Peter Garrett (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Reconciliation and the Arts) Share this | Hansard source

I want to support the second reading amendment moved by my colleague the member for Jagajaga and the remarks by previous Labor members as I rise to speak on the Commonwealth Radioactive Waste Management Legislation Amendment Bill 2006. The bill amends the Administrative Decisions (Judicial Review) Act 1997 and the Commonwealth Radioactive Waste Management Act 2005 to make land nominations, as distinct from decisions, nonreviewable under the AD(JR) Act and to provide that the failure to comply with the site nomination rules in the act will not affect the validity of the minister’s approval of the nomination. Labor has noted in the House that this legislation removes any entitlement to procedural fairness in relation to the nomination of a site.

Specifically, Labor opposes this legislation because it undermines the existing amended Commonwealth Radioactive Waste Management Act. Additionally, because it clearly reduces the need for consultation and community consent, which is an absolutely essential prerequisite to decision making of this kind, it is inconsistent with international best practice guidelines and existing statutory obligations under the land rights act. This is particularly important in the light of the release of the draft Switkowski review, with the prospect of a greatly increasing volume of radioactive waste being generated in Australia if in fact the Howard government’s plans for a substantial increase in a domestic nuclear energy industry come to fruition. I will return to that issue at some point later. At this stage I confine my observations simply to say that it is not acceptable for the Australian population to find in any planning and approvals processes for the storage of radioactive waste or nuclear waste that the legislative framework, and the consultation framework under which that operates, is less than world’s best practice, which has been identified particularly in European countries and the United Kingdom as requiring a full, informed and participatory mode of community involvement. Very clearly the legislation before us in the House does not provide that standard at all.

Additionally, Labor opposes the legislation because it circumvents judicial review. Yesterday we were considering legislation in the House which related to whether courts could take into account customary matters in terms of sentencing under the Commonwealth Crimes Act. Again this government saw fit to enact legislation that reduces the capacity of the legal system and judges to exercise their responsibilities, both under the law and under statutes. So this bill is an extraordinary narrowing down of the capacity of normally allowable and accessible processes that communities and the public have, both to challenge and to be informed about government decisions.

A strong argument has been put that the debate about the return of nominated lands, as identified under this legislation, should be delayed until the final Switkowski report is brought down. I think there is a very good reason for that and I would certainly like to put that to the government. It seems clear that what is proposed in the draft report—the review has encompassed a fairly significant expansion of likely nuclear activity in Australia, or at least the possibility of that—will bear down very strongly upon Indigenous communities, which hitherto are the ones that have borne the brunt and will bear the brunt of having radioactive materials stored in or near their lands.

As I address the House I cannot help reflecting on the extremely casual acknowledgement that Mr Switkowski gave to the prospects of the safe disposal of radioactive waste in Australia. As I saw it on television, it was one wave of the hand and the suggestion that we have enormous amounts of remote inland regions where no-one particularly is and where, surely, we can find a location for our waste.

Apart from that being an inaccurate judgement on his part, it also fails to understand that both the history of uranium mining in this country and the history behind the identification by the Commonwealth of a site for the storage of low-level, medium-level and ultimately high-level radioactive waste have only ever involved Aboriginal communities, Indigenous communities. The fact of the matter is that the material has been stored and still is stored in places like Lucas Heights, but ultimately it will be Indigenous communities that will be faced with the prospect of having facilities like this in and around their country for very significant periods of time. It seems to me that their interests ought to be given appropriate consideration and that, under this legislation in particular, despite the fact that the Northern Land Council has had an interest in seeing this legislation come into the parliament, the broader Indigenous interest of communities is not being met.

Labor has opposed this bill for a number of reasons, but I think it is worthwhile reviewing the history in some detail and pointing out the statements that various ministers have made over time in relation to the storage of waste and what the Commonwealth’s approach would be to a waste dump. On 24 January 2005, the then Minister for Education, Science and Training, Dr Nelson, specified particularly that the Commonwealth would prioritise an offshore site for a waste dump. He said:

So the Australian government will be looking at an offshore facility, that is our clear preference.

