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National Radioactive Waste Management Bill 2010

Speeches in Parliament
Scott Ludlam 5 Apr 2012

Debate resumed on 28 February 2012

The CHAIRMAN: Order! The committee is considering the National Radioactive Waste Management Bill 2010. The question is that the bill stand as printed.
Senator LUDLAM (Western Australia) (12:32): 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 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? Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (12:45): 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 CHRIS EVANS: 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.
The TEMPORARY CHAIRMAN (Senator Parry) (12:50): 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 (Western Australia) (12:50): 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 Scullion interjecting-
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 Australian, in the Bulletin 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 Zygmunt Switkowski's Uranium Mining, Processing and Nuclear Energy review advocated Australia for producing fuel rods and then taking back the waste. In the Australian Financial Review, 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. Senator SCULLION (Northern Territory-Deputy Leader of The Nationals) (13:00): Those listening to this debate may think that the National Radioactive Waste Management Bill is about geological deep storage.
Senator Ludlam interjecting-
Senator SCULLION: I am not suggesting for a moment, Senator Ludlam, 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 Ludlam 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 Ludlam'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 Ludlam 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 TEMPORARY CHAIRMAN (Senator Fawcett) (13:03): The question is that the amendment be agreed to.
The Committee divided. [13:07]
(The Chairman-Senator Parry)
Ayes ...................... 10
Noes ...................... 31
Majority ................. 21 AYES
Brown, RJ Di Natale, R
Hanson-Young, SC Ludlam, S
Milne, C Rhiannon, L
Siewert, R (teller) Waters, LJ
Wright, PL Xenophon, N

Polley, H Pratt, LC
Scullion, NG Singh, LM
Sinodinos, A Sterle, G
Thistlethwaite, M Urquhart, AE
Williams, JR (teller)

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 Gazette within seven days of the declaration being made. So there is some consultation. Who reads the government Gazette? 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 Gazette 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 Gazette 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 CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (13:25): 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 TEMPORARY CHAIRMAN (Senator Fawcett): 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 (Western Australia) (13:29): 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?
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (13:40): 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 (Western Australia) (13:43): 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?
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (13:45): 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 (Western Australia) (13:46): 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.

Debate resumed.
Senator LUDLAM (Western Australia) (17:09): I was going to offer the minister the call first, although I see he is consulting with his advisers. When we reported progress before question time he had advised me out of left field on my amendment (4)-requirements for nominations and amendments relating to the way that this bill interacts with the Aboriginal Land Rights Act-that there was a possibility that the government might support the Greens amendment. I will pick up the thread there if that is not the case, but I thought I might give the minister the floor to just advise us to as to whether there is an update.
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (17:10): I reluctantly have to advise the senator that the legal advice we received is that putting it in both acts would be very complicated and lead to potential litigation difficulties, so we cannot agree to the amendment. The practical effect is in terms of the rights established by the Northern Territory legislation, but our legal advice is that it would be counter-productive and cause difficulties if it were to be inserted as proposed in your amendment. My advice is that what you want to do will be achieved, but we cannot agree to be the amendment.
Senator LUDLAM (Western Australia) (17:11): I thank the minister. That being the case, it probably makes sense to backtrack a bit from where we were earlier and move back to Greens amendment (4). I seek leave to move amendments (4), (5) and (12) on sheet 7037 together.
Leave granted.
Senator LUDLAM: I move:
(4) Page 6 (after line 11), after clause 5, insert:
5A Requirements for nomination by a Land Council
A nomination made under section 5, or taken to have been made under section 5, is of no effect for any purpose under this Act unless:
(a) the Land Council, in nominating the land as a potential site, has complied with the Aboriginal Land Rights (Northern Territory) Act 1976; and
(b) the nomination of the land as a potential site was made by the Land Council subject to its powers and obligations under the Aboriginal Land Rights (Northern Territory) Act 1976.
