13 March 2012
Senator LUDLAM (Western Australia) (12:36): I move Greens amendment (8) on sheet 7037 on the new running sheet:
(8) Page 10 (after line 30), after Division 2, insert:
Division 2A-Requirements for ministerial decisions
8A Application of Division
(1) This Division applies to each decision to be made by the Minister in relation to the nomination, selection and approval of sites under this Act, including (but not limited to) each of the following:
(a) a decision to make a declaration under section 6;
(b) a decision to approve land, or a specified part of land, under section 9;
(c) a decision under subsection 14(2) to declare that a site, or a specified part of a site, is selected as the site for a facility;
(d) a decision under subsection 14(2) to declare all or some of the rights or interests in the selected site;
(e) a decision under subsection 14(4) to declare that all or specified rights or interests in land are required for providing all-weather road access to a site;
(f) a decision under section 17 to revoke a declaration made under subsection 14(2).
(2) A decision to which this Division applies is of no effect unless the requirements of this Division are met.
8B Requirements in relation to decisions
(1) A decision to which this Division applies must comply with the provisions of this section.
(2) Before the Minister makes a decision, the Secretary of the Department must:
(a) publish on the department's website a notice:
(i) setting out the nature of the decision; and
(ii) inviting persons to make submissions to the Minister about the decision within 42 days after the notice is published; and
(b) send to each stakeholder a notice:
(i) setting out the nature of the decision; and
(ii) inviting stakeholders to make submissions to the Minister about the decision within 42 days of the date of the notice; and
(c) publish on the department's website a copy of each submission received under this section.
(3) In making a decision, the Minister must:
(a) have regard to the submissions in relation to the decision received under subsection (2); and
(b) actively consult stakeholders.
(4) In making a decision, the Minister must have regard, but is not limited, to the following criteria:
(a) existing infrastructure;
(d) community consent;
(e) international best practice;
(f) such additional criteria (if any) as are specified by the Minister under subsection (5).
(5) The Minister may, by legislative instrument, specify additional criteria in relation to a decision for the purposes of paragraph (4)(f), but must not apply those criteria in making a decision until either:
(a) the period for the disallowance of the instrument has expired in each House of the Parliament; or
(b) the instrument has been approved by resolution of each House.
(6) The Minister must cause a report to be prepared setting out the reasons for making a decision.
(7) The Minister must cause a copy of each report prepared under subsection (6) to be presented to each House of the Parliament at least 28 days before the decision to which the report relates takes effect.
The National Radioactive Waste Management Bill retains the Muckaty site nomination, which all senators are well aware was chosen without procedural fairness or any ability to review the minister's decision under the Administrative Decisions (Judicial Review) Act 1977. These amendments reinstate procedural fairness and judicial review over the Muckaty nomination. The government have made a great deal of this in trying to run the fiction that they have in fact repealed the former Howard legislation. One of the minister's great claims was that procedural fairness and judicial review were reinstated. I will deal with the procedural fairness first.
There are no rights whatsoever for persons other than those with an interest in the land to make a submission under the terms of this bill. It is likely that people will miss notification of the submission right given that there is no requirement for any details to be provided in the notification that would identify what it was actually about. Providing rights to be heard in the written form is actually quite prejudicial to Aboriginal people, who, in the instance of Muckaty at least, will be the people primarily concerned about the potential for this project to go ahead. But the key thing really is that there are no objectives or criteria in the legislation or in the minister's decision, so it is not possible for a person to know what to make a submission about. There are no criteria by which to guide the minister's hand. There is no right for a person to see information on which the minister will base his decision-for example, anthropological studies and so on-and the minister is free to be as biased as he likes, and literally make a decision on the flip of a coin. The point I am making is that it is all very well to say that we will have procedural fairness, but there is nothing in the bill that actually mandates for it. It is nice that the words are back in there again, but essentially there are no teeth to those provisions in the bill and these Greens amendments seek to reinstate those.
The claim that judicial review is reinstated is similarly misleading. The bill continues the essential and intentional design feature of the 2005 act in ensuring that there are no grounds on which a judicial review can be based and no access to information on which to base a review. For judicial review to actually have teeth, the minister would need criteria on which to be judged to have failed. We would need some way of saying, 'The minister, in my view, did not do what he was supposed to do, did not do what the bill mandated he do, and therefore there are grounds for review.' Of course, if there are no criteria, as there are not-if it just the minister sitting in a room by himself making up his mind-then there is no possibility of judicial review proceedings getting anywhere near a court. In the context of this uniquely defective piece of legislation, the term 'procedural fairness' is, I gather, by the government, interpreted to mean the ability to make a submission to the minister, which he is then free to ignore. I commend these amendments to the Senate.
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (12:40): The government will not be supporting this amendment. To be clear, the Minister for Resources and Energy is not the final decision maker for the location of the facility. The minister is responsible for selecting a volunteered site, which must then be referred to the Minister for Sustainability, Environment, Water, Population and Communities and the chief executive of ARPANSA for approval. If a selected site under this bill fails to meet environmental and nuclear regulatory approvals, a facility cannot be constructed on this site. The Greens' proposal, we think, is far too broad and is not accepted by the government.
The TEMPORARY CHAIRMAN (Senator Parry) (12:41): Senator Ludlam, we have a revised running sheet and we have overlooked amendments (1) and (2) on sheet 7200. Do you wish to deal with those?
Senator LUDLAM (Western Australia) (12:41): Chair, I was going to run through the balance of the amendments first. Those amendments that you have noted are the only piece of good news that we will be hearing today, so I was going to save those till last. I seek leave to move together amendments (9), (18), (19), (21) and (28) on sheet 7037.
Senator LUDLAM: I move Greens amendments (9), (18), (19), (21) and (28):
(9) Clause 9, page 11 (lines 3 and 4), omit ", in his or her absolute discretion,".
(18)Clause 14, page 17 (lines 11 and 12), omit ", in his or her absolute discretion,".
(19)Clause 14, page 17 (lines 19 and 20), omit ", in his or her absolute discretion,".
(21)Clause 17, page 18 (line 25), omit ", in his or her absolute discretion,".
(28)Clause 27, page 29 (line 7), omit ", in his or her absolute discretion,".
I will not detain the chamber unnecessarily with these amendments because effectively they go to many of the same issues that I have already dealt with in some detail-essentially, the absolute discretion of the minister. If there are no processes, rules and guidelines, and if there is nothing in the bill to guide the minister's discretion, he is free to ignore geotechnical advice, anthropological advice and indeed the will of the
parliament. He is free to ignore anything whatsoever, including submissions from whatever such consultative groups that he might stand up. He has absolute discretion. That is what effectively makes it impossible for a court to review a decision of the minister because there will not be anything by which a court or potential applicants can say the minister did wrong. The minister is free under the terms of this legislation to effectively just toss a coin and there will be no way that we will know (a) that that was the process or (b) that there is any way of reviewing the decision. There is no requirement to provide reasons. We do not think an approval or a declaration of this kind should be subject to such unfettered ministerial discretion.
I am well aware that this effectively sets a slew of processes in motion under the ARPANS Act and EPBC Act, that this bill effectively fires the starting gun on a nomination, on a place from where all these processes will then flow. If the minister does not do his job properly and chooses a flawed site, as of course Muckaty is, we could go through two or three years of process under the ARPANS Act and under environmental impact assessment before realising that the process itself is flawed. There must be some criteria by which to guide the minister. This gets even scarier if we consider that when the Muckaty nomination falls over, as of course it will, we will then be looking for some other presumably impoverished Aboriginal community, perhaps at the behest of a land council, perhaps not, to accommodate the nation's toxic radioactive waste-which is somehow so unsafe it cannot remain where it is but will be safe enough when we have parked it on an Aboriginal community's land. We do not think that a bill that establishes such a process should go ahead without any form of discretion to guide the minister. I commend these amendments to the Senate.
