proposes to approve land, or a
specified part of land, under section 9; and

(b) if the notice is given under paragraph (4)(a)—invite each
nominator of the land to comment on the proposed approval;
and

(c) if the notice is published under paragraph (4)(b)—invite
persons with a right or interest in the land to comment on the
proposed approval; and

(d) specify the address to which comments may be sent; and

(e) specify the date by which comments must be received, which
must be at least 60 days after the notice is given or published.
(6) In deciding whether to approve land, or a specified part of land,
under section 9, the Minister must take into account any relevant
comments given to the Minister, by a nominator of the land, or a
person with a right or interest in the land, in response to an
invitation referred to in paragraph (5)(b) or (c).

Exhaustive statement

(7) This section is taken to be an exhaustive statement of the
requirements of the natural justice hearing rule in relation to:
(a) the Minister's decision whether to make a declaration under
section 6; and

(b) the Minister's decision whether to approve land, or a
specified part of land, under section 9.
Part 3—Selecting the site for a facility

11 Authority to conduct activities


(1) This section applies to:
(a) the Commonwealth; and

(b) a Commonwealth entity; and

(c) a Commonwealth contractor; and

(d) an employee or agent of a person mentioned in paragraph (a),
(b) or (c).
(2) A person to whom this section applies may, in a State or Territory,
do anything necessary for or incidental to the purposes of selecting
a site on which to construct and operate a facility.

(3) Without limiting subsection (2), the person may do any or all of the
following under that subsection (whether or not on a site):
(a) gain access to and enter land and drive vehicles or fly aircraft
to and from it;

(b) in order to drive vehicles to and from land—use existing
roads or construct roads on, or grade, land;

(c) construct or rehabilitate bores;

(d) operate drilling equipment;

(e) extract water;

(f) collect samples of flora and fauna;

(g) place monitoring equipment (including meteorological and
hydrological measuring equipment);

(h) build structures to protect bores, monitoring equipment or
other things;

(i) move or extract sand, gravel, soil, mineral and rock samples;

(j) conduct seismic or geological investigations;

(k) conduct archaeological or heritage investigations;

(1) clear vegetation.
(4) A person doing a thing under this Part must:
(a) take all reasonable steps to ensure that the doing of the thing
causes as little detriment and inconvenience, and does as
little damage, as is practicable to the land and to anything on,
or growing or living on, the land; and

(b) remain on the land only for such period as is reasonably
necessary; and

(c) leave the land, as nearly as practicable, in the condition in
which it was immediately before the thing was done.
12 Application of State and Territory laws

(1) A law, or a provision of a law, of a State or Territory (whether
written or unwritten), so far as it relates to:
(a) the use or proposed use of land or premises; or

(b) the environmental consequences of the use of land or
premises; or

(c) the archaeological or heritage values of land, premises or
objects (including the significance of land, premises or
objects in the traditions of Indigenous people); or

(d) controlled material, radioactive material or dangerous goods;
or

(e) licensing (however described) in relation to:

(i) employment; or

(ii) carrying on a particular kind of business or undertaking;
or

(iii) conducting a particular kind of operation or activity;
has no effect to the extent that it would, apart from this section,
regulate, hinder or prevent the doing of a thing authorised by
section 11.

(2) The regulations may prescribe a law, or a provision of a law, of a
State or Territory for the purposes of this subsection. The
prescribed law or provision has no effect to the extent that it
would, apart from this subsection, regulate, hinder or prevent the
doing of a thing authorised by section 11.

(3) Regulations made for the purposes of subsection (2) may prescribe
a law, or a provision of a law, whether or not it is a law or a
provision of a kind described in subsection (1).

(4) The regulations may prescribe a law, or a provision of a law, of a
State or Territory for the purposes of this subsection. The
prescribed law or provision has effect despite anything else in this
section.

13 Application of Commonwealth laws

(1) The following laws have no effect to the extent that they would,
apart from this section, regulate, hinder or prevent the doing of a
thing authorised by section 11:
(a) the Aboriginal and Torres Strait Islander Heritage
Protection Act 1984
;

(b) the Environment Protection and Biodiversity Conservation
Act 1999
.
(2) The regulations may prescribe another law, or a provision of
another law, of the Commonwealth for the purposes of this
subsection. The prescribed law or provision has no effect to the
extent that it would, apart from this subsection, regulate, hinder or
prevent the doing of a thing authorised by section 11.

Part 4-—Acquisition or extinguishment of rights
and interests

Division 1—Minister may declare a site as the site for a
facility

14 Minister's declaration of land as selected site or required for
road access


(1) This section applies if:
(a) land has been nominated as a site under section 5 or 7; and

(b) the Minister has approved the nominated land, or a specified
part of the nominated land, as a site under section 9.
(2) Subject to section 18, the Minister may, in his or her absolute
discretion, declare in writing that the site approved by the Minister,
or a specified part of the site, is selected as the site for a facility.
The declaration may specify all or some of the rights or interests in
the selected site.

(3) Despite subsection (2), the Minister must not, after the general
nomination start time, make such a declaration in relation to land
nominated as a site under section 5.

(4) Subject to section 18, the Minister may, in his or her absolute
discretion, declare in writing that all or specified rights or interests
in land in a State or Territory specified in the declaration are
required for providing all-weather road access to the selected site.

(5) To avoid doubt, rights and interests specified in a declaration under
subsection (2) or (4) may include the following:
(a) rights to minerals (if any);

(b) native title rights and interests (if any);

(c) an interest in the land, being an interest that did not
previously exist;

(d) an easement in gross (if any).
(6) To avoid doubt, this section has effect subject to section 9 of the
Racial Discrimination Act 1975.

(7) A declaration under subsection (2) or (4) is not a legislative
instrument.

15 Formalities relating to Minister's declarations


(1) A copy of a declaration under subsection 14(2) or (4) must be
Gazettewithin 7 days of the declaration being
made.

(2) Failure to comply with subsection (1) of this section, or subsection
5(2), 6(4), 8(1) or 9(5), does not invalidate a declaration.

16 When Minister's declarations take effect etc.

(1) A declaration under subsection 14(2) or (4) takes effect at the time
specified in the declaration, which must not be earlier than the time
the declaration is made.

(2) The Minister may, subject to this section, make more than one
declaration under subsection 14(2) or (4), but only one declaration
under subsection 14(2) may be in effect at a particular time.

(3) If:
(a) a declaration under subsection 14(2) (the original
declaration
) is in effect at a particular time; and

(b) at that time, the Minister makes another such declaration (the
later declaration);
the Minister is taken, immediately before the time of effect
specified in the later declaration, to have revoked the original
declaration under section 17.

17 Revocation of Minister's declaration

(1) The Minister may, in his or her absolute discretion, revoke in
writing a declaration made under subsection 14(2).

(2) A revocation takes effect at the time specified in the revocation,
which must not be earlier than the t i m e the revocation is made.

(3) To avoid doubt, if a declaration made under subsection 14(2) is
revoked:
(a) the revocation does not affect the operation of section 19 in
relation to the land that was, immediately before the
revocation, the selected site; and

(b) on and from the revocation, Part 5 does not apply to that
land.
(4) Section 18 does not apply to a revocation under this section.

(5) A copy of a revocation must be published in the Gazette within 7
days of the revocation.

(6) Failure to comply with subsection (5) does not invalidate a
revocation.

(7) Subsection 33(3) of the Acts Interpretation Act 1901 does not
apply to a revocation.

Division 2—Procedural fairness

18 Procedural fairness in relation to Minister's declarations


(1) Before the Minister decides to make a declaration under section 14
in relation to land, the Minister must:
(a) give a notice in writing to each nominator of the land; and

(b) publish a notice:
(i) in the Gazette; and

(ii) in a daily newspaper that circulates generally in each

State, the Australian Capital Territory and the Northern
Territory; and

(iii) in a local newspaper (if any) circulating in the area in
which the land is situated.
(2) A notice under paragraph (l)(a) or (b) must:
(a) state that the Minister proposes to make a declaration under
subsection 14(2) or (4); and

(b) set out details of the proposed declaration; and

(c) if the notice is given under paragraph (l)(a)—invite each
is nominator of the land to comment on the proposed
declaration; and

(d) if the notice is published under paragraph (l)(b)—invite
persons with a right or interest in the land to comment on the
proposed declaration; and

(e) specify the address to which comments may be sent; and

(f) specify the date by which comments must be received, which
must be at least 60 days after the notice is given or published.
(3) In deciding whether to make a declaration under section 14, the
Minister must take into account any relevant comments given to
the Minister, by a nominator of the land, or a person with a right or
interest in the land, in response to an invitation referred to in
paragraph (2)(c) or (d).

(4) A reference in this section to each nominator of the land, in
relation to a declaration under subsection 14(4) that rights or
interests in land are required for providing all-weather road access
to the selected site, is a reference to each person who nominated
the selected site under section 5 or 7.

