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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL RADIOACTIVE WASTE MANAGEMENT AMENDMENT (SITE
SPECIFICATION, COMMUNITY FUND AND OTHER MEASURES) BILL 2020
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Minister for Resources, Water and Northern Australia,
the Honourable Keith Pitt, MP)
AMENDMENT TO THE NATIONAL RADIOACTIVE WASTE MANAGEMENT
AMENDMENT (SITE SPECIFICATION, COMMUNITY FUND AND OTHER
MEASURES) BILL 2020
OUTLINE
The National Radioactive Waste Management Amendment (Site Specification, Community
Fund and Other Measures) Bill 2020 (the Bill), introduced in the House of Representatives on
13 February 2020, amends the National Radioactive Waste Management Act 2012 (the Act).
The Bill specifies the site for a National Radioactive Waste Management Facility (the
facility), allows for the acquisition of additional specified land for the facility site if the need
is identified during facility development, and allows for the acquisition of land for additional
all-weather road access for the facility.
Legislation to enable the acquisition of additional land for the purpose of all-weather road
access is necessary to ensure that the government can meet any regulatory requirements to
construct secondary or emergency road access, if it is required by the regulator, the
Australian Radiation Protection and Nuclear Safety Agency (ARPANSA). It is not possible
to precisely pre-determine the location of additional all-weather road access that may be
required by ARPANSA.
Native title has been extinguished on the specified land for the facility, and it is not the
government's intention to extinguish native title on any land acquired for the purpose of
establishing the facility.
The Bill enables the Minister to exclude native title rights and interests from being acquired
or extinguished for the purposes of all-weather road access. These provisions are consistent
with section 14 of the existing Act, which allows the Minister to exercise discretion in
specifying the rights and interests that will be acquired when declaring the site for and
providing all-weather road access to the selected site.
Amendments are being made to the Bill to put beyond doubt that native title rights and
interests, within the meaning of the Native Title Act 1993, will not be acquired or
extinguished if additional land is acquired to provide for all-weather road access to the site
for the facility. These amendments expressly prevent the Commonwealth from being able to
acquire native title rights and interests if acquiring additional land under proposed section
19B.
FINANCIAL IMPACT STATEMENT
These amendments are not expected to have any financial impact.
CONSULTATION
Consultation on these amendments were undertaken with the Attorney-General's Department
and the Department of Prime Minister and Cabinet.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
National Radioactive Waste Management Amendment (Site Specification, Community Fund
and Other Measures) Bill 2020
This is an amended statement reflecting the government amendments to proposed new
section 19B.
The National Radioactive Waste Management Amendment (Site Specification, Community
Fund and Other Measures) Bill 2020 (the Bill) is compatible with the human rights and
freedoms recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Low level waste (LLW) and intermediate level waste (ILW) are largely by-products of vital
nuclear medicine, which, on average, one in two Australians will need in their lifetime.
LLW and ILW are currently stored in over 100 separate locations across Australia. The
National Radioactive Waste Management Facility (the Facility) will significantly improve
Australia's ability to safely and securely manage radioactive waste at a single site, rather than
at many sites across Australia, and to meet our international obligations under the Joint
Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste
Management, done at Vienna on 5 September 1997, as amended and in force for Australia
from time to time.
Overview of the Bill
The purpose of the Bill is to amend the National Radioactive Waste Management Act 2012
(the Act) to:
specify the site selected and enable acquisition of additional land for the Facility;
enable the establishment of a $20 million Community Fund to provide economic
and social sustainability for the community within which the Facility will be
located, so that the host community is able to support the establishment and
operation of the Facility in managing radioactive waste; and
provide clear and objective links between the operation of the Act and the relevant
Constitutional heads of power.
Human Rights Implications
This Bill engages the following rights:
Right to self-determination - Article 1 of the International Covenant on Civil and
Political Rights (ICCPR) and Article 1 of the International Covenant on Economic,
Social and Cultural Rights (ICESCR)
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Rights to equality and non-discrimination - Articles 2, 16 and 26 of the ICCPR
Right to take part in public affairs and elections - Article 25 of the ICCPR
Right to enjoy and benefit from culture - Article 27 of the ICCPR and Article 15 of
the ICESCR
Right to self-determination
The right to self-determination entitles people to freely determine their political status and
freely pursue their economic, social and cultural development and, for their own ends, to
freely dispose of their natural wealth and resources without prejudice to any obligations
arising out of international economic co-operation, based upon the principle of mutual
benefit, and international law; in no case may a people be deprived of its own means of
subsistence (Article 1 ICCPR, Article 1, ICESCR).
