2.1
The committee received and accepted a total of 105 submissions to the inquiry. The committee also received a significant amount of correspondence from individuals through two form letter campaigns—in total over 3,600 documents. Due to the large number of documents received, these were reviewed and accepted as correspondence by the committee as the email addresses and identities of their authors could not be verified. The committee chose to publish one example of each letter as a sample.
2.2
The form letters and the majority of published submissions received expressed opposition to the proposed Facility and the committee notes that many submissions provided the same or similar arguments that were heard during the Senate Economics References Committee inquiry completed in 2018. Despite the opposition, there was also support for the bill from crucial quarters. The committee sought a range of views during the three public hearings held.
Support for the bill
2.3
Those submitters who supported the bill and thus the Facility welcomed the new jobs, diversification of local industry and business opportunities including reversing the decline of population and support services that the new investment would bring. Others were also supportive of the government’s long-term objective of establishing a low-level disposal facility with intermediate level storage—an issue that has been unresolved for decades.
The South Australian Government
2.4
Minister Van Holst Pellekaan, on behalf of South Australia Government, has indicated no objections to the establishment of the Facility proceeding in Kimba, providing the following statement in a media release:
The South Australian Government has consistently said one best practice national facility is appropriate for the storage of this medical and research waste and Kimba has clearly expressed its willingness to be the host community.
Australian Nuclear Association
2.5
The Australian Nuclear Association (ANA) strongly support the bill. The ANA noted that Australia has, until now, not had a national facility to manage its radioactive waste and argued:
Having a centralised, national nuclear waste repository will reduce the current risk of having nuclear waste dispersed across many sites, in hospitals and clinics across Australia. Centralising all radioactive waste and containing it in a controlled & engineered setting will elevate our safeguards and accounting of radioactive material in line with international best practice.
The proposed design of the Facility will be highly engineered, meet international standards and be regulated by Australian nuclear regulator ARPANSA which will issue the licenses for site preparation, construction and operation.
2.6
Further, the ANA noted the process to site and establish a national facility has taken many years involved consideration of many potential sites and comprehensive community consultations. The implication being that the time was right to establish such a facility.
Australian Academy of Science
2.7
The Australian Academy of Science (AAS) supports the bill and believes it reflects the underlying scientific evidence base for the disposal of nuclear waste.
2.8
The AAS argued that the current situation is not sustainable over the long term as waste from these sites is stored at more than 100 sites around Australia. The AAS also argued that it is not possible for the waste that is currently stored at ANSTO in Lucas Heights to remain there indefinitely. A new site will allow stable, safe, long-term storage of the waste, which is necessary given the nature of the material.
2.9
On a more cautionary note, the AAS noted that the new Facility will need to comply with international requirements set by the International Atomic Energy Agency (IAEA) that address the risks associated with the heat and radiation that the spent fuel produces. It will be important to maintain the high standards set by the IAEA and the national regulatory framework in order to maintain safety and public confidence.
South Australian Chamber of Mines and Energy
2.10
The South Australian Chamber of Mines and Energy (SACOME) also supports the bill as it delivers on the Federal Government’s commitment to establish the Facility at Napandee and establish a $20 million Community Fund.
2.11
SACOME’s support is predicted on:
the Federal Government’s comprehensive consultation and assessment process;
the broad requirements for a suitable site have been satisfied;
that the technical studies have concluded the Napandee site is suitable and safe; and
there is broad community support for the proposal.
The Baldocks – owners of the selected site
2.12
Mr Jeff Baldock and Ms Jenny Baldock are the land owners of the property ‘Napandee’ which has been chosen for the Facility. The Baldocks believed that:
hosting the Facility can bring many opportunities for the entire district and beyond;
Kimba has been involved in this process for five years and has been provided with a large amount of information from the Department of Industry through the many visitors who are leaders in their fields;
the AEC vote demonstrated that almost 62 percent—a strong majority—of the Kimba community support hosting the Facility; and
it’s time to proceed with the project given how much time has elapsed and inquiries completed.
Working for Kimba's Future Group
2.13
The Working for Kimba's Future Group, through its appearance before the committee, also expressed strong support for the Facility:
…we strongly support having the National Radioactive Waste Management Facility on the selected site at Napandee, near Kimba. Our group, which represents people with a wide variety of community interests, perspectives and backgrounds, has observed increasing support for the Facility throughout the community. Over the past five years, our community has had many opportunities to learn about the Facility, the need for it nationally and how it will be safe and create 45 jobs directly, with many overflow benefits…
Based on the process, we know that the two industries—radioactive waste management and agriculture—can work safely side by side with no negative impact on our existing industry across the EP and beyond. We know about the numerous benefits this Facility will bring. It will deliver jobs to our community and wider region not only once in operation but also in the building stage. A business construction workshop alone had 120 people in attendance from all over the EP, finding out how they or their businesses can get involved in the project. In addition, the Facility would form new direct links between our community and the region for science and educational opportunities with Geoscience Australia, ANSTO, CSIRO and Canberra. We also know the Facility would lead to an increase in tourism in the area…
We also support the community fund being set out clearly in legislation. That fund reflects extensive consultation with the Kimba community through the Kimba Consultative Committee and Kimba Economic Working Group and will provide direct benefits to support economic growth, community infrastructure and development, and future opportunities to secure high-quality services and more…
We are satisfied that the process has been appropriate and thorough and that the community has been clear in its support. Sixty-two per cent of the community said yes to this Facility, including all direct neighbours to the site. That was one of the reasons our area was chosen to have it.
2.14
The Working for Kimba's Future Group also expressed the view that any suggestion of moving the Facility to Woomera would be inappropriate given the local support for the project:
Senator ANTIC: You would be aware, of course, of proposed amendments to move the Facility to Woomera. Following on from that explanation, I'm interested in what your views were regarding that proposal.