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (12:44): As Senator Ludlam indicated, we have had this debate earlier in the debate on this bill. We do not accept that the minister has untethered or unaccountable decision-making powers under the bill. In this administrative law context, 'absolute discretion' identifies who is entitled to exercise powers under the bill. The absolute discretion clauses therefore make it unambiguously clear that the minister is the responsible decision maker. As we know, this has been contained in other bills. It does not in any way limit the capacity for courts to review those decisions, and they will infer limitations on the ministerial discretion from the structure and purpose of the legislation.
Senator LUDLAM (Western Australia) (12:46): The Greens oppose clauses 10(7) and 18(5) in the following terms:
(13) Clause 10, page 13 (lines 23 to 29), subclause (7) TO BE OPPOSED.
(23) Clause 18, page 20 (lines 3 to 7), subclause (5) TO BE OPPOSED.
These amendments go to precisely what I have spoken of already at a deal of length and complete the process of removing limitations on procedural fairness.
Again, we have attempted in good faith to improve on the fact that this bill vests total discretion with the minister and sets up the fiction that judicial review and procedural fairness now apply. I do not think the government should be allowed to get away with that fiction. Quite clearly there are gaping holes in the ability of people who are concerned-not necessarily just in the instance of the Muckaty bill but as sites are volunteered down the track. They will have been told by the minister that procedural fairness applies. They will realise when they read the legislation that it is simply there in name only. I commend these two amendments to the chamber.
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (12:47): The government does not support the amendments. The site selection process is guided by procedural fairness. That is a requirement that applies to all government decision making. It is also the case that the Administrative Review Council, a statutory body which was established to advise the Commonwealth Attorney-General on a broad range of matters related to the Commonwealth system of administrative law, made a submission on the National Radioactive Waste Management Bill and recommended that, rather than excluding procedural fairness, the bill should extend procedural fairness to parties with a specified interest in the decision to select the site for a facility. Those recommendations have now been incorporated into the decision-making processes under the bill. We do not believe the Greens' proposed amendments are consistent with how procedural fairness has been interpreted by the courts and therefore we will not be supporting the amendments.
The CHAIRMAN: The question is that clauses 10(7) and 18(5) stand as printed.
Question agreed to.
Senator LUDLAM (Western Australia) (12:48): by leave-I move Greens amendments (14) to (17) and (24) to (27) on sheet 7037 together:
(14) Clause 12, page 15 (lines 23 to 25), omit "has no effect to the extent that it would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 11", substitute "continues to have effect in relation to the activities authorised by section 11, except to the extent that the law or provision would operate to prohibit the facility or activities essential to the facility".
(15) Clause 12, page 15 (lines 28 to 30), omit "has no effect to the extent that it would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 11", substitute "continues to have effect in relation to the activities authorised by section 11, except to the extent that the law or provision would operate to prohibit the facility or activities essential to the facility".
(16) Clause 13, page 16 (lines 6 to 8), omit "have no effect to the extent that they would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 11", substitute "continue to have effect in relation to the activities authorised by section 11, except to the extent that they would operate to prohibit the facility or activities essential to the facility".
(17) Clause 13, page 16 (lines 15 to 17), omit "has no effect to the extent that it would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 11", substitute "continues to have effect in relation to the activities authorised by section 11, except to the extent that the law or provision would operate to prohibit the facility or activities essential to the facility".
(24) Clause 24, page 26 (lines 24 to 26), omit "has no effect to the extent that it would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 23", substitute "continues to have effect in relation to the activities authorised by section 23, except to the extent that the law or provision would operate to prohibit the facility or activities essential to the facility".
(25) Clause 24, page 26 (lines 29 to 31), omit "has no effect to the extent that it would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 23", substitute "continues to have effect in relation to the activities authorised by section 23, except to the extent that the law or provision would operate to prohibit the facility or activities essential to the facility".
(26) Clause 24, page 26 (line 34) to page 27 (line 2), omit "has no effect to the extent that it would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 23", substitute "continues to have effect in relation to the activities authorised by section 23, except to the extent that the law or provision would operate to prohibit the facility or activities essential to the facility".
(27) Clause 25, page 27 (lines 13 to 15), omit "has no effect to the extent that it would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 23", substitute "continues to have effect in relation to the activities authorised by section 23, except to the extent that the law or provision would operate to prohibit the facility or activities essential to the facility".
These amendments go to something that we have not spoken of in so much detail, so I will advise the chamber of why we are moving them. An aspect of the campaign that has been led, I think quite appropriately, by the Chief Minister of the Northern Territory is a very strong objection to the Territory being targeted for the location of a radioactive waste dump effectively because of its constitutional vulnerability. However, the government has sought to cover the field. These amendments relate to the fact that the bill shoulders aside the application of all state and territory laws that may be relevant to siting a radioactive waste dump, whether it is in the Territory or elsewhere. The bill displaces, wholesale, entire bodies of law to the extent that they would regulate, hinder or prevent key matters pertaining to the facility, including its siting, its construction, its operation and the transport of material to or from the facility.
Legal experts have cautioned against the Commonwealth arbitrarily stripping powers from the states and territories by suspending the application of all state and territory laws. That includes environmental protection laws and regs, Aboriginal heritage laws, and health and safety standards. The Northern Territory Chief Minister and his government are firmly opposed. They note the obvious flaws in the Commonwealth strategy of suspending the operation of laws designed to safeguard public health, heritage and the environment.
It is unbelievably obnoxious that the government should think it would be a good idea to simply bulldoze aside laws that have been put there for the protection of the public good, of public health, of the environment and of Aboriginal heritage. There will be, obviously, insufficient Commonwealth controls because the Commonwealth has not regulated these matters before. Traditionally, locations, siting and regulation of hazardous waste facilities or installations have been regulated by the state. The Commonwealth does not have an equivalent body of law. There is nothing in any Commonwealth act that you can tell me that regulates personnel or infrastructure in any remote area dump, so suspending the state and territory bodies of law that were designed precisely to regulate these things is completely unacceptable.
This approach fails to take into consideration the fact that state or territory emergency service personnel and infrastructure will be needed should an accident or incident arise and that nuclear waste will be transported past the doors of many Australian homes, often on roads prone to accidents and extreme weather conditions, particularly flooding. In their submission on the bill, lawyers from the Northern Territory EDO argued that the bill should be changed to ensure that state and territory laws apply so as to assist to manage the environmental impacts and risks as thoroughly as possible. The EDO stressed the absurdity of suspending particularly any regulation of the transport of nuclear waste. The ARPANS Act is based on the existence of complementary state and territory regulation, so it is not able to address issues that are not directly related to radioactivity. So the last thing you would want to do would be to push aside the bodies of law that have been instituted by the states and territories to address those gaps in Commonwealth law. It is utterly negligent. Without the state and territory laws applying, it is possible that surrounding land uses could be inadequately controlled to prevent issues developing at the facility.
Dr Patrick Emerton suggested in the inquiry that even if it is conceded that the management of radioactive waste raises particular issues that cannot be resolved within the framework of ordinary environmental or heritage protection laws-which is in itself a pretty contentious claim-it should be possible for the bill to make much more specific provision in respect of the suspension of such laws. Specifically, our amendments assert that it is possible to institute a regime under which such laws are prima facie operative but in certain circumstances-for example, following the failure of negotiations between the Commonwealth and the state or territory in question-those laws could be suspended by regulation in respect of a particular activity. So there is still a get-out clause. We have engaged here in good faith. The presumption should be that these laws apply, and the government should be able to apply for specific exemptions for specific reasons. I think that is a way of getting what the government is after without simply ram-raiding these entire bodies of law. Specific and piecemeal suspension consequent on narrowly specified circumstances would thereby replace the current provisions without undermining the purposes of the bill. I commend these amendments to the chamber.
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (12:52): I feel some conflict here-I am arguing, against the Greens, for Commonwealth powers, while they are supporting states' rights. It is a very unusual position for Senator Ludlam to take in these debates. We do not think his propositions are workable. Provisions in the bill which override state and territory laws operate only to the extent necessary for the facility to be established and to operate as intended. An Australian government facility such as this would normally be regulated through Commonwealth laws. State and territory laws would normally have no role to play. Obviously allowing those laws to apply would permit their legislation to prohibit the siting of a facility and transporting waste. We think that would produce a conflicting outcome that is inimical to the objective of the bill, which is to provide for the establishment of a national radioactive waste management facility.