This right is specifically focussed on groups in the community, particularly Indigenous
groups.
The land specified in the Bill as the site for the Facility was voluntarily nominated by its
owners, and is part of an estate in freehold owned by private entities. This land will be
acquired by the Commonwealth through the provisions in the Bill. Some people within the
local community did not support the nomination of the land for use as a radioactive waste
facility. In particular, the Board of the Barngarla Determination Aboriginal Corporation
stated its opposition to the proposal. However, the nomination was strongly supported by the
broader local community.
All people who may be affected by the location and operation of the Facility were invited to
express their views about the potential impact of the proposed Facility on them. Many people
in the local community engaged closely with the Government on the proposal. The level of
engagement and local community support is evidenced in the outcome of a community ballot
(conducted by the Australian Electoral Commission), which took place over a five-week
period from Thursday 3 October to Thursday 7 November 2019. The question posed to
members of the community was: "Do you support the proposed National Radioactive Waste
Management Facility being located at one of the nominated sites in the community of
Kimba?"
90.41 percent of eligible voters responded to the ballot, with a total of 734 formal votes.
Of those who responded, 452 (61.58 percent) voted yes.
The specification of the site in the Bill reflects the Government's response to broad
community support for a Facility. Ongoing consultation positively engages the right to self-
determination by ensuring that people continue to have a say in the establishment of the
Facility, and continue to be treated respectfully. The process leading up to selecting the site
involved extensive consultation and information sharing with local communities, Traditional
Owners and others with an interest in the location of the Facility.
Native Title rights have been extinguished at the specified site; however, Aboriginal heritage,
either tangible or intangible, may still be present. The land was voluntarily nominated by its
owners for selection as the site for the Facility. Additionally, the process for acquiring any
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additional land to extend the site for the purposes of establishing and operating the Facility or
for all-weather road access includes a consultation period.
In relation to the acquisition of all-weather road access, the Bill enables the Minister to
exclude rights or interests (e.g. a right of access, a contractual right) from being acquired
where it is determined that the rights or interests are not necessary to establish and operate
all-weather road access for the facility.
Proposed subsection 19B specifies that native title rights and interests cannot be acquired by
notifiable instrument. This makes clear on the face of the legislation that native title rights or
interests cannot be compulsorily acquired or extinguished under this act by the acquisition of
additional land for all-weather road access.
The consultation requirements to establish the Community Fund will ensure that the
NRWMF Community Fund entity is representative of a broad range of views in the host
community, including that of the local Aboriginal community. The consultation requirement
is a mechanism for ensuring that the host community can determine spending that will
positively affect its future, including a focus on the development of the local Aboriginal
community economy.
To the extent that the amendments engage the right to self-determination, they do so in a
reasonable and proportionate way and do not operate to limit or restrict those rights.
Right to equality and non-discrimination
The right to equality and non-discrimination entails a number of separate elements within the
Articles of the ICCPR:
Article 2: Each State Party to the present Covenant undertakes:
- to respect and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the ICCPR, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status;
- to take the necessary steps, in accordance with its constitutional processes and
with the provisions of the ICCPR, to adopt such legislative or other measures as
may be necessary to give effect to the rights recognised in the ICCPR; and
- to ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity.
Article 16: Everyone shall have the right to recognition everywhere as a person
before the law.
Article 26: All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status.
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The objective of this right is that laws, policies and programs should not be discriminatory,
and public authorities should not apply or enforce laws, policies and programs in a
discriminatory or arbitrary manner.
To the extent that it creates or recognises a person's rights or obligations the Bill does not,
either directly or indirectly, draw distinctions between people or groups on the basis of race,
colour, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status.
