Scott Ludlam (WA, Australian Greens) Share this | Hansard source

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.