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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL RADIOACTIVE WASTE MANAGEMENT AMENDMENT
(SITE SPECIFICATION, COMMUNITY FUND AND OTHER MEASURES) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Resources, Water and Northern Australia
the Hon Keith Pitt MP)
NATIONAL RADIOACTIVE WASTE MANAGEMENT AMENDMENT (SITE
SPECIFICATION, COMMUNITY FUND AND OTHER MEASURES) BILL 2020
OUTLINE
The purpose of the National Radioactive Waste Management Amendment (Site Specification,
Community Fund and Other Measures) Bill 2020 (the Bill) is to amend the National
Radioactive Waste Management Act 2012 (the Act) to give effect to the Government's
commitment to establish a single, purpose built National Radioactive Waste Management
Facility (the Facility). The Facility will support Australian nuclear science and technology by
providing for the permanent disposal of low level waste (LLW) and temporary storage of
intermediate level waste (ILW).
LLW and ILW are largely by-products of vital nuclear medicine which, on average, one in
two Australians will need in their lifetime. The LLW and ILW are currently stored in over
100 separate locations across Australia. The Facility will significantly improve Australia's
ability to safely and securely manage radioactive waste at a single site, rather than at many
sites across Australia, and to meet our international obligations under the Joint Convention on
the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management,
done at Vienna on 5 September 1997, as amended and in force for Australia from time to
time (the Joint Convention).
Site Specification
The Bill repeals the existing site nomination and selection framework under the Act and
inserts provisions that specify the site on which the Facility will be established and operated.
The Bill also allows for the acquisition of additional land for the purpose of expanding the
specified site for the establishment and operation of the Facility or for all-weather road access
for the Facility.
The current framework for the selection of a site and the establishment and operation of a
national radioactive waste management facility is built on the principle of voluntarism. Under
that principle, anyone who has a suitable interest in land can voluntarily nominate that land
for consideration as a site for the Facility. The current provisions confer 'absolute discretion'
on the responsible Minister to approve nominations of a site and to declare a site for the
Facility. However, successive ministers have stated that the Facility will not be imposed on
an unwilling community.
The National Radioactive Waste Management Facility (NRWMF) Program is at a critical
juncture in what has been a 40-year effort to identify a community to host such a Facility.
These amendments give certainty and clarity to communities involved in this effort, to allow
them to resume their regular activities and look to new opportunities for the future.
The amendments enable the decision about the location of the Facility to be subject to
Parliamentary scrutiny.
The proposed site for the Facility was identified from evidence gathered during the site
selection process.
The Commonwealth engaged extensively with communities, and undertook an
evidence-based approach to gathering and analysing the available information about each of
the shortlisted sites to consider the various aspects of site suitability and identify key risks.
The concept design developed for each of the approved sites under consideration identified
that approximately 160 hectares would be required to allow for the construction of the
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Facility, placement of enabling works such as power, water and telecommunications on the
site as well as allowing space for community research and development activities. A detailed
Site Assessment Report and a Community Sentiment Report were developed to assist in
identifying a site for the Facility.
The following site suitability criteria were developed to assist the assessment:
the extent to which it is reasonably likely that, at the site, radioactive waste can be
safely and securely managed by the establishment and operation of the Facility that
meets the necessary regulatory or other approvals, licences and permits;
the costs to acquire the site and realise the facility at the site;
other matters relevant to the suitability of the site for the establishment and
operation of the facility; and
the extent to which there is broad community support for the Facility to be hosted at
the site.
The Community Sentiment Report covered a range of measures used to assess the extent to
which there is broad community support for a Facility to be located at each of the sites under
consideration, including local council ballots, neighbour and business surveys, Traditional
Owner sentiment, and public submissions.
Following consideration of the information provided, the site at "Napandee", near the town of
Kimba in South Australia, was identified as the site to be specified in the Act to ensure that
radioactive waste generated, possessed or controlled by the Commonwealth or a
Commonwealth entity is safely and securely managed.
Following the site specific design work required to construct the Facility, it may become
necessary for the Commonwealth to acquire additional land to expand the specified site for
the Facility to allow for further enabling works, cultural heritage protection, community
research and development activities or other community-related activities in connection with
the operation of the Facility. Additional land will not be able to be acquired to establish a
second facility or expand the types of material that may be disposed of, or stored at, the
Facility, including High Level Waste. Additionally, regulators may require the provision of
all-weather road access to the site.
The Bill therefore includes provisions that empower the Governor-General to make a
regulation to acquire additional land to expand the site, and for the Minister to make a
notifiable instrument specifying additional land for the purpose of providing all-weather road
access to the specified site (including the site as expanded, if applicable). Consultation will be
required with any person having a right or interest in relation to the land before any additional
land may be acquired.
NRWMF Community Fund
The Bill enables the establishment of a Community Fund to replace the National Repository
Capital Contribution Fund (the NRCC Fund) established under section 34C of the Act.
Part 6A of the Act in its current form provides for the establishment of the NRCC Fund,
which was intended to support delivery of enhanced public services and infrastructure to the
host State or Territory. The provisions were added as an amendment to the National
Radioactive Waste Management Bill 2010 during consideration before Parliament, before it
was passed by both Houses. At this time the Commonwealth Government was working with
the Northern Territory on a potential site, which was subsequently abandoned. Under these
provisions, the Commonwealth Government would credit $10 million to the NRCC Fund
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before the Facility is operational, after the facility receives its licence to operate under the
Australian Radiation Protection and Nuclear Safety Act 1998 (the ARPANS Act).
The Bill repeals the provisions relating to the NRCC Fund and inserts new provisions to
establish the NRWMF Community Fund to support the long-term social and economic
sustainability of the NRWMF host community. The Community Fund will contribute to
sustainable health services, agricultural research and development, enhancements to local
critical infrastructure and the further development of the local Aboriginal community
economy. The Fund is intended to provide community services essential to the operation of a
viable long-term radioactive waste management facility, and recognises that the Facility will
require support throughout its operation to ensure that Australia upholds its international
obligations as a party to the Joint Convention.
A one-off payment of $20 million will be provided to support the Government's commitment
to the economic and social sustainability of the Facility's host community. This doubles the
amount of money being provided for the benefit of the host community, when compared with
the initial $10 million that the Commonwealth would be required to credit to the NRCC Fund
under the current provisions.
The Bill makes amendments to enable regulations to prescribe a NRWMF Community Fund
entity, which would receive the NRWMF Community Fund Payment, and ensure it is used to
support the economic and social sustainability of the NRWMF host community. This entity
will be established following consultation with the Regional Consultative Committee
(established by section 22 of the Act), the District of Kimba Local Government and the South
Australian Government. This consultation will ensure that the type of entity and its
governance arrangements accurately reflect the economic and social needs of the local
community, while giving consideration to how those needs fit within the broader Aboriginal
and South Australian community.
Part 6A in its current form also requires non-Commonwealth and non-host State and
Territory users of the Facility (primarily State and Territory governments, industry, hospitals
and universities) to pay a fee, prescribed by regulations, to contribute towards the capital
costs of the facility; the National Repository Capital Contribution Fee (NRCC Fee). Any
amounts in excess of the first $10 million received by the Commonwealth as NRCC Fees
would be credited to the NRCC Fund for the benefit of the relevant host State or Territory.
No regulations have been made to prescribe a fee. The Bill renames this fee the Capital
Contribution Fee, and requires that all fees paid by non-Commonwealth and non-host State
users of the Facility be paid into the consolidated revenue fund.
Constitutional heads of power
Finally, the Bill provides clear and objective links between the operation of the Act and the
relevant Constitutional heads of power. A new definition of controlled material ensures that
provisions in the Act as amended that reference the definition are capable of being read down
so that they are supported by those heads of power.
