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Tuesday, 4 March 1980
Page: 524


Senator MISSEN (Victoria) -When one hears the debate tonight one must say that it is very much of the curate's egg: Some very good comments have been made by honourable senators on the other side of the chamber and some incredibly bad comments have been made in relation to the Atomic Energy Amendment Bill. It would appear that the Australian Labor Party and the Australian Democrats would like the Bill, on the whole, to go through. Of course, one realises that if the Opposition's amendment were to be carried, that is just what would not happen. In fact, these partial amendments which are in this Bill, are useful, even if they do not go to the extent that some honourable senators would like them to go, would disappear and would not become part of the law. I think we have all agreed on the law. I think we have all agreed tonight that the clauses ought to be removed. We are all very happy to go home to their funeral, yet their funeral would not take place if the amendment moved by the Opposition is carried tonight. It is all right for honourable senators opposite to say: 'Yes, there is a different system to be used'. I agree with them. I think we should go a fairly extensive way in changing the system and not using the Atomic Energy Act in the way recommended originally by Mr Justice Fox. Nonetheless, the amendment tonight will achieve no purpose in that way.

In the course of the speech made by Senator Walsh he said that the Government was forced to recognise the deficiencies under which the Act has been operating. That is not a correct situation. The Government has not been forced to acknowledge anything. The Government has acknowledged that the Act certainly has deficiencies. It acknowledged this even when it brought the Act into operation a couple of years ago. In fact, it realised that there was a need for investigation. In the second reading speech the following words appear:

In relation to the security provisions of the Atomic Energy Act, the Government's policy that penal provisions which were largely enacted for defence purposes would not be applied to ordinary commercial undertakings, was made clear in the debate on the Atomic Energy Amendment Bill (No. 1 ) 1978. In line with that policy the Government has decided to examine further the penal provisions of Part IV of the Act, having regard to their potential application to ordinary commercial undertakings, to restrict their operation in accordance with Government policy. The review of the penal provisions is currently underway. In the meantime, however, it has been decided that several amendments could be made to the penal provisions.

I think- and some of my colleagues are quite ready to say- that we are sorry that that review has not been completed and that we do not have before us a complete examination of the matter and a Bill which covers quite a number of other aspects, some of which I will refer to tonight. Nonetheless, it is quite wrong to say that the Government has been forced into a situation. Clearly the Government recognised the need for a review, and it recognised this at the time the debate took place two years ago. In the course of that debate questions were raised and Senator Carrick in reply said:

Now that particular aspects of the Atomic Energy Act may be used, it is a good time to reflect and amend if necessary.

That was said in response to criticisms that I and other honourable senators had made in respect of that issue.

In the course of this debate we have heard also a speech by Senator Tate. If I may say so, I thought it was one of his less convincing performances in this chamber. He told us that he was tired of the Act and its inadequacies and that he regarded it as totally inappropriate. I agree with him. But he went on to couple me in the criticisms which he and others are making and to say that we are ridiculed every time we criticise this Act. He can kindly count me out. I am not aware of being ridiculed or even replied to in regard to the criticism of this Act. If the honourable senator suffered that fate, I am sorry to hear that. But certainly it has not been my view that the Government or others who are concerned with this matter, have ridiculed the criticisms that have been made against it.

He went on to be- I think this is one of the very interesting aspects of his speech, and one wonders where the Labor Opposition stands in this matter- very critical of the loss of the option which the Federal Government would have to get experience of operating without State consent. He said that the Federal Government ought to be able to engage and not be dependent on the say so and consent of a State government. That statement, I am sure, contains words which will be very interesting to the State governments. Of course, one of the important provisions in this Bill is that the consent of the State governments must be obtained. Mr Keating, who resides in the House of Representatives, and I understand- the Minister for National Development and Energy (Senator Carrick) will correct me if I am wrong- is the grand panjandrum of the Labor Party on questions of energy and matters of that son, and speaks no doubt with some authority, said at page 356 of Hansard, 26 February 1980, talking of the purpose of the Atomic Energy Amendment Bill (No. 2) and about the difficulties created in 1978:

At that time the Government introduced changes to give the Commonwealth very wide scope to control the mining of uranium and other prescribed substances, as well as operations connected with uranium mining, without regard to the wishes of the States. This amendment led to confusion concerning the Commonwealth's ability to authorise the mining of uranium.

Under the legislation it may have been possible for the Commonwealth to authorise to undertake uranium mining in a State even if this was contrary to State policy, and even though the exploitation of mineral resources is principally a State matter. The Government is seeking now to clarify the difficulties created by this change. At last it has recognised that there may be a Commonwealth-State conflict over such a matter. In amending this Bill the Government makes it clear that the Commonwealth authority to mine uranium will be subject to the consent of the State concerned unless authority is given for the purposes only of the defence of the Commonwealth.

He went on to say that the Opposition was not opposed to this amendment. I would have thought that that was a very clear indication that the Opposition was, in fact, welcoming this change. No, Senator Tate shakes his head. He apparently is able to correct us and to tell us that is Mr Keating 's view. What is the position? Is Mr Keating confusing the Australian people and the electors or is Senator Tate confusing them?


Senator Evans - It just shows that we have a freedom to be independent, freedom to dissent from the party line.


Senator MISSEN - I can understand why Senator Evans wants to come to the rescue of a colleague. That is very very kind of him. Perhaps both Mr Keating and Senator Tate are not telling the complete story. Clearly one cannot reconcile the two statements in the House of Representatives with what Senator Tate said tonight- his desire that the option should remain that the Commonwealth is able to override the States in this area. I just say that it is very mysterious and I am sure that the States will note that mysterious clash.

