Antinuclear

Australian news, and some related international items

Does the Australian Federal Govt have the power to impose a nuclear waste dump?

The Minister claims a need for this dump is generated by civilian radioisotope production & not from military use – therefore it cannot be legitimised under auspices of the S.51(vi) Defence umbrella.

there is no legal base for the Commonwealth to enforce State acceptance of radioactive waste.

ENuFF-SA Examining Commonwealth Power to Enforce Nuke Dump – part 1, 4th July 2018

SOUTH AUSTRALIAN LAW

  1. The 2015-16 $10+ million South Australian Nuclear Fuel Cycle Royal Commission found that: “The construction or operation of a facility for storage and disposal of nuclear waste, along with the importation or transport of nuclear waste, is unlawful in South Australia”. The amendment or repeal of the Nuclear Waste Storage Facility (Prohibition) Act 2000 (SA) would therefore be required prior to any substantive progress being made in further developing any proposal.
  2. “ 1 The Nuclear Waste Storage Facility (Prohibition) Act 2000 (SA)2 must be amended or repealed PRIOR TO ANY SUBSTANTIVE PROGRESS towards developing a radioactive waste facility in this State. 2.
  3. Portions of The Act which prohibit the establishment of nuclear waste storage facilities include:

S.8 against the construction or operation of such;

• S.9 making it illegal to import or transport nuclear waste, &

• S.13 “No public money to be used to encourage or finance construction or operation of nuclear waste storage facility”

S.13.1 also provides such prohibition “Despite any Act or law to the contrary ….”

  1. The newly elected Liberal Premier Steven Marshall has previously categorically stated: “A Marshall Liberal Government will not support the building of a nuclear waste repository in South Australia.“ 4 : & in answer to a February 2018 Election Survey the South Australian Liberal Party responded: “The Liberal Party supports the current Nuclear Waste Storage Facility (Prohibition) Act 2000“ 5 .
  2. 4. To date (June 2018) the NRWMF-T has expended $40+ million of taxpayers PUBLIC MONEY towards: not only encouraging ‘local communities’ acceptance for a nuclear waste storage facility within South Australia; but also financing active on-site preliminary works deemed essential to constructing said facility. Clearly & brazenly contrary to State Law.
  3. 5. It would appear that the NRWMF-T has failed to investigate nor even consider any implications arising from the current prime facie unlawful nature of their actions. Numerous sham ‘community consultation’ medleys; Taskforce presence in the field, & radiopharma promotions. Myriad ANSTO propaganda tours of Lucas Heights; French des visiteurs; community grants; ORIMA & AECOM contracts, & etc.. costing tens of millions. All done without first establishing any legal foundation.

Legally; fiscally; morally, & administratively negligent

FEDERAL LAW “Commonwealth Legislative Powers”

The Constitution confers the power to make laws on the Commonwealth Parliament. However, the power of the Commonwealth Parliament to make laws is limited to particular subjects. Most of these subjects are listed in sections 51 and 52. They include defence; external affairs; interstate and international trade; taxation; foreign, trading and financial corporations; marriage and divorce; immigration; bankruptcy; and interstate industrial conciliation and arbitration.” 6