FINANCIAL IMPACT STATEMENT
The amendments in Schedule 2, relating to the Community Fund, will have a financial impact
once the Facility obtains an operational licence, at which time the Commonwealth will make
a single payment of $20 million to the entity prescribed to administer the Community Fund.
The amendments contained in Schedules 1 and 3, relating to specification of the site and the
relevant Constitutional heads of power, will have no financial impact.
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CONSULTATION
The specification of the site for the Facility in legislation is supported by a comprehensive
consultation process. Since 2015, the department has undertaken a voluntary site nomination
and selection process under the existing legislative framework to acquire land to establish and
operate the Facility. As part of that process, the responsible Ministers approved the
nomination of three sites within two communities (Kimba and Hawker) in South Australia for
further consideration. Significant community engagement activities occurred between 2015
and 2019 to inform nearby localities about the proposal and to ascertain levels of support for
the Facility being located within their respective communities. This included:
staffing local offices with locally employed community engagement officers in each
community;
establishing and facilitating engagement through the communities' Consultative
Committees, Economic Working Groups and a Heritage Working Group;
the provision of information about the various aspects of the facility proposal
through a variety of methods including community visits by technical specialists,
social media, webinars, workshops, information sessions, and distribution of
newsletters, fact sheets and independent reports;
public education visits to the Australian Nuclear Science and Technology
Organisation for community members to learn about nuclear waste management;
direct consultation with neighbours, businesses and Traditional Owners, including
through surveys;
a public submissions process for people within and outside of the communities to
express their views, open between 1 August 2018 and 12 December 2019; and
community ballots undertaken by the Australian Electoral Commission,
commissioned by the District Council of Kimba and the Flinders Ranges Council.
In developing this Bill, consultation was undertaken with relevant Commonwealth
departments and agencies across the Commonwealth, including:
Attorney-General's Department;
Department of Agriculture, Water and the Environment;
Department of Finance;
Department of Prime Minister and Cabinet;
Geoscience Australia;
the Treasury.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
National Radioactive Waste Management Amendment (Site Specification, Community Fund
and Other Measures) Bill 2020
The National Radioactive Waste Management Amendment (Site Specification, Community
Fund and Other Measures) Bill 2020 (the Bill) is compatible with the human rights and
freedoms recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Low level waste (LLW) and intermediate level waste (ILW) are largely by-products of vital
nuclear medicine, which, on average, one in two Australians will need in their lifetime.
LLW and ILW are currently stored in over 100 separate locations across Australia. The
National Radioactive Waste Management Facility (the Facility) will significantly improve
Australia's ability to safely and securely manage radioactive waste at a single site, rather than
at many sites across Australia, and to meet our international obligations under the Joint
Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste
Management, done at Vienna on 5 September 1997, as amended and in force for Australia
from time to time.
Overview of the Bill
The purpose of the Bill is to amend the National Radioactive Waste Management Act 2012
(the Act) to:
specify the site selected and enable acquisition of additional land for the Facility;
enable the establishment of a $20 million Community Fund to provide economic
and social sustainability for the community within which the Facility will be
located, to support the operation of the Facility in managing radioactive waste; and
provide clear and objective links between the operation of the Act and the relevant
Constitutional heads of power.
Human Rights Implications
This Bill engages the following rights:
Right to self-determination - Article 1 of the International Covenant on Civil and
Political Rights (ICCPR) and Article 1 of the International Covenant on Economic,
Social and Cultural Rights (ICESCR)
Rights to equality and non-discrimination - Articles 2, 16 and 26 of the ICCPR
Right to take part in public affairs and elections - Article 25 of the ICCPR
Right to enjoy and benefit from culture - Article 27 of the ICCPR and Article 15 of
the ICESCR
Right to self-determination
The right to self-determination entitles people to freely determine their political status and
freely pursue their economic, social and cultural development and, for their own ends, to
freely dispose of their natural wealth and resources without prejudice to any obligations
5
arising out of international economic co-operation, based upon the principle of mutual
benefit, and international law; in no case may a people be deprived of its own means of
subsistence (Article 1 ICCPR, Article 1, ICESCR).
This right is specifically focussed on groups in the community, particularly Indigenous
groups.
The land specified in the Bill as the site for the Facility was voluntarily nominated by its
owners, and is part of an estate in freehold owned by private entities. This land will be
acquired by the Commonwealth through the provisions in the Bill. Some people within the
local community did not support the nomination of the land for use as a radioactive waste
facility. In particular, the Board of the Barngarla Determination Aboriginal Corporation
stated its opposition to the proposal. However, the nomination was strongly supported by the
broader local community.
All people who may be affected by the location and operation of the Facility were invited to
express their views about the potential impact of the proposed Facility on them. Many people
in the local community engaged closely with the Government on the proposal. The level of
engagement and local community support is evidenced in the outcome of a community ballot
(conducted by the Australian Electoral Commission), which took place over a five-week
period from Thursday 3 October to Thursday 7 November 2019. The question posed to
members of the community was: "Do you support the proposed National Radioactive Waste
Management Facility being located at one of the nominated sites in the community of
Kimba?"
90.41 percent of eligible voters responded to the ballot, with a total of 734 formal votes.
Of those who responded, 452 (61.58 percent) voted yes.
The specification of the site in the Bill reflects the Government's response to broad
community support for a Facility. Ongoing consultation positively engages the right to self-
determination by ensuring that people continue to have a say in the establishment of the
Facility, and continue to be treated respectfully. The process leading up to selecting the site
involved extensive consultation and information sharing with local communities, Traditional
Owners and others with an interest in the location of the Facility.
Native Title rights have been extinguished at the specified site; however, Aboriginal heritage,
either tangible or intangible, may still be present. The land was voluntarily nominated by its
owners for selection as the site for the Facility. Additionally, the process for acquiring any
additional land to extend the site for the purposes of establishing and operating the Facility or
for all-weather road access includes a consultation period. In relation to the acquisition of all-
weather road access, the Bill enables the Minister to exclude rights or interests (e.g. native
title rights and interests, a right of access, a contractual right) from being acquired where it is
determined that the rights or interests are not necessary to establish and operate all-weather
road access for the facility.
The consultation requirements to establish the Community Fund will ensure that the
NRWMF Community Fund entity is representative of a broad range of views in the host
community, including that of the local Aboriginal community. The consultation requirement
is a mechanism for ensuring that the host community can determine spending that will
positively affect its future, including a focus on the development of the local Aboriginal
community economy.
To the extent that the amendments engage the right to self-determination, they do so in a
reasonable and proportionate way and do not operate to limit or restrict those rights.
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Right to equality and non-discrimination
The right to equality and non-discrimination entails a number of separate elements within the
Articles of the ICCPR:
Article 2: Each State Party to the present Covenant undertakes:
- to respect and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the ICCPR, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status;
- to take the necessary steps, in accordance with its constitutional processes and
with the provisions of the ICCPR, to adopt such legislative or other measures as
may be necessary to give effect to the rights recognised in the ICCPR; and
- to ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity.
Article 16: Everyone shall have the right to recognition everywhere as a person
before the law.
Article 26: All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status.
The objective of this right is that laws, policies and programs should not be discriminatory,
and public authorities should not apply or enforce laws, policies and programs in a
discriminatory or arbitrary manner.
To the extent that it creates or recognises a person's rights or obligations the Bill does not,
either directly or indirectly, draw distinctions between people or groups on the basis of race,
colour, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status.
The right to equality and non-discrimination is engaged because the Commonwealth proposes
to acquire, occupy and use an area of land that is home to a diverse local community. The
decision to acquire the site for the Facility should appropriately recognise the rights and
interests of all members of the local community.
It is sometimes necessary to treat people differently to achieve equality. This is because
differences between people may make it difficult for them to enjoy their rights without
support. Different treatment does not amount to prohibited discrimination if the criteria for
the differentiation are reasonable and objective, and if the aim is to achieve a purpose which
is legitimate under the ICCPR.
