Back to All News

National Radioactive Waste Management Bill 2010

Speeches in Parliament
Scott Ludlam 24 Jun 2012

Senator LUDLAM

The Greens would prefer that the bill not stand as printed in any such form—surprisingly enough! Regarding Greens amendment (2) on sheet 7037 this amendment relates to effectively putting to rest the ambiguity in the bill that the radioactive waste dump that is being contemplated and discussed today could be used for waste of international origin. Senators will be very well aware that Australia does not have a domestic nuclear power program. We have never had such a thing. It is government policy that we will not have such a thing and it is certainly Greens policy that a domestic nuclear power industry would be a pretty dumb idea.

However, there is support within the Labor Party, from members past and present, and there is certainly strong support within the coalition, from members past and present, for an international radioactive waste dump and for a domestic nuclear power industry. Those issues just bubble away below the surface, so my second amendment on sheet 7037 effectively puts it beyond doubt that the purpose of the amendment specifically is to insert 'that is of domestic origin' into the bill.

Senators by now will be grimly aware that the Greens do not support a remote shed-like facility as an emplacement site for Australia's long-lived intermediate level waste and other radioactive waste materials, so I am not insinuating in proposing this amendment that we support waste of domestic origin going to the site at Muckaty. However, this amendment quite sensibly proposes to put absolutely beyond doubt the idea that we could be importing foreign high-level spent fuel—there would be no ambiguity about whether it is long-lived intermediate level material or not—requiring thermal and radiation shielding from the environment and from living creatures for all time, that we will not be supporting the large-scale transhipment of that material from countries that were foolish enough to go down the civil nuclear power option and then to see the great, empty, vast terra nullius of the Australian inland as an appropriate place to dump that material.

In case senators think that this is an abstract point or that this is perhaps off topic for a domestic waste dump, during the debate on this bill in the other place the member for Lyons stated very clearly what many have feared: that a national nuclear waste dump would pave the way for Australia to become an international nuclear dumping ground. Let us be really clear about this: such a site does not exist anywhere in the world, and the possibility of such a site opening in Australia will be hugely appealing, potentially to smaller countries in our region such as Taiwan, Japan, and China—the smaller countries, in particular, that have got a domestic nuclear power industry afoot without a clue about what to do with the waste material at the end of life.

Here is what the member for Lyons said when the debate was going on in the other place in the middle of last year. He said;

As part of any plan, taking others’ waste could be an industry in itself for us into the future.

The argument about making the world a safer place by taking waste is also considerable.

…   …   …

For our own good, we should offer a little patch of Australia—

presumably not in Lyons—

to store nuclear waste.

… in the long term—

that is something of an understatement—

… we might look at storing other people’s waste—of course, at a cost.

What a brilliant business plan that is! At a cost we will look after the radioactive waste of other nations that did not bother to come up with a waste disposal plan for, say, the next quarter of a million years—to take us maybe through the next two or three ice ages. It is a very impressive plan!

The proposal has a lengthy history and it also has powerful advocates. Bob Hawke ran it recently at the US-Australia friendship society dinner. Former foreign minister Alexander Downer repeatedly calls for a high-level nuclear waste dump in Australia, most recently saying it would have enormous economic benefits. The business model is pretty clear. Countries around the world like Australia, without a clue as to what to do with this material, presuming that deep geological disposal is the best option—which is a deeply unsafe assumption, if you will pardon the pun—would actually be quite happy to pay a certain amount by negotiation to a country to just take this stuff off their hands. Perhaps it will be a surprise to senators to know that the growth of the domestic nuclear power industry—certainly in the United States and in some parts of Asia—is severely curtailed because the waste is just piling up at the reactor sites. So across the board, right around the world, there is no idea coming from the industry about what to do with this stuff but an assumption that, at the end of the life of this material, it will be dumped down a hole in the ground somewhere.

Here are what we would probably call senior Australian 'elder statesmen'—with tongue in cheek—saying it would be a great idea for this stuff to go to the outback—maybe out to Senator Scullion's electorate, or maybe to mine. I hasten to acknowledge that the Minister for Resources and Energy has said that nuclear waste from other countries will not be placed in a waste dump being created by this legislation. Well, guess what: where that minister is concerned, trust is in pretty short supply. In 2005 Mr Ferguson responded to Bob Hawke's call for Australia to establish a high-level nuclear waste dump by saying:

In scientific terms Bob Hawke is right … Australia internationally could be regarded as a good place to actually bury it deep in the ground.

Hugh Morgan said in 2006:

To put together an internationally managed repository would bring great standing in the international community for Australia.

As if being the planet's nuclear toilet will create great standing for us! These people have a genuinely warped idea about sustainable economic development.

On 3 June 2007, the Federal Council of the Liberal Party unanimously endorsed a resolution supporting the establishment of a foreign nuclear waste dump in Australia. I do not know whether Senators Scullion or Kroger, who are here with us this afternoon in the chamber, were present at that meeting. I would be interested to know how that conversation took place. The resolution says:

24: That Federal Council believes that Australia should expand its current nuclear industry to incorporate the entire uranium fuel cycle, the expansion of uranium mining to be combined with nuclear power generation and worldwide nuclear waste storage in the geotechnically stable and remote areas that Australia has to offer.

The head of the World Nuclear Association—a sort of global peak lobby body, if you will, for all facets of the nuclear fuel chain—is one of the many foreign corporate voices calling for Australia to accept the world's nuclear waste. What is the history of that proposal? Actually, it is something that I have a certain amount of familiarity with. One of the things that got me into the antinuclear movement in the late nineties—and I guess eventually into this place—was a corporate video that was leaked to the media in 1999 that revealed the existence of an international consortium called Pangaea Resources, which was secretly lobbying to establish a high-level radioactive waste dump in Australia. This was within a year or two of me getting involved in the antinuclear movement as a wide-eyed kid, and here is this consortium, backed by Swiss expertise and a great deal of money from British Nuclear Fuels, as they were known at the time—from BNFL—to off-load the world's radioactive garbage somewhere else, a long way from them. Pangaea Resources now calls itself Arius, and it is still lobbying to build a nuclear dump here. Savory Basin in the Pilbara was one of its chosen locations, but it also targeted South Australian and Central Australian locations.

That video—that advertisement—was fascinating, because it leaked well before the company or various policymakers on different sides of politics had their stories straight. It was as if you lifted up a rock and suddenly there were all these things scurrying around. People had not quite worked out what it was that they thought about the idea of a commercial radioactive waste dump, the business model being: 'For 40 years we will conduct the largest shipment of radioactive waste in human history—the high-level spent fuel—in these protected CASTORs. We will put them on railcars. Maybe we will take them inland from Esperance or Port Augusta or something like that. We will take them through a military protected corridor out to a remote site in the Western Australian bush—say, out the back of Laverton'—as the mob out at Cosmo Newberry discovered when they got to see the video—'and we'll dump it half a kilometre below ground, in some of the most stable, silent, quiet and dry geology on the planet's surface—places that haven't been disturbed in millions and millions of years. Then, 40 years after that, liability passes to the taxpayer. Brilliant!'

