National Radioactive Waste Magagement Amendment (Site Specification Community Fund and Other Measures) Bill 2020 [Provisions]

The Senate

Economics Legislation Committee

September 2020

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Contents

Members ...... v

Chapter 1—Introduction ...... 1 Referral of the inquiry ...... 1 Purpose of the Bill ...... 1 Background ...... 3 General background ...... 3 Attempts to establish a waste facility...... 5 Senate Economics References Committee–Selection process for a national radioactive waste management facility in South Australia inquiry, 2018...... 6 Provisions of the bill ...... 8 Schedule 1— Site specification ...... 8 Schedule 2—Establishment of Community Fund ...... 9 Schedule 3—Other amendments ...... 10 Consultation ...... 10 Compatibility with Human Rights ...... 11 Right to self-determination ...... 12 Right to equality and non-discrimination ...... 12 Right to take part in public affairs and elections ...... 13 Right to enjoy and benefit from culture ...... 13 Commencement ...... 14 Financial impact ...... 14 Legislative scrutiny ...... 15 Senate Standing Committee on the Scrutiny of Bills ...... 15 The Joint Committee on Human Rights ...... 19 Regulatory impact ...... 23 Conduct of the inquiry ...... 23 Acknowledgements ...... 23 Notes on references ...... 23

Chapter 2—Views on the Bill ...... 25 Support for the bill ...... 25

iii

The South Australian Government ...... 25 Australian Nuclear Association ...... 25 Australian Academy of Science ...... 26 South Australian Chamber of Mines and Energy ...... 27 The Baldocks – owners of the selected site...... 27 Working for Kimba's Future Group ...... 27 The Kimba Council ...... 28 Mr Wesley and Ms Lisa Schmidt ...... 29 Ms Donna Johnson ...... 30 Mr John Newlands ...... 31 Opposition to the bill ...... 32 Themes ...... 32 Responses by the Department of Industry, Science, Energy and Resources ...... 38 Consultations, the voting process and community support...... 38 Views of the Indigenous communities ...... 41 Safety and transport of radioactive material...... 42 Impact on local agriculture...... 44 Committee comment ...... 45 Concerns ...... 48 Further scrutiny of the bill ...... 51 Final comment ...... 51

Dissenting Report ...... 53

Dissenting Report ...... 55

Dissenting Report ...... 67

Appendix 1—Table of inquiries and initiatives ...... 71

Appendix 2—Submissions and additional information ...... 85

Appendix 3—Public hearings ...... 91

Members

Chair Senator Slade Brockman LP, WA

Deputy Chair Senator Alex Gallacher ALP, SA (Member from 2 July 2019 to 5 February 2020. Deputy Chair from 4 July 2019 to 5 February 2020. Member from 16 June 2020. Deputy Chair from 17 June 2020)

Senator Kimberley Kitching ALP, VIC (Member from 5 February 2020 until 16 June 2020. Deputy Chair from 6 February 2020 until 16 June 2020)

Members Senator Andrew Bragg LP, NSW Senator Jenny McAllister ALP, NSW Senator Susan McDonald NATS, QLD Senator Rex Patrick CA, SA

Participating members Senator Alex Antic LP, SA Senator Kim Carr ALP, VIC Senator Sarah Hanson-Young GREENS, SA Senator Louise Pratt ALP, WA

Secretariat Mr Mark Fitt, Committee Secretary Dr Andrew Gaczol, Principal Research Officer Mrs Taryn Morton, Administrative Officer

PO Box 6100 Phone: 02 6277 3540 Parliament House Fax: 02 6277 5719 Canberra ACT 2600 Email: [email protected]

Chapter 1 Introduction

Referral of the inquiry 1.1 The National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 (the bill) was introduced in the House of Representatives and read a first time on 13 February 2020. 1.2 On 28 February 2020, the Senate referred the provisions of the bill to the Economics Legislation Committee (the committee) for inquiry and report by 12 June 2020. 1.3 Following a resolution of the committee and in accordance with the motion agreed by the Senate on 23 March 2020, the reporting date for the inquiry was extended to 31 July 2020 and subsequently extended again until 31 August 2020, and then finally to 14 September 2020.

Purpose of the Bill 1.4 The purpose of the bill is to amend the National Radioactive Waste Management Act 2012 (the Act) to give effect to the Government’s commitment to establish a single, purpose built National Radioactive Waste Management Facility (the Facility). According to the Explanatory Memorandum (EM), the Facility will support Australian nuclear science and technology by providing for the permanent disposal of low-level waste (LLW) and temporary storage of intermediate level waste (ILW).1 1.5 The EM outlines that LLW and ILW are largely by-products of vital nuclear medicine which, on average, one in two Australians will need in their lifetime.2 The LLW and ILW are currently stored in over 100 separate locations across Australia. As set out in the EM, 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, signed in Vienna on 5 September 1997, as amended and in force for Australia from time to time (the Joint Convention).3

1 Explanatory Memorandum, p. 1.

2 The Department of Industry's website cites of figure of 'two in three'. See https://www.industry.gov.au/strategies-for-the-future/australian-radioactive-waste-agency (accessed 9 September 2020).

3 Explanatory Memorandum, p. 1.

1.6 On Thursday, 13 February 2020, the Minister for Resources, Water and Northern Australia, the Hon. Keith Pitt MP, in his second reading speech explained further the intent of the bill: The National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 gives effect to the commitment made by successive governments to the Australian community to establish a purpose-built National Radioactive Waste Management Facility to permanently dispose of low-level radioactive waste and temporarily store intermediate-level radioactive waste… …the amendments in this bill will improve Australia's ability to meet our international obligations by ensuring that our radioactive waste is stored and managed in a manner consistent with the principles under the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management... There is broad support for the location of the Facility in Napandee. The local community of Kimba have indicated their support through community ballots, public submissions, business and neighbour surveys… The bill also repeals the existing site nomination and selection framework under the National Radioactive Waste Management Act 2012 and inserts new provisions which specify the site of the Facility. This revises the approach from making a ministerial declaration to acquiring the site through legislation. Specifying the site of the Facility in legislation will provide the parliament with the opportunity to have a say in the decision to progress this vital national infrastructure… The bill also provides for acquisition of land for secondary all-weather road access, and for the identification of certain rights and interests in relation to this land that are not required... [T]he bill provides for the establishment of a $20 million community fund, which will support the government's commitment to the economic and social sustainability of the Facility's host community. The Facility is an investment in the long-term safe and secure management of radioactive waste and, once established, is expected to be in operation for 100 years… The package also provides for up to $3 million from the government's Indigenous Advancement Strategy to strengthen Indigenous skills training and cultural heritage promotion in the successful community. The bill changes the focus of the fund from a state or territory-based fund to a community-based fund, enabling the host community to make decisions on how the payment is spent to best support the establishment of the Facility and its operation in safely and securely managing controlled material. Finally, the bill also improves the transparency of the National Radioactive Waste Management Act 2012 by making a number of amendments to provide clear and objective links between the operation of the act and the relevant constitutional heads of power… The amendments improve the transparency of the site selection and the mechanisms to support the

community that will be delivering public services and infrastructure to the Facility.4

Background

General background 1.7 Australia’s radioactive waste is produced by the use of radioactive materials in scientific research and industrial, agricultural and medical applications. This includes the operation of the Open Pool Australian Lightwater (OPAL) research reactor at the Australian Nuclear Science and Technology Organisation (ANSTO) in Sydney.5 1.8 In its 2010 safety guide (RPS 20), the industry regulator Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) lists six classes of radioactive waste based on how much radiation is emitted and for how long. The classes are listed as: (1) Exempt waste (EW): Waste that meets the criteria for exemption from regulatory control for radiation protection purposes. Exemption activity concentrations and exempt activities of radionuclides are specified in Schedule 4 of the National Directory for Radiation Protection (NDRP) (ARPANSA 2010). (2) Very short lived waste (VSLW): Waste that can be stored for decay over a limited period of up to a few years and subsequently exempted from regulatory control according to arrangements approved by the relevant regulatory authority, for uncontrolled disposal, use or discharge. This class includes waste containing primarily radionuclides with very short half-lives often used for industrial, medical and research purposes. (3) Very low level waste (VLLW): Waste that does not meet the criteria of EW, but does need a moderate level of containment and isolation and therefore is suitable for disposal in a near surface, industrial or commercial, landfill type facility with limited regulatory control. Such landfill type facilities may also contain other hazardous waste. Typical waste in this class includes soil and rubble with low activity concentration levels. Concentrations of longer-lived radionuclides in VLLW are generally very limited. (4) Low level waste (LLW): Waste that is above exemption levels, but with limited amounts of long lived radionuclides. Such waste requires robust isolation and containment for periods of up to a few hundred years and is

4 Hon. Keith Pitt MP, Minister for Resources, Water and Northern Australia, House of Representatives Hansard, 13 February 2020, pp. 1146‒48.

5 Ms Sophie Power, Radioactive waste management, Science Technology Environment Resources, Parliamentary Library, 2016, https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/p ubs/BriefingBook45p/RadioactiveWaste (accessed 6 May 2020).

suitable for disposal in engineered near surface facilities. This class covers a very broad range of waste. Low level waste may include short lived radionuclides at higher activity concentration levels and long lived radionuclides, but only at relatively low activity concentration. (5) Intermediate level waste (ILW): Waste that, because of its content, particularly of long lived radionuclides, requires a greater degree of containment and isolation than that provided by near surface disposal. However, ILW needs little or no provision for heat dissipation during its storage and disposal. Intermediate level waste may contain long lived radionuclides, in particular alpha emitting radionuclides, which will not decay to an activity concentration acceptable for near surface disposal during the time for which institutional controls can be relied upon. Therefore waste in this class requires disposal at greater depths, in the order of tens of metres to a few hundred metres. (6) High level waste (HLW): Waste with activity concentration levels high enough to generate significant quantities of heat by the radioactive decay process or waste with large amounts of long lived radionuclides that need to be considered in the design of a disposal facility for such waste. Disposal in deep, stable geological formations usually several hundred metres or more below the surface is the generally recognised option for disposal of HLW.6 1.9 Australia produces mostly low-level waste (laboratory items such as paper, plastic, gloves and filters) and some intermediate radioactive waste (for example, from the production of nuclear medicines). Australia does not produce any radioactive waste classified as high-level.7 1.10 Some of Australia’s waste comes from the former High Flux Research Reactor (HIFAR) at Lucas Heights in Sydney. HIFAR operated for around fifty years but was retired in January 2007 and replaced by the OPAL reactor. During its life, HIFAR supplied millions of doses of nuclear medicine and provided neutron beams to study the structure of materials. In the 1990s, the Australian and French Governments agreed that France would reprocess HIFAR’s spent nuclear fuel. This reprocessed spent fuel was returned to Australia at the end of 2015. This waste is now being temporarily stored by ANSTO at Lucas Heights until a national facility is completed.8 1.11 As at the beginning of 2018, the volume of existing low-level waste to be disposed of at the facility is 4975m3 and the volume of existing intermediate

6 Australian Radiation Protection and Nuclear Safety Agency, Safety Guide, Classification of Radioactive Waste, pp. 8‒9, https://www.arpansa.gov.au/sites/default/files/legacy/pubs/rps/rps20.pdf (accessed 24 June 2020).

7 Ms Sophie Power, Radioactive waste management, Parliamentary Library, 2016.

8 Ms Sophie Power, Radioactive waste management, Parliamentary Library, 2016.

level waste is 1771m3. These volumes include waste packaging. The volume of future waste is 4843m3 for low level waste and 1963m3 for intermediate level waste.9 1.12 Australia does not currently have a central facility for the storage or disposal of radioactive waste, which is currently held at more than 100 locations around Australia. Many organisations are using storage areas that were not designed for long term storage of radioactive waste. For example, under international safety standards, long term waste management facilities should be in geologically stable areas with low population density and not prone to flooding.10

Attempts to establish a waste facility 1.13 The Parliamentary Library notes that there has been a long history of unsuccessful attempts to find a suitable site for a nuclear waste facility.11 1.14 Past attempts to site a national waste repository, including near Woomera in South Australia and Muckaty in the Northern Territory, were unsuccessful, due to community concern, and resistance from state governments and affected local and Indigenous communities.12 1.15 The pattern that emerges from the history of Australia's radioactive waste management is one of:

 little attention to the management of radioactive waste until the 1970s (as was the case in most countries around the world);  very drawn-out policy processes since the 1970s for resolving radioactive waste issues;  (since the 1970s) sensitivities in the community causing significant difficulties for all governments in resolving radioactive waste management issues;  in-principle cooperation between the Commonwealth and the states and territories, but tensions between them whenever the Commonwealth has approached the issue of specific proposals to locate radioactive waste facilities at identified sites or notionally in their jurisdiction; and

9 Department of Industry, Science, Energy and Resources, Submission 96, Attachment I, p. 30.

10 Ms Sophie Power, Radioactive waste management, Parliamentary Library, 2016.

11 For example, see the following report: Dr Rod Panter, Radioactive Waste Disposal in Australia, Issues Paper Number 6, 1992, Parliamentary Research Service, Science, Technology & Environment Group, 28 April 1992.

12 Ms Sophie Power, Radioactive waste management, Parliamentary Library, 2016.

 despite some efforts, an inability of the Commonwealth to respond successfully to calls to resolve nuclear waste issues as a precondition to the further development of nuclear industries.13 1.16 From 1980 to 2004, various Australian Governments led several investigations to establish national facilities for the waste arising from the medical, industrial and scientific use of radioactive materials.14 1.17 In 1985, some State and Territory governments commenced studies to identify potentially suitable sites in their jurisdictions. The 1992 National Repository Project for low level waste had a preferred site near Woomera, South Australia, but was abandoned in July 2004.15 1.18 The 2001 National Store Project for intermediate level waste was stopped following the abandonment of the National Repository Project in July 2004. The 2004 Commonwealth Radioactive Waste Management Facility investigation considered co-located facilities on Commonwealth land for the management of low and intermediate level radioactive waste produced by Australian Government agencies.16 1.19 In 2009, the three sites selected by the previous Government on Defence land in the Northern Territory were ruled out.17

Senate Economics References Committee–Selection process for a national radioactive waste management facility in South Australia inquiry, 2018 1.20 On 6 February 2018, the Senate referred an inquiry into the selection process for a national radioactive waste management facility in South Australia to the Senate Economics References Committee for inquiry and report by 14 August 2018.18 1.21 The committee received 112 submissions, as well as additional information and answers to questions on notice, and held three public hearings:

13 Mr Matthew James and Ms Ann Rann, Background Note, Radioactive waste and spent nuclear fuel management in Australia, Science, Technology, Environment and Resources Section, Parliamentary Library, 21 July 2011, p. 1.

14 Mr Matthew James and Ms Ann Rann, Background Note, Radioactive waste and spent nuclear fuel management in Australia, p. 2.

15 Mr Matthew James and Ms Ann Rann, Background Note, Radioactive waste and spent nuclear fuel management in Australia, p. 2.

16 Mr Matthew James and Ms Ann Rann, Background Note, Radioactive waste and spent nuclear fuel management in Australia, p. 2.

17 Mr Matthew James and Ms Ann Rann, Background Note, Radioactive waste and spent nuclear fuel management in Australia, p. 2.

18 All information on the inquiry can be found at: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/Wastemanageme ntfacility (accessed 7 May 2020).

 5 July 2018 in Kimba;  6 July 2018 in Hawker; and  2 August 2018 in Canberra.

The Report 1.22 Following the completion of the inquiry, the committee tabled its report in the Senate on 14 August 2018 with the following recommendations: Recommendation 1 If a National Radioactive Waste Management Facility were to be sited in an agricultural region, the committee recommends that the Department of Industry, Innovation and Science work with local stakeholders, so that part of the remaining 60 hectare buffer zone can be used to grow and test agricultural produce, in order to reassure the community and agricultural markets that the produce from the surrounding region does not contain excessive amounts of radiation and is safe for consumption. Recommendation 2 The committee recommends that the Minister intensify and expedite efforts to fully engage with the Indigenous stakeholders near Kimba and Hawker so that comprehensive heritage assessments for all nominated sites can be completed. Recommendation 3 The committee recommends that the government undertake an independent valuation of the land to be acquired to ensure that the financial compensation is consistent with the original proposal to compensate the landholder at four times the land value. Recommendation 4 The committee recommends that the Department of Industry, Innovation and Science make submissions received during the consultation process publicly available in the circumstances where the authors originally intended for their submission to be made public. Recommendation 5 The committee recommends that the Office of the Chief Economist within the Department of Industry, Innovation and Science undertake a policy evaluation of the first two phases of the site selection process for a National Radioactive Waste Management Facility.19

19 The full report can be found at: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/Wastemanageme ntfacility/Report (accessed 7 May 2020).

Government response 1.23 The government responded to the committee’s report and recommendations on 20 November 2018. The government ‘Agreed in Principle’ with the first two recommendations and ‘Agreed’ to the final three.20

Provisions of the bill 1.24 The bill contains three schedules:

 Schedule 1—Site specification  Schedule 2—Establishment of Community Fund  Schedule 3—Other amendments

Schedule 1— Site specification 1.25 The EM explained that Schedule 1 amends the Act to repeal the provisions relating to the site nomination and selection process under the Act, to specify the site on which the Facility will be located and enable additional land to be acquired for the purposes of establishing and operating the Facility or for all- weather road access to the Facility.21 1.26 A number of definitional change items precede item 10 which update Parts 2 and 3. The EM notes that Parts 2 and 3 currently prescribe the requirements for nomination and approval of potential sites for the locations of the Facility. 1.27 Specifically, Part 2 in its current form, provides: …that a potential site for the location of the Facility may be nominated by a Land Council, within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 (section 5), or any person (section 7). Part 2 currently also provides that the Minister may declare that site nominations may be made (section 6) and approve a nomination to be further considered for the location of the Facility (section 9) in accordance with procedural fairness requirements.22 1.28 While Part 3 provides the authority to the range of activities required of the Facility such as: …conduct activities to enable further investigations of the nominated sites to inform the selection of a site (section 11). Part 3 also provides the ability to override most Commonwealth, State and Territory laws that may regulate, hinder or prevent activities identified in section 11 (sections 12 and 13).23

20 The full government response can be found at: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/Wastemanageme ntfacility/Government_Response (accessed 7 May 2020).