To inform the identification of a site for the location of the Facility, significant engagement
activities occurred between 2015 and 2019 to raise awareness within local communities about
the potential Facility and ascertain the level of community sentiment for locating the Facility
within their communities. In recognition of the variety of stakeholders with an interest in the
Facility, views were sought through a range of government-led and privately conducted
community sentiment indicators. These include council-run community ballots, private
7
ballots, public submissions, parliamentary submissions, neighbour surveys, business surveys,
petitions and ministerial correspondence.
While various mechanisms were used to ensure all voices were heard for the purposes of
gauging 'broad community support for hosting the facility', some mechanisms used to inform
community sentiment were limited to specific community groups to enable express
consideration of the potential socio-economic impacts of, or particular socio-economic
interests in, the Facility. This entailed relying on the local government area (LGA)
boundaries that provide an appropriate representation of the scope of that community.
LGAs are generally constructed around key population centres and often map the social and
economic connections that define those communities as being separate to neighbouring
communities.
There may also be overlap between respondents within different indicator groups. For
example, a person may have responded in a ballot and in a petition, or a resident may have
cultural ties to the land in addition to owning a business in the local area. This is indicative of
the many different ways in which individuals may identify as a part of their community and
be able to participate in the community sentiment engagement activities.
Additionally, the Bill positively differentiates between the Facility's host community and the
broader public by providing for the establishment of a $20 million Community Fund. This
fund is designed to ensure the ongoing economic and social sustainability of the host
community, to support the establishment of the Facility and the ongoing safe and secure
management of controlled material at the Facility when it is established. The Community
Fund will contribute to sustainable health services, agriculture research and development,
enhancements to local critical infrastructure, and further development of the Aboriginal
community economy.
To the extent that the amendments engage with rights to equality and non-discrimination,
they do so in a reasonable and proportionate way and do not operate to limit or restrict those
rights.
Right to take part in public affairs and elections
In the Australian context, the right to take part in public affairs and elections guarantees the
right of Australian citizens to stand for public office, to vote in elections and to have access to
positions in public service (Article 25, ICCPR).
For each of the sites nominated as a potential site for the Facility there has been positive
recognition of the right to engage in public affairs, through public information and
discussion, ballots and the invitation to make comments on the merits of the proposed
Facility and its location. Significant engagement activities occurred between 2015 and 2019
to inform the communities about the potential facility and ascertain the level of community
sentiment for locating the Facility within their communities, including:
staffing local offices with locally employed community engagement officers in
each community;
establishing and facilitating engagement through the communities' Consultative
Committees, Economic Working Groups and a Heritage Working Group;
the provision of information about the various aspects of the facility proposal
through a variety of methods including community visits by technical specialists,
social media, webinars, workshops, information sessions, and distribution of
newsletters, fact sheets and independent reports;
8
public education visits to the Australian Nuclear Science and Technology
Organisation for community members to learn about nuclear waste management;
direct consultation with neighbours, businesses and Traditional Owners, including
through surveys;
a public submissions process for those both within and outside of the communities
to express their views was open between 1 August 2018 and 12 December 2019;
and
community ballots undertaken by the Australian Electoral Commission,
commissioned by the District Council of Kimba and the Flinders Ranges Council.
To the extent that the amendments engage with the right to take part in public affairs and
elections, they do so in a reasonable and proportionate way and do not operate to limit or
restrict those rights.
Right to enjoy and benefit from culture
The right to enjoy and benefit from culture includes:
the right of individuals belonging to ethnic, religious and linguistic minorities
within a country to enjoy their own culture, practise their own religion and use
their own language (Article 27, ICCPR);
the right of all people to take part in cultural life; to enjoy the benefit of scientific
progress and its applications; and to benefit from the protection of the moral and
material interests resulting from any scientific, literary or artistic production of
which he or she is the author (Article 15, ICESCR).
The Bill engages this right because the development of a facility on the specified site may
impinge on the freedom of people to engage in certain cultural practices on that land.
However:
It is unlikely that the right of individuals to enjoy their own culture, practise their
own religion and use their own language is directly affected, as the specified site is
privately owned and used for agricultural purposes.
There are currently no identified registered places or objects of cultural significance
to Aboriginal people on the specified site. However, should a culturally significant
finding be made on the specified site in future, the Environment Protection and
Biodiversity Conservation Act 1999 will operate to provide protections for cultural
heritage or archeologically significant sites or artefacts.
People may benefit from the location of the Facility within their community
through access to employment and through the financial support provided by the
Community Fund.
People will continue to benefit from scientific progress and its application, through
the delivery of nuclear medicine, as the establishment of a Facility represents an
important phase in the nuclear medicine cycle.
To the extent that the amendments engage with the right to enjoy and benefit from culture,
they do so in a reasonable and proportionate way and do not operate to limit or restrict those
rights.
9
Conclusion
The Government has assessed the Bill's compatibility with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of Human Rights
(Parliamentary Scrutiny) Act 2011.
To the extent that the amendments engage with these rights, they do so in a reasonable and
proportionate way and do not operate to limit or restrict those rights.
Minister for Resources, Water and Northern Australia,
the Hon Keith Pitt MP
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NATIONAL RADIOACTIVE WASTE MANAGEMENT AMENDMENT
(SITE SPECIFICATION, COMMUNITY FUND AND OTHER
MEASURES) BILL 2020
NOTES ON CLAUSES
Clause 1: Short title
1. This is a formal provision specifying the short title of the Act.
Clause 2: Commencement
2. This clause provides for the commencement of the whole of the Bill, which will
commence on the day after the Bill receives Royal Assent.
Clause 3: Schedules
3. This clause gives effect to the provisions in the Schedules to the Bill.
Schedule 1--Site specification
4. Schedule 1 amends the Act to repeal the provisions relating to the site nomination and
selection process under the Act, to specify the site on which the Facility will be located
and enable additional land to be acquired for the purposes of establishing and operating
the facility or for all-weather road access to the Facility.
National Radioactive Waste Management Act 2012
Item 1: Title
5. Item 1 of Schedule 1 amends the long title of the National Radioactive Waste
Management Act 2012 (the Act) to remove the reference to 'selection' and substitute
'specification'. The amended long title will reflect the Act's purpose and content, as
amended by the Bill.
Item 2: Section 3
6. Item 2 of Schedule 1 repeals and substitutes a new section 3 (Objects of the Act). New
subsection 3(1) reflects that the site for the Facility will be specified in the Act.
7. New subsection 3(2) makes clear that the safe and secure management of controlled
material gives effect to Australia's obligations as a party to the Joint Convention on the
Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management,
done at Vienna on 5 September 1997, as amended and in force for Australia from time
to time.
Item 3: Section 4
8. Item 3 of Schedule 1 repeals the definitions of Aboriginal land and general nomination
start time in section 4 of the Act.
9. The term Aboriginal land derives its meaning from the Aboriginal Land Rights
(Northern Territory) Act 1979. The term is defined for the purposes of the nomination
of land by the Land Council under Division 1 of existing Part 2 of the Act, which is
repealed by item 10 of Schedule 1. This Part, among other things, provides that a
11
potential site for the location of the Facility may be nominated by a Land Council,
within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976
(section 5). No land nominations were received from Northern Territory Land Council.
10. The term Aboriginal land is also referred to in Division 2 of Part 2 which is being
repealed by item 10 of Schedule 1. This Division provides that the Minister may
declare that site nominations may be made. This part is being replaced with new Part 2
which specifies the site for the establishment and operation of the Facility. The site for
the Facility is located in South Australia, where native title rights have been
extinguished. It is also referred to in Part 6 which is being repealed by item 31 of
Schedule 1, as this Part only applies if land located in the Northern Territory that is
Aboriginal land within the meaning of the Aboriginal Land Rights (Northern Territory)
Act 1976 is selected as the site for the Facility.
