Bills Digest no. 55 2006–07
Commonwealth Radioactive Waste Management Legislation
Amendment Bill 2006
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
Financial Implications
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Commonwealth Radioactive Waste Management Legislation
Amendment Bill 2006
Date introduced: 2 November 2006
House: House of
Representatives
Portfolio: Education, Science and Training
Commencement: On Royal Assent
To provide a discretionary
legislative mechanism for the return of land that has been used as
a radioactive waste storage facility to the Land Trust to which it
first belonged. The Bill also
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removes the process of nominating a site for
consideration for use as a Commonwealth radioactive waste storage
facility from the application of the Administrative Decisions
(Judicial Review) Act 1977 (the ADJR Act), and
-
removes the mandatory nature of requirements governing
the process of making a nomination.
The background to this Bill is largely covered by the Bills
Digest for the Commonwealth Radioactive Waste Management
Act 2005 (the Principal Act).(1) This
legislation, along with the Commonwealth Radioactive Waste
Management (Related Amendment) Act 2005 was
introduced in order to facilitate the process of developing the
proposed Commonwealth radioactive waste management facility in the
Northern Territory.
The two previous Bills have already excluded many of the
procedural guarantees normally accorded to decisions taken under
the Aboriginal Land Rights (Northern Territory) Act 1976
(the ALRA). This Bill adds the process of making nominations for a
site to the list of decisions to which the ADJR Act does not apply.
This list of decisions excluded from the ADJR Act (Schedule 1) is
already quite extensive, containing some thirty-seven items, many
of which cover multiple statutes.
The Land Councils in the Northern Territory are statutory
authorities established under the Aboriginal Land
Rights (Northern Territory) Act 1976
(the ALRA), a Commonwealth statute. As such they do, in
the usual course of events, attract the jurisdiction of the ADJR
Act. There have been significant cases run based on the ADJR Act
and these have involved, for instance, examinations of the process
through which a Land Council determines the traditional owners of
land. The ALRA is a complex piece of legislation designed to
establish an administrative system for determining even more
complex questions of land ownership. These issues are resolved by
examining historical connections and questions of genealogy and
identification, issues of both sensitivity and significance. It is
unsurprising that it has been the subject of litigation. The
Principal legislation s curtailment of administrative provisions
governing the area attracted the ire of the Central Land Council,
who commented that their effect was to abrogate due process and
override a series of important considerations that should inform
decision making with respect to the siting of a nuclear waste
facility in Australia .(2)
There has not been a great deal of media interest in this new
Bill. The AAP had a story documenting objections by
environmentalists and calls by the Arid Lands Environment Centre
for the Northern Land Council (the NLC) to protect traditional
Aboriginal owners.(3) The second reading speech
specifies that the Bill is designed to prevent politically
motivated challenges to a land council nomination.
(4)
Compared to the legislative impact of the Principal Act these
amendments are less significant.
The Explanatory Memorandum states that these amendments will
have minimal financial impact.(5) The legislation
proposes a limited indemnity for Land Trusts which are receiving
land no longer used as waste storage. The Explanatory
Memorandum says that, given the relevant land will not be
returned to its traditional owners until it has been released from
the regulatory control established under the Australian
Radiation Protection and Nuclear Safety Act 1998, it is not
expected that any costs of indemnity will arise.
The Principal Act and the Commonwealth Radioactive Waste
Management (Related Amendment) Act 2005 overrode or restricted
the application of laws that might hinder the development of the
proposed Commonwealth radioactive waste management facility in the
Northern Territory. Item 1 of this Bill continues
this process by exempting the process of nomination of a site from
the operation of the ADJR Act. Under s3A of the Principal Act both
the Chief Minister of the NT and a Land Council can nominate sites,
and this amendment makes these nominations exempt, removing the
opportunity for review by the courts.
The rest of the amendments are to the Principal Act.
Item 2 introduces a definition of a Land Trust
into the Principal Act. Land Trusts established under the ALRA are
the bodies which actually hold the land belonging to traditional
owners. They are administered through the Land Councils.
Item 3 modifies section 3B in an interesting
manner. Section 3B established the rules that must be followed by
the Chief Minister or a Land Council when they make a nomination of
a site. Item 3 inserts proposed
sub-section 2A which negates the legal significance of
Section 3B by stipulating that failure to comply with these rules
has no legal effect i.e. a nomination will still be valid. The
rules previously stipulated a number of matters, including, for
instance a requirement that a nomination include evidence that the
traditional Aboriginal owners of the land have been consulted, and
that they understand both the nature and effect of the proposed
nomination and the things that might be done on or in relation to
the land if the Minister approves the nomination. It also includes
provisions that there must be evidence that 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 ALRA), and that any Aboriginal
community or group that may be affected by the proposed nomination
have been consulted and have had adequate opportunity to express
its view to the Land Council. The impact of the amendment would
effectively be to render these requirements into non-binding
recommendations, whose breach has no legal effect.