Mrs Baldock: Naturally, the 62 per cent of our community prefer it to be in Kimba, not Woomera, obviously, for all the reasons we have previously outlined.
The Kimba Council
2.15
The District Council of Kimba was also very supportive of the Facility and thus the passing of the bill. The Council sees it has a stimulus to the community and a way of securing that community's future. The Council commented:
We want to see the Facility move ahead here generating the type of employment opportunities that would encourage their members to consider moving to Kimba in the future. This Facility would directly create 45 full-time federal government jobs in our community. That's jobs for existing residents and opportunities for new ones. We believe the community will support these workers as much as the Facility will support our community.
This Facility comes with a combined $31 million funding package that was hard fought for and which would underwrite the economic and employment stimulus opportunities that will arrest and reverse our population decline. That includes the $20 million community fund that we believe should be indexed to reflect the fact that it has otherwise declined in real terms year on year through the delays in this process. This Facility will deliver a new industry, new opportunities and new growth for the people of Kimba and help our community not just to survive but to thrive for generations to come.
2.16
Additionally, on behalf of the Kimba community, the Kimba Council noted its strong dissatisfaction about the proposed amendment to move the Facility to Woomera. The Council felt that it has undertaken the process in the good faith with government and has made a decision and considers the notion that Parliament would arbitrarily take this away and impose it on another community, that has not gone through the process nor indicated their willingness to host the Facility, is disrespectful and at odds with a community who wants it:
Senator ANTIC: Aside from putting the project back a number of years—maybe as many as 10; who knows?—and aside from the fundamental problems that go with it, does the council have a view about the proposal to move the Facility to Woomera?
…
Mr Johnson: I guess my point is that our community has been engaged and invested in this process for a really long time. And to now just throw it in a different location, like Woomera, is disrespectful on so many levels. It doesn't recognise our commitment. It ignores the enormous support our community has given.
Mr Wesley and Ms Lisa Schmidt
2.17
Mr and Ms Schmidt are a Kimba couple with three children who run a family business, Agsave Merchandise, and operate a public carwash. Their business has been serving Kimba and surrounding district farmers for over 30 years.
2.18
The Schmidts are supportive of the Facility as they believe it will provide an economic stimulus to the region through increased employment and through the community benefit fund. This, they believe, is particularly important as the economic health of the region is dependent on primary industry—i.e. agriculture—which is weather dependent:
We believe that this is an amazing opportunity not only for Kimba and the Eyre Peninsula but for the whole of South Australia.
The construction phase alone will create many job opportunities for tradespeople, contractors and businesses, with flow-on effects for the wider community and beyond. The promise of 45 jobs to operate the Facility will give a massive economic boost to the district, which will in turn bring more families to town and give the town long-term financial stability. I'm sure this would help us to retain vital services such as the school, the hospital, aged care and community services. The community benefit fund of $2 million that we have received already has seen huge improvements around the town and lots of upgrades for community groups' facilities.
Our population has been in steep decline over the past 30 years, and there are many empty houses for sale or lease that can be rented or sold and occupied. Kimba is in a low-rainfall area, with a district average of 300 millilitres per year. Droughts, dry years and devastating frosts are common, which means that our primary income is volatile. Being a farming community, when the crop doesn't produce we all suffer financial uncertainty. As business owners and parents we crave stability, and the radioactive waste Facility is exempt from wavering weather patterns.
2.19
The Schmidts also believe that the process of selecting the site has provided ample opportunity for review:
The fact that there has been a vocal minority opposing the building of this Facility has meant there have been a lot more questions asked and answered throughout this process than there would have otherwise been if everyone had been all for it. We believe that Kimba and its citizens are collectively the most educated community on the subject of low- and-intermediate-level radioactive waste storage and disposal in Australia... We're of the opinion that, because of the public education on the storage and disposal of radioactive waste in our town, this community has spoken and the majority is right.
Ms Donna Johnson
2.20
Ms Donna Johnson, a Kimba resident, also supported the bill. Ms Johnson’s submission argued that the Kimba community had been well informed on all aspects of the debate and provided a list of experts from whom the community had heard express their views.
2.21
Ms Johnson is satisfied with the consultation arrangements arguing that those outside the Kimba community:
…have often pre-conceived and factually incorrect assumptions, with no investment in this long and intensive consultation process. It is absolutely right and fair that Kimba residents and ratepayers had its opportunity to vote to approve hosting this Facility in our district and the multiple times we have said yes is testament to this consultation and the knowledge we have gained.
2.22
Ms Johnson dismissed concerns about safety generally: 'even those bitterly opposed concede, "there are no safety concerns"', and that the transport of the radioactive material:
…is under strict regulation and is completely safe. If we think about some of the more volatile materials transported daily past our front doors, for example, fuel, acid, fertiliser or explosives, its incomparable and a ridiculous concern.
2.23
Finally, Ms Johnson believed that:
The $20 million Community Fund is appropriate and completely reasonable when you consider how the community of Kimba has engaged in this lengthy and controversial consultation. We argued strongly for a fund to deliver benefits to the community throughout the period that the Facility would remain active in Kimba, 100—300 years, providing an ongoing and sustainable benefit.
Mr John Newlands
2.24
Mr Newlands agreed with the selection of the Kimba site, and sees the decision as an opportunity for further development. Mr Newlands argued that further consideration be given to synergies with:
increased desalination for Eyre Peninsula and Roxby Downs;
the Cape Hardy port proposal and road links; and
co-ordination with a possible high-level waste Facility in the Woomera Prohibited Area.
2.25
Finally, Mr Newlands agreed with STEM scholarships for local students but cautioned against spending the uncommitted $20 million of the $31 million on what he called ‘Kimba vanity projects’. He also recommended consideration be given to related development for other struggling towns.
