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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COMMONWEALTH RADIOACTIVE WASTE MANAGEMENT BILL 2005
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Education, Science and
Training the Hon Dr Brendan Nelson MP)
COMMONWEALTH RADIOACTIVE WASTE MANAGEMENT BILL 2005
OUTLINE
The purpose of the Bill is to put beyond doubt the Commonwealth's power to
do all things necessary for, or incidental to, the selection of specified
Commonwealth land as a site for, and the establishment and operation of, a
radioactive waste management facility.
Existing or future State and Territory laws may purport to prohibit,
regulate or hinder things that the Commonwealth may do during the process
of selecting a site for the establishment of a facility.
On 15 July 2005 the Government announced that it would proceed with its
waste management policy by investigating three Commonwealth sites in the
Northern Territory. The Bill specifies three sites which are to undergo
further investigations.
The Bill provides that the Minister may declare one, or a specified part of
one, of the specified sites, as the place where a facility may be
established and operated. The Bill also provides that the Minister may
declare land to provide for suitable road access to the declared site.
The Bill ensures that, after the selection of a site, Commonwealth
regulatory processes under the Environment Protection and Biodiversity
Conservation Act 1999, Australian Radiation Protection and Nuclear Safety
Act 1998 and the Nuclear Non-Proliferation (Safeguards) Act 1987 must be
complied with.
The Bill effects the acquisition or extinguishment of all interests in the
site, or part of the site, chosen for a facility that the Commonwealth has
not already acquired or extinguished (if any), and provides for any
affected parties to be compensated. The Bill also effects the acquisition
or extinguishment of specified interests in land chosen as the route to the
site, or part of the site, that the Commonwealth has not already acquired
or extinguished (if any), and provides for any affected parties to be
compensated.
A number of existing State and Territory laws purport to prohibit or
regulate the things the Commonwealth may do to establish and operate a
facility and/or transport radioactive material. States and Territories
jurisdictions may introduce further legislation purporting to prohibit,
regulate or hinder the Commonwealth doing these things.
Notwithstanding any State or Territory legislation, the Bill provides the
Commonwealth with the express authority to do anything necessary for, or
incidental to, establishing or operating a Commonwealth facility at the
selected site, and transporting radioactive waste to the facility.
FINANCIAL IMPACT
Overall, the financial impact is considered to be negligible.
Provision for any costs, such as any liability of the Commonwealth for
compensation for any acquisition or extinguishment of rights or interests,
would be made through the existing administered appropriation for Outcome 3
of the Department of Education, Science and Training.
COMMONWEALTH RADIOACTIVE WASTE MANAGEMENT BILL 2005
NOTES ON CLAUSES
Part 1-Preliminary
Clause 1 - Short title
Provides for the Act to be cited as the Commonwealth Radioactive Waste
Management Act 2005.
Clause 2 - Commencement
Provides for the Act to commence on the day after it receives the Royal
Assent.
Clause 3 - Definitions
Contains definitions of the terms and expressions used in the Act.*
*Note: The clauses in the Bill will become sections of the Act on Royal
Assent. In this Explanatory Memorandum only the first reference to a
clause or subclause uses that terminology. Subsequent references use the
terms "section" or "subsection" as appropriate.
Part 2-Selecting the site for a facility
Clause 4 Authority to conduct activities
Provides identified persons and classes of persons with the authority to do
certain things as part of the process of selecting one of three identified
sites in the Northern Territory, or a specified part of one of those sites,
for a Commonwealth radioactive waste management facility.
Subclause 4(1) has the effect of providing that section 4 applies to the
Commonwealth, a Commonwealth entity and a Commonwealth contractor as well
as an employee or agent of these persons.
Subclause 4(2) has the effect of providing that a person to whom section 4
applies may (in the Northern Territory) do anything necessary for or
incidental to the purposes of selecting a site on which to construct and
operate a facility.
Subclause 4(3) has the effect of providing that, without limiting
subsection 4(2), the person may do any or all of the following under that
subsection (whether or not on a site):
(a) gain access to and enter land and drive vehicles or fly aircraft
to and from it;
(b) in order to drive vehicles to and from land-use existing roads or
construct roads on, or grade, land;
(c) construct or rehabilitate bores;
(d) operate drilling equipment;
(e) extract water;
(f) collect samples of flora and fauna;
(g) place monitoring equipment (including meteorological and
hydrological measuring equipment);
(h) build structures to protect bores, monitoring equipment or other
things;
(i) move or extract sand, gravel, soil, mineral and rock samples;
(j) conduct seismic or geological investigations;
(k) conduct archaeological or heritage investigations;
(l) clear vegetation.
