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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL RADIOACTIVE WASTE MANAGEMENT BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Resources and Energy,
the Honourable Martin Ferguson AM, MP)
NATIONAL RADIOACTIVE WASTE MANAGEMENT BILL 2010
Outline
The purpose of the Bill is to establish a facility for managing at a single
site, radioactive waste currently stored at a host of locations across the
country.
It will ensure the safe and responsible management of this waste arising
from medical, industrial and research uses of radioactive material in
Australia.
The Bill ensures the Commonwealth's power to make arrangements for the safe
and secure management of radioactive waste generated, possessed or
controlled by the Commonwealth.
Schedule 1
Schedule 1 of the Bill repeals the Commonwealth Radioactive Waste
Management Act 2005 (the current Act) and amends the Administrative
Decisions (Judicial Review) Act 1977 (the ADJR Act).
The current Act provides that no person is entitled to procedural fairness
in relation to the key decisions to be made under the Act. The Bill will
require the Government to accord procedural fairness in relation to such
decisions.
Key decisions under the current Act are not susceptible to review under the
ADJR Act. Decisions under the Bill will be reviewable.
The repeal and amendment satisfies a 2007 ALP Platform commitment.
The Minister may also open a nation-wide volunteer site-nomination process.
In deciding to allow such nominations, the Minister would need to have
regard to whether it is unlikely that a facility will be able to be
constructed and operated on Aboriginal land that has been nominated as a
potential site under clause 4, whether or not that land has been approved
as a site under clause 8.
The Government has removed from further consideration three sites on
Defence land in the Northern Territory identified by the former Government.
These sites were at Harts Range (Alcoota) and Mount Everard in the Alice
Springs region and Fishers Ridge in the Katherine region.
Schedule 2
In 2007, a site on Ngapa clan land at Muckaty Station in the Northern
Territory was nominated and approved as a site under the current Act. The
Government will honour the commitment made to the Ngapa traditional owners.
Accordingly, Schedule 2 contains a saving provision to ensure that the site
will remain an approved site. The Bill will not introduce procedural
fairness requirements in relation to the existing nomination and approval
of this site, but procedural fairness requirements will apply to any
decision to select the site as the site for a facility.
Part 2-Nomination of sites
Part 2 of the Bill provides that a Land Council in the Northern Territory
may nominate land as a potential site. Under the existing Site Nomination
Deed, the Northern Land Council is entitled to nominate other sites on
Ngapa land. This provision will enable that entitlement to continue.
The Minister may also open a nation-wide volunteer site-nomination process.
In deciding to allow such nominations, the Minister must have regard to
whether it is unlikely that a facility will be able to be constructed and
operated on Aboriginal land that has been nominated as a potential site
under clause 4, whether or not that land has been approved as a site under
clause 8.
Procedural fairness requirements will apply to any decision to approve a
potential site and to any decision to open the nation-wide site-nomination
process.
Part 3-Selecting the site for a facility
Part 3 of the Bill allows relevant persons to conduct activities for the
purpose of selecting a site.
Certain State, Territory and Commonwealth laws will not apply to activities
under Part 3 to the extent that they would regulate, hinder or prevent
these activities.
Part 4-Acquisition or extinguishment of rights and interests
Part 4 of the Bill allows the Minister to select a site as the site for a
facility, and also to identify an area of land required for providing all-
weather road access to the selected site. Procedural fairness requirements
will apply to these decisions.
Part 4 of the Bill allows for the acquisition or extinguishment of rights
and interests in relation to the selected site and land required for an
access road.
Part 4 of the Bill provides that the Minister may establish a regional
consultative committee, once a site has been selected for a facility.
Part 5-Conducting activities in relation to selected site
Part 5 of the Bill preserves rules in the current Act allowing relevant
persons to conduct activities in relation to the selected site.
Certain State, Territory and Commonwealth laws will not apply to activities
under Part 5 to the extent that they would regulate, hinder or prevent
these activities. However, 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 must be
complied with.
Part 6-Granting of rights and interest in land to original owners
Part 6 of the Bill preserves rules in the current Act allowing the Minister
to grant rights and interests in certain land acquired under the Bill back
to the original owners. This refers to land that was nominated by a Land
Council before the nation-wide volunteer site-nomination process.
Part 7-Miscellaneous
Part 7 of the Bill provides for the payment of compensation to persons
whose rights or interests are acquired, extinguished or otherwise affected
by the selection of a site for a facility.
Part 7 of the Bill also preserves rules in the current Act conferring
certain advantages on the Northern Territory if the site selected is one
nominated by a Land Council before the opening of the nation-wide volunteer
site-nomination process.