Pangaea now calls itself Arius. It is still lobbying to build a nuclear dump here. I think it is very worthwhile keeping an eye on some of the principles of that proposal, because none of them ever went away. The approach taken by Pangaea recognised that no form of engineered barrier could conceivably contain this thermally hot, corrosive, chemically toxic and radioactive material for tens of thousands of years. That is the whole purpose for seeking remote, stable geology a long way from people. The little video that Pangaea released put it beautifully, and it is rare to see this kind of honesty from the nuclear industry. What the little video showed is these CASTORs placed underground, backfilled and walked away from, and leaking. When the material has burned its way out of the engineered containment that you put it in, you had better have stable geology a long way from population centres, with very low, deep, slow-moving groundwater, an absence of earthquakes and so on. The argument for remote geological storage of this material is that, when the dump leaks, you want to be as far away from it as possible.

That is why the government is having trouble, and why the Howard government had trouble, selling this proposal to people in Tennant Creek. As senators here know, we are not talking about a deep hole in the ground but about a shed-like facility, so this is not a geological store, but we are going to park the long-lived intermediate-level waste on this cattle station for 300 or 400 years while we work out what to do with it, where the hole in the ground should be, whether it should be an international dump and whether it should host waste from Australian civil nuclear power stations in the event that they are ever built. The reason that we want it in Tennant Creek, on the Muckaty block, is that it is a long way from where most of the white people live. That is why this bill is obscene, and why proposals for deep, remote geological storage or temporary parking in shed-like facilities are a terrifically bad idea.

Here is what I think we should do, and in Australia we have some of the best expertise for this kind of work anywhere in the world—people who have been fooling around with synroc for the last 20 or 30 years. We have expertise. In 10 years time or in five years time or—who knows?—maybe tomorrow, the boffins down at Lucas Heights might say, 'Guys, we've worked out how to isolate this stuff. We've done it. We have worked out a form of engineered containment that this toxic and lethal material won't burn its way out of.' That will be a fantastic day. If I am invited—I suspect I will not be, but if I am—I will go down there and help them knock off some champagne, because that is something that the nuclear industry have been promising for 60 years; they certainly have not delivered it to date. A form of engineered containment that this stuff will not leach its way out of will be a great thing. If in the meantime we have parked this stuff in a hole in the ground on somebody else's country in Central Australia, that option is foreclosed; you cannot go back into the hole and get it back. That is the problem that I have with remote geological storage, and it is equally the problem that I have with taking this stuff out in shipping containers, dumping it on a block in Tennant Creek and saying, 'We'll be back in a couple of centuries when we've worked out what the plan is. In the meantime we're employing two local kids as security guards to look after it. Keep the lights on.' It is insane. Minister, I wonder whether you could establish for us what the government's criteria are and why we are pursuing remote centralised storage. I understand why we are pursuing centralised storage. We canvassed some of the arguments yesterday and late last year when the debate kicked off. I understand why you want to gather this material together and why you do not want it in filing cabinets, although why it is there in the first place is a bit of a mystery. I would like the minister to explain, with the help of the advisers who have joined us this afternoon again, why 'remote'? Why in Senator Scullion's electorate? Why does it have to be as far from centres of population as possible?


I just make the point to Senator Ludlam: I intend debating the amendments before the chamber. Senator Ludlam, this debate has been going on for quite a few hours already. You have made it clear that you do not want the bill passed. That is fine. Quite frankly, if it is your intention to just continue to use the time of the Senate for the motive of talking it out, or what have you, then I will move that we report progress at some stage and will look to get the support of the Senate to manage the bill in a more effective way. That is not meant as a threat, but, clearly—

Senator Ludlam interjecting—


Senator, if you want to filibuster, you invite me to respond. I am just making it clear that I am trying to be cooperative and positive, but if you intend speaking for days and days, preventing the Senate from getting on with other business and not seriously debating the bill, then we will obviously have to look at other available options. I am happy to answer serious questions and I am happy to deal with your amendments, but equally, so far, in three or four hours, we have dealt with one amendment about the objects of the act and now you again go back to a general discussion: your history in the dispute when you were a wide-eyed boy. All of this is fascinating stuff and if I had more time I would really enjoy it, but this place costs us tens of thousands of dollars to keep open to legislate and we ought to actually focus on doing that. I guess I will not be responding to wide-ranging discussions about your views, which I know are opposed to the bill, and I respect that, but my job is to deal with the legislation on behalf of the government. If we are not going to use the Senate's time effectively—and that is not in any sense to try to limit contributions—then we will have to see how we might manage this better.

In terms of your amendment, it is the case that successive Australian governments have had the policy—and you make it clear that the current minister has reiterated this—that we will not accept other countries' radioactive waste. The government is strongly committed to this policy. I share your concern about the proposition that was floated in Western Australia a few years ago. I was very strongly opposed to that. Of course, one of the major drawbacks to the nuclear industry is the question of waste management and waste disposal. There is no question about that. That is one of the reasons why this government is not supportive of the development of a nuclear industry in Australia. As you know, most of this is medical waste from medical procedures that are important for the health of Australians. This is something we have to deal with and we are trying to deal with it in the best possible way.

We will maintain the current prescription on the acceptance of high-level waste at any facility established for that purpose, so no international radioactive waste will be managed. I am not prepared to support your amendment, because the amendment does not define radioactive waste of domestic origin, whatever that means. We think there is enough protection currently in the Customs (Prohibited Imports) Regulations 1956, in which radioactive waste is a prohibited import, but of course there is ministerial discretion to allow bringing back Australian waste generated using Australian resources, as you are well aware. So we will not be supporting the amendment.

In terms of the argument on 'remote', the simple answer is that the arrangements under this bill provide for a voluntary approach at a suitable site. That is the main criterion. The fact is that remote sites have been offered. The arguments around getting this sort of development up have been longstanding, very difficult and very contentious. We have gone for a policy that supports seeking a volunteer approach for the site. That is the basis of the bill. As you understand, any offer of a site will then be subject to the EPBC Act, ANSTO and ARPANSA requirements before a site is approved. All of those safeguards will be in place. We are dealing with sites that are made available for this purpose and all those processes will be followed once a site is identified.


Senator Ludlam, I just remind you that the second amendment has not been moved yet. I do not know whether you intend to do that or whether you will still ask general questions.

Senator LUDLAM

Thanks for the reminder, Chair. I move Greens amendment (2) on sheet 7037:

(2)   Clause 4, page 3 (line 1), after “1998”, insert “that is of domestic origin”.

[radioactive waste of domestic origin]

This amendment will have the effect of putting beyond doubt what I take is a genuine assurance from the minister. We probably see eye to eye on many of these issues as Western Australians who went through the same campaign. I appreciate the way the minister has conducted the debate. It has been conducted with a great deal more courtesy, sensitivity and intelligence than was displayed when it was debated in the House. I do not propose to unnecessarily detain the committee's time with these amendments. I took the minister on advice yesterday. We began moving away from general questions and towards specific clauses in the bill, and that is effectively what I took up when we resumed debate this afternoon. We are on the second amendment. There are a number. I am not going to apologise for that. This is a deeply flawed bill that should not have been debated in the chamber, particularly with a Federal Court hearing on the land tenure itself scheduled for less than a month away. I canvassed these opinions in detail the week before last, in that the government had pulled the bill, to have the good sense and the courtesy to the people that it has put on the front line and targeted, and that we would be resuming this debate. I just want to be very clear: if the Federal Court finds in favour of the land council and the Commonwealth government finds that in fact the land has been ticked through properly and that their obligations under the land rights act have been met and so on, my arguments relating to remote dumping—whether it be in Senator Scullion's electorate, the minister's or mine in South Australia—will stand. The arguments against shoving this stuff out of sight, out of mind will stand no matter what happens, no matter what the fate of the Muckaty site. So the minister is free, as the Manager of Government Business here, to consider his options if he thinks that this is taking too long. But I make no apologies whatsoever for the fact that if this were not such a dodgy and rotten bill it would not need so much surgery. I will be more than happy if the minister wants to report progress—I will even offer to do so myself and adjourn the debate, if that is the way we want to go. I am happy, otherwise, to simply move through the amendments.

