Antinuclear

Australian news, and some related international items

Desmond Menz – Constitutional problems in Nuclear Waste Bill – could lead to High Court case?

why ultimately was South Australia the only state to contain the final three sites?

A tiny community poll seems to have informed the final decision, and contradicts the Minister’s stated position of “broad community support”. Just 0.037% of the voting public in SA have had a say.

why did South Australia become the only state to be chosen for the nuclear waste site, knowing that a Citizens Jury in 2016 had rejected a major nuclear waste storage industry in South Australia following the outcomes of the Nuclear Fuel Cycle Royal Commission? The Citizens Jury was substantially more representative of the views of the people of SA, in comparison with the very small poll of the eligible residents of the District Council of Kimba..

former Minister Canavan’s snap decision? The decision on site selection was announced on Saturday morning 1 February 2020, and by the afternoon Senator Canavan had resigned

Desmond Menz  SUBMISSION TO ECONOMICS LEGISLATION COMMITTEE OF THE
AUSTRALIAN PARLIAMENT ON THE National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020  Submission 13   

In September 2019 ….I raised critical concerns about the validity of the National Radioactive Waste Management Act 2012 (NRWM Act) in relation to the Australian Constitution, and also the lawfulness of the process about site selection. I also raised concerns about breaches of South Australian law. It seems that my concerns were either ignored or dismissed. I again raise these critical matters for the attention of the Economics Legislation Committee. If they are not responded to, then it would not be too much a stretch of the imagination to have them resolved in a higher court of law, quite possibly the High Court of Australia. In my view, the Economics Legislation Committee should not make any decision on the Amendment Bill until all issues I have countenanced have been resolved.

Main Concerns
1.It is contended that inconsistency between the federal National Radioactive Waste Management Act 2012 (NRWM Act) and the South Australian Nuclear Waste Storage (Prohibition) Act 2000 (NWSP Act) (and other similar state/territory laws), has been manufactured by the Australian Parliament. This is a serious issue, and one that not even the Senate Standing Committee for the Scrutiny of Bills has acknowledged. It is incomprehensible why this matter was not addressed way back in 2010 during the establishment of the NRWM Act.

It is also contended that there are Constitutional matters that need to be resolved to affirm the safety of the federal law, including the Amendment Bill, because at the moment there are sufficient concerns relating to inconsistency between federal and state laws to inhibit the lawful and constitutional passage of the Amendment Bill.   [here he gives an example from a previous High Court case]………

A South Australian government function is to protect the health, safety and welfare of the people and the environment in which they live. This is an overarching function, and is clearly enunciated in the  Environment Protection Act 1993, and it is also an object of the NWSP Act. That function and purpose are stripped away by the federal NRWM Act which both prevents and undermines a capacity of the South Australian government to function. By rendering inoperative the State’s NWSP Act, there is a direct effect on the operation of the Environment Protection Act 1993 at Section 5-Environmental
harm and Section 9-Territorial and extra-territorial application of Act, and also on the function of the state government to protect its people. There might also be effects that ripple into other state laws, such as the SA Development Act.

The views of several legal experts, and support of my thesis, are further described in my initial submission
(Sep 2019).

2. The SA state government is exposed to challenge on why it has allowed the Commonwealth government
to ostensibly render inoperative one of its laws – the NWSP Act – and to severely compromise another –
the Environment Protection Act 1993. The SA government has a duty to all its citizens, and it has
condoned a process that has contravened its own law in terms of expenditure of funds in searching for a
nuclear waste storage site. Implicated in the unlawful activities are the District Council of Kimba and The
Flinders Ranges Council. The Amendment Bill should not proceed until all contentious matters have been
resolved.

3. If a licence ultimately is granted by the federal government to the Kimba site, then under South Australia’s
NWSP Act a further inquiry into social and environmental impacts by the state’s Parliament must be held.
Neither the federal Minister (now Keith Pitt) nor the state government has made any public statement
accordingly. Furthermore, if the SA Parliamentary committee is prevented from doing it’s work under its
own law, as now might appear to be the case, then where does that leave the proper function of State
Parliament? Following on from point 2 above, herein lies another Constitutional matter.

4. 28 sites were initially identified during the preliminary site selection process that commenced in 2015. The
locations of these do not appear to have been publicly revealed. Seven sites were then shortlisted under
Minister Frydenberg’s tenure. The final six sites were located in South Australia, New South Wales,
Queensland, and Northern Territory.

What is known about the site selection procedure and why one site was chosen over another? There
does not seem to be any information in the public domain as to the detail of decisions to deselect any
site. And why ultimately was South Australia the only state to contain the final three sites?
As a matter of public interest, the method of site selection should be made known. How do we the
public have confidence in the process, and that there was no bias one way or the other?
What made “Napandee” stand out from the rest? The people of Kimba and the people of South Australia
deserve to know.

