Ursula Stephens (NSW, Australian Labor Party, Shadow Parliamentary Secretary for Science and Water) Share this | Link to this | Hansard source

The Commonwealth Radioactive Waste Management Legislation Amendment Bill 2006 before the Senate today amends the Administrative Decisions (Judicial Review) Act 1997 and the principal act, the Commonwealth Radioactive Waste Management Act 2005, to make land nominations—as distinct from decisions—non-reviewable under the ADJR Act; provides that failure to comply with the site nomination rules in the CRWM Act will not affect the validity of the minister’s approval of a nomination; and removes any entitlement to procedural fairness in relation to the nomination of a site.

The bill also amends the principal 2005 act to provide for the return of nominated Aboriginal land used for a radioactive waste management facility when no longer required for the facility and indemnifies traditional owners following the land return against any damages claims arising from the use of the land for a facility.

Labor will oppose this bill. This is the latest instalment in a series of three extreme, arrogant and heavy-handed bills. Labor will defend the right of communities, including Indigenous communities, to be properly and fully consulted before decisions are made about the location of radioactive waste dumps. This bill continues the Howard government’s sneaky and misleading practice of removing the voice of local communities in the government’s campaign to impose a waste dump on the Northern Territory. This campaign should be seen for exactly what it is: a pointer to the methods the Howard government intends to use in imposing nuclear power stations and high-level waste dumps on unsuspecting communities right around Australia; tricky tactics, like denying its real intentions before an election then springing it onto a community straight after; and misusing parliamentary numbers to override every legislative right, every protection and every safeguard normally available to everyday Australians when they want to have their say on government decisions that affect them.

To begin with I want to remind the Senate of the circumstances underlying the 2005 bill pushed through this parliament late last year. The stated purpose of the Commonwealth Radioactive Waste Management Act 2005 was to put beyond doubt the Commonwealth’s power to conduct activities relating to siting, constructing and operating a radioactive waste management facility in the Northern Territory. The 2005 act contains a number of provisions excluding procedural fairness in relation to selecting a site for the facility. The Commonwealth Radioactive Waste Management (Related Amendments) Act 2005 excludes application of judicial review under the ADJR Act to the minister’s decision on a facility site. Labor opposed the 2005 bills on a number of grounds, all of which remain relevant today.

The government’s acknowledged purpose for these provisions is to prevent local individuals or communities, representative bodies or state or territory governments from being able to undertake legal objections to the Commonwealth’s actions, which might delay the project. The government stated at the time of the parliamentary debate that these provisions give the Commonwealth some certainty, subject to normal regulatory processes, of having a facility operating by 2011 when repatriation of spent fuel reprocessing waste from the United Kingdom is currently due to commence.

Labor does not oppose the establishment of a nuclear waste facility per se; indeed, Labor explicitly agrees that there is a need for a properly sited, properly operating facility to securely handle and store the low- and intermediate-level waste produced by the use of radioactive materials for research, industrial, health and medical purposes. However, Labor firmly remains of the view that the siting, establishment and operation of such a facility needs to be done in an open and transparent way, in full consultation with local communities and with the relevant state and territory governments. Such a process would be in full compliance with the recommended approach set out by the International Atomic Energy Agency. The original 2005 act was for assessments of three potential sites, on defence land, for the Commonwealth waste dump—those being Fishers Ridge near Katherine; Harts Range, 200 kilometres north-east of Alice Springs; and Mount Everard, approximately 42 kilometres north-west of Alice Spring—but this bill makes those provisions more difficult.

I turn to the specific provisions of the amendment bill before the Senate. They all relate in one way or another to the nomination process placed in the bill by the member for Solomon late last year. While the Minister for Education, Science and Training chose not to reveal this important fact in her second reading speech to the House, the Senate statement of reasons for introduction briefly states the circumstances which have led to the drafting of this bill, namely:

The bill addresses concerns raised by the Northern Land Council (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.

When the opposition made inquiries of departmental officers as to the nature of the concerns raised by the Northern Land Council, apparently no further information could be made available. Therefore I seek a response from the minister, when closing this debate, on the nature of the concerns raised by the Northern Land Council so that the Senate can decide for itself whether the bill before us properly meets the concerns raised.

The acknowledged purpose of the legal challenge provisions of the 2005 act is to prevent local individuals or communities, representative bodies or state or territory governments being able to undertake legal objections to the Commonwealth’s actions which may delay the project. Due to the late consideration of the Tollner amendments, departmental officers advise that the same protections against legal challenges to the Commonwealth’s actions were not applied consistently to the site nomination procedures inserted by the Tollner amendments. In effect, the provision of the bill before us today will extend the current protection from judicial review even further to the processes and decision making of the land councils in the Northern Territory, who are statutory agencies for the purpose of the ADJR Act. Similarly, the bill proposes to extend the current provision that no person is entitled to procedural fairness so as to ensure that it applies to the nomination of a site as provided for by the Tollner amendments to the principal act. Labor opposed the corresponding provisions in the 2005 bill on the grounds that they were a heavy-handed attempt to remove important rights to judicial scrutiny and review from the site decision-making process, and Labor will oppose the provisions of the current bill which remove those same rights from the nomination decision-making process.

Before I turn to the third specific set of provisions of the amendment bill before the Senate relating to the rules of nomination, the Senate needs to consider the nature of the amendments to the 2005 bill moved from the floor on 1 November last year by the government member for Solomon, Mr Tollner, which the government supported into law. These were the 30 pieces of silver that the government threw the member for Solomon to get him to recant his pre-election promise that the Northern Territory would not have a radioactive waste dump foisted on it.

