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Monday, 27 February 2012
Page: 761

Senator LUDLAM (Western Australia) (12:59): I suspect the minister will not need to rise to correct the record, because I believe he is quite correct—he has been advised correctly, despite the first recommendation of the Legal and Constitutional Affairs Committee's report which Senator Crossin, who made a contribution earlier, made, which was to go and talk to the people. It is good to know that he has met with the people in Darwin who agree with him. He has not met with anybody in Tennant Creek and he has never been there, to my knowledge, in his capacity as the minister and has not even had the spine to turn up and tell people what it is that he is proposing that they host. It is not much help to us or those people to say that once this bill is through he will then get up and consult.

What this bill does—and I will constrain my remarks now because we will go into this in a bit of detail when we are proposing amendments to fix these grievous flaws in the bill—is give him absolute, total, unfettered discretion to decide where the process will unfold. He is going to nail a pin in a map at Muckaty, once he has worked out exactly where on the map it is, and the bill that we are debating today gives him total and unfettered discretion to make that site the location. So much for consultation. People will be consulted—or insulted—once the decision on the location has been made. We will get into this in a bit of detail, but I did want to pull the minister up on his repeated use of the term 'world's best practice'.

I want to talk about recent experience in the United States, in particular the US blue ribbon panel. My question is whether or not the government has examined its findings. On 26 January, after working for two years, President Obama's Blue Ribbon Commission on America's Nuclear Future issued its report. Keep in mind that the United States government and Department of Energy are dealing with a vastly larger stockpile of high-level radioactive waste, categories of waste that we do not technically produce here in Australia. It is not just from research reactors, obviously, but from a fleet of nuclear power stations that are in the low hundreds. They have a very keen interest in resolving this issue and they have had the same disastrous experience but on a much larger scale as the Australian government has in attempting to coercively dump this material, in their instance on native American land.

The commission that I am referring to was established by President Obama to create safe and long-term solutions for managing and disposing of the United States' nuclear waste inventory. The panel was tasked with devising a new strategy for managing the growing inventory of nuclear waste and it made recommendations based on consulting with experts, stakeholders and visiting nuclear waste management facilities in the US and overseas. It was co-chaired by former congressman Lee Hamilton and a former national security adviser, Brent Scowcroft. The report noted that President Obama had halted the disastrous Yukka Mountain proposal, which was projected to cost US$90 billion—billion with a 'b'—and had already absorbed $12 billion just in studies and in engineering tests and so on by the time it was finally cancelled by President Obama.

Anybody watching that project would probably have seen that coming for a decade or so, because that project was plagued with problems and scandals from the very beginning. I think we can take that as something of an impasse about nuclear waste management in the United States. To break that impasse, the President proposed the blue ribbon commission. He said at the time that there was an urgent need for a new strategy, and he pointed out that ethical obligations do not burden future generations with a task—in other words, it is not good enough to just kick the can down the road, dump this material off on somebody's land and hope for the best.

The strategy that the commission outlined has three crucial elements. The first is vitally important and it is precisely the fatally flawed scheme that we are debating today and which Minister Martin Ferguson, the Prime Minister—I believe she still is—Julia Gillard and the Howard government cooked up, presumably with many of the same senior bureaucrats who still occupy these positions today. Firstly, the commission recommends a consent based approach to siting future nuclear waste storage and disposal facilities, noting that trying to force such facilities on unwilling states, tribes and communities has not worked. In the instance of the US, it was in Nevada. I will quote from the report briefly:

This Subcommittee recommendation flows directly from an examination of the history of waste-management efforts in the United States and other countries. We drew several lessons from the decades-long effort to site a repository at Yucca Mountain in Nevada and from the ultimately successful completion of the Waste Isolation Pilot Plant (WIPP) facility in New Mexico. One lesson is that support for a facility (or at least acceptance)—both in directly affected communities and on the part of the host state—is a critical element of success. A second is that transparency and accountability, along with the flexibility to adapt to new information and to the concerns of key constituencies, are essential to sustain public trust in decision-making processes and institutions. We believe that a good gauge of consent would be the willingness of the host state (and other affected units of government, as appropriate) to enter into legally binding agreements with the facility operator, where these agreements enable states, tribes, or communities to have confidence that they can protect the interests of their citizens.