Exhaustive statement

(5) This section is taken to be an exhaustive statement of the
requirements of the natural justice hearing rule in relation to the
Minister's decision whether to make a declaration under
section 14.

Division 3—Acquisition or extinguishment

19 Acquisition or extinguishment


(1) At the time a declaration under subsection 14(2) takes effect, any
rights or interests in the selected site that are specified in the
declaration are, by force of this section:
(a) acquired by the Commonwealth or extinguished; and

(b) freed and discharged from all other rights and interests and
from all trusts, restrictions, dedications, reservations,
obligations, mortgages, encumbrances, contracts, licences,
charges and rates.
(2) At the time a declaration under subsection 14(4) takes effect, the
rights or interests in the specified land that are specified in the
declaration are, by force of this section:
(a) acquired by the Commonwealth or extinguished; and

(b) freed and discharged from all other rights and interests and
from all trusts, restrictions, dedications, reservations,
obligations, mortgages, encumbrances, contracts, licences,
charges and rates.
20 Application of Commonwealth and State or Territory laws

(1) Section 19 has effect despite any other law of the Commonwealth,
a State or a Territory (whether written or unwritten).

(2) Without limiting subsection (1), section 19 has effect despite the
following laws of the Commonwealth:
(a) the Lands Acquisition Act 1989;

(b) the Native Title Act 1993.
21 Notice to Registrar-General or other appropriate officer

(1) The Secretary of the Department may lodge with the
Registrar-General, the Registrar of Titles or other appropriate
officer of a State or Territory a copy of a Minister's declaration
under section 14, certified by writing signed by the Secretary.

(2) The officer with whom the copy is lodged may deal with and give
effect to it as if it were a grant, conveyance, memorandum or
instrument of transfer of relevant rights and interests done under
the laws of the State or Territory.

Division 4—Regional consultative committee

22 Regional consultative committee


(1) Immediately after a declaration under subsection 14(2) takes effect,
the Minister must, by writing, establish a committee to be known
as the regional consultative committee.

Note: For variation and revocation, see subsection 33(3) of the Acts
Interpretation Act 1901
.


(2) The functions of the committee are:
(a) to facilitate communication between the Commonwealth, the
operator of the facility (if any) at the selected site and persons
living in or near the region where the selected site is situated;
and

(b) such other functions as are prescribed under paragraph (4)(a).
(3) An instrument made under subsection (1) is not a legislative
instrument.

(4) The regulations may prescribe matters relating to the committee,
including, but not limited to, the following:
(a) the functions of the committee;

(b) the operation and procedures of the committee;

(c) membership of the committee;

(d) term of appointment of members;

(e) remuneration of members;

(f) resignation of members;

(g) disclosure of interests by members;

(h) termination of appointment of members;

(i) leave of absence of members.
(5) If no regulations are in force under subsection (4), the committee
may operate in the way determined in writing by the committee.

Part 5—-Conducting activities in relation to selected
site


23 Authority to conduct activities


(1) This section applies to:
(a) the Commonwealth; and

(b) a Commonwealth entity; and

(c) a Commonwealth contractor; and

(d) an employee or agent of a person mentioned in paragraph (a),
(b) or (c).
(2) A person to whom this section applies may, in relation to the
selected site, do anything necessary for or incidental to any or all
of the following:
(a) gathering or preparing information for a Commonwealth
is regulatory scheme that relates to:
(i) the construction or operation of a facility; or

(ii) anything done in preparation for the construction or
operation of a facility;
(b) conducting activities that relate to gathering or preparing
information for such a regulatory scheme;

(c) preparing the selected site for a facility;

(d) preparing to construct and operate a facility;

(e) constructing a facility;

(f) constructing roads on, or grading, land in a State or Territory;

(g) erecting fences and other access controls on land specified in
the declaration under subsection 14(4);

(h) operating a facility;

(i) maintaining a facility;

(j) keeping a facility safe;

(k) decommissioning a facility.
(3) Without limiting subsection (2), the person may, under that
subsection, do a thing mentioned in subsection 11(3) in relation to
the selected site.

(4) Subsection (2) extends to doing things outside the selected site.

(5) A person to whom this section applies may, in relation to the
selected site:

(a) transport (including through a State or Territory) people and
materials (including controlled material) to or from a facility;
and

(b) use transport infrastructure for that transport.
24 Application of State and Territory laws

(1) A law, or a provision of a law, of a State or Territory (whether
written or unwritten), so far as it relates to:
(a) the use or proposed use of land or premises; or

(b) the environmental consequences of the use of land or
premises; or

(c) the archaeological or heritage values of land, premises or
objects (including the significance of land, premises or
objects in the traditions of Indigenous people); or

(d) controlled material, radioactive material or dangerous goods;
is or

(e) licensing (however described) in relation to:
(i) employment; or

(ii) carrying on a particular kind of business or undertaking;
or

(iii) conducting a particular kind of operation or activity;
has no effect to the extent that it would, apart from this section,
regulate, hinder or prevent the doing of a thing authorised by
section 23.
(2) A law, or a provision of a law, of a State or Territory (whether
written or unwritten), so far as it relates to the transport of
controlled material, radioactive material or dangerous goods, has
no effect to the extent that it would, apart from this section,
regulate, hinder or prevent transport authorised by section 23.

(3) The regulations may prescribe a law, or a provision of a law, of a
State or Territory for the purposes of this subsection. The
prescribed law or provision has no effect to the extent that it
would, apart from this subsection, regulate, hinder or prevent the
doing of a thing authorised by section 23.

(4) Regulations made for the purposes of subsection (3) may prescribe
a law, or a provision of a law, whether or not it is a law or a
provision of a kind described in subsection (1) or (2).

(5) The regulations may prescribe a law, or a provision of a law, of a
State or Territory for the purposes of this subsection. The
prescribed law or provision has effect despite anything else in this
section.

25 Application of Commonwealth laws

(1) The regulations may prescribe a law, or a provision of a law, of the
Commonwealth for the purposes of this subsection. The prescriben law or provision has no effect to the extent that it would, apart
from this subsection, regulate, hinder or prevent the doing of a
thing authorised by section 23.

(2) The regulations must not prescribe any of the following laws, or
any provision of the following laws:
(a) the Australian Radiation Protection and Nuclear Safety Act
1998
;

(b) the Environment Protection and Biodiversity Conservation
Act 1999
;

(c) the Nuclear Non-Proliferation (Safeguards) Act 1987,
Part 6—Granting of rights and interests in land to
original owners

26 Application of Part


Declaration under subsection 14(2)

(1) This Part applies if:
(a) immediately before a declaration under subsection 14(2) took
effect, land that was the subject of the declaration was
Aboriginal land (the relevant land); and

(b) as a result of t he declaration, the Commonwealth acquired,
under section 19, an estate in fee simple in the relevant land;
and

(c) a facility on the relevant land has been abandoned in
accordance with the Australian Radiation Protection and
Nuclear Safety Act 1998
; and

(d) the Commonwealth holds an estate in fee simple in the
relevant land.

Declaration under subsection 14(4)
(2) This Part also applies if:
(a) immediately before a declaration under subsection 14(4) took
effect, all or part of the land that was the subject of the
declaration was Aboriginal land (the whole, or that part, of
the land being relevant land); and

(b) as a result of t he declaration, the Commonwealth acquired,
under section 19, rights or interests in t he relevant land; and

(c) the facility mentioned in paragraph (l)(c) has been
abandoned in accordance with the Australian Radiation
Protection and Nuclear Safety Act 1998
; and

(d) the Commonwealth holds all or some of those rights or
interests in the relevant land.
Part does not apply to nominations under section 7

(3) However, this Part does not apply to a declaration referred to in
subsection (1) or (2) if the declaration relates to land nominated
under section 7.

27 Declaration of intention to grant rights and interests in land to
original owners


(1) The Minister may, in his or her absolute discretion, declare in
writing that the land that was the subject of the declaration under
subsection 14(2) is no longer required for the facility mentioned in
paragraph 26(1 )(c).

(2) The declaration must:
(a) specify all the relevant land; and

(b) state that the Minister intends to make a declaration under
section 28 granting the rights and interests specified in
section 29 in specified land to a specified Land Trust.
(3) Land specified under paragraph (2)(b) may be all or part of the
relevant land, but all of the specified land must, in total, be all of
the relevant land.

(4) A Land Trust may be specified under paragraph (2)(b) in relation
to specified land only if:
(a) the Land Trust held title to the specified land immediately
before the declaration under subsection 14(2) or (4) (as the
case may be) took effect; or

(b) the Land Trust has succeeded to the functions of a Land Trust
mentioned in paragraph (a) of this subsection.
(5) Within 7 days of the declaration being made, the Minister must:
(a) publish a copy of the declaration in the Gazette; and

(b) notify a specified Land Trust in writing that the Minister
intends to make a declaration under section 28.
(6) A declaration is not valid unless:
(a) it specifies and states the matters mentioned in
subsection (2); and

(b) the Minister complies with subsection (5).
(7) A Land Trust specified in a declaration may consent in writing to
the granting of the rights and interests specified in section 29 in the
specified land.