5. The means by which the (former) federal Minister has sought “community acceptance” for the nuclear
waste site are of concern. A tiny community poll seems to have informed the final decision, and
contradicts the Minister’s stated position of “broad community support”. Just 0.037% of the voting public
in SA have had a say. This is not broad community support. The NRWM Act contains no methodology at
all on how site selection was to be conducted, therefore it was contrived without a lawful basis. There are
firm grounds on why the rest of the voters in SA should have their views expressed. We are all supposed
to be living in a democracy, not one limited by Ministerial decree and the decision of a tiny minority.

6. The Commonwealth has announced it would be taking over the voluntarily offered site, and therefore
Section 123 of the Constitution of Australia should be examined carefully about the means by which
consent should be given to the surrender of land in the State. For “state land” this requires the consent of
the SA government and moreover, its people, via ‘the majority of the electors of the State voting upon the
question’ about the Commonwealth land acquisition which will ‘increase, diminish, or otherwise alter the
limits of the State’. Although private land has been chosen, albeit with a Native Title question hanging
over it, the ultimate question about Section 123, and excluding the vast majority of electors in the state,
should be clarified. The Amendment Bill should not proceed until this question is resolved.

7. Following on from point 6, why did South Australia become the only state to be chosen for the nuclear
waste site, knowing that a Citizens Jury in 2016 had rejected a major nuclear waste storage industry in
South Australia following the outcomes of the Nuclear Fuel Cycle Royal Commission?
The Citizens Jury was substantially more representative of the views of the people of SA, in comparison
with the very small poll of the eligible residents of the District Council of Kimba that the Minister appears
to have formed his decision on. If the “broad community support” test is applied, then the Citizen Jury’s
outcome should have been included, but it was ignored, and thus it exposes a concern that the Minister
has sidestepped his Ministerial responsibilities and duties, and particularly his requirement as a Minister to
uphold “the sole objective of advancing the public interest” (see Statement of Ministerial Standards 2018).
It should also be noted that the Senate Inquiry of 2018 into selection of a site in SA, appeared to have
been conducted as a fait accompli, in other words, a foregone conclusion. And yet, this inquiry did not
even test the safety of the federal law, and the implications of the Constitution and state laws. It is a failing
with respect to public trust.

8. The Minister swore an oath before the representative of Australia’s Head of State (the Governor General)
“to well and truly serve the people of Australia”. The oath is no different from taking an oath in a
court of law, and so if decisions made by a Minister of the Australian government are found to have not
well and truly served the people of Australia, or they are found to have been untrue, then perjury has been
committed. Perjury in a court of law is a criminal offence.

In the site selection process, the Minister is compelled by oath to “well and truly serve” every citizen of Australia, not just a specific land owner who would financially benefit from hosting a nuclear waste facility,
or a small rural Council that might be convinced of an economic windfall attributed to the proposed
facility. The whole of the Australian populace must be considered, or at the very least the South Australian
people, and it is this point where the process of site selection has again failed.
Furthermore, reliance on local community polls that represent just a few hundred voters to test public
acceptance of the proposed facility is a very poor method to substantiate overall community acceptance,
and has likely compromised the public interest test.
The actions and decisions of the former Minister Canavan need to be tested in terms of the Statement
of Ministerial Standards. For federal ministers the requirements include the following statements;

1.2 In recognition that public office is a public trust, therefore, the people of Australia
are entitled to expect that, as a matter of principle, Ministers will act with due regard
for integrity, fairness, accountability, responsibility, and the public interest, as
required by these Standards.
1.4 When taking decisions in or in connection with their official capacity, Ministers must do so
in terms of advancing the public interest – that is, based on their best judgment of what will
advance the common good of the people of Australia.

6.1 Ministers are expected to conduct all official business on the basis that they may be expected
to demonstrate publicly that their actions and decisions in conducting public business were
taken with the sole objective of advancing the public interest.

Senate Brief No. 14 provides a succinct account of the responsibilities of a Minister from the Senate (as
was the status of the former Minister when he made a decision on site selection). The Minister is
responsible to the Prime Minister alone but accountable to the Senate. Therefore any decision made
about selecting a South Australian site for the proposed nuclear waste facility would most likely need to
be referred to the Senate. This aspect seems not to have been understood by impartial observers,
including politicians, of the process, and should be tested at the political level.

Concerned Senators and indeed all of the Senate should have been involved in the site selection decision
that had been taken. However, as the incumbent and responsible Minister Pitt is now in the House of
Representatives, what does this make of former Minister Canavan’s snap decision? The decision on site
selection was announced on Saturday morning 1 February 2020, and by the afternoon Senator Canavan
had resigned

Thus, herein lies the public interest test. Former Minister Canavan’s conduct in the whole site selection
process, and his behaviour in many other non-aligned issues, raises a number of concerns about the
process. The haste with which the Amendment Bill is now progressing needs to be halted until all
contentious matters have been satisfactorily addressed.

9. The Senate Inquiry of 2018 did not examine the legal ramifications of establishing a nuclear waste storage
facility in SA. Indeed, it appears that the most practical and sensible approach has never been
considered. It is this, as I described in my submission in September 2019 -….
[ goes on to question the siting of nuclear waste on agricultural land]…… [I was unable to copy further]

June 11, 2020 - Posted by | AUSTRALIA - NATIONAL, Federal nuclear waste dump, legal, politics

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