The panel went on to say:

The approach to repository development laid out under the Nuclear Waste Policy Act Amendments of 1987 was highly prescriptive, subject to inflexible deadlines, and—as actually implemented—widely viewed as being driven too heavily by political considerations—

this all sounds terribly familiar, doesn't it?—

(as compared to independent technical and scientific judgments). By contrast, other countries—notably Canada, Finland, France, and Sweden—

Australia is missing from that list, Minister; that is interesting, isn't it?—

have adopted a phased, adaptive, and consent-based approach to facility siting and development. Finland and Sweden, in particular, have each successfully sited a deep geologic repository with the support of the host community.

Neither of those two facilities is currently operating on a large scale. All of this around the world is still operating on a trial scale, but at least what they attempted in those jurisdictions was an adaptive and consent based approach.

The panel went on to say:

The roles, responsibilities, and authorities of local, state, and tribal governments (with respect to facility siting and other aspects of nuclear waste disposal) must be an element of the negotiation between the federal government and the other affected units of government in establishing a disposal facility.

There is another question for us: we, for obvious reasons, have focused our efforts and energies on supporting the Aboriginal communities in the area who do not really have the resources to make their voices heard—although they have done an exceptional job of doing so—perhaps to the neglect of the local government authority in that area, which is implacably opposed, and, of course, the Territory government, which opposes this as well.

The panel went on to say:

… all affected levels of government (local, state, tribal, etc.) must have, at a minimum, a meaningful consultative role in all other important decisions.

That is totally absent here in Australia.

… additionally, states and tribes should retain—or where appropriate, be delegated—direct authority over aspects of regulation, permitting, and operations where oversight below the federal level can be exercised effectively and in a way that is helpful in protecting the interests and gaining the confidence of affected communities and citizens.

Senator Scullion has joined us this afternoon in the chamber, and he has been involved in this debate for at least as long as I have—probably longer. Senator Scullion, that was your job: to do what they are trying to do in the United States and to make sure that the Territory government and the local government authority has a voice. That has not been done, and so it has turned out to be up to people from Western Australia and all over the rest of the country to stand up and make the obvious point that the Territory government opposes this thing. The Territory Chief Minister, I think, has done a very effective job in advocating for the rights of Territorians where their advocates in here on both sides from the old parties have gone missing in action.

The blue ribbon panel in the United States goes on to say:

… to engage in meaningful consultation on matters related to nuclear waste storage, transport, and disposal, and to exercise their proper regulatory roles and responsibilities in this context, local, state, and tribal governments need access to sound, independent scientific and technical expertise.

We certainly have not seen anything remotely approaching that here in Australia. Perhaps the minister will stand up in a moment and tell us that, once this bill has been rammed through and the minister has total and unfettered power to put this thing wherever he likes, maybe the consultation will happen then. We recognise that once the minister has nailed a particular spot into the map—we know that at the moment it is Muckaty—a whole heap of processes unfold. I have spent a great deal of time quizzing ARPANSA in budget estimates hearings, and also the department of the environment, on exactly what their processes will look like under EPBC and under the ARPANS Act. So I am not suggesting that all due process has been blown away by this bill in terms of assessment, because that is not the case; this is the beginning of a very long road, not the end of it. But in terms of site location—the key decision about where this thing is going to go, where all this process will unfold, who will be consulted with and so on—that decision is made by the minister, if he chooses, alone in a room by himself, to just stick an X on a map. That is what is completely inappropriate, and that degree of discretion, in my view, is inordinately dangerous. You would not site a shopping centre car park using processes like this, yet we are proposing to site the nation's first high-level and intermediate-level radioactive waste dump using precisely that process. It is a disgrace.