[nominations must comply with Land Rights Act]
(5) Page 6 (after line 11), after clause 5, insert:
5B Application of Schedule 2 to nomination by a Land Council
(1) Despite subitem 1(1) of Schedule 2, a nomination under section 3A of the old radioactive waste law which does not comply with subsection 5(2) is invalid and of no effect for any purpose under this Act.
(2) In this section:
commencement time means the time at which item 1 of Schedule 1 commences.
old radioactive waste law means the Commonwealth Radioactive Waste Management Act 2005 as in force immediately before the commencement time.
[additional requirements for continuing nominations]
(12) Page 11 (after line 16), after clause 9, insert:
9A Requirements for approval
An approval under section 9, or taken to have been made under section 9, of land nominated by a Land Council is of no effect for any purpose under this Act unless:
(a) the Land Council, in nominating the land as a potential site, has complied with the Aboriginal Land Rights (Northern Territory) Act 1976; and
(b) the nomination of the land as a potential site was made by the Land Council subject to its powers and obligations under the Aboriginal Land Rights (Northern Territory) Act 1976.
[nominations must comply with Land Rights Act]
I suppose I should not express great surprise that the government has sought legal advice and has probably been told by the minister in the other place to get stuffed and that there will be no tampering with his bill. I will continue my remarks in support of these amendments in the hope that perhaps Senator Scullion, who has been listening in on the entire debate since it began, will exercise his balance of power role in the chamber and advise his colleagues to vote for these important amendments.
In undertaking the kinds of consultations and the processes of gaining consent, not just for a project like this but for any project, a land council is under a procedural fairness duty at law to give Aboriginal people whose rights, interests or legitimate expectations are affected an opportunity to be heard. That is part (a). Part (b) is to be free from bias. These requirements are normally enforceable under the Aboriginal Land Rights (Northern Territory) Act to stop the land council doing something in breach of those requirements, except where the action has already resulted in Aboriginal land being transferred to another party without that party procuring it with fraud.
Procedural fairness is not some kind of nicety. It is not something that you add as an afterthought and it is certainly not something that you would pull out of a piece of legislation such as this. It is vital to ensuring that the right decision or outcome is actually reached. In this case, that means that the right Aboriginal people under the meaning of the Aboriginal Land Rights (Northern Territory) Act consented to the nomination. The act provides that basic protection and, up to a point, it has worked in the Territory. It has certainly worked more effectively than the native title framework has worked.
In this instance, the Northern Land Council was under a statutory obligation to assist the applicants in pursuing their claim to be recognised as the traditional Aboriginal owners of the land in question. In particular, it was obliged to arrange for legal assistance for them at the expense of the Northern Land Council. The capacity of the applicants to look after themselves was seriously eroded by their lack of legal and anthropological assistance. These issues were matters of the gravest concern to the parties involved. They involved questions going to the spiritual responsibility of competing claimants and they are questions which arose in the framework of a unique piece of legislation. The issues of fact and of law were extremely complex. The duty of procedural fairness is critical to ensuring that consent is actually given to an acquisition of land. Normally this is a legally enforceable obligation until the point at which land is transferred without fraud. By virtue, however, of the 2005 act and the 2010 bill this was unenforceable at all times prior to land being transferred to the Commonwealth, particularly after a nomination was made.
I recognise, and presumably the minister will remind us, that under the Aboriginal land rights act the term 'traditional owner' gets thrown around pretty loosely in some instances by people who are not familiar with the term. It is a term in common currency that has a very specific and formal legal definition under the land rights act. The problem that we have in this instance is akin to something I remarked on earlier in the debate, that the mining industry, governments or a particular department wanting to host a toxic waste facility will turn up, draw a rectangle on the ground and then go looking for the right person to speak to for that rectangle on a map under the terms of the land rights act.
What has happened in the instance of Muckaty is that people have stood up and said that they are the right people. As a whitefella from a long way away, I am not qualified to adjudicate in their cause. They said that they were the right people to make that nomination, and the Northern Land Council has in turn said that the nomination was received in good order and it was transferred to the minister's desk-the previous minister who handed it on to Minister Ferguson. This has sidelined a huge number of people who consider themselves as legitimate traditional owners under the formal meaning of the land rights act, in that they have obligations or responsibility for country that will be directly impacted by the imposition of this facility.