The right to equality and non-discrimination is engaged because the Commonwealth proposes
to acquire, occupy and use an area of land that is home to a diverse local community. The
decision to acquire the site for the Facility should appropriately recognise the rights and
interests of all members of the local community.
It is sometimes necessary to treat people differently to achieve equality. This is because
differences between people may make it difficult for them to enjoy their rights without
support. Different treatment does not amount to prohibited discrimination if the criteria for
the differentiation are reasonable and objective, and if the aim is to achieve a purpose which
is legitimate under the ICCPR.
To inform the identification of a site for the location of the Facility, significant engagement
activities occurred between 2015 and 2019 to raise awareness within local communities about
the potential Facility and ascertain the level of community sentiment for locating the Facility
within their communities. In recognition of the variety of stakeholders with an interest in the
Facility, views were sought through a range of government-led and privately conducted
community sentiment indicators. These include council-run community ballots, private
ballots, public submissions, parliamentary submissions, neighbour surveys, business surveys,
petitions and ministerial correspondence.
While various mechanisms were used to ensure all voices were heard for the purposes of
gauging 'broad community support for hosting the facility', some mechanisms used to inform
community sentiment were limited to specific community groups to enable express
consideration of the potential socio-economic impacts of, or particular socio-economic
interests in, the Facility. This entailed relying on the local government area (LGA)
boundaries that provide an appropriate representation of the scope of that community.
LGAs are generally constructed around key population centres and often map the social and
economic connections that define those communities as being separate to neighbouring
communities.
There may also be overlap between respondents within different indicator groups. For
example, a person may have responded in a ballot and in a petition, or a resident may have
cultural ties to the land in addition to owning a business in the local area. This is indicative of
the many different ways in which individuals may identify as a part of their community and
be able to participate in the community sentiment engagement activities.
Additionally, the Bill positively differentiates between the Facility's host community and the
broader public by providing for the establishment of a $20 million Community Fund. This
fund is designed to ensure the ongoing economic and social sustainability of the host
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community, so that it is able to support the establishment of the Facility and the ongoing safe
and secure management of controlled material at the Facility when it is established. The
Community Fund will contribute to sustainable health services, agriculture research and
development, enhancements to local critical infrastructure, and further development of the
Aboriginal community economy.
To the extent that the amendments engage with rights to equality and non-discrimination,
they do so in a reasonable and proportionate way and do not operate to limit or restrict those
rights.
Right to take part in public affairs and elections
In the Australian context, the right to take part in public affairs and elections guarantees the
right of Australian citizens to stand for public office, to vote in elections and to have access to
positions in public service (Article 25, ICCPR).
For each of the sites nominated as a potential site for the Facility there has been positive
recognition of the right to engage in public affairs, through public information and
discussion, ballots and the invitation to make comments on the merits of the proposed
Facility and its location. Significant engagement activities occurred between 2015 and 2019
to inform the communities about the potential facility and ascertain the level of community
sentiment for locating the Facility within their communities, including:
staffing local offices with locally employed community engagement officers in
each community;
establishing and facilitating engagement through the communities' Consultative
Committees, Economic Working Groups and a Heritage Working Group;
the provision of information about the various aspects of the facility proposal
through a variety of methods including community visits by technical specialists,
social media, webinars, workshops, information sessions, and distribution of
newsletters, fact sheets and independent reports;
public education visits to the Australian Nuclear Science and Technology
Organisation for community members to learn about nuclear waste management;
direct consultation with neighbours, businesses and Traditional Owners, including
through surveys;
a public submissions process for those both within and outside of the communities
to express their views was open between 1 August 2018 and 12 December 2019;
and
community ballots undertaken by the Australian Electoral Commission,
commissioned by the District Council of Kimba and the Flinders Ranges Council.
To the extent that the amendments engage with the right to take part in public affairs and
elections, they do so in a reasonable and proportionate way and do not operate to limit or
restrict those rights.
Right to enjoy and benefit from culture
The right to enjoy and benefit from culture includes:
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the right of individuals belonging to ethnic, religious and linguistic minorities
within a country to enjoy their own culture, practise their own religion and use
their own language (Article 27, ICCPR);
the right of all people to take part in cultural life; to enjoy the benefit of scientific
progress and its applications; and to benefit from the protection of the moral and
material interests resulting from any scientific, literary or artistic production of
which he or she is the author (Article 15, ICESCR).
