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Tuesday, 13 March 2012
Page: 1481

Senator LUDLAM (Western Australia) (12:48): by leave—I move Greens amendments (14) to (17) and (24) to (27) on sheet 7037 together:

(14)    Clause 12, page 15 (lines 23 to 25), omit "has no effect to the extent that it would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 11", substitute "continues to have effect in relation to the activities authorised by section 11, except to the extent that the law or provision would operate to prohibit the facility or activities essential to the facility".

(15)    Clause 12, page 15 (lines 28 to 30), omit "has no effect to the extent that it would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 11", substitute "continues to have effect in relation to the activities authorised by section 11, except to the extent that the law or provision would operate to prohibit the facility or activities essential to the facility".

(16)    Clause 13, page 16 (lines 6 to 8), omit "have no effect to the extent that they would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 11", substitute "continue to have effect in relation to the activities authorised by section 11, except to the extent that they would operate to prohibit the facility or activities essential to the facility".

(17)    Clause 13, page 16 (lines 15 to 17), omit "has no effect to the extent that it would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 11", substitute "continues to have effect in relation to the activities authorised by section 11, except to the extent that the law or provision would operate to prohibit the facility or activities essential to the facility".

(24)    Clause 24, page 26 (lines 24 to 26), omit "has no effect to the extent that it would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 23", substitute "continues to have effect in relation to the activities authorised by section 23, except to the extent that the law or provision would operate to prohibit the facility or activities essential to the facility".

(25)    Clause 24, page 26 (lines 29 to 31), omit "has no effect to the extent that it would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 23", substitute "continues to have effect in relation to the activities authorised by section 23, except to the extent that the law or provision would operate to prohibit the facility or activities essential to the facility".

(26)    Clause 24, page 26 (line 34) to page 27 (line 2), omit "has no effect to the extent that it would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 23", substitute "continues to have effect in relation to the activities authorised by section 23, except to the extent that the law or provision would operate to prohibit the facility or activities essential to the facility".

(27)    Clause 25, page 27 (lines 13 to 15), omit "has no effect to the extent that it would, apart from this section, regulate, hinder or prevent the doing of a thing authorised by section 23", substitute "continues to have effect in relation to the activities authorised by section 23, except to the extent that the law or provision would operate to prohibit the facility or activities essential to the facility".

These amendments go to something that we have not spoken of in so much detail, so I will advise the chamber of why we are moving them. An aspect of the campaign that has been led, I think quite appropriately, by the Chief Minister of the Northern Territory is a very strong objection to the Territory being targeted for the location of a radioactive waste dump effectively because of its constitutional vulnerability. However, the government has sought to cover the field. These amendments relate to the fact that the bill shoulders aside the application of all state and territory laws that may be relevant to siting a radioactive waste dump, whether it is in the Territory or elsewhere. The bill displaces, wholesale, entire bodies of law to the extent that they would regulate, hinder or prevent key matters pertaining to the facility, including its siting, its construction, its operation and the transport of material to or from the facility.

Legal experts have cautioned against the Commonwealth arbitrarily stripping powers from the states and territories by suspending the application of all state and territory laws. That includes environmental protection laws and regs, Aboriginal heritage laws, and health and safety standards. The Northern Territory Chief Minister and his government are firmly opposed. They note the obvious flaws in the Commonwealth strategy of suspending the operation of laws designed to safeguard public health, heritage and the environment.

It is unbelievably obnoxious that the government should think it would be a good idea to simply bulldoze aside laws that have been put there for the protection of the public good, of public health, of the environment and of Aboriginal heritage. There will be, obviously, insufficient Commonwealth controls because the Commonwealth has not regulated these matters before. Traditionally, locations, siting and regulation of hazardous waste facilities or installations have been regulated by the state. The Commonwealth does not have an equivalent body of law. There is nothing in any Commonwealth act that you can tell me that regulates personnel or infrastructure in any remote area dump, so suspending the state and territory bodies of law that were designed precisely to regulate these things is completely unacceptable.

This approach fails to take into consideration the fact that state or territory emergency service personnel and infrastructure will be needed should an accident or incident arise and that nuclear waste will be transported past the doors of many Australian homes, often on roads prone to accidents and extreme weather conditions, particularly flooding. In their submission on the bill, lawyers from the Northern Territory EDO argued that the bill should be changed to ensure that state and territory laws apply so as to assist to manage the environmental impacts and risks as thoroughly as possible. The EDO stressed the absurdity of suspending particularly any regulation of the transport of nuclear waste. The ARPANS Act is based on the existence of complementary state and territory regulation, so it is not able to address issues that are not directly related to radioactivity. So the last thing you would want to do would be to push aside the bodies of law that have been instituted by the states and territories to address those gaps in Commonwealth law. It is utterly negligent. Without the state and territory laws applying, it is possible that surrounding land uses could be inadequately controlled to prevent issues developing at the facility.

Dr Patrick Emerton suggested in the inquiry that even if it is conceded that the management of radioactive waste raises particular issues that cannot be resolved within the framework of ordinary environmental or heritage protection laws—which is in itself a pretty contentious claim—it should be possible for the bill to make much more specific provision in respect of the suspension of such laws. Specifically, our amendments assert that it is possible to institute a regime under which such laws are prima facie operative but in certain circumstances—for example, following the failure of negotiations between the Commonwealth and the state or territory in question—those laws could be suspended by regulation in respect of a particular activity. So there is still a get-out clause. We have engaged here in good faith. The presumption should be that these laws apply, and the government should be able to apply for specific exemptions for specific reasons. I think that is a way of getting what the government is after without simply ram-raiding these entire bodies of law. Specific and piecemeal suspension consequent on narrowly specified circumstances would thereby replace the current provisions without undermining the purposes of the bill. I commend these amendments to the chamber.