Those amendments provided for the Northern Territory Chief Minister and Aboriginal land trusts or land councils to nominate potential sites for the waste dump in addition to the three sites set out in that bill. Given that the Chief Minister has always been and remains implacably committed to representing her community’s opposition to this waste dump being imposed on the Territory, these amendments were clearly designed to smooth the way for a nomination by a land council. Given that the Central Land Council also remains utterly opposed, that only leaves the Northern Land Council as a realistic possibility.

Included in the amendments moved by the member for Solomon was a set of criteria or rules against which such a nomination should be judged, including provisions that the process of nomination by a land council must demonstrate evidence of consultation with traditional owners, that the traditional owners must understand the nomination, that they have consented as a group and that any community or group that may be affected has been consulted and had adequate opportunity to express its view. Interestingly, the member for Solomon chose not to inform the House why he chose to deem valid those particular rules for nominations.

I turn now to the clauses of the bill which address the issue of potential invalid nominations made under those provisions inserted into the principal act by the member for Solomon—which I will call the Tollner amendments. There are two ways any nomination of land for a radioactive waste dump would be made invalid: through procedural inadequacies or—a more substantive issue—by a failure to comply with the rules of nomination so carefully inserted by the member for Solomon. Given that procedural inadequacy, such as not lodging such a nomination in writing, is extremely unlikely, we can only conclude that the only likely noncompliance of any future nomination relates to those nomination rules. In other words, this bill proposes to validate a nomination which otherwise would be automatically ruled invalid for ministerial consideration. So the fact that traditional owners have not been informed of the nomination, did not properly understand that their land was being nominated or had not consented to the nomination—or the fact that other affected communities or groups, such as those in neighbouring lands, have not been consulted or given an opportunity to express their view—can no longer invalidate a nomination.

The bill before us proposes a new section 7(5A), which provides that a failure to abide by these currently binding rules of nomination will not affect the validity of a nomination. In effect, these statutory rules would become mere guidance, because a failure of the minister or land council to abide by these rules will not render a nomination unacceptable. A site could still be nominated and accepted even though traditional owners do not know it has been or do not agree with it being used to dump radioactive waste.

In addition, it is important to recognise that this provision would remove the current statutory right of affected neighbouring communities or groups to be even consulted or to express their view. Given that under the Tollner amendments these groups are not required to consent to the proposed nomination, the provision aims squarely to block their statutory right to even express a view. As well as being an almighty slap in the face for the member for Solomon through this outright repudiation of his rules of nomination, the Howard government has also completely backtracked on its own rhetoric about fully consulting with, and achieving informed consent from, all affected local communities and groups—in particular, the Indigenous traditional owners of any nominated sites.

The provisions of the bill in this regard are a direct contradiction of the minister’s own commitments to the parliament in her second reading speech on this bill in which she stated:

Current provisions of the act set down a number of criteria that should be met if a land council decides to make a nomination. Importantly, these criteria include that the owners of the land in question have understood the proposal and have consented to the nomination, and that other Aboriginal communities with an interest in the land have also been consulted.

And she emphasised:

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

The minister’s words in her second reading speech are just that—hollow, condescending words. Faced with the clear intent and outcomes of the bill before us, the minister’s contradictory commitment in her speech is simply meaningless rhetoric providing no comfort whatsoever to traditional owners or their representatives.

Importantly, the outcome of the proposals contained in this bill are also in conflict with the Northern Land Council’s full council resolution of October 2005 which provided a mandate for the Northern Land Council’s further dialogue with the government on a possible nomination. The resolution stated:

The Northern Land Council supports an amendment to the Commonwealth Radioactive Waste Management Bill 2005 to enable a Land Council to nominate a site in the Northern Territory as a radioactive waste facility, provided that:

(i)

the traditional owners of the site agree;

(ii)

sacred sites and heritage are protected (including under current Commonwealth and NT legislation);

(iii)

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

(iv)

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

Given the clear intent of this resolution, there is a serious question to be asked here: has the Northern Land Council approved the proposal to remove the mandatory nomination rules which closely parallel their own requirements? In effect, the current bill proposes to relegate both the Northern Land Council’s resolution and the nomination rules inserted by the government’s own member for Solomon into irrelevance, and they will be opposed by Labor as an important matter of principle.

We need to be very clear about this. Under this bill, traditional owners or affected persons will have no enforceable rights to be even informed of such moves—to ensure that the implications are fully understood—or to give or withhold consent for their traditional lands, which can be compulsorily acquired and used for the handling and storage of radioactive waste for at least 300 years. And, as if that is not enough, they will have no enforceable right to get their land back once the Commonwealth’s use of it as a waste dump has concluded, because the bill simply provides that it may be handed back.

All traditional owners, all of their representative groups and all Northern Territorians should understand this point. The Howard government is intent on making sure that you cannot express your views and that you have no rights, no legal review avenues, no informed consent and absolutely no say in its blind pursuit of being able to dump nuclear waste in the Northern Territory.

I want to now turn to the provisions of the bill relating to the return of that land to the original Indigenous owners. Section 119 of the Lands Acquisition Act 1989 allows the Commonwealth to dispose of Commonwealth land. However, the department has advised the opposition that there is some legal doubt that this power allows the Commonwealth to grant land title with the same status as land granted under the Aboriginal Land Rights (Northern Territory) Act 1976. Accordingly, the government argues that the provisions of this bill are necessary to ensure that, where acquired land is Aboriginal land immediately before the acquisition, such land may be returned with the same status as Aboriginal land.