The other issues that Senator Ludlam refers to can be accommodated through cooperative arrangements with state and territory agencies such as law enforcement and fire brigade organisations et cetera. It is important that it be clear in the bill that the Commonwealth law will apply, and that is the approach the government prefers very much to what I think would be a very complicated matrix that could undermine the whole objective of the bill if the Greens amendments were supported.
Senator LUDLAM (Western Australia) (12:54): It is a little rich at this late stage of the day to start proposing cooperative arrangements with the states and territories. This has been a profoundly uncooperative approach by the government. They have caused extreme resentment in the Territory government and the Territory ALP, and the Chief Minister is on the record over and over again saying how uncooperative the government have been. What has the government done to ensure cooperation in the very important examples that have been identified, such as emergency services and police?
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (12:55): Obviously once the site is agreed and we move to an establishment phase and those sorts of protocols get negotiated, as happens with other Commonwealth facilities such as immigration facilities where there is a role for state authorities, they will have their normal obligations under their state law to respond to any issues, be they traffic management, police, fire brigade or what have you. This will establish a regime that makes things clear, and, as happens in a multitude of other cases, the normal negotiations about operational issues where state and territory agencies are involved will occur.
Senator LUDLAM (Western Australia) (12:56): I move Greens amendment (10) on sheet 7037:
(10)Clause 9, page 11 (line 9), omit subclause (3), substitute:
I believe I have already addressed, probably at great length, the substance of the purpose of this amendment.
Question agreed to.
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (12:56): by leave-I move government amendments (1) to (3) on sheet CN227:
(1) Clause 17, page 18 (line 26), at the end of subclause (1), add -or (4)‖.
(2) Clause 17, page 18 (line 29), after -14(2)‖ insert -or (4)‖.
(3) Clause 17, page 19 (lines 2 and 3), omit -that was, immediately before the revocation, the selected site‖, substitute -that was the subject of the revoked declaration‖.
These amendments relate to the revocation of the minister's declaration. By way of background, the bill currently provides that the minister may declare a volunteered site as the site for a radioactive waste
management facility. A declaration has the effect of acquiring any rights or interests in the selected site to construct and operate a radioactive waste management facility on that site subject to environmental and regulatory approvals.
The minister may also make a similar declaration for the purposes of acquiring all-weather road access to the site. Clause 17 provides that the minister may revoke a declaration to acquire a site for the facility. This provision reverses a decision to select a site in the event that the site fails to meet regulatory approvals. In its current draft the bill does not allow the same revocation to also be made for all-weather road access to the site. This problem was originally identified in the Parliamentary Library Bills Digest. There is no policy justification that would require the Commonwealth to continue a declaration for road access to a site that would not be the location of the facility, and therefore these amendments address what was a minor oversight and clear up something that ought to be fixed. I encourage the chamber to support the amendments.
Question agreed to.
Senator LUDLAM (Western Australia) (12:58): I move Greens amendment (29) on sheet 7037:
(29)Page 33 (after line 15), after Part 6, insert:
Part 6A-Independent Commission on the Long-term Safe Storage, Transport and Management of Australia's Radioactive Waste
Division 1-Appointment and functions of Commission
34A Establishment of Commission
(1) The Independent Commission on the Long-term Safe Storage, Transport and Management of Australia's Radioactive Waste (the Commission) is established by this section.
(2) The Commission consists of:
(a) the Chair and other Commissioners appointed under section 34D; and
(b) staff engaged under the Public Service Act 1999.
(3) For the purposes of the Public Service Act 1999:
(a) the Commissioners and staff together constitute a Statutory Agency; and
(b) the Chair is the Head of that Statutory Agency.
Note: The Chair holds an office equivalent to that of a Secretary of a Department (see the definition of Agency Head in section 7 of the Public Service Act 1999).
34B Functions and powers of the Commission
(1) The principal function of the Commission is to establish a deliberative, public and inclusive process to:
(a) review international best practice in radioactive waste management; and
(b) review international best practice in community engagement on radioactive waste issues; and
(c) assemble an inventory of radioactive waste management procedures relating to waste currently stored in Australia under Commonwealth and State jurisdictions; and
(d) undertake an audit of the volumes, activity and contractual arrangements for Australian-obligated radioactive waste currently stored outside Australia; and
(e) publicly canvass community, independent expert and industry recommendations on how Australia should best manage radioactive waste; and
(f) review existing domestic and international literature and decision-making processes relating to radioactive waste management; and
(g) make recommendations on the establishment of a body to provide ongoing independent scrutiny of the implementation of the proposals, plans and programmes to ensure scientific, transparent, accountable and consensual radioactive waste management, and community access to judicial review processes.
(2) The Commission has the additional function of providing the Minister and the Parliament with independent, expert advice in relation to decisions to be made by the Minister under this Act.
(3) The Commission has power to do all things necessary or convenient to be done to perform its functions.
(4) In performing its functions, the Commission:
(a) is not required to act in a formal manner; and
(b) may inform itself on any matter in any way it thinks fit; and
(c) may consult with anyone it thinks fit; and
(d) may receive written or oral information or submissions; and
(e) may hold public seminars, conduct workshops and establish working groups and task forces; and
(f) must engage with the reference group convened under section 34G; and
(g) must reflect a variety of viewpoints and options representing alternative means of addressing the subjects of its inquiries, reports and recommendations.
(h) must act independently and in a way that advances a scientific, transparent, accountable and consensual strategy for the transport, management and long-term safe storage of radioactive waste ; and
(i) is not subject to the control or direction of the Minister.
34C Constitution of the Commission
(1) The Commission is constituted by a Chair and four other Commissioners.
(2) The performance of the Commission's functions and the exercise of its powers are not affected merely because of a vacancy in the office of Chair or in the membership of the Commission.
34D Appointment of Commissioners
(1) The Chair is to be appointed by the Governor-General, by written instrument, on a full-time basis.
(2) Commissioners, other than the Chair, are to be appointed by the Minister, in writing, after consultation with the Chair, and may be appointed on either a full-time or part-time basis.
Note: Commissioners are eligible for reappointment: see subsection 33(4A) of the Acts Interpretation Act 1901.
(3) Whenever a vacancy occurs in the membership of the Commission, an appointment must be made as soon as practicable.
(4) Until the Parliament provides otherwise:
(a) Commissioners hold office on the terms and conditions determined in their instrument of appointment;
(b) Commissioners are to be paid the remuneration and allowances determined in their instrument of appointment, subject to the Remuneration Tribunal Act 1973.
34E Operation of the Commission
Until the Parliament provides otherwise, the Commission is to operate in accordance with procedures determined by the Commission, and a document setting out those procedures must be published on the Commission's website within 30 days of the commencement of this section.
34F Role of the Chair
(1) The Chair is to manage the Commission and to ensure the efficient performance of its functions.
(2) All acts and things done in the name of, or on behalf of, the Commission by the Chair are taken as having been done by the Commission.
(3) The Chair may, in writing, delegate all or any of his or her powers and functions under this Act to another Commissioner.
Note: Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 set out general rules governing delegation of powers and functions.
Division 2-Establishment and functions of reference group
34G Reference group
(1) The Commission must appoint a reference group to assist the Commission in gathering evidence and undertaking informed and representative community consultation in relation to the Commission's functions.
(2) The membership of that reference group must include, but is not limited to, representatives of the following:
(a) Commonwealth Departments with the functions of science, environment and health;
(b) State and Territory governments;
(c) local government;
(d) Aboriginal communities;
(e) non-government organisations and experts;
(f) radiation safety specialists;
(g) community engagement specialists.
Division 3-Reporting requirements
34H Reports of the Commission
(1) The Commission must, at the end of 15 months after its establishment, give to the Minister an initial report relating to the short-, medium- and long-term management of radioactive waste, including an assessment of the domestic application of best international practice, to promote public confidence and consent.
