Senator Rex Patrick
Exposed Radioactive Waste Issues
Introduction
I thank the committee for the work it has done in relation to this very important inquiry. I also thank the secretariat for their efforts behind the scenes.
I am grateful to Ministers Pitt and Reynolds for facilitating a visit of the committee to the Woomera Prohibited Area during the course of the Inquiry.
I strongly disagree with the committee’s primary recommendation suggesting that the bill be passed without amendment.
Summary
In this dissenting I note the following:
(a)
the bill under review comes about because the government botched its own site selection process to such a degree that it would almost certainly have seen a site selected through a Ministerial decision overturned on judicial review. The government now asks the Senate to fix up its mistake. The Senate cannot do this without serving up the majority of the stakeholders in this matter with a plate of government cooked injustice.
(b)
all Australians understand and respect the need for nuclear medicine especially those unfortunate enough to suffer from cancer and other debilitating and life-threatening diseases. Flowing from that most accept that Australia has a need for a National Radioactive Waste Management Facility. However, it makes no sense to locate it on agricultural land. A much better site for such a facility would be within secure Defence land in a remote desert area. Subject to local consultation and agreement, the Woomera Prohibited Area (WPA) is preferred over the Kimba site. The Defence Department rejects this but do so on very shallow argument. The argument does not stand up to scrutiny.
(c)
during the course of the Inquiry a Departmental official, Ms Samantha Chard, was dishonest with the committee. She lied. The integrity of the Senate’s inquiry process demands that such a fact not be left unaddressed.
(d)
the Department has, through its interaction with the committee, demonstrated a predisposition to secrecy—undue secrecy—in relation to provision of process information to the very people who pay them and who they are supposed to serve.
Flawed Methodology and Process
Flawed Methodology
The government’s methodology for selecting the site was entirely flawed from the outset.
A proper method would have seen the government set out the requirements for the location of a facility and then embark on a process to select the best available site in Australia.
Instead the government allowed everyday citizens to nominate their land, encouraged by a statutory offer of four times the land value, and it was only these nominated sites that the government would consider.
From this sub-standard position, things only got worse.
Flawed Process
With the flawed methodology setting the foundation, the government then embarked on a process which they managed to completely botch.
The government commenced this site selection process committed to obtaining 'broad community support'. Whilst the National Radioactive Waste Management Act 2012 (NRWMF Act) did not require it, the Minister stated they would not impose such a facility on an unwilling community.
Unfortunately, the Minister refused to define what constituted ‘broad community support’ was. He originally signalled 65 per cent as a threshold number in the community vote in response to a question asked of him in the Senate in March 2017 by then Senator Xenophon. He subsequently refused to re-state that number. That left many with the reasonable view that the government would select a site no matter what the vote outcome was. As Joseph Stalin once said: "It's not the people who vote that count, it's the people who count the votes." This Stalinist approach is inconsistent with procedural fairness required under the NRWMF Act.
Other aspects that contributed to the botching included:
(a)
the Department of Industry, Science, Energy and Resources funding proponents of the facility, but not informed contradictors; and
(b)
changing the definitions of who were neighbours to the selected sites.
Furthermore, the Minister then set about using the Australian Electoral Commission (AEC) ballot as the instrument by which he would do more mischief. The ballot was infected with error for a number of reasons:
(a)
the Kimba community ballot occurred before various heritage and other assessments which the government had stated it would conduct were completed, meaning that the community (or, more precisely, those particular members of the community who were deemed eligible to participate in the Kimba community ballot) did not have all the relevant information to make an informed decision in the ballot;
(b)
the Kimba community ballot conducted from 3 October 2019 to 7 November 2019 excluded a substantial portion of the surrounding farming community, who would have most likely voted 'no' rather than 'yes'; and
(c)
the Kimba community ballot excluded 209 members of the Barngarla Determination Aboriginal Corporation, who would have most likely voted 'no' rather than 'yes'.
This AEC ballot mischief also gives rise to judicial review.
For the 'doubting Thomas' reading this report thinking, 'Nah, Senator Patrick’s concerns are unfounded', it is pointed out that if the process had been carried out properly the Minister could have simply made a site declaration under section 14 of the existing legislation.