The department has indicated that any site chosen will be required for the operations of a waste facility for at least 100 years and that, even when waste is no longer being accepted into the site, it will need to be closely monitored for a further 200-year period. So any possible return of land to original owners will not take place for at least 300 years. However, legal advice received by the opposition indicates that the proposed provision is not legally necessary as the government of the time could simply hand the land over to traditional owners under the provisions of the land rights act if it applies at the time.

Under this bill the government does not have to make any such hand-back but simply provides for a hand-back should the minister of the time determine that it is safe to do so. It appears that this bill is simply providing some political cover for the Northern Land Council should they make a nomination and subsequently face criticism for giving away hard-won ownership of traditional lands for three centuries or more.

This is an extraordinarily bothersome piece of legislation and Labor is not supporting it. The government’s history in relation to the nuclear waste facility in the Northern Territory gives us a real indication of how they propose to move on nuclear issues at large and in taking Australia much further down the nuclear road, with 25 nuclear power stations and radioactive waste dumps. If the Howard government cannot consult, cannot build community consensus, cannot leave important legal rights untrampled and cannot gain the informed consent of Indigenous people for a low- and medium-level waste facility, what hope do we have that they can comply with best-practice guidelines in relation to nuclear power and the resulting radioactive waste? Labor will not support this bill. I move:

Omit all words after “that”, substitute:

        “but the Senate:

        (1)    Condemns the government for:

             (a)    the continuing arrogant approach imposing a nuclear waste dump on the people of the Northern Territory without proper scientific assessment and consultation processes;

             (b)    broken election commitments to not locate a waste dump in the Northern Territory;

             (c)    overriding many federal, state and territory legal protections, rights and safeguards;

             (d)   destruction of any recourse to procedural fairness provisions for anyone wishing to challenge the Minister’s decision to impose a waste dump on the people of the Northern Territory;

             (e)    continuing and aggravated disregard of the International Atomic Energy Commission’s recommendations on good social practices like consultation and transparency in relation to nuclear waste;

              (f)    their failure to deliver a national waste repository after ten long years in government.

        (2)    In light of the Howard Government’s imposition of a nuclear waste dump on the Northern Territory community, and the recent High Court decision in the work choices case, expresses deep concern that the Howard Government will override community objections and state and territory laws to impose nuclear reactors and high level nuclear waste dumps on local communities across Australia”.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I rise today to oppose the Commonwealth Radioactive Waste Management Legislation Amendment Bill 2006 and to put it in the context of the Howard government’s nuclear agenda for Australia, because it has to be seen in that context. The government is currently working on three separate fronts to advance the cause of George Bush’s Global Nuclear Energy Partnership. That is what we are talking about here today. Earlier this year, in 2006, President Bush announced his grand nuclear vision for the world: the US would set up a number of nuclear fuel supply centres around the world, they would produce the nuclear fuel, it would be leased to other countries and then those nuclear fuel supply centres would take back the waste.

Up until that point, the Howard government’s total nuclear agenda had been about expanded uranium mining. That is something that a large number of Labor Party supporters and members object to. But others in the party, like Mr Martin Ferguson, actually want that to occur. That debate will happen at the ALP conference next year. Either way, up until President Bush’s announcement earlier this year, the government’s agenda had been expanded uranium mining and exports to China, Russia and anywhere else they could get away with sending it to. That included a debate about whether they would sell it to India, even though India is not a signatory to the nuclear non-proliferation treaty.

In May this year Prime Minister Howard went to the United States, where he had a meeting with President Bush and was told that, if Australia did not engage in President Bush’s Global Nuclear Energy Partnership, Australia would not be invited to meetings at the table. That was a horrendous indication to Prime Minister Howard that he would not be part of George Bush’s grand plan. It was from that point that things changed.

What facilitated the change was the role of someone whose name is not on the lips of most Australians—in fact, they have never heard of him. But they should hear of him. He is Dr John White, chairman of the federal government’s Uranium Industry Framework. He is also head of Australian waste company Global Renewables, which is a strange name for essentially a nuclear waste dump management company.

Dr White went to Washington at the same time that Prime Minister Howard was there. He is the person who links all of these politicians. In an interview with an Australian journalist with regard to Australia setting up a nuclear waste dump to take high-level nuclear waste from around the world—in particular, from the US—this is what he had to say:

If we agree to do this for America, we will never again have to put young Australians in the line of fire. We will never have to prove our loyalty to the US by sending our soldiers to fight in their wars, because a project like this would settle the question of our loyalty once and for all.

Of course, the project he was talking about was the nuclear waste dump in Australia—a waste dump to be developed by an international consortium of nuclear experts, US think tanks and businessmen from around the world. It fed into the Prime Minister’s nuclear task force and into the House of Representatives report on nuclear energy, which came out yesterday.

The interesting thing is that Mr White, the chairman of the Prime Minister’s Uranium Industry Framework, has already spent $45 million developing an Australian nuclear fuel leasing company, which would facilitate and manage enrichment, fabrication, leasing, transport and storage of 15 to 20 per cent of the world’s nuclear fuel needs. This person has a very grand vision for Australia as a global waste dump.

We are now seeing all of this coming to fruition via the Howard government’s legislation. Let us go through it. We have already had the ANSTO legislation through this house. What did that do? Firstly, it gave to ANSTO the power to manage nuclear waste dumps in Australia and, secondly, it gave to ANSTO the capacity to accept the management of waste generated outside Australia, not from within Australia.