(2) The Commission may report to the Minister on any matter related to its functions.
(3) The Minister must cause a copy of each report received under this section to be tabled in each House of the Parliament within 9 sitting days of that House after the Minister receives the report.
In my opening comments some time ago I foreshadowed that the Greens would be moving not simply to oppose the bill and not simply, failing that, to improve the bill but also, failing even that, to propose alternatives to the bill. As I have said before, the only aspect of this debate with which I strongly agree with the minister is that this is an extremely difficult and vexed issue that has plagued governments of both of the old persuasions for many years. We thought that the government was on the right track in the comments it made before the election and that some sense would be restored to the debate-but no such luck; the government failed to implement its election promise and its own policy platform to establish a consensual process for site selection based on science and based on consultation on the basis that the Australian Greens would attempt to implement the government's policy. That is what this amendment addresses. We propose an independent commission on the long-term safe storage, transport and management of Australia's radioactive waste. That is how we should responsibly deal with the 4,020 cubic metres of so-called low-level and short-lived intermediate-level radioactive waste and the approximately 600 cubic metres of long-lived waste in this country. The Greens take very seriously the responsibility of dealing with the 32 cubic metres of spent research reactor fuel which is returning to Australia in 2015-16 after reprocessing in France and the UK, although I do note that the government is well within its legal rights to seek an extension of time should the establishment of processes here in Australia for the disposal or storage of that waste not be concluded by then.
An independent commission is the best way to go about this-to actually learn from international best practice. The phrase 'international best practice' has been flipped around relentlessly in this debate so far. So let us put on the public record exactly what best practice on radioactive waste management is. There has been 60 years of case history, of the experience of countries dealing with far more of this material than Australia. From that case history we can actually get a reasonably good idea as to who is doing it well and, more importantly, who is doing it badly. The roles of the commission, therefore, would be to establish this best practice, to establish an inventory of the waste which needs to be stored and of the waste management procedures currently used by the state and the Commonwealth, and to undertake a proper audit of the volumes, activity and contractual arrangements. I think the first two of those are reasonably well understood, but there is some ambiguity around the contractual arrangements. The government has been hopping up and down saying that that was the urgency and then we later found out that there is in fact no such urgency since the material can safely be stored at Lucas Heights-so we are told by the government-or we can renegotiate with our overseas partners for a deferral for a short period of time. The commission should also publicly canvass the community, it should hear independent expert views and it should also hear from the industry. From all that, the commission should make recommendations on how we can provide ongoing scrutiny of the implementation of the decisions arrived at through this proper independent process.
Hansard will not record whether or not the minister and the government advisers are collectively rolling their eyes down at the other end of the chamber over the proposal to establish yet another commission, another inquiry, another working party or another look at the issue. I want to go into some detail about why we would do that. The reason we need to have this debate is that Australia has never had it before. Every single process which has been attempted in Australia over the last two decades for the storage and the management of radioactive waste has started with the assumption that it needs to be on a remote dump somewhere and that it needs to be on Aboriginal land-perhaps on a site that has been volunteered or perhaps just dumped on a site the government has settled on coercively. The common theme has been that it needs to be a remote store somewhere in the outback of Australia. We need to start a different conversation without a predetermined outcome. That is the key thing here-that a process with some genuine independence would not automatically assume that we need to chase up a disadvantaged Aboriginal community to host this material. But that is where these processes inevitably seem to run when they are guided by politics. As I was told by ANSTO officials more than two years ago now, this is just politics-there is no engineering reason for dumping it; this is being guided by the urgent perceived need to get it the hell away from the cities. That is an appalling way to deal with this material.
The proposed commission will obviously not work unless it is genuinely independent and unless the people conducting the study bring an open mind and a willingness to listen to a variety of views. The amendment we have proposed is complex and I will just sketch out briefly what it does. We have proposed that the commission be genuinely independent; that it can inform itself in any way it sees fit; that it can consult with whomever it sees fit; that it can receive written and oral information; that it can hold public seminars, conduct workshops and establish other taskforces or working groups; that it must reflect a variety of viewpoints representing alternative approaches to addressing the subject; and, perhaps most importantly, that it is not subject to control or direction by the minister-that is, that it is truly independent. That means that its findings will enjoy authority and confidence. These qualities are the best ingredients for social licence. We envisage the commission being made up of five people, appointed by the Governor-General, on a full-time basis for 15 months. After that period of time, the commission would have to deliver an initial report to the minister. That is a reasonable period of time, I think, to do this sort of process well.
The government keep on saying that there is an urgency to resolve this matter, but they waited two years before acting to repeal the Howard legislation. The government then tried to hold an inquiry of only 11 working days-and here we are, two years later. By not going about this properly, by attempting to perpetuate the ram-raid that the Howard government began, the government has wasted years. By ignoring the experience of the International Atomic Energy Agency, the British government, the OECD Nuclear Energy Agency and, most recently, that of the United States at Yucca Mountain, the government have wasted a great deal of time. We should take the time to do this properly. There is no compelling reason for us to be suddenly in a huge hurry to do this badly. Establishing the commission is how to do it properly.
The International Atomic Energy Agency told the government in 2007 that governments, having used undemocratic methods lacking public involvement and acceptance, 'have had to reconsider their programs'. That sounds familiar, does it not? That is exactly the path we are on here. One of the conclusions of the study was that reassessment can become necessary because past decisions were not reached through socially acceptable processes. Does that sound familiar to anyone down that end of the chamber? It is very rarely that I would come in here and quote the IAEA in shades of anything approaching approval, but they say:
... there is a need for public involvement in the decision-making process, adequate financial provisions, clear integrated plans on how spent fuel and radioactive waste will be managed to ensure continued safety into the future-
this could be for decades-
to avoid creating a legacy situation that would impose undue burden on future generations.
That-a situation which imposes undue burden on future generations-is precisely the sort of set-up being put forward right here in this chamber this afternoon. After 20 years of failing with this kind of approach, somehow the government believes it is now going to succeed. In a statement, the UK Committee on Radioactive Waste Management said: There is growing recognition that it is not ethically acceptable to impose a radioactive waste facility on an unwilling community.
This is of course precisely what the government proposes to do with this legislation. The minister might still be harbouring some kind of strange delusion-from his office down in Melbourne or cocooned away here in Canberra-that he does have social licence, that he does have a willing community, that he has a signature on a piece of paper and that therefore everybody is happy with the process. He can perhaps maintain that fiction because he has refused to meet with anybody with a different point of view. He has not met with them at his office. He does not return correspondence anymore. Therefore, perhaps he still believes that it is simply going to sail through just because he has got his bill.
The UN Joint Convention on the Safety of Spent Fuel Management and the Safety of Radioactive Waste Management, to which Australia is a party, notes that public consultation on radioactive waste management strategies was not only a good practice to follow but also essential for the development of a successful and sustainable policy. So it is very difficult to miss the emphasis placed by the IAEA, the OECD Nuclear Energy Agency, the International Commission on Radiological Protection, the EU, the UK and the Japanese government on winning public confidence and obtaining social licence and community consent for the siting of radioactive waste facilities. Minister, I put to you that you do not have any of those things. You do not have public confidence, you do not have social licence and you do not have community consent. It has been demonstrated all the way through the passage of this bill. Once the bill passes-and I believe it will, perhaps even later on this afternoon-you will realise just how much you lack those essential things.
Australia is either a member of these institutions and treaties or we have strong relationships with those countries considered to be like-minded on many fronts-for example, considered to be democracies-which makes it all the more regrettable that Australia lags behind on this aspect of international best practice: the obtaining and securing of community consent. To do that you need to build confidence that you are not simply going to kick down the front door and dump waste somewhere whether people are happy with that or not. We need to learn from the understandings of principles on transparency, community participation and stakeholder involvement in decision making around nuclear waste. Instead, in the inquiry into this bill, a good long while ago now-the minister may not have this quote in front of him-ANSTO claimed, 'We are not experts on these matters'. I had asked them: who is in charge of consent; who do I talk to about consultation, building of social licence and building of confidence in the community? ANSTO claimed at that point, 'Hmm, we're not experts on these matters in the areas of public consultation that relate to this.' Of course they are not; they are engineers. They build stuff. They look after the waste. It must be somebody else's job.
