25 May 2010

Nuclear waste storage facility one step closer

Australia will soon have a national radioactive waste management facility at a selected site in the Northern Territory, as it looks likely that the National Radioactive Waste Management Bill 2010 will soon be passed. This follows a recommendation by the Senate's Legal and Constitutional Affairs Legislation Committee which has recommended that the Senate pass the Labor Government's Bill, which in turn follows the announcement by the federal coalition back in March this year of its intention to support the Bill.

Broadly, the Bill does two things:

  • it repeals the politically controversial Commonwealth Radioactive Waste Management Act 2005 (CRWM Act), in keeping with the Labor Government's 2007 election promise to do so; and
  • it makes provision for the selection of a single site for the establishment and operation of a national radioactive waste management facility to store low grade radioactive waste arising from medical, industrial and research uses.

Brief overview of the Bill

Specifically, the Bill does several things.

It sets out the process by which an Aboriginal Land Council may nominate Aboriginal land as a potential site on which a facility may be constructed. It also allows the Minister for Resources and Energy to provide an opportunity to other persons holding an interest in land to voluntarily nominate potential sites.

It allows the Minister, once a site is nominated, to approve, in his or her absolute discretion, land nominated, as a site. The Minister may then declare the nominated site, as the site for a facility and also declare the area required to provide all-weather road access to the selected site.

The Bill provides for the acquisition or extinguishment of all rights or interests in the selected site and requires the Commonwealth to pay compensation to those persons whose rights or interest have been acquired or extinguished.

In addition, the Bill allows the Minister to establish a regional consultative committee in relation to the selected site. The recommendation to the Senate proposes that this should be a mandatory obligation immediately following the selection of a site for the radioactive waste facility.

Relevant features of the Bill

One of the stated objectives of the Bill is to introduce a procedural fairness requirement in relation to decisions made about the nomination, approval and selection of the site. This procedural fairness requirement is denied by the current CRWM Act and is one of the reasons for its repeal. Unlike the current CRWM Act, decisions under the Bill are now reviewable under the Administrative Decisions (Judicial Review) Act 1977. The new Bill requires the Minister to invite and take into account comments from the public in relation to its decision to allow voluntary nominations of potential sites and also any decision to approve nominated land as a site. The Bill also requires the Minister to invite comments from persons with a right or interest in the land and the nominators of the land and take those comments into account when deciding to declare the site selected for the facility.

Excluded from the new procedural fairness requirement is the existing site at Muckaty Station in the Northern Territory, in so far as the nomination and approval of the site is concerned. However, the procedural fairness requirement will still apply to a decision to select the site as the site for the facility.

An interesting aspect of the Bill, which it shares with its predecessor (the CRWM Act), is that it deems ineffective any Commonwealth, State or Territory law to the extent that any law hinders or prevents the Commonwealth from doing anything necessary regarding the site, including: selecting a site, conducting activities in relation to the site and constructing, operating and maintaining a facility on the site. This includes overriding State and Territory laws relating to environmental land use, archaeological sites, aboriginal heritage and the control and transport of radioactive material or dangerous goods. The only exception to this is that the Australian Radiation Protection and Nuclear Safety Act 1998, the Environment Protection and Biodiversity Conservation Act 1999 and the Nuclear Non-Proliferation (Safeguards) Act 1987, continue to apply in relation to activities conducted in relation to the selected site.

Why is this significant for nuclear energy law in Australia?

It is significant because, like the CRWM Act, it is an example of how the Commonwealth can use its powers to override certain state and territory laws that would otherwise hinder or prevent the establishment and operation of a radioactive waste facility.

Importantly, laws relating to radiation protection and nuclear safety under the Australian Radiation Protection and Nuclear Safety Act 1998 and the Nuclear Non-Proliferation (Safeguards) Act 1987) must be complied with, as well as laws relating to the protection of the environment and protected species under the Environment Protection and Biodiversity Conservation Act 1999.

Although the Bill does not specify the legislative power in the Constitution from which Parliament derives its authority to make such a law, it is possible that the scope of the external affairs power in section 51(xxix) of the Constitution and the power to make laws that are incidental to the exercise of the executive power in section 51 (xxxix) collectively allow a broad scope for the Commonwealth to make laws with respect to issues of nuclear safety. The South Pacific Nuclear Free Zone Treaty 1952 has been given effect to in Australia. The Commonwealth legislation giving effect to the treaty applies to all jurisdictions in Australia including the external Territories.

One example is the Australian Radiation Protection and Nuclear Safety Act 1998 which provides for the making of Codes of Practice to control certain activities so as to protect the health and safety of people and to protect the environment from the harmful effects of radiation and applies to the exclusion of State and Territory legislation prescribed by the regulations that provide safeguards for the control of radiation.

It is also possible that the Commonwealth is exercising its power to make laws incidental to the exercise of its external affairs power under section 51 (xxix) to introduce a law relating to the development of a radioactive waste facility which is incidental to the issue of nuclear safety.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.