(8) A declaration is not a legislative instrument.

28 Declaration granting rights and interests in land to original
owners

(1) The Minister must make a declaration in writing that an estate in
fee simple is granted in specified land to a specified Land Trust if:
(a) the Commonwealth holds an estate in fee simple in the
specified land; and

(b) the specified Land Trust has, under subsection 27(7),
consented to the granting of an estate in fee simple in the
specified land within:
(i) 12 months of the day on which the declaration under
section 27 was published in the Gazette; or

(ii) such longer period as is prescribed in the regulations.
(2) The Minister must make a declaration in writing that the rights and
interests specified in subsection 29(3) are granted in specified land
to a specified Land Trust if:
(a) the Commonwealth holds rights or interests (other than an
estate in fee simple) in the specified land; and

(b) the specified Land Trust has, under subsection 27(7),
consented to the granting of t h e rights and interests specified
in subsection 29(3) in the specified land within:
(i) 12 months of the day on which the declaration under
section 27 was published in the Gazette; or

(ii) such longer period as is prescribed in the regulations.
(3) A declaration takes effect at the t i m e specified in the declaration,
which must not be earlier than the time the declaration is made.

(4) A declaration is not a legislative instrument.

(5) The Minister may include one or more declarations under
subsections (1) and (2) in the same document.

29 Grant of rights and interests in land to original owners

Grant of estate in fee simple


(1) If the Minister makes a declaration under subsection 28(1), then at
the time the declaration takes effect:
(a) an estate in fee simple is granted, by force of this subsection,
in the specified land to the specified Land Trust; and

(b) the land is taken, for all purposes, to be Aboriginal land.
(2) The estate in fee simple is subject to the reservations that:
(a) the right to any minerals existing in their natural condition, or
in a deposit of waste material obtained from any underground
or surface working, on or below the surface of the land, being
minerals all interests in which are vested in the
Commonwealth, remains with the Commonwealth; and

(b) rights to explore for minerals, and leases or licences to mine
for minerals, on or below the surface of the land may be
granted under section 124 of the Lands Acquisition Act 1989.
Grant of other rights and interests

(3) If the Minister makes a declaration under subsection 28(2), then at
the time the declaration takes effect, any rights and interests:
(a) that are held by the Commonwealth in t he specified land; and

(b) that were acquired by the Commonwealth, under section 19,
in the specified land from the specified Land Trust or another
Land Trust;
are granted, by force of this subsection, in the specified land to the
specified Land Trust.

Validity of earlier rights, interests and actions

(4) The granting of rights and interests in land under subsection (1) or
(3) does not affect:
(a) the validity of any rights or interests acquired, created or
granted (whether under this Act or otherwise) in relation to
the land; or

(b) the validity of the construction, operation, maintenance,
decommissioning or abandoning of a facility on the land, or
the doing of any other thing in relation to the land;
before the declaration under section 28 takes effect.
30 No earlier rights and interests granted

To avoid doubt, the making of a declaration under section 28 does
not create or grant any rights or interests in land before the
declaration takes effect.

31 Application of Commonwealth, State and Territory laws


Section 29 has effect despite any other law of the Commonwealth,
a State or a Territory (whether written or unwritten).

32 Notice to Registrar-General

(1) The Secretary of the Department may lodge with the
Registrar-General for the Northern Territory (or other appropriate
officer) a copy of a Minister's declaration under section 28,
certified by writing signed by the Secretary.

(2) The officer with whom the copy is lodged may deal with and give
effect to it as if it were a grant, conveyance, memorandum or
instrument of transfer of relevant rights and interests done under
the laws of the Northern Territory.

33 Indemnity by Commonwealth

(1) The Commonwealth must indemnify each Land Trust specified in
a declaration under section 28, and keep the Land Trust
indemnified, against any action, claim or demand brought or made
against the Land Trust in respect of any liability arising from, or
damage caused by, ionising radiation from any act done or omitted
to be done by or on behalf of the Commonwealth in relation to the
transport of controlled material to or from, or the management of
controlled material at, a facility on the land specified in the declaration.

(2) The amount of the indemnity is reduced to the extent to which any
fault on the part of the Land Trust, or its employees, agents or
contractors, contributed to the liability or damage.

(3) Subsection (1) does not apply in relation to an action, claim or
demand unless:
(a) the Land Trust notifies the Commonwealth, in writing, of the
action, claim or demand as soon as practicable; and

(b) the Land Trust follows any directions of the Commonwealth
in relation to the action, claim or demand.
34 Regulations

The regulations may prescribe any modifications of this Act that
are necessary or convenient to deal with transitional matters arising
from the making of a declaration under section 27 or 28.

Part 7—-Miscellaneous

35 Compensation

(1) If rights or interests are acquired, extinguished or otherwise
affected under section 19, the Commonwealth is liable to pay a
reasonable amount of compensation to a person whose right or
interest has been acquired, extinguished or otherwise affected.

(2) If the Commonwealth and the person do not agree on the amount
of the compensation, the person may institute proceedings in the
Federal Court of Australia for the recovery from the
Commonwealth of such reasonable amount of compensation as the
court determines.

36 Compensation for acquisition of property

(1) If the operation of this Act would result in an acquisition of
is property from a person otherwise than on just terms, the

compensation to the person.

(2) If the Commonwealth and the person do not agree on the amount
of the compensation, the person may institute proceedings in the
Federal Court of Australia for the recovery from the
Commonwealth of such reasonable amount of compensation as the
court determines.

(3) In this section:

acquisition of property has the same meaning as in paragraph
51 (xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51 (xxxi) of the
Constitution.

37 Indemnity by Commonwealth and management of Northern
Territory controlled material for section 5 nominations

(1) This section applies if the selected site was nominated under
section 5.

Indemnity by Commonwealth

(2) The Commonwealth must indemnify the Northern Territory, and
keep the Northern Territory indemnified, against any action, claim
or demand brought or made against the Northern Territory in
respect of any liability arising from, or damage caused by, ionising
radiation from any act done or omitted to be done by or on behalf
of the Commonwealth in relation to the transport of controlled
material to or from, or the management of controlled material at, a
facility on the selected site.

(3) The amount of the indemnity is reduced to the extent to which any
fault on the part of the Northern Territory, or its employees, agents
or contractors, contributed to the liability or damage.

(4) Subsection (2) does not apply in relation to an action, claim or
demand unless:
(a) the Northern Territory notifies the Commonwealth, in
writing, of the action, claim or demand as soon as
practicable; and

(b) the Northern Territory follows any directions of the
Commonwealth in relation to the action, claim or demand.

Management of Northern Territory controlled material
(5) If controlled material that is generated by activities in the Northern
Territory is managed at a facility on the selected site, the
Commonwealth must not charge the Northern Territory for the
management.

38 Severability—additional effect of Act


Without limiting its effect apart from this section, this Act also has
the effect it would have if:
(a) each reference to a facility were expressly limited to a facility
within a Territory; and

(b) each reference to the doing of things, or things done, on or in
relation to land were expressly limited to a reference to the
doing of things, or things done, on or in relation to land
within a Territory.
39 Regulations

The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or
giving effect to this Act.
40 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect
according to its terms.

Schedule 1—Repeal and consequential
amendments


Part 1—Repeal of the Commonwealth Radioactive
Waste Management Act 2005


1 The whole of the Act
Repeal the Act.

Part 2—Consequential amendment
Administrative Decisions (Judicial Review) Act 1977

2 Paragraph (zc) of Schedule 1
Repeal the paragraph.

Schedule 2—Transitional provisions

1 Saving—nominations and approvals

(1) Despite the repeal of Part 1A of the Commonwealth Radioactive Waste
Management Act 2005
by item 1 of Schedule 1, a nomination under
section 3 A of the old radioactive waste law continues in force, after the
commencement time, as if it had been made under section 5 of the new
radioactive waste law.

(2) Despite the repeal of Part 1A of the Commonwealth Radioactive Waste
Management Act 2005
by item 1 of Schedule 1, an approval under
section 3C of the old radioactive waste law continues in force, after the
commencement time, as if it had been made under section 9 of the new
radioactive waste law.

(3) Section 3D of the old radioactive waste law, and the old ADJR Act,
continue to apply, after the commencement time, in relation to a
nomination or an approval continued in force by this item.

(4) Section 10 of the new radioactive waste law, and the new ADJR Act, do
not apply in relation to a nomination or an approval continued in force
by this item.

(5) To avoid doubt, section 18 of the new radioactive waste law, and the
new ADJR Act, apply in relation to a declaration under section 14 of the
new radioactive waste law that relates to an approval continued in force
by this item.

