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Tuesday, 13 March 2012
Page: 1479

Senator LUDLAM (Western Australia) (12:41): Chair, I was going to run through the balance of the amendments first. Those amendments that you have noted are the only piece of good news that we will be hearing today, so I was going to save those till last. I seek leave to move together amendments (9), (18), (19), (21) and (28) on sheet 7037.

Leave granted.

Senator LUDLAM: I move Greens amendments (9), (18), (19), (21) and (28):

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

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

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

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

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

I will not detain the chamber unnecessarily with these amendments because effectively they go to many of the same issues that I have already dealt with in some detail—essentially, the absolute discretion of the minister. If there are no processes, rules and guidelines, and if there is nothing in the bill to guide the minister's discretion, he is free to ignore geotechnical advice, anthropological advice and indeed the will of the parliament. He is free to ignore anything whatsoever, including submissions from whatever such consultative groups that he might stand up. He has absolute discretion. That is what effectively makes it impossible for a court to review a decision of the minister because there will not be anything by which a court or potential applicants can say the minister did wrong. The minister is free under the terms of this legislation to effectively just toss a coin and there will be no way that we will know (a) that that was the process or (b) that there is any way of reviewing the decision. There is no requirement to provide reasons. We do not think an approval or a declaration of this kind should be subject to such unfettered ministerial discretion.

I am well aware that this effectively sets a slew of processes in motion under the ARPANS Act and EPBC Act, that this bill effectively fires the starting gun on a nomination, on a place from where all these processes will then flow. If the minister does not do his job properly and chooses a flawed site, as of course Muckaty is, we could go through two or three years of process under the ARPANS Act and under environmental impact assessment before realising that the process itself is flawed. There must be some criteria by which to guide the minister. This gets even scarier if we consider that when the Muckaty nomination falls over, as of course it will, we will then be looking for some other presumably impoverished Aboriginal community, perhaps at the behest of a land council, perhaps not, to accommodate the nation's toxic radioactive waste—which is somehow so unsafe it cannot remain where it is but will be safe enough when we have parked it on an Aboriginal community's land. We do not think that a bill that establishes such a process should go ahead without any form of discretion to guide the minister. I commend these amendments to the Senate.