NATIONAL RADIOACTIVE WASTE MANAGEMENT BILL 2010

Order of the day read for the further consideration of the bill in committee of the whole.

In the committee

Consideration resumed of the bill.

Senator Ludlam moved the following amendment:

 Page 10 (after line 30), after Division 2, insert:

Division 2A—Requirements for ministerial decisions

8A Application of Division

 (1) This Division applies to each decision to be made by the Minister in relation to the nomination, selection and approval of sites under this Act, including (but not limited to) each of the following:

 (a) a decision to make a declaration under section 6;

 (b) a decision to approve land, or a specified part of land, under section 9;

 (c) a decision under subsection 14(2) to declare that a site, or a specified part of a site, is selected as the site for a facility;

 (d) a decision under subsection 14(2) to declare all or some of the rights or interests in the selected site;

 (e) a decision under subsection 14(4) to declare that all or specified rights or interests in land are required for providing all-weather road access to a site;

 (f) a decision under section 17 to revoke a declaration made under subsection 14(2).

  (2) A decision to which this Division applies is of no effect unless the requirements of this Division are met.

8B Requirements in relation to decisions

  (1) A decision to which this Division applies must comply with the provisions of this section.

  (2) Before the Minister makes a decision, the Secretary of the Department must:

 (a) publish on the department's website a notice:

 (i) setting out the nature of the decision; and

 (ii) inviting persons to make submissions to the Minister about the decision within 42 days after the notice is published; and

 (b) send to each stakeholder a notice:

 (i) setting out the nature of the decision; and

 (ii) inviting stakeholders to make submissions to the Minister about the decision within 42 days of the date of the notice; and

 (c) publish on the department's website a copy of each submission received under this section.

  (3) In making a decision, the Minister must:

 (a) have regard to the submissions in relation to the decision received under subsection (2); and

 (b) actively consult stakeholders.

  (4) In making a decision, the Minister must have regard, but is not limited, to the following criteria:

 (a) existing infrastructure;

 (b) seismology;

 (c) hydrology;

 (d) community consent;

 (e) international best practice;

 (f) such additional criteria (if any) as are specified by the Minister under subsection (5).

 (5) The Minister may, by legislative instrument, specify additional criteria in relation to a decision for the purposes of paragraph (4)(f), but must not apply those criteria in making a decision until either:

 (a) the period for the disallowance of the instrument has expired in each House of the Parliament; or

 (b) the instrument has been approved by resolution of each House.

  (6) The Minister must cause a report to be prepared setting out the reasons for making a decision.

  (7) The Minister must cause a copy of each report prepared under subsection (6) to be presented to each House of the Parliament at least 28 days before the decision to which the report relates takes effect.

Debate ensued.

Question—That the amendment be agreed to—put and negatived.

Senator Ludlam moved the following amendments together by leave:

 Clause 9, page 11 (lines 3 and 4), omit ", in his or her absolute discretion,".

 Clause 14, page 17 (lines 11 and 12), omit ", in his or her absolute discretion,".

 Clause 14, page 17 (lines 19 and 20), omit ", in his or her absolute discretion,".

 Clause 17, page 18 (line 25), omit ", in his or her absolute discretion,".

 Clause 27, page 29 (line 7), omit ", in his or her absolute discretion,".

Debate ensued.

Question—That the amendments be agreed to—put and negatived.

Question—That the bill be agreed to—divided, at the request of Senator Ludlam, in respect of subclauses 10(7) and 18(5).

Subclauses 10(7) and 18(5) debated and agreed to.

Senator Ludlam moved the following amendments together by leave:

 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".

 Clause 12, page 15 (lines 28 to 30), omit "has no effect to the extent that it would, apart from this subsection, 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".

 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".

 Clause 13, page 16 (lines 15 to 17), omit "has no effect to the extent that it would, apart from this subsection, 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".

 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".

 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".

 Clause 24, page 26 (line 34) to page 27 (line 2), omit "has no effect to the extent that it would, apart from this subsection, 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".

 Clause 25, page 27 (lines 13 to 15), omit "has no effect to the extent that it would, apart from this subsection, 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".

Debate ensued.

Question—That the amendments be agreed to—put and negatived.