11. See also item 5 of Schedule 1, which repeals the definition of Land Council. The Act
continues to provide protections for archaeological and cultural heritage, including sites
or objects of significance to Aboriginal people, by requiring assessment and approval
under the Environment Protection and Biodiversity Conservation Act 1999.
12. The repeal of the definition of general nomination start time is consequential to the
repeal of Part 2 (Nomination of sites) of the Act by item 10 of Schedule 1.
Item 4: Section 4
13. Item 4 of Schedule 1 inserts a new definition of Joint Convention, meaning the Joint
Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive
Waste Management, done at Vienna on 5 September 1997, as amended and in force for
Australia from time to time.
14. This definition is relevant to new subsection 3(2), substituted by item 2 of Schedule 1,
which amends the Object of the Act.
15. A note to this definition has been added to identify the treaty series number and direct
the reader to http://www.austlii.edu.au where the treaty can be viewed free of charge.
Item 5: Section 4
16. Item 5 of Schedule 1 repeals the definitions of Land Council, Land Trust and
nominator. This amendment is consequential to the repeal of Parts 2 and 6 of the Act by
items 10 and 31 of Schedule 1, and to the amendment of other provisions in the Act.
17. References to the Land Council and the Land Trust are no longer required, as the
specified site for the Facility is not located on Aboriginal land in the Northern
Territory.
18. As the Bill specifies the site for the Facility, the term nominator is no longer required.
Item 6: Section 4
19. Item 6 of Schedule 1 inserts new signpost definitions of prescribed acquisition time and
relevant land. The terms are defined in new subsections 19A(1) and 23(6) (inserted by
items 15 and 30 of Schedule 1 respectively).
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Item 7: Section 4
20. Item 7 of Schedule 1 repeals the definitions of selected site and site. This amendment is
consequential to the repeal of Parts 2 and 6 of the Act by items 10 and 31 of
Schedule 1, and to the amendment of other provisions in the Act.
21. As the Bill specifies the site for the Facility, the terms selected site and site are no
longer required.
Item 8: Section 4
22. Item 8 of Schedule 1 inserts new signpost definitions for site acquisition time and
specified site.
23. The term site acquisition time will be defined in subsection 19(2). The new definition is
inserted by item 14 of Schedule 1. This amendment is consequential to the amendment
of subsection 19(1) by item 13 of Schedule 1 to provide that all rights and interests in
the specified site are acquired at the time the amending Act commences.
24. Item 8 also inserts a new signpost definition for specified site. The term is defined in
new subsection 5(2), inserted by item 10 of Schedule 1, which specifies the site for the
establishment and operation of a facility (the specified site).
Item 9: Section 4
25. Item 9 of Schedule 1 repeals the definitions of statutory authority and traditional
Aboriginal owners.
26. The term statutory authority occurs in references to the status of land nominated under
existing Part 2 of the Act, which is repealed by item 10 of Schedule 1.
27. The term traditional Aboriginal owners derives its meaning from the Aboriginal Land
Rights (Northern Territory) Act 1979. The term is defined only for the purposes of the
nomination of land by the Land Council under Division 1 of existing Part 2 of the Act,
which is repealed by item 10 of Schedule 1. This Part, among other things, provides
that a potential site for the location of the Facility may be nominated by a Land
Council, within the meaning of the Aboriginal Land Rights (Northern Territory) Act
1976 (section 5). No land nominations were received from Northern Territory Land
Councils. See also item 5 of Schedule 1, which repeals the definition of Land Council.
The Act continues to provide protections for archaeological and cultural heritage,
including sites or objects of significance to Aboriginal people, by requiring assessment
and approval under the Environment Protection and Biodiversity Conservation
Act 1999.
28. Native Title rights have been extinguished at the specified site; however, Aboriginal
heritage, either tangible or intangible, may still be present.
Item 10: Parts 2 and 3
29. Parts 2 and 3 of the Act currently prescribe the requirements for nomination and
approval of potential sites for the location of the Facility.
30. Part 2 in its current form provides that a potential site for the location of the Facility
may be nominated by a Land Council, within the meaning of the Aboriginal Land
Rights (Northern Territory) Act 1976 (section 5), or any person (section 7). Part 2
currently also provides that the Minister may declare that site nominations may be
13
made (section 6) and approve a nomination to be further considered for the location of
the Facility (section 9) in accordance with procedural fairness requirements.
31. Part 3 in its current form provides the authority to conduct activities to enable further
investigations of the nominated sites to inform the selection of a site (section 11). Part 3
currently also provides the ability to override most Commonwealth, State and Territory
laws that may regulate, hinder or prevent activities identified in section 11 (sections 12
and 13).
32. Item 10 of Schedule 1 repeals Parts 2 and 3 of the Act and inserts new Part 2. The new
Part comprises only new section 5, which specifies the site for the establishment and
operation of the Facility. The table in the new section describes the boundaries of the
site.
33. The site specified is at "Napandee" near the town of Kimba in South Australia. The size
of the specified site is approximately 160 hectares. This allows for the approximately
40 hectare footprint for the Facility, associated enabling works and services,
community research and development activities and appropriate security measures.
34. Napandee is being proposed as the site for the Facility following the consideration of a
detailed Site Assessment Report covering safety; regulatory approvals; costs and other
aspects of site suitability, developed from more than three years of technical studies;
and a Community Sentiment report drawing on a range of measures, including
community ballots, submissions and surveys.
35. The establishment of a facility at "Napandee" will safely and securely manage
radioactive waste and there is broad support in the community for the project.
Item 11: Divisions 1 and 2 of Part 4
36. Part 4 of the Act currently provides for the acquisition or extinguishment of rights or
interests in land where the Facility would be located.
37. Division 1 of Part 4 of the Act enables the Minister to declare that a site is selected for
the Facility or is required for all-weather road access to the site. Division 1 of Part 4
also prescribes administrative requirements for Ministerial declarations made under
section 14 (sections 15 to 17 of Division 1 of Part 4). Division 2 of Part 4 prescribes
procedural fairness requirements for ministerial declarations made under section 14
(section 18).
38. Item 11 of Schedule 1 repeals Divisions 1 and 2 of Part 4 of the Act. This amendment is
consequential to the repeal of Parts 2 and 3 and the insertion of new Part 2 by item 10
of Schedule 1. New Part 2 comprises only new section 5, which specifies the site where
the Facility would be located.
39. The power to acquire or extinguish rights and interests in additional land to provide all-
weather road access to the specified site is retained in new section 19B, which is
inserted by item 15 of Schedule 1.
Item 12: Section 19 (at the end of the heading)
40. Section 19 in its current form provides that any rights or interests in the site for the
Facility that are specified in a declaration made in relation to the site (subsection 14(2))
or for all-weather road access to the site (subsection 14(4)) are acquired by the
Commonwealth or extinguished and freed or discharged from all other rights and
interests at the time of the declaration.
14
41. Item 12 of Schedule 1 amends the heading of section 19 to "Acquisition or
extinguishment--specified site for facility".
42. This amendment is consequential to the repeal of Parts 2 and 3 of the Act and the
insertion of new Part 2 by item 10 of Schedule 1. Part 2 comprises only new section 5,
which specifies the site where the Facility would be located.
Item 13: Subsection 19(1)
43. Item 13 of Schedule 1 amends subsection 19(1) to provide that the acquisition or
extinguishment of rights or interests in the specified site will occur at the site
acquisition time, which is defined in new subsection 19(2) (see item 14 of Schedule 1).
The amendment is consequential to the repeal of Parts 2 and 3 of the Act and the
insertion of new Part 2 (comprising only new section 5) by item 10 of Schedule 1. New
section 5 specifies the site where the Facility would be located.
