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Friday, 28 November 2003
Page: 18371


Senator ALLISON (11:39 AM) —The Democrats have opposed the use and the development of nuclear materials and facilities for non-medical purposes in Australia for a very long time. We are strong supporters of international efforts to prevent the proliferation and testing of nuclear weapons and indeed of the need to see nuclear weapons eliminated entirely. Nuclear weapons are immoral and illegal weapons of mass destruction.

The Democrats are acutely aware of the importance of the Comprehensive Nuclear Test Ban Treaty—CTBT—the Fissile Material Cut-Off Treaty, the Treaty on the Non-Proliferation of Nuclear Weapons, the agreement between Australia and the International Atomic Energy Agency for application of safeguards in connection with the Treaty on the Non-Proliferation of Nuclear Weapons, and the efforts to control the use and development of nuclear weapons. We are also conscious of the role the Nuclear Non-Proliferation (Safeguards) Act 1987 plays in protecting nuclear materials and facilities and implementing non-proliferation safeguards in Australia. These international agreements and the NNPS Act have so far played a very important role in controlling the spread and testing of nuclear weapons.

It is, however, a great pity that this government has not been able to do more to push the nuclear weapons states to disarm, particularly the United States, who this week passed legislation and a $400 billion or so budget that will actually see the development of new nuclear weapons. Like this bill, it is being done in the name of the threat of terrorism. The United States has refused to sign the CTBT and ratify the NPT, and our government refuses to publicly criticise the US for not doing so. Instead of putting up a bill that wants to restrict the rights of protestors, we think our government should be getting together with the New Agenda Coalition and supporting its resolution that says:

... that nuclear non-proliferation and nuclear disarmament are mutually reinforcing processes and that a fundamental pre-requisite for promoting nuclear non-proliferation is continuous irreversible progress in nuclear arms reductions ...

But the government does not, because it is easier for it to pretend that it is using its influence on nuclear weapons states, particularly the US, through polite diplomatic gestures and joining them in what has been an illegal war against Iraq. Our government keeps saying that the NAC—the New Agenda Coalition—resolutions are unrealistic. In other words, Australia has given in on what in the early 1990s were very strong convictions and a willingness to push nuclear weapons states to disarm. I quote Mr Gareth Evans, who argued that the nuclear weapons states should:

... within a reasonable time frame take systematic action to eliminate completely all nuclear weapons.

At the United Nations First Committee on Disarmament and International Security meeting this month, Australia's representative said:

It is simply not possible to conceive of a world free of nuclear weapons in the absence of complete and permanent assurances of nuclear non-proliferation.

This is simply playing the nuclear weapons state game of chicken and egg. In other words, we will not disarm—in fact, we will build our capacity—as long as other countries like Korea and Iran threaten to take up nuclear weapons. Mohamed ElBaradei, Director-General of the International Atomic Energy Agency, said in September this year:

Unless we are moving steadily toward nuclear disarmament, I'm afraid that the alternative is that we'll have scores of countries with nuclear weapons and that's an absolute recipe for self-destruction.

The government claims that the Non-Proliferation Legislation Amendment Bill 2003 is designed to improve the arrangements for the application of non-proliferation safeguards and protection of nuclear materials and facilities. In this regard, the explanatory memorandum for the bill states:

The Non-Proliferation Legislation Amendment Bill (Bill) strengthens Australia's arrangements for the protection of, and application of non-proliferation safeguards to, nuclear material, facilities and associated information. It will enable Australia to bring into force legislation banning nuclear weapon tests ahead of entry into force of the Comprehensive Nuclear-Test-Ban Treaty (CTBT). It provides also for machinery changes to improve the application of non-proliferation measures.

As a general principle, the Democrats are extremely supportive of moves to improve the domestic arrangements for the protection of nuclear materials and facilities and information concerning nuclear materials and facilities. Indeed, we would like to see the phase-out of all non-medical uses of nuclear material and the closure of Australia's nuclear mines. Our nuclear facilities pose an unacceptable risk to public health and the environment. They also pose an inequitable burden on future generations.

The recent incident involving the French immigrant is a stark reminder of the threat that our existing nuclear facilities pose to community safety. Furthermore, it is unacceptable that Australia mines and exports uranium that can be used to create similar problems in other countries. However, if Australia is going to have nuclear facilities, the Australian Democrats are supportive of measures to ensure their safety. Yet, in seeking to ensure greater protection for nuclear materials and facilities and in responding to the increased risk of terrorism, we think that the government is targeting the wrong groups and violating democratic values that form the bedrock of Australian society.