That does not necessarily mean that they were born within the rectangle that we put on the map. It does not necessarily mean that they have spent their whole lives giving evidence to anthropologists to put those views on the whitefella's legal record. But it does mean that they have a genuine grievance in that, as we have discovered in the course of this debate, they do not believe that the land was correctly forwarded to the Northern Land Council and then on to the minister. In fact, they dispute intensely that the person who has put the nomination forward is the person with the sole responsibility and sole ability to put forward land that they will not get back because of the use for which it was forwarded. Nobody is ever going to be able to occupy that country in the same way again, because it is going to be surrounded with barbed wire-as you would hope for a facility of this kind-and the access corridor is going to have some kind of similar restriction. There will be severe restrictions to movements of people on and off that country. They will never get it back.
I think there are clauses in the bill that provide for the return of the land after a couple of hundred years. It is comic in a dark kind of way that their descendants in a couple of dozen generations will be able to return. Presumably the shed-like structure will be removed if it has not been converted into an international high-level waste dump in line with some of the more unhinged contributions made in the House of Representatives. They will get the land back, the shed will be taken away, but the ticking in the low-level material which is currently hosted and guarded at Lucas Heights will have faded to approximately background. That material will no longer kill you or give you cancer. It will have faded away through 10 half-lives of the longest-lived isotope to material that can be safely handled.
However, that is not the material in question. Even though the government and the opposition talk about it a lot-the gloves, the lab components, the bits and pieces, the spent sources and engineering stuff-that is not the concern. The concern is what would have happened to the several hundred or thousand cubic metres of long-lived intermediate-level waste that is being left there in the interim and for which there is no final disposal option? I think that is the real question here: will they get their land back in 300 years or will they not? The duty of procedural fairness which this amendment goes to is critical in ensuring that consent is given to an acquisition of land. Normally this is a legally enforceable obligation until the point at which land is transferred without fraud.
The 2010 bill and the 2005 act are not designed to give information to traditional owners about what the land would be used for as they do not generate any information
about the project. The regime is not a land-use approval regime and it is not tied to one. It does not require details of a proposed land use to be proposed for consideration, and approval of that land use does not need to be constrained to the scope of the proposal. Rather it is simply what we are debating today, a regime for excluding state and territory laws and for quite aggressively, in my view, acquiring property rights. Land owners therefore have no concrete details of what is proposed, no ability to constrain their approval to details which are given and on which they base their decision and no critical information about the proposal. For example, this is different to mining proposals under the Aboriginal land rights act, where the miner is under obligation to provide a high standard of information and go into specific details of the site proposal and environmental impact. In addition, the proponents are tied to the statement, as if they do not accord with it the mining title may be cancelled. Those sorts of provisions do not exist in this bill. They exist if you are taking out a mining tenement to fossick for gold or whatnot; they do not exist in the case of a national radioactive waste dump.
I would like to make a few brief comments about compliance with a declaration of Indigenous rights before I put a question to the minister. As is evident, none of the provisions of the 2010 bill for the Aboriginal land rights act accord with a declaration of Indigenous rights adopted by the Australian government, particularly articles 10, 29 and 32. Article 10 states that:
Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.
Article 29 states that:
States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.
Article 32 states that:
1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.
My contention is that the legislation that is before us this afternoon runs directly counter to those articles, those obligations to which Australia is a signatory. I am proud that we are a signatory, but in this instance we are trying to impose a facility on a community where free, prior and informed consent was not sought and was not granted, and that is why this has turned into such a fierce campaign.
