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National Radioactive Waste Management Bill 2010

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7037

2010-2011

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

National Radioactive Waste Management Bill 2010

 

 

(1)     Clause 3, page 2 (lines 4 to 12), omit the clause, substitute:

3  Objects of Act

                   The objects of this Act are:

                     (a)  to provide for the selection of a site for a radioactive waste management facility on voluntarily nominated land in Australia; and

                     (b)  to ensure that the site selected is the most suitable site on the Australian continent for radioactive waste storage and management taking into account environmental considerations, geology, geography, hydrology, seismology, infrastructure and cultural heritage values; and

                     (c)  to provide for the establishment and operation of such a facility on the selected site; and

                     (d)  to ensure that parties with waste management responsibility take appropriate steps to ensure that, at all stages of radioactive waste management, individuals, society and the environment are adequately protected against radiological and other hazards;

so that radioactive waste generated, possessed or controlled by the Commonwealth or a Commonwealth entity is safely and securely managed.

[objects clause]

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

[radioactive waste of domestic origin]

(3)     Clause 5, page 6 (lines 9 and 10), omit subclause (4), substitute:

             (4)  A nomination which does not comply with subsection (2) is invalid and of no effect for any purpose under this Act.

[remove ‘no invalidity’ clauses]

(4)     Page 6 (after line 11), after clause 5, insert:

5A  Requirements for nomination by a Land Council

                   A nomination made under section 5, or taken to have been made under section 5, is of no effect for any purpose under this Act unless:

                     (a)  the Land Council, in nominating the land as a potential site, has complied with the Aboriginal Land Rights (Northern Territory) Act 1976 ; and

                     (b)  the nomination of the land as a potential site was made by the Land Council subject to its powers and obligations under the Aboriginal Land Rights (Northern Territory) Act 1976 .

[nominations must comply with Land Rights Act]

(5)     Page 6 (after line 11), after clause 5, insert:

5B  Application of Schedule 2 to nomination by a Land Council

             (1)  Despite subitem 1(1) of Schedule 2, a nomination under section 3A of the old radioactive waste law which does not comply with subsection 5(2) is invalid and of no effect for any purpose under this Act.

             (2)  In this section:

commencement time means the time at which item 1 of Schedule 1 commences.

old radioactive waste law means the Commonwealth Radioactive Waste Management Act 2005 as in force immediately before the commencement time.

[additional requirements for continuing nominations]

(6)     Clause 6, page 7 (lines 21 and 22), subclause (5) TO BE OPPOSED .

[remove ‘no invalidity’ clauses]

(7)     Clause 8, page 10 (lines 28 and 29), subclause (4) TO BE OPPOSED .

[remove ‘no invalidity’ clauses]

(8)     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.

[criteria to guide minister]

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

[remove minister’s absolute discretion]

(10)   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.

[minister must consider nominations]

(11)   Clause 9, page 11 (lines 14 and 15), subclause (6) TO BE OPPOSED .

[remove ‘no invalidity’ clauses]

(12)   Page 11 (after line 16), after clause 9, insert:

9A  Requirements for approval

                   An approval under section 9, or taken to have been made under section 9, of land nominated by a Land Council is of no effect for any purpose under this Act unless:

                     (a)  the Land Council, in nominating the land as a potential site, has complied with the Aboriginal Land Rights (Northern Territory) Act 1976 ; and

                     (b)  the nomination of the land as a potential site was made by the Land Council subject to its powers and obligations under the Aboriginal Land Rights (Northern Territory) Act 1976 .

[nominations must comply with Land Rights Act]

(13)   Clause 10, page 13 (lines 23 to 29), subclause (7) TO BE OPPOSED .

[removing limitations on procedural fairness]

(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”.

[laws continue to apply, subject to limitations]

(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”.

[laws continue to apply, subject to limitations]

(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”.

[laws continue to apply, subject to limitations]

(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”.

[laws continue to apply, subject to limitations]

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

[remove minister’s absolute discretion]

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

[remove minister’s absolute discretion]

(20)   Clause 15, page 18 (lines 7 and 8), subclause (2) TO BE OPPOSED .

[remove ‘no invalidity’ clauses]

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

[remove minister’s absolute discretion]

(22)   Clause 17, page 19 (lines 9 and 10), subclause (6) TO BE OPPOSED .

[remove ‘no invalidity’ clauses]

(23)   Clause 18, page 20 (lines 3 to 7), subclause (5) TO BE OPPOSED .

[removing limitations on procedural fairness]

(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”.

[laws continue to apply, subject to limitations]

(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”.

[laws continue to apply, subject to limitations]

(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”.

[laws continue to apply, subject to limitations]

(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”.

[laws continue to apply, subject to limitations]

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

[remove minister’s absolute discretion]

(29)   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.

                     (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 andto 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.

[independent commission on radioactive waste]

(30)   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.

[obligation to minimise production of waste]

(31)   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.

[application of procedural fairness and new ADJR]