Bill in Aust Parliament names South Australia as the Nuclear Waste State

the Bill makes provision for the Federal gov. to pass Regulations to name and over-ride specific State Laws. For instance, it may be the case that the Federal gov. requires to pass a Regulation to name and over-ride the public interest protections in the SA “Nuclear Waste Storage (Prohibition) Act 2000”, and potentially to also do so regarding the SA “Aboriginal Heritage Act 1988”.

David Noonan, 24 Feb 20, Bill names SA as the Nuclear Waste State:

The Bill specifies South Australia as a nuclear waste dump state.

And specifies Napandee near Kimba as a Nuclear Waste Store – which effectively also targets Whyalla Port for multiple nuclear waste shipments.

The Bill has been to the HoRep’s and now goes to the Senate:

“to enable the decision about the location of the facility to be subject to Parliamentary scrutiny”

(see the Bill Explanatory Memorandum Outline p.1).

See https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6500

For access to the doc’s and to speeches, and to Track the Bill – so as to receive e updates…

The Bill is expected to be Referred by the Aust Greens around Wed 26^th Feb to a short Inquiry by the Senate Standing Economics Legislation Committee. The Bill may go to a vote in Senate in the last week of May.

If the Bill is passed, the Federal gov. then instigates a Licensing process on the NRWM Facility by the nuclear regulator ARPANSA, and in parallel makes a referral for environment assessment of the proposed NRWM Facility under EPBC Act.

ARPANSA are expected to conduct separate Licensing processes for the above ground interim Nuclear Waste Store, and for the so-called Low-Level Waste Disposal Facility. ARPANSA may require the Federal gov. to make separate Licensing Applications for the two types of waste facilities.

The Federal gov. can-not assume that both facilities will be approved by the regulator.

It is arguably likely that Licensing for the NRWM Facility, and in particular for above ground interim Nuclear Waste Store, should and will fail – leaving the amended Act stranded will a failed single specified site and no provision for consideration of any further siting elsewhere in SA or in other States / Territories.

However, the Bill is said by the Minister and the Department to provide ‘certainty’.

Notes on Bill:

“NATIONAL RADIOACTIVE WASTE MANAGEMENT AMENDMENT (SITE SPECIFICATION, COMMUNITY FUND AND OTHER MEASURES) BILL 2020”

The Bill names and specifies South Australia, and omits “the State or Territory”, for siting a NRWM Facility and to register acquired lands;

The Bill specifies Napandee as the NRWM Facility site and amends the 2012 Act to that effect as a single site;

The Explanatory Memorandum (EM, Outline p.2) says: “Additional land will not be able to be acquired to establish a second facility”;

The Bill “Notes on Clauses” p.22 states: “Once established, it is expected to be in operation for 100 years.”

The Bill “Notes on Clauses” p.14 claims: “there is broad support in the community for the project.”

The Bill strengthens the Commonwealth powers to use the 2012 Act to over-ride State laws and to impose the NRWM Facility on unwilling communities;

The Bill specifically asks Senators to vote to approve a set of powers to over-ride any State law (or other Cth law), so that it:

“has no effect to the extent that it would, regulate, hinder or prevent the doing of a thing authorised by this Act”.

The Bill seeks to “provide a clear and objective link” between the operations of the Act and the Constitutions relevant Heads of Power;

By amending the Objects of the Act to specify the:

“Joint Convention on the Safety of Spent Nuclear Fuel Management and on the Safety of Radioactive Waste Management” (1997 & as amended)

– so as to apply Treaties powers to the operations of this 2012 Act;

at: https://www.legislation.gov.au/Details/C2012A00029 )

(see the current National Radioactive Waste Management Act 2012)

And by amending the Act to apply the ARPANSA Act term and definition of “controlled materials” to which the 2012 Act is to apply in future;

Note – that the Federal gov. claims the existing 2012 Act Section 24(1) “Application of State and Territory laws” already has power to over-ride State laws…

Further, the Bill (like the 2012 Act) makes provision for the Federal gov. to pass Regulations to name and over-ride specific State Laws;

For instance, it may be the case that the Federal gov. requires to pass a Regulation to name and over-ride the public interest protections in the SA “Nuclear Waste Storage (Prohibition) Act 2000”, and potentially to also do so regarding the SA “Aboriginal Heritage Act 1988”.

This could be expected to occur after passage of the Bill and before start of ARPANSA Licensing, and before the start of environmental assessment under the EPBC Act, so as to provide maximum legal certainty to the Federal gov. agenda to impose a nuclear waste dump in SA at Napandee and associated proposed use of Whyalla Port – consideration of which would form some part of those processes.

The Federal gov. has provided a “Statement of Compatibility with Human Rights” (EM p.5-10), which states (claims) that the Bill:

“is compatible with the human rights and freedoms recognised or declared in international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.”

However – this does not include the UN recognised Traditional Owners right to Free, Prior and Informed Consent;

This Bill is stated to be compatible with:

“Rights to self-determination”, “Right to equality and non-discrimination”, and even the “Right to take part in public affairs and elections”;

The “Conclusion” to this Statement (at EM p.10) says:

“To the extent that the amendments engage with these rights, they do so in a reasonable and proportionate way and do not operate to limit or restrict those rights.”;

All of which variously appears to conflict with exclusion of the Bangarla People from the Ballot, and given their court cases to realise their rights in this case.

The Bill increases the Fund to be provided by the Cth under the Act from $10 to $20 million, to be granted on issue of an Operating License to the NRWM Facility and sets up an Entity to manage these funds;

Licensing could take up to 2 years – so the lure of big $’s is to be maintained throughout…;

Other specified funds on offer total another $11 million;

The Bill provides that the Cth gov. and the SA gov. and ‘host State’ waste holding organisations will be exempt from pay a fee to use the NRWM Facility (other States and Territories and organisations will have to pay);

As a total of fees reach over $10 million, the amount above will be paid into the Fund, a sort of ‘incentive’ to maximise use of the Facility;

The Bill “Notes on Clauses” p.22 defines the “host community” for purposes of the Fund to be “people who are considered to be members of the community for local government purposes”, and at p.23 provides for “Consultation” with “local Traditional Owners” as to spending of the Fund;

This “consultation” is said to ensure “a focus on the development of the local Aboriginal economy”;

Potentially this again leaves the Barngarla People out of direct equal consideration and participation regarding the Fund in an analogous way to how they were excluded from the so-called Ballot…

Contrast the public interest protections set out in the Objects to the SA “Nuclear Waste Storage (Prohibition) Act 2000”, passed into SA Law under the leadership of Liberal Premier John Olsen in 2000 to prohibit the import, transport, storage and disposal of a range of nuclear wastes – an SA State Law which the Federal gov. definitely does intend to over-ride:

“The Objects of this Act are to protect the health, safety and welfare of the people of South Australia and to protect the environment in which they live by prohibiting the establishment of certain nuclear waste storage facilities in this State”

With the Bill’s proposed amended Objects of the Cth National Radioactive Waste Management Act 2012:

3 Object of Act

(1) The object of this Act is to ensure that controlled material is safely and securely managed by providing for:

(a) the specification of a site for a radioactive waste management facility; and

(b) the establishment and operation of such a facility on the site specified.

(2) By ensuring that controlled material is safely and securely managed, this Act, among other things, gives effect to certain obligations that Australia has as a party to the Joint Convention, in particular, Australia’s obligations under Chapters 3 and 4 of the Joint Convention.