Opposition to the bill
Themes
2.26
Given that most of the 105 submissions opposed the bill, analysis of their views is best done on a thematic basis, rather than that of individual perspectives. Many of these submissions concentrated on broader issues generally unrelated to the bill's provisions. The main points of opposition focussed on:
the consultation and voting process as well as community support;
the views of the Indigenous communities – in particularly that of the Barngala people;
the safety of the Facility and that of transporting radioactive material to the Facility; and
the potential impact of the Facility on local agriculture and impact on the perception of the Eyre Peninsula as a ‘clean and green’ food growing region.
Consultation and voting process as well as community support
2.27
A number of submitters expressed scepticism about the level of community support expressed for the Facility, the voting process used to ascertain that level of support and the consultation process more generally.
2.28
Ms Geraldine Gillen observed:
The "broad support" claimed to have support for the location of the Facility of Napandee was set up by the Government to give a skewed result. The Barngarla people who have Native Title over the land have not been respected or consulted. Their efforts before the court have failed. Yet again showing that this Government continues to disempower and dispossess the Barngarla Traditional Owners who are unanimous in their opposition to the proposed nuclear waste Facility...
Besides the Barngarla people, many people in the Kimba community were unable to vote. People who originally were told they were neighbours, suddenly were not because a road between their property and another deemed them to be ineligible. People holding property who were just outside the area, did not get a vote. The process of [who] was eligible for voting needs to be explored by this Committee. Statistic[s] have been misused both by the Government and then the media.
It is not only Kimba locals who ought to have had a say in this important decision. It is an important issue for All Australians particularly all South Australians…All stakeholders who are within the transport corridors where this waste is intended to be transported, and that could include further down Eyre Peninsula, need to be consulted before this Bill before Parliament is passed.
2.29
Mr Austen and Ms Thelma Eatts expressed similar views:
Approximately 824 people were eligible to vote in the ballot with 745 papers returned to the Australian Electoral Commission and 735 were accepted.
The Results were 61.5 per cent in favour 39.5 per cent against.
61.5 per cent votes in Kimba have made the decision that not only Kimba and Eyre Peninsula, but the whole population of South Australia approximately 1.5 million people will have a Radioactive Waste Facility whether they want it or not. It is undemocratic, and unfair, the whole proposition should be scrapped.
2.30
The Medical Association for Prevention of War (Australia) was less generous in its assessment of the poll result:
Former federal Resources Minister Matt Canavan stated in Parliament that 65 per cent support for the siting of a National Radioactive Waste Management Facility (NRWMF) would meet the Government's requirement for 'broad community support'. Ironically, he qualified that statement by noting that other factors would need to be taken into account including the views of Traditional Owners…
When the Barngarla Determination Aboriginal Corporation commissioned an independent confidential postal survey of Traditional Owners, conducted by Australian Election Company, 100 per cent of respondents voted 'no' to the proposed nuclear Facility.
In 2016, the Department’s Principal Advisor Bruce Wilson confirmed the Minister would need 'at least that [65 per cent], if not more' before proceeding with a siting decision.
But only 54.8 per cent of voters deemed eligible by the government supported the proposed nuclear Facility in the Kimba ballot held last year, well short of the 65 per cent benchmark. If the results of the Barngarla ballot are combined with the government-initiated ballot, the overall level of support falls to just 43.8 per cent of eligible voters (452/824 for the Kimba ballot, and 0/209 for the Barngarla ballot).
Views of the Indigenous communities
2.31
Submitters also expressed a general concern about Indigenous community engagement in the consultation and selection process, as well as potential violation of those communities’ rights.
2.32
The Yankunytjatjara Native Title Aboriginal Corporation (YNTAC), Tjayiwara Unmuru Aboriginal Corporation (TUAC), De Rose Hill—Ilpalka Aboriginal Corporation (DRHIAC) and the First Nations of South Australia Aboriginal Corporation (FNSAAC) submitted, via Ms Karen Lester, their concerns over the bill’s provisions.
2.33
These groups are opposed to bill on the basis that they claimed there had been no engagement or consultation with their members, or the organisations of which they are a part.
2.34
Although they acknowledge that the specified site for the radioactive waste management Facility lies in the Barngarla Native Title Determination Area, this land has significance for a wider group of Aboriginal people, including members of YNTAC, DRHIAC, TUAC and FNSAAC. They argued that the proposed use of the specified site is a matter of significance for Aboriginal people from across South Australia, whose non-native title rights and interests would be affected by the construction and operation of a radioactive waste management facility at this site.
2.35
In particular they raised concerns:
…about the way section 34GB the bill overrides the application of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHPA) and the Environmental Protection and Biodiversity Conservation Act 1999 (EPBCA), in relation to the activities authorised under section 34G of the Bill. Many of the activities contemplated by section 34G have the potential to be highly destructive to Aboriginal sites and objects which would otherwise be protected by ATSIHPA. These activities also have the potential to cause serious environmental damage of the kind that would otherwise be prevented by the EPBCA. Parliament should not allow the introduction into legislation of provisions that undermine the fundamental objects and functionality of essential legislation like the ATSIHPA and the EPBCA.
2.36
The four groups requested that opportunities be created for negotiation with Aboriginal people in relation to the proposed activities at the specified site.
The Barngarla people
2.37
The Barngarla Determination Aboriginal Corporation (BDAC) expressed its particular disappointment:
The Committee would be aware that members of BDAC were excluded from participating in a community ballot, facilitated by the District Council of Kimba between 3 October 2019 and 7 November 2019, to gauge support for the nominated sites of Napandee and Lyndhurst at Kimba. As the First Peoples for the Kimba area, this exclusion was alarming to our community given the permanent impact that the National Radioactive Waste Management Facility (NRWMF) would have on Country.