Scientific Rationale
Australia's current radioactive waste inventory stands at just over 4,020
m3 of low level and short-lived intermediate level radioactive waste, and
approximately 600 m3 of long-lived intermediate waste.
Most existing stores were not specifically designed for long term
radioactive waste storage. Centralisation minimises the risk of
inadvertent loss or control of radioactive material with consequential
safety and security risks.
Radioactive waste management is governed by rigorous national and
international standards. Extensive experience has been gained from over
100 low-level waste disposal facilities in more than 30 countries and a
range of geographic conditions.
Once the facility is constructed, low level waste will be disposed of by
burial. This waste includes lightly contaminated laboratory waste, such as
paper, plastic, glassware and protective clothing, contaminated soil, smoke
detectors and emergency exit signs.
Intermediate waste will be stored at the site. This includes waste from
production of nuclear medicines, waste arising from overseas reprocessing
of spent research reactor fuel and disused medical and industrial sources
such as radiotherapy sources and soil moisture meters.
Financial Impact
Overall, the financial impact of the legislation is considered to be
negligible. Provision for any costs, including any liability of the
Commonwealth to compensate persons for any acquisition etc. of their
interests in land affected by the Bill, would be sought to supplement the
existing administrated appropriation for Outcome 1 of the Department of
Resources, Energy and Tourism.
National Radioactive Waste Management Bill 2010
Notes on clauses
Part 1 - Preliminary
Clause 1 - Short Title
Provides for the Act to be cited as the National Radioactive Waste
Management Act 2010
Clause 2 - Commencement
Provides for the Act to commence on the day the Act receives the Royal
Assent.
Clause 3 - Definitions
This clause sets out the definitions of terms that are relied on in other
provisions throughout the Bill.
Part 2 - Nomination of sites
Clause 4 - Nomination by a Land Council
Clause 4(1) provides that a Land Council may, before the time when a
declaration under clause 5 takes effect, nominate Aboriginal land in the
area of the Land Council as a potential site.
Subclause 4(2) also provides rules in relation to such nominations.
Subclause 4(3) allows the Minister to request further information from a
nominator.
Subclause 4(4) provides that failure to comply with subsection (2) does not
invalidate a nomination.
Subclause 4(5) provides that a nomination under this clause is not a
legislative instrument. This provision is included to assist readers, as
the instrument is not a legislative instrument within the meaning of
section 5 of the Legislative Instruments Act 2003.
Clause 5 - Minister may declare that nominations can be made under section
6
Clause 5 will allow the Minister to allow persons with a threshold level of
interest in land in a State, the Northern Territory or the Australian
Capital Territory to nominate that land as a potential site for a facility.
Subclause 5(2) provides that it is a relevant consideration to the
Minister's exercise of power under clause 5 whether it is unlikely that a
facility will be able to be constructed and operated on Aboriginal land
that has been nominated as a potential site under clause 4, whether or not
that land has been approved as a site under clause 8.
To avoid doubt, it is the intention that such Aboriginal land includes land
to which Schedule 2 item 1(1) relates.
Subclause 5(4) provides that a declaration must be published in the Gazette
within 7 days of the declaration being made. However, subclause 5(5)
provides that a failure to comply with subclause 5(4) does not invalidate a
declaration.
Subclause 5(6) provides that a declaration made under subclause 5 is not a
legislative instrument. This provision is included to assist readers, as
the instrument is not a legislative instrument within the meaning of
section 5 of the Legislative Instruments Act 2003.
Clause 6 - Who may make nominations
Subclause 6(1) provides that clause 6 applies if a declaration under clause
5 is in effect, a person (or 2 persons jointly or in common) holds a
requisite interest in land in a State, the Australian Capital Territory or
the Northern Territory.
If clause 6 applies, then subclause 6(2) and (3) provide that the person or
persons may nominate the land as a potential site.
Clause 7 - Rules about nominations
Subclause 7(1) provides rules in relation to nominations made under clause
6. Subclause 7(4) provides that a failure to comply with any of these
rules does not invalidate a nomination.
Subclause 7(3) allows the Minister to request further information from a
nominator of the land.
Subclause 7(5) provides that a nomination under this clause is not a
legislative instrument. This provision is included to assist readers, as
the instrument is not a legislative instrument within the meaning of
section 5 of the Legislative Instruments Act 2003.
Clause 8 - Approval of nominated land
Clause 8, subject to clause 9, allows the Minister in his or her absolute
discretion to approve, in writing, land, or a specified part of land,
nominated as a site under clause 4 or clause 6. The approval must be
published in the Gazette within seven days of the approval being made. The
clause provides that a failure to gazette an approval, or a failure of a
nomination to which an approval relates to comply with the relevant rules
of nomination, will not invalidate an approval.
Subclause 8(7) provides that an approval is not a legislative instrument.