The Bill engages this right because the development of a facility on the specified site may
impinge on the freedom of people to engage in certain cultural practices on that land.
However:
It is unlikely that the right of individuals to enjoy their own culture, practise their
own religion and use their own language is directly affected, as the specified site is
privately owned and used for agricultural purposes.
There are currently no identified registered places or objects of cultural significance
to Aboriginal people on the specified site. However, should a culturally significant
finding be made on the specified site in future, the Environment Protection and
Biodiversity Conservation Act 1999 will operate to provide protections for cultural
heritage or archeologically significant sites or artefacts.
People may benefit from the location of the Facility within their community
through access to employment and through the financial support provided by the
Community Fund.
People will continue to benefit from scientific progress and its application, through
the delivery of nuclear medicine, as the establishment of a Facility represents an
important phase in the nuclear medicine cycle.
To the extent that the amendments engage with the right to enjoy and benefit from culture,
they do so in a reasonable and proportionate way and do not operate to limit or restrict those
rights.
Conclusion
The Government has assessed the Bill's compatibility with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of Human Rights
(Parliamentary Scrutiny) Act 2011.
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.
Minister for Resources, Water and Northern Australia,
the Hon Keith Pitt MP
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NOTES ON GOVERNMENT AMENDMENTS
(1) Schedule 1, item 15, page 7 (after line 24), at the end of subsection 19B(1):
This amendment adds a note at the end of new subsection 19B(1). The note states that 'any
native title rights and interests that exist in relation to the land proposed for acquisition
under this section are not affected by this section (see subsection (3))'.
The amendments make reference to proposed subsection 19B(3) which provides that rights
and interests specified in an instrument made under s19B(1) are acquired by the
Commonwealth. This section is also being amended to exclude native title rights and interests
from being acquired.
(2) Schedule 1, item 15, page 7 (line 31), after "than", insert "any native title rights and
interests that exist in relation to the land and":
Proposed subsection 19B(1), inserted by the Bill, empowers the responsible Minister to
specify in a notifiable instrument an area of additional land to be acquired for the purpose of
all-weather road access, and to specify any rights or interests that are not acquired.
Proposed section 19B(3) provides that at the time an instrument under proposed section
19B(1) takes effect the rights and interests in the land are acquired by the Commonwealth
and freed and discharged from all other rights and interests, save those rights and interests
specified as not required under the instrument.
This amendment makes clear that any native title rights and interests that exist in relation to
the land will not be acquired or extinguished as part of this process.
(3) Schedule 1, item 15, page 8 (after line 4), at the end of section 19B, add:
This amendment inserts new subsection 19B(4) which states that, for the purposes of
proposed section 19B, the term "native title rights and interests" has the same meaning as in
the Native Title Act 1993.
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OTHER AMENDMENTS TO THE EXPLANATORY MEMORANDUM
Background
This supplementary explanatory memorandum also incorporates additional material to the
explanatory memorandum to the National Radioactive Waste Management Amendment (Site
Specification, Community Fund and Other Measures) Bill 2020. This additional material
makes clear that the Community Fund is intended to be managed and controlled by the host
community so as to support its economic and social sustainability as the NRWMF host
community.
Amendments to the Explanatory Memorandum
The Explanatory Memorandum is amended as set out below.
1. In the third paragraph of the Outline, on page 3, repeal:
The Bill makes amendments to enable regulations to prescribe a NRWMF
Community Fund entity, which would receive the NRWMF Community Fund
Payment be used to support economic and social sustainability of the NRWMF host
community.
Substitute:
The Bill makes amendments to enable regulations to prescribe a NRWMF
Community Fund entity, which would receive the NRWMF Community Fund
Payment intended to be managed and controlled by the host community. The new
provisions ensure that the NRWMF Community Fund Payment is used to meet the
needs of the NRWMF host community, making clear that the fund is to be used to
support its economic and social sustainability.
2. In the Financial Impact Statement, on page 3, after "a single payment of $20 million to
the" insert "NRWMF host community controlled".
3. In paragraph 101, on page 21, after "NRWMF host community", insert "to enable it to".
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