As evidenced by the Muckaty nomination by the Aboriginal people, they are being forcibly removed from the nominated site without their prior informed consent and there have been no effective mechanisms for just and fair redress due to the exclusion of judicial and merits reviews. The Commonwealth has used inducements of cash-not very much but inducements nonetheless-for essential services to undermine the freedom of decisions by Aboriginal people. Minister, my question to you is whether any advice was sought by any office of the Commonwealth, particularly the minister's, as to whether this proposal violated those articles of the Declaration on the Rights of Indigenous Peoples that I have just read into the record.
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (17:23): I understand that as part of the consultation on the bill FaHCSIA was consulted about the UN Declaration on the Rights of Indigenous People and they provided some advice about the application to Australia and to our handling of the bill. As you know, Australia has not ratified the declaration but supported it. We think we operate consistent with those principles. But the department did consult with FaHCSIA about the applicability and consistency with the declaration.
Senator LUDLAM (Western Australia) (17:24): I thank the minister for that answer. Will the minister table the advice that was provided?
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (17:24): What I have in front of me is not really advice. It is a set of dot points which I think would be known to the senator. They go to the questions of what the UN declaration does and government support. It is not a piece of legal advice, as it were; it is really just noting the various things that impact. But I will get that checked. I do not think it is actually advice in the way we think about it; it just provided information to the department about the applicability of the declaration. I will check. I do not think there is anything that will be a problem, but I do not want to misrepresent it. It is not a legal piece of advice; it is information to inform the process. I will take that on notice. If people are happy to table it, I will table it.
Senator LUDLAM (Western Australia) (17:25): I understand that the government is now proposing a new act in relation to this issue after adopting the declaration. I think it is under an obligation to ensure that the process we are debating this afternoon accords with the declaration. I have just read into the Hansard record three specific articles to which, in my view, this bill runs directly counter. It simply violates them. It does not offer that process of free, prior and informed consent because, of course, if it did, you would not have people from neighbouring areas from that region-people who claim very strong connection to that country-fighting you in courts, fighting you outside the minister's office, turning up here in parliament seeking meetings, banging on the door, not having their phone calls returned and not having their correspondence replied to. The fact is that you have not offered the affected community any free, prior and informed consent.
Late last year, at the end of a budget estimates hearing, Mr Hill from the Northern Land Council advised us that he also had not visited Tennant Creek and met with the affected parties. You confirmed for us yesterday and again this afternoon that the minister and the Australian government have not either. The people trying to force this project into that region have not had the courage to go look the affected parties-the ones on the front line-in the eye. That is in direct violation of the spirit, the intent and the letter of that instrument. I think most Australians would be proud to know that we have indeed signed that declaration.
I understand that you are taking advice on whether or not the document that you read from before is something that could be put into the Hansard record. I also ask you to
take on notice whether you have any advice at all, legal or otherwise, on whether the specific articles of the declaration that I read into the record are in direct and total contradiction to the terms of this legislation.
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (17:27): I can be clear with the senator about that. Our advice is that the legislation does not contradict the principles contained in the UN Declaration on the Rights of Indigenous Peoples. We do not think there is any contest between those principles and the act. I remind the senator that the sorts of the things he has been talking about are required of the land councils as part of their statutory obligations to consult with and speak to people prior to gaining consent. It is similar to the discussion we have had before. So we think it is consistent with the principles in the UN declaration but also that there are requirements on the land councils to ensure the consultation and gaining of consent as part of their statutory function.
Senator LUDLAM (Western Australia) (17:29): It is interesting that again the government has sought to simply wash its hands of the dodgy and rather dark process that underlies the original nomination that you strongly condemned when you were in opposition, sheeting it home to the Northern Land Council and saying: 'That's their dirty laundry. Their process is their business. They have their obligations, and we simply accept what pops through the post box.' It is absolutely unacceptable. In 2006, in evidence to the Senate Standing Committee on Employment, Workplace Relations and Education, Mr Ron Levy, who is the NLC principal legal officer and who gave evidence to our committee late last year in the budget estimates hearing that I referred to before, put this into the record:
It is unlawful for a land council to nominate land as a waste facility unless it first has the consent of traditional owners.
So far so good. He said:
Your question, as I understood it originally, was: can a land council lawfully nominate land without the consent of the traditional owners? The answer is no.