This provision is included to assist readers, as the instrument is not a
legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003.
Clause 9 - Procedural fairness in relation to Minister's declarations and
approvals
Subclauses 9(1) and (2) provide that the Minister must give a notice to
each Land Council and publish a notice in the Gazette and a national daily
newspaper stating that the Minister proposes to make a declaration under
clause 5 and inviting comments on the proposed declaration.
Subclause 9(3) provides that in deciding whether to make a declaration
under clause 5, the Minister must take into account any relevant comments
received in response to an invitation.
Subclauses 9(4) and (5) provide that the Minister must give a notice to
each nominator and publish a notice in the Gazette, a national daily
newspaper and any local newspaper circulating in the area in which the land
is situated, stating that the Minister proposes to approve land under
clause 8 and inviting comments on the proposed approval by nominators and
persons with a right or interest in the land.
Subclause 9(6) provides that in deciding whether to make an approval under
clause 8, the Minister must take into account any relevant comments
received in response to an invitation.
Subclause 9(7) provides that clause 9 is taken to be an exhaustive
statement of the requirements of the natural justice hearing rule in
relation to the Minister's decision whether to make a declaration opening
the nation-wide volunteer site nomination process and the Minister's
decision whether to approve land as a site.
Part 3 - Selecting the site for a facility
Clause 10 - Authority to conduct activities
Clause 10 allows the Commonwealth, a Commonwealth entity, a Commonwealth
contractor and an employee or agent of any of these persons to do anything
in a State or Territory necessary for or incidental to the purposes of
selecting a site on which to construct and operate a facility.
Subclause 10(3) provides a non-exhaustive list of things the Commonwealth
etc. may do.
Subclause 10(4) provides that a person doing a thing under this Part must:
. take all reasonable steps to ensure that the doing of the thing causes
as little detriment and inconvenience, and does as little damage, as is
practicable to the land and to anything on, or growing or living on,
the land; and
. remain on the land only for such period as is reasonably necessary; and
. leave the land, as nearly as practicable, in the condition in which it
was immediately before the thing was done.
Clause 11 - Application of State and Territory laws
Clause 11(1) provides that a law, or a provision of a law, of a State and
Territory, insofar as it relates to the matters described in this subclause
has no effect to the extent that it would, apart from this clause,
regulate, hinder or prevent the doing of a thing authorised by clause 10.
Clause 11(2) provides that the regulations may prescribe a law, or a
provision of a law, with the effect that that law etc. has no effect to the
extent that it would, apart from this subclause, regulate, hinder or
prevent the doing of a thing authorised by clause 10.
Clause 11(4) provides that the regulations may prescribe a law, or a
provision of a law, with the effect that the law etc. has effect despite
anything else in this clause.
Clause 12 - Application of Commonwealth law
Clause 12(1) provides that the Aboriginal and Torres Strait Islander
Heritage Protection Act 1984 and the Environment Protection and
Biodiversity Conservation Act 1999 have no effect to the extent that they
would, apart from this clause, regulate, hinder or prevent the doing of
activities authorised in clause 10.
Clause 12(2) provides that the regulations may prescribe another law, or a
provision of another law, with the effect that the law etc. has no effect
to the extent that it would, apart from clause 12, regulate, hinder or
prevent the doing of a thing authorised by clause 10.
Part 4 - Acquisition or extinguishment of rights and interests
Clause 13 - Minister's declaration of land as selected site or required for
road access
Subclause 13(1) provides that clause 13 applies if land has been both
nominated and approved as a site.
Subclause 13(2) provides that, subject to clause 17, the Minister may, in
his or her absolute discretion, declare in writing that the site approved
by the Minister, or a specified part of the site, is selected as the site
for a facility. The declaration may specify all or some of the rights in
interests in the selected site. The effect of selecting a site is that
Part 5 applies in relation to the selected site. The effect of specifying
rights or interests in the selected site is that clause 18 applies in
relation to those rights and interests.
Subclause 13(3) provides that the Minister may not, after the general
nomination start time, make a declaration under subclause 13(2) in relation
to land nominated by a Land Council as a site under clause 4.
Subclause 13(4) provides that , subject to clause 17, the Minister may, in
his or her absolute discretion, declare in writing that all or specified
rights or interests in land in a State or Territory specified in the
declaration are required for providing all-weather road access to the
selected site. The effect of specifying rights or interests is that clause
18 applies in relation to those rights and interests.
Subclause 13(5) provides that, to avoid doubt, rights and interests
specified in a declaration under subclause 13(2) or (4) includes rights to
minerals (if any), native title rights and interests (if any), an interest
in land that did not previously exist, and an easement in gross (if any).