21 Explanatory Memorandum, p. 11.

22 Explanatory Memorandum, pp. 13‒14.

23 Explanatory Memorandum, p. 14.

1.29 Item 10 of the bill repeals both Part 2 and 3 and inserts a new Part 2. The EM states that the replacement Part 2 only comprises a new section 5 which specifies the site for the establishment and operation of the Facility. 1.30 The last item in schedule 1, item 38, repeals both schedule 1 and 2 of the Act. Schedule 1 originally repealed the whole of the Radioactive Waste Management Act 2005 (the 2005 Act), and replaced it with the National Radioactive Waste Management Act 2012. The EM notes there are no remaining transitional or application provisions that require administration in relation to the earlier repeal of the 2005 Act and, as such, this schedule is no longer required.24 1.31 Schedule 2 of the Act was included as a consequence of amendments to the Administrative Decisions (Judicial Review) Act 1977 providing for the approval of land nominated under the 2005 Act to continue in force. The EM notes that as the bill repeals section 6 of the Act (at item 10), which provides for the approval of nominated land, this schedule is no longer required.25

Schedule 2—Establishment of Community Fund 1.32 The EM explained that Schedule 2 repeals the provisions relating to the National Repository Capital Contribution Fund (NRCC Fund), which was intended to support delivery of enhanced public services and infrastructure to the State or Territory where the Facility was located. The provisions were added as an amendment to the National Radioactive Waste Management Bill 2010 during consideration before Parliament, before it was passed by both Houses. The provisions were included in the Act when the Commonwealth Government was working with the Northern Territory on a potential site, but the proposal was subsequently abandoned. The Schedule inserts new provisions to provide for a lump sum payment of $20 million (the National Radioactive Waste Management Facility (NRWMF) Community Fund Payment) to support the long-term social and economic sustainability of the host community to support the establishment of, and the ongoing safe and secure management of controlled material at, the Facility.26 1.33 Schedule 2 also amends the provisions relating to the National Repository Capital Contribution Fee. This Fee was designed to recoup an initial $10 million toward the cost of the Facility’s construction, and to pay amounts over and above the initial $10 million into the NRCC Fund. The EM argued that these amendments uncouple the Fee from the Community Fund by ensuring that the Fee is payable only to the Commonwealth.27

24 Explanatory Memorandum, p. 21.

25 Explanatory Memorandum, p. 21.

26 Explanatory Memorandum, p. 21.

27 Explanatory Memorandum, pp. 21‒22.

1.34 According to the EM, the amendments in Schedule 2 would also enable regulations to prescribe the NRWMF Community Fund entity, which would receive and administer the NRWMF Community Fund.28 1.35 The bill would also require all NRCC Fees paid by non-Commonwealth and non-host State and Territory users of the Facility to be paid into the consolidated revenue fund.29

Schedule 3—Other amendments

National Radioactive Waste Management Act 2012 1.36 The EM explains that schedule 3 provides for amendments to the National Radioactive Waste Management Act 2012 to a number of definitions to support the new definition of controlled material in new section 4A. The Act repeals the majority of references to radioactive waste and replaces them with references to controlled material. These amendments are consistent with the definition of “controlled material” in the ARPANS Act, which defines “controlled material” as including any natural or artificial material, whether in solid or liquid form, or in the form of a gas or vapour, which emits ionizing radiation spontaneously. The definition covers all types of waste that will be held at the Facility, so it is appropriate that the Act directly refers to it.30

Consultation 1.37 The specification of the site for the Facility in legislation was, according to the EM, supported by a comprehensive consultation process. Since 2015, the department has undertaken a voluntary site nomination and selection process under the existing legislative framework to acquire land to establish and operate the Facility. As part of that process, the responsible Ministers, according to the EM, approved the nomination of three sites within two communities (Kimba and Hawker) in South Australia for further consideration. According to the EM, significant community engagement activities occurred between 2015 and 2019 to inform nearby localities about the proposal and to ascertain levels of support for the Facility being located within their respective communities. This included:

 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;

28 Explanatory Memorandum, p. 22.

29 Explanatory Memorandum, p. 22.

30 Explanatory Memorandum, p. 25.

 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 people within and outside of the communities to express their views, 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.31 1.38 In developing this bill, consultation was undertaken with relevant Commonwealth departments and agencies across the Commonwealth, including:

 Attorney-General’s Department;  Department of Agriculture, Water and the Environment;  Department of Finance;  Department of Prime Minister and Cabinet;  Geoscience Australia; and  Treasury.32

Compatibility with Human Rights 1.39 According to the EM, the 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);  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; and  right to enjoy and benefit from culture—Article 27 of the ICCPR and Article 15 of the ICESCR.33

31 Explanatory Memorandum, p. 4.

32 Explanatory Memorandum, p. 4.

33 Explanatory Memorandum, p. 5.

Right to self-determination 1.40 This right is specifically focussed on groups in the community, particularly Indigenous groups.34 1.41 The EM explained that 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. The EM recognised that 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 EM claimed that the nomination was strongly supported by the broader local community.35 1.42 Native Title rights have been extinguished at the specified site; however, the 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 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.36 1.43 The EM argued that 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.37 1.44 The EM argued that, 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.38

Right to equality and non-discrimination 1.45 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.39 1.46 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

34 Explanatory Memorandum, p. 6.

35 Explanatory Memorandum, p. 6.

36 Explanatory Memorandum, p. 6.

37 Explanatory Memorandum, p. 6.

38 Explanatory Memorandum, p. 6.

39 Explanatory Memorandum, p. 7.

Facility should appropriately recognise the rights and interests of all members of the local community.40 1.47 The EM claimed that 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.41 1.48 The EM argued that 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. 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.42 1.49 The EM argued that, 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.43

Right to take part in public affairs and elections 1.50 For each of the sites nominated as a potential site for the Facility, the EM argued that 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. The EM explained that 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.44 These activities are listed above under 'Consultation'. 1.51 The EM argued that, 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.45

Right to enjoy and benefit from culture 1.52 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:

40 Explanatory Memorandum, p. 7.

41 Explanatory Memorandum, p. 7.

42 Explanatory Memorandum, p. 8.

43 Explanatory Memorandum, p. 8.

44 Explanatory Memorandum, p. 8.

45 Explanatory Memorandum, p. 9.

 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; and  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.46 1.53 The EM argued that, 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.47 1.54 In conclusion, the EM explained that 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 2011.48 1.55 To the extent that the amendments engage with these rights, the EM argued that they do so in a reasonable and proportionate way and do not operate to limit or restrict those rights.49

Commencement 1.56 The bill will commence the day after the Act receives the Royal Assent.

Financial impact 1.57 According to the EM, the amendments in Schedule 2, relating to the Community Fund, will have a financial impact once the Facility obtains an operational licence, at which time the Commonwealth will make a single payment of $20 million to the entity prescribed to administer the Community Fund. The amendments contained in Schedules 1 and 3, relating to

46 Explanatory Memorandum, p. 9.

47 Explanatory Memorandum, p. 9.

48 Explanatory Memorandum, p. 10.

49 Explanatory Memorandum, p. 10.

specification of the site and the relevant Constitutional heads of power, will have no financial impact.50

Legislative scrutiny

Senate Standing Committee on the Scrutiny of Bills 1.58 The Senate Standing Committee on the Scrutiny of Bills reviewed the bill and expressed a number of concerns.

Significant matters in delegated legislation—acquisition of land by the Commonwealth 1.59 In relation to proposed section 19B,51 the Scrutiny of Bills Committee noted that notifiable instruments, unlike legislative instruments, are not subject to tabling, parliamentary disallowance or scrutiny by the Senate Standing Committee for the Scrutiny of Delegated Legislation.52 1.60 The Scrutiny of Bills Committee's view was that significant matters, including the acquisition of land by the Commonwealth, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided.53 Accordingly, the Scrutiny of Bills Committee requested the Minister's advice as to:

 why it is considered necessary and appropriate to allow the Minister to specify additional land that is required to provide all-weather access to the site via a notifiable instrument, which is not subject to parliamentary tabling or disallowance; and  whether the bill can be amended to specify that:

− any regulations prescribing additional land for expansion of the site made under proposed subsection 19A(1) do not commence until after the Parliament has had the opportunity to scrutinise the regulations; and − any instruments specifying additional land for all-weather access to the site under proposed subsection 19B(1) are disallowable legislative instruments or regulations that do not commence until after the Parliament has had the opportunity to scrutinise the instruments or regulations.54

50 Explanatory Memorandum, p. 3.

51 Proposed section 19B provides that the Minister may, by notifiable instrument, specify additional land that is required to provide all-weather access to the specified site and any rights or interests in the additional land that are not required.

52 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 3 of 2020, 26 February 2020, p. 7.

53 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 3 of 2020, 26 February 2020, p. 7.

54 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 3 of 2020, 26 February 2020, p. 8.

Ministerial response 1.61 The Minister responded to the concerns raised by the Scrutiny of Bills Committee.55 The Minister's advised that it is considered necessary and appropriate to specify additional land for all-weather access to the site via notifiable instrument, rather than disallowable instrument, as it will provide for greater certainty for the Facility to obtain its operational license and the government to safely deliver the Facility. The Minister argued that this is consistent with past practice and that by specifying the use of notifiable instrument, the bill ensures greater transparency than in the past.56 1.62 With regard to the acquisition of land for site expansion through regulation, the Scrutiny of Bills Committee acknowledged that proposed subsection 19A(2) limits the additional land that may be prescribed for expansion of the site. The committee also noted the Minister's advice that, subject to any regulatory requirements, the government expects to specify an acquisition time that sits outside of the relevant disallowance period.57 1.63 The Scrutiny of Bills Committee concluded that it was up to: The Senate as a whole [as to] the appropriateness of:  allowing regulations prescribing additional land for expansion of the site made under proposed subsection 19A(1) to commence before the Parliament has had the opportunity to scrutinise the regulations; and  specifying additional land that is required to provide all-weather access to the site via notifiable instruments, which are not subject to parliamentary tabling or disallowance.58

Procedural fairness 1.64 Proposed section 19C sets out the consultation requirements that are to be undertaken prior to the Minister acquiring additional land either by under 19A or under 19B. Proposed subsection 19C(4) provides that the consultation requirements set out in 19C are to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule.59 1.65 The Scrutiny of Bills Committee noted that the natural justice hearing rule is a fundamental common law principle and if it is to be abrogated or limited this should be thoroughly justified.60

55 The Minister responded to the committee's comments in a letter dated 20 March 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 4 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest (accessed 20 July 2020).

56 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2020, 13 May 2020, p. 41.

57 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2020, 13 May 2020, p. 41.

58 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2020, 13 May 2020, p. 41.

59 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 3 of 2020, 26 February 2020, p. 9.

60 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 3 of 2020, 26 February 2020, p. 9.

1.66 Accordingly, that committee requested the Minister's advice regarding why it is necessary and appropriate to limit the operation of this rule in relation to consultation conducted under this section.61

Ministerial response 1.67 The Minister advised that providing an exhaustive statement of the requirements of the natural justice hearing rule, and thereby limiting its operation, is considered necessary and appropriate in relation to the consultation conducted under proposed section 19C to provide greater certainty to impacted communities and stakeholders. The Scrutiny of Bills Committee noted that section 19C is intended to retain key elements of the procedural fairness requirements set out in section 18 of the current Act and that, while it is less extensive than the current requirements, this is appropriate as decisions would be unlikely to significantly affect the rights or interests of any person other than the owner of the land to be acquired.62 1.68 The Scrutiny of Bills Committee: … leaves to the Senate as a whole the appropriateness of excluding aspects of the natural justice hearing rule in relation to decisions about the making of regulations to expand the site and the making of instruments to provide all-weather access to the site.63

Significant matters in delegated legislation—exclusion of State, Territory and Commonwealth laws 1.69 Proposed section 34GA provides that certain State or Territory laws cannot apply to regulate, hinder or prevent the doing of a thing under 34G.64 1.70 The Scrutiny of Bills Committee's view was that significant matters, such as the exclusion of the operation of State, Territory or Commonwealth laws, should be included in the primary legislation unless a sound justification for the use of delegated legislation is provided.65 Accordingly, the Scrutiny of Bills Committee requested the Minister's advice as to:

 why it is considered necessary and appropriate to allow regulations to exclude the operation of prescribed State, Territory or Commonwealth laws; and

61 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 3 of 2020, 26 February 2020, p. 9.

62 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2020, 13 May 2020, p. 44.

63 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2020, 13 May 2020, p. 44.

64 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 3 of 2020, 26 February 2020, pp. 9‒10.

65 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 3 of 2020, 26 February 2020, p. 10.

 the appropriateness of amending the bill to remove proposed subsections 34GA(2)–(4) and 34GB(2) which provide that the regulations may exclude the operation of prescribed State, Territory or Commonwealth laws.66

Ministerial response 1.71 The Minister advised that it is necessary and appropriate to allow regulations to exclude the operation of prescribed State, Territory or Commonwealth laws as the absence of these provisions would disadvantage landlords of shortlisted sites as remediation activities could be hindered by regulatory requirements that did not apply when the land was initially disrupted. The Scrutiny of Bills Committee noted the advice that any proposal to prescribe a State, Territory or Commonwealth law for the purposes of sections 34GA and 34GB would be subject to appropriate consultation with relevant departments and ministers and the regulations will be subject to disallowance.67 1.72 Once again, the Scrutiny of Bills Committee: … leaves to the Senate as a whole the appropriateness of allowing delegated legislation to exclude the operation of prescribed State, Territory or Commonwealth laws.68

Significant matters in delegated legislation—establishment of community fund 1.73 The Scrutiny of Bills Committee has consistently raised scrutiny concerns about framework bills which rely heavily on delegated legislation.69 1.74 The Scrutiny of Bills Committee noted that Schedule 2 leaves the majority of the detail regarding the NRWMF Community Fund to delegated legislation. The EM provides no justification for the use of such legislation. The Scrutiny of Bills Committee also noted that, as the terms and conditions will form part of a written agreement between the Commonwealth and the NRWMF Community Fund entity, there may never be an opportunity for the Parliament to have oversight of how any payments to the NRWMF Community Fund entity will be managed.70 Additionally, the Scrutiny of Bills Committee noted that:

 the existing National Repository Capital Contribution Fund is a special account, while the NRWMF Community Fund entity is not; and

66 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 3 of 2020, 26 February 2020, p. 10.

67 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2020, 13 May 2020, p. 45.

68 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2020, 13 May 2020, p. 45.

69 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 3 of 2020, 26 February 2020, p. 11.

70 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 3 of 2020, 26 February 2020, p. 11.

 this may further decrease parliamentary scrutiny of spending as the new fund will not be subject to the same reporting requirements as the existing special account.71 1.75 Accordingly, that committee requested the Minister's advice as to:

 why it is considered necessary and appropriate to leave the establishment of the NRWMF Community Fund entity, as well as any additional terms and conditions on which any payment is to be made, to either delegated legislation or the provisions of a written agreement of which the Parliament may have no oversight; and  whether the bill can be amended to:

− include at least high level guidance in relation to these matters on the face of the primary legislation, or − at a minimum, to provide that the regulations must, rather than may, prescribe other terms and conditions that are to be set out in the agreement under proposed subsection 34AC(7).72

Ministerial response 1.76 The Minister advised that it is considered necessary to leave the establishment of the NRWMF Community Fund entity to delegated legislation as it allows for the required flexibility to ensure the appropriate consultation can be conducted prior to its establishment and the needs of the host community are met.73 1.77 The Minister also advised that the proposed subsection 34AC(5) sets outs the core condition of what the fund must be used for; however, it is not possible to provide high-level guidance with regard to the NRWMF Community Fund entity in the bill as its composition and structure is subject to future consultation with the host community.74 1.78 The Scrutiny of Bills Committee: … leaves to the Senate as a whole the appropriateness of leaving the establishment of the NRWMF Community Fund entity, as well as any additional terms and conditions on which any payment to the entity is to be made, to either delegated legislation or the provisions of a written agreement.75

71 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 3 of 2020, 26 February 2020, p. 11.

72 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 3 of 2020, 26 February 2020, p. 12.

73 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2020, 13 May 2020, p. 47.

74 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2020, 13 May 2020, p. 47.

75 Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2020, 13 May 2020, p. 47.

The Joint Committee on Human Rights 1.79 The Joint Committee on Human Rights reviewed the bill and also expressed a number of concerns.

Preliminary international human rights legal advice rights to culture and self- determination 1.80 With regard to the right to culture and self-determination, the statement of compatibility states that native title rights have been extinguished at the specified site, however, 'Aboriginal heritage, either tangible or intangible, may still be present'.76 1.81 The statement of compatibility also states should a culturally significant finding be made on the specified site in the future, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) will operate to provide protections for cultural heritage. The Human Rights Committee argued it was unclear how the EPBC Act would fulfil this aim.77 1.82 The statement of compatibility also argued that the right to self-determination is engaged by the bill, but seems to state that the local community near the area of the site, which would appear to include non-Indigenous persons, constitute the relevant group for the purposes of the right. It states that the nomination for the site was strongly supported by the 'broader community', although opposed by the Board of the Barngarla Determination Aboriginal Corporation.78 1.83 The Human Rights Committee believed that further information was required in order to assess the engagement and compatibility of the measure with the rights to culture and self-determination, in particular:

 what percentage of those who were eligible to vote in the community ballot were Indigenous;  what other consultation was held specifically with relevant Indigenous groups and what was the level of support for the site specification; and  once the radioactive waste Facility is operational, if in future, culturally significant findings are made on the site, how the EPBC Act would operate to ensure appropriate protection for cultural heritage.79 1.84 In order to assess whether the bill engages and limits these rights the Human Rights Committee sought the Minister's advice.80

76 Joint Committee on Human Rights, Human Rights Scrutiny Report 3 of 2020, 26 February 2020, p. 2.

77 Joint Committee on Human Rights, Human Rights Scrutiny Report 3 of 2020, 26 February 2020, p. 3.

78 Joint Committee on Human Rights, Human Rights Scrutiny Report 3 of 2020, 26 February 2020, pp. 3‒4.

79 Joint Committee on Human Rights, Human Rights Scrutiny Report 3 of 2020, 26 February 2020, p. 6.

80 Joint Committee on Human Rights, Human Rights Scrutiny Report 3 of 2020, 26 February 2020, p. 6.

Ministerial response 1.85 The Minister advised that they are aware of the potential for Aboriginal cultural heritage to exist over the specified location.81 The Minister also advised that the Department had sought and will continue to seek the involvement of the Barngarla Determination Aboriginal Corporation as a representative Indigenous group, in the identification and management of cultural heritage. However, the Human Rights Committee noted the legal advice that in determining whether any limits on the rights to culture and self- determination are permissible under international human rights law, it is necessary to consider the extent to which relevant groups have been consulted, which should consist of a qualitative process of dialogue and negotiation, with consent as the objective.82 1.86 Noting the stated opposition of the Barngarla peoples to the specification of Napandee as the site for the establishment of a radioactive waste Facility, and the potential for the site to impact on Indigenous cultural heritage, the Human Rights Committee believed that there remained a significant risk that the specification of this site will not fully protect the right to culture and self- determination.83

Acquisition of additional land for expansion of site 1.87 With regard to the acquisition of additional land for expansion of site, the Human Rights Committee believed that further information was required in order to assess the engagement and compatibility of the measure with the rights to culture, self-determination and equality and non-discrimination, in particular:

 whether the additional land for the expansion of the site (the boundaries of which are specified in the bill) currently has native title rights attaching;  whether the bill would enable native title rights to be extinguished without the full, free and informed consent of native title holders, and if so, how the rights to culture, self-determination and equality and non-discrimination will be protected;  whether the requirement to consult with anyone with a 'right or interest' in the land includes those who may have cultural ties to the land (but not native title);  why the consultation requirements set out in the bill are taken to be an exhaustive statement of the rules of natural justice, and what this means in practice;

81 Joint Committee on Human Rights, Human Rights Scrutiny Report 4 of 2020, 9 April 2020, pp. 111‒ 112.

82 Joint Committee on Human Rights, Human Rights Scrutiny Report 4 of 2020, 9 April 2020, pp. 111‒ 112.

83 Joint Committee on Human Rights, Human Rights Scrutiny Report 4 of 2020, 9 April 2020, p. 112.

 why the bill enables the Minister to make a notifiable instrument to prescribe additional land for all-weather access to the site (which is not subject to any form of parliamentary oversight); and  if native title is extinguished without the full, free and informed consent of the traditional owners, what remedies are available to affected persons for any contravention of their rights to culture, self-determination and equality and non-discrimination.84 1.88 In order to assess whether the bill engages and limits these rights the Human Rights Committee sought the Minister's advice.85

Ministerial response 1.89 The Minister assured the Human Rights Committee that it is not the government’s intention to extinguish native title rights or interests in the process of developing the radioactive waste Facility, and amendments may be necessary to make this clear. The Human Rights Committee considered it would be appropriate for the bill to be amended accordingly.86 1.90 The Minister also assured the Human Rights Committee that the Department is aware of the potential for unregistered cultural heritage to exist in the area, and that the Department has sought and will continue to seek the involvement of the Barngarla Corporation in minimising the potential impact to cultural heritage, and that the bill sets out an obligation for the Minister to consult anyone with a right or interest in the expansion of the site.87 1.91 The Human Rights Committee has noted that legal advice on the obligation under international human rights law to consult is much broader than mere comment prior to government acquisition. As such, the Human Rights Committee believed that there remained a significant risk that the expansion of this site will not fully protect the rights to culture and self-determination.88 1.92 However, the committee noted that government amendments were passed in the House of Representatives 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. As the supplementary EM makes clear, these amendments expressly prevent the Commonwealth from being able to acquire

84 Joint Committee on Human Rights, Human Rights Scrutiny Report 3 of 2020, 26 February 2020, pp. 9‒10.

85 Joint Committee on Human Rights, Human Rights Scrutiny Report 3 of 2020, 26 February 2020, p. 10.

86 Joint Committee on Human Rights, Human Rights Scrutiny Report 4 of 2020, 9 April 2020, p. 120.

87 Joint Committee on Human Rights, Human Rights Scrutiny Report 4 of 2020, 9 April 2020, pp. 120‒ 121.

88 Joint Committee on Human Rights, Human Rights Scrutiny Report 4 of 2020, 9 April 2020, p. 121.

native title rights and interests if acquiring additional land under proposed section 19B.89

Regulatory impact 1.93 No Regulation Impact Statement (RIS) has been provided.