Senator Ludlam moved the following amendment:

 Clause 9, page 11 (line 9), omit subclause (3), substitute:

  (3) The Minister must consider each nomination which is made in accordance with the rules for nominations in subsection 5(2) or section 7.

Question—That the amendment be agreed to—put and negatived.

On the motion of the Minister for Tertiary Education, Skills, Science and Research (Senator Evans) the following amendments, taken together by leave, were agreed to:

 Clause 17, page 18 (line 26), at the end of subclause (1), add "or (4)".

 Clause 17, page 18 (line 29), after "14(2)", insert "or (4)".

 Clause 17, page 19 (lines 2 and 3), omit "that was, immediately before the revocation, the selected site", substitute "that was the subject of the revoked declaration".

Senator Ludlam moved the following amendment:

 Page 33 (after line 15), after Part 6, insert:

Part 6A—Independent Commission on the Long-term Safe Storage, Transport and Management of Australia's Radioactive Waste

Division 1—Appointment and functions of Commission

34A Establishment of Commission

  (1) The Independent Commission on the Long-term Safe Storage, Transport and Management of Australia's Radioactive Waste (the Commission) is established by this section.

  (2) The Commission consists of:

 (a) the Chair and other Commissioners appointed under section 34D; and

 (b) staff engaged under the Public Service Act 1999.

  (3) For the purposes of the Public Service Act 1999:

 (a) the Commissioners and staff together constitute a Statutory Agency; and

 (b) the Chair is the Head of that Statutory Agency.

   Note: The Chair holds an office equivalent to that of a Secretary of a Department (see the definition of Agency Head in section 7 of the Public Service Act 1999).

34B Functions and powers of the Commission

  (1) The principal function of the Commission is to establish a deliberative, public and inclusive process to:

 (a) review international best practice in radioactive waste management; and

 (b) review international best practice in community engagement on radioactive waste issues; and

 (c) assemble an inventory of radioactive waste management procedures relating to waste currently stored in Australia under Commonwealth and State jurisdictions; and

 (d) undertake an audit of the volumes, activity and contractual arrangements for Australian-obligated radioactive waste currently stored outside Australia; and

 (e) publicly canvass community, independent expert and industry recommendations on how Australia should best manage radioactive waste; and

 (f) review existing domestic and international literature and decision-making processes relating to radioactive waste management; and

 (g) make recommendations on the establishment of a body to provide ongoing independent scrutiny of the implementation of the proposals, plans and programmes to ensure scientific, transparent, accountable and consensual radioactive waste management, and community access to judicial review processes.

  (2) The Commission has the additional function of providing the Minister and the Parliament with independent, expert advice in relation to decisions to be made by the Minister under this Act.

  (3) The Commission has power to do all things necessary or convenient to be done to perform its functions.

  (4) In performing its functions, the Commission:

 (a) is not required to act in a formal manner; and

 (b) may inform itself on any matter in any way it thinks fit; and

 (c) may consult with anyone it thinks fit; and

 (d) may receive written or oral information or submissions; and

 (e) may hold public seminars, conduct workshops and establish working groups and task forces; and

 (f) must engage with the reference group convened under section 34G; and

 (g) must reflect a variety of viewpoints and options representing alternative means of addressing the subjects of its inquiries, reports and recommendations; and

 (h) must act independently and in a way that advances a scientific, transparent, accountable and consensual strategy for the transport, management and long-term safe storage of radioactive waste; and

 (i) is not subject to the control or direction of the Minister.

34C Constitution of the Commission

  (1) The Commission is constituted by a Chair and four other Commissioners.

  (2) The performance of the Commission's functions and the exercise of its powers are not affected merely because of a vacancy in the office of Chair or in the membership of the Commission.

34D Appointment of Commissioners

  (1) The Chair is to be appointed by the Governor-General, by written instrument, on a full-time basis.

  (2) Commissioners, other than the Chair, are to be appointed by the Minister, in writing, after consultation with the Chair, and may be appointed on either a full-time or part-time basis.

   Note: Commissioners are eligible for reappointment: see subsection 33(4A) of the Acts Interpretation Act 1901.