(6) In this item:

commencement time means the time at which item 1 of Schedule 1
commences.
new ADJR Act means the Administrative Decisions (Judicial Review)
Act 1977
as in force immediately after the commencement time.

new radioactive waste law means the National Radioactive Waste
Management Act 2010
as in force immediately after the commencement
time.

old ADJR Act means the Administrative Decisions (Judicial Review)
Act 1977
as in force immediately before the commencement time.

old radioactive waste law means the Commonwealth Radioactive Waste
Management Act 2005
as in force immediately before the
commencement time.

NATIONAL RADIOACTIVE WASTE MANAGEMENT BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Resources and Energy,
the Honourable Martin Ferguson AM, MP)

NATIONAL RADIOACTIVE WASTE MANAGEMENT BILL 2010

Outline

The purpose of the Bill is to establish a facility for managing at a single site, radioactive
waste currently stored at a host of locations across the country.

It will ensure the safe and responsible management of this waste arising from medical,
industrial and research uses of radioactive material in Australia.

The Bill ensures the Commonwealth's power to make arrangements for the safe and secure
management of radioactive waste generated, possessed or controlled by the
Commonwealth.

This legislative framework is based on volunteerism. No site can be considered as a
potential location for a radioactive waste management facility without the voluntary
nomination of that site and agreement of persons with relevant rights and interests.

The Bill repeals the Commonwealth Radioactive Waste Management Act 2005 and applies
a decision making process based on natural justice. Natural justice puts in place a code of
fair procedure. At its core is "the hearing rule"; a right to be heard by the Minister before a
decision is reached.

The Bill also reinstates the Administrative Decisions (Judicial Review) Act 1977. This will
allow a person aggrieved by a decision to apply for judicial review and ensure a higher
level of accountability for decisions.

A facility will not be established unless it meets environmental and regulatory approvals
under the Environment Protection and Biodiversity Conservation Act 1999, the Australian
Radiation Protection and Nuclear Safety Act 1998
and the Nuclear Non-Proliferation
(Safeguards) Act 1987
.

A regional consultative committee will also be established to communicate with local
communities during the environmental and regulatory approval process, construction and
operational stages of the project. This open and informed process will help raise awareness
through dialogue, address local concerns and ensure government transparency when
establishing a national radioactive waste management facility.

Part 1 - Preliminary

Part 1 of the Bill outlines preliminary details and the object of the Bill. The objects clause
states that the Bill will provide for the selection of a site for a radioactive waste
management facility on volunteered land in Australia. The establishment and operation of
a facility on the selected site will ensure that radioactive waste generated, possessed or
controlled by the Commonwealth or a Commonwealth entity is safely and securely
managed.

Part 2-Nomination of sites

Part 2 of the Bill provides that a Land Council in the Northern Territory may nominate land
as a potential site. Under the existing Site Nomination Deed, the Northern Land Council is
entitled to nominate other sites on Ngapa land. This provision maintains that entitlement.

The Minister may also open a nation-wide volunteer site nomination process. In deciding
whether to initiate this process, the Minister must have regard to whether it is unlikely that
a facility will be able to be constructed and operated on Aboriginal land that has been
nominated as a potential site under clause 5, whether or not that land has been approved as
a site under clause 9. Certain persons, including certain native title holders may also
volunteer their land as a potential site.

Procedural fairness requirements will apply to any decision to approve a potential site and
to any decision to open the nation-wide site nomination process.

Part 3-Selecting the site for a facility

Part 3 of the Bill allows relevant persons to conduct activities for the purpose of selecting a
site.

Certain State, Territory and Commonwealth laws will not apply to activities under Part 3 to
the extent that they would regulate, hinder or prevent these activities.

Part 4-Acquisition or extinguishment of rights and interests

Part 4 of the Bill allows the Minister to select a site as the site for a facility and also to
identify an area of land required for providing all-weather road access to the selected site.

Procedural fairness requirements will apply to these decisions.

Part 4 of the Bill allows for the acquisition or extinguishment of rights and interests in
relation to the selected site and land required for an access road.

Part 4 of the Bill provides that the Minister must establish a regional consultative
committee immediately after a site has been selected for a facility.

Part 5-Conducting activities in relation to selected site

Part 5 of the Bill preserves rules in the current Act allowing relevant persons to conduct
activities in relation to the selected site.

Certain State, Territory and Commonwealth laws will not apply to activities under Part 5 to
the extent that they would regulate, hinder or prevent these activities. However, the
Australian Radiation Protection and Nuclear Safety Act 1998, the Environment Protection
and Biodiversity Conservation Act 1999 and the Nuclear Non-Proliferation (Safeguards)
Act 1987
must be complied with.

Part 6-Granting of rights and interests in land to original owners

Part 6 of the Bill preserves rules in the current Act allowing the Minister to grant rights and
interests in certain land acquired under the Bill back to the original owners. This refers to
land that was nominated by a Land Council before the nation-wide volunteer site
nomination process.

Part 7-Miscellaneous

Part 7 of the Bill provides for the payment of compensation to persons whose rights or
interests are acquired, extinguished or otherwise affected by the selection of a site for a
facility.

Part 7 of the Bill also preserves rules in the current Act conferring certain advantages on the
Northern Territory if the site selected is one nominated by a Land Council before the
opening of the nation-wide volunteer site nomination process.

Schedule 1

Schedule 1 of the Bill repeals the Commonwealth Radioactive Waste Management Act 2005
(the current Act) and amends the Administrative Decisions (Judicial Review) Act 1977 (the
ADJR Act).

The current Act provides that no person is entitled to procedural fairness in relation to the
key decisions to be made under the Act. The Bill will require the Government to accord
procedural fairness in relation to such decisions.

Key decisions under the current Act are not susceptible to review under the ADJR Act.

Decisions under the Bill will be reviewable.

The repeal and amendment satisfies a 2007 ALP Platform commitment.

The Government has removed from further consideration three sites on Defence land in the
Northern Territory identified by the former Government. These sites were at Harts Range
(Alcoota) and Mount Everard in the Alice Springs region and Fishers Ridge in the
Katherine region.

Schedule 2

In 2007, a site on Ngapa clan land at Muckaty Station in the Northern Territory was
nominated and approved as a site under the current Act. The Government will honour the
commitment made to the Ngapa traditional owners.

Accordingly, Schedule 2 contains a saving provision to ensure that the site will remain an
approved site. The Bill will not introduce procedural fairness requirements in relation to the
existing nomination and approval of this site, but procedural fairness requirements will
apply to any decision to select the site as the site for a facility.

Procedural Fairness and Absolute Discretion

Under the Bill certain decisions are made by the Minister relating to approving and
selecting a site, subject to regulatory approval, for a radioactive waste management facility.

The Bill states that the Minister may make the decision or perform an action in his or her
absolute discretion.

In an administrative law context, to state in legislation that a decision-maker may make a
decision or perform an action in his or her absolute discretion, serves to emphasise that the
decision-maker is free to make or not to make the decision or free to do or not do an action.
It also serves to identify that the Minister is unambiguously responsible for the resulting
decision or action.

At the same time the Minister cannot make a decision or perform an action capriciously.

Limitations on the Minister's freedom to make decisions under the Bill are implied from
the subject matter, scope and purpose of the legislation. Key decisions are guided by
natural justice requirements, including extension of a right to be heard to any person
potentially affected by a proposed decision or action.

The basic requirement of procedural fairness is that a person whose rights, interests or
legitimate expectations are adversely affected by a decision is given a reasonable
opportunity of putting his or her case. The traditional elements of procedural fairness are:

  • A decision-maker must give a person whose rights, interests or legitimate
    expectations may be affected by a decision notice that a decision will be made, the
    information on which the decision may be based and the opportunity to provide a
    submission; and

  • A decision-maker must be free from any apprehension of bias.
The Minister is also subject to an obligation to provide reasons, on request, under the
Administrative Decisions (Judicial Review) Act 1977. Judicial review, of key decisions, is
available under the Administrative Decisions (Judicial Review) Act 1977 and the Judiciary
Act 1901
, on the grounds that a decision-maker has failed to take a relevant consideration
into account when exercising a power.

The weight given to a particular factor in making a decision is always a matter of discretion
for the individual decision-maker but can be challenged if the weight attributed is
unreasonable.

The Minister has also agreed to undertake consultations with all parties with an interest in,
or who would be affected by a decision to select the Muckaty Station site as the location for
a facility.

Scientific Rationale

Australia's current radioactive waste inventory stands at just over 4,020 m3 of low level and
short-lived intermediate level radioactive waste and approximately 600 m of long-lived
intermediate waste.

Most existing stores in Australia were not specifically designed for long term radioactive
waste storage. Centralisation minimises the risk of inadvertent loss or control of
radioactive material with consequential safety and security risks.

Radioactive waste management is governed by rigorous national and international
standards. Extensive experience has been gained from over 100 low-level waste disposal
facilities in more than 30 countries and a range of geological conditions.

Once the facility is constructed, low level waste will be disposed of by burial. This waste
includes lightly contaminated laboratory waste such as paper, plastic, glassware and
protective clothing, contaminated soil, smoke detectors and emergency exit signs.

