Referral of the inquiry
The National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 (the bill) was introduced in the House of Representatives and read a first time on 13 February 2020.
On 28 February 2020, the Senate referred the provisions of the bill to the Economics Legislation Committee (the committee) for inquiry and report by 12 June 2020.
Following a resolution of the committee and in accordance with the motion agreed by the Senate on 23 March 2020, the reporting date for the inquiry was extended to 31 July 2020 and subsequently extended again until 31 August 2020, and then finally to 14 September 2020.
Purpose of the Bill
The purpose of the bill is to amend the National Radioactive Waste Management Act 2012 (the Act) to give effect to the Government’s commitment to establish a single, purpose built National Radioactive Waste Management Facility (the Facility). According to the Explanatory Memorandum (EM), the Facility will support Australian nuclear science and technology by providing for the permanent disposal of low-level waste (LLW) and temporary storage of intermediate level waste (ILW).
The EM outlines that LLW and ILW are largely by-products of vital nuclear medicine which, on average, one in two Australians will need in their lifetime. The LLW and ILW are currently stored in over 100 separate locations across Australia. As set out in the EM, the Facility will significantly improve Australia’s ability to safely and securely manage radioactive waste at a single site, rather than at many sites across Australia, and to meet our international obligations under the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, signed in Vienna on 5 September 1997, as amended and in force for Australia from time to time (the Joint Convention).
On Thursday, 13 February 2020, the Minister for Resources, Water and Northern Australia, the Hon. Keith Pitt MP, in his second reading speech explained further the intent of the bill:
The National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 gives effect to the commitment made by successive governments to the Australian community to establish a purpose-built National Radioactive Waste Management Facility to permanently dispose of low-level radioactive waste and temporarily store intermediate-level radioactive waste…
…the amendments in this bill will improve Australia's ability to meet our international obligations by ensuring that our radioactive waste is stored and managed in a manner consistent with the principles under the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management...
There is broad support for the location of the Facility in Napandee. The local community of Kimba have indicated their support through community ballots, public submissions, business and neighbour surveys…
The bill also repeals the existing site nomination and selection framework under the National Radioactive Waste Management Act 2012 and inserts new provisions which specify the site of the Facility. This revises the approach from making a ministerial declaration to acquiring the site through legislation. Specifying the site of the Facility in legislation will provide the parliament with the opportunity to have a say in the decision to progress this vital national infrastructure…
The bill also provides for acquisition of land for secondary all-weather road access, and for the identification of certain rights and interests in relation to this land that are not required...
[T]he bill provides for the establishment of a $20 million community fund, which will support the government's commitment to the economic and social sustainability of the Facility's host community. The Facility is an investment in the long-term safe and secure management of radioactive waste and, once established, is expected to be in operation for 100 years… The package also provides for up to $3 million from the government's Indigenous Advancement Strategy to strengthen Indigenous skills training and cultural heritage promotion in the successful community.
The bill changes the focus of the fund from a state or territory-based fund to a community-based fund, enabling the host community to make decisions on how the payment is spent to best support the establishment of the Facility and its operation in safely and securely managing controlled material.
Finally, the bill also improves the transparency of the National Radioactive Waste Management Act 2012 by making a number of amendments to provide clear and objective links between the operation of the act and the relevant constitutional heads of power… The amendments improve the transparency of the site selection and the mechanisms to support the community that will be delivering public services and infrastructure to the Facility.
Australia’s radioactive waste is produced by the use of radioactive materials in scientific research and industrial, agricultural and medical applications. This includes the operation of the Open Pool Australian Lightwater (OPAL) research reactor at the Australian Nuclear Science and Technology Organisation (ANSTO) in Sydney.
In its 2010 safety guide (RPS 20), the industry regulator Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) lists six classes of radioactive waste based on how much radiation is emitted and for how long. The classes are listed as:
(1) Exempt waste (EW): Waste that meets the criteria for exemption from regulatory control for radiation protection purposes. Exemption activity concentrations and exempt activities of radionuclides are specified in Schedule 4 of the National Directory for Radiation Protection (NDRP) (ARPANSA 2010).
(2) Very short lived waste (VSLW): Waste that can be stored for decay over a limited period of up to a few years and subsequently exempted from regulatory control according to arrangements approved by the relevant regulatory authority, for uncontrolled disposal, use or discharge. This class includes waste containing primarily radionuclides with very short half-lives often used for industrial, medical and research purposes.