So far so good. He went on:
The question as you now put it is: if the land council was to do that unlawfully, would it be validated? The answer to that question-in common with how the land rights act has operated for over 30 years and in common with, for example, how the Torrens title system operates regarding the real property-is yes.
It gets back to the issue before of the minister somewhat dismissively saying: 'That's just about spelling mistakes and stuff. That happens in legislation all the time. We will establish a set of criteria. Then there will be a clause in there that says that if any of these criteria are violated, it does not matter for the purpose of the nomination.'
That is why people are contesting this issue everywhere from the Federal Court to Minister Ferguson's doorstep in the electorate of Batman, where he is becoming more and more unpopular by the year. That is exactly the clause in the bill that they have zoomed in on and their legal counsel have zoomed in on and said, 'Just a moment.' First of all, they believe that the nomination was actually put up unlawfully. They have real problems with the terms of this legislation and with the way that the land rights act has been interpreted before, but I suspect the minister is going to tell me that there is long precedent for this kind of behaviour: that we can go through notional processes of consultation, tick all the boxes and then be told that, if any of the boxes were not ticked or if anything turns out to have been dodgy or if people were left out of the process or if cheques were written out to the wrong
people, no matter how dodgy the process was, there is a clause in the act that says it does not matter, that the nomination can proceed. That is why people are so concerned about this.
We were told by the government and we were certainly given reason to believe by the Labor Party when they were in opposition that there would be a different approach. This is not a different approach. This is a continuation of the approach of terra nullius that says there is empty land out there. Julie Bishop, when she was federal science minister, referred to it as the middle of nowhere. She put it like this:
All the sites in the NT are well away from houses. There are three sites-
and now we can add a fourth-
that are currently being considered and they are former defence sites so they are some distance from any form of civilisation.
Tell Mitch that, tell Dianne Stokes that-that their block is some distance away from any form of civilisation and can therefore host this material, which will still kill you in a quarter of a million years, in a shed surrounded by barbed wire and two security guards. What kind of civilisation is it exactly that is promoting that kind of approach?
Senator Nigel Scullion, since he is still here and is taking part in the debate occasionally, said, 'Territorians don't like having this sort of stuff shoved down our throats because we are not a state.' Well, then, bring on statehood. If it takes being a state, if it helped the South Australians kick this project out of their backyard with the support of the Rann government, local government authorities, media organisations, the broader community and, most importantly, the kungas, the senior Aboriginal women who led that campaign-then bring on statehood. We have not yet heard Senator Scullion on that.
Earlier I quoted Alexander Downer, the former Minister for Foreign Affairs, proposing that what we should really have is high-level radioactive waste, spent fuel from commercial power plants all over the world, coming into Australia. Here is what he said:
I'd rather have that low-level waste out at-well it will be in the Northern Territory now. I would rather have it in the Northern Territory than in Mount Barker just down the road from my electorate office.
That, senators, sums up this entire debate. They want the technology as long as it is nowhere near them, as long as somebody else is picking up the tab. The people I have met with, because I have taken the time to go to Tennant Creek and to spend a bit of time in the Barkly region and in Darwin and Alice Springs, say that that approach is not appropriate. If it is unsafe in Sydney, it is not going to get any safer in a shed or a shed-like facility in the Barkly region.
These reminders of the way people from both sides of politics have handled this debate for decades tell us the reason we keep failing, the reason we keep running up against community opposition. People are saying: 'Wait a minute. You weren't straight with us. You weren't clear with us about the nature of this material, about how long it is lethal and about your reasons for getting it out of your backyard and into ours.' This game of toxic pass-the-parcel simply has to end.
I hoped I would be able to draw out from Senator Scullion his views on the amendments. Minister, you gave us advice earlier that there are at least some people behind the scenes who think the proposal is reasonably sensible. You have since been given legal advice that it is not going to be possible to do so or that you would rather not do it. I commend these amendments to the chamber. I hope that we hear some voice from the opposition-after all, Senator Scullion, it is a senator from Western Australia who is trying to prevent this stuff going into your backyard. I hope you will take the opportunity now to stand up and explain why you think that this is a good idea, that we do not at the very least embed the basic objectives of the land rights act into this Commonwealth bill.