Despite ANSTO's CEO being charged with the responsibility to take into account best international practice, the answer effectively is that it is nobody's job. I am interested to know who is responsible for making sure that when the words 'world's best practice' are again uttered in this chamber or in the minister's press release-and I will put this question to you directly, Minister-if it is not ANSTO's job to ensure that social licence is created and that confidence is built in the community around the siting of these materials, whose job is it? It would be helpful if it were the responsibility of either a ministerial portfolio or the Public Service-anybody at all. Whose job is it to ensure that consent is obtained for a dump such as this?
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (13:10): I thank Senator Ludlam for his contribution, although he knows I will not be supporting the amendment. The first thing to say is that it is very easy to talk about these processes as though somehow there is a unanimity of view and a consensus is going to be able to be reached. This is a highly controversial subject matter. Quite frankly, Senator, I suspect I could spend 10 years searching for social licence and you would still be opposing the dump, because that is your strongly held view. I respect that view. You somehow think that we are going to be able to get to a position where everyone is in total support of a view. Part of what you do is to try and undermine confidence in the process, because you raise your serious concerns about it. So I am not sure that it is therefore fair to say, if you have not got there, if you have not convinced everyone, you cannot do anything. We have gone through a very long process, a long gestation, with this legislation to try and get to a landing point, and there is a long way to go yet, once the bill is agreed, if it is agreed, by the Senate.
From what we can see, the amendment seeks to establish a commission whose principal functions are largely already performed by the Australian Radiation Protection and Nuclear Safety Agency, ARPANSA. ARPANSA incorporates international best practice in its approach to radiation protection and nuclear safety. From its inception, ARPANSA established the Radiation Health and Safety Advisory Council, the Radiation Health Committee and the Nuclear Safety Committee, whose functions are-and I note-'to represent the interests of the general public, to advise on matters relating to nuclear safety and the safety of control facilities and to identify emerging issues relating to radiation protection and nuclear safety'. So I
think in broad terms the answer to your main query is ARPANSA. In deciding to issue a licence, ARPANSA must take into account specified regulations and international best practice in relation to radiation protection and nuclear safety. Thus, if you like, ARPANSA is the arbiter of international best practice in the Australian context.
We think the commission proposed in the Greens' amendment is pretty woolly, pretty vague. The only thing it is actually mandated to do is prepare a report. We think the current regime provides a better answer than that proposed by the Greens. As I said, it is largely already performed by ARPANSA and we do not think the commission adds to the overall architecture we are putting in place. As I said, I understand the concerns and issues you raise, Senator Ludlam, but I do not think anyone could suggest that this has not been a long and involved process in which many people have put their views. But, in the end, this parliament has to decide on a piece of legislation. I think we have had five major inquiries. It has been a long and detailed process. As I said, the government will not be supporting the amendment. We think the current architecture is a preferable one.
Senator LUDLAM (Western Australia) (13:13): I thank the minister for those comments. As profoundly unsatisfying as they may be, at least they are on the record. The minister made a couple of points that cannot go unanswered. Just because we have been at this process for a while, Minister-through you, Chair-that does not make it a good process. It is a process that, from opposition, you described as 'sordid' and 'profoundly shameful'. It was something on which you attacked coalition MPs, including Senator Scullion-good afternoon, Senator Scullion-who has joined us to conclude the debate. Minister, you attacked the coalition when they instituted this precise process. So, yes, it has been going for years and, yes, we have been opposing it, because it is a rotten process.
I think it thoroughly exemplifies all the things that you could do poorly. The reason it has taken so long is that people have been pouring sand into the gears, whether they are legal challenges in the Federal Court, demonstrations right around the country, resolutions by quite powerful unions around the country or a fantastic community campaign that has sprung up to oppose this thing. A big part of the reason that you are so far behind is that you are going the wrong way. We have effectively been trying to save the government from itself, simply bringing it back to where it was in opposition, which we supported. As soon as Labor got into government it turned around and simply perpetuated a rotten process that was not starting from the point of view of consent at all.
You note that ARPANSA are the ones who will be responsible for organising the social licence and the community consent that I was talking about. Does the minister consider that it might be somewhat backwards for the minister to say it is going to Muckaty, 'There you go, ARPANSA. Go and consult'? There is something a little bit awkward about the cause and effect there-that the government will decide where it will go and then it will consult at you until you consent. That is why this process has gone so badly off the rails. Perhaps the minister did not recognise exactly what it was that the Greens were trying to do, because we do not have a foregone conclusion. There is nothing in this amendment that says: 'At the end of this commission's process it will go where we decided it was going to go all along.' There is no preordained conclusion to this amendment. The idea is to come at it with an open mind and not ask: 'Which remote Aboriginal community should host radioactive waste until the end of time?'
You will not find a target or a postcode or a set of geographical coordinates in our amendment, because they are not there. We are not ready to make the decision to dump this material in a remote community. That case has never been made. In fact, the opposite case has been made. Witnesses from ANSTO told me: 'Look, this is just political. This is not about engineering. It is about getting it as far from white people as possible.' That is a horrendous agenda. The language of the bill that we are looking at has many references to Aboriginal communities and land councils. Why? What is the assumption that it has to be as far away from the centres of population as possible? That is what people are asking me when I go to Tennant Creek. That is what they would ask Minister Ferguson if he took the time to go there as well.
This process has been dismissed, more or less, out of hand by the minister, as the government have already made up their minds: 'It's going to go there. We'll consult once the minister's decided where it's going to go.' That is why you have a fight on your hands. I commend these amendments to the chamber.
Senator SCULLION (Northern Territory-Deputy Leader of The Nationals) (13:17): I move opposition amendment (1) on sheet 7111 standing in my name:
(1) Page 33 (after line 15), after Part 6, insert:
Part 6A-National Repository Capital Contribution Fund
34A Application of Part
This Part applies if:
(a) the Minister has made a declaration under subsection 14(2) that a site in a State or Territory (the relevant State or Territory) is selected as the site for a facility; and
(b) a facility has been constructed at the site. 34B National Repository Capital Contribution Fee
(1) An entity wishing to use the facility, other than the following entities:
(a) the Commonwealth;
(b) the relevant State or Territory;
(c) an authority of the Commonwealth or the relevant State or Territory;
must pay such fee (the Capital Contribution Fee) as is prescribed by the regulations as a capital contribution towards the cost of the facility before being eligible to have radioactive waste accepted by the facility for storage, management or any other purpose.
The background to this amendment is that, when the National Radioactive Waste Management Bill 2010 was first introduced, I had some concerns that there were a number of jurisdictions that we thought were pretty much getting a free hit. High on my list of those getting a free hit was South Australia. Despite the assurances of my colleague from the Greens, who says that we basically always said it should go to Muckaty, it is quite the contrary. After millions of dollars of investment, Australia decided that the very best place for it to go was, in fact, in section 52 of the Officer Basin in South Australia. There was a huge amount of investment from everybody and, fundamentally, an agreement-a difficult agreement but an agreement across every state and territory that there would be a national task to find the best place, and the best place, as I said, was in South Australia.
We all know the history. The previous Premier of South Australia, Mike Rann, in a rush of political blood to his head during an election, decided: 'No. After all that work, it's not going to the best place in Australia. It's not coming to South Australia.' The Commonwealth, unsurprisingly, was caught pretty left-footed, as was everybody else. This process started with the Labor government, then the process went across to the conservative government and now it is back with the Labor government. It has gone on for a very long time. The fundamental point about why we are here today is the failure of Mike Rann to accept an absolute ironclad agreement with everybody. Every state and territory signed up to the fact that we would invest millions of dollars ensuring that it went to the best place. Scientists decided where the best place was for a whole range of reasons-transportation, the level of amenities and all those sorts of things-and, very sadly, that is why we are here today.