  (3) Whenever a vacancy occurs in the membership of the Commission, an appointment must be made as soon as practicable.

  (4) Until the Parliament provides otherwise:

 (a) Commissioners hold office on the terms and conditions determined in their instrument of appointment;

 (b) Commissioners are to be paid the remuneration and allowances determined in their instrument of appointment, subject to the Remuneration Tribunal Act 1973.

34E Operation of the Commission

   Until the Parliament provides otherwise, the Commission is to operate in accordance with procedures determined by the Commission, and a document setting out those procedures must be published on the Commission's website within 30 days of the commencement of this section.

34F Role of the Chair

  (1) The Chair is to manage the Commission and to ensure the efficient performance of its functions.

  (2) All acts and things done in the name of, or on behalf of, the Commission by the Chair are taken as having been done by the Commission.

  (3) The Chair may, in writing, delegate all or any of his or her powers and functions under this Act to another Commissioner.

   
Note: Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 set out general rules governing delegation of powers and functions.

Division 2—Establishment and functions of reference group

34G Reference group

  (1) The Commission must appoint a reference group to assist the Commission in gathering evidence and undertaking informed and representative community consultation in relation to the Commission's functions.

  (2) The membership of that reference group must include, but is not limited to, representatives of the following:

 (a) Commonwealth Departments with the functions of science, environment and health;

 (b) State and Territory governments;

 (c) local government;

 (d) Aboriginal communities;

 (e) non-government organisations and experts;

 (f) radiation safety specialists;

 (g) community engagement specialists.

Division 3—Reporting requirements

34H Reports of the Commission

  (1) The Commission must, at the end of 15 months after its establishment, give to the Minister an initial report relating to the short-, medium- and long-term management of radioactive waste, including an assessment of the domestic application of best international practice, to promote public confidence and consent.

  (2) The Commission may report to the Minister on any matter related to its functions.

  (3) The Minister must cause a copy of each report received under this section to be tabled in each House of the Parliament within 9 sitting days of that House after the Minister receives the report.

Debate ensued.

Question—That the amendment be agreed to—put and negatived.

On the motion of Senator Scullion the following amendment was debated and agreed to:

 Page 33 (after line 15), after Part 6, insert:

Part 6A —National Repository Capital Contribution Fund

34A Application of Part

   This Part applies if:

 (a) the Minister has made a declaration under subsection 14(2) that a site in a State or Territory (the relevant State or Territory) is selected as the site for a facility; and

 (b) a facility has been constructed at the site.

34B National Repository Capital Contribution Fee

  (1) An entity wishing to use the facility, other than the following entities:

 (a) the Commonwealth;

 (b) the relevant State or Territory;

 (c) an authority of the Commonwealth or the relevant State or Territory;

   must pay such fee (the Capital Contribution Fee) as is prescribed by the regulations as a capital contribution towards the cost of the facility before being eligible to have radioactive waste accepted by the facility for storage, management or any other purpose.

  (2) The Capital Contribution Fee is to be determined in the manner prescribed by the regulations.

  (3) In this section:

   authority of the Commonwealth means:

 (a) a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or

 (b) an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest.

   authority of the relevant State or Territory means:

 (a) a body corporate established for a purpose of the relevant State or Territory by or under a law of the relevant State or Territory; or

 (b) an incorporated company in which the relevant State or Territory, or a body corporate referred to in paragraph (a), has a controlling interest.

34C National Repository Capital Contribution Fund

  (1) The National Repository Capital Contribution Fund (the Fund) is established by this subsection.

  (2) The Fund is a Special Account for the purposes of the Financial Management and Accountability Act 1997.

  (3) The Fund is taken to be established immediately after a facility licence that authorises a person to operate the facility is issued under the Australian Radiation Protection and Nuclear Safety Act 1998.

34D Credits of amounts to the Fund

  (1) There must be credited to the Fund:

 (a) all money appropriated by the Parliament for the purposes of the Fund; and

 (b) amounts in excess of the first $10,000,000 received by the Commonwealth as Capital Contribution Fees.

   Note: An Appropriation Act provides for amounts to be credited to a Special Account if any of the purposes of the Account is a purpose that is covered by an item in the Appropriation Act.