Then we have the EPBC amendments before this house. What they do is set up a number of loopholes which would allow the federal environment minister not to examine a nuclear waste dump proposal under the environmental legislation of this country. They do that by saying that if the minister determines that a nuclear waste dump is consistent with the principles of a bioregional plan then it would not have to be assessed, could be the subject of a ministerial declaration and could be the subject of a partnership arrangement. Of course, in this case the way in which a nuclear waste dump is being envisaged by Mr White, and no doubt the Howard government, is that it would be a private sector investment. In fact, the Prime Minister’s task force report said that any nuclear enrichment facility in Australia would not see Australian companies managing it, that there is a very high entry level, that it is likely that it would be managed by multinational corporations and that either a UK or a US company would be facilitated in that regard.

Then we have the report of the House of Representatives Standing Committee on Industry and Resources released yesterday. What does it say? I am very pleased that Senator Stephens has stated clearly that a Labor government would not overrule consultation with Indigenous people because, unfortunately, three Labor MPs signed on to this report: Mr Martin Ferguson, Mr Dick Adams and Mr Michael Hatton. They have signed on to a report that, at recommendation 9, says:

The Committee recommends that the Australian Government, through the Council of Australian Governments, seek to remedy the impediments to the development of the uranium industry identified in this report and, specifically ...

• ensure that processes associated with issues including land access, Native Title, assessment and approvals, and reporting are streamlined …

Here we have three Labor MPs signing on to a government report which says ‘get rid of the impediments’, which is code for saying, ‘get rid of native title legislation in this country that might hold up our nuclear ambitions and particularly our nuclear waste dump.’ So I am glad that the Labor Party has got this amendment in here. And I hope that the new leader of the Labor Party will pull Mr Ferguson, Mr Adams and Mr Hatton into line, because what they are doing is undermining the capacity of traditional owners to exercise the ownership rights that they have over their land. It flies completely in the face of all the talk from the new leader about community rights, public participation and so on.

Also in the House of Representatives report we have further proof that the whole Global Nuclear Energy Partnership—the George Bush plan, the John White plan and the Uranium Industry Framework plan—is alive and well. Recommendation 12 recommends that the Australian and state governments:

... examine whether, in light of the advances in spent fuel management proposed in the GNEP initiative, there is in fact a potential role for Australia in the back-end of the fuel cycle ...

‘Back-end of the fuel cycle’ is code for ‘nuclear waste dump’. That is also something that the three Labor members signed on to and, of course, it supports the government’s total initiative in this regard.

Sadly, they also signed on to the ludicrous proposition that there be a community education campaign that is nothing other than a propaganda campaign to be put through Australian schools. Specifically, the report recommends that the government:

... seek to rectify any inaccuracies or lack of balance in school and university curricula pertaining to uranium mining and nuclear power ...

In other words, ‘Let’s run a propaganda campaign through Australian schools to promote nuclear power.’ The government should, the report goes on to say:

• encourage companies to conduct programs of visits to uranium mines for teachers, school groups, media representatives and political leaders; and
• encourage industry to be forthright in engaging in public debate, where this may assist in providing a more balanced perspective on the industry and its impacts.

As soon as you see the words ‘balanced perspective’ used in relation to the curriculum you know that it means the government’s view is underrepresented. So what you have is Prime Minister Howard’s vision for the country whereby you do not get school funding unless you have a flagpole in the front yard, and you do not get school funding unless you teach history—and the history that you teach is the John Howard version of history. And now we have a curricula directive on putting in a nuclear education campaign. I wonder if the version of history that is going to be taught in Australian schools will include the hideous nuclear accident at Chernobyl, the use of nuclear bombs at Hiroshima and Nagasaki or, indeed, the current nuclear arms race that is going on around the world. Or will that be deemed to be not ‘balanced’ in the curriculum that is envisaged?

And so I come to the current legislation, which we now have before us, the government having already given ANSTO the right to manage the dumps and take back waste from overseas and having brought in amendments to the EPBC. Interestingly again, the House of Representatives report recommends that the EPBC should be amended to abolish the prohibitions that relate to nuclear facilities which are already in the EPBC. The report says to abolish them, so the Labor members signed on to the abolition of those particular clauses in the current legislation.

Now we have before us a bill which does three things. First, it says that if a waste dump is put forward it can be accepted as an appropriate nomination even if it has not complied with the requirements of consultation under the Native Title Act and other provisions associated with Aboriginal rights. It says quite clearly, ‘It does not matter if you haven’t consulted the traditional owners, if they haven’t given prior consent and if they do not understand; you, as the minister, are quite within your rights to accept it as an appropriately nominated site.’

Second, the bill goes on to say, ‘Having accepted the nomination on that basis you can approve that nomination and be exempt from judicial review if the judicial review relates to procedural fairness.’ So we have abolished procedural fairness. I find it extraordinary that any government could come in here—having already done this time and time again in relation to Indigenous people—and extend the abolition of procedural fairness to the issue of nuclear waste dumps and the approval of those dumps and then say it is exempt from judicial review.

All you are going to do is block up the High Court. That is what will happen. That is what happened under immigration law. When you tried to remove procedural fairness it ended up as a prerogative writ case in the High Court, and that is precisely what is going to happen here. If you think that taking away these rights in this matter is going to stop Indigenous people standing up for their own rights, and advocacy groups working with Indigenous people and helping them to take it to the High Court, then you are sadly mistaken. That is where this is going to be fought out, and I do not think the High Court will appreciate the fact that, once again, you have shoved a whole new workload up to the High Court because you have abused due legal process.