I put the original amendment forward to say: 'Since this has been foisted on us and since nobody else seems to want to have it, the only jurisdictions that can keep the materials here are the Northern Territory and the Commonwealth. Every other jurisdiction will have to sort themselves out, because we're not going to cop it.' We have always copped it as a territory, and that is because we are not a state. We are dictated to about what happens in the Northern Territory. Let's face it: that we are a territory is the only reason it has been able to be put there. So the amendment was put forward to ensure that no other jurisdiction, apart from the Commonwealth, was able to keep their material there.
It has come to my attention over the last little while that there were, in fact, some rumblings about jurisdictions. Even South Australia was saying, 'I know what we'll do: we'll gift it to the Commonwealth and that will get us around Scullion's amendment. We'll gift all our material from the other jurisdictions to the Commonwealth. That gets around the amendment and it is then the Commonwealth's material and they'll be able to store it.' My thinking process was along the lines of this: 'We built something to the amenity of everywhere.' I was pretty cranky at the time. Let's face it, you cannot go to sleep in the Commonwealth; you have to go to sleep in a state or territory. Every state and territory certainly benefits in some way from having a research reactor at Lucas Heights. On that basis, if any other jurisdiction wants to store material there-the Territory has made the contribution, and it certainly was not voluntary-the Commonwealth is paying the money and the other states and territories should do the same. This amendment effectively establishes the capital contribution fund, which is to provide enhanced public services or infrastructure to any state or territory. It is not just to the Territory, because if somebody can eventually capitulate-particularly the current Premier of South Australia, who still stands up today and says, 'Look, I'm terribly sorry; we got it all wrong'-South Australia will be able to have a capital contribution fund that will be paid into. So this is not about Muckaty; this is about a capital contribution fund for whatever state or territory takes this repository. Wherever it is sited, this repository will provide safe and suitable storage for national and possibly, should they pay, state and territory material.
The key feature of this amendment is that the fund will stand in credit of $10 million, and that is prior to the acceptance of any material from any source. So before any material arrives from the Commonwealth, the Territory or anywhere else, $10 million has to be in the fund that is available to a board consisting, pretty much, of the Chief Minister of the Northern Territory and some people with some expertise in health, particularly in infrastructure. Again, the use of the fund was motivated only since the provision of some $32 million by the Howard government, and it is well on the record that that was levered between David Tollner and me. Basically, at that stage, if you had cancer you knew you had to be on a flight to Adelaide. No matter where you came from-whether you came from Alice, Katherine, Tennant Creek or wherever-you knew you had to be on a flight to Adelaide, because that was simply the closest amenity. That was only a few years ago. So what everyone else in Australia took for granted we just did not have access to in the Northern Territory. We now have an oncology unit in the Northern Territory. In places like Adelaide, because they have had oncology services for so long, they are training people in oncology services and have a large population of people who are ready to staff it. But that is not the case in the Territory, and we need very much to grow our own staff to ensure that we provide the same level of amenity that people take for granted in every other part of Australia.
It all comes down to some sort of justice for Territorians. We are still having this foisted on us, and that certainly cost the previous coalition government some $32 million. That will never be enough because it is never going to compensate us for how we feel as Territorians, and I acknowledge that. This amendment deals with closing the equity gap, if you like, to ensure that Territorians actually get the same level of oncology services enjoyed by others.
Just before I sit down-and I understand there are some agreements to ensure that we do not keep this debate going-let me say to Senator Ludlam that I not only have visited ANSTO but have spoken to ANSTO staff extensively, and I have never heard them say that it is not a case of just not wanting to put the dump near white people. Now, mate, I am a mate of yours, and you can check the Hansard, but that is what you have said. All I am saying is that I have been here for a fair while longer through this particular debate, and I have never had that put to me. I am just putting it on the record for you that I have never had that put to me, and I have extensively questioned it, both personally in the pub and across the committee bench. I just thought I would put that on the record.
This is a very important amendment, particularly to Territorians, so that we can try to close the gap between access to health services. I commend the amendment to the house.
Senator LUDLAM (Western Australia) (13:26): I will briefly respond to some of Senator Scullion's comments and also indicate that the Greens will not be supporting this amendment. That is somewhat moot, of course, because this bill will get up with us or without us, but I do not think it is appropriate for us to sit on the same side of the chamber as Senator Scullion on this particular amendment. As much as you might say that it is wonderful that you have managed to score 10 million bucks from the Commonwealth government in order for the Territory to cop it, I want to back up a bit to your earlier remarks about South Australia, because they go precisely to the point that I was making just before you rose, which was that that study started on the assumption that the waste will be going to a remote bit of country somewhere. Which bit of faraway country from the cities is best for it? They looked at geology, geophysics, earthquakes, rainfall, groundwater, access to transport corridors and so on, starting on the premise that, sooner or later, it would go to some remote piece of land, and that is precisely what I am trying to avoid with the amendment that the Senate just negatived. I am very happy to put it back up again if you are going to have second thoughts, although I am not sure I can do that. It started on the assumption that it is going to a remote bit of land. It started on the terra nullius premise, and guess what? When you got there the Cooper Pedy Kungas were there, saying, 'No, you don't.' They were not asked, but a bunch of scientists were asked: if we are going to put this stuff in a remote shed, where should the remote shed be? It was started on a premise that pre-empted the outcome of an honest inquiry, which is what we are putting up. When you got there, it was not empty land; the Kungas were there, and they said, 'No thanks; we're not having it.' They put up a very, very strong campaign, which is effectively the template for what the Muckaty are up to now, calling in people from around the country, and indeed around the world, to say: 'If this stuff is safe in Sydney, perhaps it should stay in Sydney; if it is not safe in Sydney, why the hell are you bringing it to our block?' Where is the case for this stuff to go remote?
With great respect, Senator Scullion-and you were involved in that process back then-I was on the other side of the debate supporting the Kungas from a long way away in Western Australia. This is not a NIMBY approach. From a Western Australian perspective maybe they should have just copped it. But of course not; they are out there; it was their flock. They were not consulted and neither were the Muckaty mob.
In terms of the substance of this amendment, the Chief Minister branded the $10 million rent money for the dump as offensive. He said it was a bone being thrown at us to try to get us to roll over.
Senator Scullion: Let's see him knock it back.
Senator LUDLAM: He is not going to have the choice. The minister was saying before about how cooperative this is all going to be once the bill passes-that we will cooperatively engage with Territory police and emergency services so that they can cooperatively deal with a disaster, if there is one, after we have pushed the laws aside regulating transport of this material. It is all going to get nice and cooperative after we have passed this law. If they have no choice in taking the $10 million fund, I am sure they will put it to good use. The Territory is not rolling in cash; I hope they do put it to good use. But it absolutely is offensive. I think that is an entirely appropriate word for the idea that for 10 million bucks you are somehow over the line. Senator Scullion, join us on this side of the chamber when we vote against this bill. It should not be going into your electorate. It should not be going up to the Muckaty block, and that is what this bill sets in train. I have put as clearly as I possibly can that the Greens will not be supporting this amendment when it is put.
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (13:29): I indicate the government has been swayed by Senator Scullion's oratory and will be supporting the amendment.
Question agreed to.
Senator LUDLAM (Western Australia) (13:30): I move Greens amendment (30) on sheet 7037:
(30)Page 35 (after line 28), after clause 37, insert:
37A Obligation to minimise production of waste
Despite any other law, any agreement between the Commonwealth and another party or parties involving the production of radioactive waste must be made subject to the condition that each contracting party must take appropriate steps to ensure that the generation of radioactive waste is kept to the minimum practicable.
This is an amendment that I am sure will get late support from both the government and the opposition, so I do not intend to call a division. What it does is provide an obligation to minimise production of waste, and who could possibly disagree with that? I am sure if you are proposing to vote against this amendment you will stand up and pat me on the head and say that I am well intentioned, or that this is a great idea but you will be voting against it.
