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
include any protection or consideration for cultural heritage or the protection for Aboriginal culture as part of this section.
community) and reinforces a perception that the Commonwealth does not take Aboriginal culture and concerns seriously.
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.
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