The government knew if they selected Kimba under section 14 of the original Act it would likely be overturned by judicial review on the basis of the process being completely flawed.
So it stopped the process and introduced the bill knowing that a decision of the Parliament cannot be overturned by the court except on narrow Constitutional grounds.
Doing A Job on the Local Community
If the botched process was not bad enough, the government has also deceived the supporters of the facility in the local community.
Despite indicating a much smaller number at first instance, the government eventually upped the numbers of jobs to 45.
However, as provided by ARPANSA in a question on notice :
There is no explicit requirement in the ARPANSA or ANSTO legislation or guidance that prescribes that a low-level radioactive waste disposal facility requires continuous presence of staff for either security or safety purposes.
With the potential to have a largely remotely operated facility, the people of Kimba need to be cautious about job promises. I have no doubt that the site will commence with 45 local jobs. However, Kimba locals should look at how the government is willing to shift 700 submarine jobs from Adelaide to Perth on a political whim. They should all appreciate how federal and state government services evaporate from country towns time after time.
We know governments can't be trusted to keep their promises.
The next government, the next Prime Minister, the next Minister or the Expenditure Review committee in a post COVID-19 budget cycle might just decide savings are required and the costs have to be trimmed. The CEO of the site may end up being repatriated back to the Australian Radioactive Waste Agency in Adelaide, and I believe this could be easily done to some of the other roles as well. The site will be transitioned into a remote facility two or three years down the track. And that will just be the start.
The writing is on the wall, and the wall hasn't even been built yet.
A Better Site
Defending Defence Land
I am truly grateful to the Defence Force for defending our land, but note that their senior management always seem just that little more keen when it comes to defending Defence owned land.
I am mindful of attempts by Defence to even defend land they thought they might like for inclusion in their portfolio, even though they didn’t own it.
Early last decade the Army wanted to expand the Cultana Training Area. The story is a little bit complicated (and unnecessary to tell in complicated form) but basically Defence sought to acquire some pastoral leases from one, Mr Graham French, that would indirectly permit the expansion. Mr French was having none of it and took Defence to the Federal Court where Justice Besako stood up to the brass and said 'no'.
It’s not often that the Minister for Defence will stand up to Defence—Dr Brendan Nelson stands out, when he got cabinet to approve the $6.6 billion dollar purchase of Super Hornets for the Royal Australian Air Force. This was to bridge what he could see was going to be a gap in air combat capability transitioning from the F-18 Hornets to the F-35 JSF. He did so in contrast to advice from Defence, and thankfully so.
When Defence says 'no' to alternate use of Defence Land, unlike Federal Court Justices, Ministers capitulate.
Woomera Amendment
The bill includes an amendment that requires the Minister to, instead of selecting Kimba as a site, nominate a site in the Woomera Prohibited Area (WPA).
The amendment will require the Minister to consult with affected parties, including First Nation's people, before making a decision on the preferred Woomera site
The WPA is the obvious choice. It’s remote, it's an area controlled by Defence and includes enormous tracts of land that are not used for weapons testing on top of which there's already a significant amount of radioactive waste stored there. The nearest large township (Roxby Downs) is a uranium mining community and environmental studies into the Woomera Prohibited Area's suitability have already been done.
Not in My Backyard says Defence
Figure 1 – Woomera Prohibited Area
The WPA is an enormously large area (see Figure 1), yet Defence claim that the storage of radioactive waste at any location anywhere within the WPA is inconsistent with Defence operations.
Seriously, if the Minister can’t find a suitable site somewhere within the 12.7 million hectares of desert that the WPA encompasses, then he or she is not looking hard enough.
Defence provided the committee with evidence that shows, as might be expected, there are significant areas of the WPA (see Figure 2) which have never had a weapon safety template overlaid on them. This includes the road from Woomera to Roxby Downs and the area near Roxby Downs.
Figure 2 – WPA Land without Safety Template Overlays since 2014
Defence claim that the storage of radioactive waste in the WPA is inconsistent with Defence operations. Yet there are already two radioactive waste storage facilities inside the Woomera Prohibited Area, one CSIRO building (Hanger 5 at Evetts Field) and one Defence bunker (Koolymilka) since 1995. The material stored there includes radium 226, caesium 137 and small amounts of other radionuclides including plutonium 239. The material was transported there after a May 1994 Cabinet decision that the Woomera Range Head was a suitable and secure storage site. In the time that they have been stored there they have not unduly fettered operations, despite both sites being in close proximity to the range head.