We are proposing to minimise the production of this material in the first place which, I hazard to guess, is probably the only area of agreement between every party in here in this entire debate, because it is such an intractable headache for people and has been for so many years. One thing we should all be able to agree on is to minimise the generation of it in the first place. It does not absolve us of responsibility to look after what we already have, but let us move away from the misleading concept of disposal towards a sense of stewardship and harm minimisation. Of course, the first thing you would do if that were your interest would be to minimise the production of this stuff in the first place. I strongly commend this amendment to the Senate.
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (13:31): I hate to disappoint Senator Ludlam, but I cannot support this amendment. Not to patronise him, I think we have a joint objective of minimising the radioactive waste material that we have to deal with, but we would argue that that waste minimisation process is already taking place. There are obligations for the producers of the waste, and we therefore see the amendment as being unnecessary and creating a range of other complications.
Senator LUDLAM (Western Australia) (13:32): Minister, in that spirit, can you describe for us what the Australian government is doing to phase out the use of reactor sourced isotopes, as is happening in Europe and Canada, and phase in alternative sources of medical isotope production that do not rely on reactors, such as particle accelerators? If we are all on board with this agenda of waste minimisation, what are you doing specifically?
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (13:32): My advice is this, and I make very clear that this is advice I have recently received: the new technologies that the Canadians are trying to develop will not be in place until 2016. We are obviously looking to learn from any experiences that they have, but the suggestion is that this is still at a very early stage.
Senator LUDLAM (Western Australia) (13:33): Our waste minimisation strategy is to sit around and see if the Canadians come up with anything? I take it our strategy is not to do anything ourselves. I could come up with plenty of other examples of how we do not have a waste minimisation culture when it comes to radioactive waste in any sense of the word. But I think I made my point simply in looking at the case of radioisotopes. In my closing remarks I will read some statements from medical professionals who have demanded that the government and coalition stop using medical isotopes as a fig leaf of justification for producing this waste in the first place. We do not need it. It is not really good enough for the minister to stand up and say, 'The Canadians are up to something and we will give it some thought.' Recognising that you are here in a representational capacity and you are not expected to be an instant expert in everything, I would have thought the advisers could provide you with something a little more substantial than you will wait and see what the Canadians get up to. I think I have made my point and I commend this amendment very, very strongly to the chamber.
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (13:34): I do not have much to add, other than that we think currently there are obligations to minimise the amount of waste. It is clearly in everyone's interest to minimise the amount of waste. There are costs and issues involved with the management, so it is a key driver of behaviour. In terms of the international experience, we are interested in any developments that will help inform best practice in Australia. But we are not in a position to respond to those at this time. Question negatived.
Senator LUDLAM (Western Australia) (13:35): I move Greens amendment (31) on sheet 7037:
(31)Schedule 2, item 1, page 39 (lines 14 to 19), omit subitems (3) and (4), substitute:
(3) To avoid doubt, section 10 of the new radioactive waste law, and the new ADJR Act, apply in relation to a nomination or an approval continued in force by this item.
I will speak very briefly to this one as I have already given the chamber the benefit of my views on the fiction of judicial review in this bill. This is the final amendment to put some teeth into the bill that I propose, so that some judicial review is applicable-namely, that the minister should have some criteria by which to be judged on whether or not he did what the bill said he should do.
At the moment, the bill essentially says if he were to throw a dart at a board in the privacy of his office and decide that that was where the dump was going, that would not be a reviewable decision even if he published a photograph of the dartboard. We do not think that that is appropriate, so I commend this amendment to the Senate.
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (13:35): I indicate we will not be supporting the amendment for the same reason we have not on the previous 10 times we have had to deal with this in other amendments. Senator Ludlam made the point we have had this argument, and the government do not accept the core Greens argument that we think procedural fairness will not be followed.
Senator LUDLAM (Western Australia) (13:36): I come back to where we began-that is, I move Greens amendments (1) and (2) on sheet 7200, concerning clause 4 on the definition of 'controlled material':
(1) Clause 4, page 3 (line 1), after -1998‖, insert -that is of domestic origin‖.
(2) Clause 4, page 3 (line 2), at the end of the definition of controlled material, add -For this purpose, controlled material is of domestic origin if it has been used in Australia, generated by activities in Australia, or sent to Australia under contractual arrangements relating to the conditioning or reprocessing of ANSTO spent nuclear fuel (within the meaning of the Australian Nuclear Science and Technology Organisation Act 1987).
This amendment is the only piece of good news that I can announce to the chamber this afternoon. The government has apparently agreed with the substance if not the detailed wording of my arguments in the debate before last on importation of international radioactive waste. I am glad Senator Scullion is still here, and I am hoping we can get consensus so this one will not need to go to a vote. Despite some of the more remarkable commentary from some of the more unhinged members in the other place-if that term could be considered parliamentary-proposing that we import radioactive waste from overseas as a commercial proposition, I am glad to have the understanding that the government has agreed with the sentiments that I raised: that we should formally preclude this from occurring, that it should not simply exist in regulation and that it should be in Australian legislation as it is in the instance of building nuclear power plants, recognising that there is a small fringe of people in this parliament who think that that would also be a good idea. We have come back with wording, which I understand the government will be supporting, to more accurately define what we mean by international waste.
For example, if there are fears that we are seeking to legally preclude the return of Australian obligated reprocessing waste from France and the UK, that is not the intention. I think it is still an open question as to whether that material should return and when, but we are not seeking to legally ban it. We are seeking to legally ban a Pangea-style international commercial radioactive waste dump. I have fairly close experience with such a proposition, because that lunatic idea was actually landed upon Western Australians in 1999. I would be very pleased to have the support of the chamber in formally precluding such a proposition.
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (13:38): Can I say, Mr Chairman, that Senator Ludlam has worn me down, and I have finally seen the light and have agreed to support these amendments. Earlier in the debate Senator Ludlam moved a similar motion about which the government had concerns about the technical effects but, because I know his views are genuinely held and we thought there was a meeting of minds, we have been able to accept the reworked amendment from Senator Ludlam. It has been the position of successive Australian governments that Australia will not accept other countries' radioactive waste. As a fellow Western Australian, I lived through the same experience Senator Ludlam did, with a proposal that I think Western Australians generally regarded as pretty offensive.
The Greens amendments effectively restricts access to the national radioactive waste management facility of waste that originates from use of radioactive materials and nuclear activities in Australia. In particular, it permits waste arising from overseas reprocessing of Australian research reactor fuel to be accepted at the facility. It complements controls under the Customs (Prohibited Imports) Regulations and the prohibition already in the bill on acceptance of high-level waste, preventing the facility from accepting used power reactor fuel. As I said, this has been a policy of successive Australian governments. It is one that this
government is committed to, and we are very happy to have that reflected in the bill and the act. That will ensure that the parliament would have to debate this issue before there were any change in policy in that regard. I think it strengthens the bill, so the government will support the amendment.
Senator SCULLION (Northern Territory-Deputy Leader of The Nationals) (13:40): Senator Ludlam, you are probably one of the few people around who would be aware of my original 10 amendments to this bill, one of which was pretty much identical to your amendment today. As I said the other day, I did not lose the fight, but I was compelled by the argument that this could be protected under the Customs Act. I agreed to that, but you know the way these sorts of things go.
One of the issues that we deal with in this place, Senator Ludlam, is providing comfort to those who might be concerned about something. Even if we have one particular piece of legislation that says quite specifically that you cannot import something under the Customs Act because it is existing legislation, people will feel happier if we have a particular piece of legislation that actually says, above and beyond whatever particular act that we have quite reasonably used to prevent any import, that we specifically proscribe something that gets rid of that particular fear.
That was one of the 10 points that served as the amendments to the original bill. So I commend you very highly on convincing the government in a way I was not able to convince my government, I have to admit. I think this is certainly something that those people who argue that there is still some possibility of somebody else's international waste coming into Australia can now put to bed. We will be supporting the amendments.
Question agreed to.