  1. Amongst other dubious claims, Minister Canavan would have us believe that Federal Legislation allows him to run roughshod over State Law. But does the Emperor actually wear any clothes?
  2. 7. The previous South Australian Premier Jay Weatherill in 30 January 2018: “ Asked if the state government would pursue a High Court case against the Turnbull government if a national facility were approved in South Australia, Mr Weatherill said: “We would have to explore our options to see what steps can be taken.” “ 7 .
  3. 8. One of those steps would be to query whether Federal Parliament had Constitutional Authority to impose radioactive waste upon a State which had specific laws prohibiting such. Section 51 of the Australian Constitution describes the various Powers of the Federal Parliament, & there are 39 such capacities – none of which relate to things radioactive8 : whilst Section 118 obligates the Commonwealth to recognise & respect the public Acts of the States.
  4. To make things perfectly clear, included as Appendix 1 is the whole Section 51 of the Australian Constitution: we challenge anyone to demonstrate how Canberra can legally impose Commonwealth owned radioactive waste upon any State whose Legislation prohibits such – S.51. (xxvi) actually says that Federal Parliament needs to respect State Legislation. Prime facie there is no legal base for the Commonwealth to enforce State acceptance of radioactive waste.
  5. 10. The knowledge that the Feds don’t have Constitutional Power to dump radioactive waste upon the States is not rocket science & is not a new revelation. In fact back in the 1950s, when the expansion of the nuclear fission enterprise was seen as rapidly developing technology which Australia should embrace; Canberra took steps toward Constitutional change.
  6. 11. In 1956 Prime Minister Menzies sought to legitimise nationwide Commonwealth regulation of all things nuclear through the establishment of a Joint Parliamentary Committee on Constitutional Review: “The growth of nuclear physics, making possible the application of nuclear energy for practical purposes, is a phenomenon of the present century and alone this would explain the absence of any reference to it in the Commonwealth
  7. Constitution. ….. developments in the use of nuclear energy …. will inevitably …. reveal serious deficiencies in Commonwealth legal power …..“ 9 12. In the Committee’s November 1959 Final Report it categorically stated: “… the totality of constitutional power is insufficient to regulate and promote … the economic development of nuclear energy for all purposes. The power to regulate the use of nuclear energy for industrial or developmental purposes is almost entirely a matter for the States.“ 10
  8. 13. However the “… advice of the Joint Committee on Constitutional Review to amend the Australian Constitution to facilitate the development of a national nuclear industry was not taken up by the Menzies Government, or any subsequent federal administration.“.11
  9. 14. That path to Constitutional amendment failed to progress to a National Referendum because instead of going the whole hog, the Govt of the day apparently assumed it had all the legitimacy it needed thru S.51(vi) ‘Defence of the Realm’ powers12
  10. . 15. Hence the deficit of Commonwealth Power regarding civil & industrial radioactive waste facilities continues to this day. The Minister claims a need for this dump is generated by civilian radioisotope production & not from military use – therefore it cannot be legitimised under auspices of the S.51(vi) Defence umbrella.
  11. 16. The National Radioactive Waste Management Act [NRWMA 2012]13 came into effect on the 4th of April 2012. The objects of the Act are to safely & securely select establish & operate a facility for Commonwealth radioactive waste upon voluntarily nominated land. That Act does not signify ‘Defence’ at all, but relates to ‘….. controlled material within the meaning of the Australian Radiation Protection and Nuclear Safety Act 1998 that is of domestic origin; ….” 14: which “.. means any natural or artificial material, whether in solid or liquid form, or in the form of a gas or vapour, which emits ionizing radiation spontaneously. “ 15
  12. 17. Minister Canavan does not rely upon Constitutional Defence Powers to assert Federal dominance over the South Australian NWSF(P) 2000 Act: instead The Minister depends upon the NRWMA 2012 Part3 Section 11 ‘Authority to conduct activities’ scaffolded by S.12 ‘Application of State and Territory Laws’
  13. 18. However the Australian Constitution S.52(1) only allows Federal authority “…. over places acquired by the Commonwealth for public purposes “ – voluntarily nominated sites are by definition un-acquired.

    So any & all actions instigated by the Commonwealth upon the voluntarily nominated sites prior to acquisition are rendered unlawful.

  14. 19. Whilst also, as previously explained, the Australian Constitution S.51(xxv) AND S.118 both prohibit the Federal parliament from over-riding State Law. If the Commonwealth does not have Constitutional Power to over-ride State Laws & foist radioactive waste upon such; then likewise S.51(xxxi) denies lawful ability to acquire property in order to establish any site facilities.

Section 12 of the National Radioactive Waste Management Act 2012 is unConstitutional; whilst Section 11 can only be Constitutional AFTER a site has been acquired by the Commonwealth – an acquisition unsupported by any Constitutional authority. =============================================

1 Scarce, K. p107, SA_Govt, Nuclear Fuel Cycle Royal Commission – Final Report, May 2016

https://s3-ap-southeast-2.amazonaws.com/assets.yoursay.sa.gov.au/production/2017/11/09/03/09/17/3923630b-087f-424b-a039- ac6c12d33211/NFCRC_Final_Report_Web.pdf 2 NWS(P) Act 2000, Parliament of South Australia. http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/sa/consol_act/nwsfa2000430/

3 Ibid

4 Marshall, S., 15th September 2016 “Nuclear Industry- Our Position” https://www.stevenmarshall.com.au/tags/infrastructure_policy? page=2 NB original whole text has been taken off-line since the 2018 State Election & Marshall now appears to be pro-dump.