Intermediate waste will be stored at the site. This includes waste from production of
nuclear medicines, waste arising from overseas reprocessing of spent research reactor fuel
and disused medical and industrial sources such as radiotherapy sources and soil moisture
meters.

Environmental and Regulatory Approval Processes


Radioactive waste management is one of the most regulated industrial activities in the
world. The Bill ensures Australia upholds the highest safety standards for radioactive
waste management and also meets its international obligations.

Under the Bill, site selection processes (Part 4) will not guarantee the establishment of a
facility. The Bill complements environmental and nuclear regulatory processes. Part 5 of
the Bill ensures that environmental and nuclear regulatory approvals must be obtained.

The regulatory approval processes are those specified by the Environment Protection and
, the Australian Radiation Protection and Nuclear
Nuclear Non-Proliferation (Safeguards) Act 1987.

State and Territory Laws

Australian Government facilities are regulated through the Commonwealth. In the case of a
radioactive waste management facility, laws of particular relevance include the
Environment Protection and Biodiversity Conservation Act 1999 for broad environmental
Australian Radiation Protection and Nuclear Safety Act 1998for
radiological impacts.

One effect of permitting State and Territory laws to apply would be to permit legislation
prohibiting siting of a facility and transporting waste.

For this reason, State and Territory laws will not apply to certain activities under the Bill, to
the extent that these laws may regulate, hinder or prevent these activities from taking place.

Financial Impact

Overall, the financial impact of the legislation is considered to be negligible. Provision for
any costs, including any liability of the Commonwealth to compensate persons for any
acquisition etc. of their interests in land affected by the Bill, would be sought to supplement
the existing administrated appropriation for Outcome 1 of the Department of Resources,
Energy and Tourism.

NATIONAL RADIOACTIVE WASTE MANAGEMENT BILL 2010

NOTES ON CLAUSES

Part 1 - Preliminary

Clause 1 - Short Title


Provides for the Act to be cited as the National Radioactive Waste Management Act 2010

Clause 2 - Commencement

Provides for the Act to commence on the day the Act receives the Royal Assent.

Clause 3 - Object of Act

Outlines that the object of this Act is to provide for the selection of a site for a radioactive
waste management facility on voluntarily nominated land in Australia and to establish and
operate a facility on a selected site to ensure the safe and secure management of radioactive
waste generated, possessed or controlled by the Commonwealth or a Commonwealth entity.

Clause 4 - Definitions


This clause sets out the definitions of terms that are relied upon in other provisions
throughout the Bill.

Part 2 - Nomination of sites

Clause 5 - Nomination by a Land Council


Clause 5(1) provides that a Land Council may, before the time when a declaration under
clause 6 takes effect, nominate Aboriginal land in the area of the Land Council as a
potential site.

Subclause 5(2) also provides rules in relation to such nominations.

Subclause 5(3) allows the Minister to request further information from a nominator.

Subclause 5(4) provides that failure to comply with subsection (2) does not invalidate a
nomination.

Subclause 5(5) provides that a nomination under this clause is not a legislative instrument.
This provision is included to assist readers, as the instrument is not a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act 2003.

Clause 6 - Minister may declare that nominations can be made under section 7

Clause 6 will allow the Minister to allow persons with a threshold level of interest in land in
a State, the Northern Territory or the Australian Capital Territory to nominate that land as a
potential site for a facility.

Subclause 6(2) provides that it is a relevant consideration to the Minister's exercise of
power under clause 6 whether it is unlikely that a facility will be able to be constructed and
operated on Aboriginal land that has been nominated as a potential site under clause 5,
whether or not that land has been approved as a site under clause 9.

To avoid doubt, it is the intention that such Aboriginal land includes land to which
Schedule 2 item 1(1) relates.

Subclause 6(4) provides that a declaration must be published in the Gazette within seven
days of the declaration being made. However, subclause 6(5) provides that a failure to
comply with subclause 6(4) does not invalidate a declaration.

Subclause 6(6) provides that a declaration made under subclause 6 is not a legislative
instrument. This provision is included to assist readers, as the instrument is not a legislative
instrument within the meaning of section 5 of the Legislative Instruments Act 2003.

Clause 7 - Nominations of potential sites

Subclause 7(1) provides that if a declaration under clause 6 is in effect, a person or persons
may in accordance with this clause, nominate land in a State, the Australian Capital
Territory or the Northern Territory as a potential site.

Subclause 7(2) provides that a person with an interest specified in this subclause may
nominate land as a potential site. These interests include an estate in fee simple, a lease of
land granted by or on behalf of the Crown, a Minister of the Crown, a statutory authority or
any other prescribed person, under a State or a Territory but not an interest as a joint tenant
or a tenant in common.

Subclause 7(3) provides that persons who as joint tenants or tenants in common hold
specified interests in land may nominate the land as a potential site. These interests include
an estate in fee simple or a lease of the land granted by or on behalf of the Crown, a
Minister of the Crown, a statutory authority or any other prescribed person, under a law of
the Commonwealth, a State or a Territory.

Subclause 7(4) provides that certain native title holders may nominate land as a potential
site if an approved determination of native title covers an area containing the land; and the
approved determination of native title determines that native title exists in relation to the
land and the native title rights and interests confer possession, occupation, use and
enjoyment of the land on the native title holders to the exclusion of all others. Where
subclause 7(4)(a) and (b) apply, subclause 7(4)(c) provides that one of the following must
apply:

  • in the case of an approved determination of native title by the Federal Court-the
    person is a prescribed body corporate that holds the native title rights and interests
    concerned on trust, or is an agent prescribed body corporate in relation to the native
    title rights and interests concerned.

  • in the case of an approved determination of native title by a recognised
    State/Territory body-the person is a body corporate that holds the native title rights
    and interest concerned on trust, or that is determined in relation to the native title
    under a provision of a law of the State and Territory concerned that corresponds to
    section 57 of the Native Title Act 1993.
Subclause 7(5) provides definitions for the purposes of clause 7.

Clause 8 - Rules about nominations

Subclause 8(1) provides rules in relation to nominations made under clause 7. Subclause
8(2) provides what must be specified in the reference to land under subclause 8(1 )(c).

Subclause 8(3) allows the Minister to request further information from a nominator of the
land.

Subclause 8(4) provides that a failure to comply with subclause 8(1) does not invalidate a
nomination made under clause 7.

Subclause 8(5) provides that a nomination under this clause is not a legislative instrument.
This provision is included to assist readers, as the instrument is not a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act 2003.

Clause 9 - Approval of nominated land


Clause 9, subject to clause 10(6), allows the Minister in his or her absolute discretion to
approve, in writing, land, or a specified part of land, nominated as a site under clause 5 or
clause 7. The approval must be published in the Gazette within seven days of the approval
being made. The clause provides that a failure to gazette an approval, or a failure of a
nomination to which an approval relates to comply with the relevant rules of nomination,
will not invalidate an approval.

Subclause 9(7) provides that an approval is not a legislative instrument. This provision is
included to assist readers, as the instrument is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003.

Clause 10 - Procedural fairness in relation to Minister's declarations and approvals


Subclauses 10(1) and (2) provide that the Minister must give a notice to each Land Council
and publish a notice in the Gazette and a national daily newspaper stating that the Minister
proposes to make a declaration under clause 6 and inviting comments on the proposed
declaration.

Subclause 10(3) provides that in deciding whether to make a declaration under clause 6, the
Minister must take into account any relevant comments received in response to an
invitation.

Subclauses 10(4) and (5) provide that the Minister must give a notice to each nominator and
publish a notice in the Gazette, a national daily newspaper and any local newspaper
circulating in the area in which the land is situated, stating that the Minister proposes to
approve land under clause 9 and inviting comments on the proposed approval by
nominators and persons with a right or interest in the land.

Subclause 10(6) provides that in deciding whether to make an approval under clause 9, the
Minister must take into account any relevant comments received in response to an
invitation.

Subclause 10(7) provides that clause 10 is taken to be an exhaustive statement of the
requirements of the natural justice hearing rule in relation to the Minister's decision
whether to make a declaration opening the nation-wide volunteer site nomination process
and the Minister's decision whether to approve land as a site.

Part 3 - Selecting the site for a facility

Clause 11 - Authority to conduct activities

Clause 11(1) and(2) allows the Commonwealth, a Commonwealth entity, a Commonwealth
contractor and an employee or agent of any of these persons to do anything in a State or
Territory necessary for, or incidental to, the purposes of selecting a site on which to
construct and operate a facility.

Subclause 11(3) provides a non-exhaustive list of things the Commonwealth etc. may do.

Subclause 11(4) provides that a person doing a thing under this Part must:

  1. take all reasonable steps to ensure that the doing of the thing causes as little
    detriment and inconvenience, and does as little damage, as is practicable to the land
    and to anything on, or growing or living on, the land; and

  2. remain on the land only for such period as is reasonably necessary; and

  3. leave the land, as nearly as practicable, in the condition in which it was immediately
    before the thing was done.

