Lyn Allison (Victoria, Australian Democrats) Share this | Hansard source

I too rise to speak on the Commonwealth Radioactive Waste Management Legislation Amendment Bill 2006. This is an extraordinary bill. It paves the way for the Commonwealth to take away native title rights, in essence, in order to site the very unpopular national radioactive waste facility in the Northern Territory. Like much of what is happening here, where legislation is being rammed through, where legislation is being pushed through very short inquiry processes, this is ramming through a proposal to put a radioactive waste dump in the Northern Territory, despite the objections of those traditional owners who oppose it.

I agree with Senator Milne that this is part of a much bigger picture. This is about bringing Australia into the nuclear cycle. It is pretty obvious that the government is not prepared to ban high-level waste at this dump. I recall Democrats amendments that have been put up to that effect being opposed by the government. It is in the same week that the House of Representatives Standing Committee on Industry and Resources tabled its report, which is full of glowing recommendations about us engaging in everything from enrichment to uranium leasing, whereby we would take back waste from countries that use our uranium in order to generate electricity. So it is an extraordinary time. It is a bit like a tsunami that has hit this country. We were, for a time, a country that wanted nothing to do with nuclear power. We were strongly opposed to nuclear weapons proliferation. We were very careful, as much as one can be, about where our uranium went around the world—not considering countries like China, which has not signed the comprehensive test ban treaty, and certainly not considering India, which has also not signed the non-proliferation treaty.

In the last few years we have seen more and more nuclear weapons grace the world, if I can put it that way. In fact, there are almost as many now as there were when the non-proliferation treaty was signed more than 30 years ago. So it feels like Australia is becoming very engaged in nuclear matters, whether it is expanding uranium mining, whether it is contemplating enrichment, whether it is setting ourselves up as a waste dump for the rest of the world. There are parts of this picture that are now starting to come together which I think Australians are very concerned about. However, back to the bill.

As I said, what this bill allows is for this site to be imposed on communities that do not want it. It removes procedural fairness, it removes a whole lot of processes that might have come to play had this bill not been introduced. We can all see that it is going to pass; the government obviously has the numbers, so it is hardly going to be a surprise. But the fact of the matter is that traditional owners will not have any right of appeal against the arbitrary decisions of land councils or of the minister. It is currently mandatory for land councils to consult and receive consent from traditional owners about the intended uses of their land. But all that goes now, because the government wants no delays whatsoever in imposing its radioactive waste dump on the landowners unfortunate enough to have had their land selected.

The very short hearing into this bill was unable to discover how politically motivated appeals, which is what this bill is described as preventing, would be defined. So we can only assume that all appeals would be categorised in this way. There was an extraordinary exchange with the department in trying to understand what was the real intent of this idea of ‘politically motivated.’ Not only was the hearing very short—just a couple of hours—but the time allowed for submissions was a mere two weeks. As I recall, much the same complaint was made when we dealt with the original bill that this amends. On neither occasion did the committee have an opportunity to visit the Northern Territory to gauge local opinion or to inform itself about the complex issues beneath the government’s policy gloss. No traditional owner was invited to appear before the committee in Canberra. We did have a teleconference hook-up with members of the land council but it was unsatisfactory in terms of reaching those people who we understand are opposed to the choice of the likely site.

The haste would not be such a problem if the government was prepared to be more transparent in its consultation and policy-making processes. But this whole sorry affair is cloaked in so-called commercial-in-confidence agreements. We were asked, as the committee, to swallow the highly improbable claim that the privacy of Indigenous people would be at risk if the Senate were to be privy to any details of negotiations between the government, through the Department of Education, Science and Training, and the Northern Land Council. Group officials who came before the committee said that details of their meetings with land councils and traditional owners could not be disclosed, on the grounds that they were commercial-in-confidence. The committee was not given any reason for how this might be the case, despite our questions. Presumably, commercial-in-confidence agreements relate to financial transactions of some kind, but there is no provision for this in the bill and officers denied that they were empowered to discuss financial considerations for site nominations. So we can only conclude that there were no discussions about money which might change hands, which makes it difficult to understand why commercial-in-confidence would apply at all.

But to step back: the government has been quite consistent on all of this. It abandoned what was described as a bipartisan approach to selecting a site when it had great difficulty getting one up in South Australia, so it chose the Northern Territory. It is a lot easier to override Northern Territory law, as we all know, and it would seem it is a lot easier to change native title in order to fast track or make smooth the passage of this site. So the amendments to the bill that we passed earlier allowed land councils and the Chief Minister of the Northern Territory to nominate sites for assessment as a radioactive waste dump on land which they control. I think it is interesting to note that the act as amended during its passage restored the statutory right provisions similar to those applying to the land rights act.

The problem is that it is widely believed that Muckaty Station is the site that has been chosen or is likely to be nominated by the Northern Land Council. That station is just north of Tennant Creek and is within the Northern Land Council boundary. The Muckaty nomination is considered likely because the station is said to be close to a railway line, with a spur constructed for use by a local mine, geologically stable and distant from surface or underground water. But, despite the fact that officers and anthropologists were seen at the site, we were not able to get any confirmation from the department that this had happened and so the reports in the paper are all that we have to go by. It is highly problematic that, at this stage in our deliberations, we are not able to know just what has gone on to bring us to this point. It is clear that those who live close to this site but not in the NLC area are disaffected. They have not been consulted. They have been given propaganda and the education, apparently, but they have not been seriously consulted and, more importantly, their consent has not been given. Muckaty Station is the site everyone is anticipating will be the waste dump and the waste dump is what this legislation is all about.