There are several provisions in this bill that infringe upon those values. These provisions relate to the protection of associated technology, the communication of information that could prejudice the physical security of nuclear materials or associated items and trespassing on property that contains nuclear materials or associated items. Apart from these provisions, which are contained in schedule 1, the bill will improve the existing arrangements for the regulation and control of the use and development of nuclear materials and facilities in Australia. We support the inclusion of a requirement to obtain a permit to establish a nuclear facility, a facility for carrying out nuclear activities or a facility for the use of associated equipment. We strongly support the amendment in this bill of the Comprehensive Nuclear Test-Ban Treaty Act 1998 to enable the proclamation of key provisions of the act prior to the CTBT coming into force.

Before briefly discussing the provisions of the bill that should be excluded, I wish to note the appalling lack of public consultation that has occurred in relation to this bill. It is an issue that was brought out in the Democrat initiated Senate committee inquiry into the bill. The government seems willing to engage in consultation when it intends to introduce laws that would affect a particular industry, but not when it proposes to severely curtail democratic rights. Clearly, one of the primary aims of this bill is to restrict protest activities that highlight the government's failure to address important environmental issues concerning Australia's nuclear policies. However, not one environment group was consulted prior to the tabling of the bill in the parliament; nor were any Indigenous groups consulted who might have had concerns about nuclear or uranium issues. We think this is unacceptable.

I will turn to the provisions of the bill that we oppose. The most important of these are found in schedule 1, items 21, 26 and 45. They are proposed sections 25A, 26A and 31A. Firstly, proposed section 25A will create an offence for failing to ensure the security of associated technology—which, broadly, is a document containing information that is applicable to the design or production of a nuclear weapon. We think there are three problems with this provision. Firstly, it could result in the imposition of criminal liability in unreasonable circumstances because it focuses on the failure to `ensure the physical security of the associated technology' rather than the deliberate communication of information.

Secondly, this provision will provide a clamp on whistleblowers. There is a need for restrictions on the disclosure of information that could expose nuclear facilities to attack or that could lead to the construction of a bomb. However, there must also be appropriate channels for employees who work in these facilities to report problems, particularly where those problems have a bearing on public safety. At present, these channels do not exist and this provision will serve to further intimidate people who are thinking of disclosing information for legitimate purposes.

Thirdly, section 26 of the act already contains sufficient restrictions on the disclosure of associated technology. However, section 26 contains two safeguards to prevent it from applying in inappropriate circumstances; namely, it applies only to the communication of information, as opposed to conduct associated with the failure to ensure the physical security of something, and it contains a reasonable excuse defence. Proposed section 25A goes beyond these, and there is no reasonable excuse defence at all.

Proposed section 26A suffers from a similar flaw, only the problems with this section are even worse than those associated with proposed section 25A. This section provides:

(1) A person commits an offence if:

(a) the person communicates information to someone else; and

(b) the communication could prejudice the physical security of nuclear material, or an associated item, to which Part II applies.

This provision is ridiculously broad and appears to be specifically designed to curtail the activities of protesters and other citizens who are opposed to this government's policies on nuclear material.

There are four points to make about this. Firstly, as stated earlier, section 26 already provides an adequate safeguard against the disclosure of information that could be used to make a bomb or for other terrorist purposes. Secondly, there are adequate laws, including section 26, that cover the situation where a person discloses information concerning the physical location or the security of nuclear materials. For example, if a person discloses information to terrorists about the location of materials at Lucas Heights that could be used to make a bomb then they would be guilty of either conspiring to or being complicit in committing a terrorist act or murder. It is also likely that they would be guilty of contravening section 26 of the act.

Thirdly, owing to the breadth of the definitions of `nuclear material' and `associated item', it is likely that this provision will apply to a wide range of activities associated with nuclear issues. However, many of these activities have no bearing whatsoever on national security and are not in any way related to materials that could be used to make a bomb. For example, it will apply to uranium mining and milling. How on earth could disclosing information about uranium mining have a direct bearing on national security? A person would need a reactor and an advanced laboratory to enrich material from the mine to a point where it could be used in a bomb.