Subclause 13(6) provides that a declaration under subclause 13(2) or (4) is
not a legislative instrument. This provision is included to assist
readers, as the instrument is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003.
Clause 14 - Formalities relating to Minister's declarations
Subclause 14(1) provides that a declaration under clause 13 must be
published in the Gazette within 7 days of the declaration being made.
However, subclause 13(2) provides that a failure to comply with subclause
14(1) does not invalidate a declaration. Subclause 13(2) also provides
that failure to comply with this subclause or subclause 4(2), 5(4), 7(1) or
8(5) does not invalidate a declaration.
Clause 15 - When Minister's declarations take effect etc.
Subclause 15(1) provides that a Minister's declaration under clause 13(2)
or (4) takes effect at the time specified in the declaration, which must
not be earlier than the time the declaration is made.
Subclause 15(2) and (3) operate so that the Minister may make more than one
declaration under each of subclauses 13(2) and (4), but that there may only
be one declaration under subclause 13(2) in effect at a particular time.
That there may only be one declaration under subclause 13(2) in effect at a
particular time means that there is only one 'selected site' at a
particular time, and Part 5 may therefore only apply in relation to one
site at a particular time.
Clause 16 - Revocation of Minister's declaration
Subclause 16(1) provides the Minister may in his or her absolute discretion
revoke a declaration under subclause 13(2).
Subclause 16(3) provides that, to avoid doubt, the revocation of a
declaration made under subclause 13(2) does not affect the operation of
clause 18 in relation to the land to which the declaration relates but, on
and from the revocation, Part 5 does not apply to that land.
Subclause 16(4) provides that clause 17 does not apply to a revocation
under this clause.
Subclause 16(5) provides a copy of a revocation must be published in the
Gazette within 7 days of the declaration being made. However, subclause
16(6) provides that a failure to comply with subclause 16(5) does not
invalidate a revocation.
Subclause 16(7) provides that section 33(3) of the Acts Interpretation Act
1901 does not apply to a revocation. This subclause should not be taken to
imply that section 33(3) does not apply in relation to other clauses.
Clause 17 - Procedural fairness in relation to Minister's declarations
Clause 17 provides an entitlement to procedural fairness in relation to a
Minister's declaration under clause 13, and exhaustively describes that
entitlement.
Subclauses 17(1) and (2) provide that the Minister must give a notice to
each nominator and publish a notice in the Gazette, a national daily
newspaper and any local newspaper circulating in the area in which the land
is situated, stating that the Minister proposes to make a declaration under
clause 13 and inviting comments on the proposed declaration by nominators
of the land and persons with a right or interest in the land.
Subclause 17(3) provides that in deciding whether to make a declaration
under clause 13, the Minister must take into account any relevant comments
received in response to an invitation.
Subclause 17(5) provides that clause 17 is taken to be an exhaustive
statement of the requirements of the natural justice hearing rule in
relation to the Minister's decision whether or not to make a declaration
under clause 13.
Clause 18 - Acquisition or extinguishment
Subclause 18(1) has the effect of providing that, at the time of a
declaration under subclause 13(2) has effect, any rights or interest in the
selected site that are specified in the declaration are acquired by the
Commonwealth or extinguished and freed and discharged from all other rights
and interests and from all trusts, restrictions, dedications, reservations,
obligations, mortgages, encumbrances, contracts, licences, charges and
rates.
Subclause 18(2) has the effect of providing that, at the time of a
declaration under subclause 13(4) has effect, any rights or interest in the
selected site that are specified in the declaration are acquired by the
Commonwealth or extinguished and freed and discharged from all other rights
and interests and from all trusts, restrictions, dedications, reservations,
obligations, mortgages, encumbrances, contracts, licences, charges and
rates.
Clause 19 - Application of Commonwealth and State or Territory laws
Subclause 19(1) provides that clause 18 has effect despite any other law of
the Commonwealth, a State or a Territory (whether written or unwritten).
It is the intention that subclause 19(1) will apply to any law of the
Commonwealth, a State or a Territory, regardless whether that law is a law
of the State or Territory in which the selected site is located.
Subclause 19(2) has the effect of providing that, without limiting
subclause 19(1), clause 18 has effect despite the Lands Acquisition Act
1989 and the Native Title Act 1993.
Clause 20 - Notice to Registrar-General or other appropriate officer
Subclause 20(1) provides that the Secretary of the Department may lodge
with the Registrar-General, the Registrar of Titles or other appropriate
officer of a State, the Australian Capital Territory or the Northern
Territory, a copy of a Minister's declaration under clause 13, certified by
writing signed by the Secretary.
Subclause 20(2) provides that the officer with whom the copy is lodged may
deal with and give effect to it as if it were a grant, conveyance,
memorandum or instrument of transfer of relevant rights and interests done
under the laws of the State or Territory.