The reason—I do not think I digress—that I raised the issue of Pangea, raised the issue of remote dumping, is that this amendment goes directly to the issue of imports of high-level spent fuel from elsewhere. I look forward to Senator Scullion's support when we put this one to vote, because I know he does not want to see his electorate subject—the Territory, of all places, whose economy relies in a large part on tourism—to spent fuel from nuclear power stations overseas arriving—


Senator LUDLAM

I trust you are not suggesting that that is of lesser importance, Senator Scullion.

Senator Scullion

I was asking for two seconds, actually.

Senator LUDLAM

You are very welcome to take two seconds. We will in fact have coalition support for this amendment. I take the minister's advice that there are already regulations that exist. Regulations can come and go. That can be eliminated at the stroke of a pen. I think what we need to see here, while we are debating the nation's first radioactive waste dump, is a binding, unambiguous commitment that this will not become a commercial facility for countries who want to get their material out of sight, out of mind and think the Barkly would be a good place to do that. That should not happen on our watch. It is not a Greens thing; it is not a Labor thing. That should not happen on our watch. I think there would be a great deal of community support to put it beyond doubt. If we have to have a national, centralised domestic facility then let it be so. Let us have the argument in here and in the community about where we think that should be, what kind of form we think it should take. But, if you go out and ask 100 people on the street about importing high-level spent fuel for the next quarter-million years from Taiwan, Japan and maybe Indonesia—if they ever get a reactor program up and running there—you are not going to find a great deal of support for that. And those are the people who put us here in this chamber.

I just want to pause again to note the fact that the reason we talk about remote sites, the reason the industry is so keen on deep geological storage, is that the containment will be breached. It will fail. The industry knows that. So how about we do not accept that premise? How about we take the premise of, 'While we have the stuff on the surface in dry storage close to the sites of production, being watched over by the people who produce it, by the PhDs and the smart folk who thought the production of this stuff would be a good idea, let's continue working on waste isolation'? Maybe it is in rock; maybe it is transmutation; maybe it is something else that we have not thought of yet. The last thing we want to be doing is parking this stuff down a hole in the ground, because then we foreclose those options.

Over three decades, one proposal has followed another to cope with the waste, stemming either from the IAEA itself, from groups of governments, from the EU or from private consortia. All have failed on a combination of legal, political, technical and ethical factors. For example, the Pangea proposal was bounced out of Western Australia. It took us about two years. The company did not have community consent. Their videotape was leaked and they were not ready for it, and neither was the state government. Before you knew it, the conservative Liberal state government had legislation on the books to ban just such a proposal. That was how badly wrong that campaign went.

To borrow from the experience of our neighbours, in 1987 the United States chose a site in Nevada called Yucca Mountain for a deep geological nuclear repository. Despite strong opposition from many quarters, congress passed the proposal in 2002. However, after assessing the difficulties of the site, and after numerous court cases suing to block the project on grounds that the area has earthquake potential and that transporting waste would create a hazard and potential target for terrorists, funding was terminated, effective with the 2011 federal budget, leaving the United States without a permanent long-term storage solution. I should add that they did not even go down the path, as Pangea was seeking to do in Australia, of choosing an area with very simple stratified geology with a very deep groundwater table; they chose a volcanic mountain with huge rates of groundwater infiltration and occasional volcanic eruptions—eruptions every few thousand years—in an earthquake zone. They thought it would be a great idea to park it there. Then their engineering studies told them that it simply was not going to work. But, on the same premise, when the waste has burned its way out of your containment structures you need Yucca Mountain to be your effective container of the waste. I think that solution is just utterly bankrupt. It shows the deep bankruptcy at the heart of the nuclear industry.

Sixty years on, your waste management strategy is to just put it as far away as we can get it from us so that when the containment is breached it is in a desert—unbelievable. The facility in Yucca Mountain was due for completion in 2020. It cost the US $9 billion and 20 years of planning. The US currently has no other plans in the pipeline for dealing with more than approximately 60,000 tonnes of high-level waste. Here in Australia we are talking in terms of the low thousands of cubic metres. In the States they are talking about 60,000 tonnes of the stuff. So the alarm about Australia becoming the world's nuclear waste dump is not unfounded.

In 2006 President Bush launched the Global Nuclear Energy Partnership, which Australia enthusiastically joined. The organisation has now changed its name to the International Framework for Nuclear Energy Cooperation. Early GNET proposals included Australia becoming a one-stop nuclear shop, with financial incentives for Australia storing the world's waste. This GNET proposal was widely reported in the international press and here in Australia, in the , in the and on Crikey.When Prime Minister Howard visited Washington in May 2006 he was accompanied by Dr John White, the Chairman of the government's Uranium Industry Framework. White was one of the developers of the UIF, and he was responsible for setting up a UK-US-Australia consortium, the Nuclear Fuel Leasing Group, with three others: David Pentz, Chairman of Pangea Resources—there they are again; Daniel Poneman, principal of the Scowcroft Group; and Mike Simpson, head of business development projects for British Nuclear Fuels, who were also one of the founding partners of the Pangea consortium. The Nuclear Fuel Leasing Group submission to ZygmuntSwitkowski's review advocated Australia for producing fuel rods and then taking back the waste. In the , on 7 June 2006, he was quoted as saying:

Australia wins on the mining, enriching and leasing, but makes a long-term fortune on the storage.

A wonderful understatement: a long-term fortune. We could be picking up rents from the storage of nuclear waste into geological periods. If the Neanderthals, who roamed Northern Europe before the last ice age, had developed nuclear power we would still be looking after their waste stockpiles. That is long term, indeed.

This amendment ensures that the national radioactive waste dump does not become what was envisaged by Pangea, by George Bush, by Dr White, by Bob Hawke, by Alexander Downer and, no doubt, by some of your party room and caucus colleagues in this building today. I commend this amendment to the chamber.


Those listening to this debate may think that the National Radioactive Waste Management Bill is about geological deep storage.

Senator Ludlam interjecting—


I am not suggesting for a moment, Senator Ludlum, that you are saying that, but in isolation the amount of discussion about it shows this needs to be cleared up. We have had debates before in this place on many of these aspects, but I remember that, when the first bill went through, we were quite concerned about how we would specifically ensure that Australian law said, 'You cannot import anyone else's waste into the country.' There are two ways we could do it. We could do it specifically, and I think Senator Ludlum has attempted to do that—I will get to that in a moment—but we believed, after all the legal advice we could get, that it was simply prohibited under the 1956 Customs legislation, and that was sufficient.