That was a very clear statement by a senior government minister who had responsibility at that point in time. In fact, he said:

We are determined that it will be an offshore facility but we are also concurrently looking at a ‘remote’ area, a long way away facility, to store intermediate and low level waste should the offshore site not be available.

There is no question that he was giving himself a get-out-of-jail card when he made that statement. It was grossly irresponsible of Minister Nelson at that time to start suggesting as he did, almost unilaterally, that there would be the prospect of the storage of medium-level or high-level waste in offshore islands or on Commonwealth land somewhere off the coast of Australia. Clearly, he was flying a kite to take away the very real political heat that the government has felt on this issue in the NT.

Senator Ian Campbell, just prior to the 2004 election, specifically ruled out the Northern Territory for a dump site. He said:

The Commonwealth is not pursuing any options anywhere on the mainland—

he also had the offshore option in mind—

so we can be ... categorical about that, because the Northern Territory is on the mainland—

A small geographical lesson from Senator Campbell, just to point out to us exactly where the Northern Territory was. Then later, of course, the member for Solomon, Mr Tollner, also ruled out the Northern Territory as a host for the Commonwealth waste dump. As late as June 2005, he said:

There’s not going to be a national nuclear waste dump in the Northern Territory … That was the commitment undertaken in the lead up to the federal election and I haven’t heard anything apart from that view expressed since that election.

It could not be clearer: a succession of government ministers and government members have completely misled the Australian public, the people of the Northern Territory and, in particular, Aboriginal communities about what the likely consequences were of them making a decision to determine where radioactive waste would be disposed. And they have had absolutely no qualms about doing that.

That is of enormous regret. In particular, it is of enormous regret because the Australian population is now faced with the prospect of increasing amounts of radioactive waste being generated by Mr Howard’s dreams of a nuclear energy industry ramped up to the max, some 25 reactors that have been posited as possible by the Switkowski review and report, and, of course, the question then of where the waste that is generated by these reactors ultimately will go. What confidence can Australians have—whether they are in New South Wales, Victoria, South Australia, Western Australia and so on—in anything that the government says about nuclear matters and, in particular, about the critical issue of where waste will be disposed of and how it will be stored, if in fact its assertions in the past have been proven to be totally false?

It is a matter of history that the government abandoned its search for an offshore site, which I suspect did not take much time, effort or energy, and announced on 15 July that it would investigate three locations in the Northern Territory. In late 2005, the Howard government completed parliamentary passage of the legislation and imposed a site selection, construction and operation of a waste dump on the Northern Territory. That was in complete contradiction to its pre-election commitments and in the face of considerable, and I think justified, opposition from the Territory government and local communities. I must stress here that Labor accepts that there is a need to find a safe repository for these existing wastes but that it has very grave concerns about the process that has been adopted by the federal government, including the processes that are part of the amendment that has come into the House and that we are debating today.

The purpose of the Commonwealth Radioactive Waste Management Act 2005 was to put beyond doubt the Commonwealth’s power to conduct those activities relating to siting, construction and operation of a radioactive waste facility. The purpose of the provisions is to prevent local individuals or communities, representative bodies or even state or territory governments from being able to undertake legal objections to the Commonwealth’s action which may delay the project. Labor did oppose the 2005 bill on a number of grounds, including those that I have mentioned: that it broke the government’s pre-election promises; that it overrode many federal legal protections including the then Environment Protection and Biodiversity Conservation Act, the Aboriginal and Torres Strait Islander Heritage Protection Act, the Native Title Act and the Lands Acquisition Act; and that it was literally refusing to listen to the concerns expressed by Northern Territorians, including a group of Indigenous people who came and visited the parliament and met with a number of parliamentarians, including me, at that point in time.