(3) Very low level waste (VLLW): Waste that does not meet the criteria of EW, but does need a moderate level of containment and isolation and therefore is suitable for disposal in a near surface, industrial or commercial, landfill type facility with limited regulatory control. Such landfill type facilities may also contain other hazardous waste. Typical waste in this class includes soil and rubble with low activity concentration levels. Concentrations of longer-lived radionuclides in VLLW are generally very limited.
(4) Low level waste (LLW): Waste that is above exemption levels, but with limited amounts of long lived radionuclides. Such waste requires robust isolation and containment for periods of up to a few hundred years and is suitable for disposal in engineered near surface facilities. This class covers a very broad range of waste. Low level waste may include short lived radionuclides at higher activity concentration levels and long lived radionuclides, but only at relatively low activity concentration.
(5) Intermediate level waste (ILW): Waste that, because of its content, particularly of long lived radionuclides, requires a greater degree of containment and isolation than that provided by near surface disposal. However, ILW needs little or no provision for heat dissipation during its storage and disposal. Intermediate level waste may contain long lived radionuclides, in particular alpha emitting radionuclides, which will not decay to an activity concentration acceptable for near surface disposal during the time for which institutional controls can be relied upon. Therefore waste in this class requires disposal at greater depths, in the order of tens of metres to a few hundred metres.
(6) High level waste (HLW): Waste with activity concentration levels high enough to generate significant quantities of heat by the radioactive decay process or waste with large amounts of long lived radionuclides that need to be considered in the design of a disposal facility for such waste. Disposal in deep, stable geological formations usually several hundred metres or more below the surface is the generally recognised option for disposal of HLW.
Australia produces mostly low-level waste (laboratory items such as paper, plastic, gloves and filters) and some intermediate radioactive waste (for example, from the production of nuclear medicines). Australia does not produce any radioactive waste classified as high-level.
Some of Australia’s waste comes from the former High Flux Research Reactor (HIFAR) at Lucas Heights in Sydney. HIFAR operated for around fifty years but was retired in January 2007 and replaced by the OPAL reactor. During its life, HIFAR supplied millions of doses of nuclear medicine and provided neutron beams to study the structure of materials. In the 1990s, the Australian and French Governments agreed that France would reprocess HIFAR’s spent nuclear fuel. This reprocessed spent fuel was returned to Australia at the end of 2015. This waste is now being temporarily stored by ANSTO at Lucas Heights until a national facility is completed.
As at the beginning of 2018, the volume of existing low-level waste to be disposed of at the facility is 4975m3 and the volume of existing intermediate level waste is 1771m3. These volumes include waste packaging. The volume of future waste is 4843m3 for low level waste and 1963m3 for intermediate level waste.
Australia does not currently have a central facility for the storage or disposal of radioactive waste, which is currently held at more than 100 locations around Australia. Many organisations are using storage areas that were not designed for long term storage of radioactive waste. For example, under international safety standards, long term waste management facilities should be in geologically stable areas with low population density and not prone to flooding.
Attempts to establish a waste facility
The Parliamentary Library notes that there has been a long history of unsuccessful attempts to find a suitable site for a nuclear waste facility.
Past attempts to site a national waste repository, including near Woomera in South Australia and Muckaty in the Northern Territory, were unsuccessful, due to community concern, and resistance from state governments and affected local and Indigenous communities.
The pattern that emerges from the history of Australia's radioactive waste management is one of:
little attention to the management of radioactive waste until the 1970s (as was the case in most countries around the world);
very drawn-out policy processes since the 1970s for resolving radioactive waste issues;
(since the 1970s) sensitivities in the community causing significant difficulties for all governments in resolving radioactive waste management issues;
in-principle cooperation between the Commonwealth and the states and territories, but tensions between them whenever the Commonwealth has approached the issue of specific proposals to locate radioactive waste facilities at identified sites or notionally in their jurisdiction; and
despite some efforts, an inability of the Commonwealth to respond successfully to calls to resolve nuclear waste issues as a precondition to the further development of nuclear industries.
From 1980 to 2004, various Australian Governments led several investigations to establish national facilities for the waste arising from the medical, industrial and scientific use of radioactive materials.
In 1985, some State and Territory governments commenced studies to identify potentially suitable sites in their jurisdictions. The 1992 National Repository Project for low level waste had a preferred site near Woomera, South Australia, but was abandoned in July 2004.