The problem with Senator Ludlum's amendment is that it talks about domestic origin. Since Australia is an exporter of uranium, and thus the domestic originator of almost any material that you can find around the world, 'domestic origin' may produce some ambiguity. I am not a lawyer. I am a busted-arse fisherman, so I look to the wiser views of others on this matter. I know that this amendment is well-intentioned to put the question beyond doubt, but from all the advice we have received I know that, right now, it is not possible to import any waste into this country from other sources. It is simply not possible. The Commonwealth legislation puts that beyond doubt. I know Senator Ludlum is trying to add a layer, with the notion that this would somehow put that further beyond doubt. The advice we have is that it will not provide any further certainty in the matter; in fact, it will provide some ambiguity.

This issue is not about deep disposal. This is not being contemplated by the Senate in this country at any time. It was great to hear the history of that, and if it ever happens in the future of any country it would mean significant legislative change in any nation around the world. It is very important to make the point that the Northern Territory relies on tourism and other things, but to make the connection that, if I am not supporting this amendment, I do not care about the Territory or tourism is spurious. The reason we will not be supporting the amendment is we do not really believe it adds to the legislative protection that you intend to provide.


The question is that the amendment be agreed to.


Senator Ludlam, do you wish to move further amendments?

Senator LUDLAM

I do, Mr Chairman—a great many. As the minister has observed, the debate has been pretty wide-ranging so far. I have focused not just on the detail of the bill but on some matters of great principle, including whether or not this dump will eventually host radioactive waste from overseas. It appears that we have just voted to leave the door open to that eventuality, which I think is a great shame.

I would like to turn now to some of the specifics. In my speech in the second reading debate some time ago, I focused on three groups of amendments. The first group, which we have spent a bit of time debating, are around the principles of the bill, the flawed thinking that underlies it, and some of the reasons why we think this bill cannot be fixed and should be opposed.

The second group of amendments go to some of the detailed procedural issues in the bill, the way that it handles ministerial decision making and the way it handles ministerial discretion. We have made what I think are some fairly sensible proposals to simply return the normal safeguards that apply for siting decisions for any other kind of infrastructure—whether it be a freeway, a car park, a post office or whatever—to siting a facility of this nature.

The third set of amendments go to what the Australian Greens would like to see instead. Because of the nature of this bill, I am 90 per cent opposed to it; most of what is in this bill should just go in the bin. But there is an obligation to the Australian Greens and anyone else who steps up and says, 'We don't think this should happen on the Kunga's land in South Australia, we don't think it should happen at Muckaty and we don't think it should happen at Laverton'—

Senator Boswell

Where should it go?

Senator LUDLAM

Senator Boswell, we are on the same page; it has taken 3½ years, but we are there. Where should it go? There is an obligation upon us to answer the hard questions. Perhaps it should go into Queensland, Senator Boswell, nobody has thought of that for a while.

Senator Boswell

What about South Australia?

Senator LUDLAM

They already tried South Australia and they got kicked out of there. In the whole time the minister has had carriage of this debate, the only thing that has come out of his mouth that I agree with is that this is hard, this is difficult. This has perplexed governments on both sides of the political fence for decades, as the minister observed yesterday. It is politically difficult, the technology and engineering behind it is hard, and nobody has really got it right. There are very few examples you can look to around the world of what should become of this intractable waste. One of the reasons for that is that we should not have produced it in the first place.

Senator Boswell

But we did.

Senator LUDLAM

Senator Boswell interjects again. We have got a 60-year legacy of this material. Fortunately in Australia we have only a few thousand cubic metres, but globally there is a hell of a lot more than that. We did create it. Isn't it interesting that in—

Senator Williams

Bozzie, you'll get six of the best in a minute!

Senator LUDLAM

No, Senator Boswell is greatly assisting the debate; I do not mind the interjections. Sixty years after we first started producing this material in significant volumes, we are still standing here—as they are in the United States congress, as they are in Westminster and as they are in the Diet in Japan—scratching our heads and going: 'What the hell should we do with this stuff? Why do we have so much of it? Should we be producing this much?' For 60 years we have been having that debate. We have been having that debate for less time in Australia, but the one thing we have in common with every jurisdiction in which this debate is being had is the total absence of a plan. The industry set this thing up and started producing this waste and did not have a clue about what to do with it. So we have been handballed this stuff, three generations after that facility was started up, to have the debate now. I agree with Minister Ferguson that is a very difficult and intractable problem that we should never have left ourselves. But here it is.

So the third set of amendments that I propose to move somewhat later in the debate go to what we would like to see happen instead. We have unashamedly cherry-picked from the some of the best examples that we could find from practices around the world where the community was given a voice, where the scientific and engineering community were given a voice and where, just for a brief sheltered moment, politics was set aside and they were not starting from a premise of which politically vulnerable community should host this toxic time capsule until the end of time. We are starting from a premise: we produce this material, we have a legacy, it has to be dealt with; what should we do with it? That is actually all we are asking for here in this debate today: a genuine and honest conversation that does not start from the premise that a cattle station in Senator Scullion's electorate drew the short straw and, when the music stopped, got left without the chair—to mix metaphors.

I will move Greens amendment (3) on sheet 7037 as follows:

(3)   Clause 5, page 6 (lines 9 and 10), omit subclause (4), substitute:

   (4)   A nomination which does not comply with subsection (2) is invalid and of no effect for any purpose under this Act.

This goes through some of the more nitty-gritty procedural details of exactly what this bill does and exactly the scope of discretion that the minister has given himself. It is good that Senator Boswell is here so we have got representation this afternoon from WA, the Territory and from Queensland. There is no-one from South Australia, which is a bit of a shame—I beg your pardon, Senator Wright is here. So all of the Central Australian states, the so-called remote geology, the safe areas where we can dump the stuff far away from population centres, have representation here and this means something to all of us.

The minister has granted himself total unfettered discretion as far as site location is concerned to trigger the processes that then flow through the ARPANS Act and the EPBC Act. He has given himself total discretion around the location. The people might find themselves targeted, as the Muckaty mob have, and when we have knocked that one over, presumably, there is going to be another community in the firing line. They will discover, when they read this bill, that the minister has granted himself extraordinary discretion, and I will give you one example of what the amendment I have moved seeks to fix.

We have talked at length about the spirit of volunteerism, which sounds like a wonderful idea. How does the minister take a nomination for a radioactive waste dump? When we knock Muckaty over, maybe it will be a site in Senator Boswell's electorate. Maybe it will be somewhere in Senator Wright's. Here is what we need to know:

(2) A nomination must:

(a) be in writing;

(b) be made to the Minister; and

(c) specify the land nominated ...

(d) contain evidence of all interests in the land; and

(e) if there is a sacred site ... [it should] contain evidence that the persons for whom the site is sacred are satisfied that there is no ... risk.

That implies a degree of consultation has gone on beforehand.

They must contain evidence that the land council—here we go; here is an assumption that this is potentially going to be in a remote area—has consulted with the traditional owners and that the traditional owners understand the nature and effect of the proposed nomination. Why is there an assumption that this is going to go on an Aboriginal block? Isn't that interesting? It does not sound like we are talking about a suburban waste dump, does it? It sounds like whoever wrote this has the preconceived notion that it is going to be in remote Aboriginal country somewhere. Isn't that interesting?