There are fundamental principles in the law and procedural fairness is one of them. The right to judicial review if you have been denied procedural fairness is a basic tenet of law. It demonstrates what hubris has set in in the Howard government—that it should take away and try to deny people the most fundamental rights they have in a democracy. And it will go to the High Court with one of the prerogative writs. We will see that occurring when the government moves on this agenda.

Third, the Commonwealth Radioactive Waste Management Legislation Amendment Bill 2006 says that the government has a discretionary right or ability to return to Indigenous people any nominated waste site that has operated as a waste dump. You know how that is going to play out. It will be managed, for as long as it is profitable, by a private company. And then as soon as it is no longer profitable—as soon as liability issues kick in and vast amounts of money have to be paid in liability claims—the government will exercise its discretionary right to hand back the mess to Indigenous people. The government will hand Indigenous people back their own land, degraded by the onslaught and assault on the spiritual integrity of the land by a waste dump, and then say, ‘Here, you can have it back; we’ve finished with it and we don’t want to engage in and have to put up with the liability issues.’

Earlier this year I went to one of these prospective sites—Mount Everard in the Northern Territory—and I spoke to some of the traditional owners. They took me to where the proposed site is going to be. They told me what an affront it will be to their cultural integrity if that site is undermined and destroyed by what the government intends to do. Even then they only had a vague idea of what a nuclear waste dump might be like. Unlike in the United States, where there have been huge cases—huge protests about the Yukka Mountain site—these Indigenous people have no idea of what is coming their way. In fact, they were flown down to Sydney to look at Lucas Heights and told, ‘There you are; it is just going to be a small repository taking this. Don’t worry, this’ll all be sorted. No problem here.’ What the government is doing with this decision to impose on Indigenous people a radioactive waste dump is completely dishonest and disingenuous.

So when I see the collective of what the government is doing I have to stand in the Senate and ask myself about the state of democracy in Australia under a Howard government, which is using its majority power in both houses to undermine the fundamental principles of law, the fundamental principles of participatory democracy and the fundamental principles of fairness. I can see that people are amused by this. I can see advisers in the box amused by the notion that this is my view of the world. Well, it is how I see it. I happen to have sat out there with Indigenous people and shared with them and listened to their stories about how they are feeling about this assault on them and their land without consultation and prior consent.

I do not know how anybody who says that they embrace Australian and family values which relate to fairness, decency and honesty, could bring in a piece of legislation—on top of the other two lots of legislation—which is setting up the whole process for the Howard government to go down the path of expanded uranium mining and taking back high-level waste.

What happens with enrichment in the middle, with fuel fabrication and transport remains to be seen. I have always thought that the nuclear reactors issue was just a distraction from the main game, but I know that Prime Minister Howard is locked in with President Bush to the Global Nuclear Energy Partnership. The key to who is facilitating all this is John White of the Uranium Industry Framework. Those linkages needed to be examined here, and I hope that when history looks at the fact that the government was able to force this legislation through the Senate, when a waste dump site is selected, when it does not comply with consultation with Indigenous people, when it is approved, having taken away procedural fairness and judicial review and when it ends up in the courts and there are protests around the country, people might recognise the damage that has been done to democracy in this country by a majority Howard government. That is why I will be opposing this legislation.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I too rise to speak on the Commonwealth Radioactive Waste Management Legislation Amendment Bill 2006. This is an extraordinary bill. It paves the way for the Commonwealth to take away native title rights, in essence, in order to site the very unpopular national radioactive waste facility in the Northern Territory. Like much of what is happening here, where legislation is being rammed through, where legislation is being pushed through very short inquiry processes, this is ramming through a proposal to put a radioactive waste dump in the Northern Territory, despite the objections of those traditional owners who oppose it.

I agree with Senator Milne that this is part of a much bigger picture. This is about bringing Australia into the nuclear cycle. It is pretty obvious that the government is not prepared to ban high-level waste at this dump. I recall Democrats amendments that have been put up to that effect being opposed by the government. It is in the same week that the House of Representatives Standing Committee on Industry and Resources tabled its report, which is full of glowing recommendations about us engaging in everything from enrichment to uranium leasing, whereby we would take back waste from countries that use our uranium in order to generate electricity. So it is an extraordinary time. It is a bit like a tsunami that has hit this country. We were, for a time, a country that wanted nothing to do with nuclear power. We were strongly opposed to nuclear weapons proliferation. We were very careful, as much as one can be, about where our uranium went around the world—not considering countries like China, which has not signed the comprehensive test ban treaty, and certainly not considering India, which has also not signed the non-proliferation treaty.

In the last few years we have seen more and more nuclear weapons grace the world, if I can put it that way. In fact, there are almost as many now as there were when the non-proliferation treaty was signed more than 30 years ago. So it feels like Australia is becoming very engaged in nuclear matters, whether it is expanding uranium mining, whether it is contemplating enrichment, whether it is setting ourselves up as a waste dump for the rest of the world. There are parts of this picture that are now starting to come together which I think Australians are very concerned about. However, back to the bill.

As I said, what this bill allows is for this site to be imposed on communities that do not want it. It removes procedural fairness, it removes a whole lot of processes that might have come to play had this bill not been introduced. We can all see that it is going to pass; the government obviously has the numbers, so it is hardly going to be a surprise. But the fact of the matter is that traditional owners will not have any right of appeal against the arbitrary decisions of land councils or of the minister. It is currently mandatory for land councils to consult and receive consent from traditional owners about the intended uses of their land. But all that goes now, because the government wants no delays whatsoever in imposing its radioactive waste dump on the landowners unfortunate enough to have had their land selected.