Conduct of the inquiry 1.94 The committee advertised the inquiry on its website and wrote to relevant stakeholders and interested parties inviting written submissions by 26 March 2020 which was then subsequently extended to 9 April 2020. then As described above, the reporting date was extended on several occasions to 14 September 2020. 1.95 The committee accepted and published 105 submissions which are listed at Appendix 2. 1.96 Following the call for submissions to the inquiry, the committee received a significant amount of correspondence from individuals through two form letter campaigns. 1.97 Over 850 examples of the first form letter were received, and over 2,800 examples of the second. Due to the large number of documents received, the committee has resolved not to publish every item it received. Instead, the committee has chosen to publish one example of each letter and they can be found on the website as submissions 101 and 102. 1.98 The committee held four public hearings for the inquiry. The names of witnesses who appeared at the hearing can be found at Appendix 3. 1.99 The committee also conducted a site visit to the Woomera Prohibited Area on Tuesday, 18 August 2020.

Acknowledgements 1.100 The committee thanks all individuals and organisations who assisted with the inquiry, especially those who made written submissions and participated in the public hearings.

Notes on references 1.101 In this report, references to the Committee Hansard are to the Proof Hansard and page numbers may vary between Proof and Official Hansard transcripts.

89 Supplementary Explanatory Memorandum, p. 1.

Chapter 2 Views on the Bill

2.1 The committee received and accepted a total of 105 submissions to the inquiry. The committee also received a significant amount of correspondence from individuals through two form letter campaigns—in total over 3,600 documents. Due to the large number of documents received, these were reviewed and accepted as correspondence by the committee as the email addresses and identities of their authors could not be verified. The committee chose to publish one example of each letter as a sample. 2.2 The form letters and the majority of published submissions received expressed opposition to the proposed Facility and the committee notes that many submissions provided the same or similar arguments that were heard during the Senate Economics References Committee inquiry completed in 2018. Despite the opposition, there was also support for the bill from crucial quarters. The committee sought a range of views during the three public hearings held.

Support for the bill 2.3 Those submitters who supported the bill and thus the Facility welcomed the new jobs, diversification of local industry and business opportunities including reversing the decline of population and support services that the new investment would bring. Others were also supportive of the government’s long-term objective of establishing a low-level disposal facility with intermediate level storage—an issue that has been unresolved for decades.

The South Australian Government 2.4 Minister Van Holst Pellekaan, on behalf of South Australia Government, has indicated no objections to the establishment of the Facility proceeding in Kimba, providing the following statement in a media release: The South Australian Government has consistently said one best practice national facility is appropriate for the storage of this medical and research waste and Kimba has clearly expressed its willingness to be the host community.1

1 Minister for Resources, Water and Northern Australia - Joint Media Release – 'New agency to safely and securely manage Australia’s radioactive waste', 21 July 2020, https://www.minister.industry.gov.au/ministers/pitt/media-releases/new-agency-safely-and- securely-manage-australias-radioactive-waste (accessed 24 August 2020).

Australian Nuclear Association 2.5 The Australian Nuclear Association (ANA) strongly support the bill. The ANA noted that Australia has, until now, not had a national facility to manage its radioactive waste and argued: Having a centralised, national nuclear waste repository will reduce the current risk of having nuclear waste dispersed across many sites, in hospitals and clinics across Australia. Centralising all radioactive waste and containing it in a controlled & engineered setting will elevate our safeguards and accounting of radioactive material in line with international best practice. The proposed design of the Facility will be highly engineered, meet international standards and be regulated by Australian nuclear regulator ARPANSA which will issue the licenses for site preparation, construction and operation.2 2.6 Further, the ANA noted the process to site and establish a national facility has taken many years involved consideration of many potential sites and comprehensive community consultations. The implication being that the time was right to establish such a facility.

Australian Academy of Science 2.7 The Australian Academy of Science (AAS) supports the bill and believes it reflects the underlying scientific evidence base for the disposal of nuclear waste.3 2.8 The AAS argued that the current situation is not sustainable over the long term as waste from these sites is stored at more than 100 sites around Australia. The AAS also argued that it is not possible for the waste that is currently stored at ANSTO in Lucas Heights to remain there indefinitely.4 A new site will allow stable, safe, long-term storage of the waste, which is necessary given the nature of the material.5 2.9 On a more cautionary note, the AAS noted that the new Facility will need to comply with international requirements set by the International Atomic Energy Agency (IAEA) that address the risks associated with the heat and radiation that the spent fuel produces. It will be important to maintain the

2 Australian Nuclear Association, Submission 15, pp. 1‒2.

3 Australian Academy of Science, Submission 20, p. 1.

4 The committee notes that Lucas Heights is now part of suburban Sydney — i.e. no longer a remote location. See Dr Adi Paterson, Chief Executive Officer, Australian Nuclear Science and Technology Organisation, Committee Hansard, 30 June 2020, p. 9.

5 Australian Academy of Science, Submission 20, p. 1.

high standards set by the IAEA and the national regulatory framework in order to maintain safety and public confidence.6

South Australian Chamber of Mines and Energy 2.10 The South Australian Chamber of Mines and Energy (SACOME) also supports the bill as it delivers on the Federal Government’s commitment to establish the Facility at Napandee and establish a $20 million Community Fund.7 2.11 SACOME’s support is predicted on:

 the Federal Government’s comprehensive consultation and assessment process;  the broad requirements for a suitable site have been satisfied;  that the technical studies have concluded the Napandee site is suitable and safe; and  there is broad community support for the proposal.8

The Baldocks – owners of the selected site 2.12 Mr Jeff Baldock and Ms Jenny Baldock are the land owners of the property ‘Napandee’ which has been chosen for the Facility. The Baldocks believed that:

 hosting the Facility can bring many opportunities for the entire district and beyond;  Kimba has been involved in this process for five years and has been provided with a large amount of information from the Department of Industry through the many visitors who are leaders in their fields;  the AEC vote demonstrated that almost 62 percent—a strong majority—of the Kimba community support hosting the Facility; and  it’s time to proceed with the project given how much time has elapsed and inquiries completed.9

Working for Kimba's Future Group 2.13 The Working for Kimba's Future Group, through its appearance before the committee, also expressed strong support for the Facility: …we strongly support having the National Radioactive Waste Management Facility on the selected site at Napandee, near Kimba. Our group, which represents people with a wide variety of community interests, perspectives and backgrounds, has observed increasing support for the Facility throughout the community. Over the past five years, our

6 Australian Academy of Science, Submission 20, pp. 1‒2.

7 South Australian Chamber of Mines and Energy, Submission 16, p. 1.

8 South Australian Chamber of Mines and Energy, Submission 16, p. 2.

9 Mr Jeff Baldock, Submission 42, pp. 1‒2; and Ms Jenny Baldock, Submission 30, pp. 1‒2.

community has had many opportunities to learn about the Facility, the need for it nationally and how it will be safe and create 45 jobs directly, with many overflow benefits… Based on the process, we know that the two industries—radioactive waste management and agriculture—can work safely side by side with no negative impact on our existing industry across the EP and beyond. We know about the numerous benefits this Facility will bring. It will deliver jobs to our community and wider region not only once in operation but also in the building stage. A business construction workshop alone had 120 people in attendance from all over the EP, finding out how they or their businesses can get involved in the project. In addition, the Facility would form new direct links between our community and the region for science and educational opportunities with Geoscience Australia, ANSTO, CSIRO and Canberra. We also know the Facility would lead to an increase in tourism in the area… We also support the community fund being set out clearly in legislation. That fund reflects extensive consultation with the Kimba community through the Kimba Consultative Committee and Kimba Economic Working Group and will provide direct benefits to support economic growth, community infrastructure and development, and future opportunities to secure high-quality services and more… We are satisfied that the process has been appropriate and thorough and that the community has been clear in its support. Sixty-two per cent of the community said yes to this Facility, including all direct neighbours to the site. That was one of the reasons our area was chosen to have it.10 2.14 The Working for Kimba's Future Group also expressed the view that any suggestion of moving the Facility to Woomera would be inappropriate given the local support for the project: Senator ANTIC: You would be aware, of course, of proposed amendments to move the Facility to Woomera. Following on from that explanation, I'm interested in what your views were regarding that proposal. Mrs Baldock: Naturally, the 62 per cent of our community prefer it to be in Kimba, not Woomera, obviously, for all the reasons we have previously outlined.11

The Kimba Council 2.15 The District Council of Kimba was also very supportive of the Facility and thus the passing of the bill. The Council sees it has a stimulus to the community and a way of securing that community's future. The Council commented:

10 Mrs Megan Lienert, Chair, Working for Kimba's Future Group, Committee Hansard, Canberra, 3 August 2020, pp. 1‒2.

11 Mrs Heather Baldock, Member, Working for Kimba's Future Group, Committee Hansard, Canberra, 3 August 2020, p. 3.

We want to see the Facility move ahead here generating the type of employment opportunities that would encourage their members to consider moving to Kimba in the future. This Facility would directly create 45 full-time federal government jobs in our community. That's jobs for existing residents and opportunities for new ones. We believe the community will support these workers as much as the Facility will support our community. This Facility comes with a combined $31 million funding package that was hard fought for and which would underwrite the economic and employment stimulus opportunities that will arrest and reverse our population decline. That includes the $20 million community fund that we believe should be indexed to reflect the fact that it has otherwise declined in real terms year on year through the delays in this process. This Facility will deliver a new industry, new opportunities and new growth for the people of Kimba and help our community not just to survive but to thrive for generations to come.12 2.16 Additionally, on behalf of the Kimba community, the Kimba Council noted its strong dissatisfaction about the proposed amendment to move the Facility to Woomera. The Council felt that it has undertaken the process in the good faith with government and has made a decision and considers the notion that Parliament would arbitrarily take this away and impose it on another community, that has not gone through the process nor indicated their willingness to host the Facility, is disrespectful and at odds with a community who wants it: Senator ANTIC: Aside from putting the project back a number of years— maybe as many as 10; who knows?—and aside from the fundamental problems that go with it, does the council have a view about the proposal to move the Facility to Woomera? … Mr Johnson: I guess my point is that our community has been engaged and invested in this process for a really long time. And to now just throw it in a different location, like Woomera, is disrespectful on so many levels. It doesn't recognise our commitment. It ignores the enormous support our community has given.13

Mr Wesley and Ms Lisa Schmidt 2.17 Mr and Ms Schmidt are a Kimba couple with three children who run a family business, Agsave Merchandise, and operate a public carwash. Their business has been serving Kimba and surrounding district farmers for over 30 years.14

12 Mr Dean Johnson, Mayor, District Council of Kimba, Committee Hansard, Canberra, 3 August 2020, p. 13.

13 Mr Dean Johnson, Committee Hansard, Canberra, 3 August 2020, p. 17.

14 Mr Wesley and Ms Lisa Schmidt, Committee Hansard, Canberra, 28 July 2020, p. 1.

2.18 The Schmidts are supportive of the Facility as they believe it will provide an economic stimulus to the region through increased employment and through the community benefit fund. This, they believe, is particularly important as the economic health of the region is dependent on primary industry—i.e. agriculture—which is weather dependent: We believe that this is an amazing opportunity not only for Kimba and the Eyre Peninsula but for the whole of South Australia. The construction phase alone will create many job opportunities for tradespeople, contractors and businesses, with flow-on effects for the wider community and beyond. The promise of 45 jobs to operate the Facility will give a massive economic boost to the district, which will in turn bring more families to town and give the town long-term financial stability. I'm sure this would help us to retain vital services such as the school, the hospital, aged care and community services. The community benefit fund of $2 million that we have received already has seen huge improvements around the town and lots of upgrades for community groups' facilities. Our population has been in steep decline over the past 30 years, and there are many empty houses for sale or lease that can be rented or sold and occupied. Kimba is in a low-rainfall area, with a district average of 300 millilitres per year. Droughts, dry years and devastating frosts are common, which means that our primary income is volatile. Being a farming community, when the crop doesn't produce we all suffer financial uncertainty. As business owners and parents we crave stability, and the radioactive waste Facility is exempt from wavering weather patterns.15 2.19 The Schmidts also believe that the process of selecting the site has provided ample opportunity for review: The fact that there has been a vocal minority opposing the building of this Facility has meant there have been a lot more questions asked and answered throughout this process than there would have otherwise been if everyone had been all for it. We believe that Kimba and its citizens are collectively the most educated community on the subject of low- and- intermediate-level radioactive waste storage and disposal in Australia... We're of the opinion that, because of the public education on the storage and disposal of radioactive waste in our town, this community has spoken and the majority is right.16

Ms Donna Johnson 2.20 Ms Donna Johnson, a Kimba resident, also supported the bill. Ms Johnson’s submission argued that the Kimba community had been well informed on all aspects of the debate and provided a list of experts from whom the community had heard express their views.17

15 Mr Wesley and Ms Lisa Schmidt, Committee Hansard, Canberra, 28 July 2020, p. 1.

16 Mr Wesley and Ms Lisa Schmidt, Committee Hansard, Canberra, 28 July 2020, p. 2.

17 Ms Donna Johnson, Submission 10, pp. 1‒2.

2.21 Ms Johnson is satisfied with the consultation arrangements arguing that those outside the Kimba community: …have often pre-conceived and factually incorrect assumptions, with no investment in this long and intensive consultation process. It is absolutely right and fair that Kimba residents and ratepayers had its opportunity to vote to approve hosting this Facility in our district and the multiple times we have said yes is testament to this consultation and the knowledge we have gained.18 2.22 Ms Johnson dismissed concerns about safety generally: 'even those bitterly opposed concede, "there are no safety concerns"',19 and that the transport of the radioactive material: …is under strict regulation and is completely safe. If we think about some of the more volatile materials transported daily past our front doors, for example, fuel, acid, fertiliser or explosives, its incomparable and a ridiculous concern.20 2.23 Finally, Ms Johnson believed that: The $20 million Community Fund is appropriate and completely reasonable when you consider how the community of Kimba has engaged in this lengthy and controversial consultation. We argued strongly for a fund to deliver benefits to the community throughout the period that the Facility would remain active in Kimba, 100—300 years, providing an ongoing and sustainable benefit.21

Mr John Newlands 2.24 Mr Newlands agreed with the selection of the Kimba site, and sees the decision as an opportunity for further development. Mr Newlands argued that further consideration be given to synergies with:

 increased desalination for Eyre Peninsula and Roxby Downs;  the Cape Hardy port proposal and road links; and  co-ordination with a possible high-level waste Facility in the Woomera Prohibited Area.22 2.25 Finally, Mr Newlands agreed with STEM scholarships for local students but cautioned against spending the uncommitted $20 million of the $31 million on what he called ‘Kimba vanity projects’. He also recommended consideration be given to related development for other struggling towns.23

18 Ms Donna Johnson, Submission 10, p. 2.

19 Ms Donna Johnson, Submission 10, p. 2.

20 Ms Donna Johnson, Submission 10, p. 2.

21 Ms Donna Johnson, Submission 10, p. 3.

22 Mr John Newlands, Submission 33, p. 3.

23 Mr John Newlands, Submission 33, p. 3.

Opposition to the bill

Themes 2.26 Given that most of the 105 submissions opposed the bill, analysis of their views is best done on a thematic basis, rather than that of individual perspectives. Many of these submissions concentrated on broader issues generally unrelated to the bill's provisions. The main points of opposition focussed on:

 the consultation and voting process as well as community support;  the views of the Indigenous communities – in particularly that of the Barngala people;  the safety of the Facility and that of transporting radioactive material to the Facility; and  the potential impact of the Facility on local agriculture and impact on the perception of the Eyre Peninsula as a ‘clean and green’ food growing region.