Senator SCULLION (Northern Territory-Deputy Leader of The Nationals) (17:35): Just briefly, Senator Ludlam, we will not be supporting these amendments. We think that the Aboriginal land rights act in itself is probably one of the most comprehensive processes run by the land councils to find those matters of free, prior and informed consent that you referred to. But this is not about the Northern Land Council; it specifically applies to land councils, and this is an insertion in there. You said that being a land council meant that it had to actually be in the Northern Territory or somewhere remote. But New South Wales has a heap of land councils, and whether you are in a piece of land in Melbourne or in South Australia and, presumably, it is not already occupied then it is extremely likely you are going to have to go through the processes within the state or territory to ascertain free, prior and informed consent. It is not only the Northern Territory land councils. But we agree with the advice that has been provided to the government with regard to the amendments, that being mentioned in two pieces of legislation is unhelpful, and we will not be supporting the amendments.
Senator BOB BROWN (Tasmania-Leader of the Australian Greens) (17:36): I was impressed by Senator Ludlam's amendment and the reasons for it. I listened carefully to what Senator Scullion had to say and, in view of that, I do not understand why he objects to this amendment. The amendment from Senator Ludlam requires that a nomination made under section 5 of the act-if it becomes an act or taken to have been made-is of no effect unless the land council, in nominating the land as a potential site for a nuclear waste dump, has complied with the Aboriginal Land Rights (Northern Territory) Act 1976. I would have thought that Senator Scullion would want to make sure that Territory law was being heeded, albeit the nomination of the land as a potential site was made by the land council subject to its powers and obligations under the Aboriginal Land Rights (Northern Territory) Act 1976. It simply ensures that compliance with Territory law is made. The question to the minister is: is that the case? I ask that specifically of the minister. I did listen carefully to his answer previously, but is the committee to understand that his advice-legal advice, of course-is that the nomination of the land as a potential site, which was made by the land council subject to its powers and obligations, is fully in accordance with the Aboriginal Land Rights (Northern Territory) Act 1976 or will be? That is the question, not generally whether rights are being upheld but whether the act is being complied with. If there is legal advice, would the minister care to share it with the committee?
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (17:39): As I explained earlier, we think the amendment moved by Senator Ludlam is unnecessary because the effect is the same, but we have had advice that we ought not seek to reflect it in the bill as it is now. It is obvious that people have to comply with the Aboriginal Land Rights (Northern Territory) Act because it is the law; it already exists. While I understand what Senator Ludlam is seeking to do, we say that that is already required and that, although we cannot support it going into the act, we do not have a policy difference here in the sense that the act has to be complied with. I did not quite understand all of the construction of your question but the rules of nomination expressly state that a land council must comply with the Aboriginal Land Rights (Northern Territory) Act. So we think the amendment is unnecessary, but we actually think we are at one in a policy sense and that the bill as drafted will ensure compliance with that act.
Senator BOB BROWN (Tasmania-Leader of the Australian Greens) (17:40): So the minister is saying that he agrees with the amendment, like the opposition spokesperson who also agrees with the amendment, but is not going to support it on the basis that the Territory law would have to be abided by anyway and effectively this is redundant. But it is right at the core of the matter that Senator Ludlam has brought up. The question back to the minister is: if this has no effect, and the minister's advice is that the Territory law would have to be upheld anyway then why not accept the amendment, writing it into federal law-that state law on this particular matter be a process to ensure that landowners' wishes are properly taken into account? Why not put it under the authority of this federal law as this could so grievously, potentially, affect landowners who feel they have not been consulted? If you agree with Senator Ludlam on this matter, what is it that prevents you from acting on that agreement?