Finally in regard to the remarks of Senator Tate, I must refer to the interesting ideas he has about section 60 of the Atomic Energy Act. This section is the one in respect of which Senator Hamer is to move an amendment, which amendment I am very delighted to see and I shall certainly have much pleasure in supporting. But let us realise that when Senator Tate said that the present Act is somehow not too bad and the amendment makes it worse he went on to say that under the present Act it is subject to the will of the elected representatives. But what does the present Act say? Section 60 of the Act states:

The Approved Defence Projects Protection Act 1947 applies to and in relation to all works carried out by or on behalf of the Commission as if those works were approved defence projects within the meaning of that Act.

Where do we as representatives of the people come into this at all? I know we passed that Act in 1953- we did not pass it but somebody passed it in 1953. What is the control which the representatives of the people have over this? There is no control. At least the amending Bill which the Government has introduced does affect the position insofar as each particular decision must be taken. The Government had provided that all that had to be done was to have it gazetted. As Senator Hamer has pointed out, that is a quite inadequate provision. It is highly desirable that if a decision is made to apply these very significant and I think somewhat intimidating provisions of the Act, it ought to be a matter which comes before this chamber and in the other place where there is power to disallow if it is thought to be unsuitable; where it retains with us, the people's representatives, an opportunity of disallowance. That is the amendment which Senator Hamer is to move to this Bill. I notice that in the House of Representatives there was not any Committee debate, but that is not particularly unusual as we know. At least it will be something which this chamber as the House of review has considered and has taken a step in affording the desirable protection which Parliament gives over these matters.

For some time I have been concerned with the Act, as I was in 1978 when I spoke at great length about certain weaknesses which I found in both the Environment Protection (Nuclear Codes) Bill at that time and also the Atomic Energy Amendment Bill. One thing that did particularly concern me and still concerns me is the fact that there was a decision to use the Atomic Energy Act. I refer of course to the statements by Mr Justice Fox in the Ranger inquiry when he said:

An alternative for Ranger left open by the Land Rights Act is an authority to mine under the Atomic Energy Act 1953. We strongly recommend against the use of that Act for the grant of an authority to Ranger to mine uranium. There are a number of different reasons for our recommendation.

And of course he set them out. Further on he said:

Although the Commonwealth is a participant, the project is to be, as we understand, an ordinary commercial one.

In any event, the section is inappropriate for a venture such as is planned, and which has to be subject to strong environmental controls, determined upon and maintained independently of the co-venturers.

Certainly there are difficulties which this Bill throws up because certain of the inappropriate sections are to be deleted, in particular sections 54 and 58. Section 54 states that there is no action against the Commonwealth, which Senator Tate referred to and I think it is highly desirable. I do not know whether the section has ever been used or has in fact ever stopped anyone from taking action, but that is not the point. It is not, Senator Tate, sufficient to say it is too late to do anything. That seems a very curious expression. It is not too late if nothing has happened. Certainly it is better to do it now than to have injustices later on. Likewise, section 58 of the Act, which indeed is a most curious one, states:

A person who does an act preparatory to the commission of an offence against this Part is guilty of that offence.

We are going a long way when such a vague offence is created as it is under that section. Senator Mason rather lovingly dwelt on section 50 of the Act and was critical of its application to a commercial operation but one could also have drawn his attention to sections 47, 55 and 62. I mention section 47 because I hope the continuing review will very quickly take into account provisions such as those in this section and consider how on earth they should be applying to commercial operations. Section 47 sets out the provisions on proof of intent on prosecution and amongst other things says:

(a)   it is not necessary to show that he was guilty of a particular act tending to show an intent to prejudice the defence of the Commonwealth and, notwithstanding that no such act is provided against him, he may be convicted if. from the circumstances of the case, his conduct, or with intent to prejudice the defence of the Commonwealth;

One worries about provisions like the 'known character of a person' being sufficient to prove such offences. Section 55 likewise is another of those sections that certainly call for very early consideration in the review of this Act. If the Act is going to stay at all certainly some very heavy surgery must be done. Section 55 deals with restricted areas. It enables the Minister by notice to declare certain areas in or near areas where prescribed substances exist and people can be refused entry and so forth. Of course this may have very considerable effects on people 's rights and people's use of land. There would appear to be very little way in which this is under any control whatsoever. I think that is a dangerously wide section. Section 62- and I do not say that these are in any way exclusive- contains a provision for the opportunity for courts to have hearings in camera which again I think must be scrutinised very carefully in relation to the subject.

I know these matters are under review by the Government because I asked a question on this subject on 22 August 1979. I referred the Attorney-General (Senator Durack) then to the undertakings which Senator Carrick had given and in reply Senator Durack said:

The Government has considered the need to introduce further amendments to that Act.

That is the Atomic Energy Amendment Act. Senator Durack continued:

I should say that in relation to the security provisions of the Act the Government 's policy that penal provisions which were largely enacted for defence purposes would not be applied to ordinary commercial undertakings was made clear in that debate. However, in line with the policy, the Government has decided to examine the penal provisions of Part IV of the. Act, having regard to their potential application to ordinary commercial undertakings.

So there is an assurance that the Government did not intend that it should apply commercially and I think it is wrong that the provisions should remain on the statute book. I think it ought to be so tailored that it does not cause harm in a commercial situation. I merely say in regard to this matter that I welcome the amendments. I recognise that they do not go very far. I am disappointed, of course, that a wider examination has not been made already. Surely we ought to pass these amendments tonight. It is important that the areas involved be cleared up. If one accepts Mr Keating rather than Senator Tate and accepts what else has been said tonight it is unquestionably desirable that these reforms pass into law. With these matters and also the highly desirable amendment of which Senator Hamer has given notice in mind, I support the Bill with pleasure.







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