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

I move Greens amendment (8) on sheet 7037 on the new running sheet:

(8)   Page 10 (after line 30), after Division 2, insert:

Division 2A—Requirements for ministerial decisions

8A Application of Division

(1)   This Division applies to each decision to be made by the Minister in relation to the nomination, selection and approval of sites under this Act, including (but not limited to) each of the following:

  (a)   a decision to make a declaration under section 6;

  (b)   a decision to approve land, or a specified part of land, under section 9;

  (c)   a decision under subsection 14(2) to declare that a site, or a specified part of a site, is selected as the site for a facility;

  (d)   a decision under subsection 14(2) to declare all or some of the rights or interests in the selected site;

  (e)   a decision under subsection 14(4) to declare that all or specified rights or interests in land are required for providing all-weather road access to a site;

  (f)   a decision under section 17 to revoke a declaration made under subsection 14(2).

(2)   A decision to which this Division applies is of no effect unless the requirements of this Division are met.

8B Requirements in relation to decisions

(1)   A decision to which this Division applies must comply with the provisions of this section.

(2)   Before the Minister makes a decision, the Secretary of the Department must:

  (a)   publish on the department's website a notice:

     (i)   setting out the nature of the decision; and

     (ii)   inviting persons to make submissions to the Minister about the decision within 42 days after the notice is published; and

  (b)   send to each stakeholder a notice:

     (i)   setting out the nature of the decision; and

     (ii)   inviting stakeholders to make submissions to the Minister about the decision within 42 days of the date of the notice; and

  (c)   publish on the department's website a copy of each submission received under this section.

(3)   In making a decision, the Minister must:

  (a)   have regard to the submissions in relation to the decision received under subsection (2); and

  (b)   actively consult stakeholders.

(4)   In making a decision, the Minister must have regard, but is not limited, to the following criteria:

  (a)   existing infrastructure;

  (b)   seismology;

  (c)   hydrology;

  (d)   community consent;

  (e)   international best practice;

  (f)   such additional criteria (if any) as are specified by the Minister under subsection (5).

(5)   The Minister may, by legislative instrument, specify additional criteria in relation to a decision for the purposes of paragraph (4)(f), but must not apply those criteria in making a decision until either:

  (a)   the period for the disallowance of the instrument has expired in each House of the Parliament; or

  (b)   the instrument has been approved by resolution of each House.

(6)   The Minister must cause a report to be prepared setting out the reasons for making a decision.

(7)   The Minister must cause a copy of each report prepared under subsection (6) to be presented to each House of the Parliament at least 28 days before the decision to which the report relates takes effect.

The National Radioactive Waste Management Bill retains the Muckaty site nomination, which all senators are well aware was chosen without procedural fairness or any ability to review the minister's decision under the Administrative Decisions (Judicial Review) Act 1977. These amendments reinstate procedural fairness and judicial review over the Muckaty nomination. The government have made a great deal of this in trying to run the fiction that they have in fact repealed the former Howard legislation. One of the minister's great claims was that procedural fairness and judicial review were reinstated. I will deal with the procedural fairness first.

There are no rights whatsoever for persons other than those with an interest in the land to make a submission under the terms of this bill. It is likely that people will miss notification of the submission right given that there is no requirement for any details to be provided in the notification that would identify what it was actually about. Providing rights to be heard in the written form is actually quite prejudicial to Aboriginal people, who, in the instance of Muckaty at least, will be the people primarily concerned about the potential for this project to go ahead. But the key thing really is that there are no objectives or criteria in the legislation or in the minister's decision, so it is not possible for a person to know what to make a submission about. There are no criteria by which to guide the minister's hand. There is no right for a person to see information on which the minister will base his decision—for example, anthropological studies and so on—and the minister is free to be as biased as he likes, and literally make a decision on the flip of a coin. The point I am making is that it is all very well to say that we will have procedural fairness, but there is nothing in the bill that actually mandates for it. It is nice that the words are back in there again, but essentially there are no teeth to those provisions in the bill and these Greens amendments seek to reinstate those.

The claim that judicial review is reinstated is similarly misleading. The bill continues the essential and intentional design feature of the 2005 act in ensuring that there are no grounds on which a judicial review can be based and no access to information on which to base a review. For judicial review to actually have teeth, the minister would need criteria on which to be judged to have failed. We would need some way of saying, 'The minister, in my view, did not do what he was supposed to do, did not do what the bill mandated he do, and therefore there are grounds for review.' Of course, if there are no criteria, as there are not—if it just the minister sitting in a room by himself making up his mind—then there is no possibility of judicial review proceedings getting anywhere near a court. In the context of this uniquely defective piece of legislation, the term 'procedural fairness' is, I gather, by the government, interpreted to mean the ability to make a submission to the minister, which he is then free to ignore. I commend these amendments to the Senate.