Fourthly, this provision is appallingly drafted and leaves far too much scope for the imposition of criminal liability in inappropriate circumstances. The most striking example of this is the phrase `could prejudice the physical security of nuclear material'. What does that mean? Again, the operation of the Criminal Code would assist in reducing the chances of a person being convicted of an offence in an inappropriate circumstance. However, owing to the problems discussed earlier, it will not eliminate them. A protester who discloses details of a uranium mine could still be placed behind bars under this provision.

The final provision we oppose is proposed section 31, which creates an offence of entering into an area or onto a vessel that is marked as a restricted area. As with proposed sections 25A and 26A, there does not appear to be any valid reason for the enactment of this provision. There are already sufficient laws that prevent the unauthorised entry onto Commonwealth land containing nuclear materials that could be used to make a bomb. For example, a person who entered the Lucas Heights facility without appropriate authorisation is likely to be guilty of breaching section 89 of the Crimes Act 1914, which prohibits unauthorised entry onto prohibited Commonwealth land. There are also satisfactory laws to capture circumstances where a person enters a property with the intention of obtaining nuclear materials for use in a nuclear weapon, or to sabotage a nuclear facility or to hijack or sabotage a vehicle, aircraft or ship containing nuclear materials. For example, a person who enters a ship carrying nuclear materials with the intention of stealing that material or blowing it up could be guilty of breaching the Nuclear Non-Proliferation (Safeguards) Act, the Crimes (Ships and Fixed Platforms) Act 1992, the Criminal Code Act 1995, and numerous other laws of the states and territories.

So if there are already sufficient laws to ensure the safety of nuclear materials that are a genuine security risk, we would ask what is the purpose of this provision. The only plausible answer is that it is aimed at ensuring the capacity for protesters who enter uranium mines or who climb on vehicles carrying radioactive waste to be convicted of breaching a Commonwealth law and to hurl them behind bars. At present, protesters who trespass on uranium mines or on vehicles carrying radioactive waste are usually only able to be prosecuted under state laws rather than Commonwealth. It must also be emphasised that civil remedies are available in these circumstances to protect the rights of the owner and operator of the mine or the vehicle. This provision will ensure that there is a broad Commonwealth offence under which to capture a wide range of protesters who engage in rigorous protests.

This is not about national security or about real security risk; it is about intimidating protesters. I must emphasise at this point that the Democrats do not support illegal protest activities. Protesters have an obligation to abide by the laws when expressing their opinions and opposing nuclear activities. However, a protester who thoughtlessly engages in an illegal activity that has no bearing on community safety or national security should not be imprisoned. There is nothing to be gained by doing this, other than to stymie public debate and to destroy the life of the protester.

If the government were really serious about protecting the Australian public and the environment from the effects of radioactive materials, it would close Lucas Heights and shut down our uranium mines. Accepting that the government is not willing to do this, a step in the right direction would be to ensure that the Commonwealth cannot stand over the states and territories and force them to accept Commonwealth nuclear facilities in their jurisdiction without their consent. As we saw with the proposal to establish a dump in South Australia, the willingness of the Commonwealth to force nuclear facilities on a state can lead to considerable conflict. In turn, this leads to wasted resources and inappropriate planning. A more appropriate procedure would be to ensure that the Commonwealth has the consent of the relevant state or territory before they decide to place a nuclear facility in their backyard.

States and territories should also be required to give their consent before the Commonwealth decides to transport radioactive waste through their jurisdiction. Furthermore, the states and territories should also be permitted to subject Commonwealth activities concerning nuclear facilities to state and territory environment and planning laws. This would reduce conflict, enable a more orderly planning process and better guarantee environmental and public safety outcomes.

Accordingly, the Democrats will be moving amendments to this bill that do three things. Firstly, they will prevent the construction and operation of a controlled facility, which includes a nuclear reactor and a nuclear waste dump, by the Commonwealth or a Commonwealth contractor in a state or self-governing territory without the written consent of the relevant state or territory. Secondly, they will prevent the transportation of a controlled material, which includes nuclear waste or controlled apparatus, into or through a state or self-governing territory without the written consent of that state or territory. Thirdly, they will repeal section 83 of the ARPANS Act, which currently excludes the operation of prescribed state laws to activities authorised under the act. We firmly believe that these amendments will make a valuable contribution to improving the regulation of nuclear facilities.