5 p11, Conservation Council of S Aust, “SA Election Policy Backgrounder” 03 March 2018https://drive.google.com/file/d/1u_J9W1uxOTVXtQWuIpr8REOXGT68IDkX/view viewed 20/03/18

6 Federal Register of Legislation,’The Constitution’ – Overview, Commonwealth Legislative Powershttps://www.legislation.gov.au/Details/C2005Q00193

7 Owen M., 30 Jan 2018 in ‘The Australian’ https://www.theaustralian.com.au/national-affairs/state-politics/jay-weatherill- changes-mind-on-nuclear-dump-ahead-of-election/news-story/a11667e1cfcb443812ef0052bfc6fbef

8 PoA, 09 July 1900, ‘Commonwealth Constitution Section 51’ https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/~/link.aspx? _id=AFF6CA564BC3465AA325E73053DED4AA&_z=z viewed 10/03/2018

9 PoA, pp50 – 01 October 1958, para 117-118 ‘Report from the Joint Committee on Constitutional Review’https://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees? url=reports/1958/1958_pp50.pdf

10 PoA, pp108 – 26 November 1959, para 548 ‘Second Report from the Joint Committee on Constitutional Review’ https://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_committees? url=reports/1959/1959_pp108.pdf

11 Yeeles, pp18-20, 19 May 2015 http://nuclearrc.sa.gov.au//app/uploads/2016/03/Richard-Yeeles-19-05-2015.pdf

12 Op cit – PoA pp108 para 547

13 Federal Register of Legislation, Commonwealth Acts April 2012 https://www.legislation.gov.au/Details/C2012A00029

14 Ibid 4 Definitions

15 Federal Register of Legislation ARPANSA 1998 S.13 Definitions http://www8.austlii.edu.au/cgibin/viewdoc/au/legis/cth/consol_act/arpansa1998487/s13.html#definition 3

APPENDIX ONE – EXTRACT FROM THE AUSTRALIAN CONSTITUTION

  1. Legislative powers of the Parliament

    The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

    i trade and commerce with other countries, and among the States;

    ii taxation; but so as not to discriminate between States or parts of States;

    iii bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth;

    iv borrowing money on the public credit of the Commonwealth;

    v postal, telegraphic, telephonic, and other like services;

    vi the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;

    vii lighthouses, lightships, beacons and buoys; viii astronomical and meteorological observations; ix quarantine; x fisheries in Australian waters beyond territorial limits;

    xi census and statistics;

    xii currency, coinage, and legal tender;

    xiii banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money;

    xiv insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned;

    xv weights and measures;

    xvi bills of exchange and promissory notes;

    xvii bankruptcy and insolvency;

    xviii copyrights, patents of inventions and designs, and trade marks;

    xix naturalization and aliens;

    xx foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;

    xxi marriage;

    xxii divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;

    xxiii invalid and old-age pensions;

    xxiiiA the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;

    xxiv the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States;

    xxv the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States;

    xxvi the people of any race for whom it is deemed necessary to make special laws; xxvii immigration and emigration;

    xxviii the influx of criminals;

    xxix external affairs;

    xxx the relations of the Commonwealth with the islands of the Pacific;

    xxxi the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;

    xxxii the control of railways with respect to transport for the naval and military purposes of the Commonwealth;

    xxxiii the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State;

    xxxiv railway construction and extension in any State with the consent of that State;

    xxxv conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State;

    xxxvi matters in respect of which this Constitution makes provision until the Parliament otherwise provides;

    xxxvii matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law;

    xxxviii the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia;

    xxxix matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

    END APPENDIX ONE

 

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July 4, 2018 - Posted by | AUSTRALIA - NATIONAL, Federal nuclear waste dump

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