Clause 12 - Application of State and Territory laws

Clause 12(1) provides that a law, or a provision of a law, of a State and Territory, insofar as
it relates to the matters described in this subclause has no effect to the extent that it would,
apart from this clause, regulate, hinder or prevent the doing of a thing authorised by clause
11.

Clause 12(2) provides that the regulations may prescribe a law, or a provision of a law, with
the effect that that law etc. has no effect to the extent that it would, apart from this
subclause, regulate, hinder or prevent the doing of a thing authorised by clause 11.

Clause 12(4) provides that the regulations may prescribe a law, or a provision of a law, with
the effect that the law etc. has effect despite anything else in this clause.

Clause 13 - Application of Commonwealth laws


Clause 13(1) provides that the Aboriginal and Torres Strait Islander Heritage Protection
Act 1984
and the Environment Protection and Biodiversity Conservation Act 1999 have no
effect to the extent that they would, apart from this clause, regulate, hinder or prevent the
doing of activities authorised in clause 11.

Clause 13(2) provides that the regulations may prescribe another law, or a provision of
another law, with the effect that the law etc. has no effect to the extent that it would, apart
from clause 13, regulate, hinder or prevent the doing of a thing authorised by clause 11.

Part 4 - Acquisition or extinguishment of rights and interests

Clause 14 - Minister's declaration of land as selected site or required for road access

Subclause 14(1) provides that clause 14 applies if land has been both nominated and
approved as a site.

Subclause 14(2) provides that, subject to clause 18, the Minister may, in his or her absolute
discretion, declare in writing that the site approved by the Minister, or a specified part of
the site, is selected as the site for a facility. The declaration may specify all or some of the
rights and interests in the selected site. The effect of selecting a site is that Part 5 applies in
relation to the selected site. The effect of specifying rights or interests in the selected site is
that clause 19 applies in relation to those rights and interests.

Subclause 14(3) provides that the Minister may not, after the general nomination start time,
make a declaration under subclause 14(2) in relation to land nominated by a Land Council
as a site under clause 5.

Subclause 14(4) provides that, subject to clause 18, the Minister may, in his or her absolute
discretion, declare in writing that all or specified rights or interests in land in a State or
Territory specified in the declaration are required for providing all-weather road access to
the selected site. The effect of specifying rights or interests is that clause 19 applies in
relation to those rights and interests.

Subclause 14(5) provides that, to avoid doubt, rights and interests specified in a declaration
under subclause 14(2) or (4) includes rights to minerals (if any), native title rights and
interests (if any), an interest in land that did not previously exist and an easement in gross
(if any).

Subclause 14(6) provides that to avoid doubt, clause 14 has effect subject to section 9 of the
Racial Discrimination Act 1975.

Subclause 14(7) provides that a declaration under subclause 14(2) or (4) is not a legislative
instrument. This provision is included to assist readers, as the instrument is not a legislative
instrument within the meaning of section 5 of the Legislative Instruments Act 2003.

Clause 15 — Formalities relating to Minister's declarations

Subclause 15(1) provides that a declaration under clause 14(2) or (4) must be published in
the Gazette within seven days of the declaration being made. However, subclause 15(2)
provides that a failure to comply with subclause 15(1) does not invalidate a declaration.

Subclause 15(2) also provides that failure to comply with this subclause or subclause 5(2),
6(4), 8(1) or 9(5) does not invalidate a declaration.

Clause 16 - When Minister's declarations take effect etc.

Subclause 16(1) provides that a Minister's declaration under clause 14(2) or (4) takes effect
at the time specified in the declaration, which must not be earlier than the time the
declaration is made.

Subclause 16(2) and (3) operate so that the Minister may make more than one declaration
under each of subclauses 14(2) and (4), but that there may only be one declaration under
subclause 14(2) in effect at a particular time. That there may only be one declaration under
subclause 14(2) in effect at a particular time means that there is only one 'selected site' at a
particular time and Part 5 may therefore only apply in relation to one site at a particular
time.

Clause 17 - Revocation of Minister's declaration

Subclause 17(1) provides the Minister may in his or her absolute discretion revoke a
declaration under subclause 14(2).

Subclause 17(2) provides that a revocation takes effect at the time specified in the
revocation, which must not be earlier than the time the revocation is made.

Subclause 17(3) provides that, to avoid doubt, the revocation of a declaration made under
subclause 14(2) does not affect the operation of clause 19 in relation to the land to which
the declaration relates but, on and from the revocation, Part 5 does not apply to that land.

Subclause 17(4) provides that clause 18 does not apply to a revocation under this clause.

Subclause 17(5) provides that a copy of a revocation must be published in the Gazette
within seven days of the declaration being made. However, subclause 17(6) provides that a
failure to comply with subclause 17(5) does not invalidate a revocation.

Subclause 17(7) provides that section 33(3) of the Acts Interpretation Act 1901 does not
apply to a revocation. This subclause should not be taken to imply that section 33(3) does
not apply in relation to other clauses.

Clause 18 - Procedural fairness in relation to Minister's declarations

Clause 18 provides an entitlement to procedural fairness in relation to a Minister's
declaration under clause 14 and exhaustively describes that entitlement.

Subclauses 18(1) and (2) provide that the Minister must give a notice to each nominator and
publish a notice in the Gazette, a national daily newspaper and any local newspaper
circulating in the area in which the land is situated, stating that the Minister proposes to
make a declaration under clause 14 and inviting comments on the proposed declaration by
nominators of the land and persons with a right or interest in the land.

Subclause 18(3) provides that in deciding whether to make a declaration under clause 14,
the Minister must take into account any relevant comments received in response to an
invitation.

Subclause 18(4) provides that a reference in this clause to each nominator of the land, in
relation to a declaration under subclause 14(4) that rights or interests in land are required
for providing all-weather road access to the selected site, is a reference to each person who
nominated the selected site under clause 5 or 7.

Subclause (5) provides that clause 18 is taken to be an exhaustive statement of the
requirements of the natural justice hearing rule in relation to the Minister's decision to
make a declaration under clause 14.

Clause 19 - Acquisition or extinguishment

Subclause 19(1) has the effect of providing that, at the time of a declaration under
subclause 14(2) has effect, any rights or interests in the selected site that are specified in the
declaration are acquired by the Commonwealth or extinguished and freed and discharged
from all other rights and interests and from all trusts, restrictions, dedications, reservations,
obligations, mortgages, encumbrances, contracts, licences, charges and rates.

Subclause 19(2) has the effect of providing that, at the time of a declaration under
subclause 14(4) has effect, any rights or interests in the selected site that are specified in the
declaration are acquired by the Commonwealth or extinguished and freed and discharged
from all other rights and interests and from all trusts, restrictions, dedications, reservations,
obligations, mortgages, encumbrances, contracts, licences, charges and rates.

Clause 20 - Application of Commonwealth and State or Territory laws

Subclause 20(1) provides that clause 19 has effect despite any other law of the
Commonwealth, a State or a Territory (whether written or unwritten).

It is the intention that subclause 20(1) will apply to any law of the Commonwealth, a State
or a Territory, regardless whether that law is a law of the State or Territory in which the
selected site is located.

Subclause 20(2) has the effect of providing that, without limiting subclause 20(1), clause 19
has effect despite the Lands Acquisition Act 1989 and the Native Title Act 1993.

Clause 21 - Notice to Registrar-General or other appropriate officer

Subclause 21(1) provides that the Secretary of the Department may lodge with the
Registrar-General, the Registrar of Titles or other appropriate officer of a State, the
Australian Capital Territory or the Northern Territory, a copy of a Minister's declaration
under clause 14, certified by writing signed by the Secretary.

Subclause 21(2) provides that the officer with whom the copy is lodged may deal with and
give effect to it as if it were a grant, conveyance, memorandum or instrument of transfer of
relevant rights and interests done under the laws of the State or Territory.

Clause 22 - Regional consultative committee

Subclause 22(1) provides that immediately after a declaration under subclause 14(2) takes
effect, the Minister must, by writing, establish a committee to be known as the regional
consultative committee.

Subclause 22(2) provides that the functions of the committee are to facilitate
communication between the Commonwealth, the operator of the facility (if any) at the
selected site and persons living in or near the region where the selected site is situated and
such other functions as are prescribed under subclause 22(4)(a).

Subclause 22(3) provides that an instrument made under subclause (1) of this clause is not a
legislative instrument. This provision is included to assist readers, as the instrument is not a
legislative instrument within the meaning of section 5 of the Legislative Instruments Act
2003
.

Subclause 22(4) provides that the regulations may prescribe matters relating to the
committee, including, but not limited to, the following:

  1. the functions of the committee

  2. the operation and procedures of the committee

  3. membership of the committee

  4. term of appointment of members

  5. remuneration of members

  6. resignation of members

  7. disclosure of interests by members

  8. termination of appointment of members

  9. leave of absence of members.
Subclause 22(5) provides that if no regulations are in force under subclause 22(4), the
committee may operate in the way determined in writing by the committee.