Defence claim that the risk associated with storage of radioactive waste in the WPA makes it inconsistent with Defence operations. Yet somehow the risk associated with the storage of fuel and explosives does not make them inconsistent with Defence operations.
Defence has fuel facilities near the Woomera airfield. Yet they are consistent with the Defence Operations. Defence has provided answers to the committee that state that no direct assessments of the liquid fuel facilities at or near RAAF Base Woomera have been undertaken regarding their survivability in the event of an aviation mishap. Management of the risk of flight over or near sensitive areas such as liquid fuel facilities is conducted by operational commanders and is subject to a range of considerations, including the type of flight being conducted and weather. Risks are reduced so far as reasonably practicable in accordance with the requirements of the Workplace Health and Safety Act. The effective management of risk is an integral part of all Defence activities and this includes the requirement to eliminate risks to health and safety so far as is reasonably practicable (SFARP). Given the risk controls in place, the risk of an ADF aviation mishap in the vicinity of liquid fuel facilities is considered to be very low. Amazingly, Defence refuses to adopt the same approach for a National Radioactive Waste Management Facility.
Defence also has explosives facilities near the RAAF Base Woomera. Yet they are consistent with the Defence Operations. Defence has provided answers to the committee that state Defence’s primary mitigation (from the perspective of the storage area) with regard to the risk of air crash and/or ordnance accidentally disconnecting from an aircraft or unmanned aerial system, is the application of a vertical safety zone above the explosive ordnance area. The policy requires a notification to aviation operators of the site, with the requirement that the area is not to be over flown. Defence policy also requires all permanent or long–term explosive ordnance structures to not be sited within the approach or departure zones for either fixed or rotary wing aircraft. Again, amazingly, Defence will not adopt a similar approach for a National Radioactive Waste Management Facility.
The airfield is a stone’s throw from the Woomera village which is set for a significant development over the coming years. This expanded civilian site will be consistent with the Defence operations. It is noted that safety template overlay magically stop at the boundary of the Woomera village.
Defence claim that the storage of radioactive waste near RAAF Base Woomera is inconsistent with Defence operations on account of the increased operational tempo. Yet the total number of air movements at the airbase have gone from 150 in 2018 to 141 in 2019 and was at 38 on 30 June 2020 (albeit, it is accepted that COVID-19 has affected 2020). The number of experimental/test aircraft movements at the airbase has gone from 56 in 2018 to 17 in 2019 and was at 12 on 31 July 2020 (again, it is accepted that COVID-19 has affected 2020).
That a site couldn’t be found by Defence is utter poppycock.
Dishonest Conduct
On 30 June 2020, Ms Samantha Chard appeared before the committee in her capacity as General Manager, National Radioactive Waste Management Facility Taskforce (as she was then).
Ms Chard faced a series of questions from Senator McAllister about the prospects or risks of a party seeking judicial review of the decision under the current legislation. Senator McAllister appeared to be trying to establish the motivation for the bill, at least the part of the bill that nominates the site. I found Ms Chard’s answers evasive.
I followed Senator McAllister’s questions, keen also to definitively establish motive. The discussion went as follows [emphasis added]:
Senator Patrick: … at any time, personally, when you've been involved in discussions, did you talk about this new act, the act that is subject to review today, having the effect of removing judicial review of a decision under section 14?
Ms Reinhardt: I don't recall talking about it in those terms, no.
Senator PATRICK: In what terms did you talk?
Ms Reinhardt: In terms of, sort of, relieving judicial review.
Senator PATRICK: Okay. Ms Chard?
Ms Chard: Likewise. I go to my earlier point that the judicial review would test the merits of—
Senator PATRICK: I understand that. I'm interested in the conversations you had in formulating a decision to go from the old act now to the new act.
Ms Chard: Not in my personal discussions.
Senator PATRICK: So, if I FOI you, I'm not going to come up with anything that talks about judicial review?