The 2001 National Store Project for intermediate level waste was stopped following the abandonment of the National Repository Project in July 2004. The 2004 Commonwealth Radioactive Waste Management Facility investigation considered co-located facilities on Commonwealth land for the management of low and intermediate level radioactive waste produced by Australian Government agencies.
In 2009, the three sites selected by the previous Government on Defence land in the Northern Territory were ruled out.
Senate Economics References Committee–Selection process for a national radioactive waste management facility in South Australia inquiry, 2018
On 6 February 2018, the Senate referred an inquiry into the selection process for a national radioactive waste management facility in South Australia to the Senate Economics References Committee for inquiry and report by 14 August 2018.
The committee received 112 submissions, as well as additional information and answers to questions on notice, and held three public hearings:
6 July 2018 in Hawker; and
2 August 2018 in Canberra.
Following the completion of the inquiry, the committee tabled its report in the Senate on 14 August 2018 with the following recommendations:
If a National Radioactive Waste Management Facility were to be sited in an agricultural region, the committee recommends that the Department of Industry, Innovation and Science work with local stakeholders, so that part of the remaining 60 hectare buffer zone can be used to grow and test agricultural produce, in order to reassure the community and agricultural markets that the produce from the surrounding region does not contain excessive amounts of radiation and is safe for consumption.
The committee recommends that the Minister intensify and expedite efforts to fully engage with the Indigenous stakeholders near Kimba and Hawker so that comprehensive heritage assessments for all nominated sites can be completed.
The committee recommends that the government undertake an independent valuation of the land to be acquired to ensure that the financial compensation is consistent with the original proposal to compensate the landholder at four times the land value.
The committee recommends that the Department of Industry, Innovation and Science make submissions received during the consultation process publicly available in the circumstances where the authors originally intended for their submission to be made public.
The committee recommends that the Office of the Chief Economist within the Department of Industry, Innovation and Science undertake a policy evaluation of the first two phases of the site selection process for a National Radioactive Waste Management Facility.
The government responded to the committee’s report and recommendations on 20 November 2018. The government ‘Agreed in Principle’ with the first two recommendations and ‘Agreed’ to the final three.
Provisions of the bill
The bill contains three schedules:
Schedule 1—Site specification
Schedule 2—Establishment of Community Fund
Schedule 3—Other amendments
Schedule 1— Site specification
The EM explained that Schedule 1 amends the Act to repeal the provisions relating to the site nomination and selection process under the Act, to specify the site on which the Facility will be located and enable additional land to be acquired for the purposes of establishing and operating the Facility or for all-weather road access to the Facility.
A number of definitional change items precede item 10 which update Parts 2 and 3. The EM notes that Parts 2 and 3 currently prescribe the requirements for nomination and approval of potential sites for the locations of the Facility.
Specifically, Part 2 in its current form, provides:
…that a potential site for the location of the Facility may be nominated by a Land Council, within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 (section 5), or any person (section 7). Part 2 currently also provides that the Minister may declare that site nominations may be made (section 6) and approve a nomination to be further considered for the location of the Facility (section 9) in accordance with procedural fairness requirements.
While Part 3 provides the authority to the range of activities required of the Facility such as:
…conduct activities to enable further investigations of the nominated sites to inform the selection of a site (section 11). Part 3 also provides the ability to override most Commonwealth, State and Territory laws that may regulate, hinder or prevent activities identified in section 11 (sections 12 and 13).
Item 10 of the bill repeals both Part 2 and 3 and inserts a new Part 2. The EM states that the replacement Part 2 only comprises a new section 5 which specifies the site for the establishment and operation of the Facility.
The last item in schedule 1, item 38, repeals both schedule 1 and 2 of the Act. Schedule 1 originally repealed the whole of the Radioactive Waste Management Act 2005 (the 2005 Act), and replaced it with the National Radioactive Waste Management Act 2012. The EM notes there are no remaining transitional or application provisions that require administration in relation to the earlier repeal of the 2005 Act and, as such, this schedule is no longer required.
Schedule 2 of the Act was included as a consequence of amendments to the Administrative Decisions (Judicial Review) Act 1977 providing for the approval of land nominated under the 2005 Act to continue in force. The EM notes that as the bill repeals section 6 of the Act (at item 10), which provides for the approval of nominated land, this schedule is no longer required.