Consultation and voting process as well as community support 2.27 A number of submitters expressed scepticism about the level of community support expressed for the Facility, the voting process used to ascertain that level of support and the consultation process more generally.24 2.28 Ms Geraldine Gillen observed: The "broad support" claimed to have support for the location of the Facility of Napandee was set up by the Government to give a skewed result. The Barngarla people who have Native Title over the land have not been respected or consulted. Their efforts before the court have failed. Yet again showing that this Government continues to disempower and dispossess the Barngarla Traditional Owners who are unanimous in their opposition to the proposed nuclear waste Facility... Besides the Barngarla people, many people in the Kimba community were unable to vote. People who originally were told they were neighbours, suddenly were not because a road between their property and another deemed them to be ineligible. People holding property who were just outside the area, did not get a vote. The process of [who] was eligible for voting needs to be explored by this Committee. Statistic[s] have been misused both by the Government and then the media. It is not only Kimba locals who ought to have had a say in this important decision. It is an important issue for All Australians particularly all South Australians…All stakeholders who are within the transport corridors where this waste is intended to be transported, and that could include

24 For example, see Josephite SA Reconciliation Circle, Submission 7; Mr James Shepherdson, Submission 8; Ms Stephanie Ingerson, Submission 28; Mr Bob & Sue Tulloch, Submission 72; Mr Marty Yates & Ms Rachel Yates, Submission 90; Ms Kim Mavromatis, Submission 93; and Sample Joint NGO Submission, Form Letter 1, Submission 101.

further down Eyre Peninsula, need to be consulted before this Bill before Parliament is passed.25 2.29 Mr Austen and Ms Thelma Eatts expressed similar views: Approximately 824 people were eligible to vote in the ballot with 745 papers returned to the Australian Electoral Commission and 735 were accepted. The Results were 61.5 per cent in favour 39.5 per cent against. 61.5 per cent votes in Kimba have made the decision that not only Kimba and Eyre Peninsula, but the whole population of South Australia approximately 1.5 million people will have a Radioactive Waste Facility whether they want it or not. It is undemocratic, and unfair, the whole proposition should be scrapped.26 2.30 The Medical Association for Prevention of War (Australia) was less generous in its assessment of the poll result: Former federal Resources Minister Matt Canavan stated in Parliament that 65 per cent support for the siting of a National Radioactive Waste Management Facility (NRWMF) would meet the Government's requirement for 'broad community support'. Ironically, he qualified that statement by noting that other factors would need to be taken into account including the views of Traditional Owners… When the Barngarla Determination Aboriginal Corporation commissioned an independent confidential postal survey of Traditional Owners, conducted by Australian Election Company, 100 per cent of respondents voted 'no' to the proposed nuclear Facility. In 2016, the Department’s Principal Advisor Bruce Wilson confirmed the Minister would need 'at least that [65 per cent], if not more' before proceeding with a siting decision. But only 54.8 per cent of voters deemed eligible by the government supported the proposed nuclear Facility in the Kimba ballot held last year, well short of the 65 per cent benchmark. If the results of the Barngarla ballot are combined with the government-initiated ballot, the overall level of support falls to just 43.8 per cent of eligible voters (452/824 for the Kimba ballot, and 0/209 for the Barngarla ballot).27

Views of the Indigenous communities 2.31 Submitters also expressed a general concern about Indigenous community engagement in the consultation and selection process, as well as potential violation of those communities’ rights.28

25 Ms Geraldine Gillen, Submission 18, p. 2.

26 Mr Austen and Ms Thelma Eatts, Submission 47, p. 1.

27 Medical Association for Prevention of War (Australia), Submission 29, p. 4.

28 For example, see Uniting Church South Australia, Submission 11; Maritime Union of Australia, Submission 19; Ms Stephanie Ingerson, Submission 28; Ms Anne Wharton, Submission 43; Mr Graham Mantle, Submission 44; Ms Kate Eatts, Submission 52; Carol Faulkner, Submission 53;

2.32 The Yankunytjatjara Native Title Aboriginal Corporation (YNTAC), Tjayiwara Unmuru Aboriginal Corporation (TUAC), De Rose Hill—Ilpalka Aboriginal Corporation (DRHIAC) and the First Nations of South Australia Aboriginal Corporation (FNSAAC) submitted, via Ms Karen Lester, their concerns over the bill’s provisions. 2.33 These groups are opposed to bill on the basis that they claimed there had been no engagement or consultation with their members, or the organisations of which they are a part.29 2.34 Although they acknowledge that the specified site for the radioactive waste management Facility lies in the Barngarla Native Title Determination Area, this land has significance for a wider group of Aboriginal people, including members of YNTAC, DRHIAC, TUAC and FNSAAC. They argued that the proposed use of the specified site is a matter of significance for Aboriginal people from across South Australia, whose non-native title rights and interests would be affected by the construction and operation of a radioactive waste management facility at this site.30 2.35 In particular they raised concerns: …about the way section 34GB the bill overrides the application of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHPA) and the Environmental Protection and Biodiversity Conservation Act 1999 (EPBCA), in relation to the activities authorised under section 34G of the Bill. Many of the activities contemplated by section 34G have the potential to be highly destructive to Aboriginal sites and objects which would otherwise be protected by ATSIHPA. These activities also have the potential to cause serious environmental damage of the kind that would otherwise be prevented by the EPBCA. Parliament should not allow the introduction into legislation of provisions that undermine the fundamental objects and functionality of essential legislation like the ATSIHPA and the EPBCA.31 2.36 The four groups requested that opportunities be created for negotiation with Aboriginal people in relation to the proposed activities at the specified site.32

The Barngarla people 2.37 The Barngarla Determination Aboriginal Corporation (BDAC) expressed its particular disappointment:

Mr David Myer, Submission 68; Ms Katrina Bohr, Submission 84; and Australian Conservation Foundation, Submission 97.

29 Ms Karen Lester, Submission 49, p. 1.

30 Ms Karen Lester, Submission 49, p. 1.

31 Ms Karen Lester, Submission 49, p. 1.

32 Ms Karen Lester, Submission 49, p. 1.

The Committee would be aware that members of BDAC were excluded from participating in a community ballot, facilitated by the District Council of Kimba between 3 October 2019 and 7 November 2019, to gauge support for the nominated sites of Napandee and Lyndhurst at Kimba. As the First Peoples for the Kimba area, this exclusion was alarming to our community given the permanent impact that the National Radioactive Waste Management Facility (NRWMF) would have on Country. The Barngarla people also hold many parcels of native title land very close to the NRWMF location, and have the right to live on and use this land. That native title land was, and is in many cases, closer to the proposed site than the town of Kimba to the site. To be excluded from the ballot on the technicality that the land was not rateable, was terrible for the Barngarla community. The ballot returned a yes vote whilst excluding over 200 Barngarla persons who would likely have voted no. Clearly the entire legitimacy of the site selection process is, at best, highly questionable in these circumstances. It is Barngarla’s position that the site selection process has entirely miscarried. There is clearly no broad community support and such material suggesting there is, was manufactured by gerrymandering the ballot to exclude the Barngarla.33 2.38 The Barngarla Determination Aboriginal Corporation expressed deep concern over the bill’s provision to prevent any judicial review: As Schedule 1 of the bill will amend the NRWMF Act, Parliament is now being asked to directly legislate the selected site for the NRWMF. It is the Barngarla’s position that Schedule 1 of the bill is a blatant and indisputable attempt to prevent any judicial review proceedings which would have been initiated by the Barngarla people (and potentially other members of the Kimba Community, some of whom have indicated they were considering it) in relation to any declaration made by the Minister under section 14 of the NRWMF Act. Should the Government’s bill proceed and the mandatory requirements under the NRWMF Act be abandoned, a removal of judicial review would ultimately deprive the Barngarla, along with others, of the fundamental legal right to such review of an administrative decision-making process. The consequence of such legislative 'sidestepping' around the agreed process under the NRWMF Act is, in our view, in direct conflict with the very foundation that underpins Australia’s democratic principles of government. It would also allow the Minister not to comply with the process set down by Parliament in the NRWMF Act, and then legislate around this. BDAC believes this will clearly set a terrible precedent if the Government, through the introduction of Schedule 1 of the Bill, is now successful in having Parliament remove judicial oversight in respect of a decision which is in fact the culmination of a lengthy executive Government decision-making process.34

33 Barngarla Determination Aboriginal Corporation, Submission 25, pp. 1‒2.

34 Barngarla Determination Aboriginal Corporation, Submission 25, pp. 2‒3.

2.39 The Ngoppon Together Reconciliation Group broadly supported the Barngarla people’s position.35

Safety of the Facility and the transporting of radioactive material 2.40 A number of submitters expressed concern over the safety aspects of the Facility and the transportation of radioactive material to it.36 2.41 The Josephite SA Reconciliation Circle commented that the bill was not consistent with best practice for transport and safety: The NRWM Facility plan for 'indefinite storage' of ANSTO nuclear fuel wastes and Intermediate Level Wastes is not consistent with longstanding advice of the regulator ARPANSA, Radiation Health & Safety Advisory Council and of the Nuclear Safety Committee (NSC) on International Best Practice. We note also that the NSC has advised (2013) that dual handling transport for interim storage as named in our Introduction above 'does not represent International Best Practice' and “also has implications for security” and for safety.37 2.42 The Public Health Association of Australia submitted: There are inherent risks of radioactive spillage and environmental contamination in transporting nuclear waste. The locating of any radioactive waste management facility should only proceed with relevant State and Territory approval, and fully informed local community consent, including communities through which the waste is to be transported. While the Explanatory Memorandum to the Bill outlines the consultation processes which occurred with the communities local to the site itself, there is no apparent mention of consultation with communities through which waste would be transported to reach the site.38 2.43 The Maritime Union of Australia also expressed strong reservations about the transport of radioactive material, devoting a significant share of its submission to the topic: There is no logic behind the proposal to move long-lived intermediate- level waste (ILW) from interim above-ground storage at Lucas Heights to interim above-ground storage at the Kimba site. The proposed double- handling (once to the Kimba site, then at some unspecified time to a disposal site) makes no sense whatsoever, it exposes communities to unnecessary risks, and it exposes workers (including MUA members) to unnecessary risks. Further, ARPANSA's Nuclear Safety Committee has stated that dual handling in transport associated with interim storage 'does

35 Ngoppon Together Reconciliation Group, Submission 3.

36 For example, see Ngoppon Together Reconciliation Group, Submission 3; Mr David Noonan, Submission 6; Mr Peter Woolford, Submission 34; Mr Brian and Ms Michelle Hunt, Submission 40; Mr Austin and Ms Thelma Eatts, Submission 47; Mr Neville Reid, Submission 55; Mr David Myer, Submission 68; and Caring for South Australia, Submission 17.

37 Josephite SA Reconciliation Circle, Submission 7, p. 2.

38 Public Health Association of Australia, Submission 14, p. 5.

not represent international best practice' and raises 'implications for security'. Additionally, the considerable distances involved create a whole additional level of risk. The more time a truck is on the road the greater the chance of an accident. International best practice is the shortest distance possible for waste transportation to a permanent storage site.39

Potential impact of the Facility on local agriculture 2.44 Finally, a number of submitters expressed concern about the impact of the Facility on the agricultural industry—both real and perceived. 2.45 Mr Peter Woolford, President of the No Radioactive Waste on Agricultural Land in Kimba or SA group, expressed that group's concerns. The group is not against a facility per se; rather, it is against a facility on agricultural land:40 We fully understand the need for Australia to establish a radioactive waste dump; however, we do not feel that the federal government has undertaken to find the best site for the facility. The ARPANSA code of conduct for disposal of radioactive waste includes a criteria that the immediate vicinity of the facility have no insignificant natural resources, including potential valuable mineral deposits, and that it have little or no potential for agricultural or outdoor recreational use. Only four per cent of South Australia's arable farming land and the Eyre Peninsula make up a large portion of that. Our agricultural industry is and will always remain central to our town and region. That's why it's so important to maintain our clean and green reputation.41 2.46 In her submission, Ms Susan Craig noted that South Australia’s primary industries based on grains, livestock, horticulture, wine, seafood, forests and dairy sectors contribute significantly to the state’s exports. For example, in 2017‒18, South Australia’s gross food and wine revenue totalled $20.3 billion.42 2.47 Accordingly, Ms Craig and other submitters felt that the establishment of the Facility may endanger the reputation of South Australia’s agricultural produce.43 Ms Craig concludes by saying: South Australia’s strength in this marketplace is the trust other countries have, in not only our clean reputation, but SAFE food. The establishment of a nuclear waste facility, in particular one that is built in the heart of

39 Maritime Union of Australia, Submission 19, p. 3.

40 Mr Peter Woolford, President, No Radioactive Waste on Agricultural Land in Kimba or SA, Committee Hansard, Canberra, 3 August 2020, p. 10.

41 Mr Peter Woolford, Committee Hansard, Canberra, 3 August 2020, p. 8.

42 ‘Primary Industries in SA’, South Australian Government, SA Fast Facts Overview, 1 April 2019, cited in Ms Susan Craig, Submission 62, p. 2.

43 See Mr John and Ms Berandette Freeth, Submission 26; Mr Ken and Ms Carole Wetherby, Submission 35; Mr Graham Mantle, Submission 44; Mr Cameron and Ms Toni Scott, Submission 82; and Ms Colleen Grantham, Submission 89.

agriculture is a profound contradiction of South Australia’s position and will put that reputation and business at risk.44 2.48 Mr Sam Tucker, the Managing Director and owner of Tucker’s Natural, expressed similar views. Mr Tucker believes that placing the Facility: …shows callous disregard of the livelihoods and care of Kimba farmers, the SA agricultural community, SA Food and Beverage Manufacturers and the general public…45 For Tucker’s Natural, a non-nuclear waste site + non-GMO accreditation are critically important for the long-term growth and viability of Tucker’s Natural as an Australian manufacturing facility.46

Responses by the Department of Industry, Science, Energy and Resources 2.49 In their submission to the inquiry, the Department of Industry, Science, Energy and Resources (the Department) provided its observations to the concerns discussed above.

Consultations, the voting process and community support 2.50 In its submission, the Department explained how, following approval of the three sites, it engaged with the local communities, Traditional Owners and the wider public to ensure all interested parties had avenues to receive accurate and timely information as well as express their views on the proposal. The Department argued that this ensured that interested community members were fully equipped to make informed decisions.47 Information and engagement activities included:

 the provision of information about the various aspects of the Facility proposal including community visits by technical specialists, social media posts, webinars, workshops, information sessions, and distribution of newsletters, fact sheets and independent reports;  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 Heritage Working Group;  public education visits to ANSTO for community members to learn about nuclear waste management (57 visits, involving more than 230 people); and

44 Ms Susan Craig, Submission 62, p. 5.

45 Mr Sam Tucker, Submission 5, p. 1.

46 Mr Sam Tucker, Submission 5, p. 2.

47 Department of Industry, Science, Energy and Resources, Submission 96, p. 6. Attachment D (p. 19) to the Department’s submission provided a visual representation of the community consultation conducted.

 direct consultation with the Minister and department and community stakeholder groups including neighbours, businesses and Traditional Owner groups.48 2.51 The Department’s submission also explained that the former Minister for Resources and Northern Australia, Senator the Hon Matthew Canavan, consistently said he would not reduce ‘broad community support’ to a single number and that no one group or individual has a right to veto the Facility.49 2.52 The committee notes some concerns raised about the removal of judicial review for a site selection decision under the Act. However, the Department expressed the view that by specifying the site in legislation, the decision to acquire this important national Facility will be a decision of the Parliament of Australia, representing the people of Australia, rather than being at the discretion of one minister. Decisions made through the parliamentary process provide all members of Parliament the opportunity to scrutinise and comment on the proposal, and to put forward amendments to the bill.50 2.53 Additionally, before the operation of the Facility commences, those with a right or interest in the land may also have further opportunities to comment on the assessment processes and decisions under regulatory approval frameworks such as the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and the Australian Radiation Protection and Nuclear Safety Act 1998 (ARPANS Act).51 2.54 The EPBC Act provides three ways in which a person can seek a review or a reconsideration of an administrative decision, however not all avenues are available in all cases. These avenues are:

 request for reconsideration;  merits review;

− both reconsideration and merits review of decisions enable all aspects of a decision to be reconsidered on their merits, and a new decision to be substituted in place of the original decision; and

 judicial review

− under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) and section 39B of the Judiciary Act 1903, the Federal Court has power to review Australian Government decisions of an administrative nature, to

48 Department of Industry, Science, Energy and Resources, Submission 96, p. 7.

49 Department of Industry, Science, Energy and Resources, Submission 96, Attachment I, p. 36.

50 Department of Industry, Science, Energy and Resources, Submission 96.1, p. 13.

51 Department of Industry, Science, Energy and Resources, Submission 96.1, pp. 13‒14.

determine whether they have been made according to the law. The Court does not consider the merits of the decision.52 2.55 The ARPANS Act provides a framework for the regulation of radiation sources and nuclear and other facilities controlled or operated by Commonwealth agencies. 2.56 Commonwealth agencies, which are currently involved in activities covered by the ARPANS Act, are required to submit applications for licence. There are two types of licence described in the ARPANS Act:

 a source licence; which is required by Commonwealth entities (‘controlled persons’) who deal with controlled material or controlled apparatus (section 32), and  a facility licence; which is required by Commonwealth entities (‘controlled persons’) who are engaged in certain conducts in relation to a nuclear installation or a prescribed radiation facility (section 33).53 2.57 Section 40 of the ARPANS Act deals with a right of review in relation to a licence decision. It provides that an eligible person (either a licence holder or person applying for a licence) may request that the Minister reconsider the licence decision.54 2.58 Under subsection 40(5), application may be made to the Administrative Appeals Tribunal for review of a decision of the Minister made under subsection 40(3) to confirm, vary or set aside the licence decision.55 2.59 Ministerial review is also available in relation to CEO directions given to Commonwealth entities under section 41.56 2.60 Finally, judicial review of administrative decisions is also available under the ADJR Act57 and the Judiciary Act.58

52 Department of Industry, Science, Energy and Resources, Submission 96.1, p. 13.

53 The Act can be found at: https://www.legislation.gov.au/Details/C2016C00977 (accessed 9 September 2020).

54 The Act can be found at: https://www.legislation.gov.au/Details/C2016C00977 (accessed 9 September 2020).

55 The Act can be found at: https://www.legislation.gov.au/Details/C2016C00977 (accessed 9 September 2020).

56 The Act can be found at: https://www.legislation.gov.au/Details/C2016C00977 (accessed 9 September 2020).

57 The Act can be found at: https://www.legislation.gov.au/Details/C2017C00238 (accessed 9 September 2020).

58 The Act can be found at: https://www.legislation.gov.au/Details/C2018C00347 (accessed 9 September 2020).

2.61 A number of different indicators have informed whether there was broad support in the local communities that were in the process. These included formal submissions, results from community ballots, business surveys, neighbour surveys and views directly obtained from Traditional Owners.59 2.62 Finally, the Department explained that, in terms of the Barngarla’s own ballot process, the former Minister considered the results of that ballot alongside the ballot of people who live in Kimba, submissions received, neighbour and business surveys, and direct feedback including at the drop-in offices over several years.60 2.63 The Kimba District Council also wanted to put on the record that the decision to restrict its ballot to residents and ratepayers, was that it was the usual process, not some form of manipulation. Indeed: … we are a council. We applied the same yardstick and parameters as are applied in council elections.61 We based the criteria around the same criteria that we use at the Local Government (Elections) Act. The poll was classified as a ballot and was held by the Australian Electoral Commission.62

Views of the Indigenous communities 2.64 The Department argued that it actively sought the views of Traditional Owners and will continue to engage with them on matters of heritage and to provide opportunity for employment and economic benefit.63

The Barngarla people 2.65 The Department explained that it sought formal engagement with BDAC since it was formed in early 2017 and that there had been extensive correspondence between it and BDAC’s legal representatives since early 2017.64 2.66 There has been regular correspondence between the Department and BDAC’s legal representatives since early 2017, including by letter, email and telephone contact. In addition, the department has sent fact sheets to NWL for distribution to BDAC members.65

59 Department of Industry, Science, Energy and Resources, Submission 96, Attachment I, p. 36.

60 Department of Industry, Science, Energy and Resources, Submission 96, Attachment I, p. 35.

61 Mr Dean Johnson, Committee Hansard, Canberra, 3 August 2020, p. 13.

62 Mrs Debra Larwood, Chief Executive Officer, District Council of Kimba, Committee Hansard, Canberra, 3 August 2020, p. 15.

63 Department of Industry, Science, Energy and Resources, Submission 96, Attachment I, p. 35.

64 Department of Industry, Science, Energy and Resources, Submission 96, Attachment I, p. 34.

65 Department of Industry, Science, Energy and Resources, Submission 96, Attachment I, p. 34.

2.67 The Minister met with members of the BDAC board during a community visit on 22 August 2019. This meeting allowed both parties the opportunity to discuss the project and the Minister reiterated the offer to financially support BDAC to conduct a poll of its members on their support of the Facility.66 2.68 At the public hearing of 28 August 2020, the Department further explained that: The department has sought to consult with Indigenous communities in line with the principles of free, prior and informed consent, known as the FPIC principles, under the UN Declaration on Human Rights. Australia's obligation under those principles is to consult with the aim of achieving agreement with or the consent of the Indigenous peoples affected. Those obligations don't extend to providing traditional owners with a veto right in those consultations. In fact, a right of veto would set a really significant precedent for future governments seeking to access land where there is no native title to progress infrastructure in the national interest. Also important in determining what is appropriate consultation, it is relevant to consider the impact the project will have, and the absence of native title is a relevant factor in those considerations. The site we are talking about has been freehold land extensively farmed for approximately 80 years. None of that diminishes the fact that there is a need to adequately protect cultural heritage that may exist at the site. In fact, in our studies and in the work BDAC's undertaken themselves we have identified some areas in the far south-west corner of the property that have the potential to have some heritage values that will need to be protected. We will continue to seek engagement with the Barngarla Determination Aboriginal Corporation on the development of a more detailed heritage study and archaeological surveys that will be done through the progress of the site.67

Safety and transport of radioactive material

Safety of the Facility 2.69 The Department in its submission explained that the regulatory requirements for the Facility will be ongoing from siting, construction, operation and through to the decommissioning phase. The regulatory framework will ensure that the facility continues to operate in a safe manner.68 2.70 At the public hearing, the Department acknowledged that intermediate-level waste would be moved to the Facility on a temporary basis and that it will be

66 Department of Industry, Science, Energy and Resources, Submission 96, Attachment I, p. 35. Further information on Departmental engagement with the BDAC can be found in the Department’s submission in Attachment H, p. 26.