Part 5 - Conducting activities in relation to selected site

Clause 23 - Authority to conduct activities


This clause provides identified persons and classes of persons with the authority to do
certain things in relation to the selected site for a facility or on land acquired for the
purposes of providing all-weather road access to the selected site.

Subclause 23(1) has the effect of providing that clause 23 applies to the Commonwealth, a
Commonwealth entity and a Commonwealth contractor as well as an employee or agent of
these persons.

Subclause 23(2) has the effect of providing that a person to whom clause 23 applies may,
(in relation to the selected site), do anything necessary for or incidental to any or all of the
following:
  1. gathering or preparing information for a Commonwealth regulatory scheme that
    relates to the construction or operation of a facility or anything done in preparation
    for the construction or operation of a facility;

  2. conducting activities that relate to gathering or preparing information for such a
    regulatory scheme;

  3. preparing the selected site for a facility;

  4. preparing to construct and operate a facility;

  5. constructing a facility;

  6. constructing roads on, or grading, land in a State or Territory;

  7. erecting fences and other access controls on land specified in the declaration under
    subclause 14(4);

  8. operating a facility;

  9. maintaining a facility;

  10. keeping a facility safe;

  11. decommissioning a facility.
A Commonwealth regulatory scheme mentioned in subclause 23(2) includes, but is not
limited to, the Environment Protection and Biodiversity Conservation Act 1999 and the
Australian Radiation Protection and Nuclear Safety Act 1998.

Subclause 23(3) provides that, without limiting subclause 23(2), the person may, under
that subclause, do a thing mentioned in subclause 11(3) in relation to the selected site.

Subclause 23(4) provides that subclause 23(2) extends to doing things outside the selected
site.

Subclause 23(5) provides that a person to whom clause 23 applies may, in relation to the
selected site, transport (including through a State or Territory) people and materials
(including controlled material) to or from a facility; and use transport infrastructure for
that transport.

Clause 24 - Application of State and Territory laws


Clause 24 limits the application of State and Territory laws in specified ways.
Subclause 24(1) has the effect of providing that a law (or a provision of a law) of a State or
Territory (whether written or unwritten) so far it relates to:
  1. the use or proposed use of land or premises; or

  2. the environmental consequences of the use of land or premises; or

  3. the archaeological or heritage values of land, premises or objects (including the
    significance of land, premises or objects in the traditions of Indigenous people); or

  4. controlled material, radioactive material or dangerous goods; or

  5. licensing (however described) in relation to employment, carrying on a particular
    kind of business or undertaking or conducting a particular kind of operation or
    activity,
has no effect to the extent that it would (apart from clause 24) regulate, hinder or prevent
the doing of a thing authorised by clause 23.

Subclause 24(2) provides that a law (or provision of a law) of a State or Territory (whether
written or unwritten), so far as it relates to the transport of controlled material, radioactive
material or dangerous goods, has no effect to the extent that it would (apart from clause 24)
regulate, hinder or prevent transport authorised by clause 23.

Subclause 24(3) provides that the regulations may prescribe a law (or provision of a law) of
a State or Territory for the purposes of subclause 24(3) as a law or provision that has no
effect to the extent that it would (apart from subclause 24(3)) regulate, hinder or prevent the
doing of a thing authorised by clause 23.

Subclause 24(4) provides that regulations made for the purposes of subclause 24(3) may
prescribe a law (or a provision of a law) whether or not it is a law or provision of a kind
described in subclause 24(1) or (2).

Subclause 24(5) provides that the regulations may prescribe a law (or provision of a law) of
a State or Territory for the purposes of subclause 24(5). The prescribed law or provision
has effect despite anything else in subclause 24.

Clause 25 - Application of Commonwealth laws


Subclause 25(1) provides that the regulations may prescribe a law (or provision of a law) of
the Commonwealth for the purposes of subclause 25(1) as a law or provision that has no
effect to the extent that it would (apart from subclause 25(1)) regulate, hinder or prevent the
doing of a thing authorised by clause 23.

Subclause 25(2) provides that the regulations must not prescribe any of the following laws,
or any provision of the following laws:
  1. the Australian Radiation Protection and Nuclear Safety Act 1998;

  2. the Environment Protection and Biodiversity Conservation Act 1999;

  3. the Nuclear Non-Proliferation (Safeguards) Act 1987.

Part 6 - Granting of rights and interests in land to original owners

Clause 26 - Application of Part


Subclause 26 sets out how Part 6 applies to a declaration under subclauses 14(2) and (4).
However, subclause 26(3) provides that Part 6 does not apply to a declaration under
subclause 14(2) or (4) if the declaration relates to land nominated under the nation-wide
volunteer site nomination process.

Subclause 26(1) provides that Part 6 applies if:

  1. immediately before a declaration under subclause 14(2) took effect, land that was
    the subject of the declaration was Aboriginal land (the relevant land); and

  2. as a result of the declaration, the Commonwealth acquired (under clause 19) an
    estate in fee simple in the relevant land; and

  3. a facility on the relevant land has been abandoned in accordance with the Australian
    Radiation Protection and Nuclear Safety Act 1998
    ; and

  4. the Commonwealth holds an estate in fee simple in the relevant land.
Subclause 26(2) provides that Part 6 applies if:
  1. immediately before a declaration under subclause 14(4) took effect, all or part of the
    land that was the subject of the declaration was Aboriginal land (the whole, or that
    part, of the land being relevant land); and

  2. as a result of the declaration, the Commonwealth acquired, under clause 19, rights
    or interests in the relevant land; and

  3. the facility mentioned in subclause 26(l)(c) has been abandoned in accordance with
    the Australian Radiation Protection and Nuclear Safety Act 1998; and

  4. the Commonwealth holds all or some of those rights or interests in the relevant land.
Subclause 26(3) provides that this Part does not apply to a declaration referred to in
subsection (1) or (2) if the declaration relates to land nominated under clause 7.

Abandonment of a facility under the Australian Radiation Protection and Nuclear Safety
means that the facility has been released from regulatory control. This cannot
occur until decommissioning and any subsequent monitoring has been completed.

Clause 27 - Declaration of intention to grant rights and interests in land to original
owners


Subclause 27(1) provides that the Minister may (in his or her absolute discretion) declare in
writing that the land that was the subject of the declaration under subclause 14(2) is no
longer required for the facility mentioned in subclause 26(1 )(c).

Subclause 27(2) provides that the declaration must:
(a) specify all the relevant land; and

(b) state that the Minister intends to make a declaration under clause 28 granting the
rights and interests specified in clause 29 in specified land to a specified Land Trust.

Subclause 27(3) provides that land specified under subparagraph 27(2)(b) may be all or part
of the relevant land, but all of the specified land must, in total, be all of the relevant land.

This allows for different specified parts of the relevant land to be returned to different Land
Trusts.

Subclause 27(4) provides that a Land Trust may be specified under subparagraph 27(2)(b)
in relation to specified land only if:

(a) the Land Trust held title to the specified land immediately before the declaration
under subclause 14(2) or (4) (as the case may be) took effect; or

(b) the Land Trust has succeeded to the functions of a Land Trust mentioned in
subparagraph (4)(a).
Subclause 27(5) provides that, within seven days of the declaration being made, the
Minister must publish a copy of the declaration in the Gazette and notify a specified Land
Trust in writing that the Minister intends to make a declaration under clause 28.

Subclause 27(6) provides that a declaration is not valid unless it specifies and states the
matters mentioned in subclause 27(2) and the Minister complies with subclause 27(5).

Subclause 27(7) provides that a Land Trust specified in the declaration may consent in
writing to the granting of the rights and interests specified in clause 29 in the specified land.

Subclause 27(8) provides that a declaration made under subclause 27(1) is not a legislative
instrument. This provision is included to assist readers, as the declaration is not a
legislative instrument within the meaning of section 5 of the Legislative Instruments Act
2003
.

Clause 28 - Declaration granting rights and interests in land to original owners


Subclause 28(1) provides that the Minister must make a declaration in writing that an estate
in fee simple is granted in specified land to a specified Land Trust if the Commonwealth
holds an estate in fee simple in the specified land and the specified Land Trust has, under
subclause 27(7), consented to the granting of an estate in fee simple in the specified land
within:

Subclause 28(2) provides that the Minister must make a declaration in writing that the
rights and interests specified in subclause 29(3) are granted in specified land to a specified
Land Trust if the Commonwealth holds rights or interests (other than an estate in fee
simple) in the specified land and the specified Land Trust has, under subclause 27(7),
consented to the granting of the rights and interests specified in subclause 29(3) in the
specified land within: Clause 28(3) provides that a declaration has effect at the time specified in the declaration
(which must not be earlier than the time the declaration is made).