It says that the TOs need to understand the 'nature and the effect of the proposed nomination and the things that might be done in relation to the land', that TOs 'as a group have consented'—there is an important word; we will hear more about that—and that any Aboriginal community or group that may be affected has adequate opportunity to express its views. To me that actually sounds reasonable; there does not seem a great deal of that that I would disagree with—there might be a couple that I would add. You might talk about state government and you might talk about local government authority. Heaven forbid that they should be left out of the loop. But as far as volunteerism goes, there is a set of criteria to guide the minister. He is not going to accept the piece of paper onto his table unless those things have been ticked off.

Hang on, then it says: failure to comply with these conditions does not invalidate a nomination. So do not waste our time. Here are these fine-sounding principles of consultation but if you violate them on the way into the minister's office, it will not invalidate the nomination. It does not matter. This is the kind of bill we are dealing with here. It is bad when you look at the high-level principle and it is bad when you get down to the detail and the nitty-gritty. Why bother having the procedural standards or these nomination criteria in the first place?

So there are the conditions that outline when the minister may declare that a nomination can be made. Some of this is hypothetical at the moment, because we know they have nailed the Muckaty mob to the map. They have said that this is where this thing is going. We are preserving this nomination that arose in 2006. So at the moment some of these provisions around the volunteer nomination from Senator Boswell's backyard or Senator Wright's or Senator Evans's are a bit academic. But it is important that we get to discuss these provisions now because when the Muckaty nomination falls over, and the advisers at the table know that it will—and that may not be too far away—then these provisions will come to life.

It says that the minister may make a declaration in writing, that the minister must have regard as to whether it is unlikely that a facility will be able to be constructed and operated on Aboriginal land. Why is it an assumption? Why always the assumption that a remote Aboriginal community has to be the last one without a chair when the music stops? Some of the people probably least qualified have accrued the least benefit from the development of this technology and are dealing with a lot of other issues—things like the intervention. This is the last thing they need.

In terms of his timing, the minister says in the bill that the declaration takes effect from the time specified in the declaration, which must not be earlier than the time the declaration is made—brilliant—and it goes on—and a copy of the declaration must be published in the within seven days of the declaration being made. So there is some consultation. Who reads the government ? When was the last time anybody in here read one of those? But it says that the minister does not have to make the declaration public within seven days. He does not have to ensure that the public is informed, and the declaration is not invalid if he does not tell anyone about it—if it is a secret. Whoever drafted this bill had maybe spent some time in Eastern Europe or East Germany. Please do not waste our time. Do not write this stuff into the bill about the parameters of consultation and all these box-ticking exercises that have to be done and then drop a clause in there that says that if none of this is done, it does not matter, that nomination can still proceed.

When it comes to approval of nominated land—and no doubt the minister will remind me if he chooses to jump up and respond to some of these remarks—this is just about siting. This is what triggers the EPBC Act. This is what triggers this cascade of processes under the ARPANS Act to make this thing safe. My contention is that you have nailed a spot to a map. You have been unrolled several years to process and potentially put a community through a lot of misery. The siting decision needs to occur with some kind of accountability and oversight, some kind of process that is not written into the bill and then casually violated a few paragraphs later. Everything flows from that initial siting decision. We are well aware that we may then spend several years bogged down in environmental impact assessment processes, which tend in this country to be just a one-way foregone conclusion. But once you have nailed a spot down on a map and told a community that they are it—which is what this minister is going to do with the Muckaty mob—everything flows from that. There need to be some safeguards.

When it comes to the approval of the nominated land the bill says:

(1) … the Minister may—

we will get to absolute discretion in a bit; nonetheless, language like that is remarkable in a piece of legislation—

in his or her absolute discretion, approve in writing land …

…   …   …

(4) An approval takes effect at the time specified in the approval …

(5) A copy of an approval must be published in the within 7 days of the approval being made.

But failure to tell anyone about it does not invalidate the approval. Large parts of this bill are rubbish and really should not have got past the drafting stage. With regard to formalities relating to the minister's declaration, when a decision by the minister is revoked a copy must be published in the within seven days but failure to do so does not invalidate the revocation.

What is it that the minister is afraid of? What kind of fear of regular documented transparent due process is being avoided here? Is he afraid of scrutiny? Is he afraid of being held to account? Is he afraid of 500 people turning up at his office and inflating a gigantic white elephant, as happens from time to time at the electorate office in Batman? I think he is afraid of his decisions being reviewed in court.

When governments are transparent in decision making, people tend to have a lot more confidence in them. On the one hand in this government, we have people like John Faulkner working to try and restore trust and integrity in the government and freedom of information laws or whistleblowing protection—wherever on earth that got to—trying to ensure that there is a culture of openness and transparency in government. Senator Evans has been a part of this. We know there are people in government working towards that end. Then on the other hand we have the minister saying, 'As far as this one is concerned, folks, I am going to have complete, total unfettered discretion. It will go where I say it goes and then you can spend the next year or two squabbling through the EPBC Act and through the ARPANS Act.' The Australian Greens oppose clauses 6(5), 8(4), 9(6), 15(2) and 17(6) in the following terms:

(6)   Clause 6, page 7 (lines 21 and 22), subclause (5)

(7)   Clause 8, page 10 (lines 28 and 29), subclause (4)

(11)   Clause 9, page 11 (lines 14 and 15), subclause (6)

(20)   Clause 15, page 18 (lines 7 and 8), subclause (2)

(22)   Clause 17, page 19 (lines 9 and 10), subclause (6)

The amendments, which have been circulated for months, effectively put a bit of strength and integrity and some teeth into what the minister says. If you read the minister's speech—what he said in the other place or what he said at the occasional press conference—you would think maybe that we were just making this up and that there is finally a spirit of consultation, that this is a genuine repeal bill and that there is going to be some progress. There is not. We have gone to a degree of effort.

None of these amendments is vexatious. They simply attempt to return a certain amount of legal accountability to a minister that, in my view, has gone completely off the rails. This is not a shopping centre car park. This is not a decision about where to site a telecommunications mast or something like that. This is the nation's first long-lived, intermediate-level radioactive waste dump, and the minister with the responsibility and the trust of the community to make that decision needs to have just a faint ghost of accountability and transparency surrounding the decision when it is made. I commend the amendments to the chamber.


Senator Ludlam is not usually a conspiracy theorist, but on this occasion I think he is getting pretty close. These no invalidity clauses are very common in legislation. These are fairly standard provisions that are designed to ensure that a technical breach does not invalidate a nomination or selection process. That may include a spelling error. These are standard provisions that are available to us to put into legislation to ensure that those sorts of technical errors can be dealt with through this no invalidity clause.

I note that the senator himself is a sponsor of a bill that contains those clauses. I am not going to run a conspiracy theory that his Government Investment Funds Amendment (Ethical Investments) Bill is really some communist plot. I think he and Senator Di Natale have actually sought to have the bill drafted so that it can be effective—exactly what we are doing here. These are provisions that are contained in other bills. This in no way allows a land council to lawfully nominate land without the consent of the traditional owners. This approach has been found in other bills and applied to land other than Aboriginal land. They are there for good reason. There is no way that a decision on a nuclear waste facility would not have the highest amount of public scrutiny, public debate and, quite frankly, recourse to legal action if any of the parties with an interest in the matter felt that the minister was acting inappropriately or that there was some fault with the processes.