Subsections 4(2) and (3) are intended to be interpreted broadly and, in
particular, the authority to do the things mentioned in paragraphs 4(3)(a)
to (k) is not confined to doing those things on a site.
Subclause 4(4) has the effect of providing that a person doing anything
under Part 2 on land that is not a site must:
. take all reasonable steps to ensure that it causes as little
detriment and inconvenience (and does as little damage) as is
practicable to the land and to anything on (or growing or living on)
the land; and
. remain on the land only for such period as is reasonably necessary;
and
. leave the land (as nearly as practicable) in the condition in which
it was immediately before the thing was done.
Clause 5 Application of State and Territory laws
Limits the application of State and Territory laws in specified ways.
Subclause 5(1) has the effect of providing that a law (or provision of a
law) of a State or Territory (whether written or unwritten) so far as it
relates to:
. the use or proposed use of land or premises; or
. the environmental consequences of the use of land or premises;
or
. the archaeological or heritage values of land, premises or
objects (including the significance of land, premises or objects
in the traditions of Indigenous people); or
. controlled material, radioactive material or dangerous goods; or
. licensing (however described) in relation to employment,
carrying on a particular kind of business or undertaking or
conducting a particular kind of operation or activity.
has no effect to the extent that it would (apart from section 5) regulate,
hinder or prevent the doing of a thing authorised by section 4.
Subclause 5(2) provides that the regulations may prescribe a law (or
provision of a law) of a State or Territory for the purposes of subsection
5(2) and that the prescribed law or provision has no effect to the extent
that it would (apart from subsection 5(2)) regulate, hinder or prevent the
doing of a thing authorised by section 4.
Subclause 5(3) provides that the regulations made for the purposes of
subsection 5(2) may prescribe a law (or a provision of a law) whether or
not it is a law or a provision of a kind described in subsection 5(1).
Subclause 5(4) provides that the regulations may prescribe a law (or
provision of a law) of a State or Territory for the purposes of subsection
5(4). The prescribed law or provision has effect despite anything else in
section 5.
Clause 6 Application of Commonwealth laws
Subclause 6(1) has the effect of overriding the Aboriginal and Torres
Strait Islander Heritage Protection Act 1984 and the Environment Protection
and Biodiversity Conservation Act 1999 to the extent that these
Commonwealth laws would (apart from section 6) regulate, hinder or prevent
the doing of a thing authorised by section 4.
Subclause 6(2) provides that the regulations may prescribe another law (or
provision of another law) of the Commonwealth for the purposes of
subsection 6(2). The prescribed law or provision has no effect to the
extent that it would (apart from subsection 6(2)) regulate, hinder or
prevent the doing of a thing authorised by section 4.
Part 3- Acquisition or extinguishment of rights and interests
Clause 7 Minister's declaration
Subclause 7(1) provides that the Minister may, (in his or her absolute
discretion) declare in writing that one (or a specified part of one) of the
sites is selected as the site for a facility.
Subclause 7(2) provides that he Minister may (in his or her absolute
discretion) declare in writing that all (or specified) rights or interests
in land in the Northern Territory specified in the declaration are required
for providing all-weather road access to the selected site (or selected
part of a site).
Subclause 7(3) provides that a declaration has effect at the time specified
in the declaration, which must not be earlier than the time that the
declaration is made.
Subclause 7(4) provides that a copy of a declaration must be published in
the Gazette within 7 days of it being made.
Subclause 7(5) provides that a failure to comply with subsection 7(4) does
not invalidate the declaration.
Subclause 7(6) provides that the Minister must not make more than one
declaration under subsection 7(1) or subsection 7(2).
Subclause 7(7) provides that a declaration is not a legislative instrument.
This provision is included to assist readers, as a declaration made under
the Act is not a legislative instrument within the meaning of section 5 of
the Legislative Instruments Act 2003.
Clause 8 Procedural fairness in relation to Minister's declarations
Provides that no person is entitled to procedural fairness in relation to
the Minister's making of a declaration.
Clause 9 Acquisition or extinguishment
Provides for the acquisition or extinguishment of any rights or interests
in the selected site (or the selected part of a site) or for the purposes
of providing all-weather road access to the selected site (or selected part
of a site) that have not already been acquired by the Commonwealth, or
extinguished.