The Barngarla people also hold many parcels of native title land very close to the NRWMF location, and have the right to live on and use this land. That native title land was, and is in many cases, closer to the proposed site than the town of Kimba to the site. To be excluded from the ballot on the technicality that the land was not rateable, was terrible for the Barngarla community. The ballot returned a yes vote whilst excluding over 200 Barngarla persons who would likely have voted no. Clearly the entire legitimacy of the site selection process is, at best, highly questionable in these circumstances. It is Barngarla’s position that the site selection process has entirely miscarried. There is clearly no broad community support and such material suggesting there is, was manufactured by gerrymandering the ballot to exclude the Barngarla.
2.38
The Barngarla Determination Aboriginal Corporation expressed deep concern over the bill’s provision to prevent any judicial review:
As Schedule 1 of the bill will amend the NRWMF Act, Parliament is now being asked to directly legislate the selected site for the NRWMF. It is the Barngarla’s position that Schedule 1 of the bill is a blatant and indisputable attempt to prevent any judicial review proceedings which would have been initiated by the Barngarla people (and potentially other members of the Kimba Community, some of whom have indicated they were considering it) in relation to any declaration made by the Minister under section 14 of the NRWMF Act.
Should the Government’s bill proceed and the mandatory requirements under the NRWMF Act be abandoned, a removal of judicial review would ultimately deprive the Barngarla, along with others, of the fundamental legal right to such review of an administrative decision-making process. The consequence of such legislative 'sidestepping' around the agreed process under the NRWMF Act is, in our view, in direct conflict with the very foundation that underpins Australia’s democratic principles of government. It would also allow the Minister not to comply with the process set down by Parliament in the NRWMF Act, and then legislate around this. BDAC believes this will clearly set a terrible precedent if the Government, through the introduction of Schedule 1 of the Bill, is now successful in having Parliament remove judicial oversight in respect of a decision which is in fact the culmination of a lengthy executive Government decision-making process.
2.39
The Ngoppon Together Reconciliation Group broadly supported the Barngarla people’s position.
Safety of the Facility and the transporting of radioactive material
2.40
A number of submitters expressed concern over the safety aspects of the Facility and the transportation of radioactive material to it.
2.41
The Josephite SA Reconciliation Circle commented that the bill was not consistent with best practice for transport and safety:
The NRWM Facility plan for 'indefinite storage' of ANSTO nuclear fuel wastes and Intermediate Level Wastes is not consistent with longstanding advice of the regulator ARPANSA, Radiation Health & Safety Advisory Council and of the Nuclear Safety Committee (NSC) on International Best Practice. We note also that the NSC has advised (2013) that dual handling transport for interim storage as named in our Introduction above 'does not represent International Best Practice' and “also has implications for security” and for safety.
2.42
The Public Health Association of Australia submitted:
There are inherent risks of radioactive spillage and environmental contamination in transporting nuclear waste. The locating of any radioactive waste management facility should only proceed with relevant State and Territory approval, and fully informed local community consent, including communities through which the waste is to be transported. While the Explanatory Memorandum to the Bill outlines the consultation processes which occurred with the communities local to the site itself, there is no apparent mention of consultation with communities through which waste would be transported to reach the site.
2.43
The Maritime Union of Australia also expressed strong reservations about the transport of radioactive material, devoting a significant share of its submission to the topic:
There is no logic behind the proposal to move long-lived intermediate-level waste (ILW) from interim above-ground storage at Lucas Heights to interim above-ground storage at the Kimba site. The proposed double-handling (once to the Kimba site, then at some unspecified time to a disposal site) makes no sense whatsoever, it exposes communities to unnecessary risks, and it exposes workers (including MUA members) to unnecessary risks. Further, ARPANSA's Nuclear Safety Committee has stated that dual handling in transport associated with interim storage 'does not represent international best practice' and raises 'implications for security'.
Additionally, the considerable distances involved create a whole additional level of risk. The more time a truck is on the road the greater the chance of an accident. International best practice is the shortest distance possible for waste transportation to a permanent storage site.
Potential impact of the Facility on local agriculture
2.44
Finally, a number of submitters expressed concern about the impact of the Facility on the agricultural industry—both real and perceived.
2.45
Mr Peter Woolford, President of the No Radioactive Waste on Agricultural Land in Kimba or SA group, expressed that group's concerns. The group is not against a facility per se; rather, it is against a facility on agricultural land:
We fully understand the need for Australia to establish a radioactive waste dump; however, we do not feel that the federal government has undertaken to find the best site for the facility. The ARPANSA code of conduct for disposal of radioactive waste includes a criteria that the immediate vicinity of the facility have no insignificant natural resources, including potential valuable mineral deposits, and that it have little or no potential for agricultural or outdoor recreational use. Only four per cent of South Australia's arable farming land and the Eyre Peninsula make up a large portion of that. Our agricultural industry is and will always remain central to our town and region. That's why it's so important to maintain our clean and green reputation.
2.46
In her submission, Ms Susan Craig noted that South Australia’s primary industries based on grains, livestock, horticulture, wine, seafood, forests and dairy sectors contribute significantly to the state’s exports. For example, in 2017‒18, South Australia’s gross food and wine revenue totalled $20.3 billion.
2.47
Accordingly, Ms Craig and other submitters felt that the establishment of the Facility may endanger the reputation of South Australia’s agricultural produce. Ms Craig concludes by saying:
South Australia’s strength in this marketplace is the trust other countries have, in not only our clean reputation, but SAFE food. The establishment of a nuclear waste facility, in particular one that is built in the heart of agriculture is a profound contradiction of South Australia’s position and will put that reputation and business at risk.
2.48
Mr Sam Tucker, the Managing Director and owner of Tucker’s Natural, expressed similar views. Mr Tucker believes that placing the Facility:
…shows callous disregard of the livelihoods and care of Kimba farmers, the SA agricultural community, SA Food and Beverage Manufacturers and the general public…
For Tucker’s Natural, a non-nuclear waste site + non-GMO accreditation are critically important for the long-term growth and viability of Tucker’s Natural as an Australian manufacturing facility.