We all know that this is contested space. We all know that those issues would be taken up by those with an interest. This provision is in other legislation. It is not unique to Aboriginal land or land dealt with under this bill. It has been used in relation to the Torrens title system and, as I say, it is contained in a bill that Senator Ludlam himself proposes to the Senate. While I understand his concerns, these amendments, quite frankly, just limit the effectiveness of the bill and the government cannot support them. I can assure him that there is no way that these are designed other than to make the legislation effective. They do not at all undermine the proper processes that are contained in the bill.


The question is that amendment (3) on sheet 7037 be agreed to.

Question negatived.

The TEMPORARY CHAIRMAN: The question now is that subclauses 6(5), 8(4), 9(6), 15(2) and 17(6) stand as printed.

Question agreed to.

Senator LUDLAM

I would like to move to discussion around the Aboriginal Land Rights Act, but I cannot let Minister Evans's comments go unmarked.

Senator Chris Evans

Resist the temptation, Senator.

Senator LUDLAM

No, I am afraid I cannot, because I think it is entirely reasonable for people reading a bill such as this, particularly in the instance of the criteria that surround nominations, to think that the failure to comply with conditions around particular nomination for a remote radioactive waste dump on legal technicalities will still be accepted if there is a spelling mistake in the application. I am routinely accused of being a conspiracy theorist, so it is not something that comes as a complete surprise.

Senator Chris Evans

Have you reflected upon that accusation?

Senator LUDLAM

Minister, I think some of these conspiracies are not theories; that is the only sensible response to that. I do not think this is a conspiracy, because there is really only one key actor. This is not about a conspiracy, this is about total ministerial discretion to do as one individual pleases. We do not need to invoke some kind of shadowy conspiracy between ministers of the government or people in the industry, this is simply about the ability of a minister to engage in a box-ticking exercise. I do not think anybody in their right mind believes that it is about a spelling mistake or punctuation that is out of place.

What it means is that if a nomination comes through that is technically dodgy but politically feasible it can be accepted, and this chain of events and series of processes can unfold. People can spend years, as Diane and many others in Tennant Creek have, reaping the consequences of an initial dodgy decision. It is the contention of the applicants to the Federal Court action that the initial decision around the nomination of the Muckaty site—something that Senator Scullion has had a degree of experience in and has been involved in since before I came along—and the initial nomination of that land were wrong. The right procedures were not followed under the Aboriginal Land Rights Act all those years ago, in 2006 when the nomination first came forward. That goes to the series of amendments that the Senate just chose to vote down. This is not about spelling mistakes; this is about people's lives being put on hold for up to six years while the parliament stumbles through a series of processes, while the courts work through their processes, while the campaign to support them gets on its feet. If the original nomination had been at least through the very limited guidelines that applied at the time through the Howard-era legislation, we could have saved these people that misery.

Shortly I will move a set of amendments that ensures that any nomination complies with the Aboriginal Land Rights Act. Of course, in the Territory there is a unique setup and things apply somewhat differently to how they do in the rest of the country. These amendments effectively go to fulfilling a promise that was made by the Labor Party. The 2005 act ensured that compliance with the Aboriginal Land Rights Act was not a prerequisite to the right of the land councils to make a nomination. Perhaps the minister will jump up in a short while and tell me that again it is a legal technicality that appears all the way through matters dealing with the land rights act, that compliance with the land rights act is not a prerequisite to the right of a land council to forward a nomination. Let us spell that out: it can be in breach of ALRA and it will not invalidate the nomination. This is not about a spelling mistake, Minister.

The 2005 act ensured that a decision by the minister to approve a nomination or declare a facility did not require a finding that voluntary informed consent—there is that word again—under the Aboriginal Land Rights Act was provided, that there were no rights to be heard on this issue by affected parties and that such a decision was not reviewable by the courts on that basis. In 2006, the time when the opposition by local traditional owners to the impending Muckaty nomination was becoming obvious, further amendments were passed. At the time I was working for Senator Siewert, and I remember it very well. We had already had—in that same infamous fortnight—WorkChoices, Welfare to Work and the introduction of voluntary student unionism passed through here along with terror laws. In that period of a matter of hours at most—perhaps Senator Scullion remembers exactly how long—the 2005 Radioactive Waste Management Act was rammed through this place, against the opposition of the Australian Greens, the Democrats and, I believe, the Labor Party.

It was rammed through here because the Howard government knew that at the time they had the numbers. I suspect they did not even read the committee reports. They would not have read most of the evidence that came through from witnesses who said this was procedurally wrong, wrong from a land rights perspective and wrong from a human rights perspective. In late 2006 amendments were passed, about a year after the 2005 act got up. These amendments effectively clarified the role of the land councils in forwarding nominations. I do not think it is breaching confidence to say that at the time the Muckaty nomination was afoot, the government needed clarity to make sure that it would be uncontested, that people who had been left outside the loop and have eventually had to find their recourse through the courts could not fight the thing. And so it was clarified in the parliament.

Those amendments, among other things, ensured that the act of the nomination itself, in addition to the minister's decisions about such nominations, could not be subject to procedural fairness or legal challenge on the basis of absence of voluntary informed consent. The Commonwealth Radioactive Waste Management Act, which is still in force, simply overrode the land rights act. There is no nicer way of putting it than that. This was one of the aspects which was fiercely objected to by the Labor Party. Perhaps later in the debate I can quote Senator Crossin, Senator Carr or a number of other Labor Party spokesmen who beat the hell out of Senator Scullion and his party at the time for putting these amendments up. They then turned around after the election and cut and pasted the damn thing and carried straight on with what the Howard government had been doing. It is beyond hypocrisy. It is through hypocrisy and out the other side. I am not sure what the word is for such behaviour, but that is what we have been witnessing for years and years.

Procedures that required informed consent from all affected groups and peoples were deleted and decision-making processes in the land rights act were avoided. In March 2007 we found those strong and principled media statements coming from Senator Carr, from Senator Crossin, from Warren Snowdon. Here is what they committed the federal Labor Party to doing. They committed the federal Labor Party to ensure that any proposal for the siting of nuclear waste facilities on Aboriginal land in the Northern Territory would adhere to the requirements that exist under the Aboriginal Land Rights Act of the Northern Territory. How much things have changed since then. When in opposition Senator Crossin said, 'These lands in the Northern Territory are connected to Indigenous people through their spirituality, so it is not exactly our land, I don't believe, to play around with.' Of course she was right.

The proposed dump site near Tennant Creek in the Northern Territory, which is the only option currently under consideration, is immediately adjacent to a sacred Milwayi men's site known as Kurrakurraja. I do not know whether senators have taken the time to look at some of the maps. People have obviously been walking the country for tens of thousands of years, but in very recent times anthropologists have taken the time to sit down with and speak to some of the old people and map where the sacred sites lie. To Western eyes these things look like dots and rectangles—straight lines on maps—that are then keyed to a database of what some of the senior people have told anthropologists over time. I do not think it is contested that there is a sacred men's site on the rectangle that is marked out for the Muckaty nomination. I think what is contested is who the appropriate people are to speak for that site, but it is not contested that sites are there. We tend to imagine these things as lines on maps or dots on the ground, but the landscape itself was alive. As far as these people are concerned, you cannot just chop rectangles out of it and not expect people's obligations and responsibilities to be disrupted. That is where we come undone with proposals such as this.