On 2 July 2020, I initiated a Freedom of Information (FOI) request in the following terms:
I seek access to any briefings and correspondence (including emails and letters) sent to or from Samantha Chard (General Manager of the Radioactive Waste Taskforce at Department of Industry, Science, Energy and Resources) between 1 May 2018 and 13 February 2020 that contain any of the following phrases:
(4)
Administrative Decisions (Judicial Review) Act 1977.
Ms Chard became aware of the FOI request on the day the request was made.
On 10 July 2020, Ms Chard wrote to the Senate Economics committee seeking to clarify her response to the following question at the 30 June 2020 hearing on the bill:
… at any time, personally, when you have been involved in discussions, did you talk about this new act, the act that is subject to review today, having the effect of removing judicial review of a decision under section 14?
While I did not recollect personal discussions about the new legislation having the specific effect of "removing judicial review of a decision under section 14", on review, I can confirm that I have been involved in policy discussions about the proposed legislation having the effect of reducing or avoiding the risk of potential legal challenges, including judicial review. Consideration of legal risk is a routine aspect of policy deliberations.
Ms Chard has been intimately involved in the National Radiative Waste Management Facility process since 2018, most recently as the General Manager of the Facility Taskforce. Ms Chard had over 580 documents that had either been sent to her or that she had sent over the period 1 May 2018 and 13 February 2020 that contained the words 'judicial review'; 'Administrative Decisions (Judicial Review) Act 1977'; 'ADJR'; or 'AD(JR)'.
It is completely implausible that Ms Chard was unable to recollect being involved in discussions on the new bill about the bill’s effect of removing judicial review of the site selection decision. She was dishonest. She lied to the committee.
Whilst Ms Chard corrected her evidence, she did so only after becoming aware of an FOI request which was going to expose her dishonesty.
Public officials turn up to Senate committee hearings thinking their main obligation is to protect their Minister. However, they are quite misguided.
The primary obligation of officials, as set out in the Australian Public Service (APS) Commission’s APS values and employment principles and what is expected by the Parliament, is to ensure they are 'open and accountable to the Australian community under the law and within the framework of Ministerial responsibility'. Specifically, those values stipulate the Parliament's expectations of public servants, particularly the Senior Executive Service (SES) of which Ms Chard is part of.
The APS values require that public servants are impartial and apolitical, committed to service, accountable to the Australian community, respectful and ethical. This includes being honest when answering questions from members of a Senate committee.
It is apparent to me, that Ms Chard was deliberately short with her recollections of her discussions related to the impact of the amendments to the Act and the subsequent judicial review implications.
It is worth noting that it is a contempt of the Senate to give false or misleading evidence to a Senate committee.
Undue Secrecy
I have consistently heard from many people in the Kimba region they were unhappy with the Department’s consultation throughout the site selection process.
The committee experienced firsthand the Department’s predisposition to secrecy—undue secrecy—when in early August the Department provided documents to the committee asking that they be held confidential from the public, the very people who pay them and who they are supposed to serve.
I have examined these documents and they contain little that should not properly be in the public domain. For the purpose of grounding my claim, I provide a couple of benign examples of information that the Department wants kept from the public:
The National Radioactive Waste Management Act 2012 (NRWM Act) provides [the Minister] with the legislative authority to declare in writing a site (nominated and approved under the NRWM Act) is selected as the site for the National Radioactive Waste Management Facility (the Facility).
…
Once the amendments are finalised and agreed by you, you will be required to seek the Prime Minister’s agreement.
Keeping secrets from the public on normal departmental processes should only occur in limited circumstances and for good reasons. Cavalier secrecy claims prevent citizens actively engaging in public policy debates, at least informed public policy debate.
I have requested the documents provided to the committee in a separate FOI request. At the hearing on 28 August 2010, I stated:
Senator PATRICK: … My current score with the Information Commissioner is Rex Patrick, as a 'Mister', five; government zero. I am extremely confident that I'm going to win this and if I win it there will be consequences for the ministers and for officials. That is the backdrop against which I'm asking you to reconsider the claim that is being made and acquiesce to the idea that the document can be disclosed with the redactions in place. There is nothing in what I read in those documents that appears to be harmful in any way shape or form. I think you are going to lose with the Information Commissioner, and that is going to have consequences in the Senate.
Senator Rex Patrick
Member
Independent Senator for South Australia