Clause 21 - Regional consultative committee
Subclause 21(1) provides that after a declaration under subclause 13(2)
takes effect, the Minister may, by writing, establish a committee to be
known as the regional consultative committee.
Subclause 21(2) provides that the functions of the committee are to
facilitate communication between the Commonwealth, the operator of the
facility (if any) at the selected site and persons living in or near the
region where the selected site is situated, and such other functions as are
prescribed under subclause 21(4)(a).
Subclause 21(3) provides that an instrument made under subclause (1) of
this clause is not a legislative instrument. This provision is included to
assist readers, as the instrument is not a legislative instrument within
the meaning of section 5 of the Legislative Instruments Act 2003.
Subclause 21(4) provides that the regulations may prescribe matters
relating to the committee, including, but not limited to, the following:
. the functions of the committee
. the operation and procedures of the committee
. membership of the committee
. term of appointment of members
. remuneration of members
. resignation of members
. disclosure of interests by members
. termination of appointment of members
. leave of absence of members.
Subclause 21(5) provides that if no regulations are in force under
subclause 21(4), the committee may operate in the way determined in writing
by the committee.
Part 5 - Conducting activities in relation to selected site
Clause 22 - Authority to conduct activities
This clause provides identified persons and classes of persons with the
authority to do certain things in relation to the selected site for a
facility or on land acquired for the purposes of providing all-weather road
access to the selected site.
Subclause 22(1) has the effect of providing that clause 22 applies to the
Commonwealth, a Commonwealth entity and a Commonwealth contractor as well
as an employee or agent of these persons.
Subclause 22(2) has the effect of providing that a person to whom clause 22
applies may, (in relation to the selected site), do anything necessary for
or incidental to any or all of the following:
. gathering or preparing information for a Commonwealth regulatory scheme
that relates to the construction or operation of a facility or anything
done in preparation for the construction or operation of a facility;
. conducting activities that relate to gathering or preparing information
for such a regulatory scheme;
. preparing the selected site for a facility;
. preparing to construct and operate a facility;
. constructing a facility;
. constructing roads on, or grading, land in a State or Territory;
. erecting fences and other access controls on land specified in the
declaration under subclause 13(4);
. operating a facility;
. maintaining a facility;
. keeping a facility safe;
. decommissioning a facility.
A Commonwealth regulatory scheme mentioned in subclause 22(2) includes, but
is not limited to, the Environment Protection and Biodiversity Conservation
Act 1999 and the Australian Radiation Protection and Nuclear Safety Act
1998.
Subclause 22(3) provides that, without limiting subclause 22(2), the person
may, under that subclause, do a thing mentioned in subclause 10(3) in
relation to the selected site.
Subclause 22(4) provides that subclause 22(2) extends to doing things
outside the selected site.
Subclause 22(5) provides that a person to whom clause 22 applies may, in
relation to the selected site, transport (including through a State or
Territory) people and materials (including controlled material) to or from
a facility; and use transport infrastructure for that transport.
Clause 23 - Application of State and Territory laws
Clause 23 limits the application of State and Territory laws in specified
ways.
Subclause 23(1) has the effect of providing that a law (or a provision of a
law) of a State or Territory (whether written or unwritten) so far it
relates to:
. the use or proposed use of land or premises; or
. the environmental consequences of the use of land or premises; or
. the archaeological or heritage values of land, premises or objects
(including the significance of land, premises or objects in the
traditions of Indigenous people); or
. controlled material, radioactive material or dangerous goods; or
. licensing (however described) in relation to employment, carrying on a
particular kind of business or undertaking or conducting a particular
kind of operation or activity,
has no effect to the extent that it would (apart from clause 23) regulate,
hinder or prevent the doing of a thing authorised by clause 22.
Subclause 23(2) provides that a law (or provision of a law) of a State or
Territory (whether written or unwritten), so far as it relates to the
transport of controlled material, radioactive material or dangerous goods,
has no effect to the extent that it would (apart from clause 23) regulate,
hinder or prevent transport authorised by clause 22.
Subclause 23(3) provides that the regulations may prescribe a law (or
provision of a law) of a State or Territory for the purposes of subclause
23(3) as a law or provision that has no effect to the extent that it would
(apart from subclause 23(3)) regulate, hinder or prevent the doing of a
thing authorised by clause 22.
Subclause 23(4) provides that regulations made for the purposes of
subclause 23(3) may prescribe a law (or a provision of a law) whether or
not it is a law or provision of a kind described in subclause 23(1) or (2).
Subclause 23(5) provides that the regulations may prescribe a law (or
provision of a law) of a State or Territory for the purposes of subclause
23(5). The prescribed law or provision has effect despite anything else in
subclause 23.
