Federal Register of Legislation - Australian Government

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A Bill for an Act to amend the law relating to the management of Commonwealth radioactive waste, and for related purposes
Administered by: DEST
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Registered 07 Nov 2006
Introduced HR 02 Nov 2006

 

 

 

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.