Responses by the Department of Industry, Science, Energy and Resources
2.49
In their submission to the inquiry, the Department of Industry, Science, Energy and Resources (the Department) provided its observations to the concerns discussed above.
Consultations, the voting process and community support
2.50
In its submission, the Department explained how, following approval of the three sites, it engaged with the local communities, Traditional Owners and the wider public to ensure all interested parties had avenues to receive accurate and timely information as well as express their views on the proposal. The Department argued that this ensured that interested community members were fully equipped to make informed decisions. Information and engagement activities included:
the provision of information about the various aspects of the Facility proposal including community visits by technical specialists, social media posts, webinars, workshops, information sessions, and distribution of newsletters, fact sheets and independent reports;
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 Heritage Working Group;
public education visits to ANSTO for community members to learn about nuclear waste management (57 visits, involving more than 230 people); and
direct consultation with the Minister and department and community stakeholder groups including neighbours, businesses and Traditional Owner groups.
2.51
The Department’s submission also explained that the former Minister for Resources and Northern Australia, Senator the Hon Matthew Canavan, consistently said he would not reduce ‘broad community support’ to a single number and that no one group or individual has a right to veto the Facility.
2.52
The committee notes some concerns raised about the removal of judicial review for a site selection decision under the Act. However, the Department expressed the view that by specifying the site in legislation, the decision to acquire this important national Facility will be a decision of the Parliament of Australia, representing the people of Australia, rather than being at the discretion of one minister. Decisions made through the parliamentary process provide all members of Parliament the opportunity to scrutinise and comment on the proposal, and to put forward amendments to the bill.
2.53
Additionally, before the operation of the Facility commences, those with a right or interest in the land may also have further opportunities to comment on the assessment processes and decisions under regulatory approval frameworks such as the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and the Australian Radiation Protection and Nuclear Safety Act 1998 (ARPANS Act).
2.54
The EPBC Act provides three ways in which a person can seek a review or a reconsideration of an administrative decision, however not all avenues are available in all cases. These avenues are:
request for reconsideration;
both reconsideration and merits review of decisions enable all aspects of a decision to be reconsidered on their merits, and a new decision to be substituted in place of the original decision; and
under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) and section 39B of the Judiciary Act 1903, the Federal Court has power to review Australian Government decisions of an administrative nature, to determine whether they have been made according to the law. The Court does not consider the merits of the decision.
2.55
The ARPANS Act provides a framework for the regulation of radiation sources and nuclear and other facilities controlled or operated by Commonwealth agencies.
2.56
Commonwealth agencies, which are currently involved in activities covered by the ARPANS Act, are required to submit applications for licence. There are two types of licence described in the ARPANS Act:
a source licence; which is required by Commonwealth entities (‘controlled persons’) who deal with controlled material or controlled apparatus (section 32), and
a facility licence; which is required by Commonwealth entities (‘controlled persons’) who are engaged in certain conducts in relation to a nuclear installation or a prescribed radiation facility (section 33).
2.57
Section 40 of the ARPANS Act deals with a right of review in relation to a licence decision. It provides that an eligible person (either a licence holder or person applying for a licence) may request that the Minister reconsider the licence decision.
2.58
Under subsection 40(5), application may be made to the Administrative Appeals Tribunal for review of a decision of the Minister made under subsection 40(3) to confirm, vary or set aside the licence decision.
2.59
Ministerial review is also available in relation to CEO directions given to Commonwealth entities under section 41.
2.60
Finally, judicial review of administrative decisions is also available under the ADJR Act and the Judiciary Act.
2.61
A number of different indicators have informed whether there was broad support in the local communities that were in the process. These included formal submissions, results from community ballots, business surveys, neighbour surveys and views directly obtained from Traditional Owners.
2.62
Finally, the Department explained that, in terms of the Barngarla’s own ballot process, the former Minister considered the results of that ballot alongside the ballot of people who live in Kimba, submissions received, neighbour and business surveys, and direct feedback including at the drop-in offices over several years.
2.63
The Kimba District Council also wanted to put on the record that the decision to restrict its ballot to residents and ratepayers, was that it was the usual process, not some form of manipulation. Indeed:
… we are a council. We applied the same yardstick and parameters as are applied in council elections.
We based the criteria around the same criteria that we use at the Local Government (Elections) Act. The poll was classified as a ballot and was held by the Australian Electoral Commission.
Views of the Indigenous communities
2.64
The Department argued that it actively sought the views of Traditional Owners and will continue to engage with them on matters of heritage and to provide opportunity for employment and economic benefit.
The Barngarla people
2.65
The Department explained that it sought formal engagement with BDAC since it was formed in early 2017 and that there had been extensive correspondence between it and BDAC’s legal representatives since early 2017.
2.66
There has been regular correspondence between the Department and BDAC’s legal representatives since early 2017, including by letter, email and telephone contact. In addition, the department has sent fact sheets to NWL for distribution to BDAC members.
2.67
The Minister met with members of the BDAC board during a community visit on 22 August 2019. This meeting allowed both parties the opportunity to discuss the project and the Minister reiterated the offer to financially support BDAC to conduct a poll of its members on their support of the Facility.
2.68
At the public hearing of 28 August 2020, the Department further explained that:
The department has sought to consult with Indigenous communities in line with the principles of free, prior and informed consent, known as the FPIC principles, under the UN Declaration on Human Rights. Australia's obligation under those principles is to consult with the aim of achieving agreement with or the consent of the Indigenous peoples affected. Those obligations don't extend to providing traditional owners with a veto right in those consultations. In fact, a right of veto would set a really significant precedent for future governments seeking to access land where there is no native title to progress infrastructure in the national interest.
