Ursula Stephens (NSW, Australian Labor Party, Shadow Parliamentary Secretary for Science and Water) Share this | Hansard source

The Commonwealth Radioactive Waste Management Legislation Amendment Bill 2006 before the Senate today amends the Administrative Decisions (Judicial Review) Act 1997 and the principal act, the Commonwealth Radioactive Waste Management Act 2005, to make land nominations—as distinct from decisions—non-reviewable under the ADJR Act; provides that failure to comply with the site nomination rules in the CRWM Act will not affect the validity of the minister’s approval of a nomination; and removes any entitlement to procedural fairness in relation to the nomination of a site.

The bill also amends the principal 2005 act to provide for the return of nominated Aboriginal land used for a radioactive waste management facility when no longer required for the facility and indemnifies traditional owners following the land return against any damages claims arising from the use of the land for a facility.

Labor will oppose this bill. This is the latest instalment in a series of three extreme, arrogant and heavy-handed bills. Labor will defend the right of communities, including Indigenous communities, to be properly and fully consulted before decisions are made about the location of radioactive waste dumps. This bill continues the Howard government’s sneaky and misleading practice of removing the voice of local communities in the government’s campaign to impose a waste dump on the Northern Territory. This campaign should be seen for exactly what it is: a pointer to the methods the Howard government intends to use in imposing nuclear power stations and high-level waste dumps on unsuspecting communities right around Australia; tricky tactics, like denying its real intentions before an election then springing it onto a community straight after; and misusing parliamentary numbers to override every legislative right, every protection and every safeguard normally available to everyday Australians when they want to have their say on government decisions that affect them.

To begin with I want to remind the Senate of the circumstances underlying the 2005 bill pushed through this parliament late last year. The stated purpose of the Commonwealth Radioactive Waste Management Act 2005 was to put beyond doubt the Commonwealth’s power to conduct activities relating to siting, constructing and operating a radioactive waste management facility in the Northern Territory. The 2005 act contains a number of provisions excluding procedural fairness in relation to selecting a site for the facility. The Commonwealth Radioactive Waste Management (Related Amendments) Act 2005 excludes application of judicial review under the ADJR Act to the minister’s decision on a facility site. Labor opposed the 2005 bills on a number of grounds, all of which remain relevant today.

The government’s acknowledged purpose for these provisions is to prevent local individuals or communities, representative bodies or state or territory governments from being able to undertake legal objections to the Commonwealth’s actions, which might delay the project. The government stated at the time of the parliamentary debate that these provisions give the Commonwealth some certainty, subject to normal regulatory processes, of having a facility operating by 2011 when repatriation of spent fuel reprocessing waste from the United Kingdom is currently due to commence.

Labor does not oppose the establishment of a nuclear waste facility per se; indeed, Labor explicitly agrees that there is a need for a properly sited, properly operating facility to securely handle and store the low- and intermediate-level waste produced by the use of radioactive materials for research, industrial, health and medical purposes. However, Labor firmly remains of the view that the siting, establishment and operation of such a facility needs to be done in an open and transparent way, in full consultation with local communities and with the relevant state and territory governments. Such a process would be in full compliance with the recommended approach set out by the International Atomic Energy Agency. The original 2005 act was for assessments of three potential sites, on defence land, for the Commonwealth waste dump—those being Fishers Ridge near Katherine; Harts Range, 200 kilometres north-east of Alice Springs; and Mount Everard, approximately 42 kilometres north-west of Alice Spring—but this bill makes those provisions more difficult.

I turn to the specific provisions of the amendment bill before the Senate. They all relate in one way or another to the nomination process placed in the bill by the member for Solomon late last year. While the Minister for Education, Science and Training chose not to reveal this important fact in her second reading speech to the House, the Senate statement of reasons for introduction briefly states the circumstances which have led to the drafting of this bill, namely:

The bill addresses concerns raised by the Northern Land Council (NLC) in relation to nominating a site under the CRWM Act. If not addressed, the NLC may be unwilling to nominate a site should a community within its jurisdiction wish to volunteer its land.

When the opposition made inquiries of departmental officers as to the nature of the concerns raised by the Northern Land Council, apparently no further information could be made available. Therefore I seek a response from the minister, when closing this debate, on the nature of the concerns raised by the Northern Land Council so that the Senate can decide for itself whether the bill before us properly meets the concerns raised.