Schedule 2—Establishment of Community Fund
The EM explained that Schedule 2 repeals the provisions relating to the National Repository Capital Contribution Fund (NRCC Fund), which was intended to support delivery of enhanced public services and infrastructure to the State or Territory where the Facility was located. The provisions were added as an amendment to the National Radioactive Waste Management Bill 2010 during consideration before Parliament, before it was passed by both Houses. The provisions were included in the Act when the Commonwealth Government was working with the Northern Territory on a potential site, but the proposal was subsequently abandoned. The Schedule inserts new provisions to provide for a lump sum payment of $20 million (the National Radioactive Waste Management Facility (NRWMF) Community Fund Payment) to support the long-term social and economic sustainability of the host community to support the establishment of, and the ongoing safe and secure management of controlled material at, the Facility.
Schedule 2 also amends the provisions relating to the National Repository Capital Contribution Fee. This Fee was designed to recoup an initial $10 million toward the cost of the Facility’s construction, and to pay amounts over and above the initial $10 million into the NRCC Fund. The EM argued that these amendments uncouple the Fee from the Community Fund by ensuring that the Fee is payable only to the Commonwealth.
According to the EM, the amendments in Schedule 2 would also enable regulations to prescribe the NRWMF Community Fund entity, which would receive and administer the NRWMF Community Fund.
The bill would also require all NRCC Fees paid by non-Commonwealth and non-host State and Territory users of the Facility to be paid into the consolidated revenue fund.
Schedule 3—Other amendments
National Radioactive Waste Management Act 2012
The EM explains that schedule 3 provides for amendments to the National Radioactive Waste Management Act 2012 to a number of definitions to support the new definition of controlled material in new section 4A. The Act repeals the majority of references to radioactive waste and replaces them with references to controlled material. These amendments are consistent with the definition of “controlled material” in the ARPANS Act, which defines “controlled material” as including any natural or artificial material, whether in solid or liquid form, or in the form of a gas or vapour, which emits ionizing radiation spontaneously. The definition covers all types of waste that will be held at the Facility, so it is appropriate that the Act directly refers to it.
The specification of the site for the Facility in legislation was, according to the EM, supported by a comprehensive consultation process. Since 2015, the department has undertaken a voluntary site nomination and selection process under the existing legislative framework to acquire land to establish and operate the Facility. As part of that process, the responsible Ministers, according to the EM, approved the nomination of three sites within two communities (Kimba and Hawker) in South Australia for further consideration. According to the EM, significant community engagement activities occurred between 2015 and 2019 to inform nearby localities about the proposal and to ascertain levels of support for the Facility being located within their respective communities. This included:
staffing local offices with locally employed community engagement officers in each community;
establishing and facilitating engagement through the communities’ Consultative Committees, Economic Working Groups and a Heritage Working Group;
the provision of information about the various aspects of the Facility proposal through a variety of methods including community visits by technical specialists, social media, webinars, workshops, information sessions, and distribution of newsletters, fact sheets and independent reports;
public education visits to the Australian Nuclear Science and Technology Organisation for community members to learn about nuclear waste management;
direct consultation with neighbours, businesses and Traditional Owners, including through surveys;
a public submissions process for people within and outside of the communities to express their views, open between 1 August 2018 and 12 December 2019; and
community ballots undertaken by the Australian Electoral Commission, commissioned by the District Council of Kimba and the Flinders Ranges Council.
In developing this bill, consultation was undertaken with relevant Commonwealth departments and agencies across the Commonwealth, including:
Department of Agriculture, Water and the Environment;
Department of Prime Minister and Cabinet;
Geoscience Australia; and
Compatibility with Human Rights
According to the EM, the bill engages the following rights:
right to self-determination—Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);
rights to equality and non-discrimination—Articles 2, 16 and 26 of the ICCPR;
right to take part in public affairs and elections—Article 25 of the ICCPR; and
right to enjoy and benefit from culture—Article 27 of the ICCPR and Article 15 of the ICESCR.
Right to self-determination
This right is specifically focussed on groups in the community, particularly Indigenous groups.