Clause 24 - Application of Commonwealth laws
Subclause 24(1) provides that the regulations may prescribe a law (or
provision of a law) of the Commonwealth for the purposes of subclause 24(1)
as a law or provision that has no effect to the extent that it would (apart
from subclause 24(1)) regulate, hinder or prevent the doing of a thing
authorised by clause 22.
Subclause 24(2) provides that the regulations must not prescribe any of the
following laws, or any provision of the following laws:
the Australian Radiation Protection and Nuclear Safety Act 1998;
the Environment Protection and Biodiversity Conservation Act 1999;
the Nuclear Non-Proliferation (Safeguards) Act 1987.
Part 6 - Granting of rights and interests in land to original owners
Clause 25 - Application of Part
Subclause 25 sets out how Part 6 applies to a declaration under subclauses
13(2) and (3). However, subclause 25(3) provides that Part 6 does not apply
to a declaration under subclause 13(2) or (3) if the declaration relates to
land nominated under the nation-wide volunteer site nomination process.
Subclause 25(1) provides that Part 6 applies if:
a) immediately before a declaration under subclause 13(2) took effect,
land that was the subject of the declaration was Aboriginal land (the
relevant land); and
b) as a result of the declaration, the Commonwealth acquired (under clause
18) an estate in fee simple in the relevant land; and
c) a facility on the relevant land has been abandoned in accordance with
the Australian Radiation Protection and Nuclear Safety Act 1998; and
d) the Commonwealth holds an estate in fee simple in the relevant land.
Subclause 25(2) provides that Part 6 applies if:
. immediately before a declaration under subclause 13(4) took effect, all
or part of the land that was the subject of the declaration was
Aboriginal land (the whole, or that part, of the land being relevant
land); and
. as a result of the declaration, the Commonwealth acquired, under clause
18, rights or interests in the relevant land; and
. the facility mentioned in subclause 25(1)(c) has been abandoned in
accordance with the Australian Radiation Protection and Nuclear Safety
Act 1998; and
. the Commonwealth holds all or some of those rights or interests in the
relevant land.
Subclause 25(3) provides that this Part does not apply to a declaration
referred to in subsection (1) or (2) if the declaration relates to land
nominated under clause 6.
Abandonment of a facility under the Australian Radiation Protection and
Nuclear Safety Act 1998 means that the facility has been released from
regulatory control. This cannot occur until decommissioning and any
subsequent monitoring have been completed.
Clause 26 - Declaration of intention to grant rights and interests in land
to original owners
Subclause 26(1) provides that the Minister may (in his or her absolute
discretion) declare in writing that the land that was the subject of the
declaration under subclause 13(2) is no longer required for the facility
mentioned in subclause 25(1)(c).
Subclause 26(2) provides that the declaration must:
a) specify all the relevant land; and
b) state that the Minister intends to make a declaration under clause 27
granting the rights and interests specified in clause 28 in specified
land to a specified Land Trust.
Subclause 26(3) provides that land specified under paragraph 26(2)(b) may
be all or part of the relevant land, but all of the specified land must, in
total, be all of the relevant land. This allows for different specified
parts of the relevant land to be returned to different Land Trusts.
Subclause 26(4) provides that a Land Trust may be specified under paragraph
26(2)(b) in relation to specified land only if:
a) the Land Trust held title to the specified land immediately before the
declaration under subclause 13(2) or (4) (as the case may be) took
effect; or
b) the Land Trust has succeeded to the functions of a Land Trust mentioned
in paragraph (4)(a).
Subclause 26(5) provides that, within 7 days of the declaration being made,
the Minister must publish a copy of the declaration in the Gazette and
notify a specified Land Trust in writing that the Minister intends to make
a declaration under clause 27.
Subclause 26(6) provides that a declaration is not valid unless it
specifies and states the matters mentioned in subclause 26(2) and the
Minister complies with subclause 26(5).
Subclause 26(7) provides that a Land Trust specified in the declaration may
consent in writing to the granting of the rights and interests specified in
clause 28 in the specified land.
Subclause 26(8) provides that a declaration made under subclause 26(1) is
not a legislative instrument. This provision is included to assist
readers, as the declaration is not a legislative instrument within the
meaning of section 5 of the Legislative Instruments Act 2003.
Subclause 27 - Declaration granting rights and interests in land to
original owners
Subclause 27(1) provides that the Minister must make a declaration in
writing that an estate in fee simple is granted in specified land to a
specified Land Trust if the Commonwealth holds an estate in fee simple in
the specified land and the specified Land Trust has, under subclause 26(7),
consented to the granting of an estate in fee simple in the specified land
within:
. 12 months of the day on which the declaration under clause 26 was
published in the Gazette; or
. such longer period as is prescribed in the regulations.