Also important in determining what is appropriate consultation, it is relevant to consider the impact the project will have, and the absence of native title is a relevant factor in those considerations. The site we are talking about has been freehold land extensively farmed for approximately 80 years. None of that diminishes the fact that there is a need to adequately protect cultural heritage that may exist at the site. In fact, in our studies and in the work BDAC's undertaken themselves we have identified some areas in the far south-west corner of the property that have the potential to have some heritage values that will need to be protected. We will continue to seek engagement with the Barngarla Determination Aboriginal Corporation on the development of a more detailed heritage study and archaeological surveys that will be done through the progress of the site.
Safety and transport of radioactive material
Safety of the Facility
2.69
The Department in its submission explained that the regulatory requirements for the Facility will be ongoing from siting, construction, operation and through to the decommissioning phase. The regulatory framework will ensure that the facility continues to operate in a safe manner.
2.70
At the public hearing, the Department acknowledged that intermediate-level waste would be moved to the Facility on a temporary basis and that it will be decades until a permanent storage location is identified. The Department also provided greater detail on the intermediate level waste and why it is necessary to move it to the proposed Facility:
We also have holdings of, and about one quarter of our total holdings are, intermediate-level waste. Of that intermediate-level waste, there are three kinds. About 96 per cent of our intermediate-level waste is solid waste that's very similar in nature to our low-level waste—gloves and gowns and building rubble, for example. That is only temporarily stored at ANSTO and the subject of my references earlier to Senator Antic about ANSTO providing a plan to ARPANSA on how it would manage that waste and proposing that it be moved to the Facility. Three per cent of the waste is liquid waste that will need to be transformed into vitrified glass—the synroc technology. And one per cent is the TN—81 casks—those large casks of the reprocessed spent fuel. So the vast majority of those holdings of intermediate-level waste are only in very temporary storage facilities at ANSTO.
There is projected intermediate-level waste that ANSTO does not have capacity to store without having an impact on ANSTO's operations, and therefore we propose, and the intent of the Facility is, to co-locate that intermediate-level waste with the other low-level waste, both from ANSTO and from the hundred-odd different locations around Australia, into a purpose-built, consolidated Facility.
2.71
The Department further explained that radioactive waste will need to be conditioned and packaged to meet appropriate Waste Acceptance Criteria. Once the Facility has entered the post-closure phase, there will be ongoing environmental monitoring, to provide ongoing assurances of safety.
2.72
Properly conditioned and packaged intermediate‒level waste can be managed safely for very long periods of time above ground, but will eventually need to be moved to a final disposal site. The Department concluded by saying that while the material inside the containers will be more radioactive for far longer than low‒level waste, storage of the intermediate‒level waste packages will not pose any risk to people or the environment.
Transporting waste
2.73
The Department reported that Australia complies with the Code of Practice for the Safe Transport of Radioactive Material as set out by ARPANSA. The code of practice adopts the International Atomic Energy Agency’s Regulations of the Safe Transport of Radioactive Material, 2005 edition.
2.74
The Department argued that, in Australia, some 10,000 doses of nuclear medicine are distributed to 250 hospitals and medical centres in country and regional areas each week on public roads and commercial flights, without incident. Radioactive material has been safely transported for about the past 60 years and the Department claimed that there has never been an accident resulting in a significant impact on the health and safety of people or the environment.
2.75
Finally, the Department noted that there have been more than 7,000 international shipments of spent fuel (more than 80,000 tonnes) since 1971. The Department claimed that there has been no breach of containment or release of radiation as a consequence of any of these shipments. Around the world, 20 million packages of radioactive material are safely transported each year on public roads, railways and ships. The Department argued that the in-built safety features of the packages, regulatory controls, and response procedures have always worked to ensure safety.
Impact on local agriculture.
2.76
The Department argued that the Facility will be a world-class, purpose-built, state-of-the-art facility operated in an open and transparent way, in line with international best practice. It will be subject to strict regulation and meet a high bar in terms of licencing and environmental approvals. It will only proceed if the site meets all technical and safety criteria.
2.77
The advice from the experts in the Australian Department of Agriculture, based on both international and domestic experience, is that there is no reason why there would be any issues for Australia obtaining export licences or accreditation with regard to agricultural produce.
2.78
The Department noted that radioactive waste facilities in the Champagne region of France have not affected the production or export of wheat, canola, grape or dairy. Strict regulatory and safety measures here in Australia are designed to ensure that radioactive materials do not enter the environment or pose a risk to the community or surrounding agricultural land.
Committee comment
2.79
The bill 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 Australia’s domestically produced low-level waste, and store Australia's intermediate-level waste for a period of time sufficient for the government to establish a permanent ILW disposal facility, consistent with international obligations and best practice.
2.80
The successful operation of the Facility will greatly improve the safety and security of radioactive waste management in Australia. The Facility will support the nuclear science and technology industry and bring Australia into line with some of our key international partners.
2.81
This bill comes at the end of a consultation and technical assessment process spanning more than four years, where owners voluntarily nominated their land to be considered for the location of the Facility.
2.82
The committee understands that the issue of radioactive material is an emotive one. Factual analysis conducted by the Department of Industry and other organisations has been helpful in providing clarity to a number of issues raised.
2.83
The committee notes that, through the evidence that has been received, a suitable site has been found and one that has been provided by a willing host. Although there is some dispute about the numbers, it can also be concluded that the Kimba community is generally supportive notwithstanding objections by the Barngarla people and other interested parties.
2.84
The committee noted the clear advice of AECOM Australia Pty Ltd as to the suitability of the site. In 2018, AECOM was contracted by the Department to assess the technical suitability of three short-listed sites in South Australia being considered for the siting of the Facility. The short-listed sites were characterised for the purpose of a technical assessment to determine whether there were any significant environmental values, hazards or infrastructure constraints that would preclude a site from further consideration for siting of the Facility.
The Napandee site had the lowest risk rating of the three sites considered. From a technical point of view, the Napandee site was limited to flora and fauna around presence at the site, around flooding. They were the two key contributing factors to those risk ratings. There are other risk ratings that were identified in the site assessment report but were outside of our technical assessment…
It is clear in our minds on technical grounds that Napandee is the preferred site.