The EM explained that the land specified in the bill as the site for the Facility was voluntarily nominated by its owners, and is part of an estate in freehold owned by private entities. This land will be acquired by the Commonwealth through the provisions in the bill. The EM recognised that some people within the local community did not support the nomination of the land for use as a radioactive waste facility. In particular, the Board of the Barngarla Determination Aboriginal Corporation stated its opposition to the proposal. However, the EM claimed that the nomination was strongly supported by the broader local community.
Native Title rights have been extinguished at the specified site; however, the Aboriginal heritage, either tangible or intangible, may still be present. The land was voluntarily nominated by its owners for selection as the site for the Facility. Additionally, the process for acquiring any additional land to extend the site for the purposes of establishing and operating the Facility or for all-weather road access includes a consultation period.
The EM argued that the consultation requirements to establish the Community Fund will ensure that the NRWMF Community Fund entity is representative of a broad range of views in the host community, including that of the local Aboriginal community.
The EM argued that, to the extent that the amendments engage the right to self-determination, they do so in a reasonable and proportionate way and do not operate to limit or restrict those rights.
Right to equality and non-discrimination
The objective of this right is that laws, policies and programs should not be discriminatory, and public authorities should not apply or enforce laws, policies and programs in a discriminatory or arbitrary manner.
The right to equality and non-discrimination is engaged because the Commonwealth proposes to acquire, occupy and use an area of land that is home to a diverse local community. The decision to acquire the site for the Facility should appropriately recognise the rights and interests of all members of the local community.
The EM claimed that to the extent that it creates or recognises a person’s rights or obligations the Bill does not, either directly or indirectly, draw distinctions between people or groups on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
The EM argued that the bill positively differentiates between the Facility’s host community and the broader public by providing for the establishment of a $20 million Community Fund. The Community Fund will contribute to sustainable health services, agriculture research and development, enhancements to local critical infrastructure, and further development of the Aboriginal community economy.
The EM argued that, to the extent that the amendments engage with rights to equality and non-discrimination, they do so in a reasonable and proportionate way and do not operate to limit or restrict those rights.
Right to take part in public affairs and elections
For each of the sites nominated as a potential site for the Facility, the EM argued that there has been positive recognition of the right to engage in public affairs, through public information and discussion, ballots and the invitation to make comments on the merits of the proposed Facility and its location. The EM explained that significant engagement activities occurred between 2015 and 2019 to inform the communities about the potential facility and ascertain the level of community sentiment for locating the Facility within their communities. These activities are listed above under 'Consultation'.
The EM argued that, to the extent that the amendments engage with the right to take part in public affairs and elections, they do so in a reasonable and proportionate way and do not operate to limit or restrict those rights.
Right to enjoy and benefit from culture
The bill engages this right because the development of a facility on the specified site may impinge on the freedom of people to engage in certain cultural practices on that land. However:
it is unlikely that the right of individuals to enjoy their own culture, practise their own religion and use their own language is directly affected, as the specified site is privately owned and used for agricultural purposes;
there are currently no identified registered places or objects of cultural significance to Aboriginal people on the specified site. However, should a culturally significant finding be made on the specified site in future, the Environment Protection and Biodiversity Conservation Act 1999 will operate to provide protections for cultural heritage or archeologically significant sites or artefacts;
people may benefit from the location of the Facility within their community through access to employment and through the financial support provided by the Community Fund; and
people will continue to benefit from scientific progress and its application, through the delivery of nuclear medicine, as the establishment of a facility represents an important phase in the nuclear medicine cycle.
The EM argued that, to the extent that the amendments engage with the right to enjoy and benefit from culture, they do so in a reasonable and proportionate way and do not operate to limit or restrict those rights.
In conclusion, the EM explained that the Government has assessed the bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of Human Rights (Parliamentary Scrutiny) Act 2011.
To the extent that the amendments engage with these rights, the EM argued that they do so in a reasonable and proportionate way and do not operate to limit or restrict those rights.
The bill will commence the day after the Act receives the Royal Assent.
According to the EM, the amendments in Schedule 2, relating to the Community Fund, will have a financial impact once the Facility obtains an operational licence, at which time the Commonwealth will make a single payment of $20 million to the entity prescribed to administer the Community Fund. The amendments contained in Schedules 1 and 3, relating to specification of the site and the relevant Constitutional heads of power, will have no financial impact.
Senate Standing Committee on the Scrutiny of Bills
The Senate Standing Committee on the Scrutiny of Bills reviewed the bill and expressed a number of concerns.