67 Ms Sam Chard, General Manager, National Radioactive Waste Management Facility Taskforce, Department of Industry, Science, Energy and Resource, Committee Hansard, Canberra, 28 August 2020, p. 7.

68 Department of Industry, Science, Energy and Resources, Submission 96, Attachment I, p. 29.

decades until a permanent storage location is identified.69 The Department also provided greater detail on the intermediate level waste and why it is necessary to move it to the proposed Facility: We also have holdings of, and about one quarter of our total holdings are, intermediate-level waste. Of that intermediate-level waste, there are three kinds. About 96 per cent of our intermediate-level waste is solid waste that's very similar in nature to our low-level waste—gloves and gowns and building rubble, for example. That is only temporarily stored at ANSTO and the subject of my references earlier to Senator Antic about ANSTO providing a plan to ARPANSA on how it would manage that waste and proposing that it be moved to the Facility. Three per cent of the waste is liquid waste that will need to be transformed into vitrified glass—the synroc technology. And one per cent is the TN—81 casks—those large casks of the reprocessed spent fuel. So the vast majority of those holdings of intermediate-level waste are only in very temporary storage facilities at ANSTO. There is projected intermediate-level waste that ANSTO does not have capacity to store without having an impact on ANSTO's operations, and therefore we propose, and the intent of the Facility is, to co-locate that intermediate-level waste with the other low-level waste, both from ANSTO and from the hundred-odd different locations around Australia, into a purpose-built, consolidated Facility.70 2.71 The Department further explained that radioactive waste will need to be conditioned and packaged to meet appropriate Waste Acceptance Criteria. Once the Facility has entered the post-closure phase, there will be ongoing environmental monitoring, to provide ongoing assurances of safety.71 2.72 Properly conditioned and packaged intermediate‒level waste can be managed safely for very long periods of time above ground, but will eventually need to be moved to a final disposal site. The Department concluded by saying that while the material inside the containers will be more radioactive for far longer than low‒level waste, storage of the intermediate‒level waste packages will not pose any risk to people or the environment.72

Transporting waste 2.73 The Department reported that Australia complies with the Code of Practice for the Safe Transport of Radioactive Material as set out by ARPANSA. The code

69 Ms Sam Chard, Committee Hansard, Canberra, 28 August 2020, p. 12.

70 Ms Sam Chard, Committee Hansard, Canberra, 28 August 2020, p. 12.

71 Department of Industry, Science, Energy and Resources, Submission 96, Attachment I, p. 29.

72 Department of Industry, Science, Energy and Resources, Submission 96, Attachment I, p. 31.

of practice adopts the International Atomic Energy Agency’s Regulations of the Safe Transport of Radioactive Material, 2005 edition.73 2.74 The Department argued that, in Australia, some 10,000 doses of nuclear medicine are distributed to 250 hospitals and medical centres in country and regional areas each week on public roads and commercial flights, without incident. Radioactive material has been safely transported for about the past 60 years and the Department claimed that there has never been an accident resulting in a significant impact on the health and safety of people or the environment.74 2.75 Finally, the Department noted that there have been more than 7,000 international shipments of spent fuel (more than 80,000 tonnes) since 1971. The Department claimed that there has been no breach of containment or release of radiation as a consequence of any of these shipments. Around the world, 20 million packages of radioactive material are safely transported each year on public roads, railways and ships. The Department argued that the in- built safety features of the packages, regulatory controls, and response procedures have always worked to ensure safety.75

Impact on local agriculture. 2.76 The Department argued that the Facility will be a world-class, purpose-built, state-of-the-art facility operated in an open and transparent way, in line with international best practice. It will be subject to strict regulation and meet a high bar in terms of licencing and environmental approvals. It will only proceed if the site meets all technical and safety criteria.76 2.77 The advice from the experts in the Australian Department of Agriculture, based on both international and domestic experience, is that there is no reason why there would be any issues for Australia obtaining export licences or accreditation with regard to agricultural produce.77 2.78 The Department noted that radioactive waste facilities in the Champagne region of France have not affected the production or export of wheat, canola, grape or dairy. Strict regulatory and safety measures here in Australia are

73 Department of Industry, Science, Energy and Resources, Submission 96, Attachment I, p. 32. See also the evidence provided by Ms Sam Chard at the 28 August 2020 public hearing, Committee Hansard, p. 8.

74 Department of Industry, Science, Energy and Resources, Submission 96, Attachment I, p. 32.

75 Department of Industry, Science, Energy and Resources, Submission 96, Attachment I, p. 32.

76 Department of Industry, Science, Energy and Resources, Submission 96, Attachment I, p. 27.

77 Department of Industry, Science, Energy and Resources, Submission 96, Attachment I, p. 28.

designed to ensure that radioactive materials do not enter the environment or pose a risk to the community or surrounding agricultural land.78

Committee comment 2.79 The bill gives effect to the commitment made by successive governments to the Australian community to establish a purpose-built National Radioactive Waste Management Facility to permanently dispose of Australia’s domestically produced low-level waste, and store Australia's intermediate-level waste for a period of time sufficient for the government to establish a permanent ILW disposal facility, consistent with international obligations and best practice. 2.80 The successful operation of the Facility will greatly improve the safety and security of radioactive waste management in Australia. The Facility will support the nuclear science and technology industry and bring Australia into line with some of our key international partners. 2.81 This bill comes at the end of a consultation and technical assessment process spanning more than four years, where owners voluntarily nominated their land to be considered for the location of the Facility. 2.82 The committee understands that the issue of radioactive material is an emotive one. Factual analysis conducted by the Department of Industry and other organisations has been helpful in providing clarity to a number of issues raised. 2.83 The committee notes that, through the evidence that has been received, a suitable site has been found and one that has been provided by a willing host. Although there is some dispute about the numbers, it can also be concluded that the Kimba community is generally supportive notwithstanding objections by the Barngarla people and other interested parties. 2.84 The committee noted the clear advice of AECOM Australia Pty Ltd as to the suitability of the site. In 2018, AECOM was contracted by the Department to assess the technical suitability of three short-listed sites in South Australia being considered for the siting of the Facility. The short-listed sites were characterised for the purpose of a technical assessment to determine whether there were any significant environmental values, hazards or infrastructure constraints that would preclude a site from further consideration for siting of the Facility.79 2.85 AECOM stated that: The Napandee site had the lowest risk rating of the three sites considered. From a technical point of view, the Napandee site was limited to flora and

78 Department of Industry, Science, Energy and Resources, Submission 96, Attachment I, p. 28.

79 Mr James Rusk, Associate Director, Environment, AECOM Australia Pty Ltd, Committee Hansard, Canberra, Tuesday 30 June 2020, p. 1.

fauna around presence at the site, around flooding. They were the two key contributing factors to those risk ratings. There are other risk ratings that were identified in the site assessment report but were outside of our technical assessment… It is clear in our minds on technical grounds that Napandee is the preferred site.80 2.86 AECOM also noted that their report had been peer reviewed and that there was, to their knowledge, no criticism of their report.81 2.87 This was reinforced by the Department of Industry who stated: The site assessment process—the technical assessment of the site—is provided in quite some detail, attached to the department's submission to the inquiry. That site assessment was undertaken over approximately three years. It included assessments of the safety of the site, using some of the characteristics of the regulatory assessments as a proxy for our safety assessments. They covered factors such as volcanism; geology; meteorology; hydrology; geotechnical considerations; groundwater risk; radionuclide dispersion in the atmosphere; demographics, such as nearby human activities and land use; ambient radioactivity; hydrology of the site more generally; seismic risk; flora and fauna; traffic and transport; land use planning; agriculture; and Aboriginal cultural heritage, just to run through a few of the kinds of things to which consideration was given. Those assessments were based on modelling that was peer reviewed by regulators. The assessments were undertaken by a range of organisations, including AECOM, Jacobs, ANSTO and Geoscience Australia. All of the assessments were peer reviewed by organisations that weren't involved in the actual drafting of the assessments. For example, where ANSTO, AECOM and Jacobs may have undertaken a particular assessment, those assessments were peer reviewed either by Geoscience Australia or the CSIRO.82 2.88 In response to those who argued that the material currently being stored at Lucas Heights should remain there, the committee notes that ANSTO, in its appearance before the committee, explained that Lucas Heights was not a suitable site as it: …is not technically capable of holding the intermediate-level waste for technical and geotechnical reasons, so it will never qualify as a site.83 2.89 This was reinforced by the Department's assessment that both Lucas Heights and Woomera were unsuitable locations for the Facility being proposed for Kimba. With regard to Lucas Heights:

80 Ms Kylie Schmidt, Team Leader, Civil Infrastructure, AECOM Australia Pty Ltd, Committee Hansard, Canberra, 30 June 2020, pp. 2‒3.

81 Mr James Rusk and Ms Kylie Schmidt, Committee Hansard, Canberra, 30 June 2020, p. 2.

82 Ms Sam Chard, Committee Hansard, Canberra, 30 June 2020, p. 34.

83 Dr Adi Paterson, Committee Hansard, Canberra, 30 June 2020, p. 11.

The ANSTO Lucas Heights campus is a total of 70 hectares with more than 80 buildings located on it. The small amount of remaining free space at Lucas Heights will need to accommodate the expansion of the campus’ future science and research activities. The Facility requires at least 100 hectares and will therefore not fit within the ANSTO campus. As noted in ANSTO’s submission to this Inquiry (Submission 21), regardless of the size limitations, the Lucas Heights campus would be unlikely to satisfy geological and hydrological requirements of a disposal site. ANSTO’s mandate relates to science and medicine production. The campus was never intended as a long-term waste management facility. ANSTO is only licenced to store waste at its Lucas Heights campus on a temporary basis, and on the condition that it provide full life-cycle plans for management, storage and disposal of its radioactive waste by 30 June 2020.84 2.90 With regard to proposals to shift the Facility to the Woomera Prohibited Area, the Department explained: …a potentially suitable site within the WPA (52a) was identified in 2002, but subsequently assessed by the Supervising Scientist as unsuitable, due to an unacceptably high probability that Australian Defence Force activities would impact the Facility… In that 2017 assessment, two sites within the WPA and one within 10km of its boundary all passed the initial multi-criteria assessment, but were subsequently assessed by Defence as unsuitable due to Defence operational requirements. The sites were:  Woomera (Nurrunga Test Area): south of Woomera and the WPA;  Woomera (Airfield, Technical Area, Woomera Village): within the WPA, contains Woomera township and the Woomera Airfield, and on Defence land; and  Woomera (Small Arms Test Range): within the WPA, contains built structures on site and on Defence land. The majority of the WPA is comprised of Aboriginal freehold title and South Australian Crown land that is subject to pastoral leases, mining and resource exploration tenements and conservation areas. The small number of Commonwealth-owned Defence land parcels within the WPA lie mainly within a larger area prescribed as the ‘red zone’ that is legislatively designated for continuous Defence use. Certain Aboriginal people and pastoralists have existing permission to access the red zone but this may be suspended during periods of testing war materiel (including missile testing). Exclusion periods of between 56 to 140 days are periodically implemented, which would require the Facility to be shut down and prevent necessary environmental and radiological monitoring.

84 Department of Industry, Science, Energy and Resources, Submission 96.1, p. 4.

The Department of Defence has also evaluated and recently re-confirmed its position that a permanent disposal facility would be incompatible with Defence’s ongoing operations…85 2.91 The committee notes the support of Mr Jeff Baldock for hosting the Facility on his land through Mr Baldock's submission and public hearing testimony. Mr Baldock and his family put forward their land believing that it would be of long-term benefit to the Kimba community: Five years ago, my family decided to nominate our land to host the Facility in our backyard. We kicked off a process that has seen most people in our area get behind the idea. It has been a long slog. Let me assure you, after coming through a community conversation that started in 2015, that you would not do this for the money. The local Kimba community have expressed their support for this project because they, like me, absolutely believe that this is a once-in-a-lifetime opportunity to secure the long-term future of our town and community and to give the next generations an employment reason to stay or to come back after TAFE, uni et cetera.86 2.92 In terms of community support, the District Council of Kimba was certainly of the view that there was very solid community support for the Facility and that the bill should be passed: An incredible 90 per cent plus participation rate in the final ballot demonstrated an invested community. Having 62 per cent of our community vote yes to this Facility in that vote demonstrated a decided community. We dismiss assertions that this has been in any way a rushed process and we encourage the parliament to use this as an opportunity to give the people of Kimba certainty. With five years of consultation behind us, the people of Kimba have made a decision, and we deserve confidence going forward in a way that is free from constant interruptions, challenges and delay.87 2.93 The committee notes that the 62 per cent figure has been contested, but even most of those who have done so acknowledge that a majority of the vote was in support of the Facility.88

Concerns

Comments by the Scrutiny of Bills and Human Rights committees 2.94 The committee notes the concerns about the bill raised in the analysis provided by the Parliamentary Scrutiny of Bills and Human Rights committees.

85 Department of Industry, Science, Energy and Resources, Submission 96.1, pp. 4‒5.

86 Mr Jeff Baldock, Committee Hansard, Canberra, 28 July 2020, p. 12.

87 Mr Dean Johnson, Committee Hansard, Canberra, 3 August 2020, p. 13.

88 For example, Mr Peter Woolford, President of the No Radioactive Waste on Agricultural Land in Kimba or SA group, argued that "…452 out of 824 deemed-eligible voters does not constitute a win in the community. That is 54.8 per cent." See Committee Hansard, Canberra, 3 August 2020, p. 7.

Delegated legislation and questions of procedural fairness 2.95 The Scrutiny of Bills Committee outlined its concerns about certain aspects of the bill. These have already been canvassed in chapter one of this report. They are:

 significant matters in delegated legislation—acquisition of land by the Commonwealth;  procedural fairness;  significant matters in delegated legislation—exclusion of State, Territory and Commonwealth laws; and  significant matters in delegated legislation—establishment of community fund. 2.96 This committee notes the Scrutiny of Bills Committee conclusion that it was up to the Senate as to the appropriateness of the approaches outlined in the Minister's responses. 2.97 The committee notes the Minister's explanations and is generally satisfied with them.

Indigenous culture and self-determination 2.98 The committee noted with interest the analysis and conclusions of the Joint Committee on Human Rights with regards to:

 preliminary international human rights legal advice on rights to culture and self-determination; and  acquisition of additional land for expansion of site. 2.99 Again, the committee is generally satisfied with the Minister's response to those concerns.

Views of the Indigenous communities—the Barngarla people 2.100 Following on from the Human Rights Committee's comments, this committee notes the disappointment and dissatisfaction of the Barngarla people. 2.101 The committee also notes that there are differing views with regard to Indigenous access to the site. Mr Jeff Baldock stated: Personally, I've made the invitation twice to one of their [Barngarla people] elders who I've come across up here twice—once at the previous Senate inquiry and once at the council chambers when they were up…He offered to give Dr Gorring my phone number to give a ring and said, 'That will be fine; Dad will be happy to let you on the property.' But she just said they didn't need to go on the property. So despite the statements that have been made by some people off and on during this process, we have never denied anyone access onto our property… I have no problem if they make contact with us and go out.89

89 Mr Jeff Baldock, Committee Hansard, Canberra, 28 July 2020, p. 13.

2.102 Mr Nick Llewellyn-Jones of Norman Waterhouse, representing the BDAC, commented: Obviously there's a disagreement as per the Baldock evidence on that, but so be it.90 2.103 As a general statement of principle this committee believes that the right of Australia’s Indigenous peoples must be respected particularly with regards to sites of cultural importance. 2.104 The committee believes that consultation with the Barngarla people should remain a priority for the Department. Accordingly, the committee makes the following recommendation:

Recommendation 1 2.105 The committee recommends the Australian Radioactive Waste Agency—on behalf of the Department of Industry, Innovation, Science, Energy and Resources—and the Barngarla Determination Aboriginal Corporation come together in any manner possible (noting current COVID-19 restrictions) to discuss the issues and find a pathway for ongoing consultation. The committee recommends engaging an independent mediator to facilitate the process.

Consultation the voting process and community support 2.106 The committee is very mindful of the dissatisfaction that exists with some in the Kimba community with regard to the votes that were taken and the level of consultation—particularly with regard to the regional Indigenous communities. The Department has a provided a thorough discussion of those processes and the committee is generally satisfied with the process described.

Safety and transport of radioactive material 2.107 The committee acknowledges that concerns were raised about potential risks associated with the transportation of radioactive material. However, the committee is of the view that the Australian transport industry handles dangerous goods—both nuclear and non-nuclear—on a daily basis, safely and securely. 2.108 For example, since the South Australian Olympic Dam copper uranium mine opened in the late 1980s, thousands of tonnes of uranium oxide concentrate are annually transported by road from Olympic Dam and Beverley uranium mines to the wharf at Port Adelaide without incident.91

90 Mr Nick Llewellyn-Jones, Solicitor, Norman Waterhouse, Committee Hansard, Canberra, 3 August 2020, p. 23.

91 Minerals Council of Australia, https://minerals.org.au/uranium/transport (accessed 1 September 2020).

2.109 The committee believes that the radioactive waste material currently stored in multiple locations can be safely brought to the Facility and suitably managed there. 2.110 The committee notes that as part of the license application to ARPANSA, consultation on transport routes is required. It sees no evidence that any particular safety concerns exist in regard to transportation of nuclear waste material to the Facility.

Impact on local agriculture 2.111 The committee understands the concerns of farmers and other primary producers who believe the Facility will undermine the region’s reputation for ‘clean and green’ products. Again, the Department has a provided a thorough discussion of these issues. The example of France, where its reputation for food and wine has not been in any way damaged by what is quite an extensive nuclear industry, is a strong one. The committee is generally satisfied with the responses that the Department has provided.

Further scrutiny of the bill 2.112 The committee notes that this is just the first step in a process that is yet to be passed through the Environment Protection and Biodiversity Conservation Act 1999 and licensing application processes by the ARPANSA, and importantly, there will continue to be further opportunities for community consultation around the project. The Department of Industry stated: The bill takes the site selection decision out of the hands of a single minister and places it under the scrutiny of a parliament that represents the broader national community and includes the scrutiny of committees such as this.92 … I think it's worth highlighting that the site selection is only a very small part of the process. Whether you call it frustrating the process or otherwise, there's a lot of scrutiny to come. This site will have to go through the EPBC Act processes and the ARPANSA Act processes, both of which include understanding cultural heritage impacts… Even if this act passes, there's a long way to go to actually establish the Facility.93

Final comment 2.113 There is broad, bipartisan consensus that Australia must manage its own radioactive waste that has been accumulating for over 70 years. There is also wide acknowledgment that Australia needs to provide appropriate solutions

92 Ms Sam Chard, Committee Hansard, Canberra, 30 June 2020, p. 32.

93 Ms Sam Reinhardt, Head of Division, North Australia and Major Projects Division, Committee Hansard, 30 June 2020, p. 32.

for the management of the future generation of radioactive waste. The committee acknowledges that it would be almost impossible to achieve consensus around how radioactive waste should be managed, but there is bipartisan support that a national radioactive waste facility is needed. The committee also notes that the South Australian Government, the Australian Nuclear Association and the Australian Academy of Science are supportive of the Facility's establishment. 2.114 The committee notes that the issue of establishing a National Waste Management Facility has been on-going since 1978. Appendix 1 provides a long summary of the various inquiries and processes that have preceded this inquiry. The Department of Industry noted this reality in their evidence before the committee,94 as did other witnesses.95 2.115 The most recent process solicited voluntary nominations for consideration followed by robust community consultations at the shortlisted sites with Napandee being identified as the preferred site for the Facility in February 2020.96 2.116 After over 40 years of inquiries, reviews, legal action and false starts, the time has now come to resolve the question of a National Radioactive Waste Management Facility. The current process has found: a suitable site; a willing host; and a community that is generally supportive. While there have been reservations raised that the committee is understanding of, overall the committee is convinced that the bill should be passed without amendment and the Facility should proceed.