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (17:42): I think there is a misunderstanding. The Aboriginal Land Rights (Northern Territory) Act is a Commonwealth law. It is an act of this parliament, and those provisions are decisions of this parliament. It is not a question of Territory law versus Commonwealth law. What I am saying to you is that this is the law. It is the current law of the land as enacted by this parliament. Our advice is that to try to include the same provisions in a separate bill is not advisable as it can create a set of legal complications. As I say, in a policy sense, we are in agreement, but our advice is to not accept the amendment because we think it would do damage to the intent. But the provisions you are seeking to uphold are provisions of Commonwealth law already passed by existing law agreed to by this parliament. We have an act that does that already, and we are seeking to amend another act to restate that. Our advice is that we should not do that. The policy intent is reflected in the Aboriginal Land Rights (Northern Territory) Act, which is an act of this parliament.
Senator BOB BROWN (Tasmania-Leader of the Australian Greens) (17:43): I am aware of that, but the Aboriginal Land Rights (Northern Territory) Act 1976 specifically applies to the Territory. It is not an acceptable argument from the minister that therefore it is redundant to put in the application of that act to ensure that the act is referred to into this piece of legislation. Whether the adviser agrees with that or not, it is common in law to make sure that anybody reading the law does so in companionship with another law. That is what Senator Ludlam is proposing to be done here. What I have not heard from the minister is why it should not be there. He says there are complications. Well, what are they?
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (17:44): Senator, in good faith I undertook to Senator Ludlam to get further advice because my inclination was to accept the amendment, given that we were at one on the policy intent. Having sought that advice in the break between us dealing with this bill, the legal advice is that we ought not to do it-that it would create difficulties in terms of legal interpretation and potentially lead to litigation. That is the advice I got. On the basis of that advice, the government has made the decision not to support the amendments.
There is no policy argument here. Our view is that the intent that Senator Ludlam's amendments represent is already the law of the land. We will not be agreeing to the amendments, but I cannot add anything further to that. That is the advice we have got. If there were a policy difference I would attempt to resolve that, but there is not. I cannot say it any other way. We have been around the traps on this for a while. We are not going to accept the amendments, but I do not think Senator Ludlam's endeavours or policy purpose is at all damaged by that decision. I do not think the defeat of his amendments will do any damage to the intent he had in moving the amendments.
Senator BOB BROWN (Tasmania-Leader of the Australian Greens) (17:45): Just to follow up on that, could the minister give the Committee, in the absence of the advice that he has being given to the committee, an example of where citing the land rights act of 1976 in this way in this legislation could lead to litigation?
Senator CHRIS EVANS (Western Australia-Minister for Tertiary Education, Skills, Science and Research and Leader of the Government in the Senate) (17:46): As it is hypothetical, the answer is no-I cannot give you an example of what might occur in a practical sense. All I can do is tell you the advice I received. We are not going to support the amendments. We can continue to debate them, but we are not going to support them. I have endeavoured to get that advice, to accommodate Senator Ludlam if I could. The advice is that I should not. So I will not. And I cannot take it any further than that.
Senator SCULLION (Northern Territory-Deputy Leader of The Nationals) (17:47): Perhaps, Senator Brown, I can assist. First of all, I am not sure if you were in the Senate but I have commended, as I think the government has, Senator Ludlam on the motive for this-to ensure that we are making sure that the consent process, which is laid down under section 77A of the Aboriginal Land Rights (Northern Territory) Act 1976, is adhered to. Could I just point you to this legislation before us under Division 1-Nomination by a Land Council, section (f)(iii) where it says:
... the traditional Aboriginal owners as a group have consented to the proposed nomination being made (that consent as a group being determined in accordance with section 77A of the Aboriginal Land Rights (Northern Territory) Act 1976) ...
and goes on, in (iv), to say:
... any Aboriginal community or group that may be affected by the proposed nomination has been consulted and has had adequate opportunity to express its view to the Land Council.
I would submit that this is, in this piece of legislation, almost identical-certainly in intent to ensure that it is absolutely clear that any nomination, in terms of the free, prior and informed consent, is actually already dealt with in the legislation that we are looking at today.