Significant matters in delegated legislation—acquisition of land by the Commonwealth
In relation to proposed section 19B, the Scrutiny of Bills Committee noted that notifiable instruments, unlike legislative instruments, are not subject to tabling, parliamentary disallowance or scrutiny by the Senate Standing Committee for the Scrutiny of Delegated Legislation.
The Scrutiny of Bills Committee's view was that significant matters, including the acquisition of land by the Commonwealth, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. Accordingly, the Scrutiny of Bills Committee requested the Minister's advice as to:
why it is considered necessary and appropriate to allow the Minister to specify additional land that is required to provide all-weather access to the site via a notifiable instrument, which is not subject to parliamentary tabling or disallowance; and
whether the bill can be amended to specify that:
any regulations prescribing additional land for expansion of the site made under proposed subsection 19A(1) do not commence until after the Parliament has had the opportunity to scrutinise the regulations; and
any instruments specifying additional land for all-weather access to the site under proposed subsection 19B(1) are disallowable legislative instruments or regulations that do not commence until after the Parliament has had the opportunity to scrutinise the instruments or regulations.
The Minister responded to the concerns raised by the Scrutiny of Bills Committee. The Minister's advised that it is considered necessary and appropriate to specify additional land for all-weather access to the site via notifiable instrument, rather than disallowable instrument, as it will provide for greater certainty for the Facility to obtain its operational license and the government to safely deliver the Facility. The Minister argued that this is consistent with past practice and that by specifying the use of notifiable instrument, the bill ensures greater transparency than in the past.
With regard to the acquisition of land for site expansion through regulation, the Scrutiny of Bills Committee acknowledged that proposed subsection 19A(2) limits the additional land that may be prescribed for expansion of the site. The committee also noted the Minister's advice that, subject to any regulatory requirements, the government expects to specify an acquisition time that sits outside of the relevant disallowance period.
The Scrutiny of Bills Committee concluded that it was up to:
The Senate as a whole [as to] the appropriateness of:
allowing regulations prescribing additional land for expansion of the site made under proposed subsection 19A(1) to commence before the Parliament has had the opportunity to scrutinise the regulations; and
specifying additional land that is required to provide all-weather access to the site via notifiable instruments, which are not subject to parliamentary tabling or disallowance.
Proposed section 19C sets out the consultation requirements that are to be undertaken prior to the Minister acquiring additional land either by under 19A or under 19B. Proposed subsection 19C(4) provides that the consultation requirements set out in 19C are to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule.
The Scrutiny of Bills Committee noted that the natural justice hearing rule is a fundamental common law principle and if it is to be abrogated or limited this should be thoroughly justified.
Accordingly, that committee requested the Minister's advice regarding why it is necessary and appropriate to limit the operation of this rule in relation to consultation conducted under this section.
The Minister advised that providing an exhaustive statement of the requirements of the natural justice hearing rule, and thereby limiting its operation, is considered necessary and appropriate in relation to the consultation conducted under proposed section 19C to provide greater certainty to impacted communities and stakeholders. The Scrutiny of Bills Committee noted that section 19C is intended to retain key elements of the procedural fairness requirements set out in section 18 of the current Act and that, while it is less extensive than the current requirements, this is appropriate as decisions would be unlikely to significantly affect the rights or interests of any person other than the owner of the land to be acquired.
The Scrutiny of Bills Committee:
… leaves to the Senate as a whole the appropriateness of excluding aspects of the natural justice hearing rule in relation to decisions about the making of regulations to expand the site and the making of instruments to provide all-weather access to the site.
Significant matters in delegated legislation—exclusion of State, Territory and Commonwealth laws
Proposed section 34GA provides that certain State or Territory laws cannot apply to regulate, hinder or prevent the doing of a thing under 34G.
The Scrutiny of Bills Committee's view was that significant matters, such as the exclusion of the operation of State, Territory or Commonwealth laws, should be included in the primary legislation unless a sound justification for the use of delegated legislation is provided. Accordingly, the Scrutiny of Bills Committee requested the Minister's advice as to:
why it is considered necessary and appropriate to allow regulations to exclude the operation of prescribed State, Territory or Commonwealth laws; and
the appropriateness of amending the bill to remove proposed subsections 34GA(2)–(4) and 34GB(2) which provide that the regulations may exclude the operation of prescribed State, Territory or Commonwealth laws.