Subclause 9(1) has the effect of providing that, at the time a declaration
under subsection 7(1) has effect, any rights or interests in the selected
site (or selected part of a site) that have not already been acquired by
the Commonwealth, or extinguished, are, by force of section 9, acquired by
the Commonwealth, or extinguished, and are freed and discharged from all
other rights and interests and from all trusts, restrictions, dedications,
reservations, obligations, mortgages, encumbrances, contracts, licences,
charges and rates.
Proposed paragraph 9(1)(b) is intended to only apply to any rights and
interests not already acquired or extinguished by the Commonwealth and
therefore does not affect the Commonwealth's existing rights and interests
in relation to the land or contracts with the Commonwealth in relation to
the Commonwealth's current use of the land.
Subclause 9(2) has the effect of providing that, to avoid doubt, the rights
and interests acquired under, or extinguished by, subsection 9(1) include
rights to minerals (if any) and native title rights and interests (if any).
Subclause 9(3) has the effect of providing that, at the time the
declaration under subsection 7(2) has effect, the rights or interests in
the specified land set out in the declaration are, by force of section 9,
acquired by the Commonwealth or extinguished and freed and discharged from
all other rights and interests and from all trusts, restrictions,
dedications, reservations, obligations, mortgages, encumbrances, contracts,
licences, charges and rates.
Subclause 9(4) has the effect of providing that, to avoid doubt, rights and
interests specified in the declaration under subsection 7(2) may include
any of the following:
. rights to minerals;
. native title rights and interests;
. an interest that did not previously exist in relation to the
land;
. an easement in gross.
Proposed paragraphs 9(1)(b) and 9(3)(b) are intended to only apply to any
rights and interests not already acquired or extinguished by the
Commonwealth and therefore do not affect the Commonwealth's existing rights
and interests in relation to the land or contracts with the Commonwealth in
relation to the Commonwealth's current use of the land.
Clause 10 Application of Commonwealth and Northern Territory laws
Subclause 10(1) provides that section 9 has effect despite any other law of
the Commonwealth or the Northern Territory (whether written or unwritten).
Subclause 10(2) has the effect of providing that, without limiting
subsection 10(1), section 9 has effect despite the Lands Acquisition Act
1989 and the Native Title Act 1993. This also means that the effect of
section 9 is that it is not necessary for the Commonwealth to comply with
any and all provisions of those Acts relating to preliminary processes for
the acquisition or extinguishment of rights and interests in relation to
land.
Clause 11 Notice to Registrar-General
Subclause 11(1) provides that the Secretary of the Department may lodge
with the Registrar-General for the Northern Territory (or other appropriate
officer) a copy of a Minister's declaration under section 7, certified by
writing signed by the Secretary.
Subclause 11(2) provides that the officer with whom the copy is lodged may
deal with and give effect to it as if it were a grant, conveyance,
memorandum or instrument of transfer of relevant rights and interests done
under the laws of the Northern Territory.
Part 4- Conducting activities in relation to selected site
Clause 12 Authority to conduct activities
Provides identified persons and classes of persons with the authority to do
certain things in relation to the selected site for a facility or on land
acquired for the purposes of providing all-weather road access to the
selected site (or selected part of a site).
Subclause 12(1) has the effect of providing that section 12 applies to the
Commonwealth, a Commonwealth entity and a Commonwealth contractor as well
as an employee or agent of these persons.
Subclause 12(2) has the effect of providing that a person to whom section
12 applies may, in relation to the selected site (or selected part of a
site), do anything necessary for or incidental to any or all of the
following:
. gathering or preparing information for a Commonwealth regulatory
scheme that relates to the construction or operation of a
facility or anything done in preparation for the construction or
operation of a facility;
. conducting activities that relate to gathering or preparing
information for such a regulatory scheme;
. preparing the selected site (or selected part of a site) for a
facility;
. preparing to construct and operate a facility;
. constructing a facility;
. constructing roads on, or grading, land in the Northern
Territory;
. erecting fences and other access controls on land specified in
the declaration under subsection 7(2);
. operating a facility;
. maintaining a facility;
. keeping a facility safe;
. decommissioning a facility.
A Commonwealth regulatory scheme mentioned in subsection 12(2) includes,
but is not limited to, the Environment Protection and Biodiversity
Conservation Act 1999 and the Australian Radiation Protection and Nuclear
Safety Act 1998.
Subclause 12(3) provides that, without limiting subsection 12(2), the
person may, under that subsection, do a thing mentioned in subsection 4(3)
in relation to the selected site (or selected part of a site).
