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2004-2005-2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COMMONWEALTH RADIOACTIVE WASTE MANAGEMENT LEGISLATION
AMENDMENT BILL 2006
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Education, Science and Training,
the Honourable Julie Bishop MP)
COMMONWEALTH RADIOACTIVE WASTE MANAGEMENT
LEGISLATION AMENDMENT BILL 2006
OUTLINE
The purpose of this Bill is to amend the Commonwealth Radioactive Waste Management Act
2005 (`CRWM Act') to provide for the return of nominated Aboriginal land - should such land
be selected for a radioactive waste facility - when no longer required for the facility.
The land return may not occur until the land is no longer required for the facility. The effect of
the return is to return the land to the land trust(s) from whom the land was acquired, or the land
trust(s) that succeeded the original land trust(s). Following its return, land in which the
Commonwealth obtained a fee simple interest will have the same status as land granted to a land
trust under the Aboriginal Land Rights (Northern Territory) Act 1976.
The Bill indemnifies, following the land return, the land trust(s) against damages arising from
the use of the land for a facility.
Related purposes of this Bill are to amend the CRWM Act and the Administrative Decisions
(Judicial Review) Act 1977 (`ADJR Act') in relation to the land nomination process.
The Bill amends Schedule 1 to the ADJR Act to include a reference to a decision to nominate a
site under section 3A of the CRWM Act.
This has the effect of adding a site nomination under section 3A of the CRWM Act to the classes
of decisions that are not decisions to which the ADJR Act applies.
Other amendments to the CRWM Act effected by this Bill are to
· remove the right to procedural fairness in relation to a land nomination under section 3A;
and
· provide that failure to comply with the rules about nominations under subsection 3B(1)
does not affect the validity of a nomination under section 3A or a ministerial declaration
under subsection 7(1).
FINANCIAL IMPACT
The financial impact is considered to be negligible.
It is considered unlikely the indemnity granted to the Land Trust will give rise to any financial
liability as the land return may not be effected until the facility site has been released from
regulatory control.
COMMONWEALTH RADIOACTIVE WASTE MANAGEMENT
LEGISLATION AMENDMENT BILL 2006
NOTES ON CLAUSES
Part 1--Preliminary
Clause 1 - Short title
Provides for the Act to be cited as the Commonwealth Radioactive Waste Management
Legislation Amendment Act 2006.
Clause 2 - Commencement
Provides for the Act to commence on the day it receives the Royal Assent.
Clause 3 - Schedule(s)
Provides that each Act that is specified in a Schedule is amended or repealed as set out in the
applicable items in the Schedule and that any other item in a Schedule has effect according to its
terms.
Schedule 1--Amendments
Administrative Decisions (Judicial Review) Act 1977
Item 1 Paragraph (zc) of Schedule 1
Paragraph (zc) of Schedule 1 to the Administrative Decisions (Judicial Review) Act 1977 (the
ADJR Act) currently includes a declaration under section 7 of the Commonwealth Radioactive
Waste Management Act 2005 under the classes of decisions that are not decisions to which the
ADJR Act applies. Item 1 amends paragraph (zc) of Schedule 1 of the ADJR Act so that a
nomination under section 3A of the Commonwealth Radioactive Waste Management Act 2005 is
added to the class of decisions to which the ADJR Act does not apply.
Commonwealth Radioactive Waste Management Act 2005
Item 2 Section 3
Amends section 3 to insert a new definition of Land Trust.
Item 3 After subsection 3B(2)
Section 3 sets out rules about the nomination of sites for a facility. Item 3 inserts a new
subsection 3B(2A) which provides that a failure to comply with subsection 3B(1) does not affect
the validity of a nomination.
Item 4 Section 3D
Section 3D provides that no person is entitled to procedural fairness in relation to a Minister's
approval of nominated land as a site under section 3C. Item 4 amends section 3D so that it
provides that no person is entitled to procedural fairness in relation to a nomination under
section 3A or an approval under section 3C. The heading to section 3D is altered to reflect
this change.
Item 5 After subsection 7(5)
Section 3 sets out rules about the nomination of sites for a facility while section 7 provides an
absolute ministerial discretion to declare in writing that one (or a specified part of one) of the
sites is selected as the site for a facility and for related acquisition or extinguishment of rights
and interests. Item 5 inserts a new subsection 7(5A) which provides that a failure to comply
with subsection 3B(1) does not affect the validity of a nomination.