Item 14: Subsection 19(2)
44. Item 14 of Schedule 1 repeals and substitutes a new subsection 19(2), which defines
site acquisition time for the purposes of the Act. This new term is also used in the
definitions of local government area and specified site, and in new Part 6C
(Transitional), inserted by item 35 of Schedule 1.
45. New subsection 19(2), read in conjunction with new subsection 19(1), clarifies that the
Commonwealth acquires all rights and interests in the specified site on commencement
of the amending Act (the day after the amending Act receives Royal Assent).
46. This amendment is consequential to the repeal of Parts 2 and 3 of the Act and the
insertion of new Part 2 (comprising only new section 5) by item 10 of Schedule 1. New
section 5 specifies the site where the Facility would be located.
Item 15: After section 19
47. Item 15 of Schedule 1 inserts new section 19A, which provides for the acquisition or
extinguishment of rights and interests in additional land for expansion of the site
(specified under new section 5) for establishment and operation of the Facility. Any
rights and interests acquired under this provision will be for purposes related to the
establishment and operation of the Facility on the specified site. This may include
circumstances where site specific technical and cultural heritage assessments indicate
that additional land is required to mitigate impacts on the operational footprint for the
Facility. Any additional land required would be subject to assessment and approval
under the Environment Protection and Biodiversity Conservation Act 1999.
48. The Bill specifies the additional land, which is approximately 50 hectares adjacent to
the specified site, and was voluntarily nominated by its owners as part of land for the
Facility. The area specified in a regulation may be all or part of the land specified in the
Bill, and may be required for purposes including additional buildings, services,
educational, research and development facilities or other uses related to the
development, operation or maintenance of the Facility.
49. New subsection 19A(1) provides that regulations may prescribe additional land to
expand the specified site. Any regulation made under this subsection must also
prescribe the time of acquisition (the prescribed acquisition time) for the land.
50. New subsection 19A(2) specifies the land, all or part of which may be prescribed by a
regulation under subsection 19A(1). The land, approximately 50 hectares, is itself a
15
portion of the land that was voluntarily nominated by its owners, but not specified
under new section 5, and is adjacent to the specified site.
51. New subsection 19A(3) states that, before the Governor-General makes a regulation
under new subsection 19A(1), the Minister must be satisfied consultation has been
undertaken in accordance with new section 19C. This requirement will allow people
with rights or interests in proposed additional land to comment in relation to the
proposal.
52. New subsection 19A(4) specifies that all rights and interests are acquired by the
Commonwealth or extinguished, and freed or discharged from all other rights and
interests, at the time the regulation made under subsection 19A(1) takes effect.
53. New subsection 19A(5) states that subsection 19A(3) does not limit the operation of
section 17 of the Legislation Act 2003 which requires rule-makers to consult before
making legislative instruments.
54. Item 15 also inserts new section 19B, which provides for the acquisition or
extinguishment of rights and interests in additional land to provide for all-weather road
access to the specified site or to additional land prescribed by regulations under new
section 19A. This amendment is consequential to the repeal of section 14 of the Act by
item 11 of Schedule 1.
55. While primary road access to the specified site for the facility is not expected to require
any additional acquisition of land, secondary or emergency road access may be required
by the regulator (the Australian Radiation Protection and Safety Agency) in licensing
conditions, which may necessitate additional land acquisitions. Should all-weather road
access be necessary, it may not be necessary to acquire all rights and interests (for
example, native title rights and interests, a right of access or a contractual right).
56. New subsection 19B(1) empowers the Minister to specify in a notifiable instrument
additional land that is required to provide all-weather road access to the specified site or
to additional land prescribed by regulations under new section 19A and any rights or
interests that are not acquired.
57. New subsection 19B(2) states that, before the Minister makes an instrument under new
subsection 19B(1), the Minister must be satisfied that consultation has been undertaken
in accordance with new section 19C.
58. New subsection 19B(3) specifies that, unless the instrument specifies rights and interest
that are not required, all rights and interests are acquired by the Commonwealth or
extinguished, and freed or discharged from all other rights and interests, at the time the
instrument made under subsection 19B(1) takes effect.
59. Item 15 of Schedule 1 also inserts new section 19C, which prescribes the consultation
requirements in relation to the acquisition or extinguishment of rights and interests in
additional land under new section 19A or 19B.
60. New subsection 19C(1) provides that the Minister must invite each person with a right
or interest in the land to comment on the proposal to acquire the additional land. Any
relevant comments received must be taken into account by the Minister when
considering whether to acquire the additional land.
61. New subsection 19C(2) requires the Minister to provide a consultation period of not
less than 30 days for comments to be provided on a proposal to acquire the additional
land. This allows flexibility to determine the appropriate consultation mechanisms and
16
timeframes to effectively consult on a case-by-case basis with people who may have a
right or interest in the land that is proposed to be acquired.
62. New subsection 19C(3) acknowledges that it may not be possible to identify all of the
persons who have a right or interest in the additional land. Under this new provision,
the Minister is taken to have invited each person with a right or interest in the
additional land if the invitation is published in a daily newspaper circulating in each
State, the Australian Capital Territory and the Northern Territory, or in a daily
newspaper (if any) that circulates in the area in which the additional land is situated.
63. New subsection 19C(4) states that section 19C is an exhaustive statement of the
requirements of the natural justice hearing rule in relation to:
(a) decisions about the making of regulations under subsection 19A(1); or
(b) a decision by the Minister whether to make a notifiable instrument under
subsection 19B(1).
The rule requires that a person whose interests will be affected by a decision receives a
fair and unbiased hearing before the decision is made.
Items 16 and 17: Subsection 20(1); Subsection 20(2)
64. Items 16 and 17 of Schedule 1 amend subsections 20(1) and 20(2) to include reference
to new subsections 19(1), 19A(4) and 19B(3) (inserted by item 15 of Schedule 1).
Item 18: Subsection 21(1)
65. Item 18 of Schedule 1 repeals and substitutes subsection 21(1) of the Act to provide
that the Secretary of the Department may lodge a notice, signed by the Secretary, with
the Registrar-General, or other appropriate officer of South Australia, stating the rights
and interests acquired by the Commonwealth under the Act by force of subsection
19(1), 19A(4) or 19B(3). This will enable the Commonwealth's ownership of the land
to be recorded.
Items 19 and 20: Subsection 21(2)
66. Item 19 of Schedule 1 amends subsection 21(2) to omit "copy", and substitute "notice".
This amendment is consequential to the substitution of new subsection 21(1) by item 18
of Schedule 1.
67. Item 20 of Schedule 1 amends subsection 21(2) to omit "the State or Territory", and
substitute "South Australia". This amendment is consequential to the substitution of
new subsection 21(1) by item 18 of Schedule 1.
Items 21 and 22: Subsection 22(1) and paragraph 22(2)(a)
68. Section 22 of the Act provides for the establishment of a Regional Consultative
Committee (RCC), a consultative forum comprising regional representatives who are
appointed by the Minister to facilitate communication between the Commonwealth, the
operator of the Facility and people living in or near the region where the Facility is
located.
69. The Bill amends subsection 22(1) so that the timing for the establishment of the RCC is
no longer linked to the declaration of a site, as the site for the Facility will now be
specified in the Act. Item 21 omits "Immediately after a declaration under subsection
14(2) takes effect, the", and substitutes "The". This amendment is consequential to the
17
repeal of section 14 by item 11 of Schedule 1 and the specification of the site for the
Facility under new section 5, inserted by item 10 of Schedule 1. The Government will
work in consultation with the host community to establish the RCC as soon as possible
after the commencement of the amending Act.