The acknowledged purpose of the legal challenge provisions of the 2005 act is to prevent local individuals or communities, representative bodies or state or territory governments being able to undertake legal objections to the Commonwealth’s actions which may delay the project. Due to the late consideration of the Tollner amendments, departmental officers advise that the same protections against legal challenges to the Commonwealth’s actions were not applied consistently to the site nomination procedures inserted by the Tollner amendments. In effect, the provision of the bill before us today will extend the current protection from judicial review even further to the processes and decision making of the land councils in the Northern Territory, who are statutory agencies for the purpose of the ADJR Act. Similarly, the bill proposes to extend the current provision that no person is entitled to procedural fairness so as to ensure that it applies to the nomination of a site as provided for by the Tollner amendments to the principal act. Labor opposed the corresponding provisions in the 2005 bill on the grounds that they were a heavy-handed attempt to remove important rights to judicial scrutiny and review from the site decision-making process, and Labor will oppose the provisions of the current bill which remove those same rights from the nomination decision-making process.

Before I turn to the third specific set of provisions of the amendment bill before the Senate relating to the rules of nomination, the Senate needs to consider the nature of the amendments to the 2005 bill moved from the floor on 1 November last year by the government member for Solomon, Mr Tollner, which the government supported into law. These were the 30 pieces of silver that the government threw the member for Solomon to get him to recant his pre-election promise that the Northern Territory would not have a radioactive waste dump foisted on it.

Those amendments provided for the Northern Territory Chief Minister and Aboriginal land trusts or land councils to nominate potential sites for the waste dump in addition to the three sites set out in that bill. Given that the Chief Minister has always been and remains implacably committed to representing her community’s opposition to this waste dump being imposed on the Territory, these amendments were clearly designed to smooth the way for a nomination by a land council. Given that the Central Land Council also remains utterly opposed, that only leaves the Northern Land Council as a realistic possibility.

Included in the amendments moved by the member for Solomon was a set of criteria or rules against which such a nomination should be judged, including provisions that the process of nomination by a land council must demonstrate evidence of consultation with traditional owners, that the traditional owners must understand the nomination, that they have consented as a group and that any community or group that may be affected has been consulted and had adequate opportunity to express its view. Interestingly, the member for Solomon chose not to inform the House why he chose to deem valid those particular rules for nominations.

I turn now to the clauses of the bill which address the issue of potential invalid nominations made under those provisions inserted into the principal act by the member for Solomon—which I will call the Tollner amendments. There are two ways any nomination of land for a radioactive waste dump would be made invalid: through procedural inadequacies or—a more substantive issue—by a failure to comply with the rules of nomination so carefully inserted by the member for Solomon. Given that procedural inadequacy, such as not lodging such a nomination in writing, is extremely unlikely, we can only conclude that the only likely noncompliance of any future nomination relates to those nomination rules. In other words, this bill proposes to validate a nomination which otherwise would be automatically ruled invalid for ministerial consideration. So the fact that traditional owners have not been informed of the nomination, did not properly understand that their land was being nominated or had not consented to the nomination—or the fact that other affected communities or groups, such as those in neighbouring lands, have not been consulted or given an opportunity to express their view—can no longer invalidate a nomination.

The bill before us proposes a new section 7(5A), which provides that a failure to abide by these currently binding rules of nomination will not affect the validity of a nomination. In effect, these statutory rules would become mere guidance, because a failure of the minister or land council to abide by these rules will not render a nomination unacceptable. A site could still be nominated and accepted even though traditional owners do not know it has been or do not agree with it being used to dump radioactive waste.

In addition, it is important to recognise that this provision would remove the current statutory right of affected neighbouring communities or groups to be even consulted or to express their view. Given that under the Tollner amendments these groups are not required to consent to the proposed nomination, the provision aims squarely to block their statutory right to even express a view. As well as being an almighty slap in the face for the member for Solomon through this outright repudiation of his rules of nomination, the Howard government has also completely backtracked on its own rhetoric about fully consulting with, and achieving informed consent from, all affected local communities and groups—in particular, the Indigenous traditional owners of any nominated sites.

The provisions of the bill in this regard are a direct contradiction of the minister’s own commitments to the parliament in her second reading speech on this bill in which she stated:

Current provisions of the act set down a number of criteria that should be met if a land council decides to make a nomination. Importantly, these criteria include that the owners of the land in question have understood the proposal and have consented to the nomination, and that other Aboriginal communities with an interest in the land have also been consulted.

And she emphasised:

I can assure the House that, should a nomination be made, I will only accept it if satisfied that these criteria have been met.

The minister’s words in her second reading speech are just that—hollow, condescending words. Faced with the clear intent and outcomes of the bill before us, the minister’s contradictory commitment in her speech is simply meaningless rhetoric providing no comfort whatsoever to traditional owners or their representatives.