Senator BOB BROWN (Tasmania-Leader of the Australian Greens) (17:48): I thank Senator Scullion for that. He has given a very clear example of where federal legislation leads to a citing of territory legislation to ensure there is consistency. But here we have the minister saying, 'Don't have federal legislation citing other federal legislation to deal with consistency'-and I am not going to labour this any further, but the minister has said that it could lead to litigation. When you say you are going to oppose an amendment on the basis that litigation might arise from that amendment, then you ought to be able to say how or where or why. But the minister is failing to do that and that is the whole problem with the defence he has given for opposing this piece of legislation. There is no defence. There is no manifest litigation that will arise from it. It is a commonsense amendment that Senator Ludlam has put in here. It makes the reading of the act, and the process of somebody who is wanting to determine what this act is about, much more consistent and logical. All we are getting from the government and the opposition is that they agree with the amendment but will oppose it, and I cannot see much logic in that.
The TEMPORARY CHAIRMAN (Senator Fisher): Then, in that case, the question is that the amendments moved by Senator Ludlam be agreed to. Those in favour-
Senator Ludlam: Chair-
The TEMPORARY CHAIRMAN: Senator Ludlam, before I put the question?
Senator LUDLAM (Western Australia) (17:50): Thanks, Chair, I appreciate that. I will just make some closing remarks on these amendments. I thank Senator Brown for his contribution and also Senator Scullion, and Senator Evans for at least indicating that the spirit of the amendment is supported if not the letter. The reason that this amendment is before us is that what we have here is a proposal being experienced not hypothetically, not in the abstract-a proposal which stands in absolute, clear, stark violation of the principle of free, prior and informed consent, on the table and embedded in this bill. The people fighting this proposal in the Federal Court and out the front of the minister's office did not offer their consent. They were not given advanced warning. And they were not free to make that decision. That is the problem that we have here. And maybe it is redundant to say, 'The proposal that is before us should at least make an attempt to be compliant with the provisions of the Aboriginal land rights act. But maybe it will give some comfort to the next people who find themselves in the firing line after the Muckaty proposal falls over, because quite clearly this proposal does not-otherwise you would not be getting the heat that you are getting. This minister is finding himself in the same hot water as the previous minister because he is pursuing the same strategy of a ram-raid-a land rights ram-raid. There is no free, prior and informed consent here at all.
So I thank all participants in the debate on this amendment for at least acknowledging that it would be nice if the act were in concurrence with the Aboriginal land rights act. But the fact is that we have a stark violation of the principles and, in my view, the letter of that act before us now. That is why this particular proposal is so hard-fought. In South Australia, they do not have an Aboriginal land rights act. Nonetheless, we saw the same government strategy of just booting the door down and then trying to explain its actions afterwards as being somehow consultative. We have changed the language in this instance. Now it is based on the principle of volunteerism: 'After we kick the door down you will be discovered to have volunteered for radioactive waste.' It is not good enough. This proposal is going to fall over no matter what the outcome is in the Federal Court because the bigger picture here is that we should not continually be seeking coercively to dump this material in a shed-as former minister Julie Bishop put it-'a long way from civilisation'. It demeans us as a civilisation if, when we get to that place in the middle of nowhere, in that land of terra nullius we find people who are telling us that they do not want the stuff on their block. They do not understand how it is that if it is unsafe in Sydney, somehow transporting it thousands of kilometres and taking it to Tennant Creek will magically make it safe. I commend these amendments to the Senate.
The TEMPORARY CHAIRMAN (Senator Fisher) (17:52): The question is that Senator Ludlam's amendments (4), (5) and (12) on sheet 7037 be agreed to.
The Committee divided [17:57]
(The Temporary Chairman-Senator Fisher
Majority .................26 AYES
Brown, RJ Di Natale, R
Hanson-Young, SC Ludlam, S
Milne, C Rhiannon, L
Siewert, R (teller) Waters, LJ
Wright, PL


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