70. The amendments will not affect the function of the RCC. A large part of the RCC's role
will involve assisting the host community to influence the available benefits, including
the social and economic benefits of the NRWMF Community Fund. The RCC will have
a consultative role in the establishment of the NRWMF Community Fund entity,
established by Part 6A of the Act (see item 3 of Schedule 2).
71. Item 22 of Schedule 1 is a consequential amendment to paragraph 22(2)(a) to omit
"selected" (wherever occurring) and substitute "specified" to reflect the repeal of
subsection 14(2) by item 11 of Schedule 1.
Item 23: Part 5 (heading)
72. Section 23 of the Act currently provides authority to conduct a range of preparatory and
operational activities in relation to the site for the Facility to enable the construction,
management and decommissioning of the Facility. This authority applies to the
Commonwealth, a Commonwealth entity, a Commonwealth contractor and an
employee or agent of any of these bodies or persons (subsection 23(1)).
73. Item 23 of Schedule 1 makes a consequential amendment to the heading for Part 5 of
the Act to omit the words "selected site" and substitute "specified site etc.", to reflect
the insertion of new section 5 by item 10 of Schedule 1 and new sections 19A and 19B
by item 15 of Schedule 1.
Items 24 and 25: Subsection 23(2) and paragraph 23(2)(c)
74. Items 24 and 25 of Schedule 1 make consequential amendments to subsection 23(2) and
paragraph 23(2)(c) of the Act to omit "selected site" and substitute "relevant land", to
reflect the insertion of new section 5 by item 10 of Schedule 1 and new sections 19A
and 19B by item 15 of Schedule 1. Item 30 of Schedule 1 inserts a new definition of
relevant land.
Item 26: Paragraph 23(2)(g)
75. Item 26 of Schedule 1 makes a consequential amendment to paragraph 23(2)(g) of the
Act to omit "land specified in the declaration under subsection 14(4)" and substitute
"the relevant land". This item reflects the insertion of new section 19A by item 15 of
Schedule 1. Item 30 of Schedule 1 inserts a new definition of relevant land.
Item 27: Subsection 23(3)
76. Item 27 of Schedule 1 repeals and substitutes new subsection 23(3) of the Act, which
sets out activities that may be conducted in relation to the relevant land. Item 30 of
Schedule 1 inserts a new definition of relevant land.
77. The amendment is consequential to the repeal of subsection 11(3) by item 10 of
Schedule 1 (subsection 11(3) is within Part 3 of the Act).
78. The inclusion of a power to conduct the activities currently listed in subsection 11(3)
will enable preparation of the land for its intended use in connection with the
establishment and operation of the Facility.
18
Items 28 and 29: Subsections 23(4) and (5)
79. Items 28 and 29 of Schedule 1 make consequential amendments to subsections 23(4)
and (5) of the Act, by omitting the words "selected site" and substituting "relevant
land". These amendments reflect the insertion of new section 5 by item 10 of
Schedule 1 and new section 19A by item 15 of Schedule 1.
Item 30: At the end of section 23
80. Item 30 of Schedule 1 adds new subsection 23(6), setting out a definition of relevant
land at the end of section 23 of the Act. Relevant land includes:
(a) the specified site;
(b) any additional land prescribed under new subsection 19A(1), when the
prescribed acquisition time has passed); and
(c) any additional land specified in an instrument under new subsection 19B(1).
Item 31: Part 6
81. Part 6 of the Act applies only if land located in the Northern Territory that is Aboriginal
land within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 is
selected as the site for the Facility.
82. Item 31 of Schedule 1 repeals Part 6 of the Act as the site specified for the Facility is
located in South Australia and the Part is no longer required.
Item 32: Section 34A
83. Section 34A of the Act sets out the circumstances in which Part 6A applies. Item 32 of
Schedule 1 makes a consequential amendment to repeal and substitute a new section
34A to reflect amendments made by item 10 of Schedule 1 to specify the site for the
Facility in the Act.
84. New section 34A provides that Part 6A applies if a facility has been constructed at the
specified site and a facility licence, authorising a person to operate the Facility, has
been issued under the Australian Radiation Protection and Nuclear Safety Act 1998
(the ARPANS Act).
85. Note: Items 2 to 8 of Schedule 2 (Establishment of community fund) make other
amendments to Part 6A of the Act.
Item 33: Paragraphs 34B(1)(b) and (c)
86. As the site for the location is specified in the Act as amended and is within South
Australia, references to a "relevant State or Territory" are no longer required.
87. Item 33 of Schedule 1 repeals paragraphs 34B(1)(b) and (c) and substitutes new
paragraphs that refer to South Australia rather than to another State or a Territory. This
is a consequential amendment to reflect the specification of the site for the Facility in
new section 5.
88. The amendment in item 33 aligns the requirement of a fee to be paid with item 7 of
Schedule 2, which inserts new subsection 34B(2A) to provide that all Capital
Contribution Fees payable under section 34B are payable to the Commonwealth. The
amendment ensures that the fee continues to be payable only by non-Commonwealth
and non-host State users of the Facility. South Australian waste producers will be
19
exempt from the fee, in recognition of South Australia's contribution to the safe and
secure management of controlled material by hosting the Facility.
Item 34: Subsection 34B(3)
89. Item 34 of Schedule 1 repeals subsection 34B(3) to remove the definitions of authority
of the Commonwealth and authority of the relevant State or Territory, as a consequence
of amendments made by item 33 of Schedule 1. Subsection 34B(3) is no longer
required.
90. The definition of Commonwealth entity in section 4 of the Act encompasses the types
of Commonwealth entities listed under the section 34B(3) definition. Item 1 of
Schedule 3 inserts a new definition of authority into section 4 of the Act, which assists
in determining what "an authority of South Australia" is for the purposes of new
paragraph 34B(1)(c).
Item 35: Before Part 7
91. Item 35 of Schedule 1 inserts new Part 6C (Transitional), which comprises new
provisions relating to things done under (or purportedly under) repealed section 11 of
the Act on or in relation to land, before the commencement of the amending Act.
92. New section 34G (authority to conduct certain activities) applies if a person has done a
thing under repealed section 11 of the Act before the site acquisition time. The new
section empowers a person (who may have entered the land to do things under repealed
section 11) to do anything necessary for or incidental to leaving the site, as nearly as
practicable, in the condition in which it was immediately before the thing was done.
The person can do the kind of things that could be done under repealed section 11.
Activities required to return the site to its original condition may include: sealing bore
holes, removing monitoring equipment and their protective structures; replacing sand,
gravel, soil, or rocks that were moved in the course of extracting samples; and
replanting vegetation that was cleared, where it is possible to do so.
93. Under new subsection 34G(4), a person doing a thing under this section must take
reasonable steps to ensure as little damage, detriment or inconvenience as practicable is
caused, and that the person remains on the land only for the time reasonably required to
do the thing.
94. New section 34GA (Application of State and Territory laws) provides that certain State
or Territory laws cannot apply to regulate, hinder or prevent the doing of a thing
authorised by new section 34G. Subsections 34GA(2) and (3) allow the regulations to
prescribe a State or Territory law, or a provision of a law, that has no effect to the
extent that it would regulate, hinder or prevent the doing of a thing under new section
34G. Subsection 34GA(4) allows the regulations to prescribe a State or Territory law,
or a provision of a law, that will continue to have effect, despite anything else in section
34GA.
95. New section 34GB (Application of Commonwealth laws) overrides the Aboriginal and
Torres Strait Islander Heritage Protection Act 1984 and the Environment Protection
and Biodiversity Conservation Act 1999, to the extent those Acts would regulate, hinder
or prevent the doing of a thing under new section 34G. New subsection 34B(2)
empowers the regulations to prescribe additional Commonwealth laws, or a provision
of a law, that would also have no effect.