2.86
AECOM also noted that their report had been peer reviewed and that there was, to their knowledge, no criticism of their report.
2.87
This was reinforced by the Department of Industry who stated:
The site assessment process—the technical assessment of the site—is provided in quite some detail, attached to the department's submission to the inquiry. That site assessment was undertaken over approximately three years. It included assessments of the safety of the site, using some of the characteristics of the regulatory assessments as a proxy for our safety assessments. They covered factors such as volcanism; geology; meteorology; hydrology; geotechnical considerations; groundwater risk; radionuclide dispersion in the atmosphere; demographics, such as nearby human activities and land use; ambient radioactivity; hydrology of the site more generally; seismic risk; flora and fauna; traffic and transport; land use planning; agriculture; and Aboriginal cultural heritage, just to run through a few of the kinds of things to which consideration was given. Those assessments were based on modelling that was peer reviewed by regulators. The assessments were undertaken by a range of organisations, including AECOM, Jacobs, ANSTO and Geoscience Australia. All of the assessments were peer reviewed by organisations that weren't involved in the actual drafting of the assessments. For example, where ANSTO, AECOM and Jacobs may have undertaken a particular assessment, those assessments were peer reviewed either by Geoscience Australia or the CSIRO.
2.88
In response to those who argued that the material currently being stored at Lucas Heights should remain there, the committee notes that ANSTO, in its appearance before the committee, explained that Lucas Heights was not a suitable site as it:
…is not technically capable of holding the intermediate-level waste for technical and geotechnical reasons, so it will never qualify as a site.
2.89
This was reinforced by the Department's assessment that both Lucas Heights and Woomera were unsuitable locations for the Facility being proposed for Kimba. With regard to Lucas Heights:
The ANSTO Lucas Heights campus is a total of 70 hectares with more than 80 buildings located on it. The small amount of remaining free space at Lucas Heights will need to accommodate the expansion of the campus’ future science and research activities. The Facility requires at least 100 hectares and will therefore not fit within the ANSTO campus.
As noted in ANSTO’s submission to this Inquiry (Submission 21), regardless of the size limitations, the Lucas Heights campus would be unlikely to satisfy geological and hydrological requirements of a disposal site.
ANSTO’s mandate relates to science and medicine production. The campus was never intended as a long-term waste management facility. ANSTO is only licenced to store waste at its Lucas Heights campus on a temporary basis, and on the condition that it provide full life-cycle plans for management, storage and disposal of its radioactive waste by 30 June 2020.
2.90
With regard to proposals to shift the Facility to the Woomera Prohibited Area, the Department explained:
…a potentially suitable site within the WPA (52a) was identified in 2002, but subsequently assessed by the Supervising Scientist as unsuitable, due to an unacceptably high probability that Australian Defence Force activities would impact the Facility…
In that 2017 assessment, two sites within the WPA and one within 10km of its boundary all passed the initial multi-criteria assessment, but were subsequently assessed by Defence as unsuitable due to Defence operational requirements. The sites were:
Woomera (Nurrunga Test Area): south of Woomera and the WPA;
Woomera (Airfield, Technical Area, Woomera Village): within the WPA, contains Woomera township and the Woomera Airfield, and on Defence land; and
Woomera (Small Arms Test Range): within the WPA, contains built structures on site and on Defence land.
The majority of the WPA is comprised of Aboriginal freehold title and South Australian Crown land that is subject to pastoral leases, mining and resource exploration tenements and conservation areas. The small number of Commonwealth-owned Defence land parcels within the WPA lie mainly within a larger area prescribed as the ‘red zone’ that is legislatively designated for continuous Defence use.
Certain Aboriginal people and pastoralists have existing permission to access the red zone but this may be suspended during periods of testing war materiel (including missile testing). Exclusion periods of between 56 to 140 days are periodically implemented, which would require the Facility to be shut down and prevent necessary environmental and radiological monitoring.
The Department of Defence has also evaluated and recently re-confirmed its position that a permanent disposal facility would be incompatible with Defence’s ongoing operations…
2.91
The committee notes the support of Mr Jeff Baldock for hosting the Facility on his land through Mr Baldock's submission and public hearing testimony. Mr Baldock and his family put forward their land believing that it would be of long-term benefit to the Kimba community:
Five years ago, my family decided to nominate our land to host the Facility in our backyard. We kicked off a process that has seen most people in our area get behind the idea. It has been a long slog. Let me assure you, after coming through a community conversation that started in 2015, that you would not do this for the money. The local Kimba community have expressed their support for this project because they, like me, absolutely believe that this is a once-in-a-lifetime opportunity to secure the long-term future of our town and community and to give the next generations an employment reason to stay or to come back after TAFE, uni et cetera.
2.92
In terms of community support, the District Council of Kimba was certainly of the view that there was very solid community support for the Facility and that the bill should be passed:
An incredible 90 per cent plus participation rate in the final ballot demonstrated an invested community. Having 62 per cent of our community vote yes to this Facility in that vote demonstrated a decided community. We dismiss assertions that this has been in any way a rushed process and we encourage the parliament to use this as an opportunity to give the people of Kimba certainty. With five years of consultation behind us, the people of Kimba have made a decision, and we deserve confidence going forward in a way that is free from constant interruptions, challenges and delay.
2.93
The committee notes that the 62 per cent figure has been contested, but even most of those who have done so acknowledge that a majority of the vote was in support of the Facility.
Concerns
Comments by the Scrutiny of Bills and Human Rights committees
2.94
The committee notes the concerns about the bill raised in the analysis provided by the Parliamentary Scrutiny of Bills and Human Rights committees.
Delegated legislation and questions of procedural fairness
2.95
The Scrutiny of Bills Committee outlined its concerns about certain aspects of the bill. These have already been canvassed in chapter one of this report. They are:
significant matters in delegated legislation—acquisition of land by the Commonwealth;
significant matters in delegated legislation—exclusion of State, Territory and Commonwealth laws; and
significant matters in delegated legislation—establishment of community fund.