Additionally, we opposed the legislation because it destroyed any recourse to procedural fairness provisions for anyone who wished to challenge the minister’s decision. Also, and I think importantly, the fact that the legislation did not contain the capacity for proper consultation and proper public community involvement in determining how, why, in what manner and in what form waste would be imposed upon a community meant that those matters were not considered at all.

The original CRWM Act provided for assessment of three potential sites—Fisher’s Ridge, Hart’s Range and Mount Everard. I know the Mount Everard site in some detail. I have some real concern about the desirability of all of them but about that site in particular, which I have addressed in the House previously. Additional land nominations provisions were inserted by way of amendment by the member for Solomon. These provisions were to allow for the land to be nominated for assessment as a possible site for a facility by the NT Chief Minister or the Northern Land Council.

The Department of Education, Science and Training have acknowledged in Senate estimates that they have been undertaking discussions with the NLC on possible nominations of additional sites. The government stated that the bill addresses concerns raised by the NLC in relation to nominating a site under the CRWM Act. If not addressed, the NLC may be unwilling to nominate a site should a community within its jurisdiction wish to volunteer its land. Departmental officers have not denied that the objective of this bill is to do that—to facilitate a site nomination from the NLC. Importantly, this goes against the previous Tollner amendment, which included provisions that a process of nomination by a land council should demonstrate evidence of consultation with traditional owners, that they have consented as a group and that any community or group that may be affected has been consulted and has had an adequate opportunity to express its views.

The new section 7(5A) provides that a failure to abide by what are currently binding rules of nomination will not affect the validity of a nomination. Yet again, it is really window-dressing—laying in place a political solution to a political problem but not providing a policy or a procedural solution to what is a deeper issue, which is the requirement and the necessity for there to be adequate and comprehensive consultation, particularly for Indigenous people whose lands or whose attachment to land may be affected in that way.

The Northern Land Council’s full council resolution of October 2005 provided a mandate for the council to continue its further discussion with the government. I will summarise it briefly, given the time. It says that the NLC supports the amendment provided that:

(i)

traditional owners of the site agree;

(ii)

sacred sites and heritage are protected ...

(iii)

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

Clearly that is not the case with the legislation that is in front of us. It continues:

(iv)

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

But the provisions of the bill that we are debating today are in opposition to that. They do not permit that to happen, and they also contradict the commitments to the parliament by the Minister for Education, Science and Training in her second reading speech when she said:

Current provisions of the act set down a number of criteria that should be melt if a land council decides to make a nomination.

…         …         …

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

But of course she can do the complete opposite if she so chooses. Again, it is a cascade of words, of processes and of amendments which have a very simple effect—to deny the capacity for an Aboriginal community to assert their necessary rights and their involvement in a process of this kind.

In the time that is left to me, I want to make a further reference to the question of the safe disposal of radioactive waste and nuclear waste generally. I simply remark that we are having a debate about whether or not Australia should embrace the nuclear option as a means of generating its energy into the future on the basis that it would be environmentally safe and that it would not impose additional economic costs on the community by way of the taxpayer meeting insurance, underwriting construction, organising soft loans or providing for write-offs in the event that a project should go horribly wrong. If the government is serious about pursuing this policy ambition and does not take into account the likely consequences of the increasing transit of nuclear material within Australia and overseas then it will find that the Australian people will not support the direction.

We should consider the very difficult processes in this country that attach to properly regulating and ensuring the safe disposal of the already existing low- and medium-level wastes—which are quite low in volume—and the amount of regulatory oversight that is necessary. The only way that the government has been able to secure some possible short-term solution to the issue it faces with the nuclear facility at Lucas Heights in getting up and running in its second phase and their meeting licensing requirements in finding a location for that waste is to impose a waste dump on Aboriginal people and communities in the Northern Territory. This sets an extremely poor precedent for future processes when we will have much greater volumes of radioactive waste if the Howard government’s plans for a nuclear Australia proceed. I am confident that most Australians do not want a future of that kind. We reject this legislation and we reject Mr Howard’s nuclear future.

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