20
Item 36: Subsection 35(1)
96. Item 36 of Schedule 1 makes a consequential amendment to subsection 35(1) to include
reference to subsection 19(1) and new subsections 19A(4) and 19B(3) (inserted by item
15 of Schedule 1). The new subsections provide for additional land to be acquired to
expand the specified site for the Facility or provide all-weather road access to the
Facility. The effect of this amendment is to ensure that, where rights or interests are
acquired, extinguished or otherwise affected by the acquisition of the specified site
under subsection 19(1), the making of a regulation under subsection 19A(1) or the
making of a notifiable instrument under subsection 19B(1), the Commonwealth is liable
to pay reasonable compensation.
Item 37: Sections 37 and 40
97. Item 37 of Schedule 1 repeals sections 37 and 40 of the Act to reflect the amendment
made by item 10 of Schedule 1 and the repeal of Schedules 1 and 2 to the Act by
item 38 of Schedule 1.
Item 38: Schedules 1 and 2
98. Item 38 of Schedule 1 repeals Schedules 1 and 2 of the Act as they are no longer
required.
99. Schedule 1 to the Act repealed the whole of the Radioactive Waste Management Act
2005 (the 2005 Act), and replaced it with the National Radioactive Waste Management
Act 2012. There are no remaining transitional or application provisions that require
administration in relation to the repeal of the 2005 Act.
100. Schedule 2 to the Act was included as a consequence of amendments to the
Administrative Decisions (Judicial Review) Act 1977 providing for the approval of land
nominated under the 2005 Act to continue in force. As this Bill repeals section 6 of the
Act, which provides for the approval of nominated land, this Schedule is no longer
required.
Schedule 2--Establishment of Community Fund
National Radioactive Waste Management Act 2012
101. Schedule 2 repeals the provisions relating to the National Repository Capital
Contribution Fund (NRCC Fund), which was intended to support delivery of enhanced
public services and infrastructure to the State or Territory where the facility was
located. The provisions were added as an amendment to the National Radioactive
Waste Management Bill 2010 during consideration before Parliament, before it was
passed by both Houses. The provisions were included in the Act when the
Commonwealth Government was working with the Northern Territory on a potential
site, but the proposal was subsequently abandoned. The Schedule inserts new
provisions to provide for a lump sum payment of $20 million (the NRWMF
Community Fund Payment) to support the long-term social and economic sustainability
of the NRWMF host community to support the establishment of, and the ongoing safe
and secure management of controlled material at, the Facility.
102. Schedule 2 amends the provisions relating to the National Repository Capital
Contribution Fee. This Fee was designed to recoup an initial $10 million toward the
cost of the Facility's construction, and to pay amounts over and above the initial
21
$10 million into the NRCC Fund. These amendments uncouple the Fee from the
Community Fund by ensuring that the Fee is payable only to the Commonwealth.
103. The amendments in Schedule 2 would also enable regulations to prescribe the NRWMF
Community Fund entity, which would receive and administer the NRWMF Community
Fund.
104. The Bill would also require all NRCC Fees paid by non-Commonwealth and non-host
State and Territory users of the Facility to be paid into the consolidated revenue fund.
Item 1: Section 4
105. Item 1 of Schedule 2 amends section 4 of the Act by inserting new definitions of host
community, local government area and NRWMF Community Fund entity.
106. The host community for a facility is the community located in the local government
area in which the facility is located. The intention of this definition is that people who
are considered to be members of the community for local government purposes are
recognised as members of the host community for the Facility.
107. Local government area means an area that, as at the site acquisition time, is an area for
which a council is constituted under the Local Government Act 1999 (SA). The local
government area is therefore the constituted area as at the date of commencement of the
amending Act.
108. The NRWMF Community Fund entity is the entity prescribed by regulations for the
purposes of new subsection 34AA(1), inserted by item 3 of Schedule 2. The note for the
new definition explains to the reader that NRWMF is short for National Radioactive
Waste Management Facility.
Item 2: Part 6A (heading)
109. Item 2 of Schedule 2 repeals and substitutes a new heading to Part 6A. This amendment
is consequential to the repeal of section 34C, which establishes the National Repository
Capital Contribution Fund (repealed by item 8 of Schedule 2) and the insertion of new
section 34AA, which provides for the establishment of the NRWMF Community Fund
entity (inserted by item 3 of Schedule 2).
Item 3: After section 34A
110. The Facility is an investment in the long-term safe and secure management of
controlled material, and will operate to ensure that Australia meets its obligations under
the Joint Convention. Once established, it is expected to be in operation for 100 years.
The NRWMF Community Fund will support the safe and secure management of
controlled material by providing targeted community controlled funding to the host
community. This approach to funding will build economic resilience, capacity and
skills within the host community to enable them to realise the benefits of the Facility. It
will also safeguard the long-term operation of the Facility by ensuring the ongoing
sustainability of the host community and its ability to provide support services
necessary to the ongoing operation of the Facility.
111. Item 3 of Schedule 2 inserts new sections 34AA, 34AB and 34AC. The new sections
provide for the NRWMF Community Fund entity to be prescribed in regulations and set
out the terms and conditions upon which the payment will be made to the entity. The
NRWMF Community Fund entity is intended to be managed and controlled by the host
22
community. Accordingly, these new sections ensure that the NRWMF Community
Fund Payment is used to meet the needs of the host community.
112. New subsection 34AA(1) defines that the NRWMF Community Fund entity is the
entity prescribed by regulations (as signposted by the definition inserted by item 1 of
Schedule 2).
113. Reflecting the importance of community control of the NRWMF Community Fund
entity, new subsection 34AA(2) requires that, before the Governor-General makes
regulations prescribing the NRWMF Community Fund entity, the Minister must be
satisfied that consultation about the type of entity to be established and associated
governance arrangements was undertaken with:
(a) the Regional Consultative Committee (the RCC) (established under section 22
of the Act), which will be a consultative committee established to facilitate
communication between the Commonwealth, the regional community, and the
Facility operator (consultation with the RCC will ensure that the views of the
regional community are considered when establishing an appropriate entity);
(b) the local council, which will provide valuable insights into the needs of the host
community; and
(c) the South Australian Government, which will be able to provide detail on
existing funding to the host community, and help to reduce the risk of
duplicating existing funding outcomes. This would assist the NRWMF
Community Fund entity to more effectively target how the NRWMF
Community Fund Payment is used.
114. Consultation will ensure that the NRWMF Community Fund is representative of a
broad range of views in the host community, including those of the local Traditional
Owners. This consultation reflects the Government's commitment to uphold its
obligations under the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights. The consultation
requirement is a mechanism for ensuring that the host community can determine
spending that will positively affect its future, including a focus on the development of
the local Aboriginal community economy.
115. New section 34AB requires the Minister to make a payment to the NRWMF
Community Fund.
116. New subsections 34AB(2) and (3) provide that the payment under new subsection
34AB(1) to be a single payment of $20 million and that an agreement must be made
between the Commonwealth and the NRWMF Community Fund entity before the
payment can be made. The terms and conditions that must be contained in this
agreement are prescribed by new section 34AC.
117. New subsection 34AB(4) provides that the payment is to be made out of money
appropriated by the Parliament by another Act. A note to the subsection advises that the
other Act will usually be an Annual Appropriation Act.
118. New section 34AC sets out a number of requirements in relation to the terms and
conditions for the payment to be made to the NRWMF Community Fund entity under
new section 34AB.
119. New subsection 34AC(2) requires the terms and conditions on which the payment to
the NRWMF Community Fund entity is to be made is set out in a written agreement
between the NRWMF Community Fund entity and the Commonwealth. New
23
subsection 34AC(3) enables the Minister to enter into this written agreement on behalf
of the Commonwealth.
