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Tuesday, 28 February 2012
Page: 1007

Senator LUDLAM (Western Australia) (13:46): I thank the minister for that. The point that I am making, just to make it absolutely clear so that we can proceed, is that the minister only speaks with people who agree with him. He has refused to meet with me on a number of occasions, although I did manage to buttonhole him at Alice Springs airport on one occasion—which was quite a memorable few moments. I have quite a good rapport with one of his advisers, who is here and who has given me the time occasionally to explain the minister's views and the tactics that have been chosen. We agree to disagree on most things. But the minister himself has never chosen to do so and to understand that on probably the most important and central aspect of this I actually agree with him, that this is a formidably difficult public policy challenge and that we stand ready, as we will do later in this debate, to propose a way forward. That way forward effectively cuts the knot and gets everybody in this chamber on the same page so that we can move ahead with an approach that is neither coercive nor anticipates that a vulnerable community that needs a road upgrade and a school will put their hand out for 12 million bucks to host a facility such as this.

The minister yesterday seemed to be hinting that there was no choice between those two options. I beg to differ. I think there is a great deal of ground we could occupy between coercion and some kind of bribe—some tiny amount of money for a politically vulnerable community in a remote part of the country to take this facility, this shed-like structure, in exchange for a cheque that would amount to a few tens of thousand dollars a year for the next several centuries, which is what we are contemplating today.

In relation to undertaking consultations under the land rights act and the processes of gaining consent under the land rights act, if I understand it correctly the minister is seeking advice that we may have consent for this amendment. I am not sure where that would leave Senator Scullion, as he has not spoken on this amendment yet, but we may in fact have at least one small point of agreement through the process of this debate.

Senator Chris Evans: Perhaps we should just move on and come back to it.

Senator LUDLAM: I will, Minister. We will park these amendments for the time being and come back to them.

I will speak briefly to the fifth set of amendments. Amendment (8) on sheet 737 relates to criteria guiding the minister in his decision making. This goes back to a degree to some of the comments I was making earlier about the fact that a decision as important as this is going to have consequences for the local community at least stretching for a couple of years and potentially, if all the boxes are ticked at the end of this process, stretching for hundreds of years—well beyond the life of this parliament—and so you would want a few criteria to guide the minister in his or her decision making before they actually put a pin in the map.

It is difficult to recall a piece of legislation that vests so much control in the hands of a single minister, so let us be specific. The decision as to whether the Muckaty nomination proceeds is entirely in the hands of the minister. No rights of appeal apply. If you go through the bill looking for periods of consultation, who he has got to talk to, time lines whereby a decision will fall out of his office, there is nothing there. There are no written criteria against which the minister is to judge the suitability of the Muckaty site—he just gets to make it up.

I acknowledge that at Muckaty there has been a deal of work done. There have been geotechnical surveys and I understand there has been work done on seismicity, on the flooding potential of the site and on the flora and fauna. There has been work done over the last few decades on the extraordinarily long history of Aboriginal occupation of that area. But the minister does not have to even read any of that. There are no criteria guiding the minister's decision. If this bill passes into law—I will be doing what I can to prevent that from happening, but if it does—the minister, if he chose to, could on the following day announced that Muckaty is the site. Nobody would have any rights of appeal, there would be no judicial review and there would be no appeals to procedural fairness. There would be nothing at all to allow us to go back and say, 'Did the minister check off against the responsibilities that the act sets upon him?' because the act sets none upon him. That is something that we can fix this afternoon. If I am on a bit of a roll, as I appear to have been with my last amendment, and this amendment is potentially in the same space and we are making some progress, then that is something that we can fix. We can set some criteria by which the minister can be judged and then can be judicially reviewable. The body language in the chamber suggests that is not going to happen, but I will persevere.

As I said, no written criteria exist. No time line exists on which the minister is required to consider evidence or make a decision. We could have a decision fall out of this process tomorrow or we could get a decision in 10 years—not reviewable. There needs to be no statement of reasons for the decision required by the minister. He will not even need to tell us. It could be a one-line press release that says, 'It is going to be at Muckaty,' and that would let Dr Larsson at ARPANSA get on with his job and the folk who will have carriage of the environmental impact assessment get on with their job. Nobody will be able to bang on a minister's door and say: 'Why is it at Muckaty? Have you been up there? Oh, you haven't? Well, if you had you might have known that occasionally it floods, that occasionally there are earthquakes and that there are people who will fight you until the end to make sure that it does not go there.' And there is no obligation to publish a list or a summary of submissions received.

So, as processes go, that is why this bill is reasonably slender. There is not a great deal in it to read, because nothing at all constrains the minister's total discretion. Perhaps I will be written off as a conspiracy theorist but if I am misreading the bill, if there are all these processes and clauses in there that guide ministerial discretion on nailing the site somewhere in the country, then please point that out for me.