The Aboriginal Land Rights Act says:

The Land Council is precluded from taking any action in any matter in connection with the land unless it is satisfied that the traditional Aboriginal owners of that land understand the nature and purpose of the proposed action and, as a group, consent to it.


The Land Council, in turn, is required to have regard to the interests of, and shall consult with, the traditional Aboriginal owners of the land and any other Aboriginals interested in the land.

It sounds pretty clear. Compared to what we ended up with with native title and the divisive and disastrous make-up of the Native Title Act, the land rights act looks pretty progressive. That is perhaps one mistake that the Howard government made when they charged in after telling people there would be no dump in the Northern Territory. There was this strange sleight of hand where it was going to be on an offshore island somehow during the 2007 election. Right after that election, somehow it was in the Northern Territory on one of three Defence sites. That miscalculation was that they believed that the Defence sites simply overrode the land rights act, and obviously that is not the case with the Muckaty nomination. Their other obligation is to ensure that the Aboriginal community or group that may be affected by the proposed action has been consulted and has adequate opportunity to express its views to the land council.

Minister, I might put this question to you now—I believe you might have taken it on notice yesterday. Can you provide for us in whatever degree of detail you or the advisers are able what consultation this minister—we obviously will not hold you responsible for the previous minister—has undertaken, including site visits if there were any beyond what you provided us with yesterday, to the people who believe that all three of those obligations under the land rights act are breached by the Muckaty nomination?


I am not sure I can add much to the answer I gave yesterday. I understand the minister has not met with the litigants, but I can seek some further advice. I am not able to help you in the sense of who the minister has met with more specifically. I made it clear about the visit yesterday and I think the advice is that he has not met with the litigants. I am quite upfront about that.

In responding to the amendment which I think you are moving, the answer is that we agree with you but do not think putting it in the bill is appropriate because of the duplication argument. But I am going to get some further advice on that. The proposed amendment suggests that the land council can potentially make a fraudulent nomination. We believe that the rules of nomination under clause 5 already expressly state that a land council must comply with the Aboriginal Land Rights (Northern Territory) Act 1976 when it nominates a site. They are consistent with the functions of land councils and land dealings under the Aboriginal Land Rights (Northern Territory) Act, so we say what you are seeking to do already applies and to place it in this bill can cause potential confusion because it is already contained in other legislation.

I have asked for further advice on whether there is a strong reason why we should not include it, because we do not have a policy difference. It is just a technical question. The early advice was that they thought it was not wise to put it in both bills. But, if you like, when we get to this we might defer that particular one. We are not arguing about the principle, as far as I understand it; it is just a question about whether or not it makes sense and whether our legal advice about duplication is that it does not make sense. I will come back to the chamber on that. If our legal advice is that it is going to cause us difficulty, we will vote against your amendment. If it is that there is no difficulty, we are happy to support it in broad terms. I think Senator Scullion will also make up his own mind about the opposition. Our argument is that the Aboriginal Land Rights (Northern Territory) Act covers the concerns you have already.

Senator LUDLAM

I must admit I did not think this debate was going to throw up anything new at all, but I have been surprised. If the minister is proposing that I delay moving and voting on that amendment for the time being while he seeks that advice, I am certainly happy to do so. I think what you have told us is consistent with the advice you had yesterday: that the minister has not visited Tennant Creek and has not met with the litigants. In terms of the named applicants it is my understanding—this is obviously not a dispute that I am a party to—that there are only a small number of individuals. My question goes more generally. Since late 2007, when the minister took up this portfolio, has he met with anybody at all who disagrees with the Muckaty nomination whether or not they are party to the legal dispute?

Senator Chris Evans

I am sorry, Senator Ludlam, I was speaking to the advisers and I got distracted.

Senator LUDLAM

The minister is simply dealing with the cards that have been dealt by a minister across in the other place who probably would not be giving me nearly the time of day that you are, so I will repeat the question. Recognising that the number of named applicants to the dispute in the Federal Court is relatively small, they are there representing a much larger number of people. You have told us the minister has not met with the litigants themselves. In the entire time that he has held this portfolio, since late 2007, has he met with anybody at all who opposes the radioactive waste dump at Muckaty?


I know Minister Ferguson meets with lots of people. I cannot, obviously, answer as to whether he has met with anyone who opposes it; I suspect he would have, just in the course of his normal travels. But, if you are asking whether they are associated with the action in support of the applicants, I do not know the answer. Quite frankly, I am not sure I am going to be able to get to that sort of answer. I think you are trying to make a point, which I understand.

We gave you a clear answer yesterday about him not having visited and met with those opposed to the proposition. As to whether I can get him to trawl through his diary to see whether he has ever met anyone who is opposed to the proposition is, quite frankly, probably stretching the friendship a bit. I suspect he may tell me to mind my own business and you to mind your own business. And I am not sure how relevant it is to the debate. If the minister has anything to add I will come back to you, but I think the answer is probably that we should move on because I am not sure we are going to go to the trouble of trawling through his diary or his recollection. I think you have made your point.

Senator LUDLAM

I thank the minister for that. The point that I am making, just to make it absolutely clear so that we can proceed, is that the minister only speaks with people who agree with him. He has refused to meet with me on a number of occasions, although I did manage to buttonhole him at Alice Springs airport on one occasion—which was quite a memorable few moments. I have quite a good rapport with one of his advisers, who is here and who has given me the time occasionally to explain the minister's views and the tactics that have been chosen. We agree to disagree on most things. But the minister himself has never chosen to do so and to understand that on probably the most important and central aspect of this I actually agree with him, that this is a formidably difficult public policy challenge and that we stand ready, as we will do later in this debate, to propose a way forward. That way forward effectively cuts the knot and gets everybody in this chamber on the same page so that we can move ahead with an approach that is neither coercive nor anticipates that a vulnerable community that needs a road upgrade and a school will put their hand out for 12 million bucks to host a facility such as this.

The minister yesterday seemed to be hinting that there was no choice between those two options. I beg to differ. I think there is a great deal of ground we could occupy between coercion and some kind of bribe—some tiny amount of money for a politically vulnerable community in a remote part of the country to take this facility, this shed-like structure, in exchange for a cheque that would amount to a few tens of thousand dollars a year for the next several centuries, which is what we are contemplating today.

In relation to undertaking consultations under the land rights act and the processes of gaining consent under the land rights act, if I understand it correctly the minister is seeking advice that we may have consent for this amendment. I am not sure where that would leave Senator Scullion, as he has not spoken on this amendment yet, but we may in fact have at least one small point of agreement through the process of this debate.

Senator Chris Evans

Perhaps we should just move on and come back to it.

Senator LUDLAM

I will, Minister. We will park these amendments for the time being and come back to them.

I will speak briefly to the fifth set of amendments. Amendment (8) on sheet 737 relates to criteria guiding the minister in his decision making. This goes back to a degree to some of the comments I was making earlier about the fact that a decision as important as this is going to have consequences for the local community at least stretching for a couple of years and potentially, if all the boxes are ticked at the end of this process, stretching for hundreds of years—well beyond the life of this parliament—and so you would want a few criteria to guide the minister in his or her decision making before they actually put a pin in the map.

