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