Subclause 12(4) provides that subsection 12(2) extends to doing things
outside the selected site (or selected part of a site).
Subclause 12(5) provides that a person to whom section 12 applies may, in
relation to the selected site (or selected part of a site), transport
(including through a State or Territory) people and materials (including
controlled material) to or from a facility; and use transport
infrastructure for that transport.
Clause 13 Application of State and Territory laws
Limits the application of State and Territory laws in specified ways.
Subclause 13(1) has the effect of providing that a law (or a provision of a
law) of a State or Territory (whether written or unwritten) so far it
relates to:
. the use or proposed use of land or premises; or
. the environmental consequences of the use of land or premises;
or
. the archaeological or heritage values of land, premises or
objects (including the significance of land, premises or objects
in the traditions of Indigenous people); or
. controlled material, radioactive material or dangerous goods; or
. licensing (however described) in relation to employment,
carrying on a particular kind of business or undertaking or
conducting a particular kind of operation or activity.
has no effect to the extent that it would (apart from section 13) regulate,
hinder or prevent the doing of a thing authorised by section 12.
Subclause 13(2) provides that a law (or provision of a law) of a State or
Territory (whether written or unwritten), so far as it relates to the
transport of controlled material, radioactive material or dangerous goods,
has no effect to the extent that it would (apart from section 13) regulate,
hinder or prevent transport authorised by section 12.
Subclause 13(3) provides that the regulations may prescribe a law (or
provision of a law) of a State or Territory for the purposes of subsection
13(3) as a law or provision that has no effect to the extent that it would
(apart from subsection 13(3)) regulate, hinder or prevent the doing of a
thing authorised by section 12.
Subclause 13(4) provides that regulations made for the purposes of
subsection 13(3) may prescribe a law (or a provision of a law) whether or
not it is a law or provision of a kind described in subsection 13(1) or
(2).
Subclause 13(5) provides that the regulations may prescribe a law (or
provision of a law) of a State or Territory for the purposes of subsection
13(5) The prescribed law or provision has effect despite anything else in
section 13.
Clause 14 Application of Commonwealth laws
Subclause 14(1) provides that the regulations may prescribe a law (or
provision of a law) of the Commonwealth for the purposes of subsection
14(1) as a law or provision that has no effect to the extent that it would
(apart from subsection 14(1)) regulate, hinder or prevent the doing of a
thing authorised by section 12.
Subclause 14(2) provides that the regulations must not prescribe any of the
following laws, or any provision of the following laws:
. the Australian Radiation Protection and Nuclear Safety Act 1998;
. the Environment Protection and Biodiversity Conservation Act
1999;
. the Nuclear Non-Proliferation (Safeguards) Act 1987.
Part 5-Miscellaneous
Clause 15 Compensation
Subclause 15(1) provides that, if rights or interests are acquired,
extinguished or otherwise affected under section 9, the Commonwealth is
liable to pay a reasonable amount of compensation to a person whose right
or interest has been acquired, extinguished or otherwise affected. That
is, subsection 15(1) provides compensation for effects under paragraphs
9(1)(a) and (b).
Subclause 15(2) provides that if the Commonwealth and the person do not
agree on the amount of the compensation, the person may institute
proceedings in the Federal Court of Australia for the recovery from the
Commonwealth of such reasonable amount of compensation as the court
determines.
Clause 16 Compensation for acquisition of property
Subclause 16(1) provides that, if the operation of the Act would result in
an acquisition of property from a person otherwise than on just terms, the
Commonwealth is liable to pay a reasonable amount of compensation to the
person.
Subclause 16(2) provides that, if the Commonwealth and the person do not
agree on the amount of the compensation, the person may institute
proceedings in the Federal Court of Australia for the recovery from the
Commonwealth of such reasonable amount of compensation as the court
determines.
Subclause 16(3) defines acquisition of property, and just terms for the
purposes of section 16. These terms are defined as having the same meaning
as in paragraph 51(xxxi) of the Constitution.
Clause 17 Regulations
Provides that the Governor-General may make regulations prescribing matters
required or permitted by the Act to be prescribed (or necessary or
convenient to be prescribed) for carrying out or giving effect to the Act.
Schedule 1-Sites
Items 1 to 3 of the Schedule describe in detail three sites in the Northern
Territory for the purposes of the definition of site in section 3. They
are the Mt Everard site, the Harts Range site and the Fishers Ridge site.