2.96
This committee notes the Scrutiny of Bills Committee conclusion that it was up to the Senate as to the appropriateness of the approaches outlined in the Minister's responses.
2.97
The committee notes the Minister's explanations and is generally satisfied with them.
Indigenous culture and self-determination
2.98
The committee noted with interest the analysis and conclusions of the Joint Committee on Human Rights with regards to:
preliminary international human rights legal advice on rights to culture and self-determination; and
acquisition of additional land for expansion of site.
2.99
Again, the committee is generally satisfied with the Minister's response to those concerns.
Views of the Indigenous communities—the Barngarla people
2.100
Following on from the Human Rights Committee's comments, this committee notes the disappointment and dissatisfaction of the Barngarla people.
2.101
The committee also notes that there are differing views with regard to Indigenous access to the site. Mr Jeff Baldock stated:
Personally, I've made the invitation twice to one of their [Barngarla people] elders who I've come across up here twice—once at the previous Senate inquiry and once at the council chambers when they were up…He offered to give Dr Gorring my phone number to give a ring and said, 'That will be fine; Dad will be happy to let you on the property.' But she just said they didn't need to go on the property. So despite the statements that have been made by some people off and on during this process, we have never denied anyone access onto our property…
I have no problem if they make contact with us and go out.
2.102
Mr Nick Llewellyn-Jones of Norman Waterhouse, representing the BDAC, commented:
Obviously there's a disagreement as per the Baldock evidence on that, but so be it.
2.103
As a general statement of principle this committee believes that the right of Australia’s Indigenous peoples must be respected particularly with regards to sites of cultural importance.
2.104
The committee believes that consultation with the Barngarla people should remain a priority for the Department. Accordingly, the committee makes the following recommendation:
2.105
The committee recommends the Australian Radioactive Waste Agency—on behalf of the Department of Industry, Innovation, Science, Energy and Resources—and the Barngarla Determination Aboriginal Corporation come together in any manner possible (noting current COVID-19 restrictions) to discuss the issues and find a pathway for ongoing consultation. The committee recommends engaging an independent mediator to facilitate the process.
Consultation the voting process and community support
2.106
The committee is very mindful of the dissatisfaction that exists with some in the Kimba community with regard to the votes that were taken and the level of consultation—particularly with regard to the regional Indigenous communities. The Department has a provided a thorough discussion of those processes and the committee is generally satisfied with the process described.
Safety and transport of radioactive material
2.107
The committee acknowledges that concerns were raised about potential risks associated with the transportation of radioactive material. However, the committee is of the view that the Australian transport industry handles dangerous goods—both nuclear and non-nuclear—on a daily basis, safely and securely.
2.108
For example, since the South Australian Olympic Dam copper uranium mine opened in the late 1980s, thousands of tonnes of uranium oxide concentrate are annually transported by road from Olympic Dam and Beverley uranium mines to the wharf at Port Adelaide without incident.
2.109
The committee believes that the radioactive waste material currently stored in multiple locations can be safely brought to the Facility and suitably managed there.
2.110
The committee notes that as part of the license application to ARPANSA, consultation on transport routes is required. It sees no evidence that any particular safety concerns exist in regard to transportation of nuclear waste material to the Facility.
Impact on local agriculture
2.111
The committee understands the concerns of farmers and other primary producers who believe the Facility will undermine the region’s reputation for ‘clean and green’ products. Again, the Department has a provided a thorough discussion of these issues. The example of France, where its reputation for food and wine has not been in any way damaged by what is quite an extensive nuclear industry, is a strong one. The committee is generally satisfied with the responses that the Department has provided.
Further scrutiny of the bill
2.112
The committee notes that this is just the first step in a process that is yet to be passed through the Environment Protection and Biodiversity Conservation Act 1999 and licensing application processes by the ARPANSA, and importantly, there will continue to be further opportunities for community consultation around the project. The Department of Industry stated:
The bill takes the site selection decision out of the hands of a single minister and places it under the scrutiny of a parliament that represents the broader national community and includes the scrutiny of committees such as this.
…
I think it's worth highlighting that the site selection is only a very small part of the process. Whether you call it frustrating the process or otherwise, there's a lot of scrutiny to come. This site will have to go through the EPBC Act processes and the ARPANSA Act processes, both of which include understanding cultural heritage impacts…
Even if this act passes, there's a long way to go to actually establish the Facility.
Final comment
2.113
There is broad, bipartisan consensus that Australia must manage its own radioactive waste that has been accumulating for over 70 years. There is also wide acknowledgment that Australia needs to provide appropriate solutions for the management of the future generation of radioactive waste. The committee acknowledges that it would be almost impossible to achieve consensus around how radioactive waste should be managed, but there is bipartisan support that a national radioactive waste facility is needed. The committee also notes that the South Australian Government, the Australian Nuclear Association and the Australian Academy of Science are supportive of the Facility's establishment.
2.114
The committee notes that the issue of establishing a National Waste Management Facility has been on-going since 1978. Appendix 1 provides a long summary of the various inquiries and processes that have preceded this inquiry. The Department of Industry noted this reality in their evidence before the committee, as did other witnesses.
2.115
The most recent process solicited voluntary nominations for consideration followed by robust community consultations at the shortlisted sites with Napandee being identified as the preferred site for the Facility in February 2020.
2.116
After over 40 years of inquiries, reviews, legal action and false starts, the time has now come to resolve the question of a National Radioactive Waste Management Facility. The current process has found: a suitable site; a willing host; and a community that is generally supportive. While there have been reservations raised that the committee is understanding of, overall the committee is convinced that the bill should be passed without amendment and the Facility should proceed.
2.117
The committee recommends that the bill be passed without amendment.
Senator Slade Brockman
Chair