The very short hearing into this bill was unable to discover how politically motivated appeals, which is what this bill is described as preventing, would be defined. So we can only assume that all appeals would be categorised in this way. There was an extraordinary exchange with the department in trying to understand what was the real intent of this idea of ‘politically motivated.’ Not only was the hearing very short—just a couple of hours—but the time allowed for submissions was a mere two weeks. As I recall, much the same complaint was made when we dealt with the original bill that this amends. On neither occasion did the committee have an opportunity to visit the Northern Territory to gauge local opinion or to inform itself about the complex issues beneath the government’s policy gloss. No traditional owner was invited to appear before the committee in Canberra. We did have a teleconference hook-up with members of the land council but it was unsatisfactory in terms of reaching those people who we understand are opposed to the choice of the likely site.

The haste would not be such a problem if the government was prepared to be more transparent in its consultation and policy-making processes. But this whole sorry affair is cloaked in so-called commercial-in-confidence agreements. We were asked, as the committee, to swallow the highly improbable claim that the privacy of Indigenous people would be at risk if the Senate were to be privy to any details of negotiations between the government, through the Department of Education, Science and Training, and the Northern Land Council. Group officials who came before the committee said that details of their meetings with land councils and traditional owners could not be disclosed, on the grounds that they were commercial-in-confidence. The committee was not given any reason for how this might be the case, despite our questions. Presumably, commercial-in-confidence agreements relate to financial transactions of some kind, but there is no provision for this in the bill and officers denied that they were empowered to discuss financial considerations for site nominations. So we can only conclude that there were no discussions about money which might change hands, which makes it difficult to understand why commercial-in-confidence would apply at all.

But to step back: the government has been quite consistent on all of this. It abandoned what was described as a bipartisan approach to selecting a site when it had great difficulty getting one up in South Australia, so it chose the Northern Territory. It is a lot easier to override Northern Territory law, as we all know, and it would seem it is a lot easier to change native title in order to fast track or make smooth the passage of this site. So the amendments to the bill that we passed earlier allowed land councils and the Chief Minister of the Northern Territory to nominate sites for assessment as a radioactive waste dump on land which they control. I think it is interesting to note that the act as amended during its passage restored the statutory right provisions similar to those applying to the land rights act.

The problem is that it is widely believed that Muckaty Station is the site that has been chosen or is likely to be nominated by the Northern Land Council. That station is just north of Tennant Creek and is within the Northern Land Council boundary. The Muckaty nomination is considered likely because the station is said to be close to a railway line, with a spur constructed for use by a local mine, geologically stable and distant from surface or underground water. But, despite the fact that officers and anthropologists were seen at the site, we were not able to get any confirmation from the department that this had happened and so the reports in the paper are all that we have to go by. It is highly problematic that, at this stage in our deliberations, we are not able to know just what has gone on to bring us to this point. It is clear that those who live close to this site but not in the NLC area are disaffected. They have not been consulted. They have been given propaganda and the education, apparently, but they have not been seriously consulted and, more importantly, their consent has not been given. Muckaty Station is the site everyone is anticipating will be the waste dump and the waste dump is what this legislation is all about.

Land councils are required to consult with their communities about projects that require approval and the crux of the problem with this bill is that it removes a whole lot of conditions related to this from the act. Those conditions are: consulting with traditional owners; having regard to the interests of traditional owners; not taking action without the consent of traditional owners; ensuring that traditional owners understand any proposal; ensuring any affected Aboriginal community has expressed its views; and complying with traditional decision making processes. New subclause 3B(2A) says that failure to comply with any of the points I have just mentioned does not affect the validity of the nomination. That is the key to this whole bill. We once had a set of things that the Northern Territory government or land councils had to go through before offering up a site, but this bill now says, ‘If you don’t do any or all of those things, that does not invalidate the nomination.’ It is, in effect, an invitation to ignore the provisions of the original act, weakening Indigenous land rights. As the Central Land Council stated in its submission:

Removing the need to comply with the procedures for consultation laid down in Waste Law 1 is the most problematic for traditional owners because it is these procedures for consultation which allow them to have their say. Not having to comply with them would necessarily repeal the consultation provisions under sections 23 and 77A of the Land Rights Act and sections 203BC and 251B of the Native Title Act to the extent they apply to site nomination.

This a very convoluted and deceptive way of removing protections for Indigenous people. The changes appear to be designed to obscure the real intent of the government—mind you, it did not take people very long to understand what they meant.

In her second reading speech, the Minister for Education, Science and Training, Julie Bishop, asked the parliament to be reassured. She said:

Current provision of the Act set down a number of criteria that should be met if a land council decided to make a nomination. Importantly, these criteria include that the owners of the land in question have understood the proposal and have consented to the nomination, and that other Aboriginal communities with an interest in the land have also been consulted ... I can assure the House that, should a nomination be made, I will only accept it if satisfied that these criteria have been met.

Again, I would ask: how is her satisfaction going to be made public? How will we know that she is satisfied? There is no process for us to understand that. Is that also going to be commercial-in-confidence? If we put a question on notice to the minister after she determines the site, will she tell us exactly what it was that satisfied her about the process? We say that it is not good enough just to have that in a speech; it ought to be in the legislation. We should remove entirely the reference to the nomination not being invalidated if any of those conditions are not met.