Recommendation 2 2.117 The committee recommends that the bill be passed without amendment.

Senator Slade Brockman Chair

94 Ms Sam Reinhardt, Committee Hansard, Canberra, 30 June 2020, p. 31.

95 Mr Dean Johnson, Committee Hansard, Canberra, 3 August 2020, p. 15; and Ms Megan Lienert, Chair, Working for Kimba's Future Group; Committee Hansard, Canberra, 3 August 2020, p. 6.

96 See the Senate Economics References Report, Selection process for a national radioactive waste management facility in South Australia, tabled 14 August 2018, https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/Wastemanageme ntfacility/Report (accessed 24 August 2020).

Dissenting Report

Senator Jenny McAllister

1.1 Access to nuclear medicine is of critical importance to Australians and the Australian healthcare system. Australia requires appropriate storage arrangements to safely manage the waste which arises from these processes. 1.2 The Gillard government enacted the National Radioactive Waste Management Act 2012 to provide a timely and certain process to select a site fora radioactive waste management facility. 1.3 This legislation established a pathway to select a site for a facility. The Minister is empowered to make a determination on the location of a facility at the conclusion of the processes set out in the legislation. 1.4 The government has proposed a facility at Napandee (near Kimba) in South Australia to permanently store low level waste and temporarily store intermediate level waste. This proposal arises from a process initiated in 2014 under the legislation above. 1.5 The committee has heard evidence that many, although not all, members of the Kimba community are supportive of the proposed Facility. Some members of the community are concerned about the impact of the Facility on the region’s agricultural production. Others consider the Facility will provide important economic and employment opportunities in the local area. Evidence from local community members is set out in the majority report, and in the submissions. 1.6 The proposed Facility has not received the support of the relevant traditional owners, or of many other First Nations representatives in South Australia. In particular, the process undertaken to assess community attitudes to the Facility has been criticised as inadequate by the Barngarla Determination Aboriginal Corporation, including on the grounds that its members were excluded from participating in the community ballot commissioned to assess sentiment. 1.7 The government is now seeking to legislate selection of their preferred site, notwithstanding the power allocated to the Minister under existing legislation to make an order specifying the location of the site. The reason for this change in approach has not been clearly articulated. 1.8 Schedule 1 to the bill gives effect to this by specifying the location of the proposed site. 1.9 A critical concern expressed by opponents of the bill, including by the Barngarla People, is that altering the existing process for site selection will

override the existing right of judicial review that would apply to a determination by the Minister under the current legislation. 1.10 In evidence to the committee, the Department confirmed that the effect of the change proposed in the legislation is to remove the requirements for procedural fairness in the selection of the site. McAllister: Can we just get confirmation that the effect of the change proposed in the legislation this committee is considering is to remove the requirements for procedural fairness in the selection of the site. Ms Chard: That is correct Senator.1 1.11 The Barngarla Determination Aboriginal Corporation submitted that: Should the government’s bill proceed… a removal of judicial review would ultimately deprive the Barngarla... of the fundamental legal right to such review of an administrative decision making process.2 1.12 The recommendation in the majority report urging the government to repair the relationship with the Barngarla with the assistance of a mediator is welcome. However, on the evidence before the committee, it seems likely this objective will be substantially impeded if the legislation, particularly Schedule 1, proceeds at this time. Stakeholders, and specifically the Barngarla, consider they are entitled to a fair process, including the capacity for judicial scrutiny of the government’s actions to date. 1.13 The decision in relation to a national waste storage facility is of national significance. The existing policy framework for making this decision recognised the importance of obtaining meaningful community consent in relation to any proposed site, and contains important assurances about the process by which this will occur. The current proposed site is the product of a process initiated under this framework. The government has advanced no compelling reason to alter the process for selection.

Recommendation:

That the elements of the National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020 which alter the existing process for site selection not proceed at this time.

Senator Jenny McAllister Member Labor Senator for New South Wales

1 Ms Sam Chard, General Manager, National Radioactive Waste Management Facility Taskforce, Department of Industry, Science, Energy and Resources, Committee Hansard, Canberra, 30 June 2020, p. 36.

2 Barngarla Determination Aboriginal Corporation, Submission 25, p. 3.

Dissenting Report

Senator Rex Patrick

Exposed Radioactive Waste Issues

Introduction 1.1 I thank the committee for the work it has done in relation to this very important inquiry. I also thank the secretariat for their efforts behind the scenes. 1.2 I am grateful to Ministers Pitt and Reynolds for facilitating a visit of the committee to the Woomera Prohibited Area during the course of the Inquiry. 1.3 I strongly disagree with the committee’s primary recommendation suggesting that the bill be passed without amendment.

Summary 1.4 In this dissenting I note the following: (a) the bill under review comes about because the government botched its own site selection process to such a degree that it would almost certainly have seen a site selected through a Ministerial decision overturned on judicial review. The government now asks the Senate to fix up its mistake. The Senate cannot do this without serving up the majority of the stakeholders in this matter with a plate of government cooked injustice. (b) all Australians understand and respect the need for nuclear medicine especially those unfortunate enough to suffer from cancer and other debilitating and life-threatening diseases. Flowing from that most accept that Australia has a need for a National Radioactive Waste Management Facility. However, it makes no sense to locate it on agricultural land. A much better site for such a facility would be within secure Defence land in a remote desert area. Subject to local consultation and agreement, the Woomera Prohibited Area (WPA) is preferred over the Kimba site. The Defence Department rejects this but do so on very shallow argument. The argument does not stand up to scrutiny. (c) during the course of the Inquiry a Departmental official, Ms Samantha Chard, was dishonest with the committee. She lied. The integrity of the Senate’s inquiry process demands that such a fact not be left unaddressed. (d) the Department has, through its interaction with the committee, demonstrated a predisposition to secrecy—undue secrecy—in relation to provision of process information to the very people who pay them and who they are supposed to serve.

1.5 I now go to the details.

Flawed Methodology and Process

Flawed Methodology 1.6 The government’s methodology for selecting the site was entirely flawed from the outset. 1.7 A proper method would have seen the government set out the requirements for the location of a facility and then embark on a process to select the best available site in Australia. 1.8 Instead the government allowed everyday citizens to nominate their land, encouraged by a statutory offer of four times the land value, and it was only these nominated sites that the government would consider. 1.9 From this sub-standard position, things only got worse.

Flawed Process 1.10 With the flawed methodology setting the foundation, the government then embarked on a process which they managed to completely botch. 1.11 The government commenced this site selection process committed to obtaining 'broad community support'. Whilst the National Radioactive Waste Management Act 2012 (NRWMF Act) did not require it, the Minister stated they would not impose such a facility on an unwilling community. 1.12 Unfortunately, the Minister refused to define what constituted ‘broad community support’ was. He originally signalled 65 per cent as a threshold number in the community vote in response to a question asked of him in the Senate in March 2017 by then Senator Xenophon.1 He subsequently refused to re-state that number. That left many with the reasonable view that the government would select a site no matter what the vote outcome was. As Joseph Stalin once said: "It's not the people who vote that count, it's the people who count the votes." This Stalinist approach is inconsistent with procedural fairness2 required under the NRWMF Act. 1.13 Other aspects that contributed to the botching included: (a) the Department of Industry, Science, Energy and Resources funding proponents of the facility, but not informed contradictors; and (b) changing the definitions of who were neighbours to the selected sites. 1.14 Furthermore, the Minister then set about using the Australian Electoral Commission (AEC) ballot as the instrument by which he would do more mischief. The ballot was infected with error for a number of reasons:

1 Senate Question Time – 22 March 2017.

2 See the Barngarla Determination Aboriginal Corporation, Submission 25.

(a) the Kimba community ballot occurred before various heritage and other assessments which the government had stated it would conduct were completed, meaning that the community (or, more precisely, those particular members of the community who were deemed eligible to participate in the Kimba community ballot) did not have all the relevant information to make an informed decision in the ballot; (b) the Kimba community ballot conducted from 3 October 2019 to 7 November 2019 excluded a substantial portion of the surrounding farming community, who would have most likely voted 'no' rather than 'yes'; and (c) the Kimba community ballot excluded 209 members of the Barngarla Determination Aboriginal Corporation, who would have most likely voted 'no' rather than 'yes'. 1.15 This AEC ballot mischief also gives rise to judicial review.3 1.16 For the 'doubting Thomas' reading this report thinking, 'Nah, Senator Patrick’s concerns are unfounded', it is pointed out that if the process had been carried out properly the Minister could have simply made a site declaration under section 14 of the existing legislation. 1.17 The government knew if they selected Kimba under section 14 of the original Act it would likely be overturned by judicial review on the basis of the process being completely flawed. 1.18 So it stopped the process and introduced the bill knowing that a decision of the Parliament cannot be overturned by the court except on narrow Constitutional grounds.

Doing A Job on the Local Community 1.19 If the botched process was not bad enough, the government has also deceived the supporters of the facility in the local community. 1.20 Despite indicating a much smaller number at first instance, the government eventually upped the numbers of jobs to 45. 1.21 However, as provided by ARPANSA in a question on notice : There is no explicit requirement in the ARPANSA or ANSTO legislation or guidance that prescribes that a low-level radioactive waste disposal facility requires continuous presence of staff for either security or safety purposes.4 1.22 With the potential to have a largely remotely operated facility, the people of Kimba need to be cautious about job promises. I have no doubt that the site will commence with 45 local jobs. However, Kimba locals should look at how

3 See the Barngarla Determination Aboriginal Corporation, Submission 25.

4 ARPANSA, Answer to Questions on Notice, 30 June 2020.

the government is willing to shift 700 submarine jobs from Adelaide to Perth on a political whim. They should all appreciate how federal and state government services evaporate from country towns time after time. 1.23 We know governments can't be trusted to keep their promises. 1.24 The next government, the next Prime Minister, the next Minister or the Expenditure Review committee in a post COVID-19 budget cycle might just decide savings are required and the costs have to be trimmed. The CEO of the site may end up being repatriated back to the Australian Radioactive Waste Agency in Adelaide, and I believe this could be easily done to some of the other roles as well. The site will be transitioned into a remote facility two or three years down the track. And that will just be the start. 1.25 The writing is on the wall, and the wall hasn't even been built yet.

A Better Site

Defending Defence Land 1.26 I am truly grateful to the Defence Force for defending our land, but note that their senior management always seem just that little more keen when it comes to defending Defence owned land. 1.27 I am mindful of attempts by Defence to even defend land they thought they might like for inclusion in their portfolio, even though they didn’t own it. 1.28 Early last decade the Army wanted to expand the Cultana Training Area. The story is a little bit complicated (and unnecessary to tell in complicated form) but basically Defence sought to acquire some pastoral leases from one, Mr Graham French, that would indirectly permit the expansion. Mr French was having none of it and took Defence to the Federal Court5 where Justice Besako stood up to the brass and said 'no'. 1.29 It’s not often that the Minister for Defence will stand up to Defence— Dr Brendan Nelson stands out, when he got cabinet to approve the $6.6 billion dollar purchase of Super Hornets for the Royal Australian Air Force. This was to bridge what he could see was going to be a gap in air combat capability transitioning from the F-18 Hornets to the F-35 JSF. He did so in contrast to advice from Defence, and thankfully so. 1.30 When Defence says 'no' to alternate use of Defence Land, unlike Federal Court Justices, Ministers capitulate.

5 French v Gray, Special Minister of State (includes Corrigendum dated 22 May 2014) [2013] FCA 263 (27 March 2013).

Woomera Amendment 1.31 The bill includes an amendment that requires the Minister to, instead of selecting Kimba as a site, nominate a site in the Woomera Prohibited Area (WPA). 1.32 The amendment will require the Minister to consult with affected parties, including First Nation's people, before making a decision on the preferred Woomera site 1.33 The WPA is the obvious choice. It’s remote, it's an area controlled by Defence and includes enormous tracts of land that are not used for weapons testing on top of which there's already a significant amount of radioactive waste stored there. The nearest large township (Roxby Downs) is a uranium mining community and environmental studies into the Woomera Prohibited Area's suitability have already been done.

Not in My Backyard says Defence

Figure 1 – Woomera Prohibited Area

1.34 The WPA is an enormously large area (see Figure 1), yet Defence claim that the storage of radioactive waste at any location anywhere within the WPA is inconsistent with Defence operations. 1.35 Seriously, if the Minister can’t find a suitable site somewhere within the 12.7 million hectares of desert that the WPA encompasses, then he or she is not looking hard enough. 1.36 Defence provided the committee with evidence that shows, as might be expected, there are significant areas of the WPA (see Figure 2) which have never had a weapon safety template overlaid on them. This includes the road from Woomera to Roxby Downs and the area near Roxby Downs.

Figure 2 – WPA Land without Safety Template Overlays since 20146

1.37 Defence claim that the storage of radioactive waste in the WPA is inconsistent with Defence operations. Yet there are already two radioactive waste storage facilities inside the Woomera Prohibited Area, one CSIRO building (Hanger 5 at Evetts Field) and one Defence bunker (Koolymilka) since 1995. The material stored there includes radium 226, caesium 137 and small amounts of other radionuclides including plutonium 239. The material was transported there after a May 1994 Cabinet decision that the Woomera Range Head was a

6 Department of Defence, Answer to Question 4, 30 June 2020.

suitable and secure storage site. In the time that they have been stored there they have not unduly fettered operations, despite both sites being in close proximity to the range head.7 1.38 Defence claim that the risk associated with storage of radioactive waste in the WPA makes it inconsistent with Defence operations. Yet somehow the risk associated with the storage of fuel and explosives does not make them inconsistent with Defence operations. 1.39 Defence has fuel facilities near the Woomera airfield. Yet they are consistent with the Defence Operations. Defence has provided answers8 to the committee that state that no direct assessments of the liquid fuel facilities at or near RAAF Base Woomera have been undertaken regarding their survivability in the event of an aviation mishap. Management of the risk of flight over or near sensitive areas such as liquid fuel facilities is conducted by operational commanders and is subject to a range of considerations, including the type of flight being conducted and weather. Risks are reduced so far as reasonably practicable in accordance with the requirements of the Workplace Health and Safety Act. The effective management of risk is an integral part of all Defence activities and this includes the requirement to eliminate risks to health and safety so far as is reasonably practicable (SFARP). Given the risk controls in place, the risk of an ADF aviation mishap in the vicinity of liquid fuel facilities is considered to be very low. Amazingly, Defence refuses to adopt the same approach for a National Radioactive Waste Management Facility. 1.40 Defence also has explosives facilities near the RAAF Base Woomera. Yet they are consistent with the Defence Operations. Defence has provided answers9 to the committee that state Defence’s primary mitigation (from the perspective of the storage area) with regard to the risk of air crash and/or ordnance accidentally disconnecting from an aircraft or unmanned aerial system, is the application of a vertical safety zone above the explosive ordnance area. The policy requires a notification to aviation operators of the site, with the requirement that the area is not to be over flown. Defence policy also requires all permanent or long–term explosive ordnance structures to not be sited within the approach or departure zones for either fixed or rotary wing aircraft. Again, amazingly, Defence will not adopt a similar approach for a National Radioactive Waste Management Facility. 1.41 The airfield is a stone’s throw from the Woomera village which is set for a significant development over the coming years. This expanded civilian site

7 ARPANSA Review of Arrangements for the Recent Transport of Radioactive Waste July 1995.

8 Department of Defence, Answer to Question 10, 30 June 2020.

9 Department of Defence, Answer to Question 6, 30 June 2020.

will be consistent with the Defence operations. It is noted that safety template overlay magically stop at the boundary of the Woomera village. 1.42 Defence claim that the storage of radioactive waste near RAAF Base Woomera is inconsistent with Defence operations on account of the increased operational tempo. Yet the total number of air movements10 at the airbase have gone from 150 in 2018 to 141 in 2019 and was at 38 on 30 June 2020 (albeit, it is accepted that COVID-19 has affected 2020). The number of experimental/test aircraft movements11 at the airbase has gone from 56 in 2018 to 17 in 2019 and was at 12 on 31 July 2020 (again, it is accepted that COVID-19 has affected 2020). 1.43 That a site couldn’t be found by Defence is utter poppycock.

Dishonest Conduct 1.44 On 30 June 2020, Ms Samantha Chard appeared before the committee in her capacity as General Manager, National Radioactive Waste Management Facility Taskforce (as she was then). 1.45 Ms Chard faced a series of questions from Senator McAllister about the prospects or risks of a party seeking judicial review of the decision under the current legislation. Senator McAllister appeared to be trying to establish the motivation for the bill, at least the part of the bill that nominates the site. I found Ms Chard’s answers evasive. 1.46 I followed Senator McAllister’s questions, keen also to definitively establish motive. The discussion went as follows [emphasis added]: Senator Patrick: … at any time, personally, when you've been involved in discussions, did you talk about this new act, the act that is subject to review today, having the effect of removing judicial review of a decision under section 14? Ms Reinhardt: I don't recall talking about it in those terms, no. Senator PATRICK: In what terms did you talk? Ms Reinhardt: In terms of, sort of, relieving judicial review. Senator PATRICK: Okay. Ms Chard? Ms Chard: Likewise. I go to my earlier point that the judicial review would test the merits of— Senator PATRICK: I understand that. I'm interested in the conversations you had in formulating a decision to go from the old act now to the new act. Ms Chard: Not in my personal discussions.