Importantly, the outcome of the proposals contained in this bill are also in conflict with the Northern Land Council’s full council resolution of October 2005 which provided a mandate for the Northern Land Council’s further dialogue with the government on a possible nomination. The resolution stated:

The Northern Land Council supports an amendment to the Commonwealth Radioactive Waste Management Bill 2005 to enable a Land Council to nominate a site in the Northern Territory as a radioactive waste facility, provided that:

(i)

the traditional owners of the site agree;

(ii)

sacred sites and heritage are protected (including under current Commonwealth and NT legislation);

(iii)

environment protection requirements are met (including under current Commonwealth and NT legislation);

(iv)

Aboriginal land is not acquired or native title extinguished (unless with traditional owners’ consent).

Given the clear intent of this resolution, there is a serious question to be asked here: has the Northern Land Council approved the proposal to remove the mandatory nomination rules which closely parallel their own requirements? In effect, the current bill proposes to relegate both the Northern Land Council’s resolution and the nomination rules inserted by the government’s own member for Solomon into irrelevance, and they will be opposed by Labor as an important matter of principle.

We need to be very clear about this. Under this bill, traditional owners or affected persons will have no enforceable rights to be even informed of such moves—to ensure that the implications are fully understood—or to give or withhold consent for their traditional lands, which can be compulsorily acquired and used for the handling and storage of radioactive waste for at least 300 years. And, as if that is not enough, they will have no enforceable right to get their land back once the Commonwealth’s use of it as a waste dump has concluded, because the bill simply provides that it may be handed back.

All traditional owners, all of their representative groups and all Northern Territorians should understand this point. The Howard government is intent on making sure that you cannot express your views and that you have no rights, no legal review avenues, no informed consent and absolutely no say in its blind pursuit of being able to dump nuclear waste in the Northern Territory.

I want to now turn to the provisions of the bill relating to the return of that land to the original Indigenous owners. Section 119 of the Lands Acquisition Act 1989 allows the Commonwealth to dispose of Commonwealth land. However, the department has advised the opposition that there is some legal doubt that this power allows the Commonwealth to grant land title with the same status as land granted under the Aboriginal Land Rights (Northern Territory) Act 1976. Accordingly, the government argues that the provisions of this bill are necessary to ensure that, where acquired land is Aboriginal land immediately before the acquisition, such land may be returned with the same status as Aboriginal land.

The department has indicated that any site chosen will be required for the operations of a waste facility for at least 100 years and that, even when waste is no longer being accepted into the site, it will need to be closely monitored for a further 200-year period. So any possible return of land to original owners will not take place for at least 300 years. However, legal advice received by the opposition indicates that the proposed provision is not legally necessary as the government of the time could simply hand the land over to traditional owners under the provisions of the land rights act if it applies at the time.

Under this bill the government does not have to make any such hand-back but simply provides for a hand-back should the minister of the time determine that it is safe to do so. It appears that this bill is simply providing some political cover for the Northern Land Council should they make a nomination and subsequently face criticism for giving away hard-won ownership of traditional lands for three centuries or more.

This is an extraordinarily bothersome piece of legislation and Labor is not supporting it. The government’s history in relation to the nuclear waste facility in the Northern Territory gives us a real indication of how they propose to move on nuclear issues at large and in taking Australia much further down the nuclear road, with 25 nuclear power stations and radioactive waste dumps. If the Howard government cannot consult, cannot build community consensus, cannot leave important legal rights untrampled and cannot gain the informed consent of Indigenous people for a low- and medium-level waste facility, what hope do we have that they can comply with best-practice guidelines in relation to nuclear power and the resulting radioactive waste? Labor will not support this bill. I move:

Omit all words after “that”, substitute:

        “but the Senate:

        (1)    Condemns the government for:

             (a)    the continuing arrogant approach imposing a nuclear waste dump on the people of the Northern Territory without proper scientific assessment and consultation processes;

             (b)    broken election commitments to not locate a waste dump in the Northern Territory;

             (c)    overriding many federal, state and territory legal protections, rights and safeguards;

             (d)   destruction of any recourse to procedural fairness provisions for anyone wishing to challenge the Minister’s decision to impose a waste dump on the people of the Northern Territory;

             (e)    continuing and aggravated disregard of the International Atomic Energy Commission’s recommendations on good social practices like consultation and transparency in relation to nuclear waste;

              (f)    their failure to deliver a national waste repository after ten long years in government.

        (2)    In light of the Howard Government’s imposition of a nuclear waste dump on the Northern Territory community, and the recent High Court decision in the work choices case, expresses deep concern that the Howard Government will override community objections and state and territory laws to impose nuclear reactors and high level nuclear waste dumps on local communities across Australia”.