Subclause 28(4) provides that a declaration made under subclause 28(1) or (2) is not a
legislative instrument. This provision is included to assist readers, as the declarations are
not legislative instruments within the meaning of section 5 of the Legislative Instruments
Act 2003.

Subclause 28(5) provides that the Minister may include one or more declarations under
subclause 28(1) and (2) in the same document.

Clause 29 - Grant of rights and interests in land to original owners


Clause 29 provides for the grant of rights and interests in land to original owners as a grant
of estate in fee simple (subclauses 29(1) and (2)), a grant of other rights and interests
(subclause 29(3)) and the effect on the validity of earlier rights, interests and actions
(subclause 29(4)).

Subclause 29(1) provides that, if the Minister makes a declaration under subclause 28(1),
then at the time the declaration has effect, an estate in fee simple is granted (by force of
subclause 29(1)) in the specified land to the specified Land Trust and the land is taken, for
all purposes, to be Aboriginal land.

Subclause 29(2) provides that the estate in fee simple is subject to the reservations that:

(a) the right to any minerals existing in their natural condition, or in a deposit of waste
material obtained from any underground or surface working, on or below the
surface of the land (being minerals all interests in which are vested in the
Commonwealth) remains with the Commonwealth; and

(b) rights to explore for minerals, and leases or licences to mine for minerals, on or
below the surface of the land may be granted under section 124 of the Lands
Acquisition Act 1989.
Subclause 29(3) provides that, if the Minister makes a declaration under subclause 28(2),
then at the time the declaration has effect, any rights and interests that are held by the
Commonwealth in the specified land and were acquired by the Commonwealth (under
clause 19) in the specified land from the specified Land Trust or another Land Trust, are
granted (by force of subclause 29(3)) in the specified land to the specified Land Trust.

Subclause 29(4) provides that the granting of rights and interests in land under subclause
29(1) or (3) does not affect the validity of any rights or interests acquired, created or
granted (whether under this Act or otherwise) in relation to the land or the validity of the
construction, operation, maintenance, decommissioning or abandoning of a facility on the
land, or the doing of any other thing in relation to the land, before the declaration under
clause 28 has effect.

Clause 30 - No earlier rights and interests granted


Clause 30 provides that, to avoid doubt, the making of a declaration under clause 28 does
not create or grant any rights or interests in land before the declaration has effect.

Clause 31 - Application of Commonwealth, State and Territory laws


Clause 31 provides that clause 29 has effect despite any other law of the Commonwealth, a
State or a Territory (whether written or unwritten).

Clause 32 - Notice to Registrar-General

Subclause 32(1) provides that the Secretary of the Department may lodge with the
Registrar-General for the Northern Territory (or other appropriate officer) a copy of a
Minister's declaration under clause 28, certified by writing signed by the Secretary.

Subclause 32(2) provides that the officer with whom the copy is lodged may deal with and
give effect to it as if it were a grant, conveyance, memorandum or instrument of transfer of
relevant rights and interests done under the laws of the Northern Territory.

Clause 33 - Indemnity by Commonwealth

Subclause 33(1) provides that the Commonwealth must indemnify each Land Trust
specified in a declaration under clause 28 and keep the Land Trust indemnified against any
action, claim or demand brought or made against the Land Trust in respect of any liability
arising from, or damage caused by, ionising radiation from any act done or omitted to be
done by or on behalf of the Commonwealth in relation to the transport of controlled
material to or from or the management of controlled material at a facility on the land
specified in the declaration.

Clause 33(2) provides that the amount of the indemnity is reduced to the extent to which
any fault on the part of the Land Trust, or its employees, agents or contractors, contributed
to the liability or damage.

Clause 33(3) provides that subclause 33(1) does not apply in relation to an action, claim or
demand unless the Land Trust notifies the Commonwealth, in writing, of the action, claim
or demand as soon as practicable and the Land Trust follows any directions of the
Commonwealth in relation to the action, claim or demand.

Clause 34 - Regulations


Clause 34 provides that the regulations may prescribe any modifications of this Act that are
necessary or convenient to deal with transitional matters arising from the making of a
declaration under clauses 27 or 28.

Part 7 — Miscellaneous

Clause 35 - Compensation

Subclause 35(1) provides that, if rights or interests are acquired, extinguished or otherwise
affected under clause 19, the Commonwealth is liable to pay a reasonable amount of
compensation to a person whose rights or interests have been acquired, extinguished or
otherwise affected.

Subclause 35(2) provides that if the Commonwealth and the person do not agree on the
amount of the compensation, the person may institute proceedings in the Federal Court of
Australia for the recovery from the Commonwealth of such reasonable amount of
compensation as the court determines.

Clause 36 - Compensation for acquisition of property


Subclause 36(1) provides that, if the operation of the Act would result in an acquisition of
property from a person otherwise than on just terms, the Commonwealth is liable to pay a
reasonable amount of compensation to the person.

Subclause 36(2) provides that, if the Commonwealth and the person do not agree on the
amount of the compensation, the person may institute proceedings in the Federal Court of
Australia for the recovery from the Commonwealth of such reasonable amount of
compensation as the court determines.

Subclause 36(3) defines acquisition of property, and just terms for the purposes of clause
36. These terms are defined as having the same meaning as in paragraph 51 (xxxi) of the
Constitution.

Clause 37 - Indemnity by Commonwealth and management of Northern Territory
controlled material for section 5 nominations


Subclause 37(1) provides that this clause applies if the selected site was nominated under
clause 5.

Subclause 37(2) provides that the Commonwealth must indemnify the Northern Territory,
and keep the Northern Territory indemnified against any action, claim or demand brought
or made against the Northern Territory in respect of any liability arising from, or damaged
caused by, ionising radiation from any act done or omitted to be done by or on behalf of the
Commonwealth in relation to the transport of controlled material to or from, or the
management of controlled material, at a facility on the selected site.

Subclause 37(3) provides that the amount of the indemnity is reduced to the extent to which
any fault on the part of the Northern Territory, or its employees, agents or contractors,
contributed to the liability or damage.

Subclause 37(4) provides that subclause 37(2) does not apply in relation to an action, claim
or demand unless the Northern Territory notifies the Commonwealth, in writing, of the
action, claim or demand as soon as practicable and follows any directions of the
Commonwealth in relation to the action, claim or demand.

Subclause 37(5) provides that if controlled material that is generated by activities in the
Northern Territory is managed at a facility on the selected site, the Commonwealth must
not charge the Northern Territory for the management.

Clause 38 - Severability-additional effect of Act


Clause 38 provides that, without limiting the effect apart from this clause, the Bill also has
effect it would have if:

(a) each reference to a facility were, limited to a facility within a Territory; and
(b) each reference to the doing of things, or things done, on or in relation to land was
expressly limited to a reference to the doing of things, or things done, or in relation
to land within a Territory.

This clause is designed to ensure that the Bill is capable of being read down so that it is
supported by section 122 of the Constitution.

Clause 39 - Regulations

Clause 39 provides that the Governor-General may make regulations prescribing matters
required or permitted by this Act to be prescribed, or necessary or convenient to be
prescribed for carrying out or giving effect to this Act.

Clause 40 - Schedule(s)

Clause 40 provides that each Act that is specified in a Schedule to this Bill is amended or
repealed as set out in the applicable items in the Schedule concerned and any other item in a
Schedule to this Bill has effect according to its terms.

Schedule 1 - Repeal and consequential amendments


Part 1 - Repeal of the Commonwealth Radioactive Waste Management Act 2005


Item 1 repeals the whole of the Commonwealth Radioactive Waste Management Act 2005.

Part 2 - Consequential amendment

Item 2 repeals paragraph (zc) of Schedule 1 of the Administrative Decisions (Judicial
Review) Act 1977
.

Schedule 2 - Transitional provisions


Item 1 - Saving—nominations and approvals


Item 1(1) provides that despite the repeal of Part 1A of the Commonwealth Radioactive
Waste Management Act 2005
by item 1 of Schedule 1, a nomination under section 3A of
the Commonwealth Radioactive Waste Management Act 2005 continues in force, after the
commencement time, as if it had been made under clause 5 of the Bill.

Item 1(2) provides that despite the repeal of Part 1A of the Commonwealth Radioactive
Waste Management Act 2005
by item 1 of Schedule 1, an approval under section 3C of the

Commonwealth Radioactive Waste Management Act 2005 continues in force, after the
commencement time, as if it had been made under clause 9 of the Bill.

Item 1(3) provides that section 3D of the Commonwealth Radioactive Waste Management
Act 2005
and the old ADJR Act continue to apply, after the commencement time, in
relation to a nomination or approval continued in force by this item.

Item 1(4) provides that clause 10 of the Bill and the new ADJR Act do not apply in relation
to an approval continued in force by this item.

Item 1(5) provides that to avoid doubt, clause 18 of the Bill and the new ADJR Act apply in
relation to a declaration under clause 14 of the Bill that relates to an approval continued in
force by this item.

Item 1(6) provides definitions for Item 1, Schedule 2.

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