Land councils are required to consult with their communities about projects that require approval and the crux of the problem with this bill is that it removes a whole lot of conditions related to this from the act. Those conditions are: consulting with traditional owners; having regard to the interests of traditional owners; not taking action without the consent of traditional owners; ensuring that traditional owners understand any proposal; ensuring any affected Aboriginal community has expressed its views; and complying with traditional decision making processes. New subclause 3B(2A) says that failure to comply with any of the points I have just mentioned does not affect the validity of the nomination. That is the key to this whole bill. We once had a set of things that the Northern Territory government or land councils had to go through before offering up a site, but this bill now says, ‘If you don’t do any or all of those things, that does not invalidate the nomination.’ It is, in effect, an invitation to ignore the provisions of the original act, weakening Indigenous land rights. As the Central Land Council stated in its submission:

Removing the need to comply with the procedures for consultation laid down in Waste Law 1 is the most problematic for traditional owners because it is these procedures for consultation which allow them to have their say. Not having to comply with them would necessarily repeal the consultation provisions under sections 23 and 77A of the Land Rights Act and sections 203BC and 251B of the Native Title Act to the extent they apply to site nomination.

This a very convoluted and deceptive way of removing protections for Indigenous people. The changes appear to be designed to obscure the real intent of the government—mind you, it did not take people very long to understand what they meant.

In her second reading speech, the Minister for Education, Science and Training, Julie Bishop, asked the parliament to be reassured. She said:

Current provision of the Act set down a number of criteria that should be met if a land council decided 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 ... I can assure the House that, should a nomination be made, I will only accept it if satisfied that these criteria have been met.

Again, I would ask: how is her satisfaction going to be made public? How will we know that she is satisfied? There is no process for us to understand that. Is that also going to be commercial-in-confidence? If we put a question on notice to the minister after she determines the site, will she tell us exactly what it was that satisfied her about the process? We say that it is not good enough just to have that in a speech; it ought to be in the legislation. We should remove entirely the reference to the nomination not being invalidated if any of those conditions are not met.

On procedural fairness, the other significant amendment is the removal of judicial review. We are similarly very much opposed to this erosion of administrative and judicial safeguards against the arbitrary powers of governments. The current act removed procedural fairness, giving the minister unfettered discretion over decisions. This bill extends that to exclude the entitlement to the right to judicial review under the Administrative Decisions (Judicial Review) Act 1989 in relation to site nominations. The minister explained in her second reading speech that this was intended to prevent politically motivated challenges to land council nominations. As the minister told the House of Representatives, the government will not accept what she describes as speculative legal challenges intended to delay the establishment of waste facilities. You cannot have a system whereby all the traditional owners need to agree, as was the case, and then say, ‘We’ll talk about some as being politically motivated and others speculative.’ It is not good enough—either you have consent or you do not have consent. We are extremely concerned about the fact that this bill waters that down.

As I said earlier, we were unable to get any definition of what politically motivated challenges might look like. Mr Ross, the Director of the Central Land Council, said:

... it also talks very clearly about the ability of the Commonwealth to do what it wants to do in regard to ... what it considers to be politically motivated challenges. I think the real issue here is that Aboriginal people are not interested in the politically motivated challenges; they are interested in their rights and in being consulted about what is to take place or what is not to take place on their land. That is what interests Aboriginal people more than anything else.

The Human Rights and Equal Opportunity Commission also pointed out that the effects go further than this:

They prevent legitimate challenges to a nomination based on grounds such as a denial of procedural fairness or other grounds of judicial review such as bias, bad faith, fraud or lack of evidence.

So we are not altogether sure what the government is going to do by way of implementing this legislation, but we can be fairly confident that whatever site is nominated is likely to go ahead without too much pesky objection, whether by Indigenous people or by pastoralists. We did hear how much they would be affected by this dump going to Muckaty Station, or any other site for that matter, in the Northern Territory. The point was made by the local member that Australia has a reputation of being clean and green and that that reputation would be well and truly shot if a radioactive waste dump of this scale were to be built in the area. This legislation has a lot of ramifications. It is about Indigenous owners and their rights, but it is also about the reputation of the whole of the Northern Territory and this region in particular.

South Australia managed to ward off the government’s efforts to put a dump there. South Australia has borne the brunt of nuclear activity with Roxby Downs and with Maralinga. It has had its fair share of nuclear engagement. No doubt the government thinks that the Northern Territory with its uranium mines is the next most likely state to accept the dump but, as we have argued many times in this place before, it is not appropriate for there to be a single national dump.

The Democrats are realistic in understanding that there needs to be a safe repository for nuclear waste, whether it is from Lucas Heights or from hospitals. We accept that it is important that there is a national engagement in all of this, but we do not accept that it should go to one state alone and certainly not one as distant from the sites of generation as this one is proposed to be. The out of sight, out of mind mentality is not a good one. It is far better for this material to be kept—as it is at present—close to the site of production so that it can be monitored, but instead of that we are putting it into Aboriginal land. Typically, that is the easy answer: out of sight, out of mind, a long way away from metropolitan parts of the country so that other people carry the burden of the waste which, by and large, is generated by others.

It is a sad day to see a bill like this go through the parliament. I think it is an indication that the government is willing to trample over the rights of anyone and, in particular Indigenous people, who are already so disaffected, so seriously disadvantaged in economic development and in every area you can name. The most we can give them is a dump in their backyard. I am sure that when the site is nominated, there will be lots of extraordinary claims about how good this will be for Indigenous communities, about the jobs that will be created and so forth and the roads that will be put in. Who knows? But, at the end of the day, it is not much of a choice for Aboriginal Australians in this area.