The panel goes on to say:

The UK government reinitiated its waste management program relatively recently—in 2001.

Again, in the UK there is a large inventory of high-level radioactive waste from a nuclear program designed in the 1950s and 1960s with no clue about how to deal with the waste products generated. It sounds familiar because that is exactly what happened here in Australia. Isn't it extraordinary? In 2012 we are debating what on earth to do and where to put the waste materials from a reactor that was started up in the fifties under the Menzies government. They did not come up with a plan for the waste, just as they did not in the United States or the UK. The panel say:

Engagement and consultation with the public as well as commitment to an open and transparent approach since the very beginning of the process played a significant role and to date three communities in northwestern England (Cumbria CC, Copeland BC and Allerdale BC) have expressed their interest in being involved in the site selection process.

So they have expressed interest in being involved, not put their hands up and then had this predatory government adopt the same processes that had been adopted by the Howard government to nail them to the wall in exchange for a cheque for 12 million bucks and improvements to a road.

This is the blue ribbon panel again:

Perhaps even more important, states and affected communities—in order to gain trust and confidence in the decisions taken by the waste management organization—must be empowered to meaningfully participate in the decision-making process.

No sign of that here. The minister just told us the affected community has not even had the grace of a visit from the minister in the three or four years that he has had carriage of this bill.

This means being in a position to evaluate options and provide substantive input on technical and operational matters of direct relevance to their concerns and interests.

…   …   …

In sum, the Subcommittee believes that a new U.S. waste management organization should adopt the Swedish practice and set aside funding for participation by citizens, citizen groups, and other NGOs.

I will go into a little bit more detail about how we see that this could be applied in an Australian context when we get to those amendments a little way down the track, because we have had a go at it. I am very happy to hear from Senator Scullion, from the minister and from other crossbenchers about how to improve those amendments. We have at least made an attempt to come up with an alternative framework for dealing with waste of this kind, rather than the bipartisan ram-raid that we are witnessing this afternoon. The blue ribbon committee say:

The availability of funding should be widely announced and reasonable criteria should be established against which to evaluate applications for financial support.

So it is not a free-for-all.

Trust, in fact, is often the core issue whenever different parties are involved in a complex adjudicatory process—and it can be especially difficult to sustain when much of the power or control is viewed as being concentrated on one side.

Doesn't this sound familiar? They are grappling with exactly the same issues of administration, politics, power and dealing with a waste product that nobody wants.

I would call Senator Scullion on this one to join the crossbenchers and not simply suck it up. We can do a lot better than what we are getting. The Territory can do a lot better and it deserves better. It is interesting to speculate on whether this would be going on if the Territory were a state, because the constitutional vulnerability of the Northern Territory is one factor—I recognise that it is obviously not the only thing, because there are many, but that is one factor—guiding the government's hand in this. They got kicked out of South Australia and they saw how strongly Western Australians arced up when the Pangaea Consortium from Switzerland turned up in 1999, and so they have attacked a constitutionally vulnerable Territory. Bring on statehood.

The blue ribbon commission goes on:

Second, the commission recommends that the responsibility for the nation’s nuclear waste management program be transferred to a new organization—one that is independent of the Department of Energy and dedicated solely to ensuring the safe storage and ultimate disposal of spent nuclear waste fuel and high-level radioactive waste.

This is not about the gloves. This is not about the medical waste. This is not about the short-lived isotopes that will only be killing you in 200 years or so. This is about material that will still kill you after the next ice age.

Third, the commission recommends changing the manner in which fees being paid into the Nuclear Waste Fund—about $750 million a year—are treated in the federal budget to ensure they are being set aside and available for use as Congress initially intended.

My question to the minister is: has the government reviewed this material? Are you aware of this subcommittee of this blue ribbon commission and this in-depth advice from our closest ally and special partner, which I think, as I have pointed out in some detail, has striking and quite creepy parallels to the process that we are engaged in here in Australia? My question to the minister is: has any of this information any resonance at all within the Australian government?