120. New subsection 34AC(4) requires the NRWMF Community Fund entity to comply
with the terms and conditions set out in the written agreement. The Commonwealth
aims to ensure the proper use of the Community Fund Payment, but will play a limited
role in its administration. The written agreement stipulating the terms of the payment
may therefore include; a requirement for the Community Fund entity to report
periodically to the Commonwealth on the nature of the expenditure or projects being
funded to meet the core condition of the Community Fund; conditions upon which
members of the Community Fund entity are appointed or removed; and governance
arrangements to manage competing community priorities for expenditure.
121. New subsection 34AC(5) requires the agreement entered into under new subsection
34AC(2) to state that the core condition for the payment is that the entity will use the
payment for the purposes associated with the economic and social sustainability of the
host community for the Facility, so as to support the establishment and operation of the
Facility in safely and securely managing controlled material at the Facility.
122. New subsection 34AC(6) requires the agreement entered into under new subsection
34AC(2) to set out the circumstances in which the NRWMF Community Fund entity
must repay the amounts to the Commonwealth. This is a core requirement to align the
expenditure with the Public Governance, Performance and Accountability Act 2013,
and has been included to ensure appropriate accountability. Circumstances in which the
Community Fund entity may be required to repay amounts to the Commonwealth could
include instances in which the entity fails to meet the core condition of the agreement
(at new subsection 34AC(5)), other terms of the agreement such as failing to report
when required, or if the payment is misappropriated. Any amounts repayable to the
Commonwealth would be a debt to the Commonwealth.
123. New subsection 34AC(7) provides that other terms and conditions to be set out in the
written agreement may be prescribed by the regulations that establish the NRWMF
Community Fund entity under new section 34AA.
124. New subsection 34AC(8) ensures that the content of the agreement required by
subsection 34AC(2) is not limited by subsections (5), (6) and (7). This allows flexibility
for the written agreement to meet the needs of the Community Fund entity and the
Commonwealth.
Item 4: Before section 34B
125. Item 4 of Schedule 2 inserts a new heading for Part 6B to delineate by subject the
existing provisions in the Act to that of new Part 6A inserted by item 3 of Schedule 2.
Item 5: Section 34B (heading)
126. Item 5 of Schedule 2 amends the heading to section 34B by omitting the words
"National Repository". This is a consequential amendment to reflect the repeal of
section 34C (by item 8 of Schedule 2), and the insertion of new section 34AA (by item
3 of Schedule 2).
127. The effect of this amendment is to remove the redundant reference to the National
Repository Capital Contribution Fund from the amended provisions for the Capital
Contribution Fee (in new Part 6B (Fee for use of facility)). As there will no longer be
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any link between the Capital Contribution Fee and the new NRWMF Community Fund,
references to a National Repository Capital Contribution Fund are no longer required.
Item 6: Subsection 34B(1)
128. Item 6 of Schedule 2 amends subsection 34B(1) to insert "mentioned in section 34A"
after "use the facility". This is a consequential amendment to reflect new section 5
inserted by item 10 of Schedule 1 to specify the site for the Facility. Section 34A as
amended refers to a Facility constructed on that site.
129. Section 34A of the Act as amended states that Part 6A, relating to the Community
Fund, applies when the Facility has been constructed at the specified site and has
received an operational licence under the ARPANS Act. The amendment made to
section 34B by item 6 of Schedule 2 ensures that the fee payable under section 34B is
for use of the Facility developed on the site and licensed to operate as a facility.
Item 7: After subsection 34B(2)
130. Item 7 of Schedule 2 inserts new subsection 34B(2A) to provide that all Capital
Contribution Fees payable under section 34B are payable to the Commonwealth.
Item 8: Sections 34C to 34E
131. Item 8 of Schedule 2 repeals sections 34C to 34E of the Act. Amendments to Part 6A,
and the insertion of new Part 6B, render sections 34C to 34E redundant as they relate to
the NRCC Fund, which is superseded by the NRWMF Community Fund.
Schedule 3--Other amendments
National Radioactive Waste Management Act 2012
132. Other amendments to the Act include the addition of a number of definitions to support
the new definition of controlled material in new section 4A. The Act repeals the
majority of references to radioactive waste and replaces them with references to
controlled material. These amendments are consistent with the definition of "controlled
material" in the ARPANS Act, which defines "controlled material" as including any
natural or artificial material, whether in solid or liquid form, or in the form of a gas or
vapour, which emits ionizing radiation spontaneously. The definition covers all types of
waste that will be held at the Facility, so it is appropriate that the Act directly refers to
it.
Item 1: Section 4
133. Item 1 of Schedule 3 inserts a new definition of authority in section 4 of the Act. When
used in relation to a State or Territory, the term 'authority' will encompass bodies
corporate established for a public purpose under a State or Territory law, and
incorporated companies in which a State or Territory (either directly or indirectly) has a
controlling interest.
134. The term is used in the definition of controlled material in new section 4A to ensure
there are clear and objective links between the operation of the Act and the powers
conferred on the Commonwealth by the implied Nationhood and Territories powers of
the Constitution, by providing that controlled material includes material generated by
authorities of States or Territories.
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Item 2: Section 4 (definition of controlled material)
135. Item 2 of Schedule 3 repeals and substitutes a new definition of controlled material in
section 4 of the Act with a signpost definition for controlled material in new section
4A, which is inserted by item 4 of Schedule 3.
Item 3: Section 4 (definition of facility)
136. Item 3 of Schedule 3 amends the definition of facility in section 4 as a consequence of
the new definition of controlled material in new section 4A, inserted by item 4 of
Schedule 3. Paragraph 4A(3)(d) includes the requirement that controlled material is
generated, possessed or controlled by the Commonwealth or a Commonwealth entity in
the performance of its functions.
Item 4: At the end of Part 1
137. Item 4 of Schedule 3 adds new section 4A, which sets out a new definition of
controlled material. The term is used throughout the Act to describe the kind of
material that can be stored at the Facility.
138. Material is controlled material for the purposes of the Act as amended if it falls within
the meaning of "controlled material" as defined in section 13 of the ARPANS Act, as in
force from time to time, and satisfies new subsections 4A(2) and (3). Under the
ARPANS Act, "controlled material" means any natural or artificial material, whether in
solid or liquid form, or in the form of a gas or vapour, which emits ionizing radiation
spontaneously.
139. New subsection 4A(2) operates to exclude radioactive waste generated overseas, as
well as high level waste and spent nuclear fuel, with the exception of material sent to
Australia under contractual arrangements relating to the conditioning or reprocessing of
ANSTO spent nuclear fuel (as defined in section 3 of the Australian Nuclear Science
and Technology Organisation Act 1987).
140. New subsection 4A(3) imposes requirements regarding the nature of controlled material
to be handled at the Facility. Each of the paragraphs in the subsection invoke certain
Constitutional heads of power, and have been included to ensure provisions in the Act
are capable of being read down to the extent permitted by the Constitution.
Item 5: Subsection 34B(1)
141. Item 5 of schedule 3 amends subsection 34B(1) to omit "radioactive waste" and
substitute "controlled material." Controlled material is defined in new section 4A,
inserted by item 4 of Schedule 3.
Item 6: Section 34F (heading)
142. Item 6 of Schedule 3 amends the heading for section 34F as a consequence of the
amended definition of controlled material in new section 4A, inserted by item 4 of
Schedule 3.
Item 7: Section 34F
143. Item 7 of Schedule 3 amends section 34F to omit "waste" and substitute "controlled
material". This amendment is consequential to the insertion of a new definition of
controlled material in new section 4A.
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Item 8: Section 38
144. Item 8 of Schedule 3 repeals section 38 of the Act. Section 38 operates to ensure that
the Act could be read down to be supported by the Territories power in section 122 of
the Constitution. The amended definition of controlled material in new section 4A,
inserted by item 4 of Schedule 3, obviates the need for section 38 of the Act.
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