On procedural fairness, the other significant amendment is the removal of judicial review. We are similarly very much opposed to this erosion of administrative and judicial safeguards against the arbitrary powers of governments. The current act removed procedural fairness, giving the minister unfettered discretion over decisions. This bill extends that to exclude the entitlement to the right to judicial review under the Administrative Decisions (Judicial Review) Act 1989 in relation to site nominations. The minister explained in her second reading speech that this was intended to prevent politically motivated challenges to land council nominations. As the minister told the House of Representatives, the government will not accept what she describes as speculative legal challenges intended to delay the establishment of waste facilities. You cannot have a system whereby all the traditional owners need to agree, as was the case, and then say, ‘We’ll talk about some as being politically motivated and others speculative.’ It is not good enough—either you have consent or you do not have consent. We are extremely concerned about the fact that this bill waters that down.

As I said earlier, we were unable to get any definition of what politically motivated challenges might look like. Mr Ross, the Director of the Central Land Council, said:

... it also talks very clearly about the ability of the Commonwealth to do what it wants to do in regard to ... what it considers to be politically motivated challenges. I think the real issue here is that Aboriginal people are not interested in the politically motivated challenges; they are interested in their rights and in being consulted about what is to take place or what is not to take place on their land. That is what interests Aboriginal people more than anything else.

The Human Rights and Equal Opportunity Commission also pointed out that the effects go further than this:

They prevent legitimate challenges to a nomination based on grounds such as a denial of procedural fairness or other grounds of judicial review such as bias, bad faith, fraud or lack of evidence.

So we are not altogether sure what the government is going to do by way of implementing this legislation, but we can be fairly confident that whatever site is nominated is likely to go ahead without too much pesky objection, whether by Indigenous people or by pastoralists. We did hear how much they would be affected by this dump going to Muckaty Station, or any other site for that matter, in the Northern Territory. The point was made by the local member that Australia has a reputation of being clean and green and that that reputation would be well and truly shot if a radioactive waste dump of this scale were to be built in the area. This legislation has a lot of ramifications. It is about Indigenous owners and their rights, but it is also about the reputation of the whole of the Northern Territory and this region in particular.

South Australia managed to ward off the government’s efforts to put a dump there. South Australia has borne the brunt of nuclear activity with Roxby Downs and with Maralinga. It has had its fair share of nuclear engagement. No doubt the government thinks that the Northern Territory with its uranium mines is the next most likely state to accept the dump but, as we have argued many times in this place before, it is not appropriate for there to be a single national dump.

The Democrats are realistic in understanding that there needs to be a safe repository for nuclear waste, whether it is from Lucas Heights or from hospitals. We accept that it is important that there is a national engagement in all of this, but we do not accept that it should go to one state alone and certainly not one as distant from the sites of generation as this one is proposed to be. The out of sight, out of mind mentality is not a good one. It is far better for this material to be kept—as it is at present—close to the site of production so that it can be monitored, but instead of that we are putting it into Aboriginal land. Typically, that is the easy answer: out of sight, out of mind, a long way away from metropolitan parts of the country so that other people carry the burden of the waste which, by and large, is generated by others.

It is a sad day to see a bill like this go through the parliament. I think it is an indication that the government is willing to trample over the rights of anyone and, in particular Indigenous people, who are already so disaffected, so seriously disadvantaged in economic development and in every area you can name. The most we can give them is a dump in their backyard. I am sure that when the site is nominated, there will be lots of extraordinary claims about how good this will be for Indigenous communities, about the jobs that will be created and so forth and the roads that will be put in. Who knows? But, at the end of the day, it is not much of a choice for Aboriginal Australians in this area.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

I rise to make a few brief remarks on the Commonwealth Radioactive Waste Management Legislation Amendment Bill 2006 following on from my contribution to the debate on the Australian Nuclear Science and Technology Organisation Amendment Bill 2006. The Commonwealth Radioactive Waste Management Act 2005, which the Commonwealth Radioactive Waste Management Legislation Amendment Bill 2006 amends, was rammed through both houses of parliament without adequate scrutiny. It is an extreme piece of legislation. It imposes a toxic nuclear waste dump on the people of the Northern Territory and it overrides the Howard government’s own environment and heritage protection laws. It overrides the Native Title Act and the Lands Acquisition Act. It removes procedural fairness. It allows the Commonwealth government to do whatever it deems necessary to establish or operate a nuclear waste dump and whatever it pleases to ensure the nuclear waste gets transported to the nuclear waste site. In other words, the bill brushes aside critical environmental protection, community safety and Aboriginal rights laws to ensure that Territorians get dumped with a toxic nuclear waste dump.

This bill amends the Administrative Decisions (Judicial Review) Act 1977 and the principal act, the Commonwealth Radioactive Waste Management Act 2005, to make land nominations as distinct from decisions not reviewable under the Administrative Decisions (Judicial Review) Act. This bill provides that failure to comply with the site nomination rules in the Commonwealth Radioactive Waste Management Act 2005 will not affect the validity of the minister’s approval of a nomination. This bill proposes to validate a nomination which would otherwise be automatically ruled invalid for ministerial consideration because, for example, traditional owners had not been informed of the nomination or traditional owners did not properly understand that their land was being nominated or traditional owners had not consented to the nomination. The provisions of the bill in this regard are a direct contradiction of the commitments of the Minister for Education, Science and Training to the parliament in her second reading speech on this bill, when she stated:

Current provisions of the act set down a number of criteria that should be met if a land council decides to make a nomination. Importantly, these criteria include that the owners of the land in question have understood the proposal and have consented to the nomination, and that other Aboriginal communities with an interest in the land have also been consulted.