Subclause 27(2) provides that the Minister must make a declaration in
writing that the rights and interests specified in subclause 28(3) are
granted in specified land to a specified Land Trust if the Commonwealth
holds rights or interests (other than an estate in fee simple) in the
specified land and the specified Land Trust has, under subclause 26(7),
consented to the granting of the rights and interests specified in
subclause 28(3) in the specified land within:
. 12 months of the day on which the declaration under clause 26 was
published in the Gazette; or
. such longer period as is prescribed in the regulations.
Clause 27(3) provides that a declaration has effect at the time specified
in the declaration (which must not be earlier than the time the declaration
is made).
Subclause 27(4) provides that a declaration made under subclause 27(1) or
(2) is not a legislative instrument. This provision is included to assist
readers, as the declarations are not legislative instruments within the
meaning of section 5 of the Legislative Instruments Act 2003.
Subclause 27(5) provides that the Minister may include one or more
declarations under subclause 27(1) and (2) in the same document.
Clause 28 - Grant of rights and interests in land to original owners
Clause 28 provides for the grant of rights and interests in land to
original owners as a grant of estate in fee simple (subclauses 28(1) and
(2)), a grant of other rights and interests (subclause 28(3)) and the
effect on the validity of earlier rights, interests and actions (subclause
28(4)).
Subclause 28(1) provides that, if the Minister makes a declaration under
subclause 27(1), then at the time the declaration has effect an estate in
fee simple is granted (by force of subclause 28(1)) in the specified land
to the specified Land Trust and the land is taken, for all purposes, to be
Aboriginal land.
Subclause 28(2) provides that the estate in fee simple is subject to the
reservations that:
. the right to any minerals existing in their natural condition, or in a
deposit of waste material obtained from any underground or surface
working, on or below the surface of the land (being minerals all
interests in which are vested in the Commonwealth) remains with the
Commonwealth; and
. rights to explore for minerals, and leases or licences to mine for
minerals, on or below the surface of the land may be granted under
section 124 of the Lands Acquisition Act 1989.
Subclause 28(3) provides that, if the Minister makes a declaration under
subclause 27(2), then at the time the declaration has effect, any rights
and interests that are held by the Commonwealth in the specified land and
were acquired by the Commonwealth (under clause 18) in the specified land
from the specified Land Trust or another Land Trust, are granted (by force
of subclause 28(3)) in the specified land to the specified Land Trust.
Subclause 28(4) provides that the granting of rights and interests in land
under subclause 28(1) or (3) does not affect the validity of any rights or
interests acquired, created or granted (whether under this Act or
otherwise) in relation to the land or the validity of the construction,
operation, maintenance, decommissioning or abandoning of a facility on the
land, or the doing of any other thing in relation to the land, before the
declaration under clause 27 has effect.
Clause 29 - No earlier rights and interests granted
Clause 29 provides that, to avoid doubt, the making of a declaration under
clause 27 does not create or grant any rights or interests in land before
the declaration has effect.
Clause 30 - Application of Commonwealth, State and Territory laws
Clause 30 provides that clause 28 has effect despite any other law of the
Commonwealth, a State or a Territory (whether written or unwritten).
Clause 31 - Notice to Registrar General
Subclause 31(1) provides that the Secretary of the Department may lodge
with the Registrar-General for the Northern Territory (or other appropriate
officer) a copy of a Minister's declaration under clause 27, certified by
writing signed by the Secretary.
Subclause 31(2) provides that the officer with whom the copy is lodged may
deal with and give effect to it as if it were a grant, conveyance,
memorandum or instrument of transfer of relevant rights and interests done
under the laws of the Northern Territory.
Clause 32 - Indemnity by Commonwealth
Subclause 32(1) provides that the Commonwealth must indemnify each Land
Trust specified in a declaration under clause 27 and keep the Land Trust
indemnified against any action, claim or demand brought or made against the
Land Trust in respect of any liability arising from, or damage caused by,
ionising radiation from any act done or omitted to be done by or on behalf
of the Commonwealth in relation to the transport of controlled material to
or from or the management of controlled material at a facility on the land
specified in the declaration.
Clause 32(2) provides that the amount of the indemnity is reduced to the
extent to which any fault on the part of the Land Trust, or its employees,
agents or contractors, contributed to the liability or damage.
Clause 32(3) provides that subclause 32(1) does not apply in relation to an
action, claim or demand unless the Land Trust notifies the Commonwealth, in
writing, of the action, claim or demand as soon as practicable and the Land
Trust follows any directions of the Commonwealth in relation to the action,
claim or demand.
Clause 33 - Regulations
Clause 33 provides that the regulations may prescribe any modifications of
this Act that are necessary or convenient to deal with transitional matters
arising from the making of a declaration under clauses 26 or 27.