  (2) Amounts standing to the credit of the Fund may be debited for the purposes of providing enhanced public services and/or infrastructure in the relevant State or Territory.

   Note: See section 21 of the Financial Management and Accountability Act 1997 (debits from Special Accounts).

34E Conditions attaching to the initial use of facility

  (1) A radioactive waste management facility established on a site selected under this Act must not commence accepting any radioactive waste for storage, management or any other purpose, unless:

 (a) the requirements specified in subsection (2) of this section have been met; and

 (b) the Minister has given to the person managing the facility a notice certifying that each of those requirements has been met.

  (2) The requirements to be met for the purposes of subsection (1) are:

 (a) that the Fund stands in credit to the value of at least $10,000,000; and

 (b) either:

 (i) the Commonwealth has entered into an agreement with the relevant State or Territory for the administration of the Fund, which provides that the Fund be administered by the Minister, on the advice of a committee chaired by the Premier or Chief Minister of the relevant State or Territory and comprising 3 other persons resident in that State or Territory with expertise in education, infrastructure and health respectively; or

 (ii) failing such agreement—the Commonwealth has established a committee comprising 3 persons with expertise in education, infrastructure and health resident in the relevant State or Territory, whose function is to advise the Minister on the administration of the Fund by the Minister.

34F Commonwealth acceptance of waste destined for facility

   The Commonwealth must not accept radioactive waste from any entity in a manner that avoids the payment of the Capital Contribution Fee mentioned in section 34B.

Senator Ludlam moved the following amendment:

 Page 35 (after line 28), after clause 37, insert:

37A Obligation to minimise production of waste

   Despite any other law, any agreement between the Commonwealth and another party or parties involving the production of radioactive waste must be made subject to the condition that each contracting party must take appropriate steps to ensure that the generation of radioactive waste is kept to the minimum practicable.

Debate ensued.

Question—That the amendment be agreed to—put and negatived.

Senator Ludlam moved the following amendment:

 Schedule 2, item 1, page 39 (lines 14 to 19), omit subitems (3) and (4), substitute:

  (3) To avoid doubt, section 10 of the new radioactive waste law, and the new ADJR Act, apply in relation to a nomination or an approval continued in force by this item.

Debate ensued.

Question—That the amendment be agreed to—put and negatived.

On the motion of Senator Ludlam the following amendments, taken together by leave, were debated and agreed to:

 Clause 4, page 3 (line 1), after "1998", insert "that is of domestic origin".

 Clause 4, page 3 (line 2), at the end of the definition of controlled material, add "For this purpose, controlled material is of domestic origin if it has been used in Australia, generated by activities in Australia, or sent to Australia under contractual arrangements relating to the conditioning or reprocessing of ANSTO spent nuclear fuel (within the meaning of the Australian Nuclear Science and Technology Organisation Act 1987).

Bill, as amended, agreed to. All Australian Greens senators, by leave, recorded their votes for the noes.

Bill to be reported with amendments.

The Acting Deputy President (Senator Furner) resumed the chair and the Temporary Chair of Committees reported accordingly.

On the motion of Senator Evans the report from the committee was adopted.

Senator Evans moved—That this bill be now read a third time.

Debate ensued.

Question put.

The Senate divided—

AYES, 52

Senators—

Abetz

Back

Bilyk

Birmingham

Boyce

Brandis

Brown, C (Teller)

Bushby

Cameron

Carr, Bob

Carr, Kim

Colbeck

Collins

Conroy

Cormann

Crossin

Edwards

Eggleston

Evans

Farrell

Feeney

Fifield

Fisher

Furner

Gallacher

Hogg

Humphries

Johnston

Kroger

Ludwig

Lundy

Macdonald

Madigan

Mason

McEwen

McKenzie

Moore

Nash

Parry

Payne

Polley

Pratt

Scullion

Sherry

Singh

Sinodinos

Stephens

Sterle

Thistlethwaite

Urquhart

Williams

Wong

NOES, 10

Senators—

Brown, Bob

Di Natale

Hanson-Young

Ludlam

Milne

Rhiannon

Siewert (Teller)

Waters

Wright

Xenophon

Question agreed to.

Bill read a third time.

After 2 pm—