10 Department of Defence, Answer to Question 11, 30 June 2020.

11 Department of Defence, Answer to Question 12, 13 July 2020.

Senator PATRICK: So, if I FOI you, I'm not going to come up with anything that talks about judicial review?12 1.47 On 2 July 2020, I initiated a Freedom of Information (FOI) request in the following terms: I seek access to any briefings and correspondence (including emails and letters) sent to or from Samantha Chard (General Manager of the Radioactive Waste Taskforce at Department of Industry, Science, Energy and Resources) between 1 May 2018 and 13 February 2020 that contain any of the following phrases: (1) Judicial Review. (2) ADJR. (3) AD(JR). (4) Administrative Decisions (Judicial Review) Act 1977. 1.48 Ms Chard became aware of the FOI request on the day the request was made.13 1.49 On 10 July 2020, Ms Chard wrote to the Senate Economics committee seeking to clarify her response to the following question at the 30 June 2020 hearing on the bill: … at any time, personally, when you have been involved in discussions, did you talk about this new act, the act that is subject to review today, having the effect of removing judicial review of a decision under section 14?14 1.50 Ms Chard stated: While I did not recollect personal discussions about the new legislation having the specific effect of "removing judicial review of a decision under section 14", on review, I can confirm that I have been involved in policy discussions about the proposed legislation having the effect of reducing or avoiding the risk of potential legal challenges, including judicial review. Consideration of legal risk is a routine aspect of policy deliberations.15 1.51 Ms Chard has been intimately involved in the National Radiative Waste Management Facility process since 2018, most recently as the General Manager of the Facility Taskforce. Ms Chard had over 580 documents that had either been sent to her or that she had sent over the period 1 May 2018 and 13 February 2020 that contained the words 'judicial review'; 'Administrative Decisions (Judicial Review) Act 1977'; 'ADJR'; or 'AD(JR)'.16

12 Committee Hansard, Canberra, 30 June 2020, pp. 37‒38.

13 Department of Industry, Science, Energy and Resources, Answers to Question on Notice No 9.

14 Correspondence from Ms Sam Chard to the committee, 10 July 2020.

15 Correspondence from Ms Sam Chard to the committee, 10 July 2020.

16 On 17 July 2020 the Department wrote to me regarding my FOI request and provided a notice of intention to refuse to process the request as to do so would involve a substantial and unreasonable diversion of the resources of the department. The letter noted that over 580 documents had been

1.52 It is completely implausible that Ms Chard was unable to recollect being involved in discussions on the new bill about the bill’s effect of removing judicial review of the site selection decision. She was dishonest. She lied to the committee. 1.53 Whilst Ms Chard corrected her evidence, she did so only after becoming aware of an FOI request which was going to expose her dishonesty. 1.54 Public officials turn up to Senate committee hearings thinking their main obligation is to protect their Minister. However, they are quite misguided. 1.55 The primary obligation of officials, as set out in the Australian Public Service (APS) Commission’s APS values and employment principles and what is expected by the Parliament, is to ensure they are 'open and accountable to the Australian community under the law and within the framework of Ministerial responsibility'. Specifically, those values stipulate the Parliament's expectations of public servants,17 particularly the Senior Executive Service (SES) of which Ms Chard is part of. 1.56 The APS values require that public servants are impartial and apolitical, committed to service, accountable to the Australian community, respectful and ethical. This includes being honest when answering questions from members of a Senate committee. 1.57 It is apparent to me, that Ms Chard was deliberately short with her recollections of her discussions related to the impact of the amendments to the Act and the subsequent judicial review implications. 1.58 It is worth noting that it is a contempt of the Senate to give false or misleading evidence to a Senate committee.

Undue Secrecy 1.59 I have consistently heard from many people in the Kimba region they were unhappy with the Department’s consultation throughout the site selection process. 1.60 The committee experienced firsthand the Department’s predisposition to secrecy—undue secrecy—when in early August the Department provided documents to the committee asking that they be held confidential from the public, the very people who pay them and who they are supposed to serve. 1.61 I have examined these documents and they contain little that should not properly be in the public domain. For the purpose of grounding my claim, I

identified within the scope of the request and a conservative estimate of processing time was over 128 hours.

17 Australian Public Service Commission, Value and Employment principles, https://www.apsc.gov.au/aps-values-1, (accessed 13 September 2020).

provide a couple of benign examples of information that the Department wants kept from the public: The National Radioactive Waste Management Act 2012 (NRWM Act) provides [the Minister] with the legislative authority to declare in writing a site (nominated and approved under the NRWM Act) is selected as the site for the National Radioactive Waste Management Facility (the Facility). … Once the amendments are finalised and agreed by you, you will be required to seek the Prime Minister’s agreement. 1.62 Keeping secrets from the public on normal departmental processes should only occur in limited circumstances and for good reasons. Cavalier secrecy claims prevent citizens actively engaging in public policy debates, at least informed public policy debate. 1.63 I have requested the documents provided to the committee in a separate FOI request. At the hearing on 28 August 2010, I stated: Senator PATRICK: … My current score with the Information Commissioner is Rex Patrick, as a 'Mister', five; government zero. I am extremely confident that I'm going to win this and if I win it there will be consequences for the ministers and for officials. That is the backdrop against which I'm asking you to reconsider the claim that is being made and acquiesce to the idea that the document can be disclosed with the redactions in place. There is nothing in what I read in those documents that appears to be harmful in any way shape or form. I think you are going to lose with the Information Commissioner, and that is going to have consequences in the Senate.18 1.64 And there will be.

Senator Rex Patrick Member Independent Senator for South Australia

18 Committee Hansard, Canberra, 28 August 2020, pp. 4‒5.

Dissenting Report

The Australian Greens

Introduction

The Australian Greens do not support the recommendations of the majority report that National Radioactive Waste Management Amendment (Site Specification Community Fund and Other Measures) Bill 2020 be passed.

1.1 The Australian Greens believe that there are major flaws in the proposed bill and that the site selection process has been fundamentally flawed.

 The Department of Industry has failed to explain why the bill needs to specify the site location.

− Schedule 1 of the bill is a blatant and indisputable attempt to prevent any right of judicial review proceedings (as noted by the Barngarla Aboriginal Determination Corporation submission). − Evidence raised during hearings highlighted the current National Radioactive Waste Management Act 2012 (NRWM Act) provides the legislative authority to declare in legislation the specific location for the National Radioactive Waste Management Facility (NRWMF). Stipulating the site removes the ability judicial review.

 A waste dump in the middle of agricultural heartland, will put at risk South Australia’s clean, green reputation and damage the state’s key grain export.  It is irresponsible of the Federal Government to ignore the Barngarla Traditional Owners opposition and to disrespect South Australian state laws by stipulating the site location of a radioactive waste management facility in South Australia.

Consultation 1.2 The Australian Greens note that most of the 105 submissions oppose the bill.

 The broader South Australian community has not had the opportunity to have a say (Geraldine Gillens; Austen and Ms Thelma Eatts; Medical Association for prevention of war (Australia); Australian Conservation Council submissions).  The consultation process has clearly been divisive for the Kimba community. The Federal Government have been like a dog defending a piece of meat. Once they found their 160 hectares, they devoured and bribed the decency,

innocence and fairness out of the best little community in Australia. A full assault that knew no limits.1 1.3 There are deep concerns about Indigenous community engagement.

 The Barngarla Determination Aboriginal Determination Corporation (BDAC) were excluded from the community ballot and opposition to the NRWMF has been dismissed.

Transport 1.4 Communities and stakeholders within transport corridors have not been consulted.

 The presence of a radioactive waste management facility in Kimba South Australia will potentially require Port Lincoln, Whyalla or Port Pirie to serve as nuclear waste ports.  These communities will necessarily be involved in the handling and transportation of dangerous nuclear waste. They have a stake in the decision-making process because they will bear some of the risk of such an outcome (as highlighted by The Maritime Union of Australia submission)2. 1.5 Every community impacted by the potential thoroughfare of nuclear waste should be directly consulted on this proposal.

 While ANSTO has been at pains to ensure that low-level waste can be transported safely, it is not a decision for ANSTO to make in isolation.

Double handling of Intermediate‒level waste 1.6 This process necessitates the double-handling of intermediate level radioactive waste. The NRWMF is only intended to serve as a temporary holding site until waste is transported to its final, more permanent, disposal site.

 This double-handling is not consistent with international best practice in the disposal of intermediate level waste. Alternatives should be canvassed, including the suspension of the site selection process until a permanent disposal site can be identified.

Recommendations 1.7 Recommendation 1: The Australian Greens believe the Federal Government has no mandate to situate a radioactive waste management facility in South Australia. It has mismanaged the site selection process, fallen short of international best practice and failed to secure the consent of traditional owners. For these reasons the Australian Greens recommend that this bill not be passed.

1 Mr Barry Wakelin OAM, Submission 46.1, pp. 1‒2.

2 Maritime Union of Australia, Submission 19.

1.8 Recommendation 2: The Australian Greens recommend a halt to the process and the establishment of an independent expert inquiry into all radioactive waste management options. 1.9 Recommendation 3: The Australian Greens recommend that communities living along potential transportation routes should be fully informed of the relevant costs and benefits and offered the opportunity to have their say on the proposal.

Senator Sarah Hanson-Young Senator for South Australia‒Australian Greens

Appendix 1 Table of inquiries and initiatives

Date Initiative/Inquiry Source

1978 During a meeting of Commonwealth, State 'Cabinet to decide on N- and Territory Health Ministers, the State waste', The Age, 10 and Territory Ministers ask the February 1978. Commonwealth to co-ordinate a national approach to the management of radioactive 'National dump to take waste and the development of relevant all nuclear waste', The codes of practice. The Commonwealth Australian, 28 June 1978. considers the request and agrees to take on that role. The development of the NHMRC's 'Radiation Health Series' of codes of practice for the management of wastes arising from the medical, research and industrial use of radionuclides arises from this initiative, as did the search for a national repository site for low and short- lived intermediate level radioactive wastes.

1980 A Commonwealth–State Consultative Department of Arts, Committee on Radioactive Waste Sports, the Management is established. Environment, Tourism and Territories. Code of Practice on the Management of Radioactive wastes from mining of Radioactive Ores, AGPS, Canberra, 1982.

Nov 1983 The Commonwealth Government asks ASTEC, Australia's Role Chairman of the Australian Science and in the Nuclear Fuel Technology Council (ASTEC), Professor Cycle, AGPS, Canberra, Ralph Slatyer, to prepare a report on May 1984. Australia's role in the nuclear fuel cycle. It has been argued since that the purpose of the report was to give the Hawke Government some independent advice to

support a shift in ALP policy to a more liberal position on the mining and export of uranium. The ASTEC report, released in May 1984: supports identification of 'sites suitable for disposal of low level radioactive waste and the development of facilities for interim storage and disposal of low and intermediate level radioactive waste' (p. 23) argues Australia should participate in the international research effort on the disposal of high level waste, and endorses continuing research into synroc.

1985 Following a fire in 1983 near an office Rod Panter, basement being used to store radioactive 'Radioactive Waste waste, the Victorian Government selects a Disposal in Australia', site for a storage site in country Victoria. As Issue Paper no. 6, in NSW in 1978, a range of interests Department of the combine to lobby against, and ultimately Parliamentary Library, defeat the proposal. 1992. 'A radioactive waste facility– Melbourne style', The Herald (Melbourne), 29 December 1985.

1985 The Commonwealth-State Consultative Department of Primary Committee on Radioactive Waste Industries and Management recommends that a 'national Energy, National program be initiated to identify potentially Radioactive Waste suitable sites for a national near-surface Repository Site Selection radioactive waste repository'. State and Study, Phase 2, Report on Territory governments commence studies Public Comment, AGPS, to identify potentially suitable sites in their Canberra, 1995. jurisdictions.

1986 The studies conducted by states and Bureau of Resource territories under the Commonwealth–State Sciences, A Radioactive Consultative Committee indicate that most Waste Repository states and the Northern Territory contained for Australia: Site potentially suitable locations for a Selection Study Phase 3 Regional Assessment,

repository. Bureau of Resource Sciences, Canberra, 1997, p. 2.

1988 The Northern Territory agrees to a Bureau of Resource Commonwealth-funded feasibility study of Sciences, A Radioactive a possible national waste repository to be Waste Repository located in the Territory. The study is for Australia: Site completed in 1989. Selection StudyPhase 3 Regional Assessment, Bureau of Resource Sciences, Canberra, 1997, p. 2.

Dec 1989 In early 1989, the Queensland National 'A damp dawn on the Party government builds a temporary picket line', Courier- radioactive waste storage facility at Mail, 17 May 1989; Redbank in southeast Queensland for the 'State's "hot" waste plan State's waste material. In December, "temporary"', Courier- following the election of a new ALP Mail, 27 May 1989; government, the facility is closed without 'Redbank toxic waste ever being used. dump opened, then closed', Courier-Mail, 13 December 1989.

April 1991 The Australian Ionising Radiation Advisory AIRAC, Report on low- Council (AIRAC) reports on low-level level radioactive waste radioactive waste management, to the Hon management, (loose Mrs Ros Kelly MP, Minister for the Arts, leaf), April 1991. Sports, the Environment, Tourism and Territories.

May 1991 The Northern Territory indicates it is no Bureau of Resource longer willing to host a repository under Sciences, A Radioactive the Commonwealth-State cooperative Waste Repository process. for Australia: Site Selection Study Phase 3 Regional Assessment, Bureau of Resource Sciences, Canberra, 1997, p. 2.

Jul 1991 ANSTO enters into a contract with Senate Select Australian Defence Industries (ADI) to Committee on the condition and store radioactive waste from Dangers of Radioactive the ADI site at St Marys. Sutherland Shire Waste, No Time to

Council responds by launching a court Waste, 1996, p. 3. action against ANSTO.

Aug 1991 The Minister for Science and Technology Safety Review (Mr Free) tables in Parliament the report of Committee, Management the Safety Review Committee, of Radioactive Waste at commissioned in April. The report Lucas Heights Research concludes that ANSTO's waste Laboratories, AGPS, management practices are sound and safe, Canberra, August 1991, but makes veiled criticism of progress on p. ix. developing national waste facilities, urging that: The Commonwealth, State and Territory Governments begin the process by identifying specific objectives and target dates for appropriate low and medium level radioactive waste repositories and that they allocate sufficient priority and resources to achieve those objectives and targets.

Sept 1991 Primary Industries Minister Simon Crean officially seeks the participation of all governments in a coordinated search for a site for a single national radioactive waste facility. All states and territories except Western Australia agree to participate.

1992 Western Australia constructs the Mount 'Mt Walton for WA Walton East Intractable Waste Disposal waste only', The West Facility, for the disposal of low level Australian, 20 June 1992. radioactive waste and other intractable wastes. Community interests in the Goldfields region opposed the facility. The availability of the site underpins Western Australia's subsequent resistance to involvement in the search for a national waste repository site.

Oct 1992 The Commonwealth releases its report NRIC, A Radioactive National Radioactive Waste Repository Site Waste Repository Selection Study, Phase 1 for public for Australia: Methods for comment by December 1992. The Phase 1 Choosing the Right Site, report is prepared by the National Resource DPIE, Canberra, 1992. Information Centre (NRIC), a science unit within the Department of Primary

Industries and Energy (DPIE). The report: describes the nature of radioactive wastes briefly describes the criteria for assessing the suitability of sites for hosting a waste repository outlines a Geographic Information System based system for applying the criteria, and describes the way a repository would be constructed.

Dec 1992 A consultant's report into the future 'Mt Isa will take Sydney economic development of the Mt Isa region A-waste', Sun-Herald, 13 in Queensland suggests establishment of a December 1992. nuclear waste facility as one possible option. The proposal draws the support of the town's mayor, contributing to a decision to include the Mt Isa region in more detailed analyses by the Commonwealth of potentially suitable sites for a national nuclear waste repository.

August 1993 The Commonwealth releases its Report on DPIE, National Public Comment on Phase 1 of the site Radioactive Waste selection process for a low level waste Repository Site Selection repository. Study, Phase 1, Report on Public Comment, AGPS, Canberra, 1993.

July 1994 The Commonwealth releases its NRIC, A Radioactive report National Radioactive Waste Repository Waste Repository Site Selection Study, Phase 2 for public for Australia: Site comment by September 1994. The Phase 2 Selection StudyPhase 2, report: DPIE, Canberra, 1994. describes the revised GIS-based model for assessing sites (now called ASSESS: A system for selecting suitable sites) applies the model to a data set covering the Australian continent selects eight regions for more detailed assessment (five on the basis of

application of the model, three as a result of consultation processes) applies the model in more detail to those eight regions, and concludes that all eight regions contained potentially suitable sites for a nuclear waste repository.

December South Australian Liberal Senator Grant Senate Debates, 1994 Chapman gives notice of a motion in the 9 December 1994, Senate to establish a Senate Select p. 4416; Senate Journals, Committee on the Dangers of Radioactive 9 March 1995, p. 3059. Waste. The Committee is formally established on 9 March 1995, despite the ALP government's opposition, and reports in April 1996.

Nov 1995 The Commonwealth releases its Report on Department of Primary Public Comment on Phase 2 of the site Industries and selection process for a low-level waste Energy, National repository Radioactive Waste Repository Site Selection Study, Phase 2, Report on Public Comment, AGPS, Canberra, 1995.

April 1996 The ALP government in NSW indicates it is 'NSW refuses to aid N- opposed to the location of a nuclear waste dump', Sydney Morning repository in the Broken Hill area, one of Herald, 25 April the eight regions identified in the Phase 2 1996. NSW Legislative report on selecting a site for a low level Assembly Debates, nuclear waste repository. 24 April 1996, p. 471.

April 1996 Senate Select Committee on the Dangers of Senate Select Radioactive Waste releases its report, No Committee on the Time to Waste. The report: Dangers of Radioactive criticises the Department of Industry, Waste, No Time to Science and Technology for a lack of Waste, Tabled 21 May cooperation with the inquiry process 1996. Parliamentary Paper no. 7/1996. recommends that the Commonwealth's nuclear regulatory agency have no involvement in the nuclear industry recommends that there be statutory third-party enforcement rights in

radiation safety laws suggests possible disposal of the lowest- level wastes in active uranium mines, and that 'a national above ground storage facility be established which has the capacity to take low, intermediate and high level radioactive waste' (p. 134).

Nov 1996 The Commonwealth Government responds Senate Debates, to the No Time to Waste Report, indicating: 21 November it is currently considering establishing a 1996, pp. 583136. separate regulatory body that third-party enforcement of the laws is unnecessary willingness to conduct a feasibility study into disposal of certain low- level wastes in uranium mines, and rejection of an above ground facility for all waste, maintaining that 'international standards and practice clearly indicate that near-surface disposal is appropriate' for low level waste.

1997 The Commonwealth/State Consultative Safe Storage of Committee on Radioactive Waste Radioactive Waste: The Management reaches in-principle National Store Project: agreement on the need for a national Methods for Choosing the intermediate level waste store. The Right Site: Report Committee also endorses the co-location of Responding to Public the intermediate level waste store with the Comment, Department low level waste repository, and the of Industry, Science and government accepts this as a possible Resources, 2002, p. 13. approach. Senator Warwick Parer, 'SA region selected for National Radioactive Waste Repository site', Media Release, 18 February 1998.

Nov 1997 The Commonwealth releases its Bureau of Resource

report National Radioactive Waste Repository Sciences, A Radioactive Site Selection Study, Phase 3, as part of an Waste Repository information kit and consultation process, for Australia: Site for public comment by April 1998. The Selection StudyPhase 3 Phase 3 report: Regional Assessment, uses improved data sets to re-apply the Bureau of Resource ASSESS model to the eight regions Sciences, Canberra, identified in Phase 2 1997. Department of Primary states that the aim of the process is 'to Industries and select the region with the largest Energy, Our radioactive areas of high suitability' (p. 10), and waste: managing it safely, concludes that the preferred region for Community detailed assessment is Billa Kalina, consultation 1998 the region of outback South (information kit). Australia that happens to include Australia's largest uranium mine (Roxby Downs) and Woomera, to which a considerable amount of radioactive waste had already been transported in 1995.

June 1999 The Commonwealth releases its Report on Department of Public Comment on Phase 3 of the site Industry, Science and selection process for a low level waste Resources, National repository. Radioactive Waste Repository Site Selection Study, Phase 3, Report on Public Comment, AGPS, Canberra, 1999.

Aug 1999 The Western Australian ALP Opposition, Western Australian reacting to the leaked Pangea high-level Legislative Assembly waste dump proposal, introduces into the Debates, 11 August 1999; West Australian Parliament the Nuclear 13 October 1999. Waste Storage Facility (Prohibition) Bill 1999. The Bill is intended to enshrine in law a prohibition on establishing a facility that would store radioactive material derived from nuclear reactors, weapons, reprocessing facilities or isotope enrichment plants. The government supports the bill, with some amendments.