Part 7 - Miscellaneous
Clause 34 - Compensation
Subclause 34(1) provides that, if rights or interests are acquired,
extinguished or otherwise affected under clause 18, the Commonwealth is
liable to pay a reasonable amount of compensation to a person whose right
or interest has been acquired, extinguished or otherwise affected.
Subclause 34(2) provides that if the Commonwealth and the person do not
agree on the amount of the compensation, the person may institute
proceedings in the Federal Court of Australia for the recovery from the
Commonwealth of such reasonable amount of compensation as the court
determines.
Clause 35 - Compensation for acquisition of property
Subclause 35(1) provides that, if the operation of the Act would result in
an acquisition of property from a person otherwise than on just terms, the
Commonwealth is liable to pay a reasonable amount of compensation to the
person.
Subclause 35(2) provides that, if the Commonwealth and the person do not
agree on the amount of the compensation, the person may institute
proceedings in the Federal Court of Australia for the recovery from the
Commonwealth of such reasonable amount of compensation as the court
determines.
Subclause 35(3) defines acquisition of property, and just terms for the
purposes of clause 35. These terms are defined as having the same meaning
as in paragraph 51(xxxi) of the Constitution.
Clause 36 - Indemnity by Commonwealth and management of Northern Territory
controlled material for section 4 nominations
Subclause 36(1) provides that this clause applies if the selected site was
nominated under clause 4.
Subclause 36(2) provides that the Commonwealth must indemnify the Northern
Territory, and keep the Northern Territory indemnified against any action,
claim or demand brought or made against the Northern Territory in respect
of any liability arising from, or damaged caused by, ionising radiation
from any act done or omitted to be done by or on behalf of the Commonwealth
in relation to the transport of controlled material to or from, or the
management of controlled material, at a facility on the selected site.
Subclause 36(3) provides that the amount of the indemnity is reduced to the
extent to which any fault on the part of the State or Territory, or its
employees, agents or contractors, contributed to the liability or damage.
Subclause 36(4) provides that subclause 36(2) does not apply in relation to
an action, claim or demand unless the Northern Territory notified the
Commonwealth, in writing, of the action, claim or demand as soon as
practicable, and follows any directions of the Commonwealth in relation to
the action, claim or demand.
Subclause 36(5) provides that if controlled material that is generated by
activities in the Northern Territory is managed at a facility on the
selected site, the Commonwealth must not charge the Northern Territory for
the management.
Clause 37 - Severability-additional effect of Act
Clause 37 provides that, without limiting the effect apart from this
clause, the Bill also has effect it would have if:
. each reference to a facility were, limited to a facility within a
Territory; and
. each reference to the doing of things, or things done, on or in
relation to land was expressly limited to a reference to the doing of
things, or things done, or in relation to land within a Territory.
This clause is designed to ensure that the Bill is capable of being read
down so that it is supported by section 122 of the Constitution.
Clause 38 Regulations
Clause 38 provides that the Governor-General may make regulations
prescribing matters required or permitted by this Act to be prescribed, or
necessary or convenient to be prescribed for carrying out or giving effect
to this Act.
Schedule 1 -Repeal and consequential amendment
Part 1 - Repeal of the Commonwealth Radioactive Waste Management Act 2005
Item 1 repeals the Commonwealth Radioactive Waste Management Act 2005.
Part 2 - Consequential amendment
Item 2 repeals paragraph (zc) of Schedule 1 of the Administrative Decisions
(Judicial Review) Act 1977.
Schedule 2- Transitional provisions
Item 1 - Saving - nominations
Item 1(1) provides that despite the repeal of Part 1A of the Commonwealth
Radioactive Waste Management Act 2005 by item 1 of Schedule1, a nomination
under section 3A of the old radioactive law continues in force, after the
commencement time, as if it had been made under clause 4 of the new
radioactive law.
Item 1(2) provides that despite the repeal of Part 1A of the Commonwealth
Radioactive Waste Management Act 2005 by item 1 of Schedule1, an approval
under section 3A of the old radioactive law continues in force, after the
commencement time, as if it had been made under clause 17 of the new
radioactive law.
Item 1(3) provides that section 9 of the old radioactive law and the old
ADJR Act continue to apply, after the commencement time, in relation to a
nomination or approval continued in force by this item.
Item 1(4) provides that clause 9 of the new radioactive law (and the new
ADJR Act) does not apply in relation to an approval continued in force by
this item.
Item 1(5) provides that to avoid doubt, clause 17 of the new radioactive
law applies in relation to a declaration under clause 13 of the new
radioactive law that relates to an approval continue in force by this item.
Item 1(6) provides definitions for Item 1.