Sections 8(1) and 13(2) confer further absolute discretion on the minister to make key approvals and declarations without being required to take any criteria or other matters into account in approving a state nomination or selecting a site. Setting aside the obvious contention the Aboriginal people have brought to the table about whether the nomination was proper or not, this is a set-up. Why is this a set-up? In a year or two the environmental impact assessment will come back saying, 'Guess what, Minister—it's an earthquake zone,' or 'A couple of times a year you can't get in there because it floods, it's a flood plain; let's not put our shed-like facility on the flood plain.' That is the kind of thing that could be avoided now if anything remotely existed to guide the minister's discretion. What is happening instead is that effectively a political nomination is being kicked through an open goal, because there is nothing in this bill that would prevent it from happening.

The amendments that we are proposing, for which I am looking forward to the unanimous support of the Senate—and I will not call a division if it is obvious that I have the support of one side of the chamber—provide that, before the minister makes a decision, the secretary of the department must publish on the department's website a notice setting out the nature of the decision and inviting persons to make submissions to the minister about the decision within 42 days after the notice is published. He will need to send each stakeholder a notice. This is all stuff that should have been in the bill. It should not have fallen to the Australian Greens to fix this piece of legislation, but we are happy to do so. Under the amendments, each stakeholder would be sent a notice which set out the nature of the decision so that they would know what it was and which invited stakeholders to make submissions to the minister about the decision within 42 days of the date of the notice. A copy of each submission received under the section would be published on the department's website. In making the decision, the minister would have to 'have regard to the submissions in relation to the decision received under subsection 2' and 'actively consult stakeholders'. I suspect that when the minister saw that line that was the deal breaker, that was when it all started to go sideways. There will be no active consultation of stakeholders under this minister, I suspect. I still think it is a good amendment.

The amendments provide that 'in making a decision the minister must have regard, but is not limited, to the following criteria'. The first is existing infrastructure. Can we get the stuff there on rail cars? Are the roads decent? Are there washouts? Are trains going to be knocked off the tracks? This happened in the Northern Territory late last year. The minister will also have to have regard to things like seismology and hydrology. For example, is the site an area of active seismic activity? If you check a map, Australia is not the most seismically active continent on earth; it is probably the least seismically active continent on earth. But guess what? The dart that they have thrown at the board, which landed at Muckaty, happens to have landed on an active seismic zone. No volcanic activity has been recorded there as far as I am aware of, as the minister suggested yesterday, but it is an earthquake zone.

Senator Crossin interjecting

Senator LUDLAM: I suspect it was, Senator Crossin.

Senator Crossin interjecting

Senator LUDLAM: I stand corrected and thank you for preventing me from verballing the minister. But earthquakes do happen up there, not just in anecdotal evidence or recent memory—the maps tell the tale. There are not too many places where you get active earthquake activity, but they happen to have chosen one of them for the nation's first national radioactive waste dump.

Hydrology is another matter that would need to be considered. As I mentioned briefly yesterday sometimes you cannot get into the site because it floods out. It does not sound like a particularly good place to park long-lived, intermediate-level waste for several hundred years. Community consent is something that I will speak at great length about as the debate proceeds, because that is the key factor that has been missing. If the minister thinks that he can get a signature on a piece of paper based on documentation that even the family members who are named in it cannot see—that counts as community consent—then he has a severe challenge on his hands. That challenge, in this instance, has stretched from the front yard of his office, where people routinely congregate to make their feelings known, to the Federal Court, to the front lines up at Muckaty and right into this parliament. There is no community consent, and that is a precondition around the world for managing this material. Without consent there will be no dump.

International best practice is something that I will speak of as we proceed through the debate, because I have tried to give that term—which is bandied around in here far too frequently—some teeth, and tried to define what we would mean by international best practice by actually studying how other countries are grappling with this issue. The minister, of course, can specify other additional criteria if he so chooses.

The amendments state:

(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.

That is reasonably clear. The minister can add to the matters to which he or she must give regard but obviously cannot subtract from them. These are things that must be given regard before a nomination can proceed onto his desk. The amendments also state that the minister must cause a report to be prepared setting out his reasons for making a decision and 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.

So there it is, essentially, in black and white. I spoke before about criteria to guide the minister and the fact that there is total and unfettered discretion written by the minister into this bill, so that his hand is completely unguided in making a decision relating to nomination for a site. We can give those commitments some teeth. When he says he will consult, I hope that he and his representatives in this place will support this amendments, because they give those commitments some teeth, some criteria by which not only the minister can be guided but the community can be reasonably sure when they are published, and when that material is made public, that we will know the reason for a decision having been made in the first place, whether or not it is at Muckaty, whether it is to park the waste or leave it where it is, or whether it is for a remote facility in Western Australia or Queensland. The most important thing in trying to help the government in this instance come up with a successful proposal is that it must be founded on actual consent.

Progress reported.