Item 6 After Part 4
Inserts a new Part 4A (comprising proposed new sections 14A-14J) to provide for the return of
nominated Aboriginal land selected for a radioactive waste facility, after that land is no longer
required for the facility.
Proposed section 14A Application of Part
Proposed section 14A sets out how new Part 4A applies to a declaration under subsection 7(1) or
(2).
Proposed subsection 14A(1) provides that new Part 4A applies if:
(a) immediately before a declaration under subsection 7(1) took effect, land that was the
subject of the declaration was Aboriginal land (the relevant land); and
(b) as a result of the declaration, the Commonwealth acquired (under section 9) an estate
in fee simple in the relevant land; and
(c) a facility on the relevant land has been abandoned in accordance with the Australian
Radiation Protection and Nuclear Safety Act 1998; and
(d) the Commonwealth holds an estate in fee simple in the relevant land.
Proposed subsection 14A(2) provides that new Part 4A applies if:
(a) immediately before a declaration under subsection 7(2) took effect, all or part of the
land that was the subject of the declaration was Aboriginal land (the whole, or that
part, of the land being relevant land); and
(b) as a result of the declaration, the Commonwealth acquired, under section 9, rights or
interests in the relevant land; and
(c) the facility mentioned in paragraph 14A(1)(c) has been abandoned in accordance
with the Australian Radiation Protection and Nuclear Safety Act 1998; and
(d) the Commonwealth holds all or some of those rights or interests in the relevant land.
Abandonment of a facility under the Australian Radiation Protection and Nuclear Safety Act
1998 means that the facility has been released from regulatory control. This cannot occur until
decommissioning and any subsequent monitoring have been completed.
Proposed section 14B Declaration of intention to grant rights and interests in land to
original owners
Proposed subsection 14B(1) provides that the Minister may (in his or her absolute discretion)
declare in writing that the land that was the subject of the declaration under subsection 7(1) is no
longer required for the facility mentioned in paragraph 14A(1)(c).
Proposed subsection 14B(2) provides that the declaration must:
(a) specify all the relevant land; and
(b) state that the Minister intends to make a declaration under section 14C granting the
rights and interests specified in section 14D in specified land to a specified Land
Trust.
Proposed subsection 14B(3) provides that land specified under paragraph 14B(2)(b) may be all
or part of the relevant land, but all of the specified land must, in total, be all of the relevant land.
This allows for different specified parts of the relevant land to be returned to different land trusts.
Proposed subsection 14B(4) provides that a Land Trust may be specified under paragraph
14B(2)(b) in relation to specified land only if:
(a) the Land Trust held title to the specified land immediately before the declaration
under subsection 7(1) or (2) (as the case may be) took effect; or
(b) the Land Trust has succeeded to the functions of a Land Trust mentioned in
paragraph 14B(4)(a).
Proposed subsection 14B(5) provides that, within 7 days of the declaration being made, the
Minister must publish a copy of the declaration in the Gazette and notify a specified Land Trust
in writing that the Minister intends to make a declaration under section 14C.
Proposed subsection 14B(6) provides that a declaration is not valid unless it specifies and states
the matters mentioned in subsection 14B(2) and the Minister complies with subsection 14B(5).
Proposed subsection 14B(7) provides that a Land Trust specified in the declaration may consent
in writing to the granting of the rights and interests specified in section 14D in the specified land.
Proposed subsection 14B(8) provides that a declaration made under subsection 14B(1) is not a
legislative instrument. This provision is included to assist readers, as the declaration is not a
legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.
Proposed section 14C Declaration granting rights and interests in land to original owners
Proposed subsection 14C(1) provides that the Minister must make a declaration in writing that an
estate in fee simple is granted in specified land to a specified Land Trust if the Commonwealth
holds an estate in fee simple in the specified land and the specified Land Trust has, under
subsection 14B(7), consented to the granting of an estate in fee simple in the specified land
within:
· 12 months of the day on which the declaration under section 14B was published in
the Gazette; or
· such longer period as is prescribed in the regulations.
Proposed subsection 14C(2) provides that the Minister must make a declaration in writing that
the rights and interests specified in subsection 14D(3) are granted in specified land to a specified
Land Trust if the Commonwealth holds rights or interests (other than an estate in fee simple) in
the specified land and the specified Land Trust has, under subsection 14B(7), consented to the
granting of the rights and interests specified in subsection 14D(3) in the specified land within:
· 12 months of the day on which the declaration under section 14B was published in
the Gazette; or
· such longer period as is prescribed in the regulations.