It is difficult to recall a piece of legislation that vests so much control in the hands of a single minister, so let us be specific. The decision as to whether the Muckaty nomination proceeds is entirely in the hands of the minister. No rights of appeal apply. If you go through the bill looking for periods of consultation, who he has got to talk to, time lines whereby a decision will fall out of his office, there is nothing there. There are no written criteria against which the minister is to judge the suitability of the Muckaty site—he just gets to make it up.

I acknowledge that at Muckaty there has been a deal of work done. There have been geotechnical surveys and I understand there has been work done on seismicity, on the flooding potential of the site and on the flora and fauna. There has been work done over the last few decades on the extraordinarily long history of Aboriginal occupation of that area. But the minister does not have to even read any of that. There are no criteria guiding the minister's decision. If this bill passes into law—I will be doing what I can to prevent that from happening, but if it does—the minister, if he chose to, could on the following day announced that Muckaty is the site. Nobody would have any rights of appeal, there would be no judicial review and there would be no appeals to procedural fairness. There would be nothing at all to allow us to go back and say, 'Did the minister check off against the responsibilities that the act sets upon him?' because the act sets none upon him. That is something that we can fix this afternoon. If I am on a bit of a roll, as I appear to have been with my last amendment, and this amendment is potentially in the same space and we are making some progress, then that is something that we can fix. We can set some criteria by which the minister can be judged and then can be judicially reviewable. The body language in the chamber suggests that is not going to happen, but I will persevere.

As I said, no written criteria exist. No time line exists on which the minister is required to consider evidence or make a decision. We could have a decision fall out of this process tomorrow or we could get a decision in 10 years—not reviewable. There needs to be no statement of reasons for the decision required by the minister. He will not even need to tell us. It could be a one-line press release that says, 'It is going to be at Muckaty,' and that would let Dr Larsson at ARPANSA get on with his job and the folk who will have carriage of the environmental impact assessment get on with their job. Nobody will be able to bang on a minister's door and say: 'Why is it at Muckaty? Have you been up there? Oh, you haven't? Well, if you had you might have known that occasionally it floods, that occasionally there are earthquakes and that there are people who will fight you until the end to make sure that it does not go there.' And there is no obligation to publish a list or a summary of submissions received.

So, as processes go, that is why this bill is reasonably slender. There is not a great deal in it to read, because nothing at all constrains the minister's total discretion. Perhaps I will be written off as a conspiracy theorist but if I am misreading the bill, if there are all these processes and clauses in there that guide ministerial discretion on nailing the site somewhere in the country, then please point that out for me.

Sections 8(1) and 13(2) confer further absolute discretion on the minister to make key approvals and declarations without being required to take any criteria or other matters into account in approving a state nomination or selecting a site. Setting aside the obvious contention the Aboriginal people have brought to the table about whether the nomination was proper or not, this is a set-up. Why is this a set-up? In a year or two the environmental impact assessment will come back saying, 'Guess what, Minister—it's an earthquake zone,' or 'A couple of times a year you can't get in there because it floods, it's a flood plain; let's not put our shed-like facility on the flood plain.' That is the kind of thing that could be avoided now if anything remotely existed to guide the minister's discretion. What is happening instead is that effectively a political nomination is being kicked through an open goal, because there is nothing in this bill that would prevent it from happening.

The amendments that we are proposing, for which I am looking forward to the unanimous support of the Senate—and I will not call a division if it is obvious that I have the support of one side of the chamber—provide that, before the minister makes a decision, the secretary of the department must publish on the department's website a notice setting out the nature of the decision and inviting persons to make submissions to the minister about the decision within 42 days after the notice is published. He will need to send each stakeholder a notice. This is all stuff that should have been in the bill. It should not have fallen to the Australian Greens to fix this piece of legislation, but we are happy to do so. Under the amendments, each stakeholder would be sent a notice which set out the nature of the decision so that they would know what it was and which invited stakeholders to make submissions to the minister about the decision within 42 days of the date of the notice. A copy of each submission received under the section would be published on the department's website. In making the decision, the minister would have to 'have regard to the submissions in relation to the decision received under subsection 2' and 'actively consult stakeholders'. I suspect that when the minister saw that line that was the deal breaker, that was when it all started to go sideways. There will be no active consultation of stakeholders under this minister, I suspect. I still think it is a good amendment.

The amendments provide that 'in making a decision the minister must have regard, but is not limited, to the following criteria'. The first is existing infrastructure. Can we get the stuff there on rail cars? Are the roads decent? Are there washouts? Are trains going to be knocked off the tracks? This happened in the Northern Territory late last year. The minister will also have to have regard to things like seismology and hydrology. For example, is the site an area of active seismic activity? If you check a map, Australia is not the most seismically active continent on earth; it is probably the least seismically active continent on earth. But guess what? The dart that they have thrown at the board, which landed at Muckaty, happens to have landed on an active seismic zone. No volcanic activity has been recorded there as far as I am aware of, as the minister suggested yesterday, but it is an earthquake zone.

Senator Crossin interjecting—

Senator LUDLAM

I suspect it was, Senator Crossin.

Senator Crossin interjecting—

Senator LUDLAM

I stand corrected and thank you for preventing me from verballing the minister. But earthquakes do happen up there, not just in anecdotal evidence or recent memory—the maps tell the tale. There are not too many places where you get active earthquake activity, but they happen to have chosen one of them for the nation's first national radioactive waste dump.

Hydrology is another matter that would need to be considered. As I mentioned briefly yesterday sometimes you cannot get into the site because it floods out. It does not sound like a particularly good place to park long-lived, intermediate-level waste for several hundred years. Community consent is something that I will speak at great length about as the debate proceeds, because that is the key factor that has been missing. If the minister thinks that he can get a signature on a piece of paper based on documentation that even the family members who are named in it cannot see—that counts as community consent—then he has a severe challenge on his hands. That challenge, in this instance, has stretched from the front yard of his office, where people routinely congregate to make their feelings known, to the Federal Court, to the front lines up at Muckaty and right into this parliament. There is no community consent, and that is a precondition around the world for managing this material. Without consent there will be no dump.

International best practice is something that I will speak of as we proceed through the debate, because I have tried to give that term—which is bandied around in here far too frequently—some teeth, and tried to define what we would mean by international best practice by actually studying how other countries are grappling with this issue. The minister, of course, can specify other additional criteria if he so chooses.

The amendments state:

(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.

That is reasonably clear. The minister can add to the matters to which he or she must give regard but obviously cannot subtract from them. These are things that must be given regard before a nomination can proceed onto his desk. The amendments also state that the minister must cause a report to be prepared setting out his reasons for making a decision and 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.

So there it is, essentially, in black and white. I spoke before about criteria to guide the minister and the fact that there is total and unfettered discretion written by the minister into this bill, so that his hand is completely unguided in making a decision relating to nomination for a site. We can give those commitments some teeth. When he says he will consult, I hope that he and his representatives in this place will support this amendments, because they give those commitments some teeth, some criteria by which not only the minister can be guided but the community can be reasonably sure when they are published, and when that material is made public, that we will know the reason for a decision having been made in the first place, whether or not it is at Muckaty, whether it is to park the waste or leave it where it is, or whether it is for a remote facility in Western Australia or Queensland. The most important thing in trying to help the government in this instance come up with a successful proposal is that it must be founded on actual consent.

Progress reported.

Back to All News