Item 4 continues the logic of item
3 by amending section 3D of the Principal Act so that
neither decisions by the Minister (section 3C) nor nominations by
Land Councils or the Chief Minister (section 3A) need provide
procedural fairness. Section 3C already has provisions ensuring
that a Ministerial approval can be made without the safeguards
provided for in section 3B. Another amendment provided for in
proposed subsection 7(5A) would also negate the
effect of the rules in section 3B by safeguarding a Ministerial
declaration of a site which has been made in breach of section
3B.
Item 6 inserts a new part (Part
4A) to the Principal Act which provides a legislative
structure for the future return of Aboriginal Land to its original
owners. The return is to be made in the Minister s absolute
discretion . Proposed section 14A sets out the
features of the land to be returned. These define the land to have
been Aboriginal land in the beginning, the nature of the original
acquisition and the fact that the facility has been abandoned in
accordance with the Australian Radiation Protection and Nuclear
Safety Act 1998, i.e. it is no longer needed as a radioactive
waste storage facility and it has been declared to be safe.
Proposed section 14 B and C establish a mechanism
whereby the Minister (in his or her absolute discretion) can
declare the land is no longer needed. The declaration must specify
the land and the Land Trust to which he or she intends to return
it. To come within these provisions, the Land Trust must be the
same Land Trust (or its successor) which held the land before it
was acquired by the Commonwealth. The declaration must be published
in the Gazette and the Land Trust must be notified in
writing. Provided these conditions are met, and the Land Trust has
consented to the return of the land within the prescribed time
frame (12 months, in the first instance), the Minister must make a
declaration returning the land as a grant of estate in fee simple
(with mineral rights reserved) or releasing the Commonwealth s
interests in the land.
Proposed section 14H provides for an indemnity
by the Commonwealth to the Land Trusts specified in the return of
land. The indemnity covers the Land Trust against any action, claim
or demand brought against the Land Trust in respect of any
liability arising from, or damage caused by, ionising radiation
from the transport or management of controlled material at the
facility. This indemnity is reduced to the extent that any fault on
the part of the Land Trust is involved (proposed
sub-section 14H (2)). Furthermore the indemnity will not
operate if the Land Trust does not notify the Commonwealth, in
writing, of the issue as soon as practicable (proposed
sub-section 14H (3)) and it must then follow the
directions of the Commonwealth in relation to the claim.
Concluding comments
The Commonwealth s proposed amendments governing the return of
land seem to be a compromise between the Commonwealth s need for an
unfettered fee simple ownership of land for the purposes of the
proposed radioactive waste storage facility and the traditional
owner s desire to have their land returned to them. The legislation
does not guarantee the return of this land, but it does provide a
process which should be followed if it is, in the Commonwealth s
discretion, to be returned in this manner. There does not seem to
be any provision which necessitates the return of the land in this
framework.
The changes to the legislative nomination process for land have
a more significant legal effect. The Minister commented on these
provisions, which change the nature of the conditions for a
nomination:
I can assure the House that, should a nomination
be made, I will only accept it if satisfied that these criteria
have been met [i.e. the criteria governing the consultations and
information that must be provided to and about traditional owners
before a nomination is made].(6)
The second reading speech is accepted as a tool in statutory
interpretation, but only in so far as it clarifies the intention of
ambiguous legislative provisions. The legislation provides
unambiguously that there is no binding legal need to ensure the
criteria have been met.
The Minister went on the point out that:
What the government will not accept is speculative
legal challenges against the land council or me, as minister, that
are designed, not to ensure that Aboriginal people have given
informed consent to a land nomination, but to frustrate and delay
establishment of the facility.(7)
The
legislation effectively removes the basis for these, and other,
challenges to a nomination by making the conditions non
mandatory.
-
Angus Martyn, Commonwealth Radioactive Waste Management Bill
2005, Bills
Digest no. 59, 2005 06, 28 October 2005 and Angus
Martyn, Commonwealth Radioactive Waste Management (Related
Amendment) Bill 2005, Bills
Digest no. 60, 2005 06, 28 October 2005, Parliamentary
Library, Canberra.
-
Central Land Council, Submission 144, Senate Employment,
Workplace Relations and Education Legislation Committee Enquiry,
Commonwealth Radioactive Waste Management Bill
2005 and Commonwealth Radioactive Waste Management
(Related Amendments) Bill 2005, p. 14.
-
AAP, Waste laws sideline traditional owners , November 9, 2006.
http://www.news.com.au/business/story/0,23636,20729264-31037,00.html
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House of Representatives, Hansard, 2 November 2006, p.
1
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Explanatory Memorandum, p. 2.
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House of Representatives, Hansard, 2 November 2006, p.
1.
-
ibid.
Kirsty Magarey
27 November 2006
Bills Digest Service
Parliamentary Library
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ISSN 1328-8091
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Published by the Parliamentary Library, 2006.
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