A site could still be nominated and accepted even though traditional owners do not know it has been or do not agree with it being used to dump radioactive wastes. This bill also removes any entitlement to procedural fairness in relation to a nomination of a site. The bill also amends the principal 2005 act to provide for the return of nominated Aboriginal land used for a radioactive waste management facility, when no longer required in around 300 years, and indemnifies traditional owners, following the land return, against any damages claims arising from the use of the land for a facility.

Before the last election the people of the Northern Territory were given an undertaking—a promise, in fact—by the Howard government that there would not be a dump in the Northern Territory. When this government needed to be re-elected it could not wait to reassure Territorians that there would be no nuclear waste dump in the Territory. Just prior to the federal election, the Minister for the Environment and Heritage ruled out the Northern Territory as a site for a nuclear waste dump. He said:

The Commonwealth is not pursuing any options anywhere on the mainland, so we can be quite categorical about that, because the Northern Territory is on the mainland.

However, once the Howard government was safely back in office it seems that it could not break that commitment fast enough. Just last year, Mr Tollner, the member for Solomon, continued to claim not to support the nuclear waste dump in the Territory. At that time, 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.

Unfortunately Mr Tollner showed his constituents what he is made of when he rolled over and got his tummy tickled by the Prime Minister and voted for this bill. But we should not be surprised.

We know that the coalition have form when it comes to the location of nuclear facilities. They certainly know how to keep them secret. In 1997, the government considered a short list of 14 possible sites for nuclear research reactors, and they kept the list secret from the public. The confidential briefing—signed with ‘Good work’ by the former science minister, Mr Peter McGauran—said that the short list should be kept secret because release of information about alternative sites may unnecessarily alarm communities in the broad areas under consideration. But it seems that the new generation of coalition MPs do not share Mr McGauran’s caution.

Dr Jensen, the member for Tangney, has the prescription for what ails you. He has already told the parliament:

Having evolved in the surrounding radiation, our bodies not only adapted to radiation but, indeed, need radiation to survive.

In his speech in the second reading debate on this bill, Dr Jensen expanded on his theories on what is good for the people of Western Australia. Just in case honourable senators missed what he had to say, I am more than happy to enlighten them. He said:

I believe that Western Australia should have a role and responsibility to look after its own nuclear waste.

He then went on to say:

The placement of nuclear waste is a matter beyond the concerns of states alone. It is a national concern and a matter that clearly should be dealt with by the federal parliament. This is not a matter for parochial ‘nimbyness’. The ‘not in my backyard’ mentality exists all too freely.

So here we have Dr Jensen, the member for Tangney, the Prime Minister’s favourite whose neck the Prime Minister personally pulled off the chopping block, in spite of the express wishes of the local Liberal Party preselectors, telling parliament that not only should Western Australia be used to store nuclear waste but the Commonwealth should make it happen against the Western Australian state government’s will. According to Dr Jensen, all these people who respectfully disagree with Dr Jensen’s view, people who consider that turning the beautiful expanses of Western Australia into a radioactive rubbish dump is a bad idea are just a bunch of parochial nimbys. The main reason put forward by Dr Jensen for wanting to use Commonwealth power to force Western Australia to become a nuclear rubbish dump was:

... the waste from ... is only harmful for a period of 200 to 300 years.

What a relief. Dr Jensen might feel comfortable leaving a toxic legacy for his great, great, great, great, great, great, great, great grandchildren. But, personally, I am not so comfortable. Dr Jensen finished his speech with an invitation to us all, when he said:

I want to re-encourage members ... to investigate and discover for themselves the exciting technologies that are significantly contributing to the global solutions on nuclear waste.

Dr Jensen has a friend in Mr Wilson Tuckey, the member for O’Connor. In his speech in the second reading debate on this bill, Mr Tuckey told the parliament:

I am neither frightened of nor concerned about a nuclear power industry. In fact, I have advocated for the storage of international nuclear waste in Australia ...

Maybe Mr Tuckey will take up Dr Jensen’s offer and they can both visit Chernobyl together on their next study tour. Maybe at Chernobyl they will get all the beneficial radiation that Dr Jensen would have us exposed to. The waste dump that is being planned by this government is intended to house water from the new reactor presently under construction; the old reactor, which is still operational, including waste from France and the United Kingdom; defence waste held at various sites across Australia, including contaminated soil from the Woomera test site; Commonwealth Scientific and Industrial Research Organisation accelerator waste; and other Commonwealth waste. But none of the sites under consideration were short-listed when scientific and environmental criteria were used to assess alternative sites around Australia in 1997.

This is a government that ignores science, ignores economics and ignores the environment. Australia should remember this track record when they consider John Howard’s determination to impose no less than 25 nuclear reactors across Australia. But they are not the only ones being deceptive. That fawning toad Piers Akerman has criticised the Labor Party for its concerns about the potential dangers posed by nuclear reactors. In an article in the Hobart Mercury on 19 June 2006, he said:

... Albanese talked about nuclear safety as if every one—

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Madam Acting Deputy President, on a point of order: that was a very unfortunate expression used by the senator about a distinguished journalist. I invite the senator to withdraw that comment.

The Acting Deputy President:

Senator Kemp, journalists are not protected by the standing orders, and I ask Senator Sterle to continue.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

I am quoting—

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Madam Acting Deputy President, I would invite you to reconsider the ruling. This was an absolutely insulting comment that was made and without any basis whatsoever. I think it would be in the interests of the Senate and the senator to withdraw.

The Acting Deputy President:

There is no point of order. Please continue, Senator Sterle.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

He even had concerns over Lucas Heights. The toad then went on to say:

Debate interrupted.