The Minister advised that it is necessary and appropriate to allow regulations to exclude the operation of prescribed State, Territory or Commonwealth laws as the absence of these provisions would disadvantage landlords of shortlisted sites as remediation activities could be hindered by regulatory requirements that did not apply when the land was initially disrupted. The Scrutiny of Bills Committee noted the advice that any proposal to prescribe a State, Territory or Commonwealth law for the purposes of sections 34GA and 34GB would be subject to appropriate consultation with relevant departments and ministers and the regulations will be subject to disallowance.
Once again, the Scrutiny of Bills Committee:
… leaves to the Senate as a whole the appropriateness of allowing delegated legislation to exclude the operation of prescribed State, Territory or Commonwealth laws.
Significant matters in delegated legislation—establishment of community fund
The Scrutiny of Bills Committee has consistently raised scrutiny concerns about framework bills which rely heavily on delegated legislation.
The Scrutiny of Bills Committee noted that Schedule 2 leaves the majority of the detail regarding the NRWMF Community Fund to delegated legislation. The EM provides no justification for the use of such legislation. The Scrutiny of Bills Committee also noted that, as the terms and conditions will form part of a written agreement between the Commonwealth and the NRWMF Community Fund entity, there may never be an opportunity for the Parliament to have oversight of how any payments to the NRWMF Community Fund entity will be managed. Additionally, the Scrutiny of Bills Committee noted that:
the existing National Repository Capital Contribution Fund is a special account, while the NRWMF Community Fund entity is not; and
this may further decrease parliamentary scrutiny of spending as the new fund will not be subject to the same reporting requirements as the existing special account.
Accordingly, that committee requested the Minister's advice as to:
why it is considered necessary and appropriate to leave the establishment of the NRWMF Community Fund entity, as well as any additional terms and conditions on which any payment is to be made, to either delegated legislation or the provisions of a written agreement of which the Parliament may have no oversight; and
whether the bill can be amended to:
include at least high level guidance in relation to these matters on the face of the primary legislation, or
at a minimum, to provide that the regulations must, rather than may, prescribe other terms and conditions that are to be set out in the agreement under proposed subsection 34AC(7).
The Minister advised that it is considered necessary to leave the establishment of the NRWMF Community Fund entity to delegated legislation as it allows for the required flexibility to ensure the appropriate consultation can be conducted prior to its establishment and the needs of the host community are met.
The Minister also advised that the proposed subsection 34AC(5) sets outs the core condition of what the fund must be used for; however, it is not possible to provide high-level guidance with regard to the NRWMF Community Fund entity in the bill as its composition and structure is subject to future consultation with the host community.
The Scrutiny of Bills Committee:
… leaves to the Senate as a whole the appropriateness of leaving the establishment of the NRWMF Community Fund entity, as well as any additional terms and conditions on which any payment to the entity is to be made, to either delegated legislation or the provisions of a written agreement.
The Joint Committee on Human Rights
The Joint Committee on Human Rights reviewed the bill and also expressed a number of concerns.
Preliminary international human rights legal advice rights to culture and self-determination
With regard to the right to culture and self-determination, the statement of compatibility states that native title rights have been extinguished at the specified site, however, 'Aboriginal heritage, either tangible or intangible, may still be present'.
The statement of compatibility also states should a culturally significant finding be made on the specified site in the future, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) will operate to provide protections for cultural heritage. The Human Rights Committee argued it was unclear how the EPBC Act would fulfil this aim.
The statement of compatibility also argued that the right to self-determination is engaged by the bill, but seems to state that the local community near the area of the site, which would appear to include non-Indigenous persons, constitute the relevant group for the purposes of the right. It states that the nomination for the site was strongly supported by the 'broader community', although opposed by the Board of the Barngarla Determination Aboriginal Corporation.
The Human Rights Committee believed that further information was required in order to assess the engagement and compatibility of the measure with the rights to culture and self-determination, in particular:
what percentage of those who were eligible to vote in the community ballot were Indigenous;
what other consultation was held specifically with relevant Indigenous groups and what was the level of support for the site specification; and
once the radioactive waste Facility is operational, if in future, culturally significant findings are made on the site, how the EPBC Act would operate to ensure appropriate protection for cultural heritage.
In order to assess whether the bill engages and limits these rights the Human Rights Committee sought the Minister's advice.