Senator LUDLAM (Western Australia) (13:42): Chair, for the record, I was not intending to call divisions on those last two questions as they were put, but I would like to record the opposition of the Australian Greens to both of those motions.
Bill reported with amendments; report adopted.
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (13:43): I move:
That the bill be now read a third time.
Senator LUDLAM (Western Australia) (13:43): Mr Acting Deputy President, if this is the appropriate time, I seek to-
An incident having occurred in the gallery-
The ACTING DEPUTY PRESIDENT (Senator Furner): Order! The public is reminded that there are no comments in the public gallery, thank you. Senator Ludlam has the call.
Senator LUDLAM (Western Australia) (13:44): Thank you, Mr Acting Deputy President. I wonder whether now is the appropriate moment to make some concluding remarks before we vote on the third reading.
The ACTING DEPUTY PRESIDENT: Yes.
Senator Chris Evans interjecting-
Senator LUDLAM: Yes, indeed. I just note the interjections from the public gallery. I am not sure whether Hansard or Broadcasting will record it, actually, but a number of people who obviously feel very strongly about the campaign just dropped a banner from the public gallery. This is just the beginning, Minister. For the minister's advisers who have come down and will shortly be-
Senator Bernardi interjecting-
Senator LUDLAM: I had no idea that was on its way, Senator Bernardi, but good on them for coming in here, because quite clearly the parliament is about to fail on this vote in its duty of care to the people of the Northern Territory, and particularly to the people on the front line in Tennant Creek, which I have been very fortunate to visit a couple of times. They have spent plenty of time here in parliament. They have come down when we thought this bill might get up in the past. It is a long way for them to travel down here. There are many people who are very much here with us in spirit. They are bearing witness, they are observing what is going on here and they are sending to the government and to the opposition a very clear message: you have won the vote today-you are probably about to win the vote today unless there is a late-breaking change and things are going better than expected-but you are going to lose the campaign. That dump is not going to Muckaty.
What has happened, in fact, is that there has been targeting of four separate sites. One thing that I will acknowledge this bill does is take three of those Defence sites off the table. Those people are being let off the hook. They have all pledged to line up and support the Muckaty mob. They are taking a collective approach that, if it had landed on their site or their block, they know that the people of the Territory would have been behind them. The government here has provoked a fight that it did not need to pick, and there are many, many groups around the country and around the world who will now step up, because while debate was suspended in this parliament perhaps there was some hope that sense would prevail. We are about to profoundly fail in our duty of care to those people.
There is a wonderful photo exhibition that was launched in Sydney in January called Manuwangku, Under the Nuclear Cloud. 'Manuwangku' is the way that the mob pronounce the bit of land that we are calling 'Muckaty' in here. It was cosponsored by Amnesty International and the Beyond Nuclear Initiative. Sandy Edwards, who is the curator, recalls one of the most evocative images of this gorgeous collection of photos by Jagath Dheerasekara: 'Three women dressed in brightly coloured garments dance in the shadow of a big black drum with a yellow nuclear symbol on it. The message is clear. We can only hope that the Manuwangku community is spared this terrible fate and that these photographs will help the outcome.' I wonder if the minister got a copy of that book or whether he took the time to go along to the exhibition. That is Amnesty International, who fight around the world on horrific abuses of human rights, taking a position on the way that this particular community has been treated and trying to spread their message.
Oxfam, in a recent press statement, said:
With key issues of ownership, traditional owner consent and affected community support for the radioactive waste facility currently before the Federal Court, the Gillard Government should defer debate on this controversial legislation.
Oxfam took a position not on the particular siting decision but on the process, which is what I have been doing.
As a signatory to the Declaration-
on the Rights of Indigenous Peoples-
Australia has committed to obtaining the free, prior, and informed consent of Indigenous peoples before adopting laws and policies which may affect them.
That was Oxfam. Obviously there is no free, prior and informed consent.
The minister is seeking unanimity. You will never find it, but what you have in this instance is unanimity of opposition. Perhaps you would be able to do a little bit better than that. There have been very strong positions taken by the union movement. There is probably not a huge amount that they could do while we are in here debating the process, but when it actually comes to putting equipment on the ground and shipping the material in through Australian ports perhaps the government will realise the kind of fight that it has picked. Unions NT resolved as long ago as the 12th of last April to fight the radioactive waste dump. NT ETU organiser Michael Haire said at the time:
Unions NT pledged to continue the campaign in solidarity with Traditional Owners and the community of Muckaty and Tennant Creek.
We strongly oppose the National Radioactive Waste Management Bill-
which they thought might pass the Senate last May-
and reject any legislation which would continue to target Muckaty Station, or any site in the Northern Territory for a nuclear waste dump.
I would like to also acknowledge the many campaigners from Friends of the Earth and particularly the ACE Collective in Melbourne, who have done wonderful work in bringing this campaign right up to Minister Martin Ferguson's doorstep. If he thought he was being inconvenienced up to now then I suspect he has not seen anything yet, because these are extremely creative, passionate and determined people who will not lie down simply because this parliament failed in its duty of care.
I do not think the Northern Territory government are planning on folding either. I think this campaign has a long way to run. February 2010 was the earliest press release that I could find. The Chief Minister, Paul Henderson, who has courageously opposed this project since it was proposed by the Howard government, said:
I am disappointed the Federal Government has decided to push ahead with legislation that will override Territory legislation ... I was informed this week that-
legislation would be repealed and our environmental heritage and appeal rights would be restored. We have now had a chance to examine the new legislation and this is not the case.
What they did was to realise that Minister Ferguson just cut and pasted the bill that Senator Scullion's government had carriage of and then tried to pretend that it was something new. How absurd. They must think we are idiots.
I referenced the Public Health Association of Australia before in terms of medical professionals saying, 'Stop using medical procedures and medical radiopharmaceuticals as a shield and a pretence that we need the dump. This is about spent fuel. This is not about medical wastes.' I think the Public Health Association of Australia brought to the minister's and the government's attention the fact that there are other ways of producing radiopharmaceuticals, and the medical procedures obviously do not need to be put at risk by this campaign to prevent the nuclear waste dump getting up. The government has taken, in my view, quite a shameful stance in pretending somehow that kids will get cancer if Dianne Stokes does not get a radioactive waste dump up at Muckaty. It is utterly offensive to put that kind of thing on the people up there.
I have been profoundly moved by taking part in this campaign over the last couple of years, and it is clear that we are just beginning. The dispute over the land tenure itself is still in the Federal Court, but I think the deeper argument about why we continually assume that an Aboriginal community in some remote part of Australia should host this waste is the deeper question,
irrespective of the outcome of the vote we are to take here this afternoon and the action in the Federal Court. Why do we always insist that this dump needs to be somewhere remote?
The final words for this stage of this campaign, of course, must go to Dianne Stokes, but I did not want to pass without acknowledging some of the people who have put their heart and soul into this campaign over far, far too many years. Natalie Wasley has effectively put her life on hold and helped run an extraordinary campaign. Dave Sweeney from ACF has been working overtime on this campaign for years and years and is, I think, one of the smartest and cleverest antinuclear campaigners that I have ever come across. I would particularly like to mention Gerry McCarthy in the Northern Territory government, who I think has gone above and beyond in challenging the coercive attitude of his federal colleagues who seem to think that they can just ram this thing through.
The last words, of course, are to Dianne. She says in the introduction to the Manuwangku, Under the Nuclear Cloud booklet: 'This waste dump needs to stop. Martin Ferguson needs to start listening to us. He'd better do that because he doesn't know what's going to happen at the other end. There's a fight waiting and that's my promise. I will always be a strong person to fight against it.' That is the unnecessary fight that this government has picked in a bipartisan consensus with the opposition that proposed it in the first place, and this is the beginning of the campaign to stop Muckaty, not the end.
The DEPUTY PRESIDENT: The question is that the bill be now read a third time.
The Senate divided. [13:57]
(The President-Senator Hogg)
Ayes ...................... 52
Noes ...................... 10
Majority ................ 42 AYES
Abetz, E Back, CJ
Bilyk, CL Birmingham, SJ