Takes effect 7 Dec 1999

Late 1999 Aboriginal residents in the Billa Kalina Kupa Piti Kungka early 2000 region, including the Kupa Piti (Kungka) Tjuta, irati wanti Tjuta (Coober Pedy Aboriginal Women's website Council), indicate their opposition to the construction of a low level waste repository in the Billa Kalina area, which is the Commonwealth's preferred site for the facility.

November The leaked Pangea high-level waste dump South Australian 1999–May idea, together with Commonwealth Assembly Debates, 2000 proposals for a national waste repository, 13 April 2000, p. 923; 31 stir up sufficient anti-nuclear sentiment in May 2000, p. 1313. South Australia that the Government, South Australian Opposition and the Australian Democrats Legislative Council each introduce separate Bills into the South Debates, 17 November Australian Parliament aimed at banning the 1999. construction of nuclear waste management

facilities, with the exception of facilities to manage low level wastes. The Democrats introduce the first Bill, in late 1999, followed by the ALP Opposition in April 2000, and finally the Liberal government in May. The Opposition and Democrats' Bills are both called the Nuclear Waste Storage Facility (Prohibition) Bill, while the government's Bill is the Nuclear Waste Storage Facility (Prohibition No. 2) Bill.

Bill passed in November 2000

Aug 2000 The Commonwealth announces the formal Senator Nick Minchin, commencement of the search for a site for a 'Search for a site for the storage facility for intermediate level national store for radioactive waste. The announcement fuels intermediate level conflict over whether South Australia radioactive should host both the low and intermediate waste', Media Release, 11 level waste repository sites. August 2000.

Jan – Feb The Minister for Industry, Science and Senator Nick Minchin, 2001 Resources (Senator Minchin) announces 'Preferred site for that a preferred site has been chosen for the national low level

low level waste repository. The site, known radioactive waste both as 52a and Evetts Field West is within repository to undergo the Woomera Prohibited Area. environmental assessment', Media Release, 24 January 2001. The Minister for Industry, Science and Resources also issues a media release in which the Minister says the Federal Senator Nick Minchin, Government will establish a purpose built 'Intermediate facility on Commonwealth land for the radioactive waste store storage of national intermediate level to be built on radioactive waste produced by Commonwealth Commonwealth agencies. The Minister land', Media Release, 8 says he has 'ruled out co-location of the February 2001. national intermediate level radioactive waste store with the national low level repository in South Australia'.

July 2001 The Commonwealth releases its report Safe Safe Storage of Storage of Radioactive Waste: The National Radioactive Waste: The Store Project: Methods for Choosing the Right National Store Project: Site, for public comment by 31 August. The Methods for Choosing the report: Right Site, Department describes the intermediate level waste to of Industry, Science and be stored, and distinguishes it from Resources. low level waste, and outlines the site assessment methodology to be used in the project. This will involve using the ASSESS geographic information system already utilised in the low level waste repository process.

May 2002 The Commonwealth releases its Report Safe Storage of Responding to Public Comment on the Safe Radioactive Waste: The Storage of Radioactive Waste: The National National Store Project: Store Project: Methods for Choosing the Right Methods for Choosing the Site. Right Site: Report Responding to Public Comment, Department of Industry, Science and Resources.

July 2002 The Draft Environmental Impact Statement for Draft Environmental the National Low Level Radioactive Waste Impact Statement for Repository is released for public comment. the National Submissions are accepted until 23 October. Radioactive Waste Six hundred and sixty seven submissions Repository, Department are received. of Education, Science and Training and PPK, Main Report (Volume 1) and Summary, 31 May 2002.

May 2003 The NSW Government announces a NSW Legislative parliamentary inquiry into the sourcing, Assembly, Votes and transport and storage of radioactive waste. Proceedings, 8 May 2003, item 17(12), p. 90.

May 2003 Following controversy over Department of 'N dump named', Daily Defence resistance to siting a nuclear waste Telegraph, repository at the preferred location, 52a, the 10 May 2003. Commonwealth announces that site 40a on a pastoral property called Arcoona Station (one of two alternative locations analysed in the Environmental Impact Statement) will be the location of the low level waste dump.

May 2003 The Minister for Science (Mr McGauran) Peter McGauran MP, announces that South Australia will be 'SA ruled out', Media ruled out as the host for the national Release, 9 May 2003. intermediate level nuclear waste store. 'Premier warns Western Australia and the Northern Commonwealth to keep Territory both react immediately, indicating its waste out of they will fight any proposal from the WA', Media Release, 9 Commonwealth to site the store in their May 2003; 'No nuclear jurisdiction. waste dump for the Territory', Media Release, 9 May 2003.

July 2004 The Prime Minister announces that the Prime Minister Hon Federal Government has abandoned its John Howard MP, plan to establish a national low-level waste 'Radioactive Waste repository at site 40a at Woomera, as well Management', Media as any national facility for intermediate Release, 14 July 2004. level wastes to be co-located there. Further: Editorial, 'Politics 'the Australian Government will seek a trumps policv on

commitment from all states and territories nuclear waste' The that they will adopt world's best practice in Australian, 16 July 2004, the management of radioactive waste p. 12. materials in their jurisdictions. This should include: 1. undertaking an immediate and comprehensive inventory of all low level waste within their jurisdictions; 2. establishing safe and secure storage facilities for low level waste held within their jurisdictions; 3. establishing appropriate disposal arrangements.' The Australian Government will be examining sites on Commonwealth land, both onshore and off shore, for the establishment of a suitable facility. The announcement creates a furore.

February The South Australian Government Daniel Clarke, 'Low 2005 announces the start of a study to select a level radioactive dump site for a State nuclear waste management search soon', The facility to take only South Australia's Advertiser, generated waste. The Western Mining 1 March 2005, p. 24. Corporation Olympic Dam site appears to be the likely choice.

July 2005 The Minister for Education, Science and The Hon Brendan Training, the Hon Dr Brendan Nelson MP, Nelson MP, announces three potential locations to be 'Responsible investigated for the Commonwealth Management of Radioactive Waste Management Facility. Radioactive Waste in The three locations are properties located Australia', Media near Katherine and Alice Springs in the Release, 15 July 2005 Northern Territory: Fishers Ridge, MIN 1157/05. Department of Defence property, southeast of RAAF Base Tindal; Mt Everard, Department of Defence property, northwest of Alice Springs; and Harts Range, Department of Defence property, northeast of Alice Springs. The new facility will co- locate low-level and intermediate-level radioactive wastes.

October The Commonwealth Radioactive Waste Australian

2005 Management Bill 2005 is introduced into Parliament, Hansard. the Parliament in an attempt to override any external actions to thwart its investigation of sites in the Northern Territory. A review by the Employment, Workplace Relations and Education Legislation Committee is split on party lines. The Bill subsequently passes on 7 December 2005.

March 2006 The Australian Nuclear Science and House of Technology Bill 2006 is referred for review Representatives, to the Senate Employment, Workplace Debates, 30 March 2006, Relations and Education Legislation p. 8 Committee. The Bill provides for ANSTO to fully participate in actions possibly required by the Commonwealth and its agencies in the management of radioactive materials and waste beyond ANSTO’s operations. In practice, this would enable ANSTO to handle the complete pre- disposal management of the Commonwealth’s holdings of radioactive wastes. The Opposition registers its reservations that the Bill would be used to allow waste transfer to a nuclear waste repository to be constructed in the Northern Territory, with the ANSTO Lucas Heights facility to become the de facto national site.

May 2010 A Senate inquiry report has endorsed the Senate inquiry Federal Government's plan to site a nuclear endorses NT nuclear waste dump at Muckaty Station in the waste dump Northern Territory. Jane Bardon, ABC, 7 May 2010

Dec 2010 Advisory Report on the National Advisory Report on Radioactive Waste Management Bill 2010 the National The purpose of the Bill is to: ‘establish a Radioactive facility for managing, at a single site, radioactive waste currently stored at a number of locations across the country’.

Aug 2018 Senate Economics Reference Committee Report tabled 14 inquiry: "Selection process for a national August 2018 radioactive waste management facility in South Australia"

Appendix 2 Submissions and additional information

Submissions 1 Azark Project Project Pty Ltd  1.1 Supplementary to submission 1  1.2 Supplementary to submission 1 2 Ms Christine Wakelin  2.1 Supplementary to submission 2 3 Ngoppon Together Reconciliation Group 4 Confidential 5 Sam Tucker 6 Mr David Noonan  6.1 Supplementary to submission 6 7 Josephite SA Reconciliation Circle 8 Mr James Shepherdson 9 Ms Bev Baldock 10 Ms Donna Johnson 11 Uniting Church South Australia 12 Mr Ivan Quail 13 Mr Desmond Menz 14 Public Health Association of Australia 15 Australian Nuclear Association 16 South Australian Chamber of Mines & Energy 17 Caring for South Australia 18 Ms Geraldine Gillen 19 Maritime Union of Australia 20 Australian Academy of Science 21 ANSTO 22 Mr Sebastian Tops  22.1 Supplementary to submission 22 23 Ms Margie Morton 24 Mr Andrew Baldock 25 Barngarla Determination Aboriginal Corporation RNTBC ICN 8603  25.1 Supplementary to submission 25 26 Mr John Freeth 27 Mr Greg Phillips 28 Ms Stephanie Ingerson 29 Medical Association for Prevention of War 30 Ms Jenny Baldock 85

31 Name Withheld 32 Prof William Plain  32.1 Supplementary to submission 32 33 Mr John Newlands 34 Mr Peter Woolford 35 Mrs. Carole Wetherby 36 Name Withheld 37 Name Withheld 38 Ms Crina Virgona 39 Name Withheld 40 Brian and Michelle Hunt 41 Ms Megan Johnson 42 Mr Jeff Baldock 43 Ms Anne Wharton 44 Mr Graham Mantle 45 Ms Claudia Tregoning 46 Mr Barry Wakelin  46.1 Supplementary to submission 46  46.2 Supplementary to submission 46 47 AA and TM Eatts 48 Mrs Colleen Guidera 49 Ms Karina Lester 50 Mr Leon Ashton 51 Mr Noel Wauchope 52 Ms Kate Eatts 53 Ms Carol Faulkner 54 Friends of the Earth, Australia 55 Mr Neville Reid 56 Confidential 57 Confidential 58 Confidential 59 Beyond Uranium Canberra 60 Confidential 61 Ms Marg Milton 62 Ms Susan Craig 63 Ms Dianne Ashton 64 Mr Nick Pastalatzis 65 Mr Peter Remta  65.1 Supplementary to submission 65 66 Ms Nancy Lennon 67 Mr Brett Pike 68 Mr David Myer

69 Mr Lance Collins 70 Ms Heather Baldock 71 Dr Helen Caldicott 72 Bob and Sue Tulloch  72.1 Supplementary to submission 72 73 Meagan and Matthew Lienert 74 Heather and Graeme Baldock 75 Wesley and Lisa Schmidt 76 Maurice Blackburn Lawyers 77 Environmental Defenders Office 78 Ms Rose Costelloe 79 Flinders Local Action Group  79.1 Supplementary to submission 79 80 No Radioactive Waste on Agriculture Land in Kimba or SA  80.1 Supplementary to submission 80 81 District Council of Kimba  81.1 Supplementary to submission 81 82 Cameron and Toni Scott 83 Ms Annie McGovern 84 Ms Katrina Bohr 85 Confidential 86 Australian Radiation Protection and Nuclear Safety Agency 87 Confidential 88 Mrs Shirley Inglis 89 Mrs Colleen Grantham 90 Mrs Rachel Yates 91 Mrs Sue Woolford 92 Mr Terry Schmucker 93 Mr Kim Mavromatis 94 Name Withheld 95 Mr Colin Dunkwell 96 Department of Industry, Science, Energy and Resources  96.1 Supplementary to submission 96 97 Australian Conservation Foundation 98 Ms Felicity Wright 99 Ms Kerrie-Ann Garlick 100 A/Prof Tilman Ruff AO 101 Sample Form Letter 1 - Joint NGO Submission 102 Sample Form Letter 2 - Mr Sepp Babler 103 Name Withheld 104 Mr and Mrs Rod and Steph Helling

105 Mr Derek Schild

Additional Information 1 Barngarla Determination Aboriginal Corporation Letter to the Department of Industry - Tabled Document by Senator Hanson-Young at public hearing in Canberra, Tuesday 30 June 2020 2 AECOM Opening Statement at public hearing in Canberra, Tuesday 30 June 2020 3 Tabled document by Senator Patrick at public hearing in Canberra, Tuesday 30 June 2020 4 Tabled document by Senator Patrick at public hearing in Canberra, Tuesday 30 June 2020 5 Tabled document by Senator Patrick at public hearing in Canberra, Tuesday 30 June 2020 6 Tabled document by Senator Patrick at public hearing in Canberra, Tuesday 30 June 2020 7 FOI Advice and documents tabled by Senator Patrick at the public hearing in Canberra on 28 August 2020 8 Department of Industry, Science, Energy and Resources Samantha Chard clarification letter relating to the public hearing in Canberra on 28 August 2020

Answer to Question on Notice 1 Department of Defence Answer to Questions on Notice from the public hearing in Canberra on Tuesday, 30 June 2020 - Q1 Woomera Stakeholders 2 ARPANSA Answers to written Questions on Notice from the public hearing in Canberra on Tuesday, 30 June 2020 3 Department of Defence Answer to Questions on Notice from the public hearing in Canberra on Tuesday, 30 June 2020 - Q4 WPA General & Attachment 4 Department of Defence Answer to Questions on Notice from the public hearing in Canberra on Tuesday, 30 June 2020 - Q8 Loyal Wingman 5 Department of Industry, Science, Energy and Resources Answer to Questions on Notice from the public hearing in Canberra on Tuesday, 30 June 2020 - Q1 Including Attachments 6 Department of Industry, Science, Energy and Resources Answer to Questions on Notice from the public hearing in Canberra on Tuesday, 30 June 2020 - Q2 7 ANSTO Answers to written Questions on Notice from the public hearing in Canberra on Tuesday, 30 June 2020 8 Department of Defence Answer to Questions on Notice from the public hearing in Canberra on Tuesday, 30 June 2020 - Q2 Facility Use 9 Department of Defence Answer to Questions on Notice from the public hearing in Canberra on Tuesday, 30 June 2020 - Q3 Koolymilka

10 Department of Defence Answer to Questions on Notice from the public hearing in Canberra on Tuesday, 30 June 2020 - Q5 Woomera Airfield Operations 11 Department of Defence Answer to Questions on Notice from the public hearing in Canberra on Tuesday, 30 June 2020 - Q6 Explosive Ordinance Storage Area 12 Department of Defence Answer to Questions on Notice from the public hearing in Canberra on Tuesday, 30 June 2020 - Q7 Fuel Storage 13 Department of Defence Answer to Questions on Notice from the public hearing in Canberra on Tuesday, 30 June 2020 - Q9 Explosives facilities at Woomera, Aviation risk assessments 14 Department of Defence Answer to Questions on Notice from the public hearing in Canberra on Tuesday, 30 June 2020 - Q12 Experimental - Test aircraft Movements at Woomera 15 Civil Aviation Safety Authority (CASA) Answers to written Questions on Notice received Monday, 27 July 2020 16 Department of Industry, Science, Energy and Resources answers to Questions on Notice from the public hearing in Canberra on Tuesday, 30 June 2020 - Q3,4,5 and 6 17 Department of Industry, Science, Energy and Resources answer to written Questions on Notice from the committee, received Friday, 7 August 2020 18 Department of Defence Answer to Questions on Notice from the public hearing in Canberra on Tuesday, 30 June 2020 - Q10 Woomera Liquid Fuel Facilities Aviation Risk Assessment 19 Department of Defence Answer to Questions on Notice from the public hearing in Canberra on Tuesday, 30 June 2020 - Q11 Aircraft movements over Woomera 20 District Council of Kimba's Answer Questions on Notice, from the public hearing in Canberra on Monday, 8 August 2020 21 District Council of Kimba's Answer Questions on Notice, from the public hearing in Canberra on Monday, 8 August 2020 - Supporting Document 1. Letter from Minister Canavan 22 District Council of Kimba's Answer Questions on Notice, from the public hearing in Canberra on Monday, 8 August 2020 - Supporting Document 2. Minutes for Ordinary Meeting of Council May 2018 23 Department of Industry, Science, Energy and Resources answer to written Questions on Notice from the committee, received Friday, 14 August 2020 24 Department of Industry, Science, Energy and Resources answer to written Questions on Notice from the committee, received Friday, 14 August 2020 25 AECOM's Answer to Question on Notice from the public hearing in Canberra on Tuesday, 30 June 2020

26 Department of Industry, Science, Energy and Resources answers to Questions on Notice from the public hearing in Canberra Friday 28 August 2020, received Friday, 4 September 2020

Correspondence 1 Correspondence received from the Department of Industry, Science, Energy and Resources in relation to the public hearing in Canberra, Tuesday 30 June 2020 2 Correspondence received from ARPANSA in relation to the public hearing in Canberra, Tuesday 30 June 2020

Appendix 3 Public hearings

Tuesday, 30 June 2020 Committee Room 2S3 Parliament House Canberra

AECOM  Mr James Rusk, Associate Director Environment  Ms Kylie Schmidt, Team Leader Civil Infrastructure

ANSTO  Dr Adi Paterson, Chief Executive Officer  Mr John Edge, Chief Operating Officer  Mr Steven McIntosh, Senior Manager, Government and International Affairs

Australian Radiation Protection and Nuclear Safety Agency  Dr Carl-Magnus Larsson, Chief Executive Officer  Mr Jim Scott, Chief Regulatory Officer

Department of Defence  Rear Admiral Ian Murray, Commander Joint Logistics  Air Vice Marshall Catherine Roberts, Head of Air Force Capability  Mr Chris Birrer, First Assistant Secretary, Infrastructure

Department of Industry, Science, Energy and Resources  Ms Samantha Chard, General Manager National Radioactive Waste Management Facility Taskforce  Ms Sam Reinhardt, General Manager National Radioactive Waste Management Facility Taskforce

Tuesday, 28 July 2020 Committee Room 2S3 (via teleconference) Parliament House Canberra

Wesley and Lisa Schmidt, Private capacity

Mr Barry Wakelin, Private capacity

Mr Jeff Baldock, Private capacity

Australian Conservation Foundation  Mr Dave Sweeney, Nuclear Policy Analyst/Campaigner

Maritime Union of Australia  Mr Jamie Newlyn, South Australian Branch Secretary

Monday, 3 August 2020 Committee Room 2S1 (via teleconference) Parliament House Canberra

Working for Kimba's Future Group  Ms Meagan Lienert, Chair and Member  Mr David Schmidt, Member  Mr Kerri Cliff, Member

No Radioactive Waste on Agriculture Land in Kimba or SA  Mr Peter Woolford, President  Ms Rachel Yates, Treasurer

District Council of Kimba  Ms Debra Larwood, Chief Executive Officer  Mr Dean Johnson, Mayor

Barngarla Determination Aboriginal Corporation RNTBC ICN 8603  Mr Jason Bilney, Director  Ms Linda Dare, Director  Ms Taylor Dawn, Director  Mr Nicholas Llewellyn-Jones, Lawyer

Department of Industry, Science, Energy and Resources  Ms Samantha Chard, General Manager Australian Radioactive Waste Agency

 Ms Sam Reinhardt, Head of Division North Australia and Major Projects Division

Friday, 28 August 2020 Committee Room 2S1 Parliament House Canberra

Department of Industry, Science, Energy and Resources  Ms Samantha Chard, General Manager Australian Radioactive Waste Agency  Ms Sam Reinhardt, Head of Division North Australia and Major Projects Division