Antinuclear

Australian news, and some related international items

Maurice Blackburn: nuclear waste Bill Amendment is against natural justice, excludes Aboriginal community and concerns

the proposed bill removes the right of judicial review and greatly narrows the review rights of an administrative decision, after the site selection process is underway.
The removal of a fundamental right should only be considered in extreme circumstances,
such as in the case of an emergency. It is clear that the expansion of land for the site is not an emergency, and such, the removal of further review mechanisms is at odds with the principles of natural justice and procedural fairness.

Maurice Blackburn and Co.  Submission to the Economics Legislation Committee, National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 [Provisions]   Submission 76

“……………  Maurice Blackburn is concerned with several amendments proposed in this bill which appear to remove and erase engagement with the Aboriginal community from the site selection process.
We note that the Bill repeals the definitions relevant to Aboriginal people and associated entities. We are concerned that any nomination process will not sufficiently engage with Aboriginal communities. Irrespective, we would also submit that the removal of key definitions as they relate to Aboriginal people send a concerning message to those communities.
 
In particular, we are concerned that at no point during the nomination process were the proposed amendments flagged to the community. This is deeply concerning as it is at odds with the Commonwealth’s overarching policy objective of dealing with waste management practices in an open and transparent manner. As highlighted above, the unexpected changes to the legislation have the ability to undermine trust in the Commonwealth and have the very real chance of being perceived as unilateral decision making by the Commonwealth to the exclusion of Aboriginal communities.
Further, we are concerned with the amendments proposed in Part 6C. Specifically, the wording in subsection 34G(4)(a), which states that a person who is conducting activities may do so if that person takes all reasonable steps to cause as little detriment and inconvenience, and does as little damage. However, we note that this is a general provision and does not
include any protection or consideration for cultural heritage or the protection for Aboriginal culture as part of this section.
While we note that Part 6C is of a transitional nature and replicates section 11 of the National Radioactive Waste Management Act 2012 (Cth) (the Act), we submit that the lack of consideration for Aboriginal cultural heritage is an oversight and that this should be explicitly included in section 34G.
Further, while sections 34GA and 34GB are also transitional and replicate current provisions in the Act, we are concerned that the Bill simply replicates these provisions and does not include any explicit protection of consideration of Aboriginal culture or heritage. This is concerning to our clients and other Aboriginal communities (particularly the Barngarla
community) and reinforces a perception that the Commonwealth does not take Aboriginal culture and concerns seriously.
THE BILL: EXPANSION OF ACQUISITION OF LAND/PROCEDURAL FAIRNESS Maurice Blackburn is concerned that the amendments proposed in Schedule 1, Part 2. Sections 19A and 19B, which allow for regulations to prescribe additional land for the expansion of the facility and all-weather access respectively, are contrary to the interests of natural justice. Of key concern, it is deeply concerning that the bill, in its proposed form, removes the right of judicial review.
While we note that Part 6C is of a transitional nature and replicates section 11 of the National Radioactive Waste Management Act 2012 (Cth) (the Act), we submit that the lack of consideration for Aboriginal cultural heritage is an oversight and that this should be explicitly included in section 34G.

Further, while sections 34GA and 34GB are also transitional and replicate current provisions in the Act, we are concerned that the Bill simply replicates these provisions and does not include any explicit protection of consideration of Aboriginal culture or heritage. This is concerning to our clients and other Aboriginal communities (particularly the Barngarla
community) and reinforces a perception that the Commonwealth does not take Aboriginal culture and concerns seriously.

The addition of section 19C in its proposed form purports to provide for procedural fairness, but it is limited in scope and does not prescribe any real requirements to the Minister to meaningfully consider community views or submissions.

The requirement that the Minister must invite any person who has a right or interest to the land to comment and to take into account those comments is a broad concept. It is not clear who will have a right or interest in the land. In our experience Native Title Holders and Traditional Owners are often excluded from consultation and community is often given a narrow interpretation. As we have seen from the community ballots conducted by the Flinders Ranges Council and the Kimba Council, many Native Title holders were precluded from voting in the ballot. This provision, and whether members of the Aboriginal community may comment is left ambiguous.

The requirement that the Minister must ‘take into account any relevant comments’ under subsection 19C(1)(b) is vague and does not prescribe any requirements for the Minister. It does not require the Minister to do anything with the comments or take any action, and minimises the community engagement and consultation paramount to any additional
acquisition or expansion of land.

We submit that the proposed provision places a proactive requirement on the Minister to:
1. Publish any relevant comments on a public forum; and
2. The Minister publish a response showing the consideration given to these comments.

Further, section 19C(4) provides that:
“This section is taken to be an exhaustive statement of the requirements of the
natural justice hearing rule in relation to the following:

(a) a decision about the making of regulations under subsection 19A(1);
(b) the Minister’s decision whether to make an instrument under subsection 19B(1)”.
Maurice Blackburn considers such an exhaustive provision to be draconian in nature, as it limits the ability for community members to challenge and appeal the decisions of the Minister, and submit that this be reconsidered.

In its current form, the proposed bill removes the right of judicial review and greatly narrows the review rights of an administrative decision, after the site selection process is underway.
The removal of a fundamental right should only be considered in extreme circumstances,
such as in the case of an emergency. It is clear that the expansion of land for the site is not an emergency, and such, the removal of further review mechanisms is at odds with the principles of natural justice and procedural fairness.

We submit that section 19C be amended to include meaningful community engagement and mechanisms to challenge and appeal the regulations and decisions by the Minister that accordance with Natural Justice. We propose that this take the form of a mandatory request for submissions from the relevant community and a public response by the Minister within a specified timeframe.

Finally, in recognition of the special connection Aboriginal people have with the land, this provision should make it clear that members of the Aboriginal community are included in this  process irrespective of whether they are local residents or title holders.

May 28, 2020 - Posted by | AUSTRALIA - NATIONAL, Federal nuclear waste dump

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