The Minister advised that they are aware of the potential for Aboriginal cultural heritage to exist over the specified location. The Minister also advised that the Department had sought and will continue to seek the involvement of the Barngarla Determination Aboriginal Corporation as a representative Indigenous group, in the identification and management of cultural heritage. However, the Human Rights Committee noted the legal advice that in determining whether any limits on the rights to culture and self-determination are permissible under international human rights law, it is necessary to consider the extent to which relevant groups have been consulted, which should consist of a qualitative process of dialogue and negotiation, with consent as the objective.
Noting the stated opposition of the Barngarla peoples to the specification of Napandee as the site for the establishment of a radioactive waste Facility, and the potential for the site to impact on Indigenous cultural heritage, the Human Rights Committee believed that there remained a significant risk that the specification of this site will not fully protect the right to culture and self-determination.
Acquisition of additional land for expansion of site
With regard to the acquisition of additional land for expansion of site, the Human Rights Committee believed that further information was required in order to assess the engagement and compatibility of the measure with the rights to culture, self-determination and equality and non-discrimination, in particular:
whether the additional land for the expansion of the site (the boundaries of which are specified in the bill) currently has native title rights attaching;
whether the bill would enable native title rights to be extinguished without the full, free and informed consent of native title holders, and if so, how the rights to culture, self-determination and equality and non-discrimination will be protected;
whether the requirement to consult with anyone with a 'right or interest' in the land includes those who may have cultural ties to the land (but not native title);
why the consultation requirements set out in the bill are taken to be an exhaustive statement of the rules of natural justice, and what this means in practice;
why the bill enables the Minister to make a notifiable instrument to prescribe additional land for all-weather access to the site (which is not subject to any form of parliamentary oversight); and
if native title is extinguished without the full, free and informed consent of the traditional owners, what remedies are available to affected persons for any contravention of their rights to culture, self-determination and equality and non-discrimination.
In order to assess whether the bill engages and limits these rights the Human Rights Committee sought the Minister's advice.
The Minister assured the Human Rights Committee that it is not the government’s intention to extinguish native title rights or interests in the process of developing the radioactive waste Facility, and amendments may be necessary to make this clear. The Human Rights Committee considered it would be appropriate for the bill to be amended accordingly.
The Minister also assured the Human Rights Committee that the Department is aware of the potential for unregistered cultural heritage to exist in the area, and that the Department has sought and will continue to seek the involvement of the Barngarla Corporation in minimising the potential impact to cultural heritage, and that the bill sets out an obligation for the Minister to consult anyone with a right or interest in the expansion of the site.
The Human Rights Committee has noted that legal advice on the obligation under international human rights law to consult is much broader than mere comment prior to government acquisition. As such, the Human Rights Committee believed that there remained a significant risk that the expansion of this site will not fully protect the rights to culture and self-determination.
However, the committee noted that government amendments were passed in the House of Representatives to put beyond doubt that native title rights and interests, within the meaning of the Native Title Act 1993, will not be acquired or extinguished if additional land is acquired to provide for all-weather road access to the site for the Facility. As the supplementary EM makes clear, these amendments expressly prevent the Commonwealth from being able to acquire native title rights and interests if acquiring additional land under proposed section 19B.
No Regulation Impact Statement (RIS) has been provided.
Conduct of the inquiry
The committee advertised the inquiry on its website and wrote to relevant stakeholders and interested parties inviting written submissions by 26 March 2020 which was then subsequently extended to 9 April 2020. then As described above, the reporting date was extended on several occasions to 14 September 2020.
The committee accepted and published 105 submissions which are listed at Appendix 2.
Following the call for submissions to the inquiry, the committee received a significant amount of correspondence from individuals through two form letter campaigns.
Over 850 examples of the first form letter were received, and over 2,800 examples of the second. Due to the large number of documents received, the committee has resolved not to publish every item it received. Instead, the committee has chosen to publish one example of each letter and they can be found on the website as submissions 101 and 102.
The committee held four public hearings for the inquiry. The names of witnesses who appeared at the hearing can be found at Appendix 3.
The committee also conducted a site visit to the Woomera Prohibited Area on Tuesday, 18 August 2020.
The committee thanks all individuals and organisations who assisted with the inquiry, especially those who made written submissions and participated in the public hearings.
Notes on references
In this report, references to the Committee Hansard are to the Proof Hansard and page numbers may vary between Proof and Official Hansard transcripts.