Proposed subsection 14C(3) provides that a declaration has effect at the time specified in the
declaration (which must not be earlier than the time the declaration is made).
Proposed subsection 14C(4) provides that a declaration made under subsection 14C(1) or (2) is
not a legislative instrument. This provision is included to assist readers, as the declarations are
not legislative instruments within the meaning of section 5 of the Legislative Instruments Act
2003.
Proposed subsection 14C(5) provides that the Minister may include one or more declarations
under subsections 14C(1) and (2) in the same document.
Proposed section 14D Grant of rights and interests in land to original owners
Proposed section 14D provides for the grant of rights and interests in land to original owners as a
grant of estate in fee simple (subsections 14D(1) and (2)), a grant of other rights and interests
(subsection 14D(3)) and the effect on the validity of earlier rights, interests and
actions(subsection 14D(4)).
Proposed subsection 14D(1) provides that, if the Minister makes a declaration under subsection
14C(1), then at the time the declaration has effect an estate in fee simple is granted (by force of
subsection 14D(1)) in the specified land to the specified Land Trust and the land is taken, for all
purposes, to be Aboriginal land.
Proposed subsection 14D(2) provides that the estate in fee simple is subject to the reservations
that:
· the right to any minerals existing in their natural condition, or in a deposit of waste
material obtained from any underground or surface working, on or below the
surface of the land (being minerals all interests in which are vested in the
Commonwealth) remains with the Commonwealth; and
· rights to explore for minerals, and leases or licences to mine for minerals, on or
below the surface of the land may be granted under section 124 of the Lands
Acquisition Act 1989.
Proposed subsection 14D(3) provides that, if the Minister makes a declaration under subsection
14C(2), then at the time the declaration has effect, any rights and interests that are held by the
Commonwealth in the specified land and were acquired by the Commonwealth (under section 9)
in the specified land from the specified Land Trust or another Land Trust, are granted (by force
of subsection 14D(3)) in the specified land to the specified Land Trust.
Land in respect of which the Minister makes a declaration under proposed subsection 14C(2)
would normally have remained Aboriginal land at the time a declaration under subsection 7(2)
was made.
Proposed subsection 14D(4) provides that the granting of rights and interests in land under
subsection 14D(1) or (3) does not affect the validity of any rights or interests acquired, created or
granted (whether under this Act or otherwise) in relation to the land or the validity of the
construction, operation, maintenance, decommissioning or abandoning of a facility on the land,
or the doing of any other thing in relation to the land, before the declaration under section 14C
has effect.
Proposed section 14E No earlier rights and interests granted
Proposed section 14E provides that, to avoid doubt, the making of a declaration under section
14C does not create or grant any rights or interests in land before the declaration has effect.
Proposed section 14F Application of Commonwealth and Northern Territory laws
Proposed section 14F provides that section 14D has effect despite any other law of the
Commonwealth or the Northern Territory (whether written or unwritten).
Proposed section 14G Notice to Registrar General
Proposed subsection 14G(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 14C, certified by writing signed by the Secretary.
Proposed subsection 14G(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.
Proposed section 14H Indemnity by Commonwealth
Proposed subsection 14H(1) provides that the Commonwealth must indemnify each Land Trust
specified in a declaration under section 14C (and keep the Land Trust indemnified) against any
action, claim or demand brought or made against the Land Trust in respect of any liability arising
from, or damage caused by, ionising radiation from any act done or omitted to be done by or on
behalf of the Commonwealth in relation to the transport of controlled material to or from (or the
management of controlled material at) a facility on the land specified in the declaration.
Proposed subsection 14H(2) provides that the amount of the indemnity is reduced to the extent to
which any fault on the part of the Land Trust, or its employees, agents or contractors, contributed
to the liability or damage.
Proposed subsection 14H(3) provides that subsection 14H(1) does not apply in relation to an
action, claim or demand unless the Land Trust notifies the Commonwealth, in writing, of the
action, claim or demand as soon as practicable and the Land Trust follows any directions of the
Commonwealth in relation to the action, claim or demand.
Proposed section 14J Regulations
Proposed section 14J provides that the regulations may prescribe any modifications of this Act
that are necessary or convenient to deal with transitional matters arising from the making of a
declaration under section 14B or 14C.
This provision has been included to promptly address situations such as where